Planning and Environment Act 1987
Panel Report Whittlesea Planning Scheme Amendment C175 Mernda Township
14 September 2016
Planning and Environment Act 1987 Panel Report pursuant to Section 25 of the Act Whittlesea Planning Scheme Amendment C175 Mernda Township
14 September 2016
Sarah Carlisle, Chair Michael Malouf, Member Whittlesea Planning Scheme Amendment C175 Panel Report 14 September 2016
Contents Page Executive Summary ...... 1 1 Introduction ...... 6 1.1 Panel process ...... 6 1.2 The proposal ...... 7 1.3 Background to the proposal ...... 9 2 Identification of issues ...... 11 2.1 Summary of issues raised in submissions ...... 11 2.2 Expert reports ...... 13 2.3 Issues dealt with in this Report ...... 14 3 Planning context ...... 15 3.1 Policy framework ...... 15 3.2 Planning scheme provisions ...... 17 3.3 Ministerial Directions and Practice Notes ...... 21 3.4 Discussion ...... 22 3.5 Conclusions ...... 23 3.6 Recommendation ...... 23 4 Rural Conservation zoned land ...... 24 4.1 The issues ...... 24 4.2 Background and context ...... 24 4.3 Submissions and evidence ...... 25 4.4 Discussion ...... 32 4.5 Conclusions ...... 34 4.6 Recommendation for further work ...... 36 5 Land Subject to Inundation Overlay ...... 37 5.1 The issues ...... 37 5.2 Submissions ...... 37 5.3 Discussion ...... 42 5.4 Findings and conclusions ...... 45 5.5 Recommendations ...... 46 6 Traffic and transport issues ...... 47 6.1 The issues ...... 47 6.2 Submissions ...... 47 6.3 Discussion and conclusions ...... 50 6.4 Recommendations ...... 52 7 Other matters ...... 54 7.1 Medium density housing ...... 54 7.2 345 Hazel Glen Drive ...... 55 7.3 31‐35 Johnsons Road ...... 57 7.4 Drainage infrastructure ...... 59 7.5 Minor drafting matters ...... 60
Whittlesea Planning Scheme Amendment C175 Panel Report 14 September 2016
7.6 Recommendations ...... 60 Appendix A Submitters to the Amendment Appendix B Document list Appendix C Panel Preferred Version of Development Plan Overlay Schedule 34
List of Tables Page Table 1 Parties to the Panel Hearing ...... 6
List of Figures Page Figure 1 Land subject to the Amendment ...... 7 Figure 2 Current zoning of land affected by the Amendment ...... 8 Figure 3 Current and proposed application of the DPO...... 18 Figure 4 Current and proposed application of floodway overlays ...... 19 Figure 5 Current and proposed application of the VPO1 ...... 20 Figure 6 Current application of the Heritage Overlay (no change proposed) ...... 21 Figure 7 Predicted odour contours from the Mushroom Exchange ...... 29 Figure 8 Q100 Flood Extents ...... 37 Figure 9 LSIO boundaries overlaid with 100 year flood extent and flood level contours ...... 39 Figure 10 Township land within a 1km radius of possible location of Mernda train station ...... 54 Figure 11 Extract from Concept Plan, 345 Hazel Glen Drive ...... 56 Figure 12 Approved subdivision layout, 345 Hazel Glen Drive ...... 56 Figure 13 Current zoning, 31‐35 Johnsons Road ...... 57 Figure 14 Extract from Concept Plan, 31‐35 Johnsons Road ...... 57 Figure 13 Current zoning, 31‐35 Johnsons Road…………………………………………………… .. ……….57 Figure 14 Extract from Concept Plan, 31‐35 Johnsons Road……………………………………………..57
Whittlesea Planning Scheme Amendment C175 Panel Report 14 September 2016
List of Abbreviations
DPO34 Development Plan Overlay Schedule 34 – Mernda Township Development Plan DSS Development Services Scheme EPA Environment Protection Authority GRZ1 General Residential Zone Schedule 1 LPPF Local Planning Policy Framework LSP Mernda Local Structure Plan Part 1 (December 1998) LXRA Level Crossing Removal Authority PPN12 Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes PPN23 Planning Practice Note 23 – Applying the Incorporated Plan and Development Plan Overlays PPN54 Planning Practice Note 54 — Referral and Notice Provisions June 2015 PPRZ Public Park and Recreation Zone PUZ2 Public Use Zone Schedule 2 PTV Public Transport Victoria RCZ Rural Conservation Zone RFO Rural Floodway Overlay SPPF State Planning Policy Framework SUZ7 Special Use Zone Schedule 7 – Costa Exchange Mushroom Farm – 45 Cookes Road, Doreen TZ Township Zone UGB Urban Growth Boundary VCAT Victorian Civil and Administrative Tribunal VPO1 Vegetation Protection Overlay Schedule 1 – Significant Vegetation (River Redgum Grassy Woodland)
Whittlesea Planning Scheme Amendment C175 Panel Report 14 September 2016
Overview
Amendment Summary The Amendment Whittlesea Planning Scheme Amendment C175 Common Name Mernda Township Subject Site The area generally bounded by Hazel Glen Drive, the Plenty River, Bridge Inn Road and the Mernda Rail Reserve, Mernda as shown in Figure 1 Planning Authority Whittlesea City Council Authorisation 7 October 2015 Exhibition 3 December 2015 to 8 February 2016 Submissions Number of Submissions: 20 Opposed: 8
Panel Process The Panel Sarah Carlisle (Chair), Michael Malouf (Member) Directions Hearing City of Whittlesea Civic Centre, 4 July 2016 Panel Hearing City of Whittlesea Civic Centre, 3 August 2016 Site Inspections Unaccompanied, 26 July 2016 Appearances See Table 1 Date of this Report 13 September 2016
Whittlesea Planning Scheme Amendment C175 Panel Report 14 September 2016
Executive Summary
(i) Summary Amendment C175 seeks to provide improved guidance over the future growth of the Mernda Township, by rezoning land currently zoned Township and Public Use to General Residential Zone, and applying the Development Plan Overlay Schedule 34, the Land Subject to Inundation Overlay, and the Vegetation Protection Overlay Schedule 1. The key issues raised in submissions were: whether land in the eastern part of the Township that is currently zoned Rural Conservation Zone (RCZ) should be included in the land to be rezoned to General Residential Zone whether the Land Subject to Inundation Overlay (LSIO) should be applied, and how the boundaries of the LSIO were determined traffic and transport issues, including ensuring that development in the Township does not impact on the operation of the proposed Mernda Rail Extension project. Rural Conservation zoned land The most contentious issue was the rezoning of the RCZ land. On the one hand, RCZ landowners submitted that the RCZ land has long been recognised in strategic planning as a future residential area, and it would constitute orderly planning to rezone the land along with the rest of the Township, to facilitate an integrated and connected approach to its development. On the other hand, Council and the Costa Group (which operates the Mernda Mushroom Exchange on the opposite banks of the river) argued that the RCZ land should not be rezoned as part of this Amendment, because it serves an important function of providing a buffer between the Mushroom Exchange and urban development within the Township. There is strong strategic support for rezoning the RCZ land (provided it is not required as a buffer). No evidence was put to the Panel that the operations of the Mushroom Farm would be compromised if residential development were allowed to occur on the RCZ land. No evidence was presented that any jobs at the Mushroom Exchange will be lost. Nor was any evidence put to the Panel that residential development on the RCZ land would be affected by off‐site amenity impacts from the Mushroom Farm. On the evidence before it, the Panel was not persuaded that the RCZ land should not be rezoned for residential development. However, the Panel does not believe that rezoning the RCZ land should happen as part of Amendment C175. The exhibited Amendment did not propose rezoning the RCZ land. Rezoning the land as part of this Amendment would be a significant change. Parties such as the Costa Group should have the opportunity to obtain scientific or technical information on the impacts that residential development of the RCZ land might have on the Mushroom Exchange (and vice versa) before any rezoning proceeds. That said, the Panel considers that the rezoning of the RCZ land could have been handled better. If the exhibited Amendment had included the RCZ land as originally proposed, the Amendment process would have provided the parties with the opportunity to obtain and
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test the required scientific and technical evidence, and to establish whether or not the RCZ land (or how much of it) is required as a buffer. The decision to remove the RCZ land has left the RCZ landowners in a state of ‘limbo’. With no rezoning proposal on foot, there is nothing to prompt the Costa Group (or Council) to obtain the necessary scientific or technical advice needed to establish the buffer requirements. Accordingly, the Panel concludes that Council should prepare an amendment to rezone the RCZ land for residential development without delay, to enable the residential development of the RCZ land to be planned in an orderly way along with the rest of the Township. The amendment process will allow for the required scientific or technical advice to be obtained and tested, and for an informed decision to be made about the impacts rezoning the RCZ land might have on the Mushroom Exchange. Land Subject to Inundation Overlay Currently, no flood provisions are in place for the land located along the Mernda Drain between Plenty Road and its confluence with the Plenty River. Melbourne Water’s modelling of flood levels in a 1 in 100 year flood event shows that the land will be subject to low level flooding (less than 350mm). The Panel concludes that flood controls should be applied to the land, and that the Land Subject to Inundation Overlay (LSIO) is the most appropriate tool. From a property owner’s perspective, the LSIO is the least onerous of the tools available to manage flood risk in planning schemes. It requires only a permit for buildings and works, and importantly, it does not prohibit either use or development of the land. The Panel concludes that the Amendment insofar as it relates to the LSIO should be adopted as exhibited, but that changes should be made to the Concept Plan in the proposed DPO34, to ensure consistency between the LSIO and the ‘Plenty River environs’ designation on the Concept Plan. The extent of the proposed LSIO is significant on some properties (particularly the property at 88‐90 Schotters Road). The affected landowners have legitimate concerns about the possible impacts of the LSIO on their properties. The Panel believes that both Council and Melbourne Water could have engaged more constructively with landowners affected by the proposed LSIO. Other matters Submissions raised a number of other matters. The main issues related to traffic and transport matters. Public Transport Victoria and the Level Crossing Removal Authority raised a number of issues, including in relation to how the Amendment might affect the Mernda Rail Extension project (for which a reference design was recently released). Council was able to resolve many of these issues in discussions with the relevant agencies prior to the hearing, and the Panel has made recommendations regarding the unresolved issues.
(ii) Conclusions The Panel concludes that the Amendment represents sound planning, and should be supported subject to some drafting changes to the proposed DPO34, some changes to the
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Concept Plan in DPO34, and the insertion of an additional referral requirement into the schedule to Clause 66.04 of the Whittlesea Planning Scheme.
(iii) Recommendations Based on the reasons set out in this Report, the Panel recommends: Whittlesea Planning Scheme Amendment C175 be adopted as exhibited subject to the following changes: 1. Amend Schedule 34 to the Development Plan Overlay as follows (as shown in Appendix C): a) Include the following in a new Clause 3.0: 3.0 Referral of applications In accordance with section 55 of the Act, an application must be referred to the relevant referral authority specified in the schedule to Clause 66.04. b) In Clause 3.0 (now Clause 4.0), include the following additional dot point under the heading ‘Road and pedestrian network’: Provision of a shared pathway along the length of Schotters Road that provides a pedestrian connection from Bridge Inn Road to Hazel Glen Drive. The final layout of the shared pathway is to be determined following discussions between the Responsible Authority and Public Transport Victoria prior to the approval of the Development Plan. c) Include the following in a new Clause 5.0: 5.0 Decision guideline Before deciding on a request to approve or amend a Development Plan, the responsible authority must consider the views of Public Transport Victoria in relation to whether the Development Plan or amended Development Plan prejudices the operation of the Mernda Railway Line. 2. Amend the Concept Plan in Clause 4.0 (now Clause 6.0) of Schedule 34 to the Development Plan Overlay as follows: a) Amend the boundaries of the ‘Plenty River environs’ designation insofar as it affects the property at 88‐90 Schotters Road and the properties fronting Hayes Road so that the ‘Plenty River environs’ boundaries accord with those of the Land Subject to Inundation Overlay. Insert the following footnote: The area designated as ‘Plenty River environs’ that is also subject to the Land Subject to Inundation Overlay (LSIO) is developable on conditions consistent with, and no more onerous than, those applying under the LSIO. b) Illustrate the Mernda rail reserve and clearly show it as being outside the area covered by the Concept Plan and Schedule 34 to the Development Plan Overlay.
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c) Remove the shared pathway shown in the Mernda rail reserve and include it within the Schotters Road road reserve. Insert the following footnote: The ultimate form and delivery of the shared path will be subject to discussion with Public Transport Victoria at the Development Plan and planning permit application stages. d) Delete the two east–west road links across the Mernda rail reserve. e) Remove the status of Station Road as nominated on the Concept Plan. Insert the following footnote: The status of Station Road is to be determined by a separate planning process. f) Remove any reference to specific intersection treatments and nominate intersections likely to require an intersection treatment. Insert the following footnote: The ultimate form and details of intersection treatments are to be determined at the Development Plan and planning permit application stages. g) Show an additional ‘proposed local open space’ area in the location of Reserve No. 1 as shown on the certified plan of subdivision prepared pursuant to Planning Permit 713337 for the subdivision of the land at 345 Hazel Glen Drive. h) Designate the residential portion of the land at 31‐35 Johnsons Road Mernda as ‘standard density residential/retirement village’. 3. Amend the Schedule to Clause 66.04 of the Whittlesea Planning Scheme to include the following requirements in the table in the Schedule: Clause – Clause 3.0 of Schedule 34 to Clause 43.04 (Development Plan Overlay) Kind of application – An application to use land, subdivide land, or construct a building or carry out works on land within 50 metres east of the Mernda Rail Reserve and within the area of the Mernda Township as shown on the Concept Plan in Clause 6.0 of Schedule 34 to Clause 43.04 Referral authority – Public Transport Victoria Type of referral authority – Recommending referral authority.
(iv) Further recommendations The Panel makes the following further recommendations: Whittlesea City Council should prepare an amendment without delay to: rezone the Rural Conservation zoned land within the Mernda Township for residential development apply the Land Subject to Inundation Overlay to that part of the land that is within the declared 1 in 100 year flood line.
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The amendment should be supported by scientific or technical evidence on the impacts that residential development on this land might have on the Mernda Mushroom Exchange.
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1 Introduction
1.1 Panel process Whittlesea Planning Scheme Amendment C175 (the Amendment) was prepared by the Whittlesea City Council (Council) as Planning Authority. As exhibited, the main purpose of the Amendment is to provide for the orderly development of the area known as the Mernda Township. The Amendment was placed on public exhibition between 3 December 2015 and 8 February 2016. Twenty written submissions were received (along with two informal verbal submissions). One written submission was withdrawn. Of the remaining 19 submissions, 12 were in support of the Amendment (although 5 of these requested some changes), with 8 opposing. At its meeting on 26 April 2016, Council resolved to refer the submissions to a Panel. As a result, a Panel to consider the Amendment was appointed under delegation from the Minister for Planning on 13 May 2016, and comprised Con Tsotsoros (Chair) and Michael Malouf. On 21 July 2016, the Panel was reconstituted to comprise Sarah Carlisle (Chair) and Michael Malouf. A Directions Hearing was held on 4 July 2016. Following the Directions Hearing, the Panel undertook an unaccompanied inspection of the subject site and its surrounds. The Panel then met at the Whittlesea Civic Centre on 3 August 2016 to hear submissions about the Amendment. Those in attendance at the Panel Hearing are listed in Table 1.
Table 1 Parties to the Panel Hearing Submitter Represented by Whittlesea City Council Mr Terry Montebello of Maddocks Melbourne Water Corporation Mr Michael Prior V A and V Agosta Mr Greg Tobin of Harwood Andrews Costa Group (Mushroom Exchange) Ms Amanda Johns of Thomson Geer Mr David Nagle
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1.2 The proposal
(i) The subject area The Amendment applies to the land shown in Figure 1.
Mernda Township land
Mernda rail reserve
Mernda Town Centre land
Figure 1 Land subject to the Amendment The Amendment primarily relates to the area known as the Mernda Township – an area of approximately 45 hectares generally bounded by Hazel Glen Drive, the Plenty River, Bridge Inn Road and the Mernda Rail Reserve, Mernda. The Amendment also relates to an area of land to the west of the rail reserve, near the intersection of Plenty Road and Bridge Inn Road. This land is outside the Mernda Township, and is located within the nearby future Mernda Town Centre. Land in the western part of the Township is currently zoned Township Zone (TZ), with the exception of the former Mernda Primary School in Johnsons Road which is zoned Public Use Zone 2 (PUZ2). This land consists of a range of smaller, medium sized and larger lots, some
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of which have already been developed for residential purposes, and some of which are currently being developed. Land in the eastern part of the Township is zoned Rural Conservation Zone (RCZ), with areas in public ownership zoned Public Park and Recreation Zone (PPRZ). This part of the Township predominantly consists of larger lots, some of which contain single dwellings and associated outbuildings. Land in the future Mernda Town Centre is zoned Comprehensive Development Zone Schedule 1. The current zoning of the land affected by the Amendment is shown in Figure 2.
Figure 2 Current zoning of land affected by the Amendment
(ii) Amendment description The Amendment proposes to: rezone the western part of the Mernda Township (the area currently zoned TZ and PUZ2), to General Residential Zone Schedule 1 (GRZ1)
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apply the Land Subject to Inundation Overlay (LSIO) to areas within the Township that are affected by the 1 in 100 year declared flood line apply the Vegetation Protection Overlay Schedule 1 – Significant Vegetation (River Redgum Grassy Woodland) (VPO1) within the Township remove the existing Development Plan Overlay Schedule 16 (DPO16) that applies to parts of the Township and the Mernda Town Centre land, and: - apply the Development Plan Overlay Schedule 34 (DPO34) to the land within the Township that is being rezoned to GRZ1 - apply the Development Plan Overlay Schedule 15 (DPO15) to the Mernda Town Centre land. The substitution of the DPO15 for the DPO16 to the Mernda Town Centre land is to correct an administrative error. This aspect of the Amendment is uncontroversial. No submissions were received in respect of it, and it is not the subject of any further discussion in this report.
(iii) Purpose of the Amendment The purpose of the Amendment, as set out in the Explanatory Report, is to provide improved guidance over the future growth of the Mernda Township. The proposed DPO34 includes a Concept Plan that will guide the location of future residential development, the overarching road network, open space provision and drainage infrastructure. The DPO requires a Development Plan to be prepared that must accord with the Concept Plan. Any permit granted must be generally in accordance with the approved Development Plan (or, if it is granted ahead of the Development Plan being approved, must not prejudice the orderly development of the land as outlined in the Concept Plan). At Melbourne Water’s recommendation, the LSIO is proposed to be applied to land being rezoned that is subject to the declared 1 in 100 year flood line, and is not already covered by the Rural Floodway Overlay. Council submitted that this will limit inappropriate development of the land and further protect the Plenty River environs. The VPO1 is being applied within the Township to better protect significant vegetation from impacts of future development. 1.3 Background to the proposal The Amendment has had a long genesis. The Township is located within the Mernda‐Doreen growth corridor. Much of the surrounding area has already been redeveloped. According to Council’s submission, the Township has been the focus of increasing development pressures given its proximity to the surrounding Mernda and Doreen growth areas, the nearby future Mernda Town Centre and good transport links (including the proposed Mernda Rail Extension). The application of the Township Zone (TZ) within the Township pre‐dates the inclusion of the Township within the Urban Growth Boundary. Council submitted that the TZ is a “hangover of its historical development and no longer speaks to any particular characteristics of the area”. The GRZ represents the “best fit translation” for the land, and reflects the residential zoning of surrounding land.
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Council first resolved to seek authorisation to prepare and exhibit the Amendment in December 2012. At this time, it was envisaged that all of the privately owned land within the Township (both the TZ land and the RCZ land) would be rezoned for residential development. For some time, Council has intended to secure a continuous linear open space network along the western banks of the river, through the RCZ land. The open space network is ultimately intended to connect to the Plenty Gorge Parklands, to the south of the Township. Council submitted that the rezoning of the RCZ land was always intended to be subject to securing agreements with the owners of the RCZ land to transfer parts of their properties to Council for the open space network. Negotiations with the owners of the RCZ land commenced in May 2013, and Council did not seek authorisation to prepare the Amendment at the time, pending finalisation of the land transfers. The Mernda Mushroom Exchange, operated by the Costa Group, is located at 45 Cookes Road Doreen, on the eastern banks of the Plenty River opposite the Township. The Mushroom Exchange has been operating for a number of decades. In December 2012, Amendment C133 facilitated the continued operation and expansion of the Mushroom Exchange, by rezoning the Mushroom Exchange site to Special Use Zone Schedule 7 and adopting the Costa Exchange Mushroom Farm Master Plan 2012 (the Mushroom Farm Master Plan). Since the approval of Amendment C133, the Costa Group has expressed concerns to Council about rezoning the RCZ land for residential development. The Costa Group maintains that this area acts as a de facto buffer to the Mushroom Exchange’s operations, and is concerned that the Mushroom Exchange could impact on residential development in this area (and that increased urbanisation could impact on the Mushroom Exchange’s operations). From 2013 to 2015, Council continued discussions with the owners of the RCZ land in relation to the land transfer agreements, and with the Costa Group in relation to the buffer. Ultimately, Council decided to proceed with rezoning the western part of the Township (the TZ and PUZ2 land), but to defer consideration of rezoning the RCZ land “until a future point in time should circumstances with respect to the operations of the Mushroom Exchange change to allow consideration of such a proposal”1. Council sought authorisation to prepare and exhibit the Amendment in that form (only rezoning the TZ and PUZ2 land). Authorisation was granted, subject to the following conditions: “Notice of the amendment must be given to: Native Title Services Victoria; and Costa Exchange Mushroom Farm, located at 45 Cookes Road Doreen.” Following exhibition of the Amendment, Council was able to resolve a number of matters raised in submissions. Council’s Part A Submission summarises the proposed changes in response to submissions.
1 Council resolution number 5 in respect of Item 6.1.8 at the Ordinary Meeting on Tuesday 14 July 2015.
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2 Identification of issues
2.1 Summary of issues raised in submissions Submissions raised two key issues in relation to the Amendment: failure to include the Rural Conservation Zone (RCZ) land in the land to be rezoned to General Residential Zone (GRZ) the application of the Land Subject to Inundation Overlay (LSIO). The other issues raised in submissions are briefly summarised below.
(i) Planning Authority The key issues for Council were: securing the orderly planning of the Mernda Township, consistent with state and local policy and previous strategic work including the Mernda Strategy Plan and the Mernda Local Structure Plan Part 1 (1998) integrating the Mernda Township with the larger Mernda‐Doreen development corridor, including the future Mernda Town Centre and other Neighbourhood Town Centres protecting significant vegetation and heritage sites within the Township maintaining the economic, social and employment benefits afforded to the City of Whittlesea and its community by the Mushroom Exchange preserving opportunities to extend the linear open space network through the RCZ land.
(ii) Relevant agencies The key issue for Melbourne Water was ensuring the LSIO is applied to land within the 1 in 100 year flood line that is not already covered by the Rural Floodway Overlay. Council supports this position, and the proposed application of the LSIO reflects Melbourne Water’s request. In substantively similar submissions, Public Transport Victoria (PTV) and the Level Crossing Removal Authority (LXRA) supported the Amendment, but requested various changes to the proposed DPO34 (including the Concept Plan) to ensure development of the Mernda Township does not impact on the operation of the proposed Mernda Rail Extension. Council was able to resolve several of the issues raised by PTV and LXRA following exhibition of the Amendment. Those remaining unresolved are: whether the Concept Plan and DPO34 adequately recognise the relationship between the Township and the Mernda Rail Reserve whether the Concept Plan and DPO34 adequately respond to the potential for train‐stabling facilities to be located within the Mernda Rail Reserve to the north of Bridge Inn Road whether DPO34 should formally require Council to consider PTV’s comments prior to approving the Development Plan whether permit applications for land within 50 metres east of the Mernda Rail Reserve should be referred to PTV, and in what capacity
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whether the shared pathway along the length of Schotters Road from Bridge Inn Road to Hazel Glen Drive should be situated in the road reserve or the rail reserve whether the intersection of Schotters Road and Bridge Inn Road should be signalised, with priority given to bus services whether a Noise Vibration and Light Spill Impact Report should be required as part of the Development Plan how the status of Station Street should be described within DPO34 and the Concept Plan. VicRoads initially expressed concerns in relation to the treatment of some of the intersections shown in the Concept Plan, including the Schotters Road/Bridge Inn Road intersection. However following Council’s response to those concerns2 and clarification of the treatment of the Schotters Road/Bridge Inn Road intersection with the release of a full reference design for the Mernda Rail Extension project, VicRoads “withdrew from the process”3. Other agencies, including the Country Fire Authority, Yarra Valley Water, SP Ausnet, Telstra and the Department of Education and Training, indicated no objection to the Amendment.
(iii) Costa Group The key issues for the Costa Group were: maintaining the RCZ land as a buffer between the Mushroom Exchange and urban development within the Township ensuring that development within the Township does not compromise the Mushroom Exchange’s ability to continue operations and to expand in accordance with the Costa Exchange Mushroom Farm Master Plan 2012. These issues remain outstanding.
(iv) Individual submitters The key issues raised by individual submitters were: whether the size and location of the buffer to the Mushroom Exchange is properly justified on the basis of science the LSIO leading to a loss in development opportunities and a reduction in property values the methodology used to determine the 1 in 100 year flood line and the LSIO boundary whether drainage infrastructure could be located in the Hayes Road road reserve open space requirements with respect to 345 Hazel Glen Drive shown on the Concept Plan are onerous proposed zoning boundaries not following property boundaries the area designated for medium density housing is too small and not financially viable.
2 Outlined in a letter from Council to VicRoads dated 22 April 2016. 3 Letter from VicRoads to Council dated 1 July 2016, copied to Planning Panels Victoria.
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These issues remain outstanding. 2.2 Expert reports Mr Tobin, appearing for the owners of 303 Hazel Glen Drive, tendered two expert reports which he circulated to all parties and to the Panel prior to the Hearing: 303 Hazel Glen Drive Mernda Buffer Assessment (July 2016) prepared by GHD, assessing potential constraints presented by the Mushroom Exchange to the redevelopment of the site for residential purposes 303 Hazel Glen Drive Mernda Engineering Infrastructure Review (26 July 2016) prepared by SMEC Engineering, assessing the infrastructure currently available and/or necessary to service a residential development on the site. Mr Tobin informed the Panel and the parties that he was not intending to call the authors of these reports to present evidence at the Hearing. Prior to the Hearing, the Panel informed Mr Tobin that the reports would therefore not be accorded the weight that would ordinarily apply to fully tested expert evidence.
(i) Submissions Council submitted that the weight to be attributed to the reports should be limited, as the authors were not being called to give evidence. In relation to the GHD report, without being critical of the report, Council noted that the report is based on many assumptions which may not necessarily be true, and that the report itself points out various limitations (including that no assessment of current odour emissions from the Mushroom Exchange site was undertaken). Ms Johns (appearing for the Costa Group) submitted that the GHD report should be given “very little weight”, as it is preliminary, and predicts odour impacts based on technical literature only, rather than on specific operations at the Mushroom Exchange. She also pointed to the fact that the author of the report was not being called to give evidence and be cross‐examined. While conceding that the GHD report could not be given the weight that would normally be given to fully tested expert evidence, Mr Tobin submitted that it should be given more weight than submissions. He said the report constitutes technical advice, prepared by a reputable and independent consultant. He submitted that the GHD report’s conclusions are general and relative in nature (comparing likely odour impacts at 303 Hazel Glen Drive relative to odour impacts at existing and proposed residences located closer to the Mushroom Exchange), and that it is not appropriate to pick the report apart technically. He pointed to the fact that the GHD report is the only technical analysis of odour impacts before the Panel.
(ii) Discussion and conclusion The Panel finds that while these reports can be considered, along with the other material submitted to the Panel, they should not be afforded the weight that would ordinarily be afforded to fully tested expert evidence. There was no opportunity for any other party, or the Panel, to test the content and conclusions of the reports through cross‐examination or
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questions. The Panel further notes that the reports are based on a number of assumptions, and are subject to the various limitations outlined in the reports. Accordingly, the Panel has considered the reports, but it has not relied upon them in reaching its conclusions or making its recommendations to the same degree as fully tested expert evidence would ordinarily be relied upon. 2.3 Issues dealt with in this Report The Panel considered all written submissions, as well as submissions and other material presented to it during the Hearing. In addressing the issues raised in submissions, the Panel has been assisted by the information provided to it, as well as its observations from its unaccompanied site inspection conducted on 26 July 2016. This report deals with the issues under the following headings: Planning context Rural Conservation zoned land Land Subject to Inundation Overlay Traffic and transport issues Other matters.
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3 Planning context
The Panel has reviewed the policy context of the Amendment and made a brief appraisal of the relevant zone and overlay controls and other relevant planning strategies. 3.1 Policy framework
(i) State Planning Policy Framework Council submitted that the Amendment supports, or is supported by, the following clauses in the SPPF: Clause 11 (Settlement), by anticipating and responding to the needs of existing and future communities through the provision of zoned and serviced land for housing, employment, recreation and open space, commercial and community facilities and infrastructure. Clause 11.02‐1 (Supply of urban land), by providing for the orderly development and consolidation of land within the Urban Growth Boundary, while also assisting in accommodating future population growth. Clause 11.02‐2 (Planning for growth areas), by encouraging a diversity of housing types in and around the future Mernda Town Centre, and ensuring a sufficient supply of land. Clause 13.02‐1 (Floodplain management), by applying the LSIO to land within the declared 1 in 100 year flood line. Clause 15.01‐3 (Neighbourhood and subdivision design), by encouraging a permeable and walkable future road network, and a strong sense of place by considering and enhancing the existing Township character including its significant landscapes and built and natural heritage. Clause 15.03‐1 (Heritage conservation), by seeking to ensure the protection and ongoing management of heritage places, identification of new heritage places and ensuring that new development respects significant built heritage and natural landscapes. Clause 16.01‐4 (Housing diversity), by encouraging and providing for a range of housing types to meet increasingly diverse housing needs. In particular, Council submitted that providing more density in this area is appropriate given its proximity to the future Mernda Town Centre and the proposed Mernda Rail Extension. Clause 17.02‐1 (Industrial land development), by ensuring that appropriate buffers are maintained between the Mushroom Exchange and nearby sensitive uses (namely residential development in the Township), and minimising the encroachment of ‘unplanned’ residential uses that could affect the viability of the Mushroom Exchange. Clause 19.03‐2 (Water supply, sewerage and drainage), by considering the long term needs and provision of stormwater, drainage and sewerage requirements to account for population growth in the Township area.
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(ii) Local Planning Policy Framework Council submitted that the Amendment supports the following local planning objectives: Clause 21.04 – Settlement, which includes an objective “To effectively manage urban growth in a manner that maximises beneficial relationships between compatible land uses and which avoids inappropriate incursions into non‐urban or environmentally sensitive areas.” Council submitted that the Amendment will support the beneficial relationship of the Township with the future Mernda Town Centre, and will prevent incursion into the de facto buffer to the Mushroom Exchange. Clause 21.08 – Built Environment and Heritage, which includes an objective “To increase the level of protection for and opportunities for incorporation of the City's European and Aboriginal heritage”. Council submitted that the DPO34 will assist in maintaining sites of heritage value, ensuring that significant buildings are retained and preserved, and will facilitate the development of dwellings that are sensitive to the existing heritage and character of the Township. Clause 21.09 – Housing, which includes an objective “To plan for a diverse series of residential communities that have a unique identity and sense of place, cater to all segments of the housing market and respect and incorporate local environmental and cultural features.” Council submitted that the Amendment will promote increased diversity of housing options within the Urban Growth Boundary.
(iii) Other planning strategies or policies used in formulating the Amendment Council submitted that “a great deal of strategic planning … has been undertaken in the area surrounding the Township”. It referred the Panel to the: Mernda Local Structure Plan Part 1 (December 1998) (the LSP) Mernda Strategy Plan (2008) and the Mernda Development Contributions Plan (2008) Mernda Town Centre Comprehensive Development Plan Mushroom Farm Master Plan 2012. The LSP was adopted by Council in October 1994 and revised in 1998, and commenced the strategic planning for the Mernda‐Doreen growth corridor. It remains an Incorporated Document within the Whittlesea Planning Scheme. The LSP applies to the Township and the Laurimar Estate and surrounds (located to the east of the Township), providing high level guidance for the future development of the area. Section 4.0 of the LSP applies specifically to the Township, and notes: the Township (unlike surrounding areas at the time) is an existing urban environment further development of the Township relies on articulated sewerage being provided (this was subsequently made available with the development of the Laurimar Estate) proposals which have the potential to increase density and housing choice are encouraged
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the Township does not warrant a designated activity centre, as the adjoining land will provide land for essential retail and community services an integral component of the LSP is the development of a linear network of open space along the Plenty River a possible pedestrian link along the rail reservation is for further investigation, subject to agreement from the (then) Public Transport Corporation. The Mernda Strategy Plan was adopted by Council in 2004, and revised in 2008. It guides the development of the Mernda‐Doreen growth corridor, and builds on the LSP and other earlier strategic work. The Mernda Strategy Plan applies to the areas within the growth corridor surrounding the Township. It designates Bridge Inn Road and Plenty Road as primary arterial roads, and Hazel Glen Drive/Masons Lane as a sub‐arterial road. It is accompanied by the Mernda Development Contributions Plan, which is implemented by the Development Contributions Plan Overlay Schedule 5. The Mernda Town Centre Comprehensive Development Plan provides detailed guidance on the development of the Mernda Town Centre, located to the immediate south west of the Township. 3.2 Planning scheme provisions
(i) Zones Refer to Figure 2 for an illustration of the current zones that apply to the land subject to the Amendment.
(ii) Overlays Development Plan Overlay Parts of the Township are currently affected by the DPO16 (including parts of the RCZ land). The Amendment proposes removing the DPO16, and applying the DPO34 to all of the land that is being rezoned to GRZ1. The RCZ land will not be subject to a DPO.
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Current Proposed
Figure 3 Current and proposed application of the DPO Surrounding parts of the Mernda‐Doreen growth corridor are subject to: Development Plan Overlay Schedule 5 – Mernda Development Plan, which guides development in accordance with the Mernda Strategy Plan Development Plan Overlay Schedule 15 – Mernda Town Centre Development Plan, which guides development of the nearby Mernda Town Centre in accordance with the Mernda Strategy Plan and the Mernda Town Centre Comprehensive Development Plan. As noted above, the Amendment proposes applying the DPO15 (instead of the DPO16) to the Mernda Town Centre land, to bring it into line with the rest of the Mernda Town Centre. No changes are proposed to the DPO5.
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Floodway overlays Small areas within the Township are currently affected by the Rural Floodway Overlay. The Amendment proposes to apply the LSIO to areas within the Township around the Mernda Drain. These areas are within the 1 in 100 year flood line, and are not currently subject to the Rural Floodway Overlay.
Mernda Drain
Plenty River
Figure 4 Current and proposed application of floodway overlays The proposed application of the LSIO is based on advice from Melbourne Water Corporation, the floodplain management authority for the area. Council supported Melbourne Water’s proposed application of the LSIO to the properties at 88‐90 Schotters Road and 22 Hayes Road, but did not support a similar request to apply the LSIO to 265, 279, and 303 Hazel Glen Drive. Council did not consider it necessary to apply the LSIO to these properties, as the land is within the RCZ and PPRZ and is not being rezoned. Melbourne Water accepted this position on the basis that should this land be the subject of any future rezoning to allow for development, the LSIO should be applied to those parts of the land that are within the declared 1 in 100 year flood line.
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The Vegetation Protection Overlay The Amendment proposes to apply the VPO1 to land within the Township that is not currently subject to the VPO1, to bring the Township into line with the surrounding Mernda‐ Doreen growth areas. Current Proposed
Figure 5 Current and proposed application of the VPO1
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The Heritage Overlay Isolated sites within the Township are currently affected by the Heritage Overlay. These sites are identified as heritage sites on the Concept Plan in the proposed DPO34.
Figure 6 Current application of the Heritage Overlay (no change proposed) 3.3 Ministerial Directions and Practice Notes Council submitted that the Amendment meets the relevant requirements of the following Ministerial Directions: Ministerial Direction No 9 ‐ Metropolitan Strategy The Explanatory Report states that the Amendment is consistent with Ministerial Direction No 9 (Metropolitan Strategy), as it “does not compromise any of the policies or initiatives contained in the Strategy. In particular it is consistent with Initiative 4.2.1 of this strategy, which seeks to protect our unique neighbourhoods from residential densification.” Ministerial Direction No 11 ‐ Strategic Assessment of Amendments The Explanatory Report states that the Amendment is consistent with Ministerial Direction No 11 (Strategic Assessment of Amendments), as it has a sound strategic basis that provides an appropriate level of justification. The Form and Content of Planning Schemes (s7(5)) The Explanatory Report states that the Amendment is consistent with the Ministerial Direction on the Form and Content of Planning Schemes under section 7(5) of the Act.
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Council submitted that the Amendment meets the relevant requirements of the following Planning Practice Notes: Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes The Practice Note guides the application of flood mitigation controls. It states that the LSIO should be applied to areas subject to mainstream flooding that have a lower flood risk than the Urban Flood Zone or Floodway Overlay. Council submitted that the method adopted by Council for the application of the LSIO has followed the guidance of PPN12, in consultation with the floodplain management authority (Melbourne Water). Planning Practice Note 23 – Applying the Incorporated Plan and Development Plan Overlays The Practice Note guides the preparation and application of long terms plans to guide future development for an area. Council submitted that DPO34 responds to PPN23 by: [Requiring] preparation of background reports, including a contamination assessment report, servicing report, conservation management plan, and (where appropriate) a geotechnical report which responds to the identified site opportunities and constraints. Identifying requirements for a Development Plan, including directions relating to lot size, layout and design, vegetation and landscape, road and pedestrian network, infrastructure and servicing, and heritage conservation, to ensure that the overlay stipulates the desired development outcomes and assist in choosing the appropriate planning tools to achieve desired development outcomes. Inclusion of a Concept Plan, identifying spatially preferred land use types and infrastructure provision, to provide direction and certainty about development outcomes and overall form of development to Council, landowners and third parties about the form and type of development. 3.4 Discussion Of the various strategic documents referred to the Panel by Council, the only one that applies directly to the Township is the LSP. The Panel considers that the Amendment is consistent with the LSP, noting that the LSP provides broad high level development guidance only. The Panel considers that the Amendment compliments the other strategic documents referred to the Panel by Council, including the Mernda Strategy Plan and the Mernda Town Centre Comprehensive Development Plan. The Panel agrees with Council’s submission that the Township Zone (TZ) no longer represents an appropriate zone for the Township. The Panel agrees that the TZ would allow commercial and industrial uses to establish within the Township that could potentially compete with the neighbouring Mernda Town Centre, and would otherwise be out of keeping with the future development of the Township as part of the broader Mernda‐ Doreen growth corridor. The Panel agrees that the GRZ1 represents the “best fit translation” for the Township, and that – coupled with the DPO34 – the GRZ1 is capable of providing for well planned
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residential growth in the Township, including delivering a diversity of housing types, consistent with State and local policy objectives. Subject to the matters discussed in Chapter 5, the Panel is satisfied that the application of the LSIO is consistent with state and local policy, and has been applied in accordance with PPN12. The Panel is also satisfied that the application of the DPO and preparation of the DPO34 is generally consistent with PPN23, and that the application of the VPO1 is consistent with state and local policy objectives regarding the protection of significant vegetation. 3.5 Conclusions The Panel concludes that the Amendment is supported by, and implements, the relevant sections of the State and Local Planning Policy Frameworks, and is consistent with the various strategic planning documents that apply to the Township and its surrounds. The Amendment is well founded and is strategically justified. The Panel concludes that the Amendment should be supported, subject to: the Panel’s recommended drafting changes to DPO34 as shown in Appendix C the Panel’s recommended changes to the Concept Plan in DPO34 the matter raised in Chapter 4 requiring further attention. 3.6 Recommendation The Panel recommends: Whittlesea Planning Scheme Amendment C175 be adopted as exhibited subject to the changes recommended in this report.
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4 Rural Conservation zoned land
4.1 The issues The issues relate to whether the RCZ land (or parts thereof) should be included in the land to be rezoned for residential development. Specifically: Should the RCZ land remain as a de facto buffer for the Mushroom Exchange? Would it amount to a transformation of the Amendment to include the RCZ land? 4.2 Background and context
(i) The history of the Amendment As noted in Chapter 1.3 above, when Council first resolved to seek authorisation to prepare and exhibit the Amendment in late 2012, it was contemplated that the RCZ land would be included. In Mr Tobin’s submissions, he indicated that the property at 303 Hazel Glen Drive was always intended to be included, although the three neighbouring properties along Hazel Glen Drive were not. However prior to exhibiting the Amendment, Council resolved (on 14 July 2015) that the rezoning of the RCZ land should be “held in abeyance until a future point in time should circumstances with respect to the operations of the Mushroom Exchange change to allow consideration of such a proposal”. Council sought (and was granted) authorisation to exhibit the Amendment in a form that only proposed rezoning of the TZ and PUZ2 land, and not the RCZ land.
(ii) Mushroom Exchange operations Ms Johns (appearing for the Costa Group) submitted that the Mushroom Exchange is “the largest grower, packer and marketer of mushrooms in the southern hemisphere and ranks within the top ten growers in the world in terms of size and capability”. It produces up to 245 tonnes of mushrooms per week, and provides employment for more than 650 people. It operates 24 hours a day, 7 days a week. Mushrooms are grown in compost. Compost is the main source of odour from the Mushroom Exchange’s operations. Ms Johns explained that while compost used to be produced on site, compost production has been shifted to a purpose built facility at Nagambie. Compost is now trucked down to the Mushroom Exchange site four days per week, and unloaded from trucks onto an open apron until it is used in mushroom production. In response to questions from the Panel, Ms Johns confirmed that there is no sealed storage unit for compost on the site, and the time the compost remains out in the open can vary depending on a number of factors. The Mushroom Exchange site also contains a secure spawn laboratory, one of only two such facilities in Australia. Forty five per cent of Australia’s mushrooms are grown from the spawn lab. The spawn lab is vulnerable to bacteria and mould contaminants which can affect production. Ms Johns submitted that “Any impacts on spawn production would have Australia wide impacts in terms of supply and employment”.
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In response to questions from the Panel, Ms Johns confirmed that the Mushroom Exchange does not require a license from the EPA under the Environment Protection Act 1970.
(iii) Amendment C133 The Mushroom Exchange site is zoned Special Use Zone Schedule 7 (SUZ7). The SUZ7 and the associated Costa Exchange Mushroom Farm Master Plan 2012 (the Mushroom Farm Master Plan) were introduced into the Whittlesea Planning Scheme by Ministerial Amendment C133 in December 2012. The SUZ7 allows various uses without a permit, provided they are “associated with the growing, harvesting, packing, storage and distribution of mushroom‐related or allied food products” (Clause 1.0 of the SUZ7). The SUZ7 also allows buildings and works without a permit, provided they are generally in accordance with the Mushroom Farm Master Plan, and a variety of plans that must be pre‐ approved by Council4, including an Environmental Management Plan, an Air Emissions Management Plan and a Noise Management Plan. Council submitted that although Amendment C133 was approved under section 20(4) of the Act without the full public notice and panel process, the Mushroom Farm Master Plan had been informally publicly exhibited for three weeks from July to August 2012, and that State government agencies including the (then) Department of Planning and Community Development, the (then) Department of Business and Innovation, and the EPA were consulted in relation to the Master Plan. 4.3 Submissions and evidence Several submissions argued that the RCZ land should be included in the rezoning as originally proposed. These included submissions by or on behalf of the owners of: 303 Hazel Glen Drive 265 Hazel Glen Drive 279 Hazel Glen Drive 27 Heals Road. Mr Tobin appeared for the owners of 303 Hazel Glen Drive at the Hearing, and submitted that their property, and the three neighbouring properties at 265 Hazel Glen Drive, 279 Hazel Glen Drive and 285 Hazel Glen Drive should all be rezoned to GRZ. He tendered letters of support from the neighbouring owners.
(i) Strategic support for rezoning the RCZ land Council submitted that it had “explored the option” of rezoning the RCZ land prior to seeking authorisation for the Amendment, but that a number of matters arose prior to seeking authorisation that required further consideration, including the issue of the RCZ land providing a buffer to the Mushroom Exchange. Council submitted:
4 The required plans are a Design Plan, a Stormwater Management Plan, a Construction Management Plan, a Landscape Plan, a Traffic Management Plan, an Environmental Management Plan, a Noise Management Plan and an Air Emissions Management Plan – Clause 3.0 of the SUZ7.
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At that time, it quickly became clear that Council had no analysis, report, study or assessment of the issue of how the Costa Mushroom Exchange site potentially impacted on surrounding land uses and the need for buffers, although a perusal of Officer Reports makes it clear that there had been an assumption that the RCZ did play a role in the provision of buffers in respect of the Costa Mushroom Exchange site. In that context, it is not so much the existence of strategic documents justifying Council's decision not to include the RCZ land in the area that affected the thinking of the Planning Authority, as much as it was the lack of such documents in the context of a proposal to rezone the land. Accordingly, Council ultimately excised the RCZ land from the Amendment in order to progress the Amendment in so far as it remained relevant to the balance of the land forming the Township. (Council’s emphasis) Council submitted that although the demand for residential development in the Mernda‐ Doreen growth corridor is one of the highest in metropolitan Melbourne, large areas of the corridor have been earmarked for residential development that are yet to be realised. This unrealised land provides 5 to 10 years of residential land in the corridor. On these bases, Council submitted that it would be inappropriate to rezone the RCZ land at this time. Mr Tobin submitted that rezoning the properties along Hazel Glen Drive would “give effect to the longstanding strategic planning objectives for the area”, as well as being the logical and common sense approach. He submitted that rezoning the properties was supported by various strategic documents (the same documents that strategically justify rezoning the rest of the Township), and would represent a good planning outcome, given the proximity of the land to the nearby Mernda Town Centre, services and transport links. He submitted that the Mernda‐Doreen growth corridor is one of the fastest growing areas in Victoria, and that there is significant demand for residential development in Mernda. Including the RCZ land along Hazel Glen Drive would allow for a coordinated and connected approach to planning the development of this land with the development of the rest of the Township. He submitted that excluding the land would be “an opportunity lost” to ensure coordinated planning of the area. Mr Tobin submitted that the SMEC Engineering report he tendered demonstrates that the land is ‘development ready’, with services available or readily able to be provided to allow residential subdivision of the land. He submitted that rezoning the land would also facilitate the achievement of the open space link along Plenty River, an important strategic objective. The link could be shown on the Concept Plan, and Council could recommence and progress negotiations with the affected landowners for a transfer of the land required for the link. Mr Tobin submitted that the July 2015 decision to exclude the RCZ land appears to be arbitrary, not based on technical or scientific evidence, and does not accord with the history of strategic planning for the area. He submitted that the Concept Plan attached to the 14 July 2015 report to Council still shows the properties along Hazel Glen Drive as ‘standard residential’ development, conflicting with the report’s recommendation to exclude the RCZ land.
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He submitted that there was no engagement with the owners of the properties along Hazel Glen Drive about the decision, and that his clients would be “substantially affected” by being excluded. He said excluding 303 Hazel Glen Drive would likely result in “stasis”, as Council has given no indication of when it might consider progressing a rezoning, or under what circumstances. Both Council and Ms Johns argued against rezoning the RCZ land as part of this Amendment, for the reasons set out below.
(ii) Buffer to the Mushroom Exchange Council noted at paragraphs 105 and 106 of its Part A submission that the RCZ land “seems to be currently playing a role that is broader than its purposes”, serving an “ancillary role of ensuring that sensitive uses are not located in an area of proximity to the Costa Mushroom Exchange”. Council’s Part A submission went on to state: The fact that the zone plays this secondary role in the context of the Costa Mushroom site suggests that any process involving a potential decision to rezone the land to a use that enables urban development should be undertaken only after a fulsome analysis of the implications of such a course of action on Costa Mushroom. Council has not undertaken any such work as part of this Amendment. Thus it is unable to offer the Panel any report, analysis or any planning or other technical consideration of the potential impacts of the rezoning of the RCZ land on owners currently affected or upon the Costa Mushroom site. Council's resolution suggests that this should be done as part of a separate process at an appropriate time ... Council urged that an ‘analysis first, decision later’ approach should be adopted to rezoning any part of the RCZ land. It pointed to Clause 17.02‐1 (Industrial land development) of the State Planning Policy Framework, submitting that: Policy clearly suggests that the impact of, or on, the adjoining Mushroom Exchange must be a significant consideration in contemplating the residential rezoning of the RCZ land. Council submits that identifying the rezoning now would be at the very least premature, and possibly detrimental to this local industry. By reference to “unplanned” [in Clause 17.02] we take this to mean a reference to unsubstantiated or not sufficiently thought through. While the Panel has not been presented with information about the precise buffer distances which are appropriate for the Mushroom Exchange, it is submitted that this could be a significant factor in considering a rezoning proposal of the RCZ land. Further, what is obvious is that appropriately applied buffers are essential to protect all parties, whether they are existing uses / owners or proposed future residential developments. In relation to buffer distances, Council pointed to Clause 52.10 in the Planning Scheme, which deals with uses which have adverse amenity potential and specifies minimum threshold distances to sensitive uses. Council submitted that the Mushroom Exchange operations constitute 'rural industry handling, processing or packing agricultural produce', for which Clause 52.10 specifies a threshold distance of 300 metres.
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Ms Johns (for the Mushroom Exchange) submitted that the RCZ land currently provides a buffer between residential development and the Mushroom Exchange’s operations, and that the Costa Group “would strenuously object to land currently within the Rural Conservation Zone (abutting the land the subject of the Amendment) being rezoned to a zone which allows residential or other sensitive uses to occur on that land”. Ms Johns adopted Council’s Part A submission at paragraphs 105 and 106, and submitted that: If there is to be any change in zoning of this land, detailed expert advice would be required to establish the necessary extent of a buffer and any change from the existing extent created by the Rural Conservation Zone. At this stage, this work has not been done. The Council and [the Mushroom Exchange] have not done the detailed work required to justify any change in zoning of the Rural Conservation Land. Ms Johns submitted that there were two reasons why the buffer needs to be maintained: Firstly, operations at the Mushroom Exchange have the potential to have a range of off‐site amenity impacts, despite best practice being adopted. Amenity impacts include odour, noise and dust. Secondly, there is the potential for residential development in the vicinity of the Mushroom Exchange to impact on the operations of the Mushroom Exchange, in particular by increasing the risk of contamination and bacteria in the spawn laboratory. In relation to buffer distances, Ms Johns pointed to Clause 52.10 and EPA Publication 1518 Recommended Separation Distances for Industrial Residual Air Emissions, and submitted that both Clause 52.10 and EPA Publication 1518 direct that separation distances to mushroom farms be assessed on a case by case basis. Mr Tobin (for the owners of 303 Hazel Glen Drive and supported by the other RCZ landowners along Hazel Glen Drive) submitted that it should be assumed that the presence of the Mushroom Exchange had informed strategic planning in the area for decades. He pointed to the discussion of buffers in the Council report dated 13 December 2011 concerning Amendment C133. That report described the buffers as including the northern parcel of the Mushroom Exchange site, the area within the Plenty River 1 in 100 year floodplain, land proposed to be set aside as a public open space link along the Plenty River, and land to the south and east of the site. At no time, Mr Tobin submitted, was the land along Hazel Glen Drive identified as providing a buffer, except for the proposed open space link. Mr Tobin tendered a Buffer Assessment prepared by GHD assessing whether the Mushroom Exchange presented a constraint to residential development of the land at 303 Hazel Glen Drive. The GHD report plots the predicted odour contours from the Mushroom Exchange, based on a literature review, terrain information and meteorological data from the Bundoora met station located 7km away. The predicted odour contours are shown in Figure 7.
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Figure 7 Predicted odour contours from the Mushroom Exchange
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Mr Tobin also tendered a concept plan prepared by SMEC Engineering, showing a broad concept for the subdivision of the land along Hazel Glen Drive, overlaid with GHD’s predicted odour contours (Document 5). Document 5 shows that: of the approximately 95 lots that could be created on subdivision of the land along Hazel Glen Drive, only 18 would be within the 1 odour unit contour the balance of the lots would be unaffected by odour. The GHD report notes that 303 Hazel Glen Drive is located approximately 500 metres to the northwest of the Mushroom Exchange. The closest sensitive receptors are residences at Ballam Way, located approximately 130 metres to the east of the Mushroom Exchange. The report concludes that odour emissions at 303 Hazel Glen Drive would be lower by a factor of 5 than odour emissions at the Ballam Way residences. Mr Tobin submitted that it is illogical to exclude the properties along Hazel Glen Drive from the rezoning on the basis of odour impacts from the Mushroom Exchange. He noted that existing residences to the east of the Mushroom Exchange, existing residences in the Township, and areas in the Township designated for medium density housing, are all located closer to the Mushroom Exchange than 303 Hazel Glen Drive, and would presumably be more affected by any odour emissions. Mr Tobin further submitted that the existing regulatory framework applying to the Mushroom Exchange, including the SUZ7 controls, the Mushroom Farm Master Plan, and the legislative framework in place under the Environment Protection Act 1970 and State Environment Protection Policy (Air Quality Management), adequately deals with off‐site impacts of the Mushroom Exchange. He submitted that strategic planning for the area should not be based on an assumption of non‐compliance with the regulatory framework by the Mushroom Exchange. The Panel questioned Mr Tobin in relation to whether he thought that any use or development could occur on the Mushroom Exchange site that might compromise the residential development of 303 Hazel Glen Drive. He pointed to the fact that the SUZ7 controls and the Mushroom Farm Master Plan tightly control development on the Mushroom Exchange site, with detailed requirements for Environmental Management Plans, Air Emissions Management Plans and the like which are designed to minimise and manage any off‐site impacts. He noted that the Master Plan does not contemplate much development at all on the northern part of the site, close to the Hazel Glen Drive properties. He submitted that any use or development that is not generally in accordance with the Master Plan would trigger a permit, and any off‐site impacts would be assessed through the normal permit application process. At the request of the Panel, Ms Johns provided a copy of the Mushroom Exchange’s complaints register (Document 17) following the Hearing. Document 17 records no complaints regarding odour emissions from the Mushroom Exchange (although some noise complaints are recorded between January and April 2016). The Panel also requested Ms Johns to provide details of the areas on the Mushroom Exchange site that are used to store compost. In response, Ms Johns provided a further copy of the Mushroom Farm Master Plan (Document 16), which identifies Area 4 (located on the
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western side of the Mushroom Exchange site, close to the residential areas off Bassetts Road) as: Alter/extend/replace Loading/Compost/Spent Material Zone HEIGHT – maximum of 9 metres SETBACK – minimum 20 metres from site boundary. No further details were provided (including whether the Mushroom Exchange has any plans to build an enclosed facility to house compost). The Panel provided an opportunity for the other parties to respond to this material. Mr K Wilson responded on behalf of the owners of 303 Hazel Glen Drive on 26 August 2016 (Document 18). He submitted that the further materials “support the position articulated on behalf of the submitters at the hearing”, and that: the fact that there has been no odour complaints from the large number of dwellings substantially closer to the Mushroom Exchange than the Hazel Glen Drive land supports the GHD conclusions insofar as there are limited noise complaints, they only relate to 2016 and mechanisms were in place to manage them (and that any new facilities would need to comply with the strict requirements of SUZ7).
(iii) Transformation of the Amendment Council submitted that rezoning the RCZ land (or any part of it) would be outside the scope of the Amendment, which deliberately did not include rezoning the RCZ land. It suggested that rezoning the RCZ land in this Amendment would be unlawful. Council referred the Panel to the discussion of transformation in the panel report for Amendment C90 to the Bass Coast Planning Scheme: We think that the introduction of new zones where they would pave the way for new development or lead to a new or more intensive use of the land would be a transformation of the Amendment. It would not be appropriate for us to recommend these sorts of changes. It is only possible to consider changes to an amendment or proposal, especially significant changes, if the rules of natural justice are adhered to. The particular rule of natural justice, which must be satisfied, is the requirement that all matters upon which a decision will be based are revealed to all parties and they are given an opportunity to be heard. The transformation of an amendment or proposal will normally require re‐ exhibition. We do not think that is appropriate or practical in the case of this Amendment. Mr Tobin referred the Panel to the discussion of transformation in the panel report for Amendment C129 to the Greater Geelong Planning Scheme, which made similar observations as those of the Bass Coast C90 Panel.
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Ms Johns submitted that the Panel does not have the power to recommend rezoning of any of the RCZ land, as it is not the subject of the Amendment and has not been included in the exhibited Amendment documentation. Ms Johns submitted that if the exhibited Amendment had proposed rezoning the RCZ land, the Costa Group would have taken a “completely different” approach to the process. She submitted that the Costa Group would have sought technical expert advice in relation to the potential off‐site amenity impacts of the Mushroom Exchange on nearby residential areas, and in relation to the increased threat that residential development might pose to the Mushroom Exchange’s operations (particularly the spawn lab). Mr Tobin submitted that a transformation of an amendment only occurs where the amendment is changed “in a fundamental way, so that it becomes a different amendment”. He said this must be assessed in the context of this Amendment, including the fact that rezoning the RCZ land would “accord with what was originally proposed and bring this Amendment back into line with Council’s longer‐term strategic planning for the area.” Mr Tobin submitted that the basis for the general principle against transformation of amendments is the need to ensure procedural fairness in planning scheme amendments and panel hearings. He submitted that all parties who could realistically be affected by rezoning the RCZ land were aware of the potential for the RCZ land to be included, and were present ‘at the table’ and able to put their position in relation to the change. Including the RCZ land in this Amendment would not, in his submission, deny any party procedural fairness. In its closing submissions, Council said: We do not agree to the way that the transformation issue has been dealt with by [Mr Tobin]. The issue is not one of facilitating a good planning outcome. While that is desirable, that reasoning only favours the exercise of discretion where the discretion is reasonably available to be exercised. The concept of facilitating a good planning outcome as a basis for considering the rezoning is an approach which elevates expediency over the legal principle. The legal issue is one of what is possible in the context of the amendment before the panel? What was authorised under section 9 of the Act? What have all other parties presumed to be on the table? And what have those who are potentially affected (e.g. by not submitting) may reasonably assume to be the parameters of this enquiry? If this Amendment had proposed to rezone some parts of the RCZ but not others, the situation may be different. But, the Amendment does not propose to rezone any RCZ land. Its hallmark is to put land which is currently in one residential zone into another residential zone. Rezoning land from the RCZ where residential subdivision is prohibited to a residential zone where it is permitted is a very different proposition. 4.4 Discussion The Panel accepts Mr Tobin’s submissions that there is a strong strategic basis for rezoning the RCZ land for residential development. The future residential development of the whole of the Township (including the RCZ land) has long been recognised in the strategic framework, including the Mernda Local Structure Plan and the Mernda Strategy Plan. The Panel accepts that demand for residential land in this area is high, and that the location of
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the land — in the Township, close to the future Mernda Town Centre and nearby services and transport links — makes the land suitable for residential redevelopment. However, two considerations potentially weigh against the rezoning of the RCZ land as part of the Amendment: what impacts residential development of the RCZ land might have on the Mushroom Exchange whether rezoning the RCZ land as part of the Amendment would amount to a transformation of the Amendment, or would result in any party being denied procedural fairness.
(i) The buffer In response to questioning from the Panel, Council conceded that nowhere in the Planning Scheme, or in any document incorporated in or referenced in the Planning Scheme, is the RCZ land shown as a buffer to the Mushroom Exchange. Neither the Costa Group nor Council has undertaken any scientific or technical assessment of odour emissions from the Mushroom Exchange, or the need for a buffer. The only assessment that was presented to the Panel was that prepared by GHD, on behalf of the owners of 303 Hazel Glen Drive. The GHD report concluded that the majority of the RCZ land (including the properties along Hazel Glen Drive) would be situated within the predicted 1 odour unit contour. In the Panel’s experience, residential development in generally regarded as acceptable within the 1 odour unit contour. The Panel notes that there are existing residences located much closer to the Mushroom Exchange than the land along Hazel Glen Drive. As can be seen from Figure 7 above, existing residences are within GHD’s predicted 2 odour unit contour (and perhaps even the 5 odour unit contour). No evidence was presented to the Panel of odour complaints from existing nearby residents. The Panel also notes that this Amendment proposes medium density residential along Heals Road that is much closer to the Mushroom Exchange than the land along Hazel Glen Drive. It appears that this land is likely to fall within the predicted 1 odour unit contour. The Panel finds Mr Tobin’s submissions compelling. In particular, the Panel agrees that, on face value and on the material before the Panel, there is no reason to believe that residential development along Hazel Glen Drive would be likely to impact on the Mushroom Exchange (or vice versa). The Panel also agrees with Mr Tobin that the regulatory framework applying to the Mushroom Exchange means that any potential off‐site amenity impacts the Mushroom Exchange might have on the Hazel Glen Drive land now or in future should be well managed.
(ii) Transformation and procedural fairness Panels have long recognised that changes can be made to an amendment during the course of the consideration of the amendment. The Panel considering Amendment C6 to the Mildura Planning Scheme observed that: The general principle which guides Panels is the need to facilitate the decision making process so that good outcomes can be achieved without unnecessary
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delay or protraction of process. Therefore, if by modifying a proposal a good outcome will be achieved which overcomes legitimate and reasonable concerns, the Panel believes that it is better to do so as part of the amendment being considered than to reject it and require the process to be recommenced. This Panel adopts the approach taken by the C6 Panel, and agrees that there are many circumstances in which it is appropriate for a panel to consider changes to an amendment to facilitate a good planning outcome, and to ensure that the amendment process runs efficiently and without wasting the time and resources of the many participants in the amendment process. However, a panel cannot recommend changes that are so significant as to amount to a transformation of the amendment. Nor should a panel recommend changes if to do so would result in a denial of procedural fairness for affected persons. The proposal to rezone the RCZ land was ‘on the table’ in the early stages of Council discussing the Amendment with landowners. The Costa Group was well aware of the possibility from the outset. The Costa Group chose not to obtain scientific or technical evidence about the possible impacts of residential development of the RCZ land on the Mushroom Exchange, and nor did Council call for that information before deciding to remove the RCZ land from the Amendment. The Panel considers the approach taken by the Costa Group and Council in this respect is unfortunate. Nevertheless, the Panel accepts Ms Johns’ submission that, had the exhibited version of the Amendment included a rezoning of the RCZ land, the Costa Group would have obtained technical and scientific advice on the potential impacts this might have on the Mushroom Exchange. The Panel finds that to rezone the RCZ land without the Costa Group having the opportunity to obtain and present that advice could deny the Costa Group procedural fairness. 4.5 Conclusions The Panel concludes that the RCZ land should not be rezoned as part of this Amendment. The Panel is mindful there is policy support in the State Planning Policy Framework for protecting industry from encroachment from sensitive uses, and that a cautionary approach should be adopted before allowing encroachment of sensitive uses. The Panel considers that a decision to rezone the RCZ land for residential development should be based on a technical and scientific analysis. More compellingly, the Panel considers that if the RCZ land were to proceed without the Costa Group being given the opportunity to obtain technical and scientific advice, it could amount to a denial of procedural fairness. Having said that, the Panel considers that the treatment of the RCZ land in this Amendment could have been handled better, more efficiently, and more fairly. On the material before it, the Panel is not persuaded that the current operation or future expansion of the Mushroom Exchange presents any constraint to the residential development of the RCZ land. No evidence was put to the Panel to substantiate Council’s and the Costa Group’s concerns regarding off‐site amenity impacts. The Panel considers that the SUZ7 controls contain effective mechanisms to ensure that future expansion in line with the Master Plan would be unlikely to have significant off‐site amenity impacts. Any future
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expansion that is not generally in accordance with the Master Plan would require a permit, and possible off‐site amenity impacts could be tested and addressed through the permit process. Nor was any evidence put to the Panel that persuaded it that residential development on the RCZ land might compromise operations of the Mushroom Exchange, or that jobs at the Mushroom Exchange would be lost. On the basis of the material before it, the Panel would have found it difficult not to recommend rezoning the RCZ land to GRZ, if not for the transformation and procedural fairness issues. In the Panel’s view, the Amendment should have been exhibited in the form first contemplated, with the RCZ land included in the land to be rezoned. This would have been consistent with the history of long term strategic planning for the area (as Mr Tobin pointed out), and would have prompted the Costa Group (and/or Council) to obtain the technical and scientific based evidence to establish whether or not the RCZ land (and how much of it) might be required as a buffer. That evidence could have been tested through this Panel process. Instead, by removing the RCZ land from the Amendment, the RCZ landowners have been left in limbo. Without a rezoning proposal on foot, there is nothing to prompt the Costa Group (or Council) to obtain that scientific information. It does not constitute fair and orderly planning to effectively prevent the RCZ land from achieving its full development potential without some proper technical basis. The Panel concludes that Council should prepare an amendment to rezone all of the RCZ land within the Mernda Township for residential development without delay, to enable the residential development of the RCZ land to be planned in an orderly way along with the rest of the Township. The Costa Group and/or Council would then have the opportunity (and incentive) to obtain the technical and scientific evidence necessary to establish whether or not the RCZ land (and how much of it) is required as a buffer. The scientific evidence could be fully tested through the amendment process (including, if necessary, assessment by an independent panel). If the scientific evidence demonstrates (as this Panel suspects it would) that the RCZ land is not required for a buffer, the rezoning could proceed immediately. This will allow for the orderly planning of RCZ land in conjunction with the rest of the Township. If, on the other hand, it turns out that the RCZ land (or part of it) is required as a buffer, then that should be formally recognised in the Planning Scheme, including the strategic documents guiding the growth of the Township and surrounding areas, and an amendment to that effect should be prepared. The Panel also notes Melbourne Water’s view that if the RCZ land is to be rezoned in future, then the LSIO would need to be extended to cover any land within the declared 1 in 100 year flood line that is not currently covered by the existing RFO, or the LSIO being applied as part of this Amendment.
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4.6 Recommendation for further work While not a formal recommendation, the Panel makes the following further recommendations: Whittlesea City Council should prepare an amendment without delay to: rezone the Rural Conservation zoned land within the Mernda Township for residential development apply the Land Subject to Inundation Overlay to that part of the land that is within the declared 1 in 100 year flood line. The amendment should be supported by scientific or technical evidence on the impacts that residential development on this land might have on the Mernda Mushroom Exchange.
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5 Land Subject to Inundation Overlay
5.1 The issues The issues are: The methodology and validity of data used to determine the LSIO boundary. The impacts on the LSIO boundary of changes to the Mernda Drain, changing contours, cross sections and urban development post the 1974 flood event. The LSIO’s potential to reduce the area of developable land and property values. 5.2 Submissions Melbourne Water is the floodplain management authority for the area. Melbourne Water outlined its floodplain management functions as defined under the Water Act 1989 as being, amongst other functions: to find the likely extent and depth of floodwaters to declare flood levels and flood fringe levels. Melbourne Water submitted that the LSIO must reflect the Q100 flood extents shown on the plan attached to its submission (reproduced in Figure 8 below), that were not already covered by the existing Rural Floodway Overlay (RFO).
Figure 8 Q100 Flood Extents
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Much of the area within the Township that is subject to the 1 in 100 year flood line and is not covered by the RFO is the land along the natural depression located at the centre of the Township, near Hayes Road. In the late 1970s Melbourne Water constructed an open channel along this natural depression, which drains into the Plenty River. This is known as the Mernda Drain. The Amendment proposes to apply the LSIO along the Mernda Drain. As noted in Chapter 3.2 above, Melbourne Water subsequently agreed with Council that it was not necessary to apply the LSIO to 265, 279, and 303 Hazel Glen Drive as part of this Amendment, as the land is within the RCZ and PPRZ and is not being rezoned. Melbourne Water indicated that should this land be the subject of any future rezoning to allow for development, the LSIO should be applied to those parts of the land that are within the declared 1 in 100 year flood line. Given the concerns raised by individual submitters regarding the methodology for determining the LSIO boundaries, the Panel requested Melbourne Water to attend the Hearing and provide clarification on its methodology. Mr Prior and two associates submitted to the Hearing. Melbourne Water submitted the following key points: Planning Practice Note 12 – Applying the Flood Provisions in Planning Schemes (PPN12) provided guidance to Melbourne Water in forming its advice. The current flood provision in this area is the RFO. The RFO is located on the eastern side of the Plenty River but is absent from the western side of the river between Hayes Road and directly south of Heals Road. There are currently no flood provisions applied to the land along the Mernda Drain between Plenty Road and the confluence with the Plenty River. The Mernda Drain is located within the Mernda North Development Services Scheme (DSS) which is a conceptual plan at this stage to ensure new development drainage and flood protection achieves best practice standards. It is not possible to contain the 100 year ARI flows within the Mernda North DSS because the Plenty River ‘backflows’ in a 100 year ARI event: “In simple terms, the highest depth of flooding east of Plenty Road (in a 100 year ARI event) is controlled by the Plenty River rather than the Mernda Drain.” Melbourne Water attached various plans to its submission to the Hearing (Document 3). Appendix D(i) indicated the extent of the 1974 major storm event within this catchment, and was the key document which informed the extent of the proposed LSIO. Appendix D(i) showed, superimposed over the 1974 flood levels, the modelled pre and post development Mernda Drain flood extents, and the flood extent from the Plenty River backflow. Also superimposed was the exhibited LSIO extent. Appendix D(i) is reproduced in Figure 9 below.
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d Extent and Flood Level Contours d Extent and Flood Level Contours
Appendix D(i) – 100-year ARI Floo Figure 9 LSIO boundaries overlaid with 100 year flood extent and flood level contours
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On 4 August 2016, the Panel sought further ‘post‐hearing’ written advice from Melbourne Water to explain the apparent discrepancies between the boundaries of the proposed LSIO and the flood extents from the Plenty River backflow and the Mernda Drain, as shown on Appendix D(i) (Figure 9). Melbourne Water provided its response on 8 August 2016 (Document 15). Melbourne Water’s response (Document 15) advised: The exhibited LSIO flood shape is based on the flood levels calculated in 1990 (Plenty River Backflow), plotted on 1974 surface contour information. The flood extent of the Plenty River backflow shown on Appendix D(i) is based on the flood levels calculated in 1990, plotted on 2008 LiDar surface contour information. Cross sections of various locations along the Mernda Drain were provided with an estimated 2 to 3 metre channel cut, which is a major difference between 2008 and 1974 contour levels. Even though the Mernda Drain was channelled in 1979 and deepened by approximately 2 metres, the flood extent from the Plenty River backflow in a 100 year flood event (when calculated in 1990) remained almost the same. Melbourne Water’s response concluded that “Melbourne Water is satisfied the proposed LSIO flood extent adequately represents the key flood storage and hazard areas of the 1% ARI flood extent”. The Panel provided an opportunity for the other parties to respond to this material by 26 August 2016. No responses were received. Appendix E to Document 3 shows the depth of flooding along the Mernda Drain caused by the Plenty River backflow. The flood depth covering the majority of 88‐90 Schotters Road for example, ranges down from 0.333 metres. At the Hearing, the Panel sought clarification from Melbourne Water on what other powers it currently holds to manage development on flood affected land, noting that the minutes of Council’s 26 April 2016 meeting stated that “regardless of whether … the LSIO is applied to the land or not, as part of the building permit process any development proposals are required to be referred to Melbourne Water who have discretion on any such proposals”. Melbourne Water advised that while it can provide comment to Council on individual development proposals under the Building Regulations, that process does not allow for a full assessment of the flooding implications of the application, and generally only allows for floor level minimums to be set. The LSIO allows for a wider assessment, including in relation to matters such as safe access in and out of flood prone sites. Council’s Part B Submission provided a useful history of flooding and drainage in Mernda Township area. The Township endured major flooding in 1878, 1974 and 1987 with most impact associated with the area around the Mernda Drain. Council referred to PPN12’s comparisons between the four types of flood provisions and submitted that the LSIO is the most appropriate: …in contrast (to the Urban Floodway Zone) the LSIO is used for both urban and rural environments to identify land with lower potential flood risk or as an
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interim measure, areas where accurate flood mapping to identify the floodway is yet to be carried out. The LSIO only requires a permit for buildings and works and does not prohibit either use or development. Council in both its Part B and closing submissions (Documents 1 and 12 respectively) speculated that some of the concerns associated with the LSIO might also be a result of the land use designation (Plenty River environs) within the Concept Plan contained in DPO34, which roughly accords with the LSIO. Council submitted that the ‘Plenty River environs’ designation in the Concept Plan could be interpreted as identifying the land as being unsuitable for urban development. Council submitted: …that to provide clarity a footnote be included on the Concept Plan that the area of the Plenty River environs which states that the area could be refined in consultation with Melbourne Water and Council at the Planning Permit stage. This will hopefully clarify that land within the existing flood prone area could be suitable for development subject to the appropriate measures being put in place. It is noted, however, that ultimately the land will be required for drainage purposes which will render it unsuitable for urban development. The owners of 88‐90 Schotters Road (Mr and Mrs Nagle) and the owner of 22 Hayes Road made submissions to Council in relation to the proposed application of the LSIO. Mr Nagle also submitted in person to the Panel. The owner of 22 Hayes Road subsequently withdrew his objections to the Amendment, but wished to be kept informed of the Panel’s findings. The Nagles expressed concern regarding the credentials and accuracy of the modelling utilised to produce the flood extent information. The Nagles submitted that their land had not flooded in 60 years, except during the 1974 flood (which was a 1 in 100 year flood event). Mr Nagle submitted that following the 1974 flood, the section of the Mernda Drain that runs through his property was dredged to a depth of 3 to 4 metres and a width of 10 metres, and that his property had not flooded since (including during the 1987 flood, which was also a 1 in 100 year flood event). Mr Nagle submitted that he was not made aware of the impacts of the Amendment on his property until he received a letter from Council in the mail in November 2015. He submitted that Council did not engage with him in relation to the proposed LSIO, and he has not been able, since, to ascertain the actual dimensions of the LSIO from Council. Mr Nagle submitted that the application of the LSIO over a substantial portion of his property will affect the development potential of his property and hence he expects a significant decrease in the value of the land. On the matter of potential loss in property values, Council submitted: Possible impacts to the value of a particular property is not relevant when preparing planning scheme amendments or assessing planning permit applications. In any event, we submit that the LSIO does not cause the build‐ up of stormwater on the land, it reflects the build‐up of stormwater.
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5.3 Discussion Submissions on the LSIO raise several matters that require consideration by the Panel: whether the LSIO is the appropriate flood control tool whether the methodology and modelling used to determine the LSIO boundaries is sound the boundaries of the ‘Plenty River environs’ designation in the Concept Plan.
(i) Whether the LSIO is the appropriate tool There are currently no flood provisions applied to the land located along the Mernda Drain between Plenty Road and its confluence with the Plenty River. Melbourne Water in its submission was sensitive to this in the context of the proposed rezoning to GRZ, which may lead to development occurring without appropriate flood planning provisions in place which “may present a risk to life and property from floodwater”. The Panel sought clarification from Melbourne Water on what examples of “risk to life” scenarios could exist in the Mernda Township residential areas proposed to be covered by the LSIO, and whether that risk may require a higher risk flood control (such as the Urban Flood Zone) consistent with PPN12. Melbourne Water clarified that other than in the channel of the existing Mernda Drain, the predicted 100 year flood depth on the affected properties (most notably 22 Hayes Road and 88‐90 Schotters Road) was less than 300 millimetres over the majority of the properties. The Panel considers that this represents a lower order flood risk, and therefore agrees that the application of a LSIO is the most appropriate overlay as described in PPN12. The Panel accepts Melbourne Water’s position that relying on its powers under the Building Regulations is not sufficient to adequately manage flood risk in this area. It considers that the application of a LSIO is appropriate to ensure that any existing or potential development maintains the free passage of floodwaters, minimises flood damage, is compatible with local drainage conditions and will not cause any serious impediments to floodwaters. The Panel notes Mr Nagle’s submission that his property has not flooded since 1974 (including during the 1987 100 year flood event). The Panel believes that, while historical records and anecdotal evidence of previous flood levels are a valid and important input into mapping of flood levels, they should be treated with some caution. Historical and anecdotal records are often used to supplement modelling for river flooding, but the historical or anecdotal accounts of properties never flooding in the past should not be taken as necessarily meaning that properties will not be flooded in the future. This sort of information should not, in the Panel’s view, be the primary driver for decisions regarding whether or not to apply a flood overlay. With regard to concerns over the impact of the LSIO on the developable area of the affected properties, the Panel notes that the LSIO does not prevent any development or works from being undertaken, but rather introduces a permit trigger. Affected property owners will have the opportunity to seek advice from Council and Melbourne Water as to what may constitute reasonable development opportunities for their property, and the LSIO provides
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the opportunity for Council and Melbourne Water to apply appropriate conditions to protect buildings and works from flood impacts. The Panel considers that this is sound planning. The Panel notes Mr Nagle’s concerns (and similar concerns expressed by other submitters) about the impact of the LSIO on property values. Several previous planning panels have considered the issue of property values5, and there is a long held view in both panel reports and in case law that property devaluation is not a valid planning consideration. The Panel does not consider that impacts on property values should determine whether or not to apply a flood overlay. At some future stage a drainage scheme may require drainage works through the properties that are proposed to be subject to the LSIO, either in open channel form or through underground drainage. Presumably at that time drainage easements would be put in place. Generally, compensation is available to landowners who have easements placed on their properties.
(ii) The proposed LSIO boundaries The Panel has paid considerable attention to the proposed LSIO boundaries, as the proposed extent of the LSIO on Mr Nagle’s property in particular is significant. The Panel considered it important to understand the intricacies of this drainage system, including the influence of the Mernda Drain on the overall drainage system, pre and post development urban flows, the impacts of the channel dredging in the Mernda Drain undertaken following the 1974 flood, and the overall impact of the Plenty River backflow. The Panel’s interpretation of Melbourne Water’s submissions and the further information provided in Document 15 is: The Mernda Drain channel was dredged in 1979, lowering it by approximately 2 metres, which is consistent with Mr Nagle’s submission. The Plenty River system is the predominant drainage system in the area, with a catchment area of 280 square kilometres, compared to the Mernda Drain’s seven square kilometres. In a 100 year flood event, the volumes at the confluence of the Plenty River and the Mernda Drain are therefore predominantly from the Plenty River. Flows from the Mernda Drain would be subsumed by the much greater Plenty River flows. The Plenty River flows would therefore result in a back flow up the Mernda Drain, finally settling at a peak level of 161.8 metres AHD, which is effectively equal to the level of the land at the corner of Schotters Road and Hayes Road (158 to 162 metres AHD). In effect therefore, it would not matter that the Mernda Drain was deepened or that cross sections or contours near Hayes Road and Schotters Road have changed. Pre and post development flood information provided for the Mernda Drain indicates only a minimal increase in flood levels, however in the case of a 100 year flood the Plenty River backflow is greater than both.
5 See, for example, the panel reports for Amendment C3 to the Yarra Planning Scheme, Amendment C18 to the Stonnington Planning Scheme and Amendment C50 to the Moreland Planning Scheme.
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The Mernda drainage system including the dredging have presumably been designed to cope adequately with lesser flood events than a 100 year flood event. In response to questions from the Panel at the Hearing, Melbourne Water confirmed that the modelling and methodology it used to determine the 100 year flood extent was accepted standard industry practice in Victoria and other parts of Australia. The Panel was appreciative of Melbourne Water’s attendance at the Hearing and its tabled submission and the further information provided in Document 15. The Panel would have benefitted from having an expert providing a critique of Melbourne Water’s submission, particularly in relation to the apparent discrepancies between the LSIO boundaries and the 1 in 100 year flood extents depicted in Figure 9. That said, in the absence of any expert evidence to the contrary, the Panel accepts Melbourne Water’s submission that the LSIO boundaries accord with the modelled 1 in 100 year flood line.
(iii) The Plenty River environs designation The Panel agrees with Council’s suggestion that some of the concerns associated with the LSIO might also be a result of the designation of the affected land as ‘Plenty River environs’ in the Concept Plan, given the DPO does not allow the grant of a permit unless it is generally in accordance with the Development Plan (which in turn must be consistent with the Concept Plan). Council submitted that the area around the Mernda Drain that is designated as ‘Plenty River environs’ in the Concept Plan is intended to coincide with LSIO area. If this is the case, the Panel could not reconcile the two areas. The Plenty River environs shown on Concept Plan appears to extend further north than the proposed LSIO. The shape of the Plenty River environs also appears to be inconsistent with the proposed LSIO. As noted above, Council submitted that a footnote in the Concept Plan might help to address landowners’ concerns over the LSIO, and “ultimately the land will be required for drainage purposes which will render it unsuitable for urban development.” The Panel considers this statement unhelpful in clarifying the purpose of both the LSIO and the Plenty River environs. The application of the LSIO does not render the land unsuitable for urban development. Rather, the purposes of the LSIO include (among others): To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity. If, as Council submits, the purpose of the Plenty River environs designation is to reflect the application of the LSIO, the Panel considers that: the boundary of the Plenty River environs should be reduced to match that of the LSIO the footnote should state that the area of the Plenty River environs is developable on conditions consistent with, and no more onerous than, those applying under the LSIO.
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5.4 Findings and conclusions No flood provisions are in place for the land located along the Mernda Drain between Plenty Road and its confluence with the Plenty River. The Panel accepts that the land is subject to a declared 1 in 100 year flood line under the Water Act, and that Melbourne Water’s modelling has determined that a 100 year flood event will most likely result in low risk flooding of 22 Hayes Road, and 88‐90 Schotters Road. On that basis, the Panel concludes that flood controls should be applied to the land. The Panel considers that the LSIO is the most appropriate tool in this case, consistent with PPN12. Melbourne Water modelling shows that most of the area subject to flooding is likely to be inundated to a maximum depth of less than 350 millimetres, representing lower risk flooding. From a property owner’s perspective, the LSIO is the least onerous of the tools available under PPN12, and as Council submitted, it identifies land with lower potential flood risk, and requires only a permit for buildings and works. Importantly, it does not prohibit either use or development. Notwithstanding this, the extent of the proposed LSIO is significant (particularly on the Nagles’ property), and the affected landowners have legitimate concerns about the possible impacts of the LSIO on their properties. The Panel has some sympathy with Mr Nagle regarding the difficulties he faced in engaging with Council in relation to the proposed application of the LSIO on his property. Nor is it clear to the Panel whether Mr Nagle was made aware of the designation of large parts of his land as ‘Plenty River environs’ in the Concept Plan. The Panel believes that both Council and Melbourne Water could have engaged more constructively with Mr Nagle and other landowners affected by the proposed LSIO, and kept them informed of the outcomes of the process, the resolution of the issues raised in submissions, and ensured that they had a clear understanding of the impacts of the LSIO and the Concept Plan in DPO34 on their properties. Flood risk can change over time as circumstances change. Circumstances could include drainage works downstream in the Plenty River, allowance for climate change, undergrounding the Mernda drainage channel, or by agreed flood protection works on the subject properties, for example. The Panel considers that Council should review the boundaries of the LSIO as circumstances change and further information comes to light. The Panel concludes that the Amendment insofar as it relates to the LSIO should be adopted as exhibited, but that changes should be made to the designation of the Plenty River environs on the Concept Plan.
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5.5 Recommendations The Panel recommends: Amend the Concept Plan in Clause 4.0 (now Clause 6.0) of Schedule 34 to the Development Plan Overlay as follows: a) Amend the boundaries of the ‘Plenty River environs’ designation insofar as it affects the property at 88‐90 Schotters Road and the properties fronting Hayes Road so that the ‘Plenty River environs’ boundaries accord with those of the Land Subject to Inundation Overlay. Insert the following footnote: The area designated as ‘Plenty River environs’ that is also subject to the Land Subject to Inundation Overlay (LSIO) is developable on conditions consistent with, and no more onerous than, those applying under the LSIO.
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6 Traffic and transport issues
6.1 The issues The issues remaining unresolved are: whether the Concept Plan and DPO34 adequately recognise the relationship between the Township and the Mernda Rail Reserve whether the Concept Plan and DPO34 adequately respond to the potential for train‐stabling facilities to be located within the Mernda Rail Reserve to the north of Bridge Inn Road whether DPO34 should formally require Council to consider PTV’s comments prior to approving the Development Plan whether permit applications for land within 50 metres east of the Mernda Rail Reserve should be referred to PTV, and in what capacity whether the shared pathway along the length of Schotters Road from Bridge Inn Road to Hazel Glen Drive should be situated in the road reserve or the rail reserve whether the intersection of Schotters Road and Bridge Inn Road should be signalised, with priority given to bus services whether a Noise Vibration and Light Spill Impact Report should be required as part of the Development Plan how the status of Station Street should be described within DPO34 and the Concept Plan. 6.2 Submissions The Level Crossing Removal Authority (LXRA) is responsible for delivering the Mernda Rail Extension project on behalf of the Victorian Government, which has committed to completing this project in 2019. It proposes to locate train‐stabling facilities within the rail reserve to the north of Bridge Inn Road and adjacent to some of the land to which the Amendment applies. While the LXRA supports the vision of the proposed Amendment, it submitted that changes should be made to: avoid the potential for land use conflict at the interface between the rail reserve and the land identified for medium density housing clearly identify that the rail reserve is outside the area of the DPO and must be maintained to ensure the viability of the future stabling area reflect that the development of the Mernda Rail Extension will greatly reduce the opportunities for vehicular movements across and within the rail reserve. The LXRA in its submission specifically referred to Clause 18.02‐4 of the State Planning Policy Framework, which states that to achieve the objective of managing a safe road system, planning should provide for grade separation at railway crossings except with the approval of the Minister for Transport. It also requested various drafting changes to DPO34 that were identical to those requested by PTV.
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PTV submitted that it generally supports the intent of the Amendment, but requested several changes to DPO34 (including the Concept Plan): Remove the shared pathway from the rail reserve. Station Road is shown on the Concept Plan as an “existing road requiring upgrade to urban standard”. PTV submitted that there is no existing public road running north from Bridge Inn Road in the rail corridor, and therefore this “erroneous reference” should be removed. A request that the signalisation of Bridge Inn Road and Schotters Road include provision for bus priority. Include a requirement for a Noise, Vibration and Light Spill Impact Report to be included in the approved Development Plan. Both the LXRA and PTV requested the following new clauses be included in DPO34: All planning permit applications for land within 50 m east of the rail reserve must be referred to PTV pursuant to Section 55 of the Planning and Environment Act 1987. Before deciding on a request to approve a development plan or request to amend a development plan, the responsible authority must consider: the views of Public Transport Victoria in relation to whether the development plan prejudices the operation of the Mernda Railway Line. Council submitted that the Mernda Rail Reserve is an important area outside of the Township, and it is appropriate that this important relationship be recognised “… by illustrating the Mernda Rail Reserve on the Concept Plan.” Council submitted that the request from PTV and the LXRA to remove the shared path along Schotters Road to the road reserve is a relevant issue given the proposed stabling yard and rail infrastructure in this section of the rail reserve. It also noted that there was limited land available in the Schotters Road road reserve. Council submitted that: For the purposes of the Amendment, it is considered that a shared path should be indicated on the Concept Plan within the road reserve of Schotters Road, and that the ultimate form and delivery of the shared path will be subject to ongoing negotiations with PTV at an appropriate time in the future when development is triggered at the subsequent development plan and planning permit application stages. Council submitted that words to the effect that “provision of a shared pathway along the length of Schotters Road that provides a pedestrian connection from Bridge Inn Road to Hazel Glen Drive”, should be included at Clause 3.0 of DPO34, as proposed by PTV, and that an extra sentence could be included that stipulates that this provision will be subject to discussions with PTV at the time of the development. Council submitted that Station Road north of Bridge Inn Road is an informal road that is located outside the DPO34 area. It noted that Station Road is located within the Mernda Town Centre, and has been the subject of discussions between Council, PTV, LXRA and VicRoads in connection with the delivery of the Mernda Rail Extension project. It submitted
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that due to this major project, Station Road is important and should be shown on the Concept Plan for clarity. Council submitted the following proposal: The inclusion of a footnote to the effect that ‘the status of Station Road is to be determined via a separate planning process’, should remove any concerns that the Concept Plan is providing a definitive designation for the road and will ensure that the ultimate form and details of the road are determined as part of the development plan and planning permit application processes. Council submitted that a Noise, Vibration and Light Spill Impact Report is an unnecessary burden to existing landowners: Instead it is considered that as the works undertaken to deliver the stabling have occurred more recently, those works should be minimising impacts on existing uses in the Township. Council submitted that it was not necessary to include a provision in DPO34 requiring Council to consider the views of PTV prior to approving or amending a Development Plan. Council submitted that it has a well‐established practice of inviting PTV (and other agencies) to review development plan proposals in the absence of mandatory requirements in the respective DPO Schedules. With regard to PTV being a referral authority for permit applications within 50 metres of the rail reserve, Council submitted that this can be best facilitated by PTV being a recommending referral authority (and not a determining referral authority). Council submitted that it has a longstanding working relationship with PTV that has ‘flourished’ through new development that has occurred within Whittlesea’s growth area. Council submitted that as a referral authority under section 52 of the Act, PTV would have the right to seek review of any determination by the Responsible Authority at the Victorian Civil and Administrative Tribunal (VCAT). Council’s suggested wording for the referral requirement was: All planning permit applications for land within 50 metres east of the rail reserve should be referred to Public Transport Victoria pursuant to Section 52 of the Planning and Environment Act 1987. VicRoads submitted that its primary interest was in the current declared arterial roads of Plenty Road and Bridge Inn Road. It submitted that the Concept Plan included two aspects of concern in relation to the intersection of Bridge Inn Road and Schotters Road: VicRoads has identified this intersection as ultimately performing a left in, left out function, due to the proximity of a potential fully controlled intersection at Station Street located approximately 50 metres to the west. As part of the Mernda Rail Extension project, LXRA is developing an interim intersection treatment for this intersection. At the time of its submission, VicRoads had not yet received that layout, but expected that the intersection will be built together with the Mernda Railway station, commuter and staff car parking, new access points on Bridge Inn Road, and localised urban upgrades. Council tabled a letter from VicRoads dated 1 July 2016 (Document 13), and confirmed that agreement has been reached between PTV, the LXRA and VicRoads that the intersection of Schotters Road and Bridge Inn Road is to be signalised. Council submitted that it agreed not
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to nominate any specific intersection treatments, and that the Concept Plan should nominate intersections likely to require an intersection treatment but state that “the ultimate form and details of intersection treatments are to be determined at subsequent development plan and planning permit application stages”. Document 13 confirmed that VicRoads’ concerns regarding the design of the Bridge Inn Road/Schotters Road intersection have been (or will be) addressed through the Mernda Rail Extension project, and that Council has addressed VicRoads’ other concerns. VicRoads withdrew from the planning process. 6.3 Discussion and conclusions The Panel notes that VicRoads is satisfied that its concerns have been dealt with and has withdrawn from the process. No further discussion is required on these issues. The Panel understands the importance of the State significant Mernda Rail Extension project, the design of which is yet to be resolved. This project will potentially have a significant effect on the Mernda Township and the broader area. The Panel therefore gives significant weight to the issues raised by PTV and the LXRA.
(i) Requirement to consider PTV’s views on the Development Plan PTV and the LXRA requested a decision guideline in DPO34 requiring Council to consider PTV’s views before approving or amending a Development Plan. The requested decision guideline does nothing more than requiring Council to consider the views of PTV. It does not require the Development Plan to be to PTV’s satisfaction. The Panel acknowledges Council’s good working relationship with PTV, and its long standing practice of seeking PTV’s comments on development plans. On one view, the decision guideline requested by LXRA and PTV is unnecessary. Nevertheless, given the importance of the Mernda Rail Extension project and its potential impacts on the development of the Township, the Panel considers that it is appropriate in this case for DPO34 to include a formal reminder for Council to seek and consider PTV’s views before approving or amending a Development Plan. The Panel has included a decision guideline in its recommended version of DPO34 in Appendix C.
(ii) Referral of permit applications to PTV PTV and LXRA requested that PTV be a referral authority for permit applications within 50 metres of the rail reserve. They did not specify whether PTV should be a recommending or a determining referral authority. Council supported PTV being a recommending referral authority, but not a determining referral authority. The Panel has considered whether referral of permit applications is necessary. On one view, if PTV’s views are taken into account in relation to the Development Plan, then referral of permit applications is not necessary, because permit applications must be generally in accordance with the Development Plan. Planning Practice Note 54 — Referral and Notice Provisions June 2015 (PPN54) provides guidance on the circumstances in which section 52 notice and section 55 referral
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requirements should be included in a planning scheme. According to PPN54, a new referral requirement should only be introduced where the referral authority’s specialist or technical advice is necessary for the responsible authority to properly assess and decide the application — for example where a particular type of use or development requires case by case consideration by the referral authority to ensure that public infrastructure is protected. Given the importance of the Mernda Rail Extension project, and the impacts that it could have on the Township, the Panel accepts PTV/LXRA’s submission that referral is appropriate. The Panel notes that Council supports referral, and that the class of applications to be referred — applications relating to land within 50 metres of the rail reserve — is clearly defined, and relatively constrained. Council submitted that PTV should be made a recommending referral authority, by inserting a section 52 notice requirement into DPO34. The Panel supports Council’s position that PTV should be a recommending referral authority, but has some concerns with Council’s suggested approach. Providing PTV with notice of an application under section 52 would not give PTV recommending referral authority status. Further, the DPO contains a general exemption from section 52 notice requirements for any permit application which is generally in accordance with the Development Plan. Such applications are also exempt from the VCAT review rights of section 82. The Panel considers that the appropriate mechanism is section 55 of the Act, not section 52. This requires an amendment to the Schedule to Clause 66.04 of the Scheme, to nominate PTV as a recommending referral authority. This will give PTV the right to seek review of any determination by the responsible authority on permit applications at VCAT. The other primary difference between PTV/LXRA’s position and that of Council in relation to referrals is that PTV/LXRA requested that planning permit applications “must” be referred to PTV, whereas Council proposed the word “should”. The Panel supports the PTV/LXRA position.
(iii) Noise, Vibration and Light Spill Impact Report The Panel does not support the PTV/LXRA request to include a requirement in DPO34 for the Development Plan to include a Noise, Vibration, and Light Spill Impact Report. The Panel agrees with Council that much of the area adjacent to the rail reserve is already established, therefore it is unlikely that any broad scale development or redevelopment will occur, and that the future rail infrastructure works should minimise impacts on the existing uses in the Township. The Panel considers that the referral requirements (for permit applications) and decision guideline (in relation to the Development Plan) are adequate to ensure that PTV’s input is obtained in relation to development in the area adjacent to the rail reserve, and that impacts of the future rail infrastructure and operations can be appropriately managed without requiring a Noise, Vibration, and Light Spill Impact Report.
(iv) The shared pathway and Station Road The Panel supports the removal of the shared pathway from the rail reserve, to ensure the Mernda Rail Extension project, including possible stabling yards, can be accommodated. It agrees with Council that the shared pathway is an important north south pedestrian link
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between Hazel Glen Drive and Bridge Inn Road, and that the pathway should be indicated on the Concept Plan within the road reserve of Schotters Road. The Panel accepts Council’s suggested wording in DPO34. The Panel agrees with Council’s suggestion for resolving the PTV/LXRA concerns on the status of Station Street. While it is outside the DPO34 area, its proximity to the key intersection of Bridge Inn Road and Schotters Road, and its relationship to both the Mernda Rail Reserve and the Township, make it an important aspect that should be shown in the Concept Plan. The Panel accepts Council’s suggestion to include a footnote to the effect that “the status of Station Road is to be determined via a separate planning process”. Council’s rationale — that this “should remove any concerns that the Concept Plan is providing a definitive designation for the road and will ensure that the ultimate form and details of the road are determined as part of the development plan and planning permit application processes” — is sound.
(v) The Schotters Road/Bridge Inn Road intersection VicRoads’ letter of 1 July 2016 (Document 13) confirms that the Bridge Inn Road and Schotters Road intersection is to be signalised, and that VicRoads’ concerns have been (or will be) addressed through the Mernda Rail Extension project. The Panel notes that Council has agreed not to nominate any specific intersection treatments in the Concept Plan, and to instead nominate intersections likely to require an intersection treatment, and state that “the ultimate form and details of intersection treatments are to be determined at subsequent development plan and planning permit application stages”. The Panel agrees with this approach.
(vi) Other matters The Panel notes and agrees with the PTV/LXRA request to clearly identify the Mernda Rail Reserve on the Concept Plan and Council’s agreement to this request. The Panel agrees with Council’s suggestion (in response to PTV and LXRA’s submissions) to remove the east‐west road links through the rail reserve from the Concept Plan, on the basis that Council is now aware how the Mernda Rail Reserve is to be utilised. 6.4 Recommendations The Panel recommends: Amend Schedule 34 to the Development Plan Overlay as follows (as shown in Appendix C): a) Include the following in a new Clause 3.0: 3.0 Referral of applications In accordance with section 55 of the Act, an application must be referred to the relevant referral authority specified in the schedule to Clause 66.04. b) In Clause 3.0 (now Clause 4.0), include the following additional dot point under the heading ‘Road and pedestrian network’:
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Provision of a shared pathway along the length of Schotters Road that provides a pedestrian connection from Bridge Inn Road to Hazel Glen Drive. The final layout of the shared pathway is to be determined following discussions between the Responsible Authority and Public Transport Corporation prior to the approval of the Development Plan. c) Include the following in a new Clause 5.0: 5.0 Decision guideline Before deciding on a request to approve or amend a Development Plan, the responsible authority must consider the views of Public Transport Victoria in relation to whether the Development Plan or amended Development Plan prejudices the operation of the Mernda Railway Line. Amend the Concept Plan in Clause 4.0 (now Clause 6.0) of Schedule 34 to the Development Plan Overlay as follows: a) Illustrate the Mernda rail reserve and clearly show it as being outside the area covered by the Concept Plan and Schedule 34 to the Development Plan Overlay. b) Remove the shared pathway shown in the Mernda rail reserve and include it within the Schotters Road road reserve. Insert the following footnote: The ultimate form and delivery of the shared path will be subject to discussion with Public Transport Victoria at the Development Plan and planning permit application stages. c) Delete the two east–west road links across the Mernda rail reserve. d) Remove the status of Station Road as nominated on the Concept Plan. Insert the following footnote: The status of Station Road is to be determined by a separate planning process. e) Remove any reference to specific intersection treatments and nominate intersections likely to require an intersection treatment. Insert the following footnote: The ultimate form and details of intersection treatments are to be determined at the Development Plan and planning permit application stages. Amend the Schedule to Clause 66.04 of the Whittlesea Planning Scheme to include the following requirements in the table in the Schedule: Clause – Clause 3.0 of Schedule 34 to Clause 43.04 (Development Plan Overlay) Kind of application – An application to use land, subdivide land, or construct a building or carry out works on land within 50 metres east of the Mernda Rail Reserve and within the area of the Mernda Township as shown on the Concept Plan in Clause 6.0 of Schedule 34 to Clause 43.04 Referral authority – Public Transport Victoria. Type of referral authority – Recommending referral authority.
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7 Other matters
7.1 Medium density housing
(i) The issues The issues are: whether land within a 1 kilometre radius of the future Mernda train station should be nominated for medium density housing in the Concept Plan in the proposed DPO34 the area designated for medium density housing is too small and not financially viable.
(ii) Submissions The LXRA and PTV requested that land within a 1kilometre radius of the future Mernda train station should be nominated for medium density housing in the Concept Plan. Council provided a helpful diagram in its submission showing a 1 kilometre radius from the intersection of Bridge Inn Road and Schotters Road (as far north as the station could be located), which is reproduced as Figure 10.
Figure 10 Township land within a 1km radius of possible location of Mernda train station Council submitted that the final location of the Mernda train station is yet to be determined, but that it will be south of Bridge Inn Road. Council submitted that most of the developable land within this radius has been nominated for medium density housing on the Concept
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Plan. Council submitted that the standard density area around Jane Court is located in a cul‐ de‐sac, has limited access and minimal opportunities to increase permeability. Council submitted that “It is highly unlikely that these areas are going to be subject to any redevelopment”.
(iii) Discussion State planning policy supports locating higher density housing in locations with good access to public transport links and the Principle Public Transport Network. The Panel supports the principle of encouraging medium density housing within the catchment of the future Mernda train station. The Panel does not entirely accept Council’s assessment that the standard density residential areas around Jane Court have limited access and are within low permeability areas. Several of the properties designated as standard density in this area front onto Schotters Road, which provides the main north‐south access through the Township. The Panel notes that other properties along Schotters Road, both within and beyond the indicative 1 kilometre radius of the station, are designated as medium density. However, no material was put to the Panel establishing any other basis on which the Panel could conclude that it would be appropriate to designate the area around Jane Court and the relevant part of Schotters Road as medium, rather than standard, density housing. The Panel accepts Council’s submission that much of the area has already been developed, and that the standard density residential designation reflects current conditions. No material was put to the Panel in support of the proposition that the area designated for medium density housing is too small and not financially viable.
(iv) Conclusion No additional medium density housing should be designated on the Concept Plan, beyond those areas shown on the exhibited version. 7.2 345 Hazel Glen Drive The exhibited version of the Concept Plan in DPO34 shows two open space reserves on the land at 345 Hazel Glen Drive. Council submitted that a third ‘pocket park’ should also be included, in the approximate location shown in Figure 11 below.
(i) The issue The issue is whether open space requirements with respect to 345 Hazel Glen Drive are appropriate.
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Approximate location of proposed pocket park
Figure 11 Extract from Concept Plan, 345 Hazel Glen Drive In 2014, Planning Permit 713337 was issued at the direction of VCAT, allowing the subdivision of the land. The Permit has been acted on, and the Panel observed at its site inspection that subdivision works are currently underway on the site. The subdivision layout approved under the Permit is shown in Figure 12.
Figure 12 Approved subdivision layout, 345 Hazel Glen Drive
(ii) Submissions The landowners submitted that the open space requirements are onerous, out of step with earlier development plans and structure plans for the area, and not required in order to
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protect the River Red Gums on the property. They submitted that the Permit can always be amended. Council submitted that the open space requirements were considered under Clause 22.10 – River Red Gum Policy, under which it is policy to (among other things) recognise the intrinsic value of River Red Gums in establishing character and identity in the municipality, and encourage River Red Gums proposed for retention to be sited in public open space reserves and/or road reserves. Council submitted that the open space reserves shown on the Concept Plan (including Council’s proposed addition of the ‘pocket park’) are consistent with the VCAT Order, and that although the Permit could be varied, the Concept Plan (amended as proposed) broadly reflects the Permit and Council's preferred development outcomes for this site and the surrounds.
(iii) Discussion The Panel observed on its site inspection that there are a number of established River Red Gums on the property at 345 Hazel Glen Drive. The Panel considers that they make a significant contribution to the area, and agrees with Council’s submission that their retention, in open space reserves, is consistent with local policy. The Panel was not presented with any evidence of previous development plans with which the Concept Plan could be said to be inconsistent.
(iv) Conclusion The two existing open space reserves shown on the Concept Plan should be retained, and an additional ‘pocket park’ reserve should be added in the location of Reserve No. 1 as shown on the plan of subdivision. 7.3 31‐35 Johnsons Road The land at 31‐35 Johnsons Road is shown outlined in orange in Figure 13. The western portion of the site is zoned TZ (and is proposed to be rezoned GRZ), and the eastern portion is proposed to remain RCZ. The exhibited version of the Concept Plan shows the residential portion of the site as ‘standard density residential’, with a shared path following a portion of the site designated as ‘Plenty River environs’. Refer to Figure 14.
Figure 13 Current zoning, 31‐35 Johnsons Road Figure 14 Extract from Concept Plan, 31‐35 Johnsons Road
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(i) The issues The issues are: whether the Concept Plan should designate the land as ‘retirement village’ or (alternatively) ‘medium density housing’ instead of ‘standard density residential’ whether the site should be in two zones.
(ii) Submissions The landowners did not make a submission before the Panel, but in their submission to the Amendment, they requested that the Concept Plan be amended to nominate their land as 'retirement village' or alternatively 'medium density residential'. They also raised concerns about the property being in two zones. Council submitted that the landowners have been actively pursuing a retirement village for this site for many years, and have been advised that they could apply for a permit for the residentially zoned portion of the land under either the existing TZ or the proposed GRZ. Council submitted that it has no in‐principle objection to designating the site as a retirement village, but pointed out that there might be some disadvantages to this approach, as alternative uses might be limited under the DPO on the basis that they would not be generally in accordance with the Development Plan/Concept Plan.
(iii) Discussion The Panel agrees with Council that specifically designating the residentially zoned portion of the site as ‘retirement village’ on the Concept Plan may limit flexibility going forward if the landowners were to apply for a permit for an alternative use of the land. However, if the land is shown as ‘standard density residential’ on the Concept Plan, this could also limit flexibility going forward, as it could be argued that a retirement village was not generally in accordance with the Concept Plan/Development Plan. The Panel therefore considers that the residential portion of the site should be designated as ‘standard density residential/retirement village’ on the Concept Plan. The Panel notes that ‘split zonings’ are to be avoided where possible, but that this site has been ‘split zoned’ for some time. The problem has not arisen as a result of this Amendment. The Panel concludes that no changes should be made in response to the ‘split zoning’ issue. For completeness, the owners of 27 Heals Road (which is also currently zoned part TZ and part RCZ) raised similar concerns in their submission about ‘split zoning’. The Panel reaches the same conclusions about the ‘split zoning’ of 27 Heals Road as its conclusions in relation to 31‐35 Johnsons Road. No evidence was presented to the Panel on the merits of medium density housing on the Johnsons Road site. Land immediately to the west of the northern portion of the site is designated for medium density housing in the Concept Plan. However the contiguous portion of the site is designated as ‘Plenty River environs’, and as the location of a future shared path. The Panel does not consider that medium density housing on this part of the site would necessarily be appropriate.
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(iv) Conclusions The residential portion of the land at 31‐35 Johnsons Road should be designated as ‘standard density/retirement village’ on the Concept Plan, to provide the landowners with maximum flexibility going forward. The Panel was not presented with any basis on which to recommend the designation of the site (or any part of it) for medium density housing. Nor does the Panel consider that any changes should be made to the Amendment in response to the ‘split zoning’ issue. The Panel notes that the ‘split zoning’ issue may be resolved by the amendment recommended by the Panel to rezone the RCZ land. 7.4 Drainage infrastructure
(i) The issues The issues are: whether drainage infrastructure could be located in the Hayes Road road reserve lack of maintenance on the existing Mernda Drain.
(ii) Submissions In its report of 26 April 2016, Council indicated that the submission from the owners of 88‐ 90 Schotters Road (Mr and Mrs Nagle) proposed an alternative drainage option by locating drainage infrastructure within the road reserve of Hayes Road. The Panel could not identify this point specifically in the Nagles’ submission. The Nagles’ submission did, however, refer to a proposal to pipe storm water straight down into the Plenty River. Mr Nagle also made verbal submissions to the Panel that the existing Mernda Drain channel was not adequately maintained. He submitted that if the Mernda Drain and other nearby drainage infrastructure were properly maintained, it would assist in mitigating the perceived flood risk on his and neighbouring properties.
(iii) Discussion The Panel agrees with the Council officer’s suggestion in the 26 April 2016 report that drainage infrastructure could potentially be accommodated within the Hayes Road road reserve during any future upgrade. However this will not alleviate the Plenty River backflow flooding in a 100 year flood event. As discussed in Chapter 5, Melbourne Water has established to the Panel’s satisfaction that the major impact of flooding in and around the Mernda Drain is in fact the backflow from the Plenty River, not the Mernda Drain itself. Maintenance of the Mernda Drain will not prevent the Plenty River backflow being the predominant source of floodwaters in a 100 year event. Melbourne Water submitted that increasing the depth of the Mernda Drain by approximately 2 metres following the 1974 flood had done little to alter the modelled extent of flooding in a 100 year event. On that basis, the Panel considers that the predicted flood levels on Mr Nagle’s property and surrounding properties would be unlikely to be significantly impacted even if the Mernda Drain were regularly maintained.
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Nevertheless, the Panel supports Mr Nagle’s request to have the Mernda Drain drainage infrastructure maintained on a regular basis. Even though the Mernda Drain is not the predominant flood source in a 100 year flood event, it plays an important role in managing floodwaters in lower order flood events. This is a basic responsibility of the drainage authority.
(iv) Conclusions No change to the Amendment is proposed in respect of drainage infrastructure. 7.5 Minor drafting matters In its Part A submission, Council proposed minor changes to the exhibited version of DPO34 as follows: Changes to Clause 1.0 and Clause 3.0 to better address the collection of contributions to fund local infrastructure in the Township Changes to Clause 3.0 to encourage development plans to cover multiple development parcels and minimise the proliferation of development plans (which can be approved in stages). No submitter objected to these changes, and the Panel supports them. They are included in the Panel’s preferred version of DPO34 in Appendix C. 7.6 Recommendations The Panel recommends: Amend the Concept Plan in Clause 4.0 (now Clause 6.0) of Schedule 34 to the Development Plan Overlay as follows: a) Show an additional ‘proposed local open space’ area in the location of Reserve No. 1 as shown on the certified plan of subdivision prepared pursuant to Planning Permit 713337 for the subdivision of the land at 345 Hazel Glen Drive, Mernda. b) Designate the residential portion of the land at 31‐35 Johnsons Road, Mernda as ‘standard density residential/retirement village’.
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Appendix A Submitters to the Amendment
No. Submitter 1 VA and V Agosta 2 Owners of 31‐35 Johnsons Road, Mernda) 3 Owners of 27 Heals Road, Mernda) 4 Chris Paros 5 Deborah and David Nagle 6 John Linton 7 Douglas and Beverley Seddon 8 The Costa Group 9 Owners of 345 Hazel Glen Drive, Mernda) 10 Peter Edwards (subsequently withdrew) 11 Melbourne Water Corporation 12 VicRoads (subsequently withdrew) 13 Public Transport Victoria 14 Level Crossing Removal Authority 15 APA Group 16 Country Fire Authority 17 Yarra Valley Water 18 Ausnet Services 19 Department of Education and Training 20 Telstra 21 Department of Environment, Land, Water and Planning (informal verbal submission) 22 Native Title Services Victoria (informal verbal submission)
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Appendix B Document list
No. Date Description Presented by 1 3/8/2016 Part B Submission – City of Whittlesea Mr T Montebello 2 3/8/2016 Distance from Operations Plan Mr T Montebello 3 3/8/2016 Submission – Melbourne Water Mr M Prior 4 3/8/2016 Submission – VA and V Agosta Mr G Tobin 5 3/8/2016 SMEC‐Odour Impact Assessment Overlay Mr G Tobin 6 3/8/2016 Mr J Linton – letter of support for Agosta submission Mr G Tobin 7 3/8/2016 Ms B Seddon – letter of support for Agosta Mr G Tobin submission 8 3/8/2016 Number not assigned ‐ document removed from Documents List 9 3/8/2016 Core Projects – Mernda Doreen Mr G Tobin 10 3/8/2016 Submission – Mushroom Exchange Pty Ltd. Ms A Johns 11 3/8/2016 Submission – 90 Schotters Road, Mernda Mr D Nagle 12 3/8/2016 Closing Submission – City of Whittlesea Mr T Montebello 13 3/8/2016 VicRoads Letter 1/7/2016 to City of Whittlesea Mr T Montebello 14 9/8/2016 Mr J Kovac – letter of support for Agosta submission Mr K Wilson 15 9/8/2016 Final clarification for Panel (Melbourne Water) Mr M Prior 16 10/8/2016 Costa Exchange Mushroom Farm Master Plan 2012 Ms A Johns 17 10/8/2016 Complaints register, Costa Mushroom Exchange Ms A Johns 18 26/8/2016 Letter addressing the material contained in Mr K Wilson Documents 16 and 17
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Appendix C Panel Preferred Version of Development Plan Overlay Schedule 34
SCHEDULE 34 TO THE DEVELOPMENT PLAN OVERLAY --/--/20— Proposed C175 Shown on the planning scheme map as DPO34
MERNDA TOWNSHIP DEVELOPMENT PLAN
This schedule applies to the land within the Mernda Township. A development plan is required to provide for the coordinated subdivision and development of the land in a manner that is consistent with the Township and context of the Mernda-Doreen Growth Corridor. Objectives: To ensure a well-connected subdivision pattern that is considerate of the existing Township character and integrates current and future land uses. To promote a more connected street-based layout that will establish a relationship with the Mernda Town Centre and broader Mernda-Doreen Growth Corridor.
1.0 Requirement before a permit is granted
--/--/20— Proposed The Responsible Authority may grant a permit for subdivision, use or development prior to the C175 approval of a Development Plan only where it is satisfied that the proposed subdivision, use or development will not prejudice the orderly use and development of land, as outlined by the Concept Plan and development plan requirements included in this schedule. Prior to the grant of any planning permit, the owner of the land must enter into an agreement under section 173 of the Planning and Environment Act 1987 which provides for the construction of infrastructure required by a Development Plan or a contribution to the cost of providing the infrastructure as appropriate. Where the agreement proposes a contribution to the cost of providing the infrastructure the rate of the cash contribution must be in accordance with the rates set out in the Mernda Local Structure Plan Part 1. Where there is no Development Plan approved, the agreement must provide for a contribution to the cost of infrastructure and the rate of the cash contribution must be in accordance with the rates set out in the Mernda Local Structure Plan Part 1.
2.0 Conditions and requirements for permits
--/--/20— Proposed Any proposal to subdivide land must provide: C175 A conduit network concept plan to facilitate the future installation of advanced telecommunications services through optical fibre cabling (as appropriate). A contamination assessment report. A servicing report including the location of any detention tanks, drainage retarding basins or other utility infrastructure required to service the neighbourhood. A Conservation Management Plan for places with nominated heritage significance. The Conservation Management Plan is to be prepared under the guidance of an experienced heritage practitioner to ensure the ongoing protection and where necessary restoration of these buildings. Provision of a bicycle and pedestrian network plan (which includes links to adjoining land and networks). Provision of key pedestrian links across Schotters Road, towards the Plenty River, and other active open space and recreational reserves as identified in the Concept Plan.
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Provision of enhanced pedestrian links and entry points across Cockerell and Gillian Roads to maintain connection with land subject to the Heals Road Development Plan (where applicable). A ‘Net Gain’ assessment of any native vegetation to determine items and areas for significance, having regard to Victoria’s Native Vegetation Management – A Framework for Action including the location of any necessary offsets. Provision of road cross-sections for Johnsons Road that considers the layout and orientation of a landscape buffer and explores options for the incorporation of Water Sensitive Urban Design (where applicable). A geotechnical report for nominated medium density housing located adjacent to the waterway of the 1:100 year floodline.
3.0 Referral of applications
--/--/20— Proposed C175 In accordance with section 55 of the Act, an application must be referred to the relevant referral authority specified in the schedule to Clause 66.04.
3.04.0 Requirements for development plan
--/--/20— Proposed C175 A Development Plan must be prepared for the land affected by this overlay and accord with the Concept Plan in Clause 4.0. A development plan should extend to contiguous development parcels to minimise the proliferation of development plans within the Mernda Township. The Development Plan must include:
Lot size, layout, and design . A design and siting plan to promote an active interface with the Plenty River and reduce the impact of the proposed development on existing built form. . A statement of housing outcomes and lot yield densities that outlines opportunities for a diverse range of allotment densities and dwelling types. . Requirements (as appropriate) for medium density housing. Land nominated for medium density or terrace style rear loaded development in the Concept Plan must: . be of a high architectural quality; . take into account existing heritage places; . have regard to overall neighbourhood scale; and . provide outlook to areas of open space where appropriate. . A detailed site analysis that includes building envelopes, building heights, massing, setbacks, and indicative scale. . A responsive subdivisional design that takes into consideration the topography of the site and any existing vegetation.
Vegetation and Landscape . A statement indicating how any proposed development plan is consistent with Council’s River Red Gum Protection Policy. . Requirements (as appropriate) relating to the retention of important landscape views and vistas. The assessment must provide design and siting measures to enhance or promote the landscape character objectives for the area and reduce the impact of future development on significant views.
Road and pedestrian network . Provision of an intersection treatment at Hayes and Schotters Road.
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. Provision of a shared pathway along the length of Hayes Road that provides pedestrian connection to the Plenty River. . Provision of street tree planting on internal roads with suitable native trees species to complement existing indigenous species. . A functional road layout plan that adheres to the road layout depicted in the Concept Plan. The plan should show typical road cross-sections and integration with the existing and proposed road network. The road network should display a high degree of permeability and internal and external connectivity. . Provision of a shared pathway along the length of Schotters Road that provides a pedestrian connection from Bridge Inn Road to Hazel Glen Drive. The final layout of the shared pathway is to be determined following discussions between the responsible authority and Public Transport Corporation prior to the approval of the Development Plan.
Infrastructure and Servicing . An Integrated Water Management Strategy that demonstrates the application of the principles of water sensitive urban design (WSUD) and provides for the: . protection of natural systems, integration of stormwater treatment into the landscape, and . protection of water quality (particularly in relation to the Plenty River and its tributaries), and reduction of run-off and peak flows. . Provision of aA Precinct Infrastructure Plan which demonstratesexplains what infrastructure is required to service newly built out areas, and nominates which development is responsible for delivering any particular item of infrastructure. what, and ensures that the delivery of this infrastructure is secured through a legally binding agreement. Contributions by developers may be in the form of a cash contribution or works in lieu of payments. Where cash contributions are proposed, they should be in accordance with the rates set out in the Mernda Local Structure Plan Part 1.
Heritage Conservation . A detailed heritage assessment which includes recommendations for the protection, restoration and interpretation of significant individual sites and, where appropriate, design measures to sensitively integrate sites into the existing Township layout.
5.0 Decision guideline
--/--/20— Proposed C175 Before deciding on a request to approve or amend a Development Plan, the responsible authority must consider the views of Public Transport Victoria in relation to whether the Development Plan or amended Development Plan prejudices the operation of the Mernda Railway Line.
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4.06.0 Concept Plan
[Set out below is the exhibited version of the Concept Plan. Update in accordance with the Panel’s Recommendation 2]
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