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

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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 The permit was subsequently withdrawn when a legal opinion found the proposal was not allowable under the shire’s planning scheme.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.
Did the council comply with key legislative, planning scheme and other requirements? 61 CASE STUDY 9: TRANSFER OF DEVELOPMENT RIGHTS FROM ACROSS ZONES – continued The properties consisted of 4 broad groupings: Lanyons North (one title, in the Rural Zone) Lanyons South (5 titles separated by road, in the Rural Zone) Lal Lal (7 titles separated by road, in the Environmental Rural Zone) Benbows Green (one title in the Environmental Rural Zone). The application sought to re-subdivide the land across the 2 zones (Rural and Environmental Rural), thereby transferring “entitlements” from one zone to another. That is, entitlements were to be transferred from agricultural land (rural) to facilitate construction of 18 dwellings along the coast and adjoining agricultural land. The 4 properties involved in the re-subdivision were owned by different landowners and were in some instances kilometres apart. Council approved the application on 23 May 2003, one day after it was submitted. Councillors and council staff had visited the site prior to the application being approved. In October 2003, in response to concerns about a similar planning proposal, DSE had provided the council with legal advice. This indicated that re-subdivision across different zones was not permissible within the existing provisions of the council’s planning scheme. In August 2004, DSE expressed concerns to the council about the Benbows Green proposal. Following this advice from DSE, the council became concerned about the legality of the proposal and applied to VCAT to have the permit cancelled. In late 2004, a solicitor engaged by the council25 reviewed the decision to grant the planning permit. The solicitor’s review found that the council, in assessing the permit application, had not followed proper processes in that: no notice of the application was given to the owners/occupiers of adjoining properties (including DSE), to the National Trust or the community generally no referral was made to relevant authorities such as DSE. In fact, DSE indicated that it would have objected to the proposal as it was not consistent with the Victorian Coastal Strategy or Victoria’s Biodiversity Strategy, and would have had an unacceptable impact on the area’s ecological values. 25 Refer section 3.1.2 for the solicitor’s role.
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PP No. 162, Session 2003-05 V I C T
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The Hon. Monica Gould MP The Hon. J
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Contents FOREWORD..................
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1. Executive summary 1
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4 Executive summary 1.2 Overall aud
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Page 17 and 18: 2.1 Victoria’s planning system Vi
Page 19 and 20: Reform of the planning system Victo
Page 21 and 22: 2.2.1 Council’s planning services
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Appendix A. Performance improvement
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Appendix B. Contract for town plann
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FIGURE C1: AUDIT CASE STUDIES INDEX
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