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SURF COAST PLANNING SCHEME AMENDMENT C38

SALINITY MANAGEMENT OVERLAYS

PANEL REPORT

MAY 2009

SURF COAST PLANNING SCHEME AMENDMENT C38

SALINITY MANAGEMENT OVERLAYS

PANEL REPORT

Cathie McRobert, Chair

Gordon Anderson, Member

MAY 2009

SURF COAST PLANNING SCHEME – AMENDMENT C38 PANEL REPORT – MAY 2009

Surf Coast Planning Scheme Amendment C38 This is the report of the Panel appointed under Sections 151 and 153 of the Planning and Environment Act 1987 (‘the Act’) to consider the Amendment.

The Amendment

Surf Coast Planning Scheme Amendment C38

Purpose of Amendment

To implement the Corangamite Catchment Management Authority (CCMA) Salinity Management Overlay Project by amending the Surf Coast Planning Scheme to:

reference salinity in the Municipal Strategic Statement; introduce the Salinity Management Overlay(SMO); and apply the Environmental Significance Overlay ‐ Schedule 1 to saline wetlands and primary salinity areas.

Planning Authority:

Surf Coast Shire. The Surf Coast Shire prepared the Amendment in co‐operation with CCMA.

Authorisation: Amendment C38 Authorisation A664 (dated 27 March 2007): required the Amendment to be submitted to the Minister for approval pursuant to Section 31 of the Act.

encouraged Council to reach an agreement with DSE to minimise Section 55 referrals.

Exhibition: 10 July to 13 August 2007

Submissions: 23 submissions were lodged (listed in Appendix A) of which: 18 objected to the Amendment; five from statutory/referral (the EPA, Western Coastal Board, VicRoads, City of Greater Geelong and the Department of Sustainability and Environment (DSE)) did not object to the Amendment. DSE foreshadowed the desirability of establishing a Memorandum of Understanding relating to referrals.

The Panel: Cathie McRobert (Chair) Gordon Anderson

Panel Hearings:

Directions Hearing: 3 April 2009 at Torquay Main Hearing: 4 and 5 May 2009 at Torquay


Appearances: Surf Coast Shire represented by Mr Jorgen Peeters

CCMA represented by Ms Angela Vary, Mr Lucan Orman and Mr Chris Harty. Mr Tony Jones, CCMA’s Floodplain Manager, provided advice on flooding at Lake Modewarre. Evidence called:

- Ms Lisa Miller, Department of Primary Industries (DPI) ‐ Salinity Mapping

- Mr Peter Dahlhaus, Dahlhaus Environmental Geology Pty Ltd ‐ Hydrology and Salinity

Mr Vladimir Kondratiev

Mr Brian and Mrs Faye Gibson

Mr Peter Poteralski and Ms Maggie Juniper

Mr Benjamin Reid

Mr Tim Vernon (for Ms Linda Weatherton, Mr Paul Hemingway and Mr Vernon). Evidence called:

- Professor Emeritus Robert E White – Hydrology and Salinity

Site Inspections:

The Panel made unaccompanied inspections of relevant areas of the properties identified by submitters who presented at the hearing.

Date of Report:

29 May 2009


Contents OVERALL CONCLUSIONS AND RECOMMENDATIONS .................................. 5

1. INTRODUCTION .................................................................................................... 9 1.1 Background to the Amendment .............................................................................. 9 1.2 The Existing Planning Framework.......................................................................... 9

2. THE AMENDMENT .............................................................................................. 11 2.1 Post Exhibition Review and Changes Supported ............................................... 12

3. ISSUES...................................................................................................................... 13 3.1 Is the Amendment Required? ................................................................................ 13 3.2 Does the Amendment Support Planning Policy? ............................................... 15

3.2.1 Policy Support for Applying the SMO.......................................................... 15 3.2.2 Policy Support for the Proposed ESO1 ......................................................... 16 3.2.3 Conclusion – Consistency with Planning Policy........................................... 17

3.3 Was the Salinity and Overlay Mapping Methodology Sound? ........................ 17 3.3.1 Salinity Mapping ........................................................................................... 17 3.3.2 Salinity Management Overlay Mapping........................................................ 20 3.3.3 Accuracy and Extent of Mapping.................................................................. 22 3.3.4 Other Salinity Areas ...................................................................................... 24

3.4 Specific Sites ............................................................................................................. 24 3.4.1 Torquay - The Sands ..................................................................................... 24 3.4.2 Winchelsea - Buhrmanns Road Area............................................................. 30 3.4.3 Lake Modewarre............................................................................................ 33 3.4.4 25-65 Raglan Street, Modewarre................................................................... 36 3.4.5 315 Gherang Road, Gherang ......................................................................... 37 3.4.6 275 Thielemanns Road, Gherang .................................................................. 38 3.4.7 Other Properties............................................................................................. 38

3.5 Permit Requirements and Referrals ...................................................................... 41 3.5.1 Panel Discussion............................................................................................ 42

3.6 Impact on Property Value ...................................................................................... 47

Appendices APPENDIX A LIST OF SUBMITTERS...................................................................48

APPENDIX B REVISED OVERLAY BOUNDARIES SUPPORTED BY COUNCIL & CCMA ........................................................................49

List of Figures Figure 1 Typical Exhibited Salinity Management Overlay Map (29) ...................11

Figure 2 Mapped Salinity Areas - Surf Coast Shire...............................................19


Acronyms Used in Report

CCMA Corangamite Catchment Management Authority

DEM Digital Elevation Model

DPCD Department of Planning and Community Development

DSE Department of Sustainability and Environment

DPI Department of Primary Industries

LiDAR Light Detection and Ranging

LPPF Local Planning Policy Framework

MSS Municipal Strategic Statement

SPPF State Planning Policy Framework

The Act Planning and Environment Act 1987

Zones

B1Z Business 1 Zone

CDZ Comprehensive Development Zone

FZ Farming Zone

LDRZ Low Density Residential Zone

PCRZ Public Conservation and Resource Zone

R1Z Residential 1 Zone

RCZ Rural Conservation Zone

SUZ Special Use Zone

TZ Township Zone

Overlays

DDO Design and Development Overlay

ESO Environmental Significance Overlay

FO Flood Overlay

LSIO Land Subject to Inundation Overlay

SMO Salinity Management Overlay


Overall Conclusions and Recommendations

Overall Conclusions

We are satisfied that the application of the SMO in Surf Coast Shire supports planning policy and serves important functions which centre on:

Identifying areas subject to saline groundwater discharge to ensure land owners and prospective purchasers are aware that salinity is or may become an issue.

Preventing damage to buildings and infrastructure from saline discharge and shallow watertables by avoiding development of areas at risk and incorporating protective measures in the design of buildings and infrastructure.

Encouraging management measures to be undertaken to reduce the spread of salinity.

The methodology adopted to delineate SMO areas was sound and used the best available information, including revision of the extent of the exhibited overlay on two occasions when more accurate elevations data became available. Where submitters did not appear at the Panel hearing we were unable to explore their concerns further and we have accepted the recommended revisions to the SMO recommended by the Shire. However, the evidence presented and our site inspections supported submissions that there should be further consideration of the extent of the SMO at ‘The Sands’ development in Torquay and in the Buhrmanns Road area in Winchelsea. On the western side of Lake Modewarre our inspections confirmed submissions about the nature of the escarpment but, given the limited development potential and the need to manage issues such as erosion, we have endorsed a pragmatic approach of aligning both the SMO and ESO1 with the upper edge of the escarpment.

There is also broad policy support for the protection of the environmental significance of wetlands and associated dryland habitats. Surf Coast planning scheme already recognises the significance and need to manage these areas through the application of ESO1 and we do not challenge the appropriateness of this overlay. The exception is ‘The Sands’ development in Torquay as it has a water management regime specifically designed to protect the recognised environmental values of the area and in our view the application of ESO1 to the residential lots would add a regulatory burden for both Council and landowners with little, if any, benefit to the environment.


While both overlays are justified, there is a strong case to avoid unnecessary applications where the proposed development or activity would not compromise the achievement of the overlay objectives or where the potential impacts are so minor that the demands on applicants, the responsible authority and referral authorities do not justify the resource costs associated with the permit process. We have recommended additional exemptions from permit requirements under the SMO and ESO1 in relation to minor non‐habitable buildings and the management of vegetation. We have also recommended that further exemptions should be considered for routine farming activities that would not have a significant impact on the achievement of overlay objectives.

Finally, although our role is limited to planning scheme mechanisms, and specifically the Amendment under consideration, we note that other strategies and actions to address salinity are clearly important. We are conscious that options to protect existing urban development within the SMO are constrained. We encourage the Corangamite Catchment Management Authority and Council to actively plan with affected landholders for responses to potential expansion of salinity in urban areas that are already developed. In these areas, consideration should be given to the practicality and cost of various options such as active management measures (for example, pumping to lower groundwater levels), passive management measures (for example, strategic planting), retrofitting existing development with measures to protect from salt attack, or other works (for example, to reduce localised ponding). Strategic monitoring within salinity ‘buffer areas’ would appear to be a logical starting point in priority areas to provide the necessary timeframe to implement appropriate responses, if they in fact prove to be required.

Consolidated Recommendations

Based on the reasons set out in this Report, we recommend that Amendment C38 to the Surf Coast Planning Scheme should be adopted subject to the following changes:

Extent of Salinity Management Overlay (SMO) and Environmental Significance Overlay – Schedule 1 (ESO1)

1. Revise the extent of the SMO at the following properties in accordance with the Dahlhaus reports dated March 2008 and March 2009 (as appropriate):

275 Thielemanns Road, Gherang; 740 Hendy Main Road, Moriac; 510 Ingleby Road, Winchelsea; 465 Loutitt Bay Road, Freshwater Creek; 395 Pettavel Road, Freshwater Creek; and Great Ocean Views Estate, Torquay.


2. Revise the extent of the SMO at 315 Gherang Road, Gherang to recognise the results of soil testing that indicated a smaller area than previously mapped is subject to salinity.

3. Apply the ‘rules’ for determining ‘salinity buffer’ areas in a review of the SMO boundary in ‘The Sands’ development in Torquay and specifically at the rear of the Sands Boulevard lots. This review should take account of the modified terrain levels and slopes from primary salinity areas.

4. Modify the extent of the SMO in the Buhrmanns Road/Barwon Terrace/McConachy Street area in Winchelsea if soil testing indicates that land affected by salinity is less than indicated by DPI mapping.

5. Review the SMO and ESO1 boundaries on the western side of Lake Modewarre to ensure that they align with the upper edge of the escarpment.

6. Delete the proposed ESO1 from residential lots at The Sands development in Torquay.

Exemptions from Permit Requirements

7. Provide further exemptions in the Salinity Management Overlay and ESO1 relating to vegetation removal listed below:

Lopping and pruning for maintenance; Mowing/slashing of grasses; Dead vegetation – The SMO exemption should extend beyond the Clause 52.17 exemption as dead vegetation does not influence salinity;

Planted vegetation; Grazing (already provided in ESO1); Stock movements on roads; Regrowth; Existing and approved buildings.

8. These additional exemptions should be generally on the terms set out in Clause 52.17 with some further qualifications as discussed in Chapter 3.5.1.

9. Include an exemption in the SMO for non‐habitable outbuildings up to 100 square metres if there is no increase in waste water disposal and consider whether a similar exemption should apply under ESO1.

10. Council and Corangamite Catchment Management Authority consider whether there are forms of earth works associated with agriculture that would not have consequences for salinity management and/or the achievement of ESO1 objectives should be exempt from permit requirements under the SMO and/or ESO1.


Other

11. Before the Amendment is approved, Council and Department of Sustainability and Environment establish a Memorandum of Understanding to identify as many circumstances as possible where referral of applications relating to development, works and vegetation can be avoided.

12. Monitor groundwater at The Sands development in Torquay, and other developed urban areas within salinity buffer areas, to provide a basis for review of the SMO boundaries or measures to protect development from potential impacts due to salinity.

13. The State Government consider modifying the Australian Building Code to require measures to protect buildings and infrastructure for salt attack in salinity areas.

14. Department of Planning and Community Development consider: amending the Victoria Planning Provisions to delete reference to the document A Local Government Planning Guide for Dryland Salinity (Department of Conservation and Natural Resources 1995) from Clause 15.03 and in the list of incorporated documents in Clause 81; and

making all incorporated documents publicly accessible via the ‘planning schemes online’ webpage.


1. Introduction

1.1 Background to the Amendment

Amendment C38 implements the Corangamite Catchment Management Authority Salinity Management Overlay Project as it relates to the Surf Coast Shire1. This project, which aimed to manage salinity to mitigate the risk of damage to public and private assets, was funded by the joint Federal and State Government program National Action Plan for Salinity and Water Quality.

Our focus is on considering Amendment C38, but we are conscious that the Amendment represents only part of the suite of responses to salinity. The Corangamite Salinity Action Plan 2005‐2008, April 2006, identifies the need for engineering and biological management actions2 in addition to planning responses. These responses include:

modifications to road foundations; surface and subsurface drainage in built areas; manipulation of water flows in waterways; shallow surface drains to intercept lateral flows of perched groundwater; discharge management to prevent water logging and fresh water contamination;

high‐density tree planting and tree interception belts in recharge areas; tree planting adjoining or near saline discharge; and protection and management of discharge to allow natural vegetation recovery.

1.2 The Existing Planning Framework

Most of the land to which it is proposed to apply the SMO is non‐urban land within the Farming Zone (FZ) and to a lesser extent the Rural Conservation Zone (RCZ). However it is also proposed to apply the SMO to land in the:

recent development known as ‘Torquay Sands’, which is within the Comprehensive Development Zone (CDZ), RCZ and Public Conservation and Recreation Zone (PCRZ) (see further discussion in Chapter 3.4.1);

1 The Corangamite Catchment Management Authority Salinity Management Overlay Project covers Colac

Otway Shire, Corangamite Shire, Golden Plains Shire and the Surf Coast Shire. 2 See Chapter 4.2 Corangamite Salinity Action Plan 2005-2008


Residential 1 Zone (R1Z), Township Zone (TZ) and/or Low Density Residential Zone(LDRZ) in Torquay (Great Ocean Views/Spring Creek), Jan Juc, Anglesea, Aireys Inlet, Deans Marsh; and

Business 1 Zone (B1Z) in Aireys Inlet and Special Use Zone Schedule 53 (SUZ5) in Anglesea.

A number of the primary salinity wetlands and lakes are already covered in the Schedule 1 to the Environmental Significance Overlay (ESO1) which relates to Wetland and Associated Dryland Habitat Protection. The overlay objectives include:

To maintain the physical and biological integrity and functioning of natural systems including: …. · the recharge and discharge of ground waters

ESO1 requires a permit for most development and the removal, destruction and lopping of native vegetation where specified exemptions do not apply.

The Flood Overlay (FO) and Land Subject to Inundation Overlay (LSIO) also apply to flood prone areas. Further, in the urban areas, Design and Development Overlays and Neighbourhood Character Overlays also apply in some instances.

3 Tourism Development Precincts


2. The Amendment Amendment C38 to the Surf Coast Planning Scheme proposes to:

amend the Municipal Strategic Statement (MSS) to reference salinity; apply the Salinity Management Overlay (SMO) to areas where salinity already exists or is likely to occur within the design life of a development (30 to 50 years). The SMO has been applied to very specific areas as illustrated in a typical SMO map in Figure 1. Under the SMO a planning permit is required to construct a building or carry out works, subdivide land, and remove, destroy or lop any vegetation. The statewide SMO exemptions from permit requirements apply but additional exemptions are not proposed in the schedule to the SMO;

revise the extent of the Environmental Significance Overlay ‐ Schedule 1(ESO1) which is applied to protect the environmental values of saline wetlands and primary (naturally occurring) salinity areas. ESO1 requires a planning permit for development and to remove, destroy or lop native vegetation. The statewide ESO exemptions from permit requirements apply and the schedule provides some additional exemptions relating to native vegetation (see Chapter 3.5.1).

Figure 1 Typical Exhibited Salinity Management Overlay Map (29)


2.1 Post Exhibition Review and Changes Supported

We were advised that DPI’s salinity officers verified the accuracy of mapped salinity areas where submissions requested a review of the SMO boundaries in all cases except 315 Gherang Road. Soil samples taken at that property to investigate the extent of salinity were provided after the Panel hearing (See Chapter 3.4.5).

The extent of the SMOs was also reviewed twice on the basis of higher resolution Digital Elevation Model (DEM) data that had become available after the saline areas and buffers were mapped in 2005. (See discussion in Chapter 3.3). As a result of these reviews, Council and CCMA supported the modifications to the SMO boundaries as shown in Table 1 below and on the maps in Appendix B. The changes that were supported are also noted in the discussion of submissions in Chapter 3.4.

Revision Date Property Mar 08 Mar 09

Change considered by Council?

Great Ocean Views Estate, Torquay X X Mar 08 change only 740 Hendy Main Road, Moriac X Yes 510 Ingleby Road, Winchelsea X Yes 465 Loutitt Bay Road, Freshwater Creek X Yes 395 Pettavel Road, Freshwater Creek X Yes 315 Gherang Road, Gherang X No 275 Thielemanns Road, Gherang X No Buhrmanns Road, Winchelsea X No 185 Inverleigh-Winchelsea Road, Winchelsea X No The Sands, Torquay X No Lake Modewarre X X Mar 08 change only

Table 1 Proposed Post‐exhibition SMO Boundary Changes Source: Surf Coast Shire and Corangamite CMA submission


3. Issues

In this chapter we address whether the proposed overlays are required, the strategic justification for the Amendment and the soundness of the methodology for salinity mapping. We then focus on the following concerns raised by objecting submitters:

the accuracy and extent of mapped areas for specific sites, particularly the width of the buffer zones;

the burden placed on landowners in terms of permit requirements; whether other measures are more appropriate to address salinity; and the lowering of property values.

3.1 Is the Amendment Required?

It is well established that salinity has adverse impacts on environmental and recreational values, water quality, agricultural productivity, structures, roads, hydraulic infrastructure and telecommunication cables.

Unlike approaches adopted in some other municipalities, Amendment C38 focuses on management of salinity via overlays applied to discharge areas (and potential discharge areas referred to as buffers), rather than the much broader recharge areas. This has limited the regulatory burden for landholders, the Shire and Referral Authorities. The approach adopted also recognises that it is not necessary to duplicate the Clause 52.17 requirements relating to the removal of native vegetation. The decision guidelines in that statewide clause require consideration of adverse effects on groundwater recharge, particularly on land where groundwater recharge to saline watertables occurs or which is in proximity to a discharge area.

We are satisfied that the approach adopted is reasonable and the application of the proposed overlays is one of a range of strategies to address salinity. We note that the focus on discharge areas places an emphasis on consumer protection and responding to impacts of salinisation, rather than landscape scale strategies to address salinisation processes. As Council submitted:

It should be emphasised again that the main purpose of the SMO is to protect buildings, roads, infrastructure and other assets from the damaging effects of salt. The overlay is not going to solve salinity problems, as the source of the problems often lies further afield. The SMO is used as a land use planning tool to alert Council and landowners to potential salinity problems so that the appropriate steps can be taken to protect assets from salt damage. The overlay does not necessarily prevent the development of land, but rather ensures that salinity is properly taken into consideration with any development or subdivision proposal.


We also queried whether measures to ensure consumers are protected from adverse impacts on buildings and associated infrastructure due to salinity are/should be primarily matters for building regulations.

Council and CCMA advised that various building standards and products can be used, such as damp proof slabs, membranes, salt resistant bricks and concrete and non‐metal pipes. There are currently no formal Salinity Building Standards in the Australian Building Code (other than general provisions for minimising the risk of moisture damage) but modifications to the code have been introduced in New South Wales and South Australia. The Salinity Management Overlay Project Report 2006 indicated that Australian Standards for building in a saline environment were likely to be introduced into the Australian Building Code in the near future but this has not yet occurred.

The building regulations may (and probably should) play an important role in protecting the integrity of buildings and infrastructure against salt attack in the future but that is a matter beyond the scope of this Panel. Nevertheless, planning and building regulations can operate in a co‐ordinated, complementary way, as occurs in other overlays relating to hazards and ResCode, and the SMO could well have a role in identifying properties to which those specific construction requirements apply.

We agree with Council and CCMA that there are sound reasons to apply the SMO which centre on:

identifying areas subject to saline groundwater discharge or high groundwater recharge;

preventing damage to buildings and infrastructure from saline discharge and shallow watertables; and

encouraging revegetation and development to be undertaken to reduce the spread of salinity and saline discharge.

Panel Recommendation

The State Government consider modifying the Australian Building Code to require measures to protect buildings and infrastructure for salt attack in salinity areas.


3.2 Does the Amendment Support Planning Policy?

3.2.1 Policy Support for Applying the SMO

State planning policy specifically relating to salinity (Clause 15.03) makes it clear that planning authorities should use zoning, overlay controls and permit conditions to achieve the policy objective:

To minimise the impact of salinity and rising watertables on land uses, buildings and infrastructure in rural and urban areas and areas of environmental significance and reduce salt loads in rivers.

This policy is directed at promoting vegetation retention and replanting in recharge areas and preventing inappropriate development in areas affected by groundwater salinity. Planning authorities are required to have regard to:

A Local Government Planning Guide for Dryland Salinity (Department of Conservation and Natural Resources 1995).

Any relevant regional catchment strategy and any associated implementation plan or strategy and special area plans approved under the Catchment and Land Protection Act 1994.

Local planning policy also recognises that farmers are facing increased problems due to salinity and salinity poses an environmental risk to lakes and aquatic habitats in rivers (Clause 21.04, 21.05‐4). It also highlights that the loss and fragmentation of native vegetation contributes to dryland salinity (Clause 21.05‐2).

Further, State policy to protect catchments, waterways and groundwater (Clause 15.01) addresses potential impacts of proposed land use or development on soil degradation and groundwater salinity. This Clause seeks to ensure incompatible land use activities are discouraged in areas subject to severe salinity; requires implementation of relevant strategies dealing with soil salinity to be considered; and encourages planning authorities to utilise DSE mapped information.

Both State and local planning policy emphasise the importance of recognising the limits of land capability, potential natural hazards and the need to protect environmental quality in planning for agricultural areas, rural residential development and settlements (for example, see Clauses 15, 14.01, 16.03, 21.07, and 21.09).

Thus, we are satisfied that, provided the methodology adopted to delineate SMO areas is sound (see Chapter 3.3), the Amendment is consistent with planning policy and would support the achievement of planning objectives.


As an aside, we note with great concern that the document A Local Government Planning Guide for Dryland Salinity, which is formally incorporated in all Victorian planning schemes (Clause 81), is not readily publicly accessible. The Panel, unlike lay users of planning schemes, is familiar with sources of planning information and links to them, but had great difficulty in securing a copy. Our search of various websites indicated that the document was out of print and electronic copies were not available and initial enquiries to DPCD suggested that the availability of the document was uncertain. A copy was eventually collected, only to find that the document is redundant because it relates to the development of model planning scheme provisions by individual Councils and has been superseded by the introduction of the SMO.

3.2.2 Policy Support for the Proposed ESO1

Planning Authorities are to protect and enhance the environmental qualities of waterways and should ensure siting and management minimise contaminated discharge to ground water, rivers, streams and wetlands (Clause 15.01). Further, planning policy specifically obliges planning authorities to ensure that any changes in land use or development would not adversely affect the habitat values of wetlands and wetland habitats designated under international agreements4 (Clause 15.09‐1). Likewise, the MSS recognises the environmental significance of wetlands in the Shire and the need to manage a range of threats to those values such as eutrophication, intrusions from polluted or saline groundwater, nutrient runoff from rural land use, the degraded state of waterways and wetlands, loss of the riparian zone and biodiversity, inappropriate land use and drainage, outbreaks of blue‐green algae and changed flow regimes (for example, Clauses 21.05‐1, 21.05‐4). This is reinforced in the Floodplain Management local policy which highlights the interrelationship between flooding, inappropriate development on the floodplain and wetland health (Clause 22.07‐1). The preservation of flood paths and wetlands, plus the importance of retaining natural drainage corridors with vegetated buffer zones at least 30 metres wide along waterways are recognised in planning scheme provisions (for example, see Clauses 15.01‐2, 15.02, 22.07, and decision guidelines in the FZ, RCZ, LSIO).

There is broad policy support for the protection of the environmental significance of wetland and associated dryland habitats. Surf Coast Planning Scheme already recognises the significance and need to manage these areas through the application of ESO1 and we do not challenge the appropriateness of this overlay in general terms. However, submissions that questioned the application of the overlay to their properties in the vicinity of Lake Modewarre are considered in Chapter 3.4.3.

4 The Ramsar Convention, the Japan-Australia Migratory Birds Agreement (JAMBA) or the China-

Australia Migratory Birds Agreement (CAMBA).


3.2.3 Conclusion – Consistency with Planning Policy

Overall we are satisfied that the application of the SMO and ESO1 proposed in Amendment C38 supports State and Local planning policy. This finding is subject to our subsequent assessment of the methodology adopted to delineate overlay areas and our consideration of submissions relating to specific properties.


The Department of Planning and Community Development consider: Amending the Victoria Planning Provisions to delete reference to the document A Local Government Planning Guide for Dryland Salinity (Department of Conservation and Natural Resources 1995) from Clause 15.03 and in the list of incorporated documents in Clause 81; and

Making all incorporated documents publicly accessible via the ‘planning schemes online’ webpage.

3.3 Was the Salinity and Overlay Mapping Methodology Sound?

3.3.1 Salinity Mapping

There have been reports of salinity in Surf Coast Shire since the first Soil Conservation Authority statewide survey in the early 1950s.

We heard expert evidence about salinity mapping in Surf Coast Shire, mainly from Mr Dahlhaus and Ms Miller, supported by Mr Peeters and Ms Vary in the joint submission from Surf Coast Shire and CCMA.

Ms Miller said the DPI provided CCMA with data on the location and description of salinity to help in developing a SMO for the Surf Coast Shire. She said the DPI drew on:

the DSE database of salinity discharge sites; DPI’s salinity discharge mapping in 2005 specifically for developing the SMOs; and

several earlier studies from 1983, 1992 and 2003.

The 2005 salinity discharge survey targeted mainly potential growth corridors in the Shire, including:

areas within about three kilometres of Winchelsea and Deans Marsh townships and within about five kilometres of Torquay;

Modewarre Salinity Action Plan priority area; and Lake Murdeduke area.


DPI staff identified and mapped salinity discharge areas (that is, Category 1: ‘Areas currently affected by secondary salinity’, and Category 2: ‘Areas of primary salinity regarded as an asset’) across priority areas in the Surf Coast Shire. They used a range of methods, including review of previous mapping studies, aerial photograph interpretation and ground ‘truthing’ (through visual inspection of sites, identification of vegetation indicators and limited soil tests). DPI mapped the location and boundaries of saline areas using a handheld Global Positioning System (GPS) device, identified whether they are primary or secondary in nature and determined the degree of severity.

Ms Miller said for a site to be determined ‘saline’, it must contain a community of salt indicator plants and no salt sensitive species. Other salinity indicators used included the presence of bare ground or groundwater, salt stain or crystals on the soil surface, crop or pasture deterioration, or tree death. In addition to undertaking a vegetation survey, DPI often used soil sampling and testing to determine the EC (Electrical Conductivity) of the soil to provide a measurement of the salt content.

The mapped salinity sites (see Figure 2) are concentrated in inland locations in the northern part of the Shire, with a number of salinity areas in coastal locations associated with estuarine environments in Torquay, Breamlea, Anglesea and Fairhaven.

This exercise resulted in mapping of 287 salinity sites in the Surf Coast Shire, ranging in size from 1,184 hectares (Lake Murdeduke) to 29 square metres. The majority of salinity (68% of the total of 4,552 hectares) occurs in saline wetlands, with the remaining land salinity evenly divided between primary (16.3% total) areas which are natural and secondary (16.2% of total) which are induced by human activities.

Ms Miller said not all sites were accessible (around 30 sites in Surf Coast Shire) and summarised the salinity database limitations:

Some saline discharge sites located within the Surf Coast Shire may not have been identified through the mapping studies. Discharge sites within townships where cultural infrastructure and a modified environment made detection of urban salinity difficult using a vegetation based survey. Deciding where a saline site boundary started and finished using plant species as an indicator involved some level of subjectivity. Where the coverage of salinity indicator species was patchy (low severity class), DPI officers were likely to underestimate the area affected by salinity. A small percentage of incorrectly identified saline discharge sites were found to occur in the database during the development of SMO maps and through the Shire’s consultation with the public. Any sites where the presence of salinity was in doubt were further inspected by Salinity Project Officers and any errors that were made have been amended.


She concluded that the salinity discharge database provided to the Surf Coast Shire contains a high degree of accuracy.

Professor White, in presenting evidence for Mr Tim Vernon et al for a property in Buhrmanns Road, Winchelsea, argued for extra investigations at the property, including water sampling from piezometers and perhaps geophysical techniques (such as with the ‘EM38’) to improve the salinity mapping accuracy. He said the EM38 measures the average EC to depths of around 0.75 metres, but readings are sensitive to various factors, including moisture and clay content. We discuss salinity mapping at this site in Chapter 3.4.2.

Figure 2 Mapped Salinity Areas ‐ Surf Coast Shire

Panel Findings

We find that the salinity mapping methodology used was appropriate. We understand its inherent limitations, including degrees of subjectivity and a GPS accuracy of three to five metres. Apart from some specific sites discussed in Chapter 3.4, we accept DPI has adequately identified saline areas as a basis for the proposed SMOs.


3.3.2 Salinity Management Overlay Mapping

We heard evidence about defining the proposed SMO areas from Mr Dahlhaus, supported by the joint Council and CCMA submission. Professor White also presented evidence specifically relating to salinity mapping at Buhrmanns Road, Winchelsea.

Mr Dahlhaus said the SMO boundaries enclose areas where salinity may potentially threaten assets. The delineation of boundaries considered two components:

areas where there is sufficient salt present in the soil to restrict plant growth or threaten the integrity of buildings, infrastructure and utility services; and

areas where salinity is not currently obvious, but might develop within the design life of a development (taken as around 30 to 50 years). These are areas where shallow saline watertables occur, and where a rise in the groundwater level may induce salinity at or near the surface.

Mr Dahlhaus presented his views about likely groundwater level fluctuations in the next 20 to 30 years based on known bore hydrograph records and climate change predictions. He said groundwater levels appear to have reached equilibrium since clearing last century and have been falling since about 1996. He assumed groundwater fluctuations would be similar in the next 30 years, especially in the discharge areas.

The SMO ultimately covered areas of known primary and secondary salinity (Categories 1 and 2) plus a buffer area generally set to one ‐metre elevation above the edge of the mapped salinity, to a maximum horizontal distance of 100 metres. The buffers also have regard to the terrain slope, according to the following rules:

100‐metre buffer applied to the proportion of the mapped salinity polygons occurring on terrain slopes of less than 2% (that is, less than 1 in 50);

50‐metre buffer on slopes of between 2% (1 in 50) and 4% (1 in 25); 25‐metre buffer on slopes of between 4% (1 in 25) and 10% (1 in 10); 10‐metre buffer on slopes of between 10% (1 in 10) and 20% (1 in 5); and no buffer on slopes greater than 20%.

The buffer provides for a one‐metre rise in the saline groundwater table over the life of the development, seasonal fluctuations, and to allow for the construction of building footings and the installation of services above the capillary fringe of the saline groundwater table.

The exercise did not seek to apply the SMO to Category 3, 4 and 5 salinity areas because of inadequate data or confidence in identifying specific cause‐effect relationships between areas. The report, Salinity Management Overlay Project Cover Report August 2006 by EnPlan‐DBA, with Dahlhaus Environmental Geology, and


Chris Harty Planning and Environmental Management, defined these categories as follows:

Category 3: Areas not currently affected by salinity, but with a stated likelihood of experiencing secondary saline groundwater discharge within a given time‐frame;

Category 4: Areas where inappropriate land use or development may adversely impact on primary salinity assets; and

Category 5: Areas where development or inappropriate land use may ultimately initiate secondary salinity or exacerbate existing secondary salinity elsewhere in the landscape.

Mr Dahlhaus said, due to the uncertainty surrounding the climate change predictions, the historic record of groundwater fluctuations determined the extent of buffers around the mapped salinity and the final SMO boundaries. He referred to a recent article (Cartwright & Simmons 2008)5 which discussed climate change scenarios and concluded that, although a drier climate is predicted with changes in rainfall frequency and intensity, the net change to groundwater recharge remains uncertain. This article emphasised the complexity of groundwater‐surface water interaction. For example, the management of irrigation and groundwater use are significant factors; and while reduced river flow could be expected to reduce river flow, the impact from climate change on vegetation could be an influence that increases recharge. The rate of groundwater discharge is dependent on the hydraulic gradient of the groundwater system. Lowering the gradients (due to reduced recharge) would reduce the rate of discharge, and possibly decrease the area of land salinity. However, a period of increased recharge (for example, due to either a run of wet years or more frequent heavy rains) would raise the hydraulic gradients and potentially expand the area discharge. Professor White agreed that climate change implications are uncertain and supported the approach adopted.

Professor White and Mr Dahlhaus also agreed on several other key points, including changes in regional hydrology over more than 100 years, rather than say irrigation, being the major cause of dryland salinity in this part of Victoria.

Mr Dahlhaus said, in theory, any developments within the buffer area could intersect with shallow saline watertables and therefore should be designed appropriately. The aim is to protect public and private assets from salinity risk by ensuring appropriate management of the risk to accommodate the limitations of a site.

5 The Panel was provided with a copy of the article I. Cartwright & I. Simmons Impact of Changing

Climate and Land Use on the Hydrogeology of South Eastern Australia Australian Journal of Earth Sciences 2008.


Mr Peeters said the resulting SMO ‘product’ consists of overlay maps that apply to both primary and secondary salinity areas and a buffer zone around these areas to allow for the possible expansion of salinity over the next 30‐50 years due to rising shallow groundwater tables.

3.3.3 Accuracy and Extent of Mapping

Submitters objecting to the application of the SMO questioned the accuracy and validity of the mapped overlay on their land. In particular, they did not support the width of the buffer areas around identified primary and secondary salinity sites on the basis it would unreasonably affect land or did not seem to take the topography properly into account. In other instances submitters argued salinity does not exist in the mapped areas.

In Chapter 3.4 we discuss some sites, for example, in the Buhrmanns Road/McConachy Street/Barwon Terrace area in Winchelsea, where we consider extra soil testing would help in confirming the extent of identified salinity.

At other sites where submitters have challenged the defined buffers based on actual topography, we recognise Mr Dahlhaus reviewed the buffers using better terrain level data and sometimes site inspections. Council asked Mr Dahlhaus to review the buffers and he subsequently adjusted several SMO boundaries on a case‐by‐case basis using the available refined elevation models. Mr Dahlhaus reassessed the buffers on two occasions:

seven sites in 2008 (report dated 16 March 2008) using a variety of techniques, namely: more accurate terrain data (one‐metre contours for the Spring Creek site, and a high‐resolution DEM derived from airborne Light Detection and Ranging (LiDAR) data for two sites at Modewarre and one site at Winchelsea), and visits to the two sites at Freshwater Creek and one site at Moriac. Council accepted the revisions at its meeting on 23 September 2008 when considering submissions to the Amendment; and

several sites in early 2009 (report dated 24 March 2009) based on new higher resolution terrain data (LiDAR). Mr Peeters said Council has not considered these latest revisions but sent copies of the proposed changes to submitters.

Mr Dahlhaus summarised the increasing accuracy of terrain data since mapping the original buffers and the credibility given to it by DSE quality assurance. He said:

initial work in 2006 used the available DEM. It was one with a 20‐metre grid cell based on the 10‐metre contours from the VicMap 1:25,000 topographic map sheets. The model was hydrologically enforced and generally accurate to ±5 metre elevation (that is, 20m, 20m, 5m (x, y, z)); and

most recent work (March 2009) uses a model with an accuracy of 35cm (x, y) and 10cm (z).


Table 1 summarises proposed post–exhibition revisions to SMO boundaries, including relevant dates and whether Council has considered the changes.

In response to the submissions requesting a review of the SMO boundaries, Council and CCMA asked DPI to verify the mapped salinity areas. In all but one case, the existence of salinity was confirmed and the mapped areas considered to be correct and accurate. DPI took soil samples at 315 Gherang Road to investigate the extent of salinity. These tests indicated that the saline area was less than had been mapped and the SMO could be reduced accordingly (See chapter 3.4.5).

We note that in September 2008 Council resolved to accept changes to the SMO boundaries as set out in the Dahlhaus Environmental Geology Pty Ltd report dated 16 March 2008 which responded to the submissions received. Council’s submission recommended further changes to the SMO based on the Dahlhaus Environmental Geology Pty Ltd report dated 24 March 2009.

The changes resulting from the various reviews apply to the following properties/areas:

Great Ocean Views Estate, Torquay; 740 Hendy Main Road, Moriac; 510 Ingleby Road, Winchelsea; 465 Loutitt Bay Road, Freshwater Creek; 395 Pettavel Road, Freshwater Creek; 315 Gherang Road & 275 Thielemanns Road, Gherang; Buhrmanns Road, Winchelsea; 185 Inverleigh‐Winchelsea Road, Winchelsea; The Sands, Torquay; Lake Modewarre; Trebeck Court/Barkly Street, Winchelsea (Barwon River); Anglesea River, Anglesea; Painkalac Creek, Aireys Inlet/Fairhaven; and Duffields Road, Jan Juc.

We note Council has not formally considered all of the changes recommended by the review processes.

Professor White acknowledged the improved accuracy resulting from better terrain data, noting that the level of accuracy was acceptable in areas used for agriculture with limited development potential. But, in presenting evidence relating to land in Buhrmanns Road, Winchelsea, he argued for more work to be done to verify the extent of salinity and terrain level data given site conditions and


the potential for this land to be developed for urban purposes in the future (see Chapter 3.4.2).

Panel Findings

We accept setting of the original buffers used the available coarse DEM and Mr Dahlhaus has since reviewed most sites using higher‐resolution data and from site inspections.

We agree with the rigor of the salinity mapping and buffer definition process across Surf Coast Shire, with some exceptions, such as at The Sands in Torquay, Buhrmanns Road in Winchelsea and Lake Modewarre (see Chapter 3.4).

3.3.4 Other Salinity Areas

In addition to the areas covered by the Amendment, Mr Peeters said Council and CCMA have delineated broad areas in which there is potential for certain land uses, such as extensive irrigation schemes, urbanisation or vegetation removal, to change the hydrology of responsive groundwater flow systems within five to thirty years. These land uses may lead to changes in groundwater levels which could exacerbate existing salinity, or initiate new outbreaks elsewhere in the landscape. Mr Peeters said mapping these areas is only possible at a regional scale, as they are based on the groundwater flow systems, mapped salinity and probability of shallow watertables being present. The map to be included in the MSS at Clause 21.05‐8 identifies these areas. The role of the map is to highlight the issue of potential salinity hazard and for further strategic planning investigation in future revisions of the MSS.

3.4 Specific Sites

3.4.1 Torquay - The Sands

Summary of Submissions

Submissions from Donovan & Victoria Newton (104 Sands Boulevard), Peter Poteralski & Maggie Juniper (102 Sands Boulevard) and Jon & Lynne Arthur (106 Sands Boulevard) raised the following issues:

authorities should have addressed salinity during land rezoning and subdivision, given there has been an awareness of salinity in the region since the 1950s;

homes have been built in this recent subdivision without measures to protect against salinity effects;

Council should have alerted homebuilders at The Sands about the salinity study;


the SMO will affect developer and investor confidence and so harm Torquay’s growth and development prospects; and

the proposed overlay will affect property values (see Chapter 3.6).

The landowners noted that a Land Subject to Inundation Overlay (LSIO) previously affected The Sands, but was removed in 2005 following engineering and earth works for the subdivision. They submitted that the proposed SMO serves no purpose for those who have completed construction. They also submitted, that the boundary should be altered to the interface of the wetland reserve and the residential lots.

These submitters sought a review of the application of the SMO to The Sands; further information about potential risk; and an information session involving Council, CCMA, consultants and affected landowners.

Mr Poteralski and Ms Juniper provided extra information at the hearing, including a series of aerial and other photographs:

of The Sands before development (in 1998), during site preparation works (2002), which involved placement of a clay layer over much of the area, and house building (2004); and

of the north‐eastern end of Sands Boulevard when most lots were developed with homes in the street (2006 ‐ 2007).

They noted imported fill had changed levels following engineering and earth works for the subdivision and the LSIO proposed as part of Amendment C7 to apply to residential lots at the eastern end of The Sands, did not proceed (confirmed by Council and CCMA).The fill meant the piled foundations for their home needed to penetrate the layer of fill (about 1.5 to 1.8 metres deep at their home) to the subgrade below. As they had no knowledge of potential salinity issues, measures to provide protection from salt attack were not employed. They said they gain no comfort from retrospective advice about possible future risk.

Mr Poteralski and Ms Juniper argued the sewerage and stormwater systems at The Sands were specifically designed to protect the recognised environmental values and there is low risk associated with storm or waste water from dwellings and infrastructure affecting either the groundwater table or wetland water quality.

They believe the most recent review of salinity buffers in March 2009 at their property did not reflect the actual slope in the vicinity of their site, which is steeper than considered in the modelling.

Mr Poteralski and Ms Juniper suggested, because the methodology is predictive and there is no evidence salinity will develop in the buffer areas along the eastern


edge of the Sands Boulevard homes, the SMO boundaries should be retracted to, say match property boundaries, with a review in 15 to 20 years.

Council and CCMA Response

Council and CCMA said DPI staff mapped two saline areas at The Sands. One is north of Lahinch Mews associated with a natural wetland and the other is to the south‐east of Sands Boulevard associated with a former waterway to the wetlands east of The Sands.

They said the original digital elevation data (from DSE 1998 contours) used to draw the SMO buffers at The Sands were coarse, and landfill to raise residential lots and the golf course changed the topography and drainage system. However, they stressed there have been more extensive investigations and a review of the SMO boundaries in response to submissions. DPI confirmed the existence of the two salinity areas but noted that fresh landfill works for the subdivision made it difficult to identify saline vegetation indicators during mapping in 2005. DPI advised that the area is now more settled and, if anything, salinity may affect more of the estate than mapped.

Council, CCMA and Mr Dahlhaus summarised the further investigations which involved:

groundwater monitoring6 from three bores at the eastern ends of Sands Boulevard, Lahinch Mews and St Georges Way, close to the primary wetlands. The monitoring bores confirmed the existence of highly saline groundwater at shallow depths (standing water level less than 1.5 metres below the natural surface); and

better modelling using more accurate LiDAR data at one metre (x, y) by 10 centimetres (z) which resulted in a reduction of the buffer areas (see Appendix B – Map 11). As a consequence, the proposed SMO boundaries at The Sands would contract with the number of affected properties reduced from 86 to 71.

Council and CCMA addressed the issues about alerting landowners earlier and considering salinity during the subdivision proposal considerations as follows:

Salinity was not brought up as an issue prior to the SMO project. The Sands estate was rezoned and the subdivision approved prior to the salinity mapping. The mapping occurred in 2005, while the rezoning was approved in 2000 and the subdivision in 2001. A first request for rezoning of the land to facilitate the development of a resort and golf links estate (Golden Beach resort) dates back to 1992. No consideration seems to have been given to salinity at the time of rezoning and subdivision with the major concern being the impact of the resort development on the

6 by A S Miner Geotechnical


environmentally sensitive wetlands to the east. Landowners were not alerted to potential salinity problems until public exhibition of Amendment C38. Landowners could have been made aware of the salinity study, however details were not finalised until the amendment was prepared and even recently further changes were made to the overlay boundaries. It should also be noted that none of the properties of the submitters, or any other residential lots within the estate, are currently affected by salinity. The properties are located in the buffer areas surrounding the identified saline sites and salinity may never occur on these individual properties. As to Council’s position regarding potential litigation due to the alleged failure to notify landowners of potential salinity problems, legal advice has been sought. The thrust of the advice was that Council has an obligation to act responsibly on information available to it and that Surf Coast Shire has been informed, though with untested materials, that there is or may be some salinity issues relating to land within its municipality and with an appreciation that an appropriate Planning Scheme control would be the SMO, has commenced a process to introduce that control into the Scheme.

The legal advice about potential litigation to Council stated:

As to the question of owners who have been issued development approvals during preparation of Amendment C38 and its exhibition (that is, liability to people who were granted permits at a time that Council was investigating this issue), Council had an obligation to assess applications on the basis of the law that applied at the time of the decision (Ungar v City of Malvern [1979] VR259).

Whilst Council may have been privy to information relevant to the land in question (i.e. possible salinity issues) at the time of permit applications that information was neither part of the Planning Scheme nor necessarily a relevant consideration to the determination of those permit applications. We note that Amendment C38 has yet to attain the status of a “seriously entertained proposal” at this time.

The potential liability that Council has in respect of this matter is, we think, limited. That does not mean people cannot commence an action irrespective of how much merit there is in their case. Council’s assessment of permit application could have made reference to the possible salinity issues, however we understand that that information is not conclusive, or strictly a relevant consideration. If salinity were a pressing matter then it may have prompted the introduction of the Amendment more expediently or as an interim control. Our instructions do not show any imperative to expediently pursue Amendment C38.

Council and CCMA did not consider that the SMO will harm the growth and development prospects of Torquay (and other towns) or affect the confidence of developers and investors. Rather, it was submitted that the SMO will provide clarity as to existing and potential salinity occurrences, and alert the building industry accordingly. As with other overlays directed at managing risks from hazards such as flooding and wildfire, the SMO would be reviewed and updated regularly.


Council and CCMA endorsed the modification of the overlay recommended by Mr Dahlhaus (24 March 2009). However, the other issues raised by submitters were not supported as the level of inconvenience was considered minor compared to the implications for the environment, the benefit of improved information to prospective land purchasers, and protection provided through incorporating preventive measures in the design of buildings on land that may be affected by salinity.

Panel Discussion

The CDZ applies to The Sands development and no overlays currently apply to areas where residential development is envisaged. A planning permit is not required for the use or development of a dwelling but dwellings must comply with The Sands Torquay Building Code. The proposed SMO would introduce a new requirement for a permit to construct or alter a dwelling where the floor area and/or waste water disposal would increase on approximately 70 lots, some of which have already been developed. The proposed ESO also introduces requirements for permits to construct a building and works and to remove, destroy or lop native vegetation.

We inspected the north‐eastern end of Sands Boulevard and eastern end of Lahinch Mews which adjoin the primary wetlands between The Sands and the Bass Strait foreshore, noting features such as relative ground levels and vegetation.

We consider issues associated with the SMO and then whether the ESO should apply to residential lots.

We accept expert opinion that there may be a risk of salinity affecting properties the buffer areas in the future but salinity may never occur. From the evidence, we note salinity does not currently affect any of the Sands Boulevard homes, but 71 would be within the buffer areas around the known salinity sites if Mr Dahlhaus’ recommendations are adopted.

As already noted, we are satisfied that the SMO serves an important function and should be applied to enable protective measures to be incorporated in building and infrastructure design, to ensure landowners are aware of the issue and, importantly, so that prospective land purchasers know the potential risk that salinity may affect the land. This includes residential lots that are already developed in The Sands (and some other urban contexts).

In Chapter 3.3 we endorsed the principles adopted to determine the extent of the SMO. However, our inspection suggests that the slope and difference in levels between the wetland area and the residential property boundaries may be greater than modelled. This suggests the extent of the overlay in the vicinity of Sands


Boulevard could be reduced further if the principles adopted to determine the SMO boundary are applied. We consider such a further review is warranted.

We are conscious that options to protect existing development are constrained. This Panel’s role relates to planning scheme mechanisms, and specifically the Amendment under consideration ‐ our role does not extend to determining issues relating to liability or other strategies and actions to address salinity. Nevertheless, we encourage the CCMA and Council to actively plan with affected landholders for responses to potential expansion of salinity in urban areas that are already developed. In these areas, consideration should be given to the practicality and cost of various options such as active management measures (for example, pumping to lower groundwater levels) or passive management measures (for example, strategic planting). Retrofitting existing development with measures to protect from salt attack on structures would also be an option for consideration by the affected property owners. Strategic monitoring within salinity ‘buffer areas’ would appear to be a logical starting point to provide the necessary timeframe to implement appropriate responses, if they in fact prove to be required.

With regard to the application of ESO1 to lots in the eastern end of The Sands development, Council supported the maintenance of the ESO, noting that saline wetlands can be impacted by depletion of watertable where impervious areas are increased, greater recharge impacts in buffer areas because watertables are shallower and the discharge of stormwater can increase fresh water into wetlands.

While these reasons for the application of the ESO1 are generally sound, The Sands development has been designed with a specific focus on protecting the important environmental values. We were advised that the water management regime for the whole estate includes fully reticulated water and sewerage and the protection of primary wetlands from stormwater runoff, including a system of sealed lakes that are not connected to the primary wetland areas or groundwater. Despite planning permits not being required for development of dwellings in The Sands, the review of development proposals by a Design Review Panel ensures evaluation of proposals occurs. Further, the Torquay Sands Building and Environmental Management Code, March 2002 provides a level of assurance regarding the form of development and environmental management, including a requirement that landscaping only include native vegetation.

We are not convinced that ESO1 should apply to the residential lots in the Sands development. We consider that the introduction of new permit requirements for residential lots at The Sands under ESO1 would add little to the protection of environmental values while imposing an additional administrative load for both Council and landowners.



Apply the ‘rules’ for determining ‘salinity buffer’ areas in a review of the SMO boundary in The Sands development in Torquay and specifically at the rear of the Sands Boulevard lots. This review should take account of the modified terrain levels and slopes from primary salinity areas.

Monitor groundwater at The Sands development in Torquay, and other developed urban areas within salinity buffer areas, to provide a basis for review of the SMO boundaries or measures to protect development from potential impacts due to salinity.

Delete the proposed ESO1 from residential lots at The Sands development in Torquay.

3.4.2 Winchelsea - Buhrmanns Road Area


Submissions from Paul Buhrmann (70 Buhrmanns Road), Paul Hemingway, Linda Weatherson & Tim Vernon (195 Barwon Terrace) and Kirrod Nominees Pty Ltd (6 Buhrmanns Road):

acknowledged parts of the property are currently affected by salinity; argued that salinity only became a problem after the creek that runs through the property was dammed in two places;

submitted that restoring the water flow and revegetation would be a more effective solution to environmental problems and negate the need for an overlay;

the areas identified as saline and as a consequence the buffer area, are excessive. Prior to any final decision, the extent of the area currently affected by salinity should be verified;

revegetation at the margins of the saline zone should be implemented and the effectiveness of this strategy should then be assessed (for example, five years after planting); and

the land is identified for residential development in the long term in the recently introduced framework plan in Clause 21.14 and the underpinning strategic planning Winchelsea Structure Plan 2021 reference document. Therefore the application of the SMO should have regard to the potential for future urban development. Costs associated with the uncertainty attached to the SMO will be passed on to purchasers and consumers are likely to avoid lots affected by the SMO due to the risk and additional construction requirements associated with the overlay.


Professor White was broadly in agreement with ‘rules’ applied to determine buffer areas. He was of the view that the methodology adopted was acceptable for agricultural land but greater rigor should apply where there were significant implications associated with inaccurate delineation of affected areas. He recognised that the accuracy of maps derived from LiDAR can be as good as 0.15 metres and this is acceptable for large areas but considered verification by an on‐ground laser survey site surveying and mapping at 1:1000 is warranted in this instance which requires a more refined assessment.

Professor White noted bare soil patches with salt encrustations on the surface, underlying soil was moist indicating capillary rise from the watertable, and a dominance of two salt‐tolerant species in the in the lowest part of the site along the dry creek bed and the land immediately above this area are definite indicators of salinisation.

His evidence indicated that the main cause of salinity at the site is a change in the hydrological balance in the wider area following past land‐use changes over an extended period, notably the clearing of vegetation. He considered ponding of water at the western end of the site during ephemeral creek flows could have contributed to recharge to groundwater in the depression, and that evaporation of the water over time would have contributed to salt in the soil profile in this area. This ponding was likely to be due to the fact that the base of the two culverts under the Barwon Terrace roadway are higher than the soil surface at that point and a dam in the property to the west of the roadway, approximately 50 metres downstream would back‐up onto the site during ephemeral creek flows.

However, Professor White questioned the mapped area in the south‐eastern corner of the site is saline as:

it did not show obvious signs of salinisation; and the contour map indicates that this part of the dry creek bed (at 88 metres AHD and above) is at least two metres above the contour marking the furthest extent of the saline area in the depression.

Ms Miller’s evidence indicated that salinity is likely to be more severe in the dark areas on aerial photographs but the mapping was on basis of indicator species for low class salinity. She advised that the vegetation survey was reviewed with a hand held GPS and a GIS expert ensured there were no discrepancies when the data was transposed on maps but the mapped salinity areas had not been verified through soil testing.

Panel Discussion

We see the two main issues in relation to this site as:


whether the area mapped as being saline in the south‐east of the site, and therefore the extent of the buffer and the SMO, was accurate (see Appendix B – Map 16); and

the extent to which potential remedial actions to reduce the area affected by salinity both now and in the future justifies modification of the exhibited SMO.

Our inspection of this site confirmed that the vegetation in the south‐east of the site along the creek bed is different from that in the lowest area in the north‐west of the site as indicated in Professor White’s evidence and the photographs tabled at the hearing. While we are not expert in this area, we find that the evidence presented justifies soil testing on this site (as has occurred elsewhere) to establish the extent of land affected by salinity. This may justify revision of the SMO boundary.

The accuracy of LiDAR levels for the site do not appear to be the central issue in contention. We agree with Mr Dahlhaus that DSE has undertaken appropriate quality assurance of LiDAR data and an on‐site laser survey is not justified in this case.

We accept the consensus expert view was that works to lower the intake level of the culverts under Barwon Terrace to prevent ponding on the site, and revegetation strategies along the margins of the area affected by salinity could be effective mitigation strategies. The implementation of these measures cannot be required by this Panel, although we encourage the landowners, the Shire and the CCMA to work together to address the recognised salinity on the site.

We recognise that the Clause 21.14 Framework Plan indicates that residential growth will progress in a corridor to the south‐east of the town. The Winchelsea Structure Plan 2021 indicates there is a need for land to be rezoned for residential growth to accommodate projected growth but the progression of residential development to the subject land would be dependent on the development of a substantial area of intervening land (investigation areas 2 and 3) that is closer to the town. Thus, while the land may eventually have an urban future, it can be expected to remain in rural use at least in the medium term.

We do not dismiss the submission that salinity is a significant constraint that will influence both future planning authority and consumers’ decisions. However, it is our job to consider whether current conditions justify recognition of the constraint due to salinity in the planning scheme through the application of the SMO. If remedial measures prove to be effective in reducing the salinity constraint (including the buffer area), the SMO could be revised. Monitoring could inform a future review. A future rezoning process would present an obvious opportunity


for this reassessment but an Amendment to revise the SMO could be initiated by the landowners at any time.


Modify the extent of the SMO in the Buhrmanns Road/Barwon Terrace/McConachy Street area in Winchelsea if soil testing indicates that land affected by salinity is less than indicated by DPI mapping.

3.4.3 Lake Modewarre

Lake Modewarre is a saline lake and is currently subject to an ESO1 which would be revised to match the proposed SMO. The proposed changes to the existing ESO1 generally result in the extent of the ESO1 being reduced along the eastern, southern and south‐western sides of the lake but the overlay would extend further to the south‐west (over Buckleys Road).


Objections focussed on whether the 100‐metre buffer reflects the topography. Submissions from Vladimir Kondratiev (385 Buckley Road South), Brian & Faye Gibson (285 Buckley Road South), David Spedding (155 Batsons Road), and David & Shani Watson (415 Lewis Road) raised the following issues:

the width of the buffer area around Lake Modewarre is unreasonable; the overlay places unreasonable restrictions on residences, garden areas and normal farming activities because of the need for a planning permit for buildings and works;

the SMO does nothing to solve the salinity problems of the lake; and salinity is confined to the lake and does not affect land surrounding the lake.

We heard from Messrs Kondratiev and Gibson who expanded on their written submissions and sought abandonment of the SMO in favour of alternative measures, including:

investigating salinity through soil testing for any developments, which the Shire’s planning process will routinely activate; and

developing and implementing a formal practical rehabilitation plan, including continuing planting of vegetation.

Council and CCMA Response

Submissions from Council and CCMA and the evidence from Mr Dahlhaus indicated:

the intent of the boundary was to provide a buffer area around a primary saline site regarded as an environmental asset;


the buffer is to ensure any development close to the lake does not adversely impact on the salinity and associated environmental values by inappropriate design, particularly for stormwater and wastewater disposal;

Council and CCMA adjusted the buffer in early 2008 to follow the upper edge of the escarpment around the lake’s western side, because developments above the escarpment are unlikely to impact on the watertable;

at a meeting on 4 June 2008 concerned residents agreed with a proposal to further adjust the boundary to one metre above lake‐full level, which generally follows the boundaries of the Flood Overlay (FO). Council and CCMA took the full level for the lake as the top of the levee around the boat ramp site at the north end of the lake, which is around 114 to 115 metres AHD (Australian Height Datum), so they set the boundary as close to 116 metres AHD using a high resolution DEM. They believe shallow saline groundwater is unlikely to rise beyond this level. This adjustment reduced the buffer width to generally no more than 50 metres on private land around most of the lake (see Appendix B ‐ Map 12);

the overlay over the backwater was not altered because of the shallow saline groundwater underlying this area;

Council is yet to consider formally the suggested SMO boundary changes at Lake Modewarre, however, at its meeting on 23 September 2008, it did accept a recommendation to redraw the buffer to one metre above the flood level;

the Flood Overlay and Land Subject to Inundation Overlay (LSIO) covering the lake trigger planning permits for many buildings and works (including fencing) and subdivision.

Mr Tony Jones, CCMA’s Floodplain Manager, told us the flood overflow level for the lake is 118.3 metres AHD. He said CCMA does not have data to define a 100‐year flood level for the lake and has not calculated what it might be.

In response to Mr Kondriatev’s submission about nearby groundwater levels, Mr Dahlhaus presented information about groundwater levels from several bores. It showed water levels of higher than 120 metres AHD in the bores to the west of Buckley Road South, compared with levels of between 100 metres and 118 metres AHD for Lake Modewarre.

Council submitted:

Regarding permit requirements, Lake Modewarre and surrounding properties are currently affected by a suite of zones and overlays under the Surf Coast Planning Scheme. These include the Farming Zone and Rural Conservation Zone, Flood Overlay, Land Subject to Inundation Overlay and Schedule 1 to the Environmental Significance Overlay. Each of these zones and overlays trigger planning permits for buildings and works and subdivision and in some instances also for vegetation removal and fencing. Each zone and overlay also includes exemptions for specific


matters. Further general exemptions can be found under Clause 62 of the planning scheme. Basic day‐to‐day farming related activities, such as cropping and grazing, maintenance and gardening do not require a permit.

It should be emphasised that the main purpose of the SMO is to protect buildings, roads, infrastructure and other assets from the damaging effects of salt. The overlay is not going to solve the salinity problem of Lake Modewarre, as the source of the problems lies further afield. The SMO is used as a land use planning tool to alert Council and landowners to potential salinity problems and to ensure that salinity is appropriately considered through the planning permit process.

It is understood that further research may assist in creating better understanding of the wider issues surrounding salinity and groundwater flows, however there is not enough justification to collect further scientific data and historical information that would add value for the purpose of the amendment. Landowners are encouraged to consult with the CCMA, DPI, DSE and/or Barwon Water regarding this matter.

Council and CCMA: did not support submissions to remove the SMO from Lake Modewarre and surrounding land or changes in response to the other issues raised in the submissions; and

recommended varying the SMO and ESO1 at Lake Modewarre to generally one metre above the estimated flood level of the lake as set out in the Dahlhaus Environmental Geology report dated 24 March 2009.

Panel Discussion

We do not question the need to protect the environmental values of the lake or the already established role of ESO1 in the Surf Coast Planning Scheme in achieving this objective. We understand from the evidence, and supported in the EPA Victoria Publication 1018 Lake Modewarre Water Quality 2004‐05, December 2005, the drought‐affected lake is likely to recover given enough rainfall.

From the evidence, we note salinity does not directly affect any of the properties along the west side of the lake. While we note CCMA is not able to define a flood level for the lake, we accept expert evidence about setting a level of 116 metres AHD for the SMO boundary, even though the lake could conceivably rise to around 118 metres AHD (that is, the level at which the lake would overflow).

We also accept there are measures available to address salinity effects (see Chapter 1.1). One measure we expect would be employed at Lake Modewarre is continued planting of suitable vegetation along the lake edges. So we support carrying out actions such as those described in the report Lake Modewarre Environment and Recreation Strategy, July 2002.

Our inspection of the Lake Modewarre area with Mr and Mrs Gibson and Mr Kondriatev focused on the western side. It confirmed that there is a significant


difference between ground levels above and below the steep escarpment and that there has been extensive vegetation planting by landowners along the foot of the escarpment.

The escarpment has virtually no development potential and we consider it is appropriate to provide for consideration of the impacts of works on the escarpment (for example, erosion) via a permit process. Indeed our inspection confirmed that the landholders have recognised the escarpment’s land management constraints and have undertaken extensive planting. We do not believe the limited encroachment of the SMO shown in the most recent revision of the SMO boundary (see Appendix B ‐ Map 12) would have any significant impact on proposed building and works, or on normal activities carried out on the affected parts of the properties.

However, given the differences in levels between Lake Modewarre and the cliff‐top properties on the western edge of the lake, and the extremely low likelihood of salinity affecting the properties on top of the escarpment, we agree with submissions that the proposed boundary of the SMO and ESO1 should be reviewed to verify that they align with the top of the escarpment. While it could be argued that the SMO boundary should be set at a lower level on the escarpment, a pragmatic approach of aligning both the ESO1 and SMO boundary with the top of the escarpment will have little practical impact (for example, additional information requirements) as proposals for development on the escarpment are unlikely). Exemptions from permit requirements relating to vegetation are discussed in Chapter 3.5.1.


Review the SMO and ESO1 boundaries on the western side of Lake Modewarre to ensure that they align with the upper edge of the escarpment.

3.4.4 25-65 Raglan Street, Modewarre

The written submission from Kevin Morris requested removal of the proposed SMO because salinity does not seem to affect land and the extent of overlay is excessive, especially when considering that land rises steeply from creek.

Council responded that: DPI’s salinity officer visited the site with the landowner and confirmed that the salinity primary salinity site to the northwest and a buffer up to 100 metres around that site has been correctly identified and mapped(see Appendix B ‐ Map 4);

due to the flatness of the land no revision was made to the buffer;


no evidence has been submitted to prove that the overlay would restrict sale of the land or make it harder to obtain a planning permit; and

the SMO does not necessarily prevent the development of land, but rather ensures that salinity is properly taken into consideration.

We endorse Council’s recommendation that the submission to review the overlay not be supported.

3.4.5 315 Gherang Road, Gherang

The submission from Ray Barton relating to 315 Gherang Road, Gherang sought a site visit and review of the extent of the SMO.

The Council and CCMA submission advised that: review of the SMO boundary at this site in March 2009 using 0.5 metre contours generated from high‐resolution DEM recommended that the SMO be reduced from 109.9 hectares to 94.7 hectares (see Appendix B – Map 2);

an inspection of the site by DPI’s salinity officer confirmed that, although low class salinity in late summer is more difficult to detect than in late spring/early summer, there appeared to be some salinity on the property near the dam but not to the extent mapped; and

the results of testing of soil samples to confirm the extent of salinity were expected soon after the hearing and may warrant a revision of the mapped area.

After the hearing Council advised:

The soil test results have been received and revealed that part of the property (the top end near the dam) is salty as suspected but the middle section was not.

We endorse the Council and CCMA recommendation that the extent of the SMO at 315 Gherang Road should be revised as set out in the Dahlhaus Environmental Geology report (24 March 2009). Further modifications should also be made to take account of soil test results which showed the reduced extent of the area subject to salinity, and this will result in a consequential reduction in the buffer area. The ‘rules’ adopted in the project for determining the extent of the buffer should apply to the revision of the SMO (see Chapter 3.3).


Revise the extent of the SMO at 315 Gherang Road, Gherang to recognise the results of soil test that indicate a smaller area than previously mapped is subject to salinity.


3.4.6 275 Thielemanns Road, Gherang

At the hearing Mr Reid expressed concerns about the extent of the buffer zone and the nature of regulation relating to the management of vegetation and the ongoing operation of his vineyard.

Council and CMA advised that a site inspection by DPI’s salinity officer confirmed that the area of concern is salt affected, as is the surrounding neighbouring land. Our site inspection also indicated that there are obvious areas affected by salinity on this land (and adjoining land). Review of the width of the buffer in March 2009 using new LiDAR data resulted in the extent of the SMO in the locality being reduced from 109.9 hectares to 94.7 hectares (see Appendix B – Map 9).

We are satisfied that the revised mapping of the SMO is appropriate and discuss the implications of permit requirements in Chapter 3.5.


Revise the extent of the SMO at 275 Thielemanns Road, Gherang in accordance with the Dahlhaus Environmental Geology report dated March 2009.

3.4.7 Other Properties

In this section we summarise submissions relating to specific properties and the Council and CCMA response where the submitter did not appear at the Panel hearing to expand on their written submission.

In each case Mr Dahlhaus undertook a review using higher resolution DEM data and, in the absence of further submissions challenging this review, we have endorsed the recommended reductions in the of the extent of the SMO.

740 Hendy Main Road, Moriac

The submission from Colin & Anne Findlay questioned whether salinity affects their land and the extent of overlay given that the land rises steeply from creek. They requested removal of the overlay.

The Council and CCMA response acknowledged this property does not include any existing saline areas but the proposed SMO incorporates a buffer zone around a primary salinity site associated with a drainage line on the eastern side of Hendy Main Road (see Appendix B ‐ Map 1). The drainage line within this property has been constructed as a channel, the northern slopes of which are steeper than the southern slopes. Groundwater monitoring around 500 metres north, adjacent to a severe salinity scald, since 1993 indicates water levels are generally less than 0.5 metre below ground. As this bore is at a slightly higher elevation (approximately


2.5 metres) than the salinity in the drainage line, it is reasonable to assume that the area is underlain by very shallow watertables.

Review of the SMO boundary in March 2008 to take account of the local topography reduced the area of the SMO from 172.3 hectares to 169.9 hectares.

Great Ocean Views Estate, Torquay

The submission from Bill Cullen relating to the Great Ocean Views Estate, Torquay questioned whether the delineation of the buffers around two of the three alleged salt affected areas had regard for the topography of the land and highlighted the adverse impacts on affected lots within the residential development.

The Council and CCMA submission indicated that: the salinity is largely constrained to the low‐lying areas of Spring Creek and parts of the golf course;

reviews of the buffer areas by Mr Dahlhaus in 2008 and 2009 resulted in a reduction of the width of the buffers of all three areas as follows: - the northernmost SMO was reduced from 5.5 hectares to 3.2 hectares; - the middle SMO was reduced from 1.5 hectares to 1.4 hectares (2008) and then to

one hectare ; and - the southernmost SMO was reduced from 38.2 hectares to 32.7 hectares (2008)

and then to 28.8 hectares (2009).

the residential lots fronting Spring Valley Drive are no longer included in the SMO and the extent of the overlay over the ‘resort’ lot has been reduced (see Appendix B – Map 5); and

the submitter was satisfied with the revisions to the northern and middle areas, but remains concerned about the southern area.

Freshwater Creek

The submissions from G J, P E, D P & W C Larcombe sought information on basis of salinity mapping and questioned the extent of the salinity affected areas in relation to the following properties:

510 Ingleby Road, Winchelsea; 465 Loutitt Bay Road, Freshwater Creek; and 395 Pettavel Road, Freshwater Creek.

Council and CCMA advised that DPI officer site visits confirmed the mapped salinity areas as correct. The extent of the buffers was reviewed by Mr Dahlhaus in 2008 and the extent of the SMO reduced as follows:


510 Ingleby Road, Winchelsea ‐ The area of the SMO was reduced from 42.28 hectares to 38.38 hectares. (See Appendix B ‐ Map 6). It was noted that an extensive secondary salinity site on the south side of Ingleby Road encroaches onto this property and the main salinity site (south) has been very well rehabilitated with planting of salt‐tolerant grass;

395 Pettavel Road, Freshwater Creek ‐The salinity along the drainage lines has been mapped at three sites which have obvious, severe scalds. The area of the western SMO area has been reduced from 16.1 hectares to 12.4 hectares, the central SMO area has been reduced from 12.5 hectares to 10.4 hectares and the small eastern SMO area has been reduced from 1.3 hectares to 1.1 hectares (See Appendix B ‐ Map 7);

465 Loutitt Bay Road, Freshwater Creek – Review of the two separate salinity affected areas mapped on this property resulted in the following reductions in the extent of the recommended SMO: - the SMO relating to the small area of secondary salinity in the far northern

corner, which is an extension of a larger and badly scalded site south‐west of the junction of Loutitt Bay Road and Brushfield Road, was reduced from 9.3 hectares to 4.8 hectares; and

- the SMO relating to primary salinity in the drainage lines forming tributaries to Merrijig Creek (along the southern boundary) was reduced from 37.7 hectares to 27.3 hectares (See Appendix B ‐ Map 8).

185 Inverleigh‐Winchelsea Road, Winchelsea

Colin & Leora Gardiner submitted that the SMO: mapping is flawed and the overlay should be removed; is not required to mitigate against negative impacts of development on salinity, and there are other more appropriate measures available; and

duplicates the building permit process as measures to address salinity can be applied through Australian Standards and the Building Code. This is contrary to objectives of ‘Cutting red tape’.

Council and CCMA advised Mr Dahlhaus’ review in March 2009 of the three SMO areas that encroach onto the property using higher‐resolution DEM resulted in the following reductions in the extent of the SMO (see Appendix B ‐ Map 10):

the westernmost area was reduced from 36.1 hectares to 29.3 hectares; the central area was reduced from 42.8 hectares to 36.0 hectares; and the eastern area was reduced from 15.6 hectares to 14.2 hectares.

We note in Chapter 1.1, and in our consideration of other submissions, that our focus is on the application of the SMO. But we recognise that this planning scheme mechanism is only one of a range of actions available to mitigate or


manage salinity. We also comment in Chapter 3.1 on the role of building regulations to ensure that buildings are protected from salt attack.


Revise the extent of the SMO at the following properties in accordance with the Dahlhaus reports dated March 2008 and March 2009 (as appropriate): 740 Hendy Main Road, Moriac 510 Ingleby Road, Winchelsea 465 Loutitt Bay Road, Freshwater Creek 395 Pettavel Road, Freshwater Creek Great Ocean Views Estate, Torquay

3.5 Permit Requirements and Referrals

Several submitters7 are concerned that the SMO permit requirements will place an unnecessary, unfair regulatory burden on routine activities and development of the land without achieving substantial benefits. In particular, the capacity to deal with salinity and inundation, pasture, movement and enclosure of stock, maintenance of access tracks, the import of fill for remedial landscaping/revegetation, repairs, gardening, minor extensions, ploughing and grading were raised. Further, the level of regulation associated with the overlay may compromise the achievement of planning objectives to manage and remediate salinity areas.

Council and CCMA submitted that the restrictions on the use and development of land are not unreasonable, noting that permits are already required for buildings and works, subdivision and in some instances also for vegetation removal and fencing under the existing suite of zones and overlays.

Council did not support the inclusion of additional exemptions from permit requirements under the SMO (and Clause 62), although the need to consider exemptions for planted vegetation in gardens and other amenity plantings was acknowledged. However, if the Panel considers that there should be additional exemptions, Council argued they should be limited to:

the buffer areas of the mapped SMO; and the lopping of vegetation including that from grazing, minor extensions to existing buildings, and works that do not change water flows, including cropping which changes the existing condition of land. This is not preferred

7 Including Rene Wolfe of 155 & 215 Blackgate Road, Breamlea; V Kondratiev 385 Buckley Road South,

Modewarre; Brian & Faye Gibson, 285 Buckley Road South, Buckley; David Spedding 155 Batsons Road, Modewarre; David & Shani Watson 415 Lewis Road, Buckley


because of temporal changes with salinity as mentioned by Mr Dahlhaus and potential weakening of the role of buffer zones.

Council submitted that the need for additional exemptions could be reviewed after experience had been gained through implementation of the overlay provisions (say after five years).

3.5.1 Panel Discussion

New Requirements for Permits

Under the SMO a planning permit is required to construct a building or carry out works; subdivide land; and remove, destroy or lop vegetation unless specified exemptions apply.

Amendment C38 does not include any exemptions from permit requirements in the schedule to the SMO or ESO1, which means that only the generic VPP exemptions apply. The SMO provides specified exemptions relating to buildings and the removal, destruction or lopping of vegetation which are discussed below. It also exempts salinity management works in accordance with any Regional Catchment Strategy and associated plan applying to the land, but we were advised that no such plans are currently applicable to Surf Coast Shire.

ESO1 is an existing overlay within the Surf Coast Planning Scheme and four of the submitters in the vicinity of Lake Modewarre who expressed concern about additional planning regulation are already subject to ESO1, although the extent of that overlay would be varied (See Chapter 3.4.3). Similarly, the requirement for permits for development will not increase for the land at Breamlea referred to in Rene Wolfe’s submission as it is currently is in the Rural Conservation Zone and subject to the FO as well as ESO1.

We agree with Council and CCMA that the proposed overlays are justified to reinforce salinity as an important planning consideration in specific areas. The SMO’s main principle is to avoid development and site disturbance in a saline environment, and if this objective is achieved a permit is not required. The level of regulation proposed is comparable to that under other land management overlays that apply to the submitters’ land and is appropriate to identify hazards and enable consideration via the permit process of measures to manage the associated risks. The additional information requirements under the VPP SMO apply on a statewide basis for areas where salinity is to be considered. Council and CCMA have prepared documentation with a Ready Reckoner for Planning Permit Requirements to identify the information to be provided for different types of applications under the SMO. This is a positive initiative.


Nevertheless, there is a strong case to avoid unnecessary applications where the proposed development or activity would not compromise the achievement of the overlay objectives or where the potential impacts are so minor that the demands on applicants, the responsible authority and referral authorities do not justify the resource costs associated with the permit process. Three key areas of concern relate to the regulation of routine farming activities, minor non‐habitable buildings and the management of vegetation.

Vegetation Exemptions

The SMO requires a permit to remove any (not just native) vegetation unless the following criteria for exemption from permit requirements are satisfied:

the vegetation was planted for pasture, timber production or any other crop; requirements of a Code of Practice under the Electricity Safety Act 1998; the vegetation presents an immediate risk of personal injury or property damage;

for emergency access or works by a public authority or municipal council; for the remove ground fuel within 30 metres of a building and for fire fighting measures, periodic fuel reduction burning, or fire breaks up to six metres wide;

to comply with a fire prevention notice or a notice under the Catchment and Land Protection Act 1994;

for sight‐lines for surveying; proclaimed noxious weeds, bracken or Burgan/Manuka8; to remove burrows for vermin control9; for mineral exploration, mining or geothermal energy exploration or extraction approved under the relevant legislation.

ESO1 establishes the same exemptions from permit requirements relating to vegetation as the SMO but also exempts vegetation that is:

exotic; within two metres from the outer edge of the roof of a building, except where an approved landscape plan or site plan specifies the retention of the vegetation;

listed as an environmental weed in Table 1 of Clause 22.01; removal is in accordance with an approved Whole Farm Plan;

8 Provided that the Burgen/Manuka is re-established or maintained for cultivation or pasture, is more than

30 metres from a waterway and the ground slope is less than 30 percent. 9 Where native vegetation is removed the written agreement of an officer of the Department responsible for

administering the Flora and Fauna Guarantee Act 1988 is required and the total area in one ownership to be destroyed must not exceed 10 hectares.


grass or pasture to be removed in association with the agricultural use and is more than 30 metres from a waterway.

Council suggested that Basic day‐to‐day farming related activities, such as cropping and grazing, maintenance and gardening do not require a permit. While we agree that these routine activities should be facilitated by exemptions, we are not convinced that grazing, maintenance and gardening are exempt from permit requirements under the proposed overlays.

It is appropriate to provide exemptions where the benefits in terms of the overlay objectives do not match the administrative demands of the permit process. We note that once a permit is required, consideration is not restricted to potential impacts on salinity but the provision of offsets forms part of the permit process if native vegetation is removed. We also understand that some permit requirements relating to vegetation are rarely observed and this undermines the credibility of the planning framework (for example, permit to lop vegetation).

We consider there is a strong case for further exemptions, on the terms set out in Clause 52.1710, relating to vegetation removal listed below:

lopping and pruning for maintenance; mowing/slashing of grasses; dead vegetation – The SMO exemption should extend beyond the Clause 52.17 exemption as dead vegetation does not influence salinity.

planted vegetation ‐ If this exemption is not provided, there could well be a perverse outcome that the overlay deters the planting of vegetation which would undermine the achievement of the overlay objectives;

grazing (already provided in ESO1); stock movements on roads; regrowth – This exemption relates to regrowth up to 10 years old in areas that were legally cleared. If the exemption is not provided; and

existing and approved buildings – this Clause 52.17 exemption provides for clearing of up to 10 metres around an existing building to provide for maintenance associated with outdoor functions and the like. Such an exemption is unlikely to have significant impacts on salinity in the farming zone. Mr Dahlhaus advised that, in terms of managing impacts from salinity, maintaining an area clear of vegetation around buildings is actually desirable. Council should consider the nature of exemptions that may be appropriate in urban zones, having regard to the limited impact on salinity management and permit requirements that also apply under overlays. For example, in

10 As Clause 52.17 applies across the State irrespective of whether overlays apply, there would be no

administrative benefit extending the exemption beyond that which applies under Clause 52.17, except perhaps to make it explicit that a particular type of vegetation is not relevant to the overlay.


Anglesea, SLO3 provides for exemptions for removal of vegetation within two metres of a dwelling and it would make sense to align these exemptions. ESO1 already provides such an exemption but we query whether a more generous exemption may be justified in rural zones.

We appreciate the rationale behind Council’s suggestion that any additional exemptions should be limited to the ‘buffer area’ and accept that this distinction is reasonable provided that a workable drafting solution is devised. We note that:

reference to additional maps showing the distinction areas within the SMO would be necessary; and

the health of much of the vegetation within the existing salinity areas, as distinct from buffers which are at risk, will already be compromised.

If a ‘clean’ draft solution cannot be devised, we consider the exemptions are generally suitable to apply to the whole of the overlay areas.

Exemptions for Buildings

The generic SMO exemptions for buildings are very limited and only provide for: alterations to existing buildings that do not increase floor area or waste water; and

buildings used for agriculture with a floor area of less than 100 square metres if there is no increase in waste water disposal.

We note that the SMOs in the Central Goldfields and Greater Bendigo planning schemes exempt outbuildings having an area less than 120 square metres and 200 square metres respectively from permit requirements.

We consider that the facilitation of minor buildings would have limited effect on the overlay objectives. From a consumer protection perspective, the level of investment in non‐habitable buildings would generally be less than for dwellings and the existence of the SMO would signal salinity as an issue and protective measures could be incorporated if deemed necessary in the circumstances. We support the addition of an exemption for non‐habitable buildings with a floor area less than 200 square metres in a Rural Zone. We have some sympathy for Council’s view that any exemption of this type should be limited to salinity buffer areas but this would pose a drafting challenge. As landowners would most likely avoid areas where salinity is currently expressed, and in view of the limited nature of the exemption, we consider it is acceptable to apply the exemption across the SMO.

ESO1 does not provide any exemptions for permit requirements for buildings and works. We query whether the exemptions applicable for buildings and works


under the SMO may also be suitable under ESO1. As this was not raised at the Panel hearing, we raise it as a matter for Council consideration.

Routine Farming Activities

Understandably submitters were concerned about new regulation being imposed on their normal farming activities. While slashing would be addressed by the recommended exemption for lopping, activities involving earthworks such as ploughing or grading could be subject to planning permits unless a farm plan had been approved.

The implications of ploughing on salinity management were not canvassed at the hearing. We encourage Council and CCMA to consider whether there are forms of earth works associated with agriculture that would not have consequences for salinity management that warrant regulation through the planning permit process.

Referral of Applications to DSE

The authorisation of Amendment C38 encouraged Council to reach an agreement with DSE to minimise Section 55 referrals. DSE’s submission also foreshadowed the desirability of establishing a Memorandum of Understanding relating to referrals.

Council submitted that:

Council will rely on the Department of Sustainability and Environment (DSE) as referral agency to identify potential problems and appropriate permit responses for development applications. In accordance with DPCD’s advice in the authorisation letter, Council will negotiate with DSE to reach an agreement to minimise the number of Section 55 referrals generated under the overlay.

Unfortunately the Amendment process has not yet resulted in a Memorandum of Understanding between Council and DSE relating to referrals. This should occur before the Amendment is approved and should seek to identify as many circumstances as possible where referral of applications relating to development, works and vegetation can be avoided.

Panel Recommendations

Provide further exemptions in the Salinity Management Overlay and ESO1 relating to vegetation removal listed below: lopping and pruning for maintenance. mowing/slashing of grasses. dead vegetation – The SMO exemption should extend beyond the Clause 52.17 exemption as dead vegetation does not influence salinity.


planted vegetation ‐ If this exemption is not provided, there could well be a perverse outcome that the overlay deters the planting of vegetation which would undermine the achievement of the overlay objectives.

grazing (already provided in ESO1). stock movements on roads. regrowth. existing and approved buildings. These additional exemptions should generally on the terms set out in Clause 52.17 with some further qualifications as discussed in Chapter 3.5.1.

Include an exemption in the SMO for non‐habitable outbuildings up to 100 square metres if there is no increase in waste water disposal and consider whether a similar exemption should apply under ESO1.

Council and CCMA consider whether there are forms of earth works associated with agriculture that would not have consequences for salinity management and/or the achievement of ESO1 objectives that should be exempt from permit requirements under the SMO and/or ESO1.

Before the Amendment is approved, Council and DSE establish a Memorandum of Understanding to identify as many circumstances as possible where referral of applications relating to development, works and vegetation can be avoided.

3.6 Impact on Property Value

A number of submitters were concerned that that the application of the SMO would devalue their properties.

The potential reduction in property values is often raised in relation to both amendments to planning schemes and applications for permits. However, it is established planning law11 that impacts on property values are not relevant to the consideration of the planning merits of the Amendment and cannot be considered. We also note that evidence relating to the effect of planning provisions on property values is often inconclusive and an Amendment of the type we are considering illustrates the difficulty. Even if the value of land affected by the Amendment were to decline, it would be difficult to attribute that decline to the imposition of the SMO rather than the existing or potential risk of salinity which is the underlying reason for the proposed control.

11 VCAT has consistently held that depreciation of land values in the locality as a result of a proposed

development is not a planning ground (for example see Ross v Shire of Rutherglen (1981) APA 101; Ralphsmith v City of Nunawading (1983) 11 APA 40; Briant v City of Knox (1985) 15 APA 443; Micaleff v City of Keilor (1993) 11 AATR 139, Zerbe v City of Doncaster and Templestowe(1984) 12 APA 201.


Appendix A List of Submitters

Submitters Objecting to Amendment Anne and Colin Findlay Vladimir Kondratiev Ray Barton Rene Wolfe Donovan and Victoria Newton Kevin Morris Peter Poteralski and Maggie Juniper Bill Cullen, Great Ocean Views Pty Ltd Brian and Faye Gibson Jon and Lynne Arthur G J, P E, D P and W C Larcombe Benjamin Reid Colin and Leora Gardiner David Spedding Paul Buhrmann David and Shani Watson Paul Hemingway, Linda Weatherson and Tim Vernon Graeme McCartney, Kirrod Nominees Pty Ltd

Referral and Other Authorities Environment Protection Authority Western Coastal Board VicRoads City of Greater Geelong Department of Sustainability and Environment


Appendix B Revised Overlay Boundaries Supported by Council & CCMA

Legend

Grey area exhibited SMO

Red line revised SMO (as per March 2008 & March 2009 revisions)

Green primary salinity site

Pink secondary salinity site

HEN

DY M

AIN

R

OA

D

CAPE OTWAY

550

54

784

780

570

740 HENDY MAIN ROAD

Map 1: 740 Hendy Main Road, Moriac – Colin & Anne Findlay (Submission No S2)

315 GHERANG ROAD

Map 2: 315 Gherang Road, Gherang – Ray Barton (S7)


215

155

155

Map 3: 155-215 Blackgate Road, Breamlea – Rene Wolfe (S8)

STREET7045

25

25

25

45-65

45-65

1055

25

25

45

30

30

30

45

0

Map 4: 25 + 45-65 Raglan Street, Modewarre – Kevin Morris (S10)


YATEMAN BVD

RO

CKLEA

TARA COURT

CR

ESC

ENT

ALLEYN

E

SARABANDE CRESCENT

SPRING

BANK

DANAWA DRIVE

BORR

ON

B

OUL

EVA

RDE

CIRCUIT

MIL

LEN

NIU

M W

AY

OUTLOOK

OC

EAN

VIE

W

GERVES ST

MA

LIB

U P

LAC

E

BEAC

HVI

EW

OCEAN

E

SPRING

VALLE Y

DR

IVE

STREET

DRIVE

SARABANDE

AUR

OR

A

CR

ESC

ENT

AVENUE

SPRING

ROAD

VALL

EY

CR

ESC

ENT

PARKVIEW CRT

GR

DR

IVE

CR

ESC

ENT

ACACIA STREET

DR

IVE

HE

MEW

S

SHELLEY CL

OCEAN

MAN

NA

GU

M

AVENUE

ELIZABETH

CRESCENT

Map 5: Great Ocean Views Estate – Bill Cullen (S12)

510 INGLEBY ROAD

Map 6: 510 Ingleby Road, Winchelsea – G. Larcombe (S15)


LAN

E

RO

AD

MT DUNEED

OAD

235

215

735735

900

735

735

735

735

735

Map 7: 395 Pettavel Road, Freshwater Creek (aka 735 Mt Duneed Road) – G. Larcombe (S15)

BRU

S

USH

FIEL

DS

RO

AD

PETT

AVE

L

ROAD

LOUTITT BAY

55

460

950

55

370

465

370

55

465

850

485

465 LOUTITT BAY ROAD

Map 8: 465 Loutitt Bay Road, Freshwater Creek – G. Larcombe (S15)

275 THIELEMANNS ROAD

Map 9: 275 Thielemanns Road, Gherang – Benjamin Reid (S16)


185

Map 10: 185 Inverleigh-Winchelsea Road, Winchelsea – Colin & Leora Gardiner (S18)

BOULEVARDE

WAY

LAHINCHMEWS

DO

RN

OCK

LINK

THE C

RO

SSING

76

82

85

4039

38

37

3635

3433

3231

4243

41

8791

74

89

76

106104

102100

94

81

74

72

83

78

79

7780

292827

44454647

26

48

2324

22

7573

71

8381

68

79

6670

77

72

30

3

88

92

90

86

8987

84

21

9896

85

80 8284

9593

78

2120

49

25

7 45689

1011

46 52

63

6967

65

54

6058

56

6462

73

75

71

70

69

67

6865

13 14

19181716

15

53

40

51

57

55

4442

50

6159

48

12

36

494745

34 38

Map 11: Torquay Sands – Donovan & Victoria Newton (S9), Peter Poteralski & Maggie

Juniper (S11), Jon & Lynne Arthur (S14)


CO

N

HORTIPS

BATSONS

W

CO

NSI

DIN

E

CAPE OTWAY

CONNIES LANE

ROAD

ROAD

R

OAD

S

OU

TH

BU

155

100

155

170

22

170

175

295

175

380

100

155

172

100

105

100

85

1150

1130

1100

1100

1130

105

155105

100100

100

190

185

519

175

220

145

285

235

400

10

70

50

1130

50

220155

155

70

445

0

415

445

235

235

405

285

205

330 385

355

Map 12: Lake Modewarre – Vladimir Kondratiev (S3), Brian & Faye Gibson (S13),

David Spedding (S19), David & Shani Watson (S21)

415 LEWIS ROAD

385 BUCKLEY ROAD SOUTH

Map 13: 385 Buckley Road South – Vladimir Kondratiev (S3), 415 Lewis Road

– David & Shani Watson (S21)


285 BUCKLEY ROAD SOUTH

Map 14: 285 Buckley Road South – Brian & Faye Gibson (S13)

BATSONS

CONNIES LANE1150

1100

1130

155105

100

10

70

50

1130

50

155 155

70

Map 15: 155 Batsons Road, Modewarre – David Spedding (S19)

ROAD

BUHRMANNS

TERRACE

CKSONS

BARWON

ROAD

ROAD70

280

280

50

220

70

195

10

6

183

40

10

5

15

55

20

55

40

Map 16: Buhrmanns Road, Winchelsea – Paul Buhrmann (S20), Paul Hemingway & Others (S22),

Kirrod Nominees P/L (S23)


80

Map 17: Anglesea River, Anglesea

WAY

WAY

INLET

PAINKALA

C

CR

T

INLET

ROAD

RESERVE R

COURT

OCEAN

COASTAL COURT

DRIVE

ROAD GREAT

DRIVE DRIVE

GR

EAT

OCE

AN

BIM

BAD

EEN

NARANI

NARANI

BELLENNA

ILAR

OO

RD

ROAD

RO

AD

OA

D

RIVER

BAM

BRA

ROAD

ROAD

RIV

ERR

ESER

VE

ROAD RIVER

PHIL

Map 18: Painkalac Creek, Aireys Inlet/Fairhaven

(Note: saline area has been remapped)


TREBECK85

84

105

114 104

95

94

85

48

81

34 46

62

Map 19: Trebeck Court / Barkly Street, Winchelsea

TROON

CARNARVO

CARNOU

GLYN ST

BAR

NET

T

PLA

CE

CURTIS CT

BOU

LEV

CRESCENT

DU

FFIE

LDS

RO

AD

262

260

10

8

6

4

1/61

65

63

2/61

31

2/2

27

2

1

2933

264

38

3

274

2/277

275

1/277 16 14 12 10

2024

19

1

17

283

281

26 22 18

3

15

5

13

7

279

273

3

1

14

16

18

12

11

9

7

5

2/3

1/3

75

34

1/2

25

7 6

47B

2

3

2A

26

28

1

3036

23

32

1

19

21

47A24

51

49

75

73

71

67

53

59

57

55

9

7

69

Map 20: Duffields Road, Jan Juc

surf coast c38 panel report€¦ · page 1 surf coast planning scheme – amendment c38 panel...

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