Community planning services in Glenelg Shire Council : 1998-2005 ...

60 Did the council comply with key legislative, planning scheme and other requirements?
Subdivision of land (transferable property rights): Case study 9
Transferable development rights are a scheme used by developers to
transfer rights that apply to land in one area to land in a different area.
While these schemes have been used in countries such as New Zealand
and the USA for many years, they are relatively rare in Australia, and
Victorian experience in other councils (prior to the introduction of new
format planning schemes) shows them to be problematic 24 .
They are not provided for in the Glenelg planning scheme and would
require an amendment to the scheme before they could be implemented.
The following case study illustrates a proposal involving the transfer of
property rights across zones. The permit was subsequently withdrawn
when a legal opinion found the proposal was not allowable under the
shire’s planning scheme. This is also an example of where the council failed
to comply with its referral requirements and, in assessing the permit
application, did not follow proper processes.
CASE STUDY 9: TRANSFER OF DEVELOPMENT RIGHTS FROM ACROSS ZONES
The council received a planning application on 22 May 2003 for a proposed
re-subdivision of 4 existing properties in an area known as “Benbows Green” at
Cape Bridgewater.
The Cape Bridgewater area is recognised by many government agencies and
bodies for its cultural (archaeological, Aboriginal), scientific (geological) and
environmental (landscape, plant and animal) significance. It is also included in
the National Trust of Australia Regional Classification for Portland as “essential to
the heritage of Australia and (an area) which must be preserved.”
Three landholders applied for a permit to rearrange 14 lots to form 18 smaller lots
to be used for residential purposes (each approximately 0.5 hectares), a common
property area (16.5 hectares) and 3 farming parcels (total 37.5 hectares).
24 Two Victorian councils that have explored this concept are:
the Surf Coast Shire which, in 1996, allowed farmers to establish blocks for dwellings in areas of
low-value agricultural land as a trade for them consolidating areas of good-quality agricultural
land
Kyneton Shire which, through an amendment to its Planning Scheme in the mid-1990s,
attempted to provide for subdivisions that transferred property rights between properties.
The Kyneton council later decided to abandon this amendment. A panel formed to review the
amendment agreed with the decision, stating “there would be very few real opportunities to take
advantage of these provisions”. The panel also supported the former Department of Infrastructure’s
comments that the provisions were too generous to support zone objectives, and it was unclear how
they would work.