BREWERY CASE MIGHT BE BUILT ON SAND

Bandicoots and elephants have, despite their size disparity, one thing in common – their prodigious memories.

Thus it was that Bandicoot noted with a strong feeling of deja vu an application for a brewery not far from the Bass Strait coast in the very appropriately named Sandy Rd, not far from St Andrews Beach.

brew-sandy-infertile-good-only-for-golfNot many years ago a similar application was made – and approved – for a brewery on a property named Barragunda, just off Cape Schanck Rd and somewhat closer to where the shoreline is “swilled by the wild and wasteful ocean”, as Wm Shakespeare put it so aptly in ‘Henry V’.

(Here’s the coastal strip, with Sandy Rd and its race track. The area is best suited to golf and brisk walks.)

That brewery application was hotly contested by Cape Schanck Rd residents, who filed objections on a number of grounds.

To divert for a moment, the word “objections” appears to have been replaced in the 160 Sandy Rd application by the equivocal word “submissions”. Only temporarily, Bandicoot hopes: ratepayers ought never be required to submit to the shire: they are our obedient servants, not the other way round.

Back to Barragunda: in October 2011 councillors approved the brewery, with strict conditions – far stricter than those officers recommend for 160 Sandy Rd. In fact, the 2011 conditions might well be the reason why Colonial Brewery, the Cape Schanck applicant, appears never to have built its brewery by the briny.

The conditions Barragunda faced were draconian compared with some proposed for the Sandy Rd brewery.

For example, it was forbidden for Barragunda to use hops not grown on the land for brewing beer on the land.

brew-nat-golf-club-moonah-courseFor the Sandy Rd brewery, by contrast, a five-year lead time is proposed for the applicant to establish its beer and cider crop inputs, comprising hops – no mention of barley – apples and pears “associated with commercial scale” liquor production. (Pictured, the local landscape.) 

Pears get this one mention in the agenda item. Perry, made from fermented pears, is never mentioned at all. Barley, an essential ingredient in beer, appears not to be an essential part of the shire’s thinking. After apparently agreeing that a half-hectare barley crop is sufficient to brew up to 250,000 litres of the foaming stuff, barley is barely mentioned in the shire officers report.

After the five years’ lead time is up, 160 Sandy Rd is not permitted to operate unless there is “commercial scale production of apples/pears on the land” and/or “commercial scale production of hops on the land…”

That is, the applicant must then convince the shire it has achieved “commercial scale” crop production of hops, apples and pears (but not the key beer ingredient, barley) or shut its doors. And by then it must be producing on the property “over 50% of the alcoholic beverages for sale for on-premises consumption” and the beverages must contain “as a core ingredient produce sourced from the subject land”. (Not including barley.)

A further issue at 160 Sandy Rd is water. The shire has been told that a bore on the property is licensed to provide some 200 megalitres annually. Beer making is a very thirsty process; six or more litres of water per litre of beer.

The bore water would not be used to make beer, Bandicoot assumes, unless it is of exceptional quality. It might not even make the grade for equipment cleaning.

Water quality is inextricably linked to beer quality. According to the website beer-brewing.com, “The mineral content of brewing water has long been recognised as making an important contribution to the flavour of beer. This is especially important since water comprises more than 90% of the beer.

brew-wine-map-winebasecomau“Historically, different regions have become famous for their classic beer styles as defined by the waters available for brewing. For example, the famous brewing waters from the deep wells at Burton-on-Trent are known for their excellent qualities in brewing full-flavoured pale ales,” the site states.

(Where the vineyards are: number 52 is The Cups, close to 160 Sandy Rd. Most vineyards are in the rich red hinterland soil.)

Mornington Peninsula bore water can be potable, but would not be expected to compete with Burton-on-Trent. In some regions it is almost too saline to drink.

Now, back to green wedge basics. The Mornington Peninsula Planning Scheme (clause 64.02) states: “If a provision of the scheme provides that a use of land must be used ‘in conjunction with’ another use of the land, there must be an essential association between the two uses, and the use must have a genuine, close and continuing functional relationship in its operation with the other use.”

That is, if you seek a restaurant, or a brewery, on green wedge land, it must be “in conjunction with” the agricultural land use required to transform crop to finished product. Green wedge rules say restaurants must be on 40 hectares and must not have more than 150 patrons on site at any one time. The brewery site is smaller than 40 ha.

The officers report invokes this crop–product link to support the brewery application. “The proposed brewery is considered to be aligned with the vineyard industry, which similarly involves agricultural production and on-site manufacture of liquor,” it states.

Well, not quite. Not every vineyard makes wine from its grapes on-site. Often, as is the case with T’Gallant, for example, no wine making occurs on the property. But every winery seeking a restaurant permit has to pass the “in conjunction with” test, as the shire argues – not necessarily very convincingly, in Bandicoot’s view – in this case. 

Bandicoot must now quote from some of his (ahem, remarkably cogently and lucidly argued) previous writing on this rule. After the Barragunda case he tracked down a legal firm’s opinion on the “in conjunction with” rule.

It stated: “… in an operational sense there is no essential or intrinsic association between a vineyard … and a restaurant … and yet these are uses that clearly the planning scheme anticipated can and should occur in association.”

The firm quotes from the Victorian Civil and Administrative Tribunal case of Neve & Ors v Macedon Ranges Shire Council, in which VCAT expands on the rule.

It decided that the “essential association” rule requires a nexus with the permitted use that includes:

* A required or necessary link(s) between bona fide activities.

* A demonstrable, rather than speculative, link(s) between uses.

* A link(s) of substance, not of minor, token or tenuous association.

* An association with the permitted use from inception.

In the 160 Sandy Rd case, Bandicoot wonders if these requirements are fulfilled. Does the “required or necessary link” exist, with no evidence that either apples, pears, hops (or barley) will thrive on the land? Before that is demonstrated, can it be argued that the required link is “bona fide”?

Barragunda told the shire it would produce only 40% of the barley it would need on the land and that about 20% of the hops would be trucked in. The 160 Sandy Rd application has made no such statement. Instead, the shire includes a condition that the applicant must get an updated estimate of the expected yields of hops – no mention of barley – and expected production levels for beer and cider from the estimate.

This does not in Bandicoot’s view meet the VCAT requirement that the “essential association” must exist with the permitted use (the brewery) “from inception”. Grapes are almost always established before a tasting room then a restaurant are applied for. 

Then comes the inevitable question: what if the brewery is built and the crops fail, or fail to live up to expectations? Does the shire permit the brewery operation to continue even though it lacks the “required or necessary link” with agriculture because of crop failure? It would become a country pub. 

Luckily, one of the proposed permit conditions anticipates just that outcome.

Condition 6 is repeated here in full:

After five years of the date of this permit being issued, the licensed premises is not permitted to operate unless there is:

* Commercial scale production of apples/pears on the land that is associated with commercial scale cider production on the land;

and/or

* Commercial scale production of hops on the land that is associated with commercial scale beer production on the land.

At risk of being tedious, barley is again not mentioned, even though it is a critical component of beer, with just half a hectare of Sandy Rd land proposed to be planted to grain. Is barley needed to demonstrate “genuine, close and continuing functional relationship” between agriculture and brewing? VCAT may have to decide on that. You can hazard a guess, Dear Reader.

So, if the crops fail, or fail to reach a “commercial scale”, bang goes the brewery – or so one assumes. Bandicoot doubts the shire could allow the brewery to operate in contravention of the “in conjunction with” requirement of the green wedge rules. No crops, no brewery – it would make a mockery of the shire’s and the green wedge planning scheme were it permitted to continue operating using imported ingredients.

No one is entitled to make a profit simply because they have made an investment. A couple of councillors put this illogical argument at the 28 November council meeting that approved the Willow Creek Winery’s application to nearly double its patron numbers.

Agriculture, even brewing, can be a risky, heartbreaking business. Enough to drive a Bandicoot to booze.

1 Comment on "BREWERY CASE MIGHT BE BUILT ON SAND"

  1. nicely written Mr Coot. Most logical but it seems Shire Officers are easily hood-winked into thinking this type of application satisfies the Mornington Peninsula Planning Scheme and those of the State of Victoria’s Green Wedges legislation. It actually reads like an application for just another bar.

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