VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST
vcat reference No. P1476/2014
Permit Application no. 14/0111
CATCHWORDS
Section 77 of the Planning & Environment Act 1987; Surf Coast Planning Scheme; whether a caravan and camping park should be located on land identified as a non-urban break, within the Farming Zone and outside the Torquay Town Boundary.
APPLICANT
BCR Asset Management Pty Ltd
RESPONSIBLE AUTHORITY
Surf Coast Shire Council
REFERRAL AUTHORITies
Country Fire Authority
Department of Environment and Primary Industries
RESPONDENTs
Mark Mathews and others
SUBJECT LAND
350 Coombes Road and 1200 Ghazeepore Road, Freshwater Creek
WHERE HELD
Melbourne
BEFORE
Michael Deidun, Presiding Member
Chris Harty, Member
HEARING TYPE
Major Case Hearing
DATE OF HEARING
8-11 & 15 December 2014
DATE OF ORDER
14 January 2015
CITATION
Order
1 Leave is granted to substitute the plans that are the subject of the Application for Review for those identified as follows:
a. Development Plan prepared by Beveridge Williams and marked Version 10 (dated 27 October 2014);
b. Staging Plan prepared by Beveridge Williams and marked Version 4 (dated 27 October 2014);
c. Landscape Concept Plan prepared by ERM and dated 27 October 2014.
2 The decision of the Responsible Authority is affirmed.
3 In permit application 14/0111 no permit is granted.
Michael Deidun
Presiding Member
Chris Harty
Member
APPEARANCES
For Applicant
Chris Canavan QC and Jennifer Trewhella, Barristers instructed by Zoe Darmos of Norton Rose Fulbright.
They called the following witnesses:
· Steve Hunt (Traffic Engineer) of Cardno
· Andrew Rodda (Town Planner) of Contour Consultants
· Allan Wyatt (Landscape Architect) of ERM
· John Henshall (Economist) of Essential Economics
· Dr Sarah Richards (Geoenvironmental Engineer) of Coffey.
For Responsible Authority
Teresa Bisucci, Solicitor of Best Hooper.
She called the following witness:
· Rob Milner (Town Planner) of Ten Consulting Group
For Referral Authorities
No appearance.
For Respondents
Shelly Fanning, Solicitor of Mann Legal appeared on behalf of Rebekah Abela and Jeremy Minter.
She called the following witness:
· John Glossop (Town Planner) of Glossop Planning
John Frame, John Ansell, Peter Gordon, Mark Matthews, Richard Tarr and Dr John King all appeared in person.
INFORMATION
Description of Proposal
Use and development of the land for a Camping and Caravan Park and Caretakers Dwelling and removal of native vegetation. Based on the amended plans, the proposal includes the establishment of 250 cabins and 160 caravan sites in stages along with various communal facilities.
Nature of Proceeding
Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Zone and Overlays
Farming Zone
Salinity Management Overlay (part)
Permit Requirements
Clause 35.07-1 to use land within the Farming Zone for a Camping and Caravan Park and Caretakers Dwelling.
Clause 35.07-4 to construct a building or works associated with a Section 2 Use on land within the Farming Zone.
Clause 44.02-1 to construct a building or construct or carry out works on land affected by the Salinity Management Overlay.
Clause 52.17-2 to remove native vegetation.
Relevant Scheme, policies and provisions
Clauses 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 35.07, 44.02, 52.06, 52.17 and 65.
Land Description
The land is an irregular shaped parcel of some 50 hectares located to the north-west of the corner of Coombes Road and Ghazeepore Road, without including land at the very corner. The land has a frontage to Coombes Road of 271.66 metres and a frontage to Ghazeepore Road of 637.2 metres. The land is used for farming purposes, including a broiler farm.
Tribunal Inspection
The Tribunal conducted an accompanied inspection of the review site, surrounding area and the broader locality on 15 December 2014.
Cases Referred To
Knox City Council v Tulcany Pty Ltd [2004] VSC 375.
Cooke v Greater Geelong CC [2006] VCAT 2198.
MWC Mornington Wine Company Pty Ltd v Mornington Peninsula SC [2006] VCAT 2651.
Wittner Pty Ltd v Kingston CC [2014] VCAT 789.
REASONS[1]
What is this proceeding about?
1 BCR Asset Management Pty Ltd (the ‘Applicant’) seeks to establish a Camping and Caravan Park on land known as 350 Coombes Road and part of 1200 Ghazeepore Road, Freshwater Creek (the ‘review site’). It sought a planning permit from the Surf Coast Shire Council to establish a use comprising 515 cabins and 202 caravan/camping sites. The Council determined to refuse to grant a permit, based on four grounds that raised concerns in relation to:
a. The scale and intensity of the proposal in its context;
b. The suitability of the proposal given the non-urban break role of this land;
c. The economic impact of concentrating regional tourism growth in the form of accommodation on the review site; and,
d. Insufficient information has been provided to properly categorise the proposed land use.
2 The Applicant has sought a review of the Council’s decision, relying on grounds that essentially seek to refute the Council’s grounds of refusal. The Application for Review is being contested by a very large number of parties. They raise a broad range of concerns that can’t be neatly summarised in a few dot points. The principal concern raised is the various impacts of establishing a large tourism development outside the boundaries of the Torquay township.
3 Prior to the hearing the Applicant circulated amended plans that significantly reduces the scale of the proposal. The amended plans depict a total of 250 cabins and 160 caravan/camping sites, with the reduction mainly coming about due to an increase in the width of landscape buffers provided around the perimeter of the site. The amended plans also propose a reduction in the extent of communal facilities.
4 The issues or questions for determination are:
a. Does the location and nature of the proposal draw strategic support from the Surf Coast Planning Scheme?
b. Does the location of the proposal allow appropriate access to services and facilities?
c. Is the nature of the proposed use acceptable, suitable for land in the Farming Zone and able to be controlled?
d. Will the proposal achieve an appropriate visual outcome?
e. Will the proposal have a positive economic benefit for the region?
f. Are there likely to be unreasonable off-site amenity impacts?
g. Will an appropriate level of internal amenity be achieved?
h. Does the proposal cause any unreasonable impacts in terms of car parking and traffic movements?
5 The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Surf Coast Planning Scheme, we have decided to affirm the Council’s decision, and direct that no permit be granted. Our reasons follow.
Does the location and nature of the proposal draw strategic support from the Surf Coast Planning Scheme?
6 The range of relevant policy raises six key themes, being: the use of agricultural land for non-soil based land uses; the use and development of coastal land; the role of tourism in the regional economy and the need for new accommodation; the preferred locations for new large scale tourist facilities; the regional role of non-urban land; and structure planning for Torquay. We will conduct our policy assessment having regard to each of these key themes.
Use of agricultural land
7 State policy at Clause 14.01-1 sets out the following objective relevant to this proceeding:
To protect productive farmland which is of strategic significance in the local or regional context.
8 This objective is supported by the following relevant strategies:
Ensure that the State’s agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use.
Permanent removal of productive agricultural land from the State's agricultural base must not be undertaken without consideration of its economic importance for the agricultural production and processing sectors.
In considering a proposal to subdivide or develop agricultural land, the following factors must be considered:
· The desirability and impacts of removing the land from primary production, given its agricultural productivity.
· The impacts of the proposed subdivision or development on the continuation of primary production on adjacent land, with particular regard to land values and to the viability of infrastructure for such production.
· The compatibility between the proposed or likely development and the existing uses of the surrounding land.
· Assessment of the land capability.
9 This is supported by policy for the Geelong G21 region at Clause 11.07-5 that seeks to:
Protect critical agricultural land, energy and earth resources required to support a growing population by focussing development to existing township areas and directing growth to towns which provide rural services.
10 State policy clearly seeks to discourage the use of strategically important productive agricultural land for non-soil based land uses. Policy at a local level adds to this policy intent, with policy at Clause 21.05-2 seeking to:
Discourage the use and development of good quality agricultural land for activities that are not reliant on the soil.
Strongly discourage the establishment of intensive, non-agricultural based activities in the rural area, unless a sound strategic justification can be mounted, and it can be established that the activity will have minimal impact on surrounding rural uses.
11 Sitting somewhat in defiance of this policy intent are the provisions of the Farming Zone, which have been recently amended[2] providing for a much broader range of uses to be allowed subject to the grant of a planning permit. These uses include that of Camping and Caravan Park, the proposal that is before us. It is no accident that a Camping and Caravan Park is now a Section 2 Use in the Farming Zone. That was a very deliberate decision following the 2011 report of the Victorian Competition & Efficiency Commission Unlocking Victorian Tourism. It is a deliberate decision which is very relevant in this proceeding, given the review site sits within one of the premier tourism regions of Victoria, near the commencement of the Great Ocean Road.
12 While no agricultural evidence was called during the hearing, a report was prepared on behalf of the Applicant during the planning permit process. That report identified that the review site was not considered to be high quality agricultural land, and had a land capability that meant the review site could not be a viable farm on its own without the assistance of off-farm income. That is a relevant factor as identified by State policy when considering a proposal to develop agricultural land.
13 Another relevant factor is our finding that this proposed development would be unlikely, in the manner in which it is presently designed, to impact primary production on adjacent land. The Camping and Caravan Park is proposed to be encircled by substantial buffers, of a minimum 50 metres wide, that will act to separate the sensitive components of the proposed land use from surrounding agricultural activities. Further this is a land use where people will select the review site in order to holiday in a rural coastal environment, for a relatively short period of time. They will therefore anticipate some interaction with the surrounding agricultural activities, and experience any amenity impact for a short time.
14 While there is an overarching policy theme of protecting productive agricultural land from non-soil based land uses, at the same time there is recognition that a Camping and Caravan Park can be an appropriate land use in the Farming Zone. The review site also has a limited role to play in terms of agricultural production, and the proposal will not impact agricultural production on surrounding land. In this context, we find that the agricultural policies neither encourage nor discourage this proposed land use in this location.
Coastal policy
15 State policy at Clause 12.02-1 relevantly seeks to:
Provide clear direction for the future sustainable use of the coast, including the marine environment, for recreation, conservation, tourism, commerce and similar uses in appropriate areas.
16 State policy for The Great Ocean Road Region is found at Clause 12.02-6. In part it sets out the following:
Protect public land and parks and identified significant landscapes.
Ensure development responds to the identified landscape character of the area.
Manage the impact of development on catchments and coastal areas.
Manage the impact of development on the environmental and cultural values of the area.
Manage the growth of towns by:
· Respecting the character of coastal towns and promoting best practice design for new development.
· Directing urban growth to strategically identified areas.
17 This is supported by policy at a local level at Clause 21.03-2 that seeks to:
Ensure that development on and near the coast is compatible with and enhances the environmental values, visual character and amenity of the coastal environment.
18 In our view there is no doubt that coastal policy applies to this proposal, even though the review site is not actually on the coast. While we have a number of reasons for our view, the two key reasons are:
a. The fact that policy at a State level for The Great Ocean Road (GOR) Region is found as a subset of coastal policy. We therefore find that State policy is identifying the entire GOR Region, including the review site, as being part of the coast;
b. The clear intent of both the Victorian Coastal Strategy and the Coastal Spaces Landscape Assessment Study[3] to apply to the review site.
19 We find the effect of the coastal policy is to give greater weight to, or elevate, other policies that identify desired landscape outcomes for the review site, while directing this type of land use and development to appropriate locations. We will detail those other policies which we consider to be elevated by coastal policy later in these reasons.
Role of tourism in the regional economy and the need for new accommodation
20 Policy at both a State and local level identify the review site as being located within a region with a strong tourism focus, in which the establishment of new tourism development, including accommodation, is firmly encouraged. This policy begins at a State level where Clause 17.03-1 recognises the economic benefit brought about by a growing tourism industry:
To encourage tourism development to maximise the employment and long-term economic, social and cultural benefits of developing the State as a competitive domestic and international tourist destination.
Encourage the development of a range of well designed and sited tourist facilities, including integrated resorts, motel accommodation and smaller scale operations such as host farm, bed and breakfast and retail opportunities.
21 Policy at a local level includes the following in the way of key issues and influences:[4]
The tourism industry is underpinned by the coastal location, environmental values and scenic qualities of the Surf Coast.
Tourism benefits the community by injecting money into the local economy, providing jobs, improving facilities, creating opportunities for business and stimulating improved transport services.
Caravan parks provide a major component of affordable visitor accommodation in the Shire, however privately owned caravan parks are facing uncertain futures due to financial and development pressures.
22 These lead to the following objective and strategies:
To enhance and expand the tourism industry, whilst protecting the environmental, landscape and cultural values of the Shire and the lifestyle of its residents.
Encourage use and development that will increase visitor length of stay and increase visitor numbers in the off-peak period.
Encourage the development of a diverse range of quality tourist accommodation and facilities to meet changing visitor needs.
23 It is clear that the Surf Coast Planning Scheme recognises the value provided by tourism to its municipality, and the extent to which the economic prosperity of the local community is reliant on a growing and expanding tourism industry. That value includes the important role that Camping and Caravan Parks play in providing more affordable visitor accommodation. Clearly part of an expanding tourism industry in this region must be the provision of new large scale accommodation venues, such as that proposed for the review site. For these reasons we find that the breadth of tourism policy at both a State and local level provides strong support for the proposed use and development.
24 What is key however is to implement that policy support in locations that are favoured for large scale tourism development. The detail of such policy is explored in the following three policy themes.
Preferred locations for new large scale tourist facilities
25 At the outset we need to say that we find the policy matrix of the Surf Coast Planning Scheme to provide some very clear direction as to the preferred and non-preferred locations for new major tourist development, including accommodation. This includes some direction as to the preferred location for Camping and Caravan Parks.
26 Mr Canavan and Mr Rodda both relied very heavily on the fact that a Camping and Caravan Park is a section 2 use in the Farming Zone as a point upon which a case was built that this site is suitable for the proposed land use, supported by the aforementioned tourism policies. In difference, we find that the provisions of the Farming Zone do nothing more than open the door to the potential for a planning permit to be granted for the proposed use. Now opened, it is the role of policy supported by any relevant overlays and particular provisions to guide the discretion given to ourselves as decision makers as to whether this use is suitable for the review site.
27 Direction is provided by the Surf Coast Planning Scheme in part as a result of some policies we will explore later about the role of non-urban land and structure planning for Torquay. However there is also very specific policy directed at the preferred locations for tourism development.
28 Mr Canavan submitted that we should not read the Surf Coast Planning Scheme as guiding the location of Camping and Caravan Parks within the Farming Zone, as the policies were largely written prior to VC103, and therefore at a time when such uses were prohibited in the Farming Zone. We equate that argument with the following findings and reasons made in relation to recent changes to the Commercial Zones in the decision of Wittner Pty Ltd v Kingston CC:[5]
It is clear that the intention of the new commercial zones was, at least in part, to break down some of the barriers that previously existed to allow retail uses the flexibility to be located in a broader range of precincts. The review site was rezoned from a Business 4 Zone to a Commercial 2 Zone. As a result of the rezoning, the use of land as a shop went from a prohibited land use to one that is allowed without a permit subject to conditions, or otherwise a use for which a permit is required (that is, a Section 2 use). The old Business 4 Zone was subject to only two purposes, one to implement the policy framework, and the other:
To encourage the development of a mix of bulky goods retailing and manufacturing industry and their associated business services.
In difference, the Commercial 2 Zone has three purposes, the last two of which are:
To encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods retailing, other retail uses, and associated business and commercial services.
To ensure that uses do not affect the safety and amenity of adjacent, more sensitive uses.
Amendment C100 represents a fundamental shift in the prospect for establishing retail premises throughout Victoria, not just within commercial zones, but also within industrial zones. It deliberately implements a less prescribed approach to where core retail land uses can be established, in order to drive new economic investment. Insofar as Amendment VC100 is a fairly recent Amendment, and the Kingston Municipal Strategic Statement (MSS) has not been amended since, it is hardly surprising that the Council submits that the local policy context does not support the proposed land use. That fact that the Kingston MSS has not yet been amended in response to Amendment VC100 is not a criticism of the Kingston City Council. The present State Government is currently running a broad planning reform agenda, with many changes to the planning system that would be undoubtedly drawing significant resources from various local Councils. Further, on the horizon is a new Planning Policy Framework, which will likely require a substantial revision of local policy en masse.
For the same reason, while the Applicant pointed to policy support by reference to the strategy at Clause 21.06-3 to:
Discourage the subdivision of larger restricted retail and trade supplies facilities into smaller modules to maintain common ownership so as to facilitate redevelopment opportunities when retail cycles change.
This policy could not have intended such support as it was drafted at a time when shops were prohibited within bulky goods precincts.
29 We consider there are two elements to the Surf Coast Planning Scheme that assist to distinguish this dispute from the Wittner decision. The first is that prior to Amendment VC103, the Surf Coast Shire Council embarked on a strategic exercise to identify appropriate areas within its Farming Zoned land within which the location of tourist development, including caravan parks, could be encouraged. The intention was then to rezone such precincts to a Rural Activity Zone. Ultimately the rezoning did not occur as the changes to the Farming Zone made it unnecessary by broadening the Section 2 Uses in that zone. However the strategic work was completed, and as a result preferred locations for Camping and Caravan Parks had been strategically identified within areas where such land uses were, at the time prohibited.
30 The second element on which this proceeding is distinguished from Wittner, is the presence of other policies, namely that relating to the non-urban break intended to be achieved in the Thompson Valley, which clearly agitates against this level of use and development on the review site. We will come to explore such policies later in these reasons.
31 Returning to our policy analysis of preferred locations for large tourist developments, at a State level policy seeks to:
Ensure developments are of an appropriate scale, use and intensity relative to its location and minimises impacts on the surrounding natural visual, environmental and coastal character.[6]
Seek to ensure that tourism facilities have access to suitable transport and be compatible with and build upon the assets and qualities of surrounding urban or rural activities and cultural and natural attractions.[7]
32 At a local level, Clause 21.04-1 identifies the following key issues and influences:
The benefits of tourism needs to be balanced against the potential negative impacts, including:
· impacts on local communities through loss of amenity, overtaxing of services, pressure on infrastructure (water supply, wastewater treatment, waste disposal, roads, car parking) and environmental damage;
· pressure for higher density and larger scale urban tourist development, which can compromise the low scale and vegetated character of the coastal townships; and
· pressure for tourism development in rural and environmentally sensitive locations along the coast and in the rural hinterland, which has potential to compromise the natural environment, landscape values and agricultural activities.
33 To address this, the following strategies relating to tourist development are created under Clause 21.04-2:
Locate high profile, high volume tourism development in appropriate urban areas where their impacts and infrastructure requirements can best be accommodated.
Limit non-agricultural based tourism development to the Lorne coastal hinterland and other selected rural areas. Such developments to be small scale, nature and adventure based tourist activities and accommodation that are compatible with natural processes.
Encourage agriculture based tourism development in the rural hinterland to assist in diversification of the rural economy. Such development to be small scale and in character with the immediate rural/agricultural environment.
Consider provision of caravan parks in appropriately located areas to provide for affordable visitor accommodation.
34 Clause 21.04-3 provides the following assistance in implementing these policies:
When deciding on applications for tourist developments in a non-urban zone, consider,:
· Tourism development in the farming areas of the Shire should generally be of a small scale that does not compromise the agricultural use of the land.
· Tourism development should be of a nature, designed and sited to avoid conflict with existing rural uses, preserve the rural landscapes and environmental values, avoid loss of high quality agricultural land, and be within proximity of existing townships.
· Tourism development should enhance the environmental condition of the land through protection and re-establishment of native vegetation and control of pest plants and animals, erosion, salinity, stormwater and nutrient runoff. This should be demonstrated through the development and implementation of a management plan.
Discourage tourism development from locating in prime farming areas, particularly in areas with an open rural landscape.
35 We consider this policy matrix to influence our decision making in this proceeding in the following ways:
a. We find that the proposal is a high volume tourism development, providing as it is for 410 caravans and cabins, which will result in a traffic volume of around 1640 vehicle trips per day. There is therefore policy encouraging it be located in an appropriate urban area. However we don’t intend to apply this policy encouragement in an inflexible way that would mean only urban areas could contain new caravan parks. Instead we need to recognise the policy intent while also identifying that non-urban areas also have a role to play in providing new tourist developments;
b. This proposal constitutes non-agricultural based tourism development, and so is encouraged to be located in the Lorne coastal hinterland and other selected rural areas. We understand the Surf Coast Shire Council has undertaken strategic work (culminating in the now lapsed Amendment C68 Part 2) that identified areas around Deans Marsh and south of Bellbrae as preferred locations for non-agricultural based tourism development, including land uses such as Camping and Caravan Parks. The review site is not in such a selected rural area.
c. The policy intent for Caravan Parks to be considered in appropriately located areas identifies that, in policy terms, it won’t necessarily be permitted everywhere where a permit can be granted. As identified above, the review site is not in a preferred location for this type of use. Having regard to the analysis we conduct in relation to the next policy theme, we also consider that the review site is not in an appropriately located area.
d. This is not a small scale development, and so is discouraged in the farming areas of the Shire.
e. The extent of built form proposed for the review site, albeit screened from view, could be said to fail to preserve the rural landscape of this area.
f. While the review site is within proximity of the boundary of Torquay, it is not located relative to this existing township that would allow services, facilities and attractions to be reached in any way other than a motor vehicle. The positioning of the review site does not allow the proposed land use to draw any benefit from its proximity to Torquay.
36 For these reasons we find the stated policies to be supporting locations other than the review site for the establishment of a new Camping and Caravan Park. However we don’t consider such policies to be determinative in our decision making. Just because a proposed land use is not in a location preferred by policy does not mean that it cannot ultimately be found to be acceptable. This is particularly so in the context of land within the Surf Coast Shire Council, where tourism policy is so strongly encouraging a growth in the sector, including the provision of new tourist accommodation. We find that a variety of sites will be needed to provide for that policy intent, not just the preferred locations. However the policy statements identified above do weigh against the grant of a permit, in the balancing that we must make between the various policy themes that are influencing our decision making.
The regional role of non-urban land
37 State policy emphasises the importance of developing regional Victoria in a manner consistent with regional growth plans. In particular, policy seeks to:
Provide for development in selected discrete settlements within the hinterland of Metropolitan Melbourne having regard to complex ecosystems, landscapes, agricultural and recreational activities in the area.[8]
Prevent inappropriately dispersed urban activities in rural areas.[9]
Identify and assess the spatial and land use planning implications of a region’s strategic directions in Regional Strategic Plans.
Ensure regions and their settlements are planned in accordance with any relevant regional growth plan.[10]
38 The G21 Regional Growth Plan (Geelong Region Alliance, 2013) is identified in each of these Clauses of State policy as a regional growth plan that must be considered. Policy associated with the Geelong G21 region is then provided at Clause 11.07. Policy seeks to achieve the following:
Provide for settlement breaks between towns to maintain their unique identities.[11]
39 The G21 Regional Growth Plan is then provided in a form of a map following Clause 11.07-8. It identifies the review site as forming part of a settlement break that is intended to be achieved through the Thompson Valley between the existing township of Torquay to the south, and the emerging growth area of Armstrong Creek to the north. Page 31 of the G21 Regional Growth Plan identifies three purposes for the Thompson Valley settlement break:
To ensure a strong farmed landscape character between the urban areas of Armstrong Creek and Torquay, encourage rural production and maintain existing town identities.
40 The policies that support the provision of such a settlement break at a local level are as follows:
To protect the rural landscape from urban intrusion and to provide clear distinction between townships.[12]
To maintain a clear rural-landscape separation between Torquay-Jan Juc and the Armstrong Creek southern growth corridor of Geelong.[13]
Maintain clear non-urban breaks between townships, particularly Geelong and Torquay and the coastal settlements.[14]
Maintain non-urban breaks to Geelong and Bellbrae to protect the landscape and rural values of the Thompson Creek and Spring Creek valleys beyond the settlement boundary.[15]
41 Policy at both a State and local level consistently seek to preserve a non-urban break between Torquay and Armstrong Creek. The review site falls within the non-urban break, being located on the higher southern slopes of the Thompson Valley. We understand that there exists some debate in previous Tribunal decisions[16] as to whether a caravan park is an urban land use. We think that caravan parks could be considered to be either a semi-urban or semi-rural land use, depending on the context of the specific proposal. We find that this proposal, with its higher proportion of accommodation to be provided through fixed cabins, rather than open caravan sites, has more of an urban character than a rural one.
42 In any case, we don’t think that our decision making task relies on our proper categorisation of whether caravan parks are an urban use, or something different. Instead, what is more important to our decision making is the extent of development that is proposed on the review site, and the inconsistent nature of this extent of development with the notion of the land forming part of a non-urban break. The review site is proposed to be developed with 250 cabins, a range of communal facilities, and a network of hard paved areas servicing the various components of the development. We find such an extent of development to contrast with the policy intent of this land to form part of an open farmed character and a settlement break between Armstrong Creek and Torquay. We make this finding despite the extent of vegetation proposed for the review site, which over time will screen at least the short and medium-range views to the proposed development.
43 We also find that the coastal policies, which we identified earlier in these reasons elevates the weight to be given to policies that seek certain landscape outcomes in this non-urban break around the coastal town of Torquay.
44 As a result, we find that the review site is one in which policy is actively discouraging the establishment of the proposed land use, or at least the extent of proposed development, on the review site. This is relevant given our previous acknowledgment that a Camping and Caravan Park is a Section 2 use in the Farming Zone, and identification of policy that directs this land use to appropriate locations. Quite opposite from being an appropriate or preferred location for this land use, the policy matrix is confirming that the review site is one where the proposed land use is discouraged, in part due to its conflict with the designation of this land as a non-urban break.
45 Our finding that this proposal is inconsistent with the policy intent for a non-urban break is supported by the extent to which the review site is visible, on longer range views. During the course of the hearing Mr Tarr submitted a series of photographs, one of which showed how visible the review site is from Mount Duneed Road. While we disagree somewhat with the extent of the landscape Mr Tarr identified as constituting the review site, we nonetheless confirmed during our accompanied inspection that the review site is visible from a long stretch of a main road that runs along the opposite side of the Thompson Valley. We therefore find that the development of the review site with this level of change introduces a visual presence within an area identified in policy under the planning scheme as an urban break with which the proposal is at odds.
46 These findings weight against the grant of a permit for the proposed use and development.
Structure planning for Torquay
47 State policy at Clause 11.05-5 encourages the establishment of a settlement boundary around towns such as Torquay:
Identify a clear settlement boundary around coastal settlements to ensure that growth in coastal areas is planned and coastal values protected. Where no settlement boundary is identified, the extent of a settlement is defined by the extent of existing urban zoned land and any land identified on a plan in the planning scheme for future urban settlement.
Direct residential and other urban development and infrastructure within defined settlement boundaries of existing settlements that are capable of accommodating growth.
48 This is supported by policy for the Geelong G21 region at Clause 11.07-3 that, “Require a settlement boundary for all towns.”
49 Ms Bisucci for the Council took us through the history of structure planning for Torquay. The history identifies a very deliberate approach to contain the growth of the town. Since 1996 structure planning has identified the ridgeline that is located to the south of the review site as the northern edge of the Torquay settlement.
50 The history of structure planning for Torquay has lead, in policy terms, to the Torquay-Jan Juc Strategy at Clause 21.08 of the Surf Coast Planning Scheme. The policy at Clause 21.08 contains the following strategies:
Contain and consolidate urban development within the defined settlement boundary as indicated on Map 1 of Clause 21.08 – Torquay-Jan Juc Framework Map.
Preserve the clear delineation between the urban township and the rural landscape of the Thompson Creek valley, afforded by the northern ridgeline.
51 The review site is located to the north of and in close proximity to the settlement boundary for Torquay. We consider the proposal to establish a Camping and Caravan Park of the nature proposed outside of the settlement boundary to be inconsistent with the policy intent to contain urban development within the settlement boundary, while protecting the rural landscape of the Thompson Valley.
52 Further, the review site is in a location where connection to the services and facilities in Torquay is poor, except by private vehicle. We find that the location of the review site so close to the settlement boundary may have the effect of weakening this part of the settlement boundary, particularly if other land uses seek to locate adjacent to the review site, in order to ‘feed off’ or service the large population that will be housed there at peak tourist times.
53 For these reasons we find the location of the review site outside of the settlement boundary, and the potential for this proposal to weaken the settlement boundary of Torquay, to be significant concerns, that each weigh against the grant of a permit.
Conclusion
54 Our overall finding is that policy does not support the establishment of the proposed use and development on the review site. There is clearly significant policy support for developing new tourist accommodation in this region. However that support does not mean that every site will be suitable for a use and development of this scale. Further, the fact that a Camping and Caravan Park is a Section 2 use in the Farming Zone also does not imply that every site within that zone is suitable for that land use.
55 We have identified through our policy analysis that caravan parks do play an important role in providing affordable tourist accommodation, and will be encouraged in appropriate locations. The policy matrix has sought to identify preferred locations for these uses, although we accept that even locations which are not preferred, or where there is a policy neutral position, can be supported as locations for a new Camping and Caravan Park. This is due to the strong policy support for new tourist development in this region.
56 However the review site sits at the other end of the spectrum from the preferred locations. It is in a landscape that is clearly identified for its non-urban role, providing a break between the settlements of Armstrong Creek and Torquay. This is a location where developments such as the one before us are firmly discouraged. That policy intent is the culmination of much strategic work, both on behalf of the Surf Coast Shire Council, but also the broader G21 region of Councils. We find ourselves guided by this clear body of work, and having to recognise that policy as a whole does not support the proposed land use and development on the review site.
57 For these reasons we prefer the evidence and opinions of Mr Milner and Mr Glossop over that of Mr Rodda. We find that Mr Milner and Mr Glossop, while not quite ‘singing the same tune’, provided a more reasonable level of balance and weighting to the competing policy objectives that we have identified above. That balance and weighting has assisted both of these experts to conclude that the proposed development on the review site does not receive policy support, and should not be granted a permit. Mr Rodda on the other hand has given too much weight to policy encouraging tourist development, and thus not sufficiently weighted competing policy encouraging certain outcomes in the Thompson Valley.
Net community benefit
58 Having found that policy as a whole does not support the proposed use and development, we need to consider whether there are other aspects or positives associated with the proposal which may still result in a net community benefit being achieved. We are guided in this course by Clause 10.04 of the Surf Coast Planning Scheme which states:
Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
59 The importance of a net community benefit analysis was identified in the decision of Knox City Council v Tulcany Pty Ltd [2004] VSC 375. In that decision His Honour Justice Osborn remarked[17]:
The statement that the present outcome "might not be ideal" does not demonstrate an error in law. The planning scheme does not require an ideal outcome as a pre-requisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning scheme.
60 And further that[18]:
Reference to the State and Local Planning Policy Frameworks demonstrates that a proposal may potentially be favoured by some policy considerations but opposed by others. In the present case the proposal is favoured by policies relating to housing diversity and social needs to which I shall shortly return. The goal of the State Planning Policy Framework is expressly stated in terms that recognised decision makers must address the question of whether outcomes are acceptable in terms of "net community benefit". Clause 11.02 provides:
"The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development." (My emphasis)
The concept of net community benefit is not one of ideal outcomes, but of outcomes which result in a net benefit to the community assessed within a policy framework by reference to both their benefits and disbenefits.
61 Our task therefore is to determine whether the proposal before us achieves net community benefit, and a reasonably acceptable outcome, noting that there may be associated benefits and disbenefits.
62 To properly ascertain the relevant benefits and disbenefits of this proposal we will briefly explore the other key issues in dispute.
Does the location of the proposal allow appropriate access to services and facilities?
63 The parties that oppose the grant of a permit submitted that the distance from the review site to Torquay, and the distance from any public transport or activity centre, made the review site unsuitable for the proposed land use. As we have identified in our policy analysis, growth in tourist accommodation is desired, and at least part of this growth will need to occur within the Farming Zone, and thus outside of serviced areas. We therefore do not consider the distance of the review site from services and facilities in Torquay to be a factor against the grant of a permit.
64 However we also find that if the review site were within walking distance of a facility or destination attractive to or useful for tourists, such as a beach, a forest walk/waterfall or a convenience store, that would have been a positive element that would have counted in favour of the proposal. As the review site is not within walking distance of such a facility or destination, there is no added support provided to establishing this proposed land use in this location.
Is the nature of the proposed use acceptable, suitable for land within the farming zone and able to be controlled?
65 We have already identified and given reasons for our broad support for the establishment of Camping and Caravan Parks in appropriate locations within the Farming Zone. We do not intend to repeat that analysis.
The parties that oppose the grant of a permit made various representations as to why the proposed land use was likely to morph into more permanent accommodation, which is prohibited within the Farming Zone. We need to accept the proposal put forward by the Applicant at face value. Further, despite their efforts, none of the material put forward by the objectors persuaded us that the proposed tourist accommodation was likely to fail,
66 and therefore would be bound to be leased to longer term tenants. We also consider that the draft conditions put forward by Council and the Applicant towards the conclusion of the hearing would give Council sufficient enforcement powers, and ensure that a Camping and Caravan Park is what is operated on the review site.
67 For these reasons we are satisfied that a Section 2 use is proposed, and with appropriate conditions would prevail on the review site.
68 Some of the residents also raised a concern that the proposed use and development would be contrary to the character of the surrounding area. In particular residents from the adjacent low density residential zone and the Kithbrooke Park Country Club, which is a retirement village, raised concern with the outlook from their locations to the surrounding rural landscape.
69 We are persuaded by the evidence of Mr Wyatt and Mr Rodda that, upon completion, the review site will appear simply as a heavily vegetated site on short range views from the surrounding community. As such, it will appear more in keeping with the surrounding natural landscape than the nearby residential development. In particular we note that Kithbrooke Park Country Club, which is being developed in stages, will ultimately be a particularly dense form of residential development that itself will appear very different to the low density of the nearby residential estates. In truth we find that the nearby presence and character of the Kithbrooke Park Country Club only supports the proposed development, and further highlights the low density and large areas for landscaping that are proposed as part of this Camping and Caravan Park.
70 The arguments put by the objectors on these matters do not weigh against the grant of a permit.
Will the proposal achieve an appropriate visual outcome?
71 Mr Wyatt provided a landscape concept plan and a visual assessment which persuaded us that the proposed land use and development will be well screened from adjoining roads and properties, in the medium to longer term as the landscaping is established. In the short term the proposed buildings on the review site would be more visible, however this is a reasonable outcome from a new use and development.
72 Our concerns lay with issues that Mr Wyatt did not consider in his analysis, and was unable or unwilling to properly address in cross examination. The first of these is the longer range views across the Thompson Valley to the review site. As previously discussed, Mr Tarr identified one such viewing point in his submission from Mount Duneed Road, and another from Ghazeepore Road. The viewing location from Mount Duneed Road was not an isolated site, but rather an almost continuous view for at least a kilometre along this main road, as observed on our accompanied inspection. These longer range views were not assessed in Mr Wyatt’s evidence, and Mr Wyatt expressed that he was unable to make an assessment in cross examination without knowing exactly where the photos were taken, and with what type of camera and lens.
73 The second issue is the potential impact at night time, particularly when viewed from across the opposite side of the Thompson Valley. We note the submissions made by objectors about the impact of the various lights that would be associated with this development on broader views within the valley. No assessment was undertaken by Mr Wyatt, and under cross examination the prospect of impact at night was dismissed on the basis of lights from existing farmhouses, and the background glow of Torquay. We consider that at the distance involved across the Thompson Valley, the impact of night lighting from the proposal may be difficult to distinguish from the general glow of lighting emitted from Torquay itself. However, we do accept that the proposal would introduce additional lighting into the general rural environment.
74 We are therefore left unconvinced that this proposal will achieve appropriate visual outcomes for the Thompson Valley on longer range views in the shorter term. However, in the long term, such impacts may dissipate with the establishment of proposed landscaping. The real concern is the introduction of a substantial development and its presence within an area designated in policy as non-urban where Council’s Municipal Framework Plan in Clause 21.01-4 seeks to maintain a clear rural-landscape separation between Torquay-Jan Juc and the Armstrong Creek southern growth corridor of Geelong.
75 We find this concern to weigh against the grant of a permit.
Will the proposal have a positive economic benefit for the region?
76 Mr Henshall gave expert evidence in relation to the economic impacts of the proposed development. We are persuaded by his evidence that the proposed construction and on-going operation of the facility, along with the influx in additional tourists spending money, will have a positive economic impact on Torquay and the broader region.
77 The parties that oppose the grant of a permit sought to mount two arguments of an economic nature. Firstly, that there will not be a market for the proposed accommodation, based on growth rates identified in the Great Ocean Road Destination Management Plan (Urban Enterprise, February 2012). And secondly, that the proposal will result in an oversupply of accommodation in this sector, which may detrimentally impact existing facilities.
78 We are not persuaded by these submissions, and find that there is no evidence that the proposal would have any negative economic impact. We make this finding for the following reasons:
a. The growth projections contained in the Great Ocean Road Destination Management Plan for caravan parks do not make sense, as they are based on a current supply of 630 rooms in existing caravan parks in the entire region, when we think that the likely number is around ten times that figure.[1] The projections for a high growth rate of 8% by 2030, when applied to the likely current supply, creates a future demand well in excess of what is proposed on the review site. Our only conclusion from this analysis is that the figures for caravan parks in the Great Ocean Road Destination Management Plan cannot be relied upon.
b. The data provided by Mr Milner about the extent of permanent rentals in the existing caravan parks in Torquay indicates that these existing facilities will not be affected by new short term accommodation provided on the review site.
c. The absence of an objection from any existing caravan park, particularly given the extent of community briefing and reaction to this proposal, indicates to us that the existing operators are not concerned with any increase in competition provided by the proposal.
79 For these reasons, we have been persuaded that there are only positive economic impacts arising out of the proposed development. These economic benefits weight in favour of the grant of a permit, though we note that they could equally be achieved with a site that is located in a preferred location for new tourist development.
Are there likely to be unreasonable off-site amenity impacts?
80 Usually off-site amenity impacts in a planning dispute are considered in relation to overshadowing, overlooking and visual bulk. The large landscaping buffers provided around the review site make these matters irrelevant, and logically they were not the subject of submissions at the hearing.
81 The only submission made in relation to off-site amenity impacts, is a concern raised by Mr Frame about potential vandalism and thefts by tenants from the Camping and Caravan Park, against the residents and property of the Kithbrooke Park Country Club. We understand Mr Frame is well positioned to make such a submission, given his previous standing within the Victoria Police. However we are not persuaded that the short term residents of a caravan park are any more likely to commit crime than any other sector of our community. Mr Frame did not provide any research or statistics to support his submission. We therefore cannot give it any weight.
Will an appropriate level of internal amenity be achieved?
82 None of the parties before us criticised the design of the individual cabins, their spacing, or the design and dimensions of the caravan sites. On our review, we confirm that these elements of the proposal will achieve an appropriate level of internal amenity for future occupants.
82 Attention was drawn by a number of parties to what they considered to be a lack of recreational activities and facilities provided for tourists on site. Mr Tarr in particular undertook a comparative analysis of the activities to be provided on the review site with those provided within other nearby caravan parks. The recently developed Bellarine Big 4 Caravan Park was a focus for a number of submitters.
84 We are not persuaded that the role of a decision maker in a planning dispute involving a proposed Camping and Caravan Park is to assess the extent of recreational facilities and activities provided for on site. Ultimately this will be a decision for a market provider to make in the event that they achieve a planning permit. Such operators are in the best and most informed position to ensure that a range of recreational activities and facilities are provided that will attract their intended market(s). They also have the most incentive to ensure that appropriate facilities are provided, to ensure that their investment is a success. We therefore find that the extent of recreational facilities and activities provided in a caravan park can be relatively self managed.
85 We also note that the main attractions for tourists to the review site will be those that exist off-site. These include the regions’ fabulous beaches, the Great Ocean Road itself, coastal towns, spectacular scenery, forest walks and the like. We therefore consider that there may be less need for recreational facilities on this caravan park than some in other regions. However again we find the operator to be in the best position to determine this issue.
86 For these reasons we find that the extent of recreational facilities and activities provided on site is not a factor in our decision making.
Does the proposal cause any unreasonable impacts in terms of car parking and traffic movements?
87 During the course of the hearing there was no dispute that there is more than sufficient capacity to contain all car parking associated with the proposed land use within the review site. The issue of car parking is therefore not one that we need to address.
88 The resident objectors raised a number of concerns in relation to the traffic impacts of the proposed development. These include the width and capacity of Coombes Road to accommodate the additional traffic, including cars towing caravans, and regarding the sight distances at the intersection of Coombes Road and the Surf Coast Highway.
89 Traffic evidence was provided by Mr Hunt. We consider that Mr Hunt has provided us with a quality expert independent assessment of the traffic issues relating to the proposed land use and development. As such, we are persuaded by his evidence in relation to traffic matters.
90 Having travelled Coombes Road during our accompanied site inspection, we are satisfied that its width will allow the safe passage of cars towing caravans. Drivers of cars towing caravans often take additional precautions driving on unknown roads, including adjusting their speed accordingly. We see no particular constraint associated with Coombes Road that will not allow a driver to negotiate it successfully.
91 We also accept Mr Hunt’s evidence that sufficient sightlines exist at the intersection of Coombes Road and the Surf Coast Highway to allow safe vehicle movements, even by cars towing caravans. We also note that an upgrade of this intersection to one that is signalised is projected to occur in the short term. We anticipate that these works will make that intersection even safer for turning vehicles. In the meantime we are satisfied that the proposed development will not add a level of traffic to this intersection that will cause any particular safety issue.
92 Some residents also raised concerns regarding the potential for traffic from the proposed caravan park to ‘rat run’ through the nearby low density residential estates to access the Surf Coast Highway. We adopt the evidence of Mr Hunt that such rat running is unlikely. Coombes Road provides the most direct route to the Surf Coast Highway, and in peak times it is likely that some traffic will utilise Messmate Road and Grossmans Road to access the Surf Coast Highway at a signalised intersection. The alternative ‘rat running’ routes of using Ocean Acres Drive or Briody Drive to access Grossmans Road are unlikely to be favoured given the more residential and indirect nature of these roads.
93 For these reasons we find that the traffic issues raised in relation to the proposed development do not weight against the grant of a permit.
Net community benefit
94 Having explored all of the relevant issues we now need to return to our principle task of assessing whether the proposed development achieves a net community benefit. The key benefits of meeting policy encouragement for providing more tourist accommodation, and the associated economic benefits of the development, weigh heavily in our decision making. The environmental benefit provided by the extent of indigenous vegetation which is to be re-established on the review site is a further benefit associated with the proposal.
95 However we don’t find these benefits to outweigh the potential erosion of the achievement of a settlement break through the Thompson Valley, which is a cornerstone of planning policy in this region. Nor do they outweigh the strategic work that the Surf Coast Shire Council has undertaken to identify preferred locations for major tourist developments, and to establish structure planning for the town of Torquay. Our uncertainty and concerns regarding the presence of the proposal within the long range views across the Thompson Valley is another potential disbenefit, and factor weighing against the grant of a permit. We also find that public confidence in the planning system and the value of strategic planning would be significantly impacted if a development that sat in such contrast to the clear policy objectives of the Surf Coast Planning Scheme were allowed on the review site.
96 For these reasons we find that approval of the proposed development would not achieve a net community benefit, and that indeed a net community benefit would result from a refusal to grant a permit. For these reasons we will affirm the Council’s decision.
Conclusion
97 For the reasons explained above, the decision of the Responsible Authority is affirmed. No permit is to issue
Michael Deidun
Presiding Member
Chris Harty
Member
