Australia: Planning Guidance for Subdivision and Coastal Hazards - East Beach, Port Fairy Panel Report
Maddocks Sustainability & Climate Change Update

By Maddocks Sustainability and Climate Change Team

In 2008, a Panel and Advisory Committee was appointed by the Victorian Minister for Planning in respect of a planning permit application for subdivision of coastal land in Port Fairy under the Moyne Planning Scheme. The application concerned a 22 lot residential subdivision of a 4.2 hectare parcel of land on the coastal sand dunes at Port Fairy, located along the western Victorian coastline. The land is straddled by the Moyne River floodplain and direct beach frontage on the eastern side of the land. The land is vulnerable to both coastal erosion processes and to flooding from the Moyne River in extreme and moderate flood events.

The planning permit application was called in by the Minister using his power under section 97B of the Planning and Environment Act 1987 (P&E Act). The Minister appointed both a Panel and Advisory Committee to advise him in relation to the land (Panel). The role of the Panel was twofold:

• to consider and advise on the planning application; and
• to advise the Minister on whether the current planning controls applicable to the land are appropriate.

The Panel issued its report in June 2009. In February 2010, the Minister made a decision to refuse the planning permit application and to amend the Moyne Planning Scheme to give effect to the Panel's recommendations. We set out the Panel's main findings and recommendations below.

Planning and policy context

At the time of the Panel hearing, the land the subject of the application was situated in a Residential 1 Zone and was subject to an Environmental Significance Overlay and a Design and Development Overlay. Planning permission was required to subdivide the land under each of these controls.

The broader policy context considered by the Panel in assessing the application included:

• Clause 15.08 of the State Planning Policy Framework - Coastal Areas: Among other things, this clause states that, in managing coastal hazards and the coastal impacts of climate change, it is necessary to 'plan for sea level rise of not less than 0.8 metres by 2100, and allow for the combined effects of tides, storm surges, coastal processes and local conditions such as topography and geology when assessing risks and coastal impacts associated with climate change'. This requirement is elaborated in the Victorian Coastal Strategy.
• Victorian Coastal Strategy: The Victorian Coastal Strategy outlines three adaptation options to address the risks faced by the coastal environment, including those caused by climate change:
  • Protect (protection of beaches, dunes and infrastructure, land use and development)
  • Accommodate (planning and building policies and provision, redesign and rebuild)
  • Retreat (relocation of infrastructure, land use and development)

In implementing these adaptation measures, it is VCS policy that priority be given to the most vulnerable areas along the coast and that decision-makers apply the precautionary principle to any planning and management decisions.

• General Practice Note: Managing coastal hazards and the coastal impacts of climate change. The Practice Note indicates that planning for the impact of climate change on coastal hazards needs to be considered for development applications in respect of individual parcels of land within existing zoning and overlay provisions of planning schemes. The Practice Note advocates:
  • risk avoidance, which means ensuring that new development is not affected by the retreat of coastline and the risk of inundation
  • integrated coastal planning
  • a precautionary approach
• Coastal Space Report - This report identifies and maps landscape characteristics of Victoria's coastal regions.
• Moyne Coastal Action Plan 2001 - This Plan details the direction for the future management of the coast within the Moyne Shire. The objectives in the Plan include minimising environmental impacts to the dune systems and visual amenity of the coastline. A key recommendation is restricting strip development beyond an area within which the land in question is located. The Plan identifies Port Fairy as an activity node that is susceptible to exotic vegetation spread and dune erosion.

The Panel accepted the Department of Sustainability & Environment's submission that the policies about coastal planning contained in Clause 15.08 should be attributed the greatest weight. The Panel also concluded that this was a clear case where the precautionary approach should be adopted by the decision-maker.

Shoreline recession

A key issue for consideration by the Panel was the impact of shoreline recession on the land in question as a result of future sea level rise caused by climate change. The applicant proposed to manage the impacts of shoreline recession by imposing a setback along the land beyond which development would not occur.

The Panel heard extensive evidence on the application of the Bruun Rule, an equation formulated by Dr Per Bruun, a Danish scientist, in 1954. In general terms, this rule predicts that 1cm mean sea level rise will result in 50cm to 100cm of shoreline retreat, depending upon local wave conditions and sand dune characteristics.

The applicant's expert estimated that a building setback line of between 33 and 49 metres from the current dune ridge would be sufficient to manage the impacts of inundation and erosion. However, the Panel rejected the applicant's proposed setback approach. The Panel considered that a setback line based on calculations using the Bruun Rule would be dangerous because the physical reality is more complex than the process modelled by the Rule. Dune erosion would respond to storm surge events and would be erratic rather than gentle and smooth. The Panel also rejected the applicant's proposal to impose a setback and then wait for a nominated erosion level to occur before conducting works to prevent further erosion. The Panel found that this would result in severe pressure on householders because of the uncertainty that such an approach entailed.

Section 173 Agreements

Another proposal put forward by the applicant to manage the impacts of inundation and erosion caused by sea level rise was to enter into an agreement under section 173 of the P&E Act requiring erosion monitoring and construction of a sea wall or an offshore reef at the applicant's cost when a certain erosion level was reached.

However, the Panel also rejected this aspect of the application because the details of the protection works were too preliminary and uncertain. The Panel considered that, in light of these uncertainties, it would be erroneous to require the applicant to enter into a section 173 agreement as a condition of the permit. In reaching this conclusion, the Panel applied the principle from Martyn Holland and Others v Colac-Otway Shire Council (Appeal No. 1996/35706) that where information central to decision-making is proposed to be submitted after the permit is granted would result in an invalid permit. The Panel found that 'such a substantial undertaking cannot be entertained in conjunction with the current permit application. It goes beyond what can reasonably be viewed as a qualifying condition and would require its own environmental assessment and planning approval process'.

Panel's conclusions

Application

The Panel refused the planning permit application on the following grounds:

• The land is a sand dune and is subject to ongoing shoreline erosion.
• The only access point to the land is subject to flooding.
• The proposals to manage the risks associated with the development were not adequate.
• The balance of policy lies in favour of refusing the application.

Appropriateness of planning controls

The Panel considered whether the current controls applicable to the land in question are soundly based and strategically appropriate. It reached the following conclusions:

• The land should be back zoned to Rural Conservation Zone.
• The parcel of land should be made subject to a particular provision pursuant to Clause 52.03 of the Moyne Planning Scheme so that the application of the Rural Conservation Zone to the land suits the particular conditions and desired strategic outcomes.
• The two overlays - Environmental Significance Overlay and Design and Development Overlay should be retained.

Regarding the issue of back zoning, the applicant argued that:

• It would be unfair to back zone the land given that the applicant bought the land zoned R1Z.
• There is no opportunity to receive compensation for the back zoning.
• Back zoning should only occur in very unusual circumstances.

The Panel rejected these arguments for a number of reasons:

• The applicant purchased the land when there was a live debate about the zoning at Council. The DSE and the Western Coastal Board had also raised concerns about the development of the land in light of issues about coastal erosion. The Panel held that the applicant should have been aware of these circumstances, applying the principle of caveat emptor.
• The Panel also found that back zoning was justifiable in the circumstances because it was a special planning case 'warranting unusual action'.
• The Panel determined that the land is not suitable for residential development and whilst it continued to be zoned R1Z, the misleading impression would remain that it is suitable for this use.
• The Panel identified a number of alternative strategic outcomes for the land, including for farming or tourist purposes.

Minister's decision

The Minister decided to refuse the planning permit application and to amend the Moyne Planning Scheme to give effect to the Panel's recommendations. The decision to back zone the land is given effect through Amendment C50 to the Moyne Planning Scheme. In his reasons for this decision, the Minister stated that the amendment 'will put in place planning controls that properly recognise the environmental constraints of the land and thereby prevent its unsustainable development'.

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