Chapel Lane and the deposit of fill on agricultural land

chapel lane.JPG

The Victorian Government recognises Melbourne's green wedge areas as vital assets for our community and our state. The Government’s Plan Melbourne Strategy identifies objectives and strategies to support planning for rural and green wedge areas, to recognise and protect land for its agricultural, environmental, heritage, landscape, recreational and tourism values.

Significant levels of dumping of soil and fill are occurring in the Shire and in other peri-urban councils, which is having an adverse impact on the quality of rural land and infrastructure. This issue in rural areas continues to be a source of strong frustration and risk for our community and for all of the peri-urban councils.

The State Government’s Victorian Planning Provisions do not effectively prevent the inappropriate dumping of clean soil and fill.

Council is aware of, and has been closely monitoring, the recent activities occurring at both 130 and 265 Chapel Lane, Doreen. Officers have been liaising with relevant authorities to ensure a coordinated approach to these activities is occurring.

This webpage will be updated to provide our community with the most up-to-date information and outcomes on measures undertaken by Council.

Planning Scheme amendments and advocacy

There is currently no one provision in Planning Schemes to regulate the deposit of clean fill on land, particularly in the peri-urban areas of Melbourne to protect the amenity and landscape values of the Green Wedge.

In these areas ‘earthworks’ are currently unregulated and have a range of potentially negative environmental, amenity and landscape impacts. Requiring a permit for ‘earthworks’ will provide Council with a mechanism to regulate them and to minimise these impacts.

Council seeks control over earthworks and the importation and placement of fill within the green wedge, by requiring a planning permit. Although some green wedge areas are partially or wholly subject to overlays (such as the Significant Landscapes Overlay) that require a planning permit for ‘works’, not all of the areas covered by these zones are also covered by such overlays, nor is there necessarily strategic justification to apply such overlays to all green wedge properties.

At its Future Nillumbik Committee meeting on 11 August 2020, Council considered that an amendment is required to provide Council with control over earthworks within the green wedge that are subject to the Green Wedge and Rural Conservation Zones, and resolved to seek authorisation from the Minister to prepare an amendment to deal with these issues. Council also resolved to write to the Minister to advocate for these amendments and changes to the Victorian Planning Provisions

Subject to this resolution, on 17 August, Council lodged amendment C130 with the Department of Environment, Land, Water and Planning (DELWP) to seek authorisation from the Minister requesting he utilise his powers of intervention under Section 20(4) of the Planning and Environment Act 1987 to implement interim controls to modify (on an interim basis) the schedule to the Green Wedge Zone and the Rural Conservation Zone (Schedules 1 – 5) by inserting a permit trigger for:

  • Earthworks which involve the receipt, importation, stockpiling or placement of more than 100 cubic metres of fill to all land.

Council also lodged concurrently a request for authorisation of amendment C131, which seeks to make interim controls requested by C130 permanent.

If authorised, progress in regard to these amendments will be available on DELWP’s amendments website.

Council has advocated to the Minister and local members previously for changes to the Victorian Planning Provisions to deal with the matter of illegal dumping of clean fill in 2019 (see attached) and in regard to the recent amendments noted above (see attached).

On 28 August 2020, Council received correspondence (see attachment) advising that the Minister will require a greater period of review to authorise amendment C131. 

Update - 4 October 2021

Subject to Council resolutions on December 2020 and March 2021 to seek authorisation from the Minister for Planning to prepare and exhibit Amendment C131, the amendment was on exhibition from 22 April 2021 to 3 June 2021 receiving 10 submissions.

Council heard submissions to Amendment C131 at its July 2021 Planning & Consultative Committee (PCC).

Subject to this PCC, Council resolved at its Meeting in July to request the Minister for Planning appoint an independent planning panel to consider Amendment C131 pursuant to Section 23(1)(b) of the Planning and Environment Act 1987.

A Planning Panel was convened with the Hearing taking place on 30 September.

Please see Council's Participate Nillumbik website for further details and next steps.

Update - 23 March 2021

At its Council Meeting of 23 March 2021, Council reconfirmed its intention to regulate earthworks in the Green Wedge by requesting the Minister for Planning to authorise the preparation and exhibition of Amendment C131 to the Nillumbik Shire Planning Scheme.  

Next steps

In accordance with the requirements of the Planning & Environment Act 1987 (the Act), there are a number of statutory processes which now need to be undertaken and adhered to in advancing Planning Scheme Amendment C131.

Exhibition of the amendment is currently underway. Any person who may be affected by the amendment may make a submission to the planning authority (Nillumbik Shire Council) with the closing date for submissions Thursday 3 June 2021.

Please see Council's Participate Nillumbik website for details in regard to the amendment and how to make a submission:

Consideration of any submissions to the amendment will be heard by Council at a future Planning and Consultation Committee meeting in July, where submitters will be invited to talk to their submission. 

Council will then be requested at a subsequent Ordinary Council Meeting to consider and resolve (if appropriate), pursuant to requirements of the Act the convening of a formal planning Panel to consider submissions.

Update - 17 December 2020

On Tuesday 15 December, Council has received correspondence from the Minister (attached) advising:

1. In accordance with section 8A of the Planning and Environment Act, the Minister has approved authorisation of Amendment C131 subject to conditions mostly in regard to notification. The Minister has noted that the authorisation to prepare the amendment is not an indication of whether or not the amendment will ultimately be supported.

2. The Minister has refused Council's request to prepare, adopt and approve Amendment C130 without notice, which seeks to implement planning controls on an interim basis, noting the Minister does not consider that the proposed amendment meets the tests under 20(4) for exemption from the requirements of sections 17, 18 and 19 of the Planning and Environment Act. The Minister further notes that DELWP has commenced the Planning for Melbourne's Green Wedges and Agricultural Land project and consultation is currently underway and considers that the overarching issue of ‘soil importation, large-scale earthworks and associated land uses’ should be properly considered through this project and that it would be premature for him to intervene at this time. Officers note that as part of its adopted submission to the Planning for Melbourne's Green Wedges and Agricultural Land consultation, Council has identified the issue of illegal clean fill dumping in our Green Wedge and identified the need for a State-wide approach to appropriately deal with this significant planning issue.

 

 

Enforcement

At the special meeting of the Future Nillumbik Committee on 18 August 2020, the committee resolved to:

  • As soon as is practicable, officers to commence enforcement proceeding relating to the development of land at 265 Chapel Lane Doreen.

At the Ordinary Meeting of Council on 25 August 2020, Council resolved to:

  • Reconfirm Council's intention to apply to the Tribunal for an enforcement order in accordance with Section 114 of the Planning and Environment Act 1987 at the earliest opportunity
  • Determines its position in relation to s120 interim enforcement order in the confidential session on 25 August 2020.

On 15 September 2020, Council applied to the Victorian Civil and Administrative Tribunal for an Enforcement Order under Section 114 of the Planning and Environment Act 1987 with respect to the contravention that has occurred at 130 Chapel Lane, Doreen.

On 21 September 2020, Council applied to the Victorian Civil and Administrative Tribunal for an Interim Enforcement Order under Section 120 of the Planning and Environment Act 1987 and an Enforcement Order under Section 114 of the Planning and Environment Act 1987 with respect to the activities occurring at 265 Chapel Lane Doreen.

Update - 31 May 2021

On 28 April 2021 a Practice Day was held at VCAT to consider the enforcement matter pertaining to 265 Chapel Lane Doreen. On 29 April 2021 Council received the Tribunal’s Orders. Based on the information available to the Tribunal, it considered it appropriate to give effect to the settlement reached by the parties pursuant to section 93(1) of the Victorian Civil and Administrative Tribunal Act 1998. The Orders of the Tribunal are as follows:

  1. The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 is allowed.
  2. The enforcement order is in the form attached to this order.
  3. The applicant must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

The enforcement order is as follows:

  1. This order binds the owner, occupier and developer jointly and severally.
  2. The Remediation Plan attached hereto and Marked “A” must be implemented to the satisfaction of the Responsible Authority.
  3. The works required by the Remediation Plan must commence within 21 days, complete physical works within 6 months and be maintained until self sustaining determined to the satisfaction of the Responsible Authority.

The remediation plan provides an outline on how ESG Services Pty Ltd (“ESG”) will remediate  the land at 265 Chapel Lane, Doreen (“LAND” and “SITE”), in conjunction with the registered Proprietor of the land (“LANDOWNER”), by smudging out the clean fill that ESG and the Landowner imported onto the site in or about July 2020, bearing an approximate volume of 7900 bulk m3, and push the topsoil that was stripped back over the land, revegetate the exposed soil, repair the dam, reduce and remediate the Haul Road, and remove ESG’s assets on site.

The remediation works will seek to reinstate the pre-works levels and contours (although allowing the increased 7900 bulk m3 brought onto the site to be retained and incorporated into the rehabilitated landform), using the topographic and existing conditions information contained in the Hydrologist report by Water Technology dated 17 September 2020 entitled ‘Report 265 Chapel Lane, Hydrologist Report) as evidence of the pre-works conditions.

Completion

Upon completion of the rehabilitation works, other than the establishment of revegetation, ESG will arrange a full site survey (including levels and contouring) by a suitably qualified professional to be submitted to Council, demonstrating that remediation works (other than revegetation) have been carried out in accordance with this Rehabilitation Plan.

Once every three months after rehabilitation works have commenced, and until such time that they are completed including that revegetation is fully established and self-sustaining, a written update to Council showing the progress of the rehabilitation works with sufficient detail to the allow the Council to assess whether the works are progressing satisfactorily and achieving the intent of the Remediation Plan is required.

In accordance with item 3 of the enforcement order, works to enact the remediation plan were required to start within 21 days of the Tribunal’s order.  Accordingly, some works have now begun on the land and will continue until the land is remediated as mentioned above. 

Update - 29 April 2021

On Monday 26 April and Tuesday 27 April 2021, Council appeared at VCAT with respect of the enforcement matter pertaining to the land at 130 Chapel Lane Doreen. At the Hearing, Council put to the Tribunal that three contraventions of the planning scheme have occurred with respect of the works that have been undertaken on the land, and called on the expert evidence of Christian Bannan – Soil Scientist, Nick Andrews – Principal Engineer of Engeny (hydrogeology), and Erik Birzulis of Landair Surveys (photogrammetry). 

Council is awaiting the Tribunal’s decision, and updates will be provided in due course. 

265 Chapel Lane, Doreen 

On Wednesday 29 April 2021, for the matter of 265 Chapel Lane, Doreen a practice day was held at VCAT to consider Consent Orders. 

VCAT ordered as follows:

  • Enforcement order is allowed
  • The application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987 is allowed.
  • The enforcement order binds the owner, occupier and developer jointly and severally, states that works have been carried out on the Land which are associated with a section 2 use in the Green Wedge Zone of the Scheme in contravention of the Planning Scheme. The Order requires the agreed Remediation Plan to be implemented to the satisfaction of Council. The works required by the Remediation Plan must commence within 21 days, with completion of the physical works to be within six months of the date of the Order and must be maintained until self-sustaining determined to the satisfaction of Council.
  • A copy of the order has been served on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998. 

Costs

  • Each party is to bear their own costs. 

    Hearing vacated

  • The hearing scheduled on 3, 4, 5 and 6 May 2021 is vacated. No attendance is necessary.

Update - 19 April 2021

130 Chapel Lane Doreen

On Friday 16 April 2021, Council filed submissions at VCAT ahead of the Hearing in accordance with VCAT’s Orders for the enforcement proceedings for 130 Chapel Lane, Doreen. 

The Hearing is scheduled for Monday and Tuesday 26 and 27 April 2021 respectively. 

265 Chapel Lane Doreen

In accordance with Council’s resolution on 27 January 2021, Council reached an agreed settlement agreement for the enforcement matter affecting the property at 265 Chapel Lane Doreen, and this has been filed with VCAT on 13 April 2021. 

The agreed settlement involves consent orders and that the land be remediated to the satisfaction of the Responsible Authority. Council is yet to receive consent orders from VCAT.

Update - 27 January 2021

On 27 January 2021 at the Ordinary Meeting of Council, Council resolved:

  1. To agree to the Terms of Settlement;
  2. To authorise the Chief Executive Officer to sign the Terms of Settlement, including the minutes of consent attached to the terms, which contain the wording of the orders the parties will be asking the Victorian Civil and Administrative Tribunal to make;
  3. To request the Victorian Civil and Administrative Tribunal make an enforcement order by consent; and
  4. That the Terms of Settlement remain confidential on the grounds specified in the definition of confidential information in section 3(1)(d) and (e) of the Local Government Act 2020.

Update - 18 November 2020

265 Chapel Lane, Doreen

  • A second practice day was held on 6 November 2020. At this practice day, VCAT reaffirmed the hearing dates in May 2021. VCAT also determined to refuse the joinder application for some residents of Chapel Lane, but did determine that these parties can make formal submissions at the Hearing scheduled for May 2021. VCAT determined to refuse the joinder application for individual members of the Green Wedge Coalition Group and further determined that these parties could not make a formal submission at the Hearing for this matter.
  • A compulsory conference hearing was held om 9 November 2020. All parties to the enforcement matter were invited to attend and participate including Council as the applicant, Melbourne Water, ESG and the land owners. The matter was not mediated and an administrative mention has been scheduled for 18 December 2020. The administrative mention is required to further advise VCAT on the progress of discussions between affected parties to bring the land into compliance with the Nillumbik Planning Scheme. All parties agreed to continue discussions to formulate a position that both ESG and the owners would like Council to consider to bring the land into compliance and avoid any further actions before VCAT. This position would then be considered by Council at a formal Council meeting early in the new year and before the hearing in May 2021.


130 Chapel Lane, Doreen

  • A practice day was held on 6 November 2020. At this practice day, VCAT reaffirmed the hearing dates in April 2021. VCAT also determined to refuse the joinder application of some residents of Chapel Lane, but did determine that these parties can make formal submissions at the Hearing scheduled for April 2021. VCAT determined to refuse the joinder application for individual members of the Green Wedge Coalition Group and further determined that these parties could not make a formal submission at the Hearing for this matter.
  • The respondents to these proceedings have filed statements of grounds in response to Council’s application, as below:

The respondent has completed civil works at the subject site on behalf of the second respondent consisting principally of remedial, stabilisation, of agricultural land and erosion prevention works at the subject site

The works are for the use of the land ancillary to agriculture being a section 1 use for the purposes of Clause 35.04-of the planning scheme

The responsible authority were aware of the completion of the works

The works do not change the rate of flow or the point of discharge across a property boundary

The works do not require a planning permit pursuant to Clause 35.04-5 of the GWZ

The respondents deny that the real and substantial purpose of the works described by the applicant is for the disposal of clean fill

The respondents state that the future works were for the purpose of or ancillary to the existing or future agricultural use. 

Update - 16 October 2020

In response Council’s application for an Interim Enforcement Order at 265 Chapel Lane, Doreen, the Victorian Civil and Administrative Tribunal (VCAT) set down a Preliminary Hearing for one day on 27 October 2020 to determine the application which sought to, among other things, cease works on the Land until the enforcement order application was determined.

Council wrote to VCAT seeking an earlier date for the Preliminary Hearing and VCAT scheduled a Practice Day Hearing on 15 October 2020.

At the Practice Day Hearing, the Respondents provided an undertaking to VCAT to cease works on the Land.

VCAT also determined to vacate the preliminary hearing date of 27 October 2020, and set down the following dates:

  • Respondents’ and Melbourne Water to file statement of grounds by no later than 5 November 2020;
  • A half day compulsory conference on 9 November 2020;
  • Hearing Date set for two days commencing on 3 May 2021.

VCAT has also received and acknowledged Council’s application concerning the land at 130 Chapel Lane, Doreen.

The initiating order from VCAT schedules the application for hearing on the dates set out below, and gives directions about steps that parties must comply with:

  • Practice Day on 6 November 2020
  • Compulsory Conference on 24 February 2021
  • Hearing Date set for one day on 26 April 2021

Impacts to infrastructure

At the special meeting of the Future Nillumbik Committee on 18 August 2020, the committee resolved to take immediate action to overcome the current road safety, infrastructure integrity and amenity issues related to heavy vehicle traffic on Chapel Lane and Middle Hut Road Doreen by:

  1. Commencing the process to implement traffic interventions such as load limits and/or truck bans, on Chapel Lane (between Yan Yean Road and Hurstbridge Arthurs Creek Road and Middle Hut Road between (Brocks Road and Arthurs Creek Road), in consultation with the CFA and, where required, with the approval of the Department of Transport.
  2. Enforcing the ban on all trucks (excepting Council and Emergency vehicles) over any load limit approved and request the support of the Victorian Police regarding this enforcement.
  3. Seek approval from the Victorian State Government Department of Transport to impose a 50kmph speed limit on Chapel Lane and Middle Hut Road (extent of imposition as per item above).
  4. Advising the owners and operators of the current land fill activities at 130 and 265 Chapel Lane that they have failed to obtain a permit to build a crossover for works 500 metres east of Middle Hut Roads, and at the vehicular entry point to 130 Chapel Lane, Doreen.
  5. Issue enforcement orders and seek all available penalties as a consequence for the destruction of road pavements and infrastructure in the vicinity of the sites at 130 and 265 Chapel Lane, Doreen.

Council officers have since commenced the processes required to apply for load limits and speed limit changes.

Council conducted repair works to sections of Chapel Lane from Thursday 27 August to Tuesday 2 September 2020 requiring the road's closure. Further works were undertaken near the intersection of Middle Hut Road on Friday 4 September, requiring the road's closure.

Other works were undertaken along the western end of Chapel Lane between Middle Hut Road and Yan Yean Road.

The costs associated with these works have been paid for through Council’s operational budget.

Where Council’s assets have been damaged, the general approach is to seek to recover any damage to Council assets under the appropriate mechanisms.

Council is keeping a record of all inspections and necessary repairs being undertaken on Chapel Lane and Middle Hut Road.

Update - 19 October 2020

Laidlays Bridge (Chapel Lane) - load limit revision

Laidlays bridge is located on Chapel Lane approximately 200 metres north-west of Hurstbridge – Arthurs Creek Road.

Council has revised the load limit from 30 tonnes to 3.4 tonnes at Laidlays Bridge in Chapel Lane, Doreen. Signage advising of the revised load limit will be installed in the coming weeks. The signage will include an advisory speed of 10 km/h over the bridge. Council will also arrange advance signage at certain locations to advise motorists.

This change is one of a number of recommendations following a routine Shire-wide bridge audit.

The structural integrity of the bridge is sound and the proposed load limit is aimed at preserving the timber deck.

This revised load limit will alter the types of vehicles that are permitted to use the bridge. Any vehicles with a gross mass of less than or equal to 3.4 tonnes are permitted to use the bridge. Likely vehicles to be under the new load limit are regular passenger vehicles, passenger vehicles with trailers, vans and some light trucks. Please note that it is the responsibility of drivers to ensure that their load is not in excess of the posted load limit when using the bridge.

For vehicles with a gross load greater than 3.4 tonnes, there are alternative routes that may be used. Refer to the enclosed plan indicating some of the alternative local routes available.

 

Location

Chapel Lane, Doreen 3754  View Map

Google Map