Master Plans are excellent planning tools to guide future rollouts for long-term projects. Frequently they are used with capital works projects, schools, green fields developments and larger scale tourism endeavours.
Master planning and its link with native vegetation protection arose within a resort development at Lake Nagambie, in northern Victoria. The convoluted planning process highlighted the importance of master planning approvals being processed in a clear and lawful manner so as to form a sound basis for the long-term planning of an area.
Kellehers Australia acted for two significant regional environmental groups concerned at proposed vegetation removal within a new stage of the Nagambie resort. These groups appealed to VCAT against a Notice of Determination by Strathbogie Shire Council to approve removal of 51 large established trees and other native vegetation within this stage.
Without consultation with the environmental groups and, apparently at developer request, the Minister called in the VCAT proceedings and referred the matter to a Priority Projects Standing Committee (PPSC) – this despite a constructive VCAT Compulsory Conference.
A key issue facing the PPSC – and thereafter the Minister – was the status of earlier Master Plan work and approvals.
Background
From 2008, the resort site was within a Comprehensive Development Zone – Schedule 1 (CDZ1) zone – a tailor-made zoning pursuant to the Strathbogie Planning Scheme (SPS). The purpose of CDZ1 PSP controls includes:
- To provide for the development of an integrated residential development comprising residential, commercial, tourism related and recreational facilities (currently known as the Lake Nagambie Resort), in a manner which achieves principles of environmental and sustainability including: …
- Ensuring protection of existing environmental water resources.
…
- Generally, in accordance with the Lake Nagambie Resort Master Plan. …
- To ensure that the development of the land does not detrimentally impact upon the amenity of the surrounding area including adjoining land and the shores/waters of Lake Nagambie.[i]
The controls needed to be applied consistently with State native vegetation removal policy and the Cl52.17 SPS native vegetation controls.
The amendment approving the CDZ1 also in Cl 1.0 to the Schedule to Cl 72.04 SBS specified the Lake Nagambie Resort Master Plan – 25028DD A1-001-Q (2007) as in Incorporated Document.
The CDZ1 controls required, prior to each stage, a series of plans and a Development Plan that complied with the Master Plan. Upon approval of a Development Plan and a Stage Plan, no permit was required for building or construction. Cl 4.0 of Schedule 1 to the CDZ1 provided for ‘Variations to Plans’, permitting approval of a variation to any plan or guideline, provided the variation:
- ‘Is generally in accordance with the Lake Nagambie Resort Master Plan;
- Does not adversely affect the interests of a government authority or utility service provider; and
- Does not cause an increase in material detriment to any person’.
Any variation request must set out in detail the proposed form of the plan or guideline variation.
Master Plans
Although a 2007 Lake Nagambie Resort Master Plan was approved in 2008, there existed a 2014 ‘updated’ Master Plan and the PPSC was provided, by the Permit Applicant, with ‘a copy of an approval letter for the ‘current’ Master Plan … which did not specify the mechanism by which that Master Plan had been approved‘ but simply stated:
‘Please find enclosed the endorsed (Master Plan) reference MP1_V5. This plan will now be referred to as the Lake Nagambie Resort Master Plan 25028DD A1-001-Q’.’[ii]
The PPSC expressed concern as to how the ‘current’ Master Plan, referred to in the letter, was approved without a Planning Scheme amendment
DELWP, in its referral comments to Council, had also expressed concern.
‘DELWP’s reading of the panel’s report from 2008 would also indicate that the changes to the master plan are not considered ‘generally in accordance with’ the original masterplan and it should have undergone a planning scheme amendment to enable those changes. This would have enabled DELWP to have provided comments to the changes and potentially have resolved many of the impacts to endangered vegetation in the process[iii].’
Call In and Priority Projects Committee
The Nagambie referral, the 11th to the Priority Projects Committee, was heard in March 2021. Kellehers Australia represented the environmental groups. Environmental, ecological, planning and economic planning evidence was presented.
In its Report dated 14 April 2021 (PPSC Report), the PPSC found, inter alia, that the 2014 Master Plan must be confirmed prior to the issue of any planning permit: to ensure that due process had been followed in its approval.[iv]’. It recommended[v] that the Minister commission DELWP to review the planning process for the introduction of the planning controls and associated endorsed/approved plans that related to the Estate, including confirmation of the status of the 2014 Master Plan and obtaining including a legal opinion if necessary.
The PPSC Report expressed concern at the lack of attention to environmental impacts, stating that it was very aware of the competing policy directions in relation to the proposal but considered that not enough had been done in relation to the SPS environmental and siting and design policies.[vi]
Subject to a satisfactory outcome regarding these matters, and concerns it expressed as to cultural heritage management, it recommended that a permit issue for native vegetation removal, subject to retention of additional large trees in patches.
Strangely, although the Committee’s Report was prepared promptly after the hearing, it was not released until late in 2021. Nevertheless, in the interim, DELWP appears to have given it close internal consideration. Ultimately, the Minister recommended to the Governor-in-Council that Strathbogie’s Determination be set aside and that no vegetation removal permit be granted.
VSC Appeal
The developer appealed to the Victorian Supreme Court, shortly prior to Christmas 2021, seeking to set aside the Order in Council made by the Governor in Council on the Minister’s recommendation. The VSC proceedings seek orders to remit the matter to the Minister, with the Minister to pay the developer’s costs. Respondents are the Minister for Planning and Strathbogie Shire Council. The environmental groups and DELWP were served with these proceedings.
The developer’s Notice of Appeal raised as a question of law whether, in assessing the permit application, the revised Lake Nagambie Resort Master Plan approved by Strathbogie Shire Council in 2015 can inform the assessment. Grounds relied on were that the Minister’s recommendations had assumed that the 2015 Master Plan could not guide the decision-making, that the project complied with that Master Plan and, in the event that the 2015 Master Plan cannot be relied upon to guide decision-making, that the permit application generally complies with the Master Plan referred to in Schedule 1 of the CDZ.
Following a Directions Hearing in February 2022, Council advised the Court that it did not wish to participate in the case, which is listed for hearing in March next year. Over the course of the remaining months of 2022, deadlines imposed by VSC orders will see Outlines of Submissions and Lists of Authorities circulated by the Minister and the developer.
Kellehers Australia, and the environmental groups for whom we act, will follow the submissions with great interest.
KELLEHERS AUSTRALIA PTY LTD
1 July 2022
Liability limited by a scheme approved under Professional Standards Legislation
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[i] file:///C:/Users/leonie/Downloads/Strathbogie%20PS%20All%20Ordinance.pdf (accessed 1 July 2022).
[ii] Priority Projects Standing Advisory Committee Report, 2021, Strathbogie Planning Scheme: Referral No 11: Call-in of VCAT proceeding P1151/2020-50 Elloura Drive and Vickers Road, Nagambie, page 10.
[iii] DELWP Referral letter 23 April 2020 referred to in PPSC Report, page 15.
[iv] Ibid ii, 5.1 (ii), page 21.
[v] Priority Projects Standing Advisory Committee Report, 2021, Strathbogie Planning Scheme: Referral No 11: Call-in of VCAT proceeding P1151/2020-50 Elloura Drive and Vickers Road, Nagambie.
[vi] Ibid ii, page 8.
KELLEHERS AUSTRALIA PTY LTD
Liability limited by a Scheme approved under Professional Standards Legislation.
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
Copyright © Kellehers Australia 2022.
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