UPDATE: COUNCILLORS PUT GWZ AT RISK

Bandicoot fears for the future of the shire’s precious and irreplaceable green wedge land following two decisions by councillors at Monday’s (12 Dec) meeting.

Such decisions, if repeated in other such applications, directly threaten the future of the Mornington Peninsula’s Green Wedge Zone – which is 70% of the shire land mass and one of the its great tourist attractions.

First, councillors voted to permit a brewery at 160 Sandy Rd, near St Andrews. Second, they endorsed a previous decision to OK a near-doubling of patron numbers on a small green wedge site, Willow Creek Winery.

Even mayor Bev Colomb, generally pro-GWZ, changed her vote from opposition to acceptance of the Willow Creek Winery proposal, which seeks to lift patron numbers from the GWZ cap of 150 patrons to 282.

These votes indicate to Bandicoot that a majority of councillors are either unversed in GWZ law or are hell-bent on development in the shire – any development, anywhere, at any cost.

They could well retort that they do not know much about GWZ yet because they have not yet been briefed by the shire on this crucial element in local planning law.

The pro-development stance certainly has been the general approach of several councillors, one of whom (Antonella Celi, Seawinds ward) was re-elected in October and another of whom (Frank Martin) made a comeback in Seawinds ward in October. The third Seawinds councillor, Simon Brooks, has researched GWZ and come to a different position on development there.

Cr Bryan Payne, a former five-time council chief executive officer, also voted for both the brewery and Willow Creek Winery. He and Cr Celi cited the need for development in the shire to provide jobs as their reason for approval. Cr Payne has also argued that investors are entitled to get a return on their investment.

In their approach the pro-development councillors appear to be mirroring some elements in the shire planning department who, in the case of the brewery, found ingenious ways to justify their recommendation.

In the Willow Creek Winery case councillors were given information that proved to be at variance with GWZ law as understood by an expert in the subject, Professor Michael Buxton of RMIT University.

Bandicoot has compared shire GWZ planning policies with what planning officers included in their reports to councillors recommending they approve both Willow Creek Winery and the proposed brewery at 160 Sandy Rd, Fingal.

A brief lesson on green wedge is offered here: before the green wedge zone (GWZ) first became law on 12 June 2003, the land it now covers was largely zoned rural. Many rural blocks smaller than 40 ha continued to have what are known as “existing use rights” for restaurants, galleries and other facilities that existed on the land pre-GWZ. Such facilities cannot now be built on land under 40 ha.

The intention was to prevent overdevelopment in GWZ areas – the “lungs” of Melbourne – and maintain the agricultural ambience of places such as the Mornington Peninsula and the Yarra Valley. Developers never stop testing councils’ resolve to protect GWZ land; most of these applications are ruled illegal by council or VCAT.

Occasionally an applicant scores an unexpected win at shire or VCAT level – as did T’Gallant, when the planning tribunal unaccountably decided, at the applicant’s second try, to permit 180 patrons on an 18-ha block, which is 30 more patrons than are allowed on a 40 ha land parcel. Such are the vagaries of VCAT. T’Gallant had lost its earlier bid for 300-odd patrons.

Now, the brewery application.

It concerns ‘Markdel’, a property at 160 Sandy Rd, Fingal, measuring 35.98 ha. The minimum GWZ land size required for a new development is usually 40 ha, but the Sandy Rd land is in an unusual zone – GWZ4. Land parcels in this zone are double the standard, at 80 ha.

This fact was not included in the officers report to councillors. Anyone vaguely conversant with green wedge rules – 150 patrons on 40 ha – might have assumed Markdel was just four ha short of the land required.

Several other important pieces of information were also missing from the officers report, including relevant sections of the Mornington Peninsula Planning Scheme (MPPS). The planners report included at least one outstanding piece of hyperbole. Here it is: emphasis added.

Point 11.04-7, Green Wedges–Objective

“To protect the green wedges of Metropolitan Melbourne from inappropriate development.

“The Mornington Peninsula Green Wedge is identified as an area of environmental, economic and social value. The proposed application provides for a viable agricultural use of land within the Green Wedge utilising existing buildings and facilities on site, with additional planting appropriate to the environmental and landscape values of the surrounding area. Accordingly, the application protects the area’s environmental, landscape and scenic value, and provides for an economic and agricultural use of a significant parcel of land.”

Fact: the proposal is to grow 4 ha of hops and half a hectare of barley. The barley crop is calculated as being a couple of percent of what the enterprise would require. Some 12,000 apple and pear trees are proposed for cider and perry brewing.

Question: are hops, barley, apples, pears and citrus “appropriate to the environmental and landscape values of the surrounding area” and protective of its “environmental, landscape and scenic value”? Take a drive down Sandy Rd and make up your own mind.

Against this confident assertion is clause 22.07-3 of the MPPS. Here are some excerpts, edited for clarity and omitting nothing of relevance. The entire MPPS can be found on the shire website by searching for “planning policy > mornington peninsula planning”.

Clause 22.07-3 states:

It is policy that:

Applications for industrial uses in rural areas should be limited to those that demonstrate a direct link with rural activities, including the processing and packaging of agricultural products grown in the area and the servicing of rural equipment. Development proposals without an identified use will not be supported

(No proved rural activities have yet been established on the land.)

Applications for commercial uses in rural areas should be limited to those which demonstrate a direct link to rural activities or the provision of accommodation, services and facilities linked to the Peninsula’s role as an area providing opportunities for outdoor and unstructured recreation … Uses which may be considered include the provision for the sale of farm produce grown on the property

(A brewery may well not provide the anticipated “outdoor and unstructured recreation” the policy mentions.)

Proposals for out-of-centre commercial developments that undermine the activity centres policy at Clause 22.02 will not be supported. [MPPS 22.02-2, dot point 5 states that the policy aims “To optimise commercial business (including tourism) and employment opportunities in activity centres on the Mornington Peninsula.”]

Applications must be compatible and integrated with the primary land use on the site and that of surrounding land. … Restaurant proposals should demonstrate a clear link to the production of food or wine on the property, be associated with a significant recreational site or established tourism node or contribute to the conservation of buildings with heritage value.

(The need to import the vast bulk of its barley and other ingredients may defeat the brewery proposal. And note that agriculture must remain “the primary land use”.)

Following this comes clause 22.07- 4,Decision Guidelines”, which states:

Before deciding on an application the responsible authority must consider as appropriate:

The extent to which the application meets the objectives and directions of this policy.

The extent to which any commercial development would be better located in an existing activity centre.

The extent to which any proposed variation of this policy can be applied on a consistent basis without undermining the strategic directions of this scheme.

Little if any of this material was conveyed to councillors. Instead, the officers, having concluded that a brewery is a Rural Industry (but a winery is not), cite Clause 74 of the Planning Scheme:

Rural Industry’ is defined under Clause 74 of the MPPS, as land used to:

A. Handle, treat, process, or pack agricultural produce;

B. Service or repair plant, or equipment, used in agriculture; or

C. Manufacture mud bricks.

The clause gives two examples of rural industry – abattoirs and sawmills. Mud bricks get no further mention. “Brewery” is nowhere mentioned in the MPPS among the hundreds of uses defined, probably because drafters of green wedge policy did not consider such a use would ever be sought or even contemplated for the zone, which includes everything from slaughterhouses to schools.

And wineries, of course. The officers report states (their emphasis):

The proposed brewery use is better aligned with the definition of ‘winery’ being:

Land used to display, and sell by retail, vineyard products, in association with the growing of grape vines and the manufacture of the vineyard products. It may include the preparation and sale of food and drink for consumption on the premises.

Their report continues:

The proposed brewery use is described as:

Manufacture and retail and wholesale sales of beer and cider associated with the growing of hops, barley and fruit on the land, and the preparation and sale of snack foods for on-site consumption.

It is accepted that a ‘brewery’ which manufactures from produce grown on the land is consistent with the operations of a ‘winery’ (which can be summarised as the growing of produce, manufacture of liquor, sales and consumption on the land) with the obvious exception of beer or cider being the product of focus.

It is not appropriate to assign a combination of defined land uses under the Planning Scheme, as this does not result in an adequate description of the use.

It must be pointed out that the words, “The proposed brewery use is described as…” are not drawn from the MPPS but are those of the officers, since “brewery” is not a GWZ use and thus could not be “described” as a use. Further, the following two paragraphs (It is accepted… and It is not appropriate…) are the opinions, or submissions, of the officers.

Note also that the definition the officers report provides appears to mandate that the brewery is to  “manufacture from produce grown on the land“.

More such statements follow in support of the brewery proposal, including the size of the hop and barley fields, the size of the apple orchard (pears are not mentioned until the conditions to be imposed on the land) and the “stage 2” crop field areas.

Councillors were told by Cr Hugh Fraser, opposing the application, that he had calculated that just a few percent of the barley required for the planned beer volume could be grown on the half a hectare set aside for it. Eight times more land – 4 ha – was proposed for hops. A boutique brewery at Red Hill grows hops but uses none of them in its brews. It grows no barley on its small block.

An earlier – successful – application for a brewery in the GWZ is invoked in the report. The Barragunda proposal at Cape Schanck gained shire approval in circumstances that this writer queried on similar grounds to those raised here – that councillors appeared to have been presented with a report that omitted important GWZ material. (See link below.)

Barragunda, which was to have included a restaurant, function centre and plant nursery, received VCAT approval but has never been built. It had stringent conditions placed on it, including that it must use only hops grown on the property. This approval was not one of VCAT’s finest moments, in Bandicoot’s view. Cr Frank Martin, then representing the predominantly GWZ Red Hill ward, voted for Barragunda. 

Contrast the Barragunda proposal with the conditions imposed on ‘Markdel’, the latest application. They refer several times to “core ingredients” that must be grown on the land. No “core ingredient” quantity is mentioned, nor are such ingredients defined.

A further condition states that, after five years, “over 50% of alcoholic beverages for sale for on-premises consumption must have been manufactured on the land…”

That appears to mean the applicant is, for the preceding five years, permitted to bring “alcoholic beverages” on to the land for sale – in effect, the applicant is permitted to run a bar on the property selling products made off-site. 

The applicant may be more successful with his application to make cider and perry (brewed from apples and pears). But would cider and perry draw viable crowds? At least there’s a chance the proposed 12,000 apple and pear trees will provide sufficient juice for the anticipated volume of product.

Bandicoot is still doing his sums on that part of the applicant’s plan.

Willow Creek Winery’s application, to lift patron numbers from 150 to 282, is more straightforward. What is sought is almost twice the patron cap of 150 permitted in the GWZ. VCAT could well decide, despite two votes by councillors in support of it, that the proposal must be rejected because it is contrary to GWZ policy.

The Willow Creek Winery proposal put to councillors in the officers report and at the council meeting was, in Bandicoot’s view, muddled and inconsistent with the GWZ rules as understood by an expert on GWZ, Professor Michael Buxton of RMIT University.

It would be an ironic outcome for the councillors who approved it and shire officers who recommended it to be overruled by the tribunal. It may be a memory that would stay with them throughout their careers. But, as always, there is no predicting what VCAT may decide.

The Willow Creek Winery application is already at VCAT, the shire having failed to consider its application within the statutory 60 days, after which applicants can proceed directly to tribunal. The brewery case may never be taken to VCAT, unless an objector appeals against the councillors’ decision.

See (brewery) http://morningtonpeninsulabandicoot.com/2016/12/11/brewery-case-might-be-built-on-sand/

Also (Willow Creek) http://morningtonpeninsulabandicoot.com/2016/12/07/willow-creek-approval-update/

1 Comment on "UPDATE: COUNCILLORS PUT GWZ AT RISK"

  1. Mark Fancett | 18/12/2016 at 5:33 am | Reply

    Well done David. Hope you send a copy or link to our councillors.
    Bandicoot: Thanks, Mark. I hope they find it themselves.

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