An application by Willow Creek Winery to, among other things, increase its patron numbers to 282 from the Green Wedge Zone rules maximum of 150, easily passed at council after shire planners explained that the property had planning rights, including existing use rights, that allowed the massive increase.

Mr David Bergin, shire executive manager of planning services, told Cr Hugh Fraser that state planning provisions for the GWZ “did change a couple of years ago to allow additional numbers within sites”.

Expanding on his answer he said: “Now admittedly this is for a site that has to be 40 hectares [Willow Creek is 18ha] but if this site was 40ha it could have up to 310-plus (patrons). The ‘plus’ refers to … there’s no limit on a wine tasting for cellar door facilities for wine tasting.”

willow-creek-picMr Bergin said planning controls covering Willow Creek’s hotel “don’t actually stipulate whether that room can accommodate two, three, four, or more people.

“So it could be some of those rooms … if they (all contained) four persons that … would represent a number of 320 just for the hotel component.”

(Willow Creek’s website says the “46-room luxury hotel”, to be completed early next year, will include “an 80-seat fine dining restaurant”. The hotel will be named the Jackalope. These are a mythical Wyoming animal, described to naive visitors as the result of a mating between a large jackrabbit and a small antelope, in the same comic genre as the Australian bunyip.)

Mr Bergin said the shire had based its hotel numbers analysis “on a two-person room accommodation”.

Mr Fraser asked if Mr Bergin’s figures were based on this property being 40 hectares rather than its actual area of 18ha. Mr Bergin said they were but recalled a briefing the previous week “in terms of how some of the recent changes to the green wedge conditions occurred in recent times at state level”, whereas previously they would not previously have been considered.

He told councillors that Willow Creek had “lawful existing use rights” but did not specify what they were or otherwise enlarge on this point.

Bandicoot has been involved in a case where existing use rights were an issue. They did not entitle the applicant to restaurant patron numbers beyond the green wedge limit of 150.

Cr Fraser listed Willow Creek’s facilities, including a restaurant, a cafe, the hotel that includes a restaurant, and the wine tasting room, and the numbers they could cater for, which Mr Bergin agreed increased the patron ceiling to 282 at any one time.

Cr Fraser: “Doesn’t that completely defeat our green wedge provisions?”

Mr Bergin: “No, I don’t believe so, because [Willow Creek] do have that lawful existing use right and it’s going closer towards what the general provisions are heading towards. He did not elaborate on the term “general provisions”.

Cr Fraser: “I’m not sure that’s the policy position of this council.”

Bandicoot sought a reaction to the councillors’ Willow Creek decision from Ms Rosemary West, coordinator of the Green Wedges Coalition and a Kingston City councillor. She and her group have fought for years to protect the zones from inappropriate development and overdevelopment.

“I’m unaware that the rules have changed to allow double the patron numbers on green wedge properties,” she said. “It would be disastrous across all the green wedge zones were this to occur.”

The green wedge rules (GWZ 35.04-1) state that for a function centre, “The number of patrons present at any time must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.”

The same applies for a restaurant. The rule further prescribes that: “If used in conjunction with Function centre, the total number of patrons present at any time must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.”

That is, the total patron numbers on a property with both both a restaurant and a function centre must not exceed 150 at any one time.

Bandicoot emailed Mr Bergin today (29 November) seeking the information he presented to councillors regarding recent changes to the green wedge rules, which he stated allowed the huge increases in patron numbers. His response was not received before this article was posted. It will be added when it is received.

The intention of green wedge zoning – with its bedrock rule of 40 ha land size to 150 patrons – is to retain the rural ambience of the Mornington Peninsula, which is roughly 70% green wedge. Former councillor David Gibb defended the ratio energetically and tirelessly over his two decades on council.

Bandicoot believes the new councillors have not yet been intensively briefed on the green wedge.

Approval of the Willow Creek application was enthusiastically supported by Cr Antonella Celi, who described the property as part of the peninsula’s “flourishing eco-tourism agri-tourism businesses” that “contribute significantly to our economic development”, “which the shire supports wherever it can, to thrive and prosper.”

“We’re dealing with people’s livelihoods here,” she told the meeting.

“If we start to push out our investors in our hinterland and green wedge zone region we’re actually watering down our protections of the green wedge zone.”

New Nepean ward councillor Bryan Payne also supported the application, saying the applicant had made a significant investment. “I think it’s important, once that investment has happened, that they are allowed to get a return on their investment. It will create employment in the area,” he said.

Opposing the application, Cr David Gill – whose Red Hill ward is predominantly green wedge – said the proposed patron number was excessive; the development would adversely affect the area through increased noise and traffic; and would set an undesirable precedent for commercial uses in the green wedge on blocks of land less than 40ha.

The application, which is before the Victorian Civil and Administrative Tribunal but required a statement of the shire’s position, will return there for a decision.



  1. Interestingly, condition 4 in the VCAT case in 2006 reads “4 No more than 150 people, in total, at any one time may be present within the hotel, conference (function) centre or any restaurant on site.”

    So, I have to ask how do “existing use rights” exist for a 1999 permit for a restaurant? Condition 4 makes it very clear that 150 patrons across all activities on the land. Each operation facility on the subject land therefore does not allow for 150 patrons for each. i.e. residential hotel, conference centre, and restaurant.

    The details of the VCAT case are :
    J G Knowles Associates Pty ltd v Mornington Peninsula SC [2006] VCAT 2204 (30 October 2006)

    Last Updated: 8 November 2006




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