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22 June 2018

Proposed Mornington Peninsula Shire Council Amendment C219 . . . let the games begin!

Following our recent article on this matter regarding the Council’s proposal to widely distribute the Neighbourhood Residential Zone throughout the residential areas of the Mornington Peninsula Shire, some helpful readers have bought matters to my attention that would be of relevance to people with property interests on the Mornington Peninsula.

You may recall Council prepared the ‘Mornington Peninsula Housing and Settlement Strategy 2017’, which it adopted on 4 December 2017.  It subsequently prepared a planning scheme amendment in early 2018 (C219) to implement the recommendations of the Strategy, and we understand a request for authorisation to commence exhibition was sent to the Minister in February 2018. 

I was made aware of this while on the VCAT stand giving evidence on 7-8 March 2018 for a matter in McCrae (Staffy Pty Ltd v Mornington Peninsula Shire Council and Ors, if you’re interested).  The Council’s advocate was querying why I had given limited or no weight to the reference document ‘Mornington Peninsula Localised Planning Statement 2014’, the adopted ‘Mornington Peninsula Housing and Settlement Strategy 2017’, and indeed the proposed planning scheme Amendment (C219).  My responses were:

  • The localised Planning Statement is too ‘high level’ to be of any specific relevance to the matter at hand.  Further, limited weight is typically given to reference documents.
  • The adopted Strategy has no statutory weight, and therefore is of little relevance.
  • The Amendment is not ‘seriously entertained’, and therefore is also of limited relevance.

Thankfully the Tribunal agreed, and said (in its decision dated 8 June 2018):

13           The Council and objectors also refer to and rely on State Policy at Clause 11.05-2 Distinctive Areas of State Significance.  The Mornington Peninsula is recognised in State Policy as an area of distinctive state significance to which the Mornington Peninsula Localised Planning Statement applies .  The Statement comments that the townships of Mornington Peninsula are expected at most to accommodate moderate and generally low levels of housing growth.  Development that is of a type that maintains the existing valued character of each town or settlement is emphasised. 

14           The Council’s adopted Housing Strategy also includes McCrae in an area in which it is proposed to apply the Neighbourhood Residential Zone with a density of one dwelling per 450 square metres.  

15           The Council has applied for authorisation to prepare a planning scheme amendment (C219) to implement the recommendations of the Mornington Peninsula Housing and Settlement Strategy 2017 by introducing among other things the Neighbourhood Residential Zone into the planning scheme.  I was provided with correspondence from the Department of Environment Land, Water and Planning to the Council, advising that further work is required prior to authorisation being granted.  Amendment C219 is not therefore a seriously entertained planning policy and I have accorded it no significant weight.  The Housing Strategy is a document that has been adopted by the Council and it is therefore relevant for me to consider it.  It is however a document that sits outside the planning scheme and because aspects of it conflict with the provisions of the planning scheme, the weight that I accord to that document is diminished, particularly in circumstances where attempts to implement its recommendations into the planning have been unsuccessful. 

We were recently advised that Council wrote to nominated persons on 12 June 2018 advising as follows:

After waiting almost six months, nothing has come out of the Minister’s office, so it is important that we begin to implement this adopted policy of Council. If you are not aware or familiar with the Housing and Settlement Strategy, the critical elements that must be considered for multi dwelling applications is the future lot size of residential zoned areas that currently do not have a Design and Development Overlay or residential areas within DDO1 which does not have a minimum subdivision size.

Therefore, I am informing you that the expectation for future multi dwelling developments should comply with the adopted Housing and Settlement Strategy lot sizes (300 sqm or 450 sqm). This aligns with Council’s ability to consider an adopted strategic plan/policy under Section 60(1A)(g) of the Planning and Environment Act 1987 for future planning permit applications. The Housing and Settlement Strategy is supported by the Mornington Peninsula Localised Planning Statement, which is State policy (Clause 11.05).

In response to this I would note:

  • The DELWP letter referred to in the above VCAT decision says the matter requires further review by DELWP.  As far as we are aware, there has been no further correspondence between DELWP and Council since this letter, perhaps explaining the Council’s frustration.
  • Suggesting planning applications for multi-dwellings / subdivisions in certain areas (where DDO’s don’t apply, or on land affected by DDO1 which doesn’t have a minimum subdivision / dwelling density limitation) should now comply with the Housing Strategy based on a provision in the Planning and Environment Act is not implausible, but nevertheless somewhat inflexible and premature – particularly given the abovementioned VCAT commentary.
  • Suggesting the Housing Strategy, and indeed the proposed Amendment, is supported by the localised Planning Statement is drawing a long bow.  This is a very high level strategic document that managed to find its way into the planning scheme despite limited or no independent scrutiny.  It is also only a reference document and hardly constitutes robust strategic justification for the Housing Strategy or Amendment.

The Council’s desire to limit future residential development opportunities in specified areas is quite clear but, reasonably, this needs to go through a thorough and transparent process to ‘test’ whether it is reasonable. 

I guess we should be thankful that Council is being ‘up-front’ about how it intends to assess future applications (rather than this being an ‘under-the-counter’ / clandestine policy, as is often the case).  However, in light of VCAT’s decision (which wasn’t going out on a limb mind you – the views expressed were by a respected Senior Member and follow well-established principles) there is a fair bit of ‘Bluff Act’ about the approach. 

But developers now have a choice:

  • Tow the line and (potentially) get Council support, or
  • Challenge the approach knowing it is likely (in the short term anyway) VCAT will continue to be of the opinion that the Housing Strategy, localised Planning Statement and Amendment C219 are not major impediments to the granting of a permit.

We will endeavour to keep you updated as matters progress.

 If you have any questions regarding Mornington Peninsula C129, please contact David Crowder or Alex Wade.

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