Chapel Lane and the deposit of fill on agricultural land
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.
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.
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 17 December 2020
On Tuesday 15th 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.
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 scheduled from March/April 2021, and will run for six weeks, with consideration of any submissions at a Future Nillumbik Committee meeting. 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.
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 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.
Update 18 November 2020
With regard to the enforcement matter pertaining to 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.
With regard to the enforcement matter pertaining to 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 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.
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.