Port Phillip Coastal and Marine Planning Program Extension of Planning Scheme Boundaries in Port Phillip Bay – Business Case September 2001 Business Case

Extension of Planning Scheme Boundaries in Port Phillip Bay

Association of Bayside Municipalities

29 August 2001

PRB Consulting Pty Ltd ACN 085 516 749 PRB Suite 5 CONSULTING Level 5, 71 Collins Street Melbourne Vic 3000 Australia PO Box 18088 Collins Street East Vic 8003 Telephone +61 3 9663 4043 Facsimile +61 3 9663 4047 E-mail [email protected] Contents

1Background ...... 1

2Present extent of planning control over the Bay...... 2

3Legislative basis ...... 3

3.1 Planning and Environment Act 1987 ...... 3

3.1.1 Planning schemes...... 4

3.1.2 Content of Planning schemes ...... 5

3.2 Coastal Management Act 1995 ...... 6

3.2.1 Use and Development of Coastal Crown land ...... 6

3.3 Analysis of the Planning and Environment Act and the Coastal Management Act. ... 6

4Activities Councils want to control and why...... 6

4.1 Use and development ...... 6

4.2 Resourcing...... 6

5Issues...... 6

5.1 Why have controls over the Bay?...... 6

5.2 Lack of uniform policy context for the Bay...... 6

5.3 Exemptions from planning schemes or provisions ...... 6

5.3.1 Exemptions from Planning Schemes...... 6

5.3.2 Exemptions for Public land authorities in zones (and overlays) ...... 6

5.3.3 Options for overcoming the exemptions ...... 6

5.4 The distance and the way that it is measured...... 6

6Options for controls over Port Phillip Bay...... 6

7Recommendations...... 6

II 1 Background

The Coastal and Marine Planning Program (CMPP) is a Commonwealth Government funding initiative developed through Environment Australia's Coast and Clean Seas Program. It is funded under the Natural Heritage Trust.

The CMPP identified the need to develop coastal and marine plans that incorporated and balanced the competing demands of social, economic and environmental factors. The aim of the program is to achieve tangible improvement and performance in planning and managing coastal resources throughout Australia.

The Association of Bayside Municipalities (ABM) comprises the ten Councils around Port Phillip Bay; the Borough of Queenscliffe, the City of Greater Geelong, Wyndham City Council, Hobsons Bay City Council, the City of Melbourne, Port Phillip City Council, Bayside City Council, Kingston City Council, Frankston City Council and Mornington Peninsula Shire Council.

In 1999, the ABM secured funding under the CMPP to undertake this integrated coastal planning project for Port Phillip Bay. Essentially, this project is about improving co-ordination at both Local and State Government level in the daily, joint and strategic management of the shared environment in Port Phillip Bay.

The overall aim of the this CMPP Project is to develop a planning framework for all Municipal Councils around Port Phillip Bay, highlighting the importance of locally driven strategic planning to interpret the Victorian Coastal Strategy (VCS) consistently in a Bay wide context. The initial stage of the CMPP Project focused on evaluating the use of strategic planning frameworks in the Council's Planning Schemes in integrating and achieving the objectives of the VCS, and identifying the tools and mechanisms that can be used to best achieve the Strategy's objectives.

This evaluation found wide variation in the management of coastal issues and indeed with the use and application of the statutory tools, to the extent that there was little conformity in the seaward extension of the planning scheme boundary. Under the previously devolved Port Phillip Authority planning provisions, Council planning jurisdiction extended to 600 metres below high water mark. Today some Councils retain this limit while others stop at the high water mark, some at the low water mark and others at the municipal boundary.

The ABM sees merit in consistently extending planning scheme boundaries to include the near shore environment so as to control activities (use and/or development) that impact on the adjoining coastline controlled (and managed) by ABM Councils. Such activities may include:

! Off-shore development

! Piers and jetties

! Pontoons

! Moorings

! Dredging

! Use of watercraft

1 ! Extensions of land based activities into water

The aims of this project are to:

! Develop an understanding of what activities (uses and development) Councils want controlled in the off-shore area and why

! Determine the most appropriate (efficient and effective) control option

! Determine the appropriate extent of any off-shore control

2 Present extent of planning control over the Bay

Each of the ten municipalities around Port Phillip Bay is covered by a planning scheme. In addition, the Port of Melbourne Planning Scheme covers parts of the municipalities of Port Phillip, Melbourne and Hobsons Bay.

The majority of the ten municipalities have planning schemes extending over part of Port Phillip Bay:

! The Mornington Peninsula, Kingston, Frankston and Bayside Planning Schemes extend 600 metres into Port Phillip Bay from the municipal boundary for the entire municipality.

! Greater Geelong and Queenscliffe Planning Schemes include the area between the municipal boundary and low water mark and an area 600 metres seaward of the low water mark.

! The Port Phillip and Wyndham Planning Schemes apply over a specified area of the Bay for part of the municipal boundary.

The Port of Melbourne Planning Scheme is an ‘old format’ planning scheme and extends 600 metres into the Bay, as defined on the planning scheme maps, for those parts of the municipalities of Melbourne, Port Phillip and Hobsons Bay within the Port of Melbourne.

The Hobsons Bay and Melbourne Planning Schemes do not apply at all over the Bay beyond the municipal boundary.

The details of the application of each planning scheme to the waters of the Bay are summarised in Appendix 1.

2 3 Legislative basis

The relevant legislation concerning planning of Port Phillip Bay is the Planning and Environment Act 1987 and the Coastal Management Act 1995. 3.1 Planning and Environment Act 1987

The purpose of this Act is “to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians”. The Act applies to all of Victoria and includes all of Port Phillip Bay and the area three (3) nautical miles seaward of the outer coast.

Land is defined in the Act as follows:

"land" includes--

(a) buildings and other structures permanently fixed to land; and

(b) land covered with water; and

(c) any estate, interest, easement, servitude, privilege or right in or over land.

The Act also sets out the objectives of planning in Victoria as:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.

3 The Act establishes a planning framework, including the Victoria Planning Provisions and planning schemes, the objectives of which are as follows:

(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land; (c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;

(l) to provide for compensation when land is set aside for public purposes and in other circumstances.

The scope of the Act, and the planning schemes created under it, need to be interpreted according to its purpose and objectives. The definition of land includes buildings and other structures permanently fixed to land; land covered with water; and any estate, interest, easement, servitude, privilege or right in or over land. It is not the purpose of this Act to apply to the use of the Bay for purposes other than those pertaining to land, for example, the use of watercraft.

3.1.1 Planning schemes

Planning schemes, prepared under the Planning and Environment Act , can set out policies, specific objectives and strategy plans, and can regulate or prohibit the use and development of land. Planning schemes apply to both public and private land, subject to a limitation in Section 46 of the Act that a provision in a planning scheme cannot apply to be inconsistent with a permanent reservation under the Crown Lands Reserves Act.

Planning schemes are binding on the Crown, public authorities and municipalities, unless exempted by an Order in Council or by the provisions of the planning scheme. Planning

4 schemes can be enforced through the Victorian Civil and Administrative Tribunal and the Courts.

3.1.2 Content of Planning schemes

Policy

The Planning and Environment Act establishes a policy hierarchy within planning schemes comprising the State Planning Policy Framework (SPPF) and a Local Planning Policy Framework (LPPF). The Local Planning Policy Framework comprises the Municipal Strategic Statement (MSS) and local policies.

Integrated coastal planning and management through planning schemes requires clear policy statements in the SPPF to guide the development of individual Municipal Strategic Statements and local policies. The MSS and local policies provide the policy basis for applying zones and overlays, and for the exercise of discretion in deciding planning permit applications.

There is currently no single policy covering the Bay. Various policies in the State and Local Planning Policy Frameworks, in planning schemes, relate to the Bay.

Consultation for this project has highlighted the need for a clear policy statement to guide the exercise of discretion under planning schemes for Port Phillip Bay. Such a statement should be included in the SPPF to provide clear policy guidance for councils reviewing their Municipal Strategic Statements as they apply to or impact on the Bay. The development of the policies for the Bay in the Municipal Strategic Statements, consistent with the SPPF, should involve the council, government departments and relevant public land managers agreeing to the policy framework to guide the application of zones and overlays. This policy framework also will provide the basis for decisions on individual permit applications under the zones and overlays.

Zones

The two zones in planning schemes commonly applying to the Bay are:

! Public Conservation and Resource Zone – The zone’s purpose is to protect and conserve the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values; to provide facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes; and to provide for appropriate resource based uses.

! Public Park and Recreation Zone – The zone’s purpose is to recognise areas for public recreation and open space; to protect and conserve areas of significance where appropriate; and to provide for commercial uses where appropriate.

The Comprehensive Development zone and the Special Use zone are also used for specific projects.

General exemptions

All planning schemes include a general exemption from the need to obtain planning permits for specified buildings and works, unless the planning scheme specifically requires a planning permit for the buildings and works. The exemptions of relevance to this project are for repairs and routine maintenance of existing buildings and works, and emergency works undertaken by or on behalf of, a municipality, public authority or utility service provider under

5 any Act. This means that, if there is no specific requirement to obtain a permit for repairs, maintenance or emergency works, no planning permit is required under any planning scheme for repairs or maintenance to, say a pier, or for emergency work to restore, say a drain on the foreshore damaged by a storm.

Exemptions in zones

The Public Conservation and Resource and Public Park and Recreation zones provide exemptions from permits for specified uses, and for development, if carried out by or on behalf of a public land manager.

The exemptions apply to public land managers under the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975 and the Forests Act 1958. Uses by or on behalf of Melbourne Parks and Waterways are also exempt if carried out under the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

Overlays

The overlay that has been commonly applied over the 600 metre area of the bay in some planning schemes is the Environmental Significance Overlay. The overlays apply in addition to the zones but generally only control development i.e. buildings and works, and subdivision.

The overlays can be used to overcome the public land manager exemption in the zones for development only, i.e. the exemptions would continue to apply for ‘use’ permits. For example, if a new boat launching facility was proposed by a public land manager on land zoned Public Conservation and Resource and subject to the Environmental Significance overlay, no permit is required to use the land for the boat launching facility. A planning permit is required for the buildings and works with considerations, in deciding the planning permit application, being limited to the buildings and works only, under the provisions of the overlay.

The Department of Infrastructure has issued a Practice Note, “Applying the Public Land Zones” that encourages councils to only apply the overlays, so as to not duplicate the public land managers’ functions under its relevant legislation. Consequently, the Department of Infrastructure may not support the application of overlays, solely to circumvent the buildings and works exemptions in the zones. This approach is entirely consistent with the philosophy of planning controls being policy based; the council would need to demonstrate the policy basis for the application of the overlay.

The Queenscliffe Planning Scheme has the most comprehensive application of overlays, given it is virtually surrounded by areas of environmental or heritage significance. The council considers some ten (10) applications a year (about 10% of the total applications in the Borough) under the overlays. The council officers considered the permit requirements under the overlays assisted in building the relationships between public land managers, particularly Parks Victoria and the Department of Natural Resources and Environment, and the council and community.

6 3.2 Coastal Management Act 1995

The purposes of this Act are:

(a) to establish the Victorian Coastal Council; and

(b) to provide for the establishment of Regional Coastal Boards; and

(c) to provide for co-ordinated strategic planning and management for the Victorian coast; and

(d) to provide for the preparation and implementation of management plans for coastal Crown land; and

(e) to provide a co-ordinated approach to approvals for the use and development of coastal Crown land.

The objectives of this Act are:

(a) to plan for and manage the use of Victoria's coastal resources on a sustainable basis for recreation, conservation, tourism, commerce and similar uses in appropriate areas;

(b) to protect and maintain areas of environmental significance on the coast including its ecological, geomorphological, geological, cultural and landscape features;

(c) to facilitate the development of a range of facilities for improved recreation and tourism;

(d) to maintain and improve coastal water quality;

(e) to improve public awareness and understanding of the coast and to involve the public in coastal planning and management.

The Act provides for the Victorian Coastal Strategy to provide for the long term planning of the Victorian coast; Coastal Action Plans to provide for the strategic directions and objectives for use and development in the region, and for detailed planning of the region or part of the region; and management plans to set out the land management requirements for the area, and include a 3 year business plan describing proposed works for the area.

The Act requires that:

1. A Minister, public authority, committee of management of reserved Crown land or municipal council must take all reasonable steps to give effect to the Victorian Coastal Strategy;

2. In carrying out a function involving land management, on behalf of the Crown, or under an Act, a Minister, public authority, committee of management of reserved Crown land or municipal council must take all reasonable steps to give effect to a Coastal Action Plan applying to that land.

3. In carrying out a function involving the management of coastal Crown land, a Minister, public authority, committee of management of the land or municipal council must take all reasonable steps to give effect to an approved management plan applying to the land.

7 3.2.1 Use and Development of Coastal Crown land

The Act requires a person using or developing coastal Crown land to first obtain the written consent of the Minister. The Act provides that the Minister may consent to the use or development; or consent to the use or development subject to conditions; or refuse to consent to the use or development. The Minister must have regard to the Victorian Coastal Strategy; and any Coastal Action Plan applying to the land; and any recommendation of the Land Conservation Council for the land in respect of which notice has been given to the Department of Natural Resources and Environment under section 10(3) of the Land Conservation Act 1970; and the purposes for which land was reserved, in the case of land reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978.

The mandatory considerations in granting a coastal consent are more limited than those applying to the grant of a planning permit, which include the views of third parties and environmental effects.

The Department of Natural Resources and Environment consults with the relevant council when it is considering a consent under the Coastal Management Act. This is an informal arrangement and is not subject to third party or appeal review, as is the case under the Planning and Environment Act. It is understood that in the review of the Coastal Management Act, formal referral to councils is being considered. 3.3 Analysis of the Planning and Environment Act and the Coastal Management Act.

The Planning and Environment Act establishes a framework for planning the use, development and protection of land in Victoria in the present and long term interests of all Victorians.

The Act sets up a system for planning which is based on municipal planning schemes. These municipal planning schemes include state, regional and local policies (including the Municipal Strategic Statement), and relevant zones and overlays from the Victoria Planning Provisions.

The Coastal Management Act establishes the Victorian Coastal Council and Regional Coastal Boards; provides for coordinated strategic planning and management of the Victorian Coast; provides for the preparation and implementation of management plans for coastal crown land and provides for a coordinated approach to approvals for the use and development of coastal crown land.

Under the Coastal Management Act, coordinated strategic planning is achieved by the consistency between the hierarchy of plans, namely the Victorian Coastal Strategy, Coastal Action Plans and Management Plans. Other Departments and agencies and councils are only required to “take all reasonable steps” to give effect to the Strategy, Action Plans and Management Plans. Consequently, coordinated strategic planning, in the broader sense, will only be achieved if the State Planning Policy Framework and Local Planning Policy Framework (Municipal Strategic Statements and local policies) incorporate relevant policies from the Coastal Management Act plans to guide the application of zones and overlays, and decision making on planning permits, under the planning schemes.

The Coastal Management Act is a specific piece of legislation relating to strategic planning and management of the coast and use and development of coastal crown land. It does not of itself provide for development control over private land, however it does provide for strategic planning of private land along the coast. Under the Coastal Management Act

8 1995, any use or development of the seabed requires a Coastal Management Consent from the Minister for Conservation. This consent does not require consideration of impacts on adjoining land.

To take advantage of the planning framework and approvals processes under the Planning and Environment Act, it is necessary for the strategy and plans, under the Coastal Management Act, to be incorporated, as appropriate, into the policies in planning schemes. This will provide a consistent and comprehensive policy framework at State and local level, through the State Planning Policy Framework and Local Planning Policy Framework (Municipal Strategic Statements and local policies), to guide the application of zones and overlays, and decisions on planning permit applications. It will also ensure that coastal management issues are considered in most planning decisions for both public and private land. The only limitations are where a provision of a planning scheme is inconsistent with a permanent reservation; or, the planning scheme itself provides an exemption. Inconsistency between a planning scheme and a permanent reservation should not arise if the policies and application of the zones and overlays are agreed between the Department of Natural Resources and Environment and the councils. Likewise, if the policies are agreed, the exemptions should be consistent with the policy objectives for the area.

4 Activities Councils want to control and why

4.1 Use and development

The following table shows the uses and development that the councils wish to control and why they want the control.

Use or development Reason for the control Piers and Jetties (including Consideration of appropriate use, design, heritage developments thereon) or on-shore impacts. Floating apartments Off-shore and on-shore impacts Pontoons and moorings Environmental & on-shore impacts Floating structures (permanently On-shore impacts moored or moored seasonally) Dredging Environmental impact, on-shore impacts & amenity Use of watercraft* On-shore impacts, amenity and safety Off-shore development Environmental impact, on-shore impacts & amenity Marinas and boat harbours Environmental impact, on-shore impacts & amenity Sand and shell grit removal Avoid jurisdictional issues Extensions of land based activities Compatibility with land-based planning into water Reclamation and filling Environmental impact Brothel Lakes Entrance example Boat ramps Environmental impact, on-shore impacts & amenity Private jetties Environmental impact, on-shore impacts & amenity Heritage structures Consideration of heritage issues *Is not use or development within the meaning of the Planning and Environment Act 1987.

The Hobsons Bay Council raised the split jurisdictional issues over the Point Gellibrand Heritage Park between the Port of Melbourne Planning Scheme, for which the Minister for Planning is the responsible authority, and the Hobsons Bay Planning Scheme for which the Council is the responsible authority. The Port Phillip Council raised a similar jurisdictional

9 issue regarding the Port of Melbourne Planning Scheme in the vicinity of Station Pier and also the fact that the Minister for Planning is the responsible authority for the Port Phillip Planning Scheme in the vicinity of Princes Pier under the Comprehensive Development zone.

An analysis of the uses in the table above against the zones is in Appendix 2. 4.2 Resourcing

The councils that currently exercise control over the Bay did not consider it to be a significant resourcing issue in the overall number of permits dealt with. Most indicated two to three applications a year arise under these controls. Queenscliffe has the most applications at around ten per year, which represents about ten per cent of the total applications considered each year.

One council noted that extending the planning scheme is different to extending the municipal boundary, and that if the municipal boundary was extended the resource implications could be very significant.

The councils that do not have planning schemes covering all of the waters abutting their municipalities did not see significant resource issues arising if the planning schemes were extended over the Bay.

5 Issues

5.1 Why have controls over the Bay?

The principal arguments for controls over the Bay are:

! To achieve an integrated policy approach for Port Phillip Bay as the basis for planning controls and decisions on planning permits;

! To achieve consistency in planning between land uses and development on public land and the water, with private land; and

! To consider the effects of development on adjacent privately-owned and council-owned land.

Integrated policy approach for Port Phillip Bay as the basis for planning controls and decisions on planning permits

An integrated policy approach between the plans under the Coastal Management Act and policies in planning schemes, particularly Municipal Strategic Statements, is necessary to achieve a comprehensive and consistent planning framework for Port Phillip Bay. These policies will provide a mechanism for coordinating responsibilities and activities of public land managers and provide the context for the application of zones and overlays in planning schemes, and the basis for deciding planning permit applications. In addition, any duplication between consent under the Coastal Management Act and planning permits can be minimised.

Without an integrated approach to policy, conflicts between competing policies are unresolved and administrative responsibilities may be unnecessarily duplicated to achieve no net benefit. 10 Consistency in planning between land uses and development on public land and the water, with private land

Planning schemes are intended as the means by which consistency between activities on public and private land, in both setting policy objectives and in deciding planning permits, can be achieved. Policies of public land managers should be integrated into the planning scheme policies to provide certainty for the community of the policy objectives for an area. Development approvals can then be assessed against these planning scheme policies.

Consideration of effects of development on adjacent privately-owned and council- owned land

Land use and development on public land or on the water often has impacts on adjacent land. Planning schemes provide the only means of controlling activities on both public and private land. Consents under the Coastal Management Act are limited to public land. 5.2 Lack of uniform policy context for the Bay

This is being addressed in the other elements of the CMPP project, which have highlighted the need for an agreed policy context for the Bay, which can be articulated in State policies and Municipal Strategic Statements to provide the basis for zones and overlays in planning schemes and for deciding planning permit applications. 5.3 Exemptions from planning schemes or provisions

5.3.1 Exemptions from Planning Schemes

Exemptions from planning schemes exist for certain Ministers through an Order in Council under Section 16 of the Planning and Environment Act 1987. The exemptions do not apply to areas around Port Phillip Bay, and areas beside the Yarra River and the Maribyrnong River within the Metropolitan Region (which was defined in the Act), upstream of the Port of Melbourne.

In 1988, the Governor in Council excluded the Minister for Conservation, Forests and Lands (now includes the Minister or Ministers administering that portfolio) and other specified Ministers, from the operation of the planning schemes (except for the areas specified above) pursuant to section 16 of the Planning and Environment Act. The then Minister for Conservation, Forests and Lands explained the exemption as follows:

“The basis for the exemption was that my department is clearly bound by other Acts of Parliament such as those on national parks, reference areas, forests and wildlife, to manage land in certain ways. It is not always appropriate - in many cases it is certainly not appropriate - to have that particular Act of Parliament breached in any way by another planning process... In all other areas, I am able to submit to exactly the same planning requirements as required of anyone else. In most cases the department will have no trouble doing that”. In reply to comment that her department was exempt, she reported "but I can choose to submit“. Victorian Parliamentary Debates, Legislative Council 20 April, 1988, p743; 21 April 1988, p823. (Extracted from the Butterworth’s Planning and Environment Service (Victoria) at p2013)

11 This extract gives some insight into the rationale for the exemptions under section 16 and possibly also the exemptions for public land managers that exist in the planning schemes today.

5.3.2 Exemptions for Public land authorities in zones (and overlays)

The public land zones applying to Port Philip Bay contain exemptions from planning permits for use and development carried out by or on behalf of public land authorities. The Department of Infrastructure Practice Note, “Applying the Public Land Zones” states that “the words by or on behalf of should be interpreted with regard to the particular statutory charter of the public land manager under its governing legislation and indicate that the use or development must be undertaken by the public land manager itself or by some other person or entity having a direct representative interest or relationship with the public land manager”.

Many of the activities, which the councils wish to control under the planning scheme, would be exempted from the operation of the zones by these provisions.

These exemptions operate by reference to the organisation carrying out the use or development rather than to the impacts of the development.

5.3.3 Options for overcoming the exemptions

Option 1 – Do nothing

The current exemptions in the zones remain and councils can only control development under an overlay.

Option 2 – Remove the current exemptions

Public authorities would need planning permits for use and development, other than maintenance. This could raise jurisdictional issues with local government regulating state government activity.

Option 3 – Modify the exemption so that public authorities are exempt only where the use or development is consistent with policies in the planning scheme, rather than due to their status as a public land manager.

This option would require a policy for Port Phillip Bay to be prepared, possibly through a coastal action plan, and appropriate elements of the coastal action plan included as policies into the planning schemes.

The policies in planning schemes would be agreed between the departments, agencies and councils. Use or development that is consistent with this agreed policy framework would not require a permit. Use or development that is inconsistent with the policy framework would require a planning permit and would be assessed against the agreed policies in the planning schemes. Appeal processes would be available in the event of a disagreement over consistency with the planning scheme policies.

This option is most likely to achieve integrated coastal management. 5.4 The distance and the way that it is measured

The 600 metre distance, although arbitrary, was considered adequate by all ten councils. The 600 metre distance has existed for over 20 years since the introduction of the Port

12 Phillip Authority controls and no one has provided any sound justification for varying the distance.

The Greater Geelong and Queenscliffe Planning Schemes refer to the land between the municipal boundary and the low water mark, and 600 metres of the low water mark. The other planning schemes that extend into the Bay refer to an area 600 metres from the municipal boundary.

The reason for this variation relates to the manner in which the former Port Phillip Authority control has been translated into planning schemes. Following the abolition of the Port Phillip Authority, the Planning and Environment Regulations 1988 (Schedule 1) made on 16 February 1988 (now revoked) defined the Metropolitan, Geelong and Westernport Regions as comprising specified municipalities and “all the waters and the sea bed under those waters which abut any of the land”..comprising the specified municipal districts..”and which are between high water mark of Port Phillip Bay and an imaginary line following the course of low water mark at a distance of 600 metres seaward from low water mark”.

The effect of the difference in application of the planning schemes is that the Greater Geelong and Queenscliffe Planning Schemes extent further seaward (as shown in diagram 1) than the other planning schemes. The significance of the difference depends on the extent of the intertidal area, which would be significant in areas, such as the north side of Corio Bay, where there are mangroves and mud flats.

It is considered that description should be consistent for each municipality.

Diagram 1 – Current Application of Planning Schemes over Port Phillip Bay

Municipal boundary

Bayside Mornington 600 metres Peninsula Kingston Frankston

High to low LWM water mark 600 metres Greater Geelong Queenscliffe

13 6 Options for controls over Port Phillip Bay

The options for the application of planning schemes over Port Phillip Bay are:

Option 1 – Do nothing

The ‘do nothing’ option allows the councils who currently have the control to retain it as is and gives an option for the other councils to amend their planning schemes to extend over water if desired.

Advantage

! Preserves status quo.

Disadvantage

! The disadvantage of this option is that it preserves the current inconsistent approach to planning around Port Phillip Bay.

! Lack of clarity for the users.

Comment

This option will not achieve the objectives of the CMPP, to provide a consistent and comprehensive policy framework within which planning scheme zones and overlays can be applied and permit applications decided.

Option 2 – No control over Port Phillip Bay beyond the municipal boundary

This option would remove the application of planning schemes over the Bay beyond the municipal boundary.

Advantage

! Provides for public land managers to control use or development of the Bay, independently of the planning schemes.

Disadvantage

! The disadvantage of this option is that the councils who currently exercise control over the bay though their planning schemes would lose the control and it would be exercised solely under the Coastal Management Act consent. While the Department of Natural Resources and Environment has a common practice to refer coastal consents to councils, there are no formal referral or appeal mechanisms.

Comment

This option will not achieve the objectives of the CMPP as it would not allow for an integrated approach to planning at the public/private land interface.

Option 3 – A new planning scheme for Port Phillip Bay

A new planning scheme could be prepared for all or part of Port Phillip Bay to introduce appropriate controls uniformly across the Bay. Such a planning scheme would most likely 14 have the Minister for Planning as the planning and responsible authority. Adjoining municipalities could be referral authorities for any use and development adjoining their municipal area. The administration of such a scheme would fall to the Department of Infrastructure.

Advantage

! Unitary scheme could implement policies for Port Phillip Bay.

Disadvantage

! Co-ordination between the Port Phillip Bay Planning Scheme and the adjoining municipal schemes would be necessary.

Comment

No one has made a strong case for a planning scheme to apply beyond 600 metres of the municipal boundary or the low water mark.

The Government already has control over any development through the public land legislation.

Option 4 - Extending each municipal planning scheme to a set distance, ie 600 metres seaward

This would involve amending the three planning schemes, Port Phillip, Wyndham and Hobsons Bay to introduce control over the Bay to the 600 metre mark.

Advantages

! Achieves uniform application of municipal schemes 600 metres seaward of the municipal boundary.

! Ease of identification of boundaries.

! Clarity for users who deal across municipalities.

! Allows uniform policy approach to be implemented for Port Phillip Bay, 600 metres seaward of municipal boundaries.

Disadvantage

! May impose some additional administrative burden, but all councils considered this to be insignificant.

Comment

The 600 metre is the distance in the former Port Phillip Authority jurisdiction and this distance was not raised as a concern by any Council. No sound justification has been provided to change the distance.

The status of land between the high and low water marks needs to be investigated and worded in all planning schemes to conform to the Greater Geelong and Queenscliffe schemes if this is the correct interpretation.

15 Option 5 – Combination of options 3 & 4

Municipal planning schemes would apply uniformly to 600 metres seaward of the municipal boundary with a Port Phillip Planning Scheme applying to the balance of the Bay.

Advantages

! Combines the benefits of options 3 & 4.

! Overcomes the co-ordination issue at the sea/land interface by providing a policy statement in the MSS which can guide the application of zones and overlays in the planning scheme and provide the basis for deciding planning permit applications.

Disadvantage

! May impose some additional administrative burden, as for option 4.

Comment

No real need has been identified for a planning scheme over the Bay beyond 600 metres and no sound justification has been provided to change the distance. The referral of applications by DNRE would be adequate to inform councils of any development that may be proposed beyond 600 metres from the municipal boundary.

Option 6 - Extending each municipal planning scheme, so that they cover the entire Bay.

This would involve amending the 10 municipal planning schemes to extend to a defined point so that the entire Bay is covered by all 10 planning schemes.

Advantage

! Achieves uniform application of municipal schemes over defined areas of Port Phillip Bay.

Disadvantages

! May be administratively complex.

! Potential conflict between State/Local jurisdictions.

! Councils may have no interest in developments in the centre of the Bay.

! It would be difficult, if not impossible, to define planning scheme boundaries.

Comment

No real need has been identified for a planning scheme over the Bay beyond 600m.

16 7 Recommendations

It is recommended that:

1. Option 4 be adopted– extending all planning schemes 600 metres seaward of either the municipal boundary or from the municipal boundary to low water mark and 600 metres seaward of the low water mark.

2. An investigation be carried out of the difference between the points at which the 600 metre distance is measured from. The project should adopt the greater distance if there is any significant difference.

3. A clear policy statement for Port Phillip Bay be developed to fully integrate the Coastal Management Act Coastal Strategy and Plans into planning scheme policies, particularly the State Planning Policy framework and the Municipal Strategic Statements. This policy statement could be part of a Coastal Action Plan for the Bay but should be incorporated or included into the planning schemes to guide the exercise of discretion or the application of exemptions under the zones.

4. The exemptions in zones for public land managers be investigated with the view to replacing the current exemptions with exemptions applying to uses and development consistent with the policies referred to in paragraph 3 above, rather than to the organisations specified.

17 APPENDIX 1 PLANNING EXTENT OF PLANNING SCHEME NATURE OF SCHEME CONTROLS Port Phillip This Planning Scheme applies to that part of the Municipal district of the City of Phillip, not in the Port of Melbourne Planning Scheme. The scheme also applies to land in: • Schedule 1 to Clause 37.02 – Beacon Cove, Port Melbourne; • Schedule 10 to Clause 43.02 – Port Phillip Coastal Area; and Comprehensive Development Zone other land adjoining the municipal district as specified in the scheme. 1 (The Minister for Planning is the responsible authority) Melbourne This planning scheme applies to that part of the municipal district of the City of Melbourne not in the Port of Melbourne Planning Scheme.

Wyndham Municipal district of Wyndham City Council, together with the area of the Werribee Marina Special Use Zone 1 which is outside municipal boundaries. The marina can be identified as all that area of land that forms part of Port Phillip Bay beyond low and high water mark from a point on the crown foreshore reserve measuring approximately 200 metres north east from Lot 1, LP 222211, No. 25 Duncan’s Road, Werribee South, south east 500 metres into Port Phillip Bay, then south west 500 metres, then west 400 metres to the shoreline and then 70 metres to Duncan’s Road as identified in the zoning map to this scheme.

Queenscliffe The municipal district of the Borough of Queenscliffe, the intertidal area of the foreshore, and Public Conservation and Resource an area 600 metres seaward of the low watermark into Port Phillip Bay and Swan Bay. Zone

Public Park and Recreation Zone Special Use Zone 1 Environmental Significance Overlay 1 & Environmental Significance Overlay 2 Swan Bay HO – shipwrecks

Frankston The municipal district of the City of Frankston. The planning scheme also affects the area of Public Conservation and Resource Port Phillip Bay between the municipal boundary of the City of Frankston and an imaginary Zone parallel line 600 metres seaward from the municipal boundary. Hobsons Bay The City of Hobsons Bay. PLANNING EXTENT OF PLANNING SCHEME NATURE OF SCHEME CONTROLS Greater Geelong Planning scheme applies to the municipal district of the City of Greater Geelong and land Public Conservation and Resource covered with water within the Port Phillip Coastal Area (comprising Corio and Port Phillip Zone Bays) between the municipal boundary and Low Water Mark and 600 metres seaward of Low Water Mark. Special Use Zone 26 - Piers and Geelong waterfront– Bayside Planning Scheme affects the area of Port Phillip Bay between the municipal boundary of the Public Park and Recreation Zone City of Bayside and an imaginary parallel line 600 metres seaward from the municipal boundary. Public Conservation and Resource Zone

Kingston The municipal district of the City of Kingston. The planning scheme also affects the area of Public Conservation and Resource Port Phillip Bay between the municipal boundary of the City of Kingston and an imaginary Zone parallel line 600 metres seaward from the municipal boundary. Public Park and Recreation Zone

Mornington Peninsula The municipal district of the Shire of Mornington Peninsula. The planning scheme also Public Conservation and Resource affects the area of Port Phillip Bay between the municipal boundary of the Shire of Zone Mornington Peninsula and an imaginary parallel line 600 metres seaward from the municipal boundary. Environmental Significance Overlay

Port of Melbourne Planning scheme applies 600 metres seaward as shown on the planning scheme maps. This is an ‘old format’ planning scheme and does not use the VPP zones. APPENDIX 2 - Analysis of use and development councils want to control against zones

Use or development Reason for the control Public Park & Recreation Zone Public Conservation & Resource Zone Piers and Jetties (including Consideration of appropriate use, No permit for use or development if No permit for use or development if developments thereon) design, heritage or on-shore carried out by or on behalf of a carried out by or on behalf of a impacts. public land manager public land manager

Permits otherwise required. Permits otherwise required. Uses may be prohibited unless listed in section 1. Floating apartments Off-shore and on-shore impacts Pontoons and moorings Environmental & on-shore impacts No permit for use or development if No permit for use or development if carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager

Permits otherwise required. Permits otherwise required (refers to mooring pole). Floating structures (permanently On-shore impacts No permit for use or development if No permit for development if carried moored or moored seasonally) carried out by or on behalf of a out by or on behalf of a public land public land manager manager

Permits otherwise required. Permits otherwise required, use may be prohibited unless in section 1. Dredging Environmental impact, on-shore No permit for use or development if No permit for use or development if impacts & amenity carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager

Permits otherwise required. Permits otherwise required. Dredge protocol applies. Dredge protocol applies. Use of watercraft* On-shore impacts, amenity and Not a use or development of land. Not a use or development of land. safety Off-shore development Environmental impact, on-shore No permit for use or development if Permit for development, unless it is impacts & amenity carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager.

Permits otherwise required. Use prohibited unless listed in section 1. Marinas and boat harbours Environmental impact, on-shore No permit for use or development if Permit for development, unless it is impacts & amenity carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager.

Permits required otherwise. Use prohibited unless listed in section 1. Sand and shell grit removal Avoid jurisdictional issues No permit for use or development if No permit for use or development if carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager

Permits required otherwise. Permits required otherwise. Extensions of land based activities Compatibility with land-based No permit for use or development if Permit for development, unless it is into water planning carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager.

Permits required otherwise. Use prohibited unless listed in section 1. Reclamation and filling Environmental impact No permit for use or development if Permit for development, unless it is carried out by or on behalf of a carried out by or on behalf of a public land manager. public land manager.

Permits required otherwise. Use prohibited unless listed in section 1. Brothel Lakes Entrance example Prohibited Prohibited, unless carried out by or on behalf of a public land manager. Boat ramps Environmental impact, on-shore No permit for use or development if No permit for use or development if impacts & amenity carried out by or on behalf of a carried out by or on behalf of a public land manager public land manager

Permits required otherwise. Permits required otherwise. Heritage structures Consideration of heritage issues. Would be controlled under a Would be controlled under a heritage overlay heritage overlay *May not be a use or development within the meaning of the Planning and Environment Act 1987.