INDIGO PLANNING SCHEME AMENDMENT C15
PANEL REPORT
April 2004 INDIGO PLANNING SCHEME AMENDMENT C15
PANEL REPORT
LAWRIE GROOM, CHAIR
GORDON ANDERSON, MEMBER
April 2004 Page i TABLE OF CONTENTS
1 SUMMARY...... 1 2 THE PANEL PROCESS ...... 3 2.1 THE PANEL ...... 3 2.2 HEARINGS, DIRECTIONS AND INSPECTIONS ...... 3 2.3 SUBMISSIONS ...... 4 3 WHAT IS PROPOSED?...... 5 3.1 THE SUBJECT LAND AND SURROUNDS ...... 5 3.2 THE AMENDMENT...... 9 3.2.1 PURPOSE OF THE AMENDMENT...... 9 3.2.2 RURAL ZONE ...... 9 3.2.3 LOW DENSITY RESIDENTIAL ZONE ...... 11 3.2.4 EXISTING OVERLAY CONTROLS – ENVIRONMENTAL SIGNIFICANCE OVERLAY ...... 13 3.2.5 AMENDMENT PROCESS...... 13 4 PLANNING POLICIES...... 15 4.1 STRATEGIC PLANNING FRAMEWORK ...... 15 4.2 STATE PLANNING POLICY FRAMEWORK (SPPF) ...... 15 4.2.1 PLANNING FOR URBAN SETTLEMENT ...... 15 4.2.2 RURAL LIVING AND RURAL RESIDENTIAL DEVELOPMENT ...... 16 4.2.3 AGRICULTURE...... 16 4.2.4 WATER SUPPLY, SEWERAGE AND DRAINAGE ...... 17 4.3 MINISTER’S DIRECTION NO. 1 POTENTIALLY CONTAMINATED LAND...... 18 4.4 MINISTER’S DIRECTION NO. 6 RURAL RESIDENTIAL DEVELOPMENT...... 19 4.5 LOCAL PLANNING POLICY FRAMEWORK (LPPF)...... 20 4.5.1 THE MUNICIPAL STRATEGIC STATEMENT...... 20 4.5.2 SETTLEMENT AND INFRASTRUCTURE ...... 20 4.5.3 RUTHERGLEN...... 21 4.5.4 AGRICULTURE...... 21 4.5.5 LOCAL PLANNING POLICIES...... 23 4.5.6 RESIDENTIAL SUBDIVISION AND DEVELOPMENT ...... 23 4.5.7 LAND USE, DEVELOPMENT AND SUBDIVISION IN RURAL AREAS...... 23 4.5.8 COUNCIL’S CORPORATE PLAN ...... 23 5 ISSUES...... 24 5.1 NATURE OF SUBMISSIONS ...... 24 5.2 ISSUES IDENTIFIED BY THE PANEL ...... 24 6 STRATEGIC CONSIDERATIONS ...... 26 6.1 INTRODUCTION...... 26 6.2 PLANNING HISTORY OF THE LAND...... 27 6.3 EVALUATION ...... 33 6.4 STRATEGIC CONSIDERATIONS CONCLUSION ...... 37 7 SUITABILITY OF THE LAND ...... 38 7.1 INTRODUCTION...... 38 7.2 TRAFFIC AND ROAD INFRASTRUCTURE...... 38 7.3 DRAINAGE ...... 41 7.4 UTILITY SERVICES...... 43 7.5 SOIL CONDITIONS ...... 45 7.6 OTHER SITE ISSUES ...... 47 7.6.1 IMPACT ON EXISTING RURAL VIEWS ...... 47 7.6.2 POSSIBLE COST FLOW-ON IMPACTS...... 48 7.6.3 PERMIT CONDITION ENFORCEMENT ...... 48 7.7 SITE SUITABILITY CONCLUSION...... 48
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8 STRATEGIC ASSESSMENT GUIDELINES ...... 49 8.1 IS AN AMENDMENT REQUIRED?...... 49 8.2 STRATEGIC JUSTIFICATION...... 49 8.3 PLANNING AND ENVIRONMENT ACT ...... 49 8.4 STATE PLANNING POLICY FRAMEWORK ...... 50 8.5 LOCAL PLANNING POLICY FRAMEWORK...... 50 8.5.1 MUNICIPAL STRATEGIC STATEMENT...... 50 8.5.2 LOCAL PLANNING POLICY ...... 50 8.6 ZONES, OVERLAYS AND SCHEDULES...... 50 8.7 REFERRAL AUTHORITIES...... 51 8.8 OUTCOME OF THE AMENDMENT ...... 51 9 CONCLUSIONS & RECOMMENDATION ...... 52 9.1 CONCLUSIONS...... 52 9.2 RECOMMENDATION ...... 52
APPENDICES A. LIST OF WRITTEN SUBMISSIONS B. DRAFT CLAUSE 21.04-1-2 C. REFERENCE DOCUMENTS
INDIGO PLANNING SCHEME AMENDMENT C15 PANEL REPORT: APRIL 2004 Page iii LIST OF FIGURES
Figure 1: Location Map (Source: Indigo Planning Scheme as presented in Figure 1 of Habitat Planning Report, July 2002)...... 6 Figure 2: Aerial Photograph Showing Subject Land in 2001 (Source: Indigo Shire Council Submission 27 January 2004)...... 7 Figure 3: Photograph of Nash’s Road Looking North – Subject Land on Right (December 2003) ...... 8 Figure 4: Photograph of Nash’s Road Looking South – Subject Land on Left, Beyond Intersecting Road (Campbell Street) (December 2003) ...... 8 Figure 5: Indigo Planning Scheme Map 3 - Rutherglen...... 10 Figure 6: Indigo Planning Scheme Development Plan Overlay 3 - Rutherglen ...... 12 Figure 7: Indigo Planning Scheme Environmental Significance Overlay 3 - Rutherglen ...... 14 Figure 8: Rutherglen Strategic Map contained in MSS Clause 21.04-1-2 (30 September 2001) ...... 22 Figure 9: Development Framework Map for Rutherglen Showing Proposed Township Boundary (Source: Rutherglen Urban Design Framework, February 2003)...... 32
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1 SUMMARY
The Panel was appointed to consider an Amendment that, if approved, would rezone approximately 14 hectares of land on the eastern side of Nash’s Road, Rutherglen, from Rural Zone to Low Density Residential Zone, with a Development Plan Overlay Schedule 3. The purpose of the Amendment is to allow a rural residential subdivision.
This is the second time the proposal has been considered by a Panel. In May 1998, the Panel and Advisory Committee appointed to evaluate the new format Indigo Planning Scheme rejected the rezoning, stating “there is no strategic justification for the rezoning” and recommended the land should retain its existing rural zoning. It also recommended Council should: undertake a review of its strategic plan for the town of Rutherglen. … Any proposed rezonings as a result of the review should be the subject of a separate amendment.
The report includes Council’s comment on the proposal: … The proposed extent of Low Density Residential Zoned land may present an over supply of such land, however it establishes a long term boundary between residential land and agricultural land, providing greater long term certainty for all parties. … (page 36)
In 1999, the Indigo Planning Scheme commenced and the Local provision on Rutherglen states it is an objective of Council, as Planning Authority: To prevent urban expansion pending a comprehensive review of residential demand.
A strategy of the Planning Scheme for Rutherglen states: No further expansion of any residential zones pending a comprehensive review of residential demand.
This is consistent with one of the strategies for the Shire in the Settlement and Infrastructure section of the Scheme: Prevent the extension of residential zones until the current land supply levels within each town are reduced to 10 years.
Minister’s Direction No. 6 Rural Residential Development provides that Council must comply with the Guidelines for Rural Residential Development. The Guidelines state: An amendment must not provide for rural residential use or development of land which would increase the supply of rural residential land to more than that required to meet a 10 year demand for rural residential lots (including vacant lots in the existing supply), based on annual building approvals over at least the past five years or other suitable basis.
In October 2002, the Department responsible for administration of planning in Victoria advised Council of the need to undertake a comprehensive review of residential needs prior to any further rezoning.
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In February 2003, Council adopted the Rutherglen Urban Design Framework that confirmed the existing strategic direction of township growth, that is, inside the town boundary, on land already zoned for residential use.
Council argued: The estimated 15-year supply of residential zoned land referred to in the Scheme was an incorrect statement. It was a “blanket statement encompassing two different market niches namely standard residential lots and rural residential type lots.” The figure, Council argued, included subdivision of the Nash’s Road land. There is an “unsatisfied demand” for rural residential land on the eastern side of Rutherglen. Apart from “3-4 lots capable of subdivision, and a couple of question marks over 3-4 other lots that there [is] actually very liitle development potential within this existing zone.”
Council interpreted the comprehensive review to “only focus on RIZ as opposed to LDRZ.”
The Proponent prepared a report to address Minister’s Direction No. 6 and a letter that sought to satisfy the requirements of the comprehensive review. The Panel studied this work and after considering the submissions in the light of State and Local planning policy formed the view it could not support the Amendment because: Council has not undertaken the required comprehensive review of residential demand. Council has not evaluated site suitability issues in a comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
Council may wish to review the manner in it which it prepares planning scheme amendments.
The Panel recommends Amendment C15 to the Indigo Planning Scheme should be abandoned.
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2 THE PANEL PROCESS
2.1 THE PANEL
Lawrie Groom (Chair) and Gordon Anderson (Member) were appointed under delegation on 30 January 2004, pursuant to Sections 153 and 155 of the Planning and Environment Act 1987 (the Act), to hear and consider submissions and prepare a report on Amendment C15 (the Amendment) to the Indigo Planning Scheme. Trevor Budge had been appointed as Chairperson on 29 October 2003, but the appointment was cancelled because of a conflict of interest.
The Amendment, if approved, would rezone approximately 14 hectares of land, known as Crown Allotments 21, 21A, 22, 24, 25D, 26, 26A and 30 Parish of Carlyle, on the eastern side of Nash’s Road, Rutherglen, from Rural Zone (RUZ) to Low Density Residential Zone (LDRZ). The Amendment also proposes to place Development Plan Overlay Schedule 3 (DPO3) over the subject land. The Panel noted some of the documentation refers to “Nashes” Road but Council confirmed “Nash’s” Road is its correct name, having named it after Mr Don Nash, a resident of the Shire.
The planning authority is the Shire of Indigo and the Proponent is Mr Keith Buckingham, who requested the Amendment.
2.2 HEARINGS, DIRECTIONS AND INSPECTIONS
A Directions Hearing, chaired by Mr Budge with Mr Anderson as member, was held at 11 am on 19 December 2003 at the Indigo Shire Customer Service Centre, High Street, Rutherglen. Council tabled a late submission (dated 12 December 2003) from Mr Mark Koop. The Panel made the following Directions: Council and the Proponent are to address the Strategic Assessment Guidelines in their submissions to the Panel. Council is to address the following matters in its submission: traffic management (including the views of VicRoads), and sewage and other contamination; Council is to obtain a copy of an earlier report on sewage contamination, with Mr Nickson (a Submitter) to provide further information to assist Council. The Proponent is to provide a report to the Panel about past use of the land to ensure that the issue of possible contamination of the land can be assessed.
The Panel Hearings were held on 27 January 2004 and 15 and 16 March 2004 at the Indigo Shire Customer Service Centre, High Street, Rutherglen.
The Panel (Trevor Budge and Gordon Anderson) commenced the public Hearing at 9.20 am, on 27 January 2004. The Chairperson advised the Hearing he had worked as a consultant for Indigo Shire Council and appeared before a Panel in February 1998 that had considered the
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new format Indigo Planning Scheme, including a proposal to rezone the subject land. Following consideration of submissions on the statement, the Panel decided to adjourn the Hearing and to request the appointment of a new Chairperson, which took place on 30 January 2004.
The new Chairperson asked Council to consult with the parties on a suitable date to resume the public Hearing. On 13 February 2004, the Panel requested Council to circulate a timetable (including Panel’s Directions) for the resumed Hearing to take place on 15 and 16 March 2004.
The Panel members inspected the site and surrounding areas before and during the Hearing: Unaccompanied inspections on 19 December 2003 (Messrs Budge and Anderson) and 14 March 2003 (Messrs Groom and Anderson). A conducted site inspection on 16 March 2004 (Messrs Groom and Anderson). All parties to the Hearing were invited. Those who attended were: - Mr Peter O’Dwyer (representing Indigo Shire Council) - Mr Warwick Horsfall (representing the Proponent) - Mr Keith Buckingham (Proponent) - Ms Sandra Morgan (Mr Buckingham’s daughter) - Mr Stephen Jones (Submitter).
During the accompanied site inspection the Panel visited the following areas of Rutherglen: Sheridan Heights Estate (LDRZ) in South-west Rutherglen LDRZ land on northern side of Herrins Lane in South Rutherglen LDRZ land on eastern side of Killeens Road in West Rutherglen Barkley Street along northern edge of Rutherglen.
2.3 SUBMISSIONS
A list of all written submissions to the Amendment from 13 parties is included in Appendix A. The Panel has considered all written and oral submissions and all material presented to it on this matter. The Panel heard the following parties:
Submitter Represented By Mr Keith Buckingham, Proponent – Mr Warwick Horsfall, Planning Consultant, Habitat Planning Indigo Shire Council, Planning Authority – Mr Peter O’Dwyer, Manager, Indigo Way Services – Development Services Ms Heather Taylor and Mr Phillip Nickson Mr David Baker and Ms Christine Baker Mr Andrew Melville Mr Gary Arnold Mr Stephen Jones
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3 WHAT IS PROPOSED?
3.1 THE SUBJECT LAND AND SURROUNDS
The subject land comprising Crown Allotments 21, 21A, 22, 24, 250, 26, 26A & 30 Parish of Carlyle, is located on the eastern fringe of the Rutherglen township to the east of Nash’s Road (see Location Map at Figure 1 and Aerial Photograph at Figure 2).
Nash’s Road bounds the land on the western side and Campbell Street bounds it to the north. The land stretches almost to the Murray Valley Highway to the south.
To the north, south and east of the subject land the major land use is rural grazing land. Located opposite in Nash’s Road are rural residential properties the Panel was advised are similar to those intended under the proposed rezoning.
The L-shaped site is gently undulating, sloping from Nash’s Road to the east (see Photographs at Figures 3 and 4).
The land has views towards the east, north and south, especially east towards the Murray River floodplain and beyond to the hills surrounding Wodonga. Overland drainage bisects the land from the west to the east, with all surface drainage directed towards the Gooramadda Road. The flow characteristics mean it is not regarded as a watercourse or waterway. Used mainly for grazing purposes the land is vacant having been largely cleared, except for some scattered paddock trees across the property.
Rutherglen is described in the Indigo Planning Scheme in the following terms: Rutherglen, with a population of about 1,900 persons is located within a nationally recognised wine growing area. It is historically significant and possesses extensive heritage and tourist interest. Its accessibility to Albury Wodonga makes it attractive from a commuter aspect for employment. Rutherglen’s proximity to Corowa’s sporting facilities and the Murray River combine with Rutherglen’s wine industry to provide a comprehensive tourist product that attracts people from across the state and region. Based on current rates of development, a land supply of less than 15 years has been set aside for residential development in Rutherglen. Industrial development is limited due to the relatively poor location of the existing estate on a thin wedge of land between a major road and a railway line. A larger area needs to be developed to support larger manufacturing and service based industries. The development of the commercial precinct needs to be assisted through the development of off street car parking areas. The amenity and safety of the business area could be improved by diverting heavy vehicles around the commercial precinct. The Panel notes the Department of Sustainability and Environment’s Town’s in Time data base states Rutherglen’s population in 2001 was 1,846, a decrease of 58 persons since 1996.
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Figure 1: Location Map (Source: Indigo Planning Scheme as presented in Figure 1 of Habitat Planning Report, July 2002)
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Figure 2: Aerial Photograph Showing Subject Land in 2001 (Source: Indigo Shire Council Submission 27 January 2004)
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Figure 3: Photograph of Nash’s Road Looking North – Subject Land on Right (December 2003)
Figure 4: Photograph of Nash’s Road Looking South – Subject Land on Left, Beyond Intersecting Road (Campbell Street) (December 2003)
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3.2.1 PURPOSE OF THE AMENDMENT
The Amendment, if approved, would rezone the subject land from Rural Zone (RUZ) to Low Density Residential Zone (LDRZ). The Amendment also proposes to place Development Plan Overlay Schedule 3 (DPO3) over the subject land.
The Explanatory Report exhibited with the Amendment states the rezoning is required to allow for a rural residential subdivision, and use of the land is seen as providing “a natural extension to the township boundary.”
The Explanatory Report provides no supporting information on introducing a DPO3 over the subject land. However Council in its comments about Environmental Effects in its submission said: Application of the proposed Development Plan Overlay as well as performance criteria and development guidelines contained in the MSS and Local Policies, will ensure that any development will be carried out in sympathy with the existing landscape and natural systems.
3.2.2 RURAL ZONE
The subject land is zoned Rural Zone in the Indigo Planning Scheme – see Figure 5. A planning permit is required for either subdivision or use and development of Rural Zone land for purposes set out in Section 2 of the table of uses. Section 1 of the table provides that a permit is not required to use land for a dwelling (other than Bed and breakfast), provided the following conditions are met: The lot must be at least the area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares. Must be the only dwelling on the lot. Must meet the requirements of Clause 35.01-2.
Section 2 of the table provides that a permit is required to use land for a dwelling (other than Bed and breakfast) – if the Section 1 condition is not met “Must meet the requirements of Clause 35.01-2.” A permit is required to subdivide land and to construct a building or works associated with a use in Section 2. Clause 35.01-2 provides that a lot may be used for one or more dwellings provided requirements are met with respect to all-weather access, the disposal of waste water and the connection of water and energy supplies.
The Schedule to the Rural Zone includes requirements for the use of land for a dwelling, and the subdivision of land. It provides that the minimum area of land for which no permit is required to use land for a dwelling is 40 hectares. With respect to subdivision, the minimum subdivision area is 40 hectares, “except where approved by the responsible authority in accordance with Local Planning Policy Land use, development and subdivision in rural areas (Clause 22.02-2).” The Panel understands the Indigo Planning Scheme, unlike other schemes in the State, does not rely upon minimum lot sizes for subdivision in the Rural Use Zone.
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Figure 5: Indigo Planning Scheme Map 3 - Rutherglen
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3.2.3 LOW DENSITY RESIDENTIAL ZONE
The purpose of the Low Density Residential Zone (LDRZ) is to implement planning policy and: To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater.
A permit is required to subdivide land in this zone. Each lot must be at least 0.4 hectares but a permit may be granted to create smaller lots, if the subdivision: Excises land which is required for a road or a utility installation. Provides for the re-subdivision of existing lots and the number of lots is not increased.
Mr Horsfall, in his submission, explained why the LDRZ was proposed in preference to the Rural Living Zone. He said the selected zone would: provide for the logical continuation of existing rural residential land use activities to the west of Nash’s Road and consequently will provide a ‘seamless extension to the town’s eastern boundary.
The Amendment proposes to place a Development Plan Overlay (DPO) over the site, in which case a permit could not be granted to use or subdivide the land, construct a building or construct or carry out works until a ‘development plan’ had been prepared to the satisfaction of Council. The application for a permit, if it was “generally in accordance” with the ‘development plan’ would be exempt from the notice requirements of S 52 (1)(a), (b) and (d), the decision requirements of S 64(1), (2) and (3), and the review rights of S 82(1) of the Act. The DPO removes notice requirements and third-party review rights from planning permit applications for proposals that conform to the ‘development plan’. Mr Horsfall advised the Panel the requirement for a ‘development plan’ “provides a degree of certainty for adjoining and nearby landowners as to how the land will be developed.” There are however no processes for exhibiting or making submissions to Council on the contents of the ‘development plan’ (a matter of concern to one Submitter).
The proposed DPO3 provides that all residential development must be serviced with reticulated water and sewerage (if it can be provided), and sealed roads. Council may grant a permit for a dwelling house on an existing allotment without the need for preparation of the ‘development plan’. The existing Development Plan Overlay 3 Map (for Rutherglen) is shown in Figure 6.
The Panel notes the Panel and Advisory Committee which reviewed the new format Indigo Planning Scheme noted Council’s intention to include a provision in the DPO schedule limiting lot yield in the LDRZ on the periphery of some towns to that of existing Crown allotment patterns.
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Figure 6: Indigo Planning Scheme Development Plan Overlay 3 - Rutherglen
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3.2.4 EXISTING OVERLAY CONTROLS – ENVIRONMENTAL SIGNIFICANCE OVERLAY
The Panel notes Crown Allotment 22 of the subject land and land to the north, and generally to the east and south of the subject land are covered by an Environmental Significance Overlay (ESO3) (for Rutherglen) as shown in Figure 7. The purpose of an ESO is to identify areas where the development of land may be affected by environmental constraints, and to ensure development is compatible with identified environmental values. The environmental objective of the overlay, the Black Dog Creek ESO3, is to maintain the quality of water within the catchment, prevent the impeding of water flow within the catchment, and to provide a framework to assist decisions for drainage works. The ESO3 provides that all applications for a planning permit must comply with the North East Catchment Management Authority guidelines for drainage approval. The ESO also includes matters Council must consider before deciding on an application.
3.2.5 AMENDMENT PROCESS
Council exhibited the Amendment from 5 October to15 November 2002. The Proponent submitted further research in a letter dated 10 September 2003, and Council at its meeting on 14 October 2003, considered the submissions arising from the exhibition and agreed to ask the Minister to appoint a Panel.
The next section of this report discusses the relevant planning policies.
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Figure 7: Indigo Planning Scheme Environmental Significance Overlay 3 - Rutherglen
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4 PLANNING POLICIES
4.1 STRATEGIC PLANNING FRAMEWORK
This Section identifies the strategic context within which issues associated with the Amendment must be considered.
The relevant documents that provide the strategic context for considering the Amendment are: Indigo Planning Scheme – SPPF and LPPF Minister’s Direction No. 1 Potentially Contaminated Land Minister’s Direction No. 6 Rural Residential Development.
4.2 STATE PLANNING POLICY FRAMEWORK (SPPF)
State planning policies must be taken into account when preparing amendments to the Planning Scheme. Council, when considering whether it would prepare the Amendment at its meeting on 10 September 2002, was advised in an officer’s report of the background to the proposal and the relevance of Minister’s Direction No 6. Council’s attention was not drawn to State planning policies. Council may wish to review the manner in which it prepares amendments to the Planning Scheme.
Relevant elements of the SPPF include: Planning for urban settlement, Clause 14.01 Rural living and rural residential development, Clause 16.03 Agriculture, Clause 17.05 Water supply, sewerage and drainage, Clause 18.09.
4.2.1 PLANNING FOR URBAN SETTLEMENT
The objectives of this policy are: To ensure a sufficient supply of land is available for residential, commercial, industrial, recreational, institutional and other public uses. To facilitate the orderly development of urban areas.
The Scheme states: Planning authorities should plan to accommodate projected population growth over at least a 10 year period, taking account of opportunities for redevelopment and intensification of existing urban areas as well as the limits of land capability and natural hazards, environmental quality and the costs of providing infrastructure.
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In planning for urban growth, planning authorities should encourage consolidation of existing urban areas while respecting neighbourhood character. Planning authorities should encourage higher density and mixed use development near public transport routes.
Council advised the Panel the Amendment is not inconsistent with this policy. Council stated the Amendment “seeks to address an apparent shortfall in large urban lots on the fringe of Rutherglen …”.
Mr Horsfall advised the Panel the supply of land available for residential and low residential development in Rutherglen is now limited. He argued the amount of low density residential land has fallen well below the 10-year forward time frame the policy demands.
The Panel addresses this matter in more detail in Section 7 of this report.
4.2.2 RURAL LIVING AND RURAL RESIDENTIAL DEVELOPMENT
The object of this policy is: To identify land suitable for rural living and rural residential development.
The Scheme states Minister’s Direction No 6, Rural Residential Development applies to the preparation of planning scheme amendments to allow rural residential development. Land should only be zoned for rural living or rural residential development where it: Is located close to existing towns and urban centres, but not in areas that will be required for fully serviced urban development. Can be supplied with electricity and water and good quality road access. Land should not be zoned for rural living or rural residential development if it will encroach on high quality productive agricultural land or adversely impact on waterways or other natural resources.
Council advised the Panel: While the development proposed is not defined as rural residential development as such due to the availability of urban services to the land, it is considered that the general thrust of this policy is still relevant to this Amendment.
Mr Horsfall advised the Panel: the subject land is suitable for rural living development principally because of a lack of development constraints, availability of services and consistency with adjoining land use.
4.2.3 AGRICULTURE
The objective of this policy is: To ensure that the State’s agricultural base is protected from the unplanned loss of high quality productive agricultural land due to permanent changes of land use and to enable protection of productive farmland which is of high quality and strategic significance in the local or regional context.
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The Scheme states: In assessing rural development proposals, planning and responsible authorities must balance the potential off-site effects of rural land use proposals (such as degradation of soil or water quality and land salinisation) which might affect high quality productive agricultural land against the benefits of the proposals. In considering a proposal to subdivide or develop agricultural land, the following factors must be considered: The desirability and impacts of removing the land from primary production, given its agricultural quality and productivity. The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production. The compatibility between the proposed or likely development and the existing uses of the surrounding land. Assessment of the land capability.
The Agriculture policy is linked to Council’s MSS at Clause 21.04.2-1, and Local policy, at Clause 22.02-2, which are discussed in Section 4.4.
Council advised the Panel the subject land “is not high quality agricultural land and consequently the amendment is not inconsistent with this policy.”
Mr Horsfall advised the Panel: the agricultural quality of the land combined with its location adjacent to non-agricultural uses significantly weakens the argument that the land should be retained for agriculture.
4.2.4 WATER SUPPLY, SEWERAGE AND DRAINAGE
The objective of this policy is: To plan for the provision of water supply, sewerage and drainage services that efficiently and effectively meet State and community needs and protect the environment.
The Scheme states: Urban development must be provided with sewerage at the time of subdivision, or lots created by the subdivision must be capable of adequately treating and retaining all domestic wastewater within the boundaries of each lot consistent with the Code of Practice – Septic Tanks (EPA 1996) and relevant State environment protection policies.
Council advised the Panel that should the Amendment proceed the land would be connected to the sewer, and adequate conditions would be placed on future consent relating to stormwater runoff and drainage.
INDIGO PLANNING SCHEME AMENDMENT C15 PANEL REPORT: APRIL 2004 Page 18 4.3 MINISTER’S DIRECTION NO. 1 POTENTIALLY CONTAMINATED LAND
The Act provides that the Planning Authority (Council) must have regard to Minister’s Directions when it prepares amendments to the Planning Scheme.
The purpose of this Direction is: to ensure that potentially contaminated land is suitable for a use which is proposed to be allowed under an amendment to a planning scheme and which could be significantly adversely affected by any contamination.
The Direction defines “Potentally contaminated land” as: land used or known to have been used for: a) industry, b) mining, or c) the storage of chemicals, gas, wastes or liquid fuel (if not ancillary to another use of the land).
The Direction provides: In preparing an amendment which would have the effect of allowing (whether or not subject to the grant of a permit) potentially contaminated land to be used for a sensitive use, agriculture or public open space, a planning authority must satisfy itself that the environmental conditions of that land are or will be suitable for that use.
A “sensitive use” is defined as a “residential use, a child care centre, a pre-school centre or a primary school.”
The Direction is linked to State policy on Soil contamination (at Clause 15.06) with the objective: To ensure that potentially contaminated land is suitable for its intended future use and development, and that contaminated land is used safely.
The Panel directed Council to address sewage and other contamination in its submission but Council did not provide the Panel with advice on whether Council was satisfied the environmental condition of the land was suitable for housing. Mr Horsfall advised the subject land had been in the ownership of the Proponent for the last 35 years and used for grazing purposes. His submission stated: The proponent advises that there has been no concentrated activities on the land such as sheep dips or intensive animal husbandry that may have had the potential to contaminate parts of the land. The land has been sprayed from time to time to control weeds and enhance pasture growth but the rates of application of these chemicals are such that there would be no risk to future residents of the proposed rural residential lots.
This matter is further addressed in Section 7 of this report.
INDIGO PLANNING SCHEME AMENDMENT C15 PANEL REPORT: APRIL 2004 Page 19 4.4 MINISTER’S DIRECTION NO. 6 RURAL RESIDENTIAL DEVELOPMENT
The purpose of this Direction is: to ensure that an amendment which has the effect of allowing rural residential development is prepared only after having regard to appropriate strategic considerations and the suitability of land for that development.
The Direction defines “Rural residential development” as meaning: (a) the subdivision of land into one or more lots which have an area of between 0.4 hectare and 2.0 hectare if the lot is or lots are intended primarily for a residential use, or (b) the construction of a detached house on a vacant lot which has an area of between 0.4 hectare and 2.0 hectare.
The Direction further provides that in preparing an amendment for a rural residential development, a planning authority must: Comply with Guidelines for Rural Residential Development, October 1997, prepared by the Department of Infrastructure. Include in the explanatory report for the amendment, a report showing how the amendment complies with Guidelines for Rural Residential Development.
The relevant parts of the Guidelines for Rural Residential Development provide, in Section 2 Strategic and Spatial Considerations, that: An amendment providing for rural residential use or development must be accompanied by a report demonstrating that the amendment has been prepared with regard to strategic considerations relating to social, economic and environmental matters. The report must include appropriate evidence, in the form of a written report, maps, etc, to address the following matters. Section 2.6 Supply and Demand provides: The supply of and demand for rural residential lots within the municipality and the general locality must be assessed with respect to: The impact of the proposed additional supply (eg 'blighting' of land, restriction of future planning options). The orderly planning of the area. Market demand must be estimated with adequate justification of inbuilt assumptions. Reference must be made to the trend in building approvals for houses on rural residential lots over the past five years. An amendment must not provide for rural residential use or development of land which would increase the supply of rural residential land to more than that required to meet a 10 year demand for rural residential lots (including vacant lots in the existing supply), based on annual building approvals over at least the past five years or other suitable basis. The Explanatory Report exhibited with the Amendment includes the following statement: Ministerial Direction 6 – Rural Residential Development applies to the subject land. The report prepared by Habitat Planning addresses the relevant considerations and general
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principles of the Guidelines for Rural Residential Development, October 1997, prepared by the Department of Infrastructure. That report forms a part of this Explanatory Report.
Council advised the Panel: … Habitat have provided a satisfactory planning report which addresses the Guidelines prepared by the Department of infrastructure in 1997 in respect of this Ministerial Direction. Council concluded that the relevant report provides sufficient justification of the proposal in terms of relevant matters raised for consideration.
The Panel evaluates the report prepared by Habitat Planning in Section 6 of this report.
4.5 LOCAL PLANNING POLICY FRAMEWORK (LPPF)
There are various elements of the Indigo Planning Scheme LPPF relevant to the Amendment. Many of the issues and objectives of the LPPF directly overlap with those of the SPPF. The LPPF comprises the Municipal Strategic Statement (MSS) and Local planning policies.
4.5.1 THE MUNICIPAL STRATEGIC STATEMENT
The MSS must be taken into account when preparing amendments to the scheme. The MSS is a concise statement of the key strategic planning, land use and development objectives of the municipality. The relevant sections within the MSS that relate to the Amendment are: Settlement and Infrastructure, Clause 21.04-1 Rutherglen, Clause 21.04-1-2 Agriculture, Clause 21.04.2-1
4.5.2 SETTLEMENT AND INFRASTRUCTURE The Overview of this part of the Indigo Scheme states: Existing planning scheme zones throughout Indigo Shire provide enough residential land to accommodate nearly 5000 households. This would accommodate a further 12,500 persons at a ratio of 2.5 persons per household. This level of accommodation is four times the likely need for the next fifteen years. Existing townships are generally able to provide a wide variety of lot sizes and housing choice. Population growth can be accommodated within existing towns, subject to the augmentation of water and sewerage infrastructure in specific towns.
The Strategies include: Prevent the extension of residential zones until the current land supply levels within each town is reduced to 10 years.
This theme is continued in the section on Rutherglen at Clause 21.04-1-2.
The Implementation section of the MSS (at Clause 21.05) notes, with respect to the strategy on settlement and infrastructure, the three-year review of the Scheme should review the low density residential and rural living zones.
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4.5.3 RUTHERGLEN
The Overview includes the statement: Based on current rates of development, a land supply of less than 15 years has been set aside for residential development in Rutherglen.
The Objectives include: To prevent urban expansion pending a comprehensive review of residential demand.
The Strategies include: No further expansion of any residential zones pending a comprehensive review of residential demand. Clause 21.04-1-2 includes the Rutherglen Strategic map (see Figure 8). The map notes a population of 2,000 people, and that there is a “16 years land supply”. The map identifies the urban edge of the town and notes the need to prepare development plans for land zoned Low Density Residential Zone. The subject land is not identified, nor is it contained within the urban edge of the town.
Council advised the Panel: Having regard to the above it may well appear that the current Amendment does not accord with the MSS. While at first glance this may seem correct it is Council’s position that there are a number of relevant circumstances which warrant a more careful and considered assessment.
Council argued: The estimated 15 year supply of residential zoned land referred to in Clause 21.04-1-2 was an incorrect statement. it was a “blanket statement encompassing two different market niches namely standard residential lots and rural residential type lots.” The figure included subdivision of the Nash’s Road land. There is an “unsatisfied demand” for rural residential land on the eastern side of Rutherglen. Apart from “3-4 lots capable of subdivision, and a couple of question marks over 3-4 other lots that there [is] actually very liitle development potential within this existing zone.” Council interpreted the comprehensive review to “only focus on RIZ as opposed to LDRZ.” The report prepared by Habitat Planning addresses Clause 21.04-1-2. Council argued the report states “there has been a significant upsurge in the number of residential land sales in Rutherglen and a subsequent constrained supply scenario emerging within the township”.
4.5.4 AGRICULTURE The Overview of this Local policy states the “continued use of land zoned for rural production is paramount to the economic future of the Shire.” The policy notes the importance of the Rutherglen viticulture area and the need to support and protect broad acre grazing and crop production areas. Reference is made to the “Legitimate demand for smaller lots (<40ha) relating to intensive agriculture and/or rural production.”
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Council advised the Panel the subject land is “average” based on the the work undertaken by the Albury-Wodonga Regional Planning Strategy. Council said low carrying capacity is reflected in its use predominantly for the grazing of sheep.
Figure 8: Rutherglen Strategic Map contained in MSS Clause 21.04-1-2 (30 September 2001)
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4.5.5 LOCAL PLANNING POLICIES
Local planning policies are planning tools to implement the objectives and strategies of the MSS. Local policy must be taken into account when an amendment to the scheme is prepared. The relevant sections within the MSS that relate to this Amendment are: Residential subdivision and development, Clause 22.01-3 Land use, development and subdivision in rural arreas, Clause 22.02-2
4.5.6 RESIDENTIAL SUBDIVISION AND DEVELOPMENT
This policy applies to subdivision and/or development of residential land. Its basis includes: New residential subdivision and/or development is required to satisfy standards regarding service connections, road construction and development impact.
The objectives include: To ensure that all forms of residential development, including low density residential development are connected to reticulated sewerage, water, power and stormwater facilities. To ensure that all roads that service a residential development are fully constructed and sealed.
The policy includes a series of decision guidelines that require Council to take into account certain infrastructure requirements.
4.5.7 LAND USE, DEVELOPMENT AND SUBDIVISION IN RURAL AREAS
This policy applies to the use, development and subdivision of land in the Rural Zone, in particular for intensive agriculture and/or rural production. Mr Horsfall advised the Panel this policy virtually precluded a rural residential subdivision on the urban fringe of Rutherglen, unless the land was rezoned.
4.5.8 COUNCIL’S CORPORATE PLAN
Council’s Corporate Plan 2003/06 sets out its objectives for the next three years and the strategies for achieving these objectives. The relevant key three year objectives include: To encourage and facilitate investment in all sectors of the Shire with a view to increasing business and residential growth thus providing employment opportunities. Ensure ecologically sustainable development through integrated land use planning.
The Corporate Plan includes the following actions for 2003/04: Undertake feasibility studies into development of further residential and rural residential land availability across the Shire Encourage development and release of residential land by private developers Review residential use zones in Council’s Planning Scheme Review planning policy for subdivision in Rural and Rural Living Zone areas of the Shire.
The next section of this report outlines the issues considered by the Panel.
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5 ISSUES
5.1 NATURE OF SUBMISSIONS
The Panel identified the following key issues in the submissions from Government Authorities, Agencies, and the public: No justification for rezoning, increasing land supply and expanding the town boundary Likely traffic impacts and their amelioration Increased runoff and urban drainage Connection of the proposal to reticulated water supply and sewerage at the developer’s cost Potential contamination Environmental impacts during and after development Salinity impacts and management Devaluation of existing properties Lifestyle issues including impact on existing rural views Possible flow-on cost impacts for existing residents (for example, kerbing, guttering, footpaths) Rejection of proposed rezoning by a Planning Panel and Advisory Committee in 1998 Council’s alleged record on enforcement of permit conditions.
5.2 ISSUES IDENTIFIED BY THE PANEL
The planning reforms of the 1990s made planning schemes and amendments more strategic and policy based. Accordingly, amendments such as Amendment C15 should not undermine or ignore the State or Local policy framework; indeed, the intention is that amendments should support policy. Section 12A of the Act requires controls on the use and development of land in a planning scheme to relate to the objectives and strategies set out in the MSS for the municipality. It is therefore important for the Panel to ensure there are clear linkages between the MSS and the application of zones, overlays, schedules and policies, and that links to Council’s Corporate Plan are apparent.
In a similar manner, an amendment should seek to support and implement State planning policy. If an amendment differs from planning policy, for example Local policy, then the Local policy may need to be amended. In this respect it is relevant to note here Council in its submission tabled some possible changes to Council’s MSS, including the Rutherglen Strategic Map (see Appendix B).
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In summary, the Panel’s task is to consider whether the Amendment accords with policy and the land is suitable for the proposed purpose. The Panel considers the relevant issues relate to: The strategic considerations, in particular: - State planning policy for low density residential housing in rural area, including the application of Minister’s Direction No. 6 Rural Residential Development (1997). - The MSS and Local planning policies, including the policies applicable to Rutherglen on the supply and demand of land for housing. - The process adopted to determine these matters. The suitability of the subject land for low density residential use, including: - Traffic and road infrastructure. - Utility services. - Drainage. - Soil conditions. - Other concerns raised by Submitters.
The next section of this report addresses the strategic considerations identified by the Panel.
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6 STRATEGIC CONSIDERATIONS
6.1 INTRODUCTION A primary objective of State planning policy is to provide for the fair, orderly, economic and sustainable use and development of land (S 4 of the Act). With respect to planning for urban settlement, the policies provide that planning authorities, such as Council, should plan to accommodate projected population growth over at least a 10-year period, taking account of opportunities for redevelopment and intensification of existing urban areas as well as the limits of land capability and natural hazards, environmental quality and the costs of providing infrastructure. In planning for urban growth, planning authorities should also encourage consolidation of existing urban areas while respecting neighbourhood character (Clause 14.01 of the Scheme).
With respect to proposals to increase the supply of rural residential land, Minister’s Direction No. 6 provides that: An amendment must not provide for rural residential use or development of land which would increase the supply of rural residential land to more than that required to meet a 10 year demand for rural residential lots (including vacant lots in the existing supply), based on annual building approvals over at least the past five years or other suitable basis.
This section of the report outlines the planning history of the land and the process adopted by Council. It also considers strategic considerations, in particular the application of State planning policy, including the Minister’s Direction No. 6 Rural Residential Development (1997). It also considers the MSS and Local planing policies, including the policies applicable to Rutherglen that relate to the supply and demand of land for housing, the location and possible extension to the town boundary or urban edge of Rutherglen. This section addresses the following questions: Has Minister’s Direction No. 6 been complied with? Does the research by Habitat Planning (in its letter of 10 September 2003) satisfy the requirement in the Scheme for a “comprehensive review of residential land” in Rutherglen?
First, the planning history of the land, and the process adopted by Council to consider the issue.
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6.2 PLANNING HISTORY OF THE LAND This is the second time the proposal has been considered by a Panel. This section is an overview of the planning history of the subject land and related issues, as it was explained to the Panel:
July 1995 – Indigo Shire Planning Scheme Review Draft Overview and Issues Paper prepared for community consultation by TBA Planners. The subject land was shown as vacant on an attached plan.
February/March 1996 – Draft Land Use Strategy Plan, Policy Framework and Draft Planning Scheme informally exhibited. Council advised the Panel no comments were received about proposed Low Density Residential Zone in Nash’s Road.
September to November 1996 – Draft Indigo Planning Scheme exhibited. For Rutherglen, Appendix B of the draft document states: Promote and support a compact urban form which fully utilises existing vacant residential areas and identifies peripheral urban growth areas. Prepare outline development plans to better utilise existing urban infrastructure and provide for resubdivision of low density areas where they are supported with full services including sewerage and stormwater drainage. No further extension of the township area until the future land supply is reduced to about ten years from the current level of about 16 years. New conventional density residential growth to be supported to the north of the township with lower density residential generally supported to the south. … (Paragraph 11.6.2.2, page 19)
Another section of the Appendix is Indigo Shire – Policies Policy Context – Scene Setting. This section states (from page 27): It is planning policy to recognise and give consideration to the following matters. Settlements Future urban development in each of the Shire’s towns must be based on the provision of quality infrastructure, minimisation of damage to water catchments, maintenance of water quality, effective handling of storm water and effluent treatment. New residential and urban development is to be consolidated in towns with the delineation of a hard urban edge to minimise conflicts between urban and rural land uses. All new urban development is to be serviced with reticulated water, sewerage, power, stormwater and sealed roads. A plan was included that designates part of the subject land as Low Density Residential Zone. Council advised the Panel five submissions related to Nash’s Road.
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June/July 1997 – The draft Indigo Planning Scheme was placed on exhibition. Clause 21.11- 2.2 of the local provisions includes the following Strategic Objectives for Rutherglen: No further extension of the township area until the current land supply level of 16 years is reduced to 10 years. New conventional density residential growth to be supported to the north of the township with lower density residential generally supported to the south and east. (Further reference to Clause 21.11-2 is noted below at May 1998)
Part of the subject land is included in a Strategic Issues and Directions plan and is designated “Prepare Development Plans for Low Density Residential Zone”.
The local provision includes Indigo Shire – Policies Policy Context – Scene Setting. It states “It is planning policy to recognise and give consideration to the following matters.” The dot points identified above in the Appendix B document (dated 1996) are included under the heading Settlement & Infrastructure.
A plan was included designating part of the subject land as Low Density Residential Zone.
Three submissions refer to Nash’s Road.
February 1998 – Council submission to the Panel and Advisory Committee. The extract provided to the Panel does not include a reference to the subject land.
May 1998 – The report by the Panel and Advisory Committee appointed to evaluate the new format Indigo Planning Scheme included reference to a proposal to rezone land on the east side of Nash’s Road from Rural to Low Density Residential Zone. According to the report, Council advised the Panel and Advisory Committee the rezoning was included at the request of the owner of the land, and Council recommended the land be rezoned to Low Density Residential Zone. The report includes Council’s comment: … The proposed extent of Low Density Residential Zoned land may present an over supply of such land, however it establishes a long term boundary between residential land and agricultural land, providing greater long term certainty for all parties. … (page 36)
The Panel and Advisory Committee stated “there is no strategic justification for the rezoning” and recommended the land should retain its existing rural zoning.
The Panel and Advisory Committee also recommended Council should: undertake a review of its strategic plan for the town of Rutherglen. … Any proposed rezonings as a result of the review should be the subject of a separate amendment. (page 92)
The Panel and Advisory Committee made the following reference to Development Plan Overlays (an element of this Amendment): The Council also proposes to include in clause 21.11-2 (now 21.10-2) an additional provision limiting lot yield in the LDRZ and RLZ on the periphery of some towns to that of existing Crown allotment patterns. The intention is to include the limit in schedules to the relevant Development Plan Overlays. This provision was not included in the exhibited scheme and has not subsequently been the subject of public consultation.
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The Panel recommends that if Council wishes to include the proposed limits on lot yields in some LDRZ and RLZ areas, it should proceed by way of a separate amendment. (page 11)
January 1999 – Indigo Planning Scheme commenced. The Local provision on Rutherglen (Clause 21.04-1-2 of September 2001) with respect to the matters noted above, includes the following:
Overview, includes the following statement: Based on current rates of development, a land supply of less than 15 years has been set aside for residential development in Rutherglen.
Objectives, include: To prevent urban expansion pending a comprehensive review of residential demand.
Strategies, include: No further expansion of any residential zones pending a comprehensive review of residential demand.
The subject land is not specifically identified in the Rutherglen Strategic map (see Figure 8). The map identifies the boundary of the “Urban Edge 16 Years Land Supply”. The subject land is located outside of this boundary.
2002 (prior to application being lodged) – Council met with local Real Estate Agents across the Shire to discuss the Planning Scheme. Council advised the Panel that Agents reported unsatisfied demand for rural residential land on the eastern side of Rutherglen. Council conducted a land use survey of all land zoned LDRZ in the north-east sector of Rutherglen, and concluded there is very little development potential within this existing zone and the MSS should be reviewed “about the overall supply scenario” to alter Clause 21.04-1-2 at a subsequent broad scale Review Amendment.
July 2002 – Habitat Planning requested the subject land be rezoned from RUZ to LDRZ.
September 2002 – Council agreed to prepare and exhibit the Amendment.
2 October 2002 – Department of Infrastructure advised Council: … Clearly in our letter of the 5 November 2001 we noted the need to undertake a comprehensive review of the residential needs prior to any further rezoning as articulated in the Indigo Planning Scheme MSS. This has not happened. Ministerial Direction No 6 clearly requires that reticulated sewerage be installed if it is available and where it cannot be serviced, the EPA is to provide written approval to the proposal. The EPA’s letter clearly states their preference for a reticulated sewerage system. The percolation test attached with the report does not comply with the EPA Septic Code of Practice as it only tests a small area of the site refer to Table 3.1 and Figure 1.3 of the Code. The supply and demand requirements addressed in the report are in direct conflict with the 4D Form UDF report for Rutherglen. Page 3 of the 4D report states “the zoning Map demonstrates that there is still a good supply of residential land beyond the current established and fringe township areas in the prime Residential Zone (RIZ) and, particularly, Low Density Residential Zone (LDRZ). Further zoning for residential
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purposes is therefore not necessary in the short term.” This further emphasises the need for a comprehensive review of residential needs prior to any further rezoning. Based on the above and the need for any amendment to address the Council’s MSS, Local Planning Policies and Ministerial Direction No 6, I am unable to support this amendment in its present form. I would strongly suggest that the residential review be undertaken. The recommendation of this report would determine the progress of this Amendment. I would bring to attention that the Department has recently refused an Amendment based on the lack of a Strategic Residential report. …
October 2002 – Council advised the Department it “undertakes not to progress the Amendment past the exhibition stage pending the preparation of a supplementary report to address residential demand within Rutherglen.”
October – November 2002 – Council exhibited Amendment C15.
February 2003 – Council adopted the Rutherglen Urban Design Framework (February 2003) report, prepared by 4D Form Pty Ltd Architecture and Urbanism, RBA Architects and Conservation Consultants Pty Ltd, and O’Neil Pollock and Associates Pty Ltd. The final adopted report in the section containing the Urban Design Framework Plan, states in the Rutherglen profile of the Vision Plan: There is scope for substantial residential growth within the established township by consolidation. There is also demand for rural living opportunities associated with Rutherglen. (page 29)
With respect to future developments, the Vision Plan states: Residential development should primarily occur within or adjacent to the established built area, on land already zoned for residential use. (page 29)
The development concept section of the framework plan includes the following key proposed development principles for Rutherglen: To direct new residential development primarily as infill to existing residential areas and within the boundary of the existing township. To allow opportunities for semi-rural living at the township fringe, but within the proposed township boundaries only and considering compatibility with adjoining agricultural uses. To contain all township growth within the proposed township boundary. (page 31)
The report contains a plan Rutherglen Urban Design Framework which shows Nash’s Road as the proposed north-east township boundary. The Panel has included this plan in Figure 9 and notes the Nash’s Road boundary coincides with the “Urban Edge” on the Rutherglen Strategic map in Clause 21.04-1-2 of the scheme (see Figure 8).
The report also includes draft proposed amendments to the Indigo Planning Scheme. The Town Growth and Development Strategies (to amend Clause 21.04-1-2) include the following strategies for Rutherglen: To direct new residential development primarily as infill to existing residential areas and within the boundary of the existing township. (Refer: Rutherglen Town Structure Plan).
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To allow opportunities for semi-rural living at the township fringe, but within the township boundary only and considering the compatibility with adjoining agricultural uses. (Refer: Rutherglen Town Structure Plan) Strongly discourage any further expansion of any residential zones pending a comprehensive review of residential demand. (Appendix 8).
February 2003 – Council released the 3 Year Review of the Planning Scheme. Council advised the Panel the report: highlighted a need for an overall edit of clauses 21.01 – 21.04 of the MSS into a more succinct and precise component of the Planning Scheme. Apart from removing unnecessary “padding” within the MSS such an edit will also afford an opportunity to update and review the overview, issues, objectives and strategies so as to reflect more current circumstances. It was proposed that this subsequent amendment would also provide a suitable opportunity to “tidy up” the Rutherglen section The timing of such review was scheduled to occur during the 2004 strategic planning work program. Council provided the Panel with a “preliminary redrafted version of Clause 21.04-1-2 for possible consideration”. Council advised the Panel it had been prepared “to simply foreshadow a possible re-wording of the clause” and had not been exhibited.
June 2003 – Council adopted its 2003/2006 Corporate Plan, which includes the following actions for 2003/04: Undertake feasibility studies into development of further residential and rural residential land availability across the Shire Encourage development and release of residential land by private developers Review residential use zones in Council’s Planning Scheme (page 12).
4 July 2003 – The Department of Sustainability and Environment advised Habitat Planning of the requirements in the scheme, the background report of the Panel and Advisory Committee, and concludes: I would strongly advise you that any strategic report must consider the full impact of residential demands in the Rutherglen Township. This will enable the Council to review residential growth patterns for its future expansion including the Nash’s Road properties.
The Panel notes the statement of the Department confirming the obligation of Council to review residential growth patterns, following the receipt of the strategic report.
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Figure 9: Development Framework Map for Rutherglen Showing Proposed Township Boundary (Source: Rutherglen Urban Design Framework, February 2003)
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21 July 2003 – Council advised Habitat Planning of the following ‘Scope of Works’ necessary to satisfy the requirements of the scheme: Scope of Works The aim of this supplementary report is to satisfy the requirements of 21.04-1-2 relating to constraint on the expansion of residential zones within Rutherglen pending a comprehensive review of residential demand. Having regard to this aim the following should be included: Detailed review of the existing residential demand for all residential zones in Rutherglen, but with particular focus on land within the LDR Zone; Detailed analysis of the supply situation for all residential land including: - a review of residential growth patterns since the introduction of the Indigo Planning Scheme; - clarification of the different market segments; - vacant land survey of all existing LDRZ land in Rutherglen; - analysis of the opportunities and constraints within land already zoned LDRZ;.
Justification of the need for rezoning this land from Rural to LDRZ based on the above analysis. The Panel notes Council’s advice that the additional work is required “pending” a comprehensive review of residential demand. Thus it appears it is still Council’s intention to conduct a comprehensive review of residential demand (as also listed in its Corporate Plan).
September 2003 – Habitat Planning submitted a letter as its ‘supplementary report’ to address the requirements in the MSS. Council circulated a copy of the letter to all Submitters.
October 2003 – Council considered eight submissions and agreed to ask the Minister to appoint a Panel.
6.3 EVALUATION
This section of the report evaluates the work undertaken to satisfy Minister’s Direction No. 6 and Council’s MSS that requires a comprehensive review.
It will be recalled land should only be zoned for rural living or rural residential development where it: Is located close to existing towns and urban centres, but not in areas that would be required for fully serviced urban development Could be supplied with electricity and water and good quality road access Would not encroach on high quality productive agricultural land Would not adversely impact on waterways or other natural resources Would not increase the supply of rural residential land to more than that required to meet a 10-year demand for rural residential lots (including vacant lots in the existing supply).
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There are also two procedural requirements: The Council must comply with Guidelines for Rural Residential Development, and include in the exhibited Explanatory Report, a report showing how the amendment complies with the Guidelines. The Guidelines require the provision of certain information and analysis. The Council must also undertake a comprehensive review of residential demand.
The Panel believes these requirements seek to: Minimise the adverse impact of the release additional land. Secure orderly planning. Maintain stable and accountable planning.
It seems clear the comprehensive review should precede an amendment. This would ensure Council considers market needs and, if additional land is to be rezoned, then evaluates all the available land so the most suitable allotments are released for subdivision. The intention was that any proposed rezoning as a result of the review would be the subject of a separate amendment (see page 92 of the Report of the Panel and Advisory Committee on the Indigo New Format Planning Scheme, May 1998).
One of the tasks of the Panel is to evaluate whether the Amendment and supporting documentation complies with the Guidelines and that a comprehensive review of residential demand has been undertaken. The Panel’s attention was drawn to two documents which Council said satisfied these two requirements, the report by Habitat Planning of July 2002 attached to the exhibited Explanatory Report, and the letter by Habitat Planning of 10 September 2003 circulated to the Submitters.
The Panel read the report prepared by Habitat Planning and notes with the exception of seeking comments or consulting with peak interest groups, all the information required by the Guidelines is included. The Panel has noted elsewhere in this report the Department’s comment the percolation test did not comply with the Septic Tank Code of Practice.
The supply and demand section of the Guidelines is important. The Guidelines require an assessment of the supply and demand for rural residential lots. Significantly, the Guidelines provide that: An amendment must not provide for rural residential use or development of land which would increase the supply of rural residential land to more than that required to meet a 10 year demand for rural residential lots (including vacant lots in the existing supply), based on annual building approvals over at least the past five years or other suitable basis.
This is not satisfactorily addressed in the report and there is insufficient information and analysis on trends in building approvals. In this regard the Panel would have expected the supply and demand section to include sector or estate analysis, including information on: Total area of the sector or estate Total subdivided area Total unsubdivided area Number of existing lots Number of lots fully subdivided
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Number of lots available for subdivision Number of lots without dwelling development Number of potential lots available if fully subdivided (including an accounting for roads and open space requirements) Potential number of additional dwellings Existing other developments Building dwellings (by zone) over past five years Actual dwellings approved (by zone) over past five years. The release of additional land for housing can be controversial because the supply and location of new land for housing can impact on the amenity of other owners, change the value of land and the priority and distribution of public services. It is for those reasons Council’s Planning Scheme includes information about its plans for future housing.
One of the strategies in the Settlement and Infrastructure section of the Indigo Planning Scheme states it is one of Council’s strategies to prevent the extension of residential zones until the current land supply levels within each town is reduced to ten years.
The Rutherglen section of the Scheme states that supply of less than 15 years has been set aside for residential development (although the Strategic Map in the Scheme says there is a 16 years land supply). The Scheme, in the form of the map also shows the urban edge of the town and notes the need to prepare development plans for land zoned Low Density Residential Zone. Council, through the scheme, has established the clear expectation there will be no further expansion of any residential zones pending a comprehensive review of residential demand. Although Council has facilitated discussion on the release of additional land, including the possible extension of Rutherglen’s town boundaries, during the 3 Year Review of the Scheme and the development of the Rutherglen Urban Design Framework (both during 2003), its position on these two crucial issues has remained consistent. That is, the boundary of Rutherglen remains the urban edge drawn on the Rutherglen Strategic Map, and it still affirms the need to maintain existing supply, pending the release of resources to undertake a comprehensive review. If a review was undertaken, the Panel would expect it would be conducted by Council officers, or an independent consultant without any actual or perceived conflict of interest in the outcome. In that way Council would be able to ensure the review addressed the matters Council believed should be included, that is, its comprehensiveness. Further, Council would be satisfied the review was conducted in a transparent and accountable manner. That is, independently and involving formal consultation with landowners, authorities, development interests and advisers, relevant peak bodies, and importantly, the general public. The Panel was therefore surprised when Council submitted for consideration a series of proposed changes to the MSS that included the removal of the need for a comprehensive review before additional LDRZ is provided.
The Panel notes Habitat Planning’s letter of 10 September 2003 addresses Council’s scope of work for the comprehensive review of residential demand. Habitat Planning analysed four areas of LDRZ land in the ‘supply’ section of the letter but not to the level of comparable detail the Panel would define as “comprehensive”. There was no analysis of appropriate land that could be considered for rezoning. The availability of township residential lots in the Muscat, Cooper Court and Tower Hill estates was obtained from a Real Estate Agent.
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The ‘demand’ analysis was not comprehensive and was based on the sales of existing residential property (houses and vacant lots) from 1991 to 2002; building approvals over the past three financial years; and sales in 2002 and up to 30 August 2003 of residential, rural residential, rural, and industrial properties from a Real Estate Agent. There was no economic analysis of the local housing market or any prediction of the amount of new land that might be needed for different housing uses.
The Panel belives a ‘comprehensive review’ would include a comparative review of competing options, with each option or area of land including the information required in the Guidelines for Rural Residential Development. In addition, such a review would contain an analysis of: Overall demand for housing, including: - Projected population growth - Changes in household formation - Changes in demand for different styles of accommodation (allotment size, town living, rural living etc) - Economic development (commencing, planned, anticipated). Supply of appropriately zoned land, including: - Limits on the attractiveness and marketability of existing underdeveloped residential areas - Landowner interest in developing residentially zoned land - Opportunities to redevelop and intensify existing residentially zoned land - Opportunities to encourage consolidation of existing urban areas whilst respecting neighbourhood character. - Opportunities to encourage higher density and mixed use development near public transport routes. Availability of appropriate land that could be considered to be rezoned to a residential use: - Limits of land capability - Protection of agricultural land - Natural hazards - Environmental quality - Costs of providing infrastructure - Consistency with plans of service authorities and Council’s planning strategy.
The review would address site suitability issues such as those considered in Section 7 of this report.
The Panel would expect a comprehensive review to conclude with a report that compared all the competing options. The report would assist Council to decide whether or not it wished to increase the supply of land, and to enable it to select the best available option having regard to all the necessary considerations. Council would then be in a position to proceed with an amendment that may or may not include the subject land, as well as other planning matters.
The Panel does not agree with the proposition argued by Council the Amendment is a minor matter that does not warrant a comprehensive review of the entire urban demand situation.
INDIGO PLANNING SCHEME AMENDMENT C15 PANEL REPORT: APRIL 2004 Page 37 6.4 STRATEGIC CONSIDERATIONS CONCLUSION
In conclusion, the Panel finds the absence of the comprehensive review is fatal to a considered evaluation of this Amendment by Council and this Panel.
The next section of this report addresses the suitability of the land for low density residential use and development.
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7 SUITABILITY OF THE LAND
7.1 INTRODUCTION
This section of the report addresses the fitness of the land for low density residential use and development, addressing traffic and road infrastructure, drainage, utility services, soil conditions and other concerns raised by submitters.
7.2 TRAFFIC AND ROAD INFRASTRUCTURE
Submitters raised concerns about traffic, access and use of Nash’s Road, largely: Increased traffic volumes generated by the proposed development of the subject land. Impacts on the ability of residents to use Nash’s Road safely for walking, jogging, cycling and horse-riding, potentially to the detriment of community health. Potential for a sealed Nash’s Road to attract traffic wishing to bypass Rutherglen town centre. Effects on the safety of intersections to the north and south of the subject land.
The Panel accepts the access arrangements for the development have not been finalised, although the development is expected to mirror that on the western side of Nash’s Road as expressed in Council’s submission: It is proposed that subdivision of large lots will complement the development pattern on the opposite side of Nash’s Road, with access to any proposed lots provided from Nash’s Road and Campbell Street.
Vehicle Access
The subject land is about 1.6 kilometres from the centre of Rutherglen township and is accessible from Nash’s Road and Campbell Street. Council’s submission said: Council has no traffic count data for total movements in the section of Nash’s Road adjacent to the subject land, however based on the average of 8 - 10 vehicle movements per day related to a dwelling, it would be anticipated that existing levels would be in the order of up to 80 vehicles per day to service the existing development, not allowing for any additional through traffic. North of Campbell Street traffic count data dating from May 2000 indicates approximately 120 vehicle movements per day. Council's Assets Engineer advises that Nash’s Road can easily accommodate additional traffic generated by the proposed Amendment. The carriageway width and design dimensions are sufficient to deal with likely traffic volumes. It is also likely that as a result of development of the subject land that the road would also be sealed to ensure amenity was not affected by increased dust or uncontrolled drainage runoff. Concerns regarding the intersection of Nash’s Road with the Murray Valley Highway would be adequately addressed by the works as identified by VicRoads in their letter dated 19 January 2004.
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Habitat Planning’s submission said: The existing road access to the subject land is excellent and in good condition. Campbell Street along the northern boundary is sealed and Nash’s Road along the western boundary is unsealed but is constructed to an all-weather standard. The traffic generated by 20 to 30 rural residential lots can be accommodated comfortably within this road network.
Mr Horsfall highlighted the flexibility in possible subdivisional layouts for the subject land and therefore in access vehicular arrangements from Nash’s Road and Campbell Street.
The Panel noted most residential streets within and on the edge of Rutherglen are sealed. Sealed roads have inherent advantages relating mainly to less dust and fewer road surface defects, such as corrugations, unlike Nash’s Road.
The Panel notes Schedule 3 to Council’s Development Plan Overlay proposed for the subject land says all residential development must be serviced with sealed roads. The Schedule also says the Development Plan must “provide suitable linkages between the site and low density residential and urban areas for road, public, bicycle and pedestrian transport facilities”.
Other Users
Several Submitters said Nash’s Road was popular for healthy activities such as jogging, walking and horse-riding. They argued the proposed rezoning and development would reduce amenity and choice and therefore would reduce passive community health improvement opportunities.
Council’s submissions did not directly address this matter. However, in its written submission about Lifestyle issues, which focused on arguments about existing uninterrupted views across a rural landscape Council said: It is contended that the existing lifestyle and amenity of the lots located along the western side of Nash’s Road would not be so adversely affected to dramatically alter the status quo.
Nash’s Road Upgrade
Some Submitters commented on the condition of the existing road and questioned its ability to remain trafficable all year, particularly at times of high rainfall and stormwater run-off.
Mr Buckingham said he paved Nash’s Road with a 75mm layer of crushed rock when subdividing the land along its western edge in 1977.
The Panel understands Council would specify all relevant elements of the upgraded road infrastructure (pavement width and depth, surface drainage, etc).
The Panel notes again the requirement under Schedule 3 to Council’s Development Plan Overlay for all residential development to be serviced with sealed roads.
Mr Horsfall reiterated Mr Buckingham’s commitment to bear any costs associated with the required provision or upgrade of road and services infrastructure.
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Town Bypass
Several submissions referred to the potential sources of traffic that might be attracted to an improved Nash’s Road and along Barkley Street to bypass the town centre. One highlighted the daily trips (around 100) between Chiltern and Uncle Toby’s at Wahgunyah. Others focused on general truck traffic using the Murray Valley Highway. Submitters also raised the matter of increased speed of traffic along a sealed Nash’s Road, particularly if it is used as part of a bypass of the town centre.
MSS Clause 21.04-1-2 Rutherglen includes the strategy: Liaise with VicRoads on the development of a heavy vehicle by pass around the commercial area of the township.
Council said VicRoads currently considers the bypass is an issue “that may need to be addressed in time”.
Some submissions suggested a comprehensive study of traffic movements around Rutherglen was necessary. The Rutherglen Urban Design Framework, February 2003 also mentioned the desirability of an overall traffic management study for the town.
Intersection Safety
Submitters raised concerns about impacts of extra Nash’s Road traffic on current safety issues in two key intersection areas: Jones Road/Carlyle Road/Murray Valley Highway intersection – limited visibility towards the eastern and western highway approaches from traffic entering the highway from Carlyle Road. Nash’s Road/Campbell Street and Barkley Street./Campbell Street – eastbound vehicles drifting into the westbound lane of the curved section of Campbell Street between Barkley Street and Nash’s Road.
Council said it has no adverse accident or safety records for these areas and suggested the safety claims cannot be substantiated. It added neither of the intersection areas is an Accident Blackspot. In response to questions about linemarking and other minor treatments to address such situations, Council said it deals with these on a needs basis when it is made aware of their existence by residents and others.
Mr Buckingham in his submission said traffic conditions on Nash’s Road and Campbell Street are likely to improve if development proceeds as the need for regular stock movements to and from the subject land would cease.
The Panel noted VicRoads has not commented on any safety issues at the Jones Road/Carlyle Road/Murray Valley Highway intersection.
Panel Findings
Council has not evaluated traffic issues in any comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
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If the subdivision and development proceeds it would be preferable to upgrade Nash’s Road, including sealing the road surface. Other consequent road and intersection works in the area would need to comply with the requirements for LDRZ development and subdivisions and the relevant authorities, principally Council and VicRoads.
The Panel believes it is appropriate for any required intersection and other improvements to be identified and designed during detailed preparation of a development plan and subdivision proposals. The Panel notes VicRoads’ requirements for the Carlyle Road/Murray Valley Highway intersection are to be shown on any Development Plan.
The Panel notes there is no immediate prospect of resolving the need for a northern bypass route of Rutherglen’s town centre. Meanwhile, any upgrading of Nash’s Road may need to include traffic management treatments as a disincentive to through traffic seeking to use Nash’s Road and probably Barkley Street to bypass Rutherglen’s town centre.
Some immediate road and intersection improvements may be warranted to minimise any potential adverse safety and amenity impacts on roads serving existing and proposed residential development. In particular, these include improvements to sight distance, linemarking and signage at the Jones Road/Carlyle Road/Murray Valley Highway intersection and around the Campbell Street/Nash’s Road and Campbell Street/Barkley Street intersections. These issues could be addressed with good design.
The Panel believes with good integrated design of all elements of an upgraded Nash’s Road as part of developing the subject land, one or both verges should be suitable for non- motorised uses such as walking, jogging, cycling and horse-riding.
If the proposal proceeds, specific traffic and road requirements for the proposal would be included in the Development Plan prepared under the proposed Development Plan Overlay for the site.
7.3 DRAINAGE Submitters raised several concerns about stormwater run-off and drainage, including: Trafficablity of Nash’s Road. Concentration and quality of overland flows. Fragmented approach to subdivision and development with adverse impacts on providing drainage systems.
Refer also to Section 4.2.4.
Council’s Explanatory Report states: The land is undulating, sloping from west to east with the generally higher grade slopes being located at the western end of the subject land. The land has extensive views towards the east, north and south, especially east towards the Murray River floodplain and beyond to the hills surrounding Wodonga. Overland drainage bisects the lot from the west to the east, with all surface drainage directed towards the Gooramadda Road. The characteristics of the flow are such that it is not regarded as a watercourse or waterway. The land has been cleared of all major strands of vegetation, except for some scattered stands of tress across the property, which is the prevailing pattern in the area.
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Mr Buckingham described in more detail the stormwater run-off characteristics and pathways towards and alongside Gooramadda Road. He was not aware of any floodwater inundation of the subject land. To support this he drew attention to the stands of Yellow Box gum trees in the area – a species he said needs well-drained land and will not grow in waterlogged soils.
Council added: Council's Assets Engineer advises that should the Amendment succeed and rural residential subdivision occur that at that time of any future subdivision application, appropriate attention would be given to ensure adequate conditions were placed on any permit relating to requirements of stormwater runoff and drainage. It should be noted by the Panel that Council officers are well aware of the drainage patterns in the area and would work with the developer to ensure that such issues are adequately addressed through appropriate design.
Habitat Planning’s submission said: At the density of development envisaged by the LDRZ, there is the opportunity to collect and treat stormwater prior to discharge into the broader catchment. This can be achieved through the use of grass swales and stormwater retention devices.
Goulburn-Murray Water (G-MW) said in its response dated 16 November 2001 to Habitat Planning its interest is with surface water and ground water quality, use and disposal. It set out its requirements about water quality, building clearances of 300mm above 1 in 100-year or maximum known flood levels and 30-metre wide buffer strips along natural drainage courses.
Goulburn-Murray Water added: Understanding that the documentation proposes to rezone land for Low-Density residential purposes, G-MW would encourage the layout of roads and subdivision designs (including drainage) to incorporate stormwater control principles outlined in Best Practice Environmental Management Guidelines for Urban Stormwater (CSIRO, 1999). It should be noted that any application should include a Stormwater Management Plan using techniques such as swales alongside tracks/ roads, cut-off drains, flow dissipaters and water sensitive landscaping (possibly including a pond) as appropriate. As any future development will be connected to reticulated sewerage and water services, G-MW will not require a Land Capability Assessment (LCA) of the subject land however, should such a proposal not be connected to these services, a LCA would need to be submitted in support any application to rezone the land.
The Environment Protection Authority also commented on drainage matters in its letter dated 23 October 2002: To minimise the environmental impact associated with stormwater run-off, all stormwater management should be carried out in accordance with EPA Publication Urban Stormwater - Best Practice Environmental Management Guidelines.
North East Catchment Management Authority in its response dated 21 November 2001 to Habitat Planning indicated “from a floodplain management point of view there are no objections to the proposal provided that the impact on local drainage will be assessed carefully”.
The Panel noted the stormwater outfall from the subject land to the east would be across land covered by Council’s Schedule 3 to Environmental Significance Overlay (ESO3) in the Indigo
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Planning Scheme. If the proposal proceeds, the stormwater outfall would need to meet the requirements of ESO3. See also Section 3.2.4.
The Panel saw no evidence of Council having evaluated drainage issues in any comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
The Panel believes present stormwater drainage arrangements for the subject land are not unusual and are manageable as part of developing a site. Typically this might include providing kerbing and channelling along one or both sides of Nash’s Road, similar to other residential streets in Rutherglen.
Suitable high quality drainage schemes can be designed for the subject land, consistent with published CSIRO and EPA guidelines and to meet the requirements of Schedule 3 to the Environmental Significance Overlay, to manage the stormwater run-off. There is potential for reduced off-site flows through storage and recycling facilities, and to treat any stormwater discharged off-site.
The Panel notes Council’s comments about its aims for reducing stormwater run-off from developed land through accepted Environmentally Sustainable Development (ESD) principles.
The Panel notes comments made for the Proponent about stormwater collection and treatment before any discharge beyond the site boundaries.
Specific drainage requirements for the proposal, including application of ESD principles to reduce run-off from the site, would be included in the Development Plan prepared under the proposed Development Plan Overlay for the site, if the proposal proceeds.
7.4 UTILITY SERVICES
Submitters raised several physical infrastructure issues about utility service provisions, particularly the desirability of connecting to the reticulated sewerage system. Refer also to Section 4.2.4.
Drainage
Section 7.3 covers the matter of drainage.
Water Supply & Sewerage
The principal services infrastructure issues relate to the availablity of reticulated water supply and sewerage and obligations to connect.
North East Water in its letter dated 3 October 2002 said: Land capability assessment has not been carried out for the area covered by the proposed amendment. There is a sewerage pumping station (Jones Street) near the Hopetoun/Howlong Road intersection. There is a 150 mm diameter AC water main to service a few lots along Nash’s Road. This main is to be upgraded to service the area under the proposed amendment.
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Any costs associated with the upgrade/augmentation works to utilise the services within close proximity to the area under the proposed amendment should be borne by the developers.
The Environment Protection Authority also commented on sewerage matters in its letter dated 23 October 2002: Council should be aware that it has considerable statutory responsibilities under the State environment protection policy – Waters of Victoria to ensure that new allotments are provided with sewerage at the time of subdivision. We are aware the township of Rutherglen is sewered, EPA would expect the proposed subdivision to be connected to sewer. Please advise EPA if this is not the case.
The Panel notes the Department of Infrastructure in an e-mail dated 1 October 2002 to Council acknowledged the EPA's clear preference for the proposed subdivision to be sewered consistent with Minister’s Direction No. 6 Rural Residential Development. The Department added in the unlikely event the site cannot be serviced with reticulated sewerage the percolation test for the site did not comply with EPA's Septic Code of Practice as it only tested a small area of the site.
The Explanatory Report says reticulated potable water is available to the development, and Council’s submission says “all future lots would be connected to reticulated water and sewer”.
Habitat Planning’s submission says: The proponent of the amendment and developer of the land recognises the land will need to be connected to reticulated sewer if developed for rural residential purposes.
Mr Buckingam said in his submission “sewerage and water will be connected to the proposed development, should it proceed”.
Electricity & Telecommunications
On electricity and telecommunications services for the proposed development, Habitat Planning’s submission states despite follow-up correspondence no submissions were received from TXU or Telstra.
The Explanatory Report indicates electricity is available to the development.
Services Costs
The Panel notes Mr Buckingham’s commitment to bear any costs associated with the required provision or upgrade of road and services infrastructure.
Further discussion on the matter of developer and landowner contributions to costs is in Section 7.6.2.
Panel Findings
Council has not evaluated utility service issues in any comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
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No information was presented on infrastructure service priorities of the various authorities.
The Panel notes the commitment in principle by the Proponent to bear the necessary costs for utility services associated with the proposed subdivision of the subject land.
Specific utility service requirements for the proposal, including reticulated sewerage connections, would be included in the Development Plan prepared under the proposed Development Plan Overlay for the site, if the proposal proceeds.
7.5 SOIL CONDITIONS
This section deals with potential soil and ground water contamination, salinity and the quality of the soil for agricultural uses.
Contamination
At the Directions Hearing the Panel asked the Proponent for a submission about the history of use of the subject land and an opinion about any potential contamination.
Mr Nickson and Ms Taylor raised the matter of some sewage contamination during the 1980s behind their property on the western side of Nash’s Road.
Clause 15.06 of the SPPF considers soil contamination. It contains an objective: To ensure that potentially contaminated land is suitable for its intended future use and development, and that contaminated land is used safely.
This policy requires the careful management of contaminated soil and compliance with Minister’s Direction No. 1 Potentially Contaminated Land. See also Section 4.3.
The Panel sought information about use of the subject land to consider whether the policy objective and requirements of Ministerial Direction No. 1 were being satisfied.
Mr Buckingham said in the time (since 1968) he has owned the land it has only been used for grazing and growing of crops. He is not aware of any fuel or chemical storage facilities having existed on the site, nor of the use of the site for potato farming, with potential contamination of the soil from application of dieldren. Before 1968 he understands the land was used mainly for light grazing.
Council did not identify Soil Contamination as a relevant State policy in its overview of major strategic issues and in its discussion about the relevant aspects of the SPPF in supporting the Amendment. Nor did Council provide any definitive information about potential contamination as a forerunner to its possible obligations set out in Ministerial Direction No. 1.
The Environment Protection Authority also commented on contamination matters in its letter dated 23 October 2002: In addition, the planning authority must be satisfied that the subject land is not contaminated by previous land uses, as outlined by Ministerial Directive No.1 under section 12(2)(a) of the Planning and Environment Act 1987. This should include contamination by chemicals such a pesticides, fertilisers and herbicides used on agricultural/farming land.
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We advise that investigation for contamination of the land be undertaken in accordance with the Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites published by the ANZECC and NHMRC.
Council has not evaluated potential soil contamination in any comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
The Panel was advised Council’s Health Inspector who could not find a record of the sewage or septic tank spill from the residential property behind the property owned by Mr Nickson and Ms Taylor. Therefore Council was not able to comment on the likelihood of contamination.
No evidence presented about the site’s history and land use would suggest any soil or ground water contamination might exist. However, further investigation may be needed to meet the objective of SPPF Clause 15.06 and to satisfy Minister’s Direction No. 1.
Soil Quality for Agriculture
Several Submitters strongly believe the subject land should be retained for rural purposes as set out in the objectives of SPPF Clause 17.05 Agriculture. Refer also to Section 4.2.3.
The Explanatory Report says: The land quality of the subject land is identified as "average" in the work undertaken for the Albury-Wodonga Regional Planning Strategy (1991). Its low carrying capacity is reflected in the use of the land for the grazing of sheep.
Council reiterated the soil’s “average” classification and argued the proposed Low Density Residential zoning “will not be impacting upon high quality agricultural land”. Council said although the subject land is not regarded as “high quality” it may be good “farming land”.
Mr Horsfall commented: The rezoning of the subject land will lead to a permanent change in land use from agriculture to low density residential. However, the agricultural quality of the land combined with its location adjacent to non-agricultural land uses significantly weakens the argument that the land should be retained for agriculture. In terms of agricultural production, the subject land is neither "high quality" nor of "strategic significance in the local or regional context'. If this were the case there would be some expectation that these qualities would be recognised in the MSS and the land protected from non- agricultural use.
Mr Melville said the report for the Albury-Wodonga Regional Planning Strategy did not include land quality in Rutherglen Township. Council advised the study did extend beyond the Albury- Wodonga Region and the subject land is in the “average” category.
Council has not evaluated soil quality in any comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
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Based on conflicting views and evidence presented about the subject land’s soil quality for agricultural purposes, the Panel believes a more rigorous analysis would be necessary for any rezoning to LDRZ.
Salinity The (then) Department of Natural Resources and Environment (DNRE) raised the matter of addressing the gradual movement of salinity in the area.
The Panel notes DNRE’s letter dated 12 November 2002 which said: NRE has considered the amendment and has no objection to the Rezoning Proposal but would like to offer the following comments for your consideration. NRE has some concerns in regard to salinity in the locality. There are three salinity discharge sites within three kilometres of the subject land one being located on an adjacent property. There has been a significant effort by the adjacent land owner to ameliorate the progress of salinity at that site by establishing native vegetation. Three ground water bores are located along the road on the northern boundary of the subject land to study long term trends in the level of ground water in the locality.
Council did not address the issue in its submission and Mr Horsfall said: There is no physical evidence on the subject, although the (former) DNRE have indicated there is a salinity-monitoring hole on adjoining land.
While the proposed change from Rural to Low Density Residential would not change the risk of salinity any developments on the land may have an adverse effect. Any proposed development that would require a significant discharge of water to rural residential lots would need careful consideration.
Panel Findings
The Panel saw no evidence of a comprehensive evaluation of potential soil and ground water contamination, agricultural soil quality and salinity for other potential LDRZ sites in Rutherglen and believes a more rigorous analysis would be necessary for any rezoning of the subject land to LDRZ.
7.6 OTHER SITE ISSUES
7.6.1 IMPACT ON EXISTING RURAL VIEWS
Council suggested it is “plainly unreasonable for anyone to expect that land capable of development on the immediate fringe of an urban area would never be developed”. Further, Council’s submission said “the subject land is lower than the lots opposite and apart from the existence of new dwellings in the immediate foreground there would be no impact at all on the extensive rural views to the east”.
The Panel believes any development on the site would be unlikely to impact significantly on present rural views.
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7.6.2 POSSIBLE COST FLOW-ON IMPACTS
Council’s response to this issue says: This is an unsubstantiated concern. Costs relating to the provision of infrastructure directly associated with the proposed rezoning would be directly borne by the landowner/developer. There are also no proposals for construction schemes for roads or footpaths under the Local Government Act.
The Panel noted the Proponent’s commitment to bear any costs associated with necessary road upgrades and services infrastructure.
The Panel also notes other cost-sharing arrangements may be relevant for any works not directly attributable to the proposed development.
7.6.3 PERMIT CONDITION ENFORCEMENT
One Submitter expressed concern about the “failure of the Proponent to comply with other Planning Permit conditions in adjoining or nearby lands, and the failure of Council to enforce compliance”. The Submitter mentioned several examples which raised concerns about the adequacy of planning controls and their enforcement if development of the subject land proceeds.
The Panel notes the concern about Planning Permit condition enforcement and believes it is a matter for Council to consider.
The Panel believes the planning system can never be completely effective without visible, effective enforcement of permit conditions. Council may wish to consider conducting a compliance audit of a random sample of permits, and developing a protocol for dealing with complaints and documenting enforcement activities.
7.7 SITE SUITABILITY CONCLUSION
The Panel finds it cannot support the Amendment because Council has not evaluated site suitability issues in a comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
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8 STRATEGIC ASSESSMENT GUIDELINES
As part of its assessment of the Amendment, the Panel is required to assess it against the Strategic Assessment Guidelines contained in the General Practice Note on Strategic Assessment Guidelines for Planning Scheme Amendments. This section of the report is a broad assessment of the Amendment and brings together the work of the Panel, in the form of a ‘check list’.
The matters to be considered and the Panel’s response are as follows:
8.1 IS AN AMENDMENT REQUIRED? Yes, see Section 3.2 of this report.
8.2 STRATEGIC JUSTIFICATION
There is insufficient strategic support for the Amendment. See Section 6 of this report.
8.3 PLANNING AND ENVIRONMENT ACT
Does the Amendment adequately address environmental effects?
No, see Section 6.3 of this report.
Does the Amendment adequately address the relevant social and economic effects?
No, see Section 6.3 of this report.
Does the Amendment comply with the requirements of the Minister’s Direction on the form and content of Planning Schemes?
Yes.
Do any other Minister’s Directions apply to the Amendment? If so, have they been complied with?
Minister’s Direction No. 1 is discussed in Section 4.3 and Minister’s Direction No. 6 in Section 4.4 of this report.
Is the Amendment accompanied by all the information required by a Direction?
No.
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To ensure planning schemes further the objectives of planning in Victoria, planning authorities must take into account and give effect to the general principles and specific policies contained in the SPPF.
What aspects, if any, of the SPPF are relevant?
See Section 4 of this report.
Does the Amendment support or give effect to the SPPF?
No, see Section 4 of this report.
8.5 LOCAL PLANNING POLICY FRAMEWORK
8.5.1 MUNICIPAL STRATEGIC STATEMENT
How does the Amendment seek to implement and or support the MSS?
If the Amendment does not support or implement the MSS, are any changes to the MSS proposed or necessary?
No; see Section 4.5 of this report.
8.5.2 LOCAL PLANNING POLICY
What local planning policies will the Amendment affect or be affected by?
See Section 4.5 of this report.
8.6 ZONES, OVERLAYS AND SCHEDULES
In deciding the most appropriate VPP tool to best implement the strategic outcomes of an amendment, consideration should be given to the series of Planning Practice Notes that have been prepared on the use of the VPP. Practice Notes should be used where relevant to ensure consistency and best practice methodology in every amendment.
Does the Amendment use the most appropriate VPP tools?
Not applicable, as the Panel recommends the Amendment should be abandoned.
To what extent do local provisions adopt a performance-based approach?
Not applicable, as the Panel recommends the Amendment should be abandoned.
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What Planning Practice Notes are relevant?
Applying the Incorporated Plan and Development Plan Overlays.
Is the Amendment in accordance with any relevant Planning Practice Notes?
Not applicable, as the Panel recommends the Amendment should be abandoned.
8.7 REFERRAL AUTHORITIES
Does the Amendment contain new formal or informal referral requirements?
No.
8.8 OUTCOME OF THE AMENDMENT
What is the cumulative effect of this Amendment on the strategic directions of the planning scheme?
What is the cumulative effect of this Amendment and other amendments on the strategic directions of the planning scheme and on the useability and transparency of the planning scheme?
Are the Amendments and the desired outcomes clear?
Not applicable, as the Panel recommends the Amendment should be abandoned.
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9 CONCLUSIONS & RECOMMENDATION
9.1 CONCLUSIONS
The Panel has considered all the submissions referred to it and all the material presented at the hearings and concludes it cannot support the Amendment because: Council has not undertaken the required comprehensive review of residential demand. Council has not evaluated site suitability issues in a comparative review of other potential LDRZ sites in and around Rutherglen as suggested in the requirement to undertake a comprehensive review of residential demand, coupled with the work required to satisfy Minister’s Direction No. 6.
Council may wish to review the manner in it which it prepares planning scheme amendments.
Council may also wish to consider conducting a compliance audit of a random sample of permits, and developing a protocol for dealing with complaints and documenting enforcement activities.
9.2 RECOMMENDATION
Based on the reasons set out in this report, the Panel makes the following recommendation to the planning authority:
Amendment C15 to the Indigo Planning Scheme should be abandoned.
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A. LIST OF WRITTEN SUBMISSIONS
Public submissions: Mr David & Mrs Christine Baker (Submissions dated 9 November 2002 & 15 March 2004) Ms Heather Taylor & Mr Phillip Nickson (12 November 2002 & 15 March 2004) Ms Robyn Smith (13 November 2002 & 15 March 2004) Mr Gary & Ms Anita Arnold (13 November 2002 & 16 March 2004) Mr Stephen Jones (13 November 2002 & 16 March 2004) Mr Andrew & Mrs Barbara Melville (14 November 2002, 27 January 2004 & 16 March 2004) Mr Kenton & Mrs Tania Shaw (14 November 2002) Mrs Lynne & Mr Tony Hennessy (18 November 2002) Mr Mark Koop (12 December 2003)
Public Authority and Agency submissions: North East Water – Mr Les Ryan, Manager Strategy and Development (Letter dated 3 October 2002) Environment Protection Authority – Ms Tracy McLarty, North East Region (23 October 2002) Department of Natural Resources and Environment – Mr Tom Sloan, Senior Statutory Planner, Benalla (12 November 2002) VicRoads – Mr Bruce Sweet, Regional Manager North East (19 January 2004)
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B. DRAFT CLAUSE 21.04-1-2
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C. REFERENCE DOCUMENTS
4D Form Pty Ltd Architecture & Urbanism, Rutherglen Urban RBA Architects & Conservation Consultants Pty Ltd, and Framework Design O’Neil Pollock & Associates Pty Ltd (February 2003)
Indigo Shire Council (26 June 2003) Corporate Plan 2003/06
Planning Panels Victoria (May 1998) Indigo New Format Planning Scheme: Report of the Panel and Advisory Committee
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INDIGO PLANNING SCHEME AMENDMENT C15 PANEL REPORT: APRIL 2004