Planning and Environment Act 1987 - Department of...

Planning and Environment Act 1987

Panel Report

Kingston Planning Scheme Amendment C143

Northern Green Wedge

8 May 2015

Planning and Environment Act 1987

Panel Report pursuant to Section 25 of the Act

Kingston Planning Scheme Amendment C143

Northern Green Wedge

8 May 2015

Trevor McCullough, Chair Ian Gibson, Member

Kingston Planning Scheme Amendment C143 Panel Report 8 May 2015

Contents Page

Executive Summary .............................................................................................................. i

1 Introduction ................................................................................................................ 5 1.1 The Proposal ............................................................................................................ 5 1.2 Amendment Process ............................................................................................... 6 1.3 Conflicts of interest ................................................................................................. 7

2 Details of the Amendment .......................................................................................... 8 2.1 Location ................................................................................................................... 8 2.2 Zones and Land Use ................................................................................................. 8

3 Identification of Issues .............................................................................................. 13 3.1 Summary of issues raised in submissions ............................................................. 13 3.2 Issues dealt with in this Report ............................................................................. 14

4 Planning Context ....................................................................................................... 15 4.1 Policy framework ................................................................................................... 15 4.2 Planning scheme provisions .................................................................................. 26 4.3 Ministerial Directions and Practice Notes ............................................................. 29

5 The Most Appropriate Zone ...................................................................................... 32 5.1 Introduction ........................................................................................................... 32 5.2 Strategic Context ................................................................................................... 32 5.3 Zone options .......................................................................................................... 45 5.4 Minimum subdivision size in the Schedule to the GWAZ ..................................... 50 5.5 Site Specific Zone Issues ........................................................................................ 52 5.6 Recommendations ................................................................................................ 70

6 The Proposed Environmental Audit Overlay and Environmental Significance Overlay ..................................................................................................................... 72 6.1 The EAO ................................................................................................................. 72 6.2 The ESO .................................................................................................................. 74 6.3 Recommendation .................................................................................................. 80

7 Proposed Changes to the LPPF .................................................................................. 81 7.1 The Proposed Changes .......................................................................................... 81 7.2 Evidence and Submissions..................................................................................... 82 7.3 Discussion .............................................................................................................. 83 7.4 Conclusions ............................................................................................................ 84 7.5 Recommendations ................................................................................................ 84

Appendix A List of Submitters

Appendix B Document Lists


List of Tables Page

Table 1 Parties to the Panel Hearing .................................................................................... 7

Table 2 Panel Conclusions on Exhibited Changes to LPPF .... Error! Bookmark not defined.

List of Figures Page

Figure 1 The subject area ...................................................................................................... 5

Figure 2 Kingston portion of the south east green wedge ................................................... 8

Figure 3 Existing zoning ......................................................................................................... 9

Figure 4 Proposed GWAZ1 .................................................................................................... 9

Figure 5 Existing land use (from Kingston Northern Non‐Urban Area Framework Plan 2008) .......................................................................................... 10

Figure 6 Current and former landfill sites ........................................................................... 11

Figure 7 Precincts as shown in the Northern Non Urban Area Framework Plan (2008) ............................................................................................................. 20

Figure 8 The proposed GWAZ ............................................................................................. 27

Figure 9 Public Acquisition Overlays ................................................................................... 28

Figure 10 Map showing Areas referred to in this section ..................................................... 52

Figure 11 The area north of Leslie Road ............................................................................... 59

Figure 12 Panel recommended zones ................................................................................... 70


List of Abbreviations

BPEM Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788.2, October 2014)

DDO Design and Development Overlay

DELWP Department of Environment, Land, Water and Planning

DEPI Department of Environment and Primary Industries

DPO Development Plan Overlay

EAO Environmental Audit Overlay

EPA Environment Protection Authority

ESO Environmental Significance Overlay

GRZ General Residential Zone

GWAZ Green Wedge A Zone

GWMP Green Wedge Management Plan

KGWP Kingston Green Wedge Plan

LPPF Local Planning Policy Framework

MSS Municipal Strategic Statement

MWRRG Metropolitan Waste and Resource Recovery Group

MWRRSP Metropolitan Waste and Resource Recovery Strategic Plan

NNUAFP Northern Non‐Urban Area Framework Plan 2008

NRZ Neighbourhood Residential Zone

PAO Public Acquisition Overlay

PPRZ Public Park and Recreation Zone

SPPF State Planning Policy Framework

SWRRIP Statewide Waste and Resource Recovery Infrastructure Plan

SUZ Special Use Zone

UGB Urban Growth Boundary

VPP Victoria Planning Provisions

WRRF Waste and Resource Recovery Facilities


Overview

Amendment Summary

The Amendment Kingston Planning Scheme Amendment C143

Common Name Northern Green Wedge

Subject Area All land outside the Urban Growth Boundary north of Kingston and Heatherton Roads in the Special Use Zone (SUZ2), excluding the Spring Valley Golf Course (SUZ1)

Description Rezones the subject area to Green Wedge A Zone (GWAZ)

Introduces a minimum lot size of 40ha

Introduces an Environmental Audit Overlay and Environmental Significance Overlay to the subject area

Makes changes to the Municipal Strategic Statement and local policy

Purpose To implement the recommendations of the Kingston Green Wedge Plan 2012 in relation to landfills, waste transfer and materials recycling

The Proponent Kingston City Council

Planning Authority Kingston City Council

Authorisation A02874 authorised on 14 August 2014

Exhibition 25 September to 27 October 2014

Submissions Number Received: 36

Number opposing: 15

Number not opposing or supporting: 21

A list of all submitters is contained in Appendix A

Panel Process

The Panel Trevor McCullough (Chair) and Ian Gibson

Directions Hearing 9 February 2015 at Cheltenham

Panel Hearing 16 ‐ 20 and 25 February 2015

Site Inspections 9 February 2015 unaccompanied/18 March 2015 accompanied

Appearances As listed in Table 1

Date of this Report 8 May 2015


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Executive Summary

(i) Summary

Amendment C143 to the Kingston Planning Scheme proposes to: rezone land outside the Urban Growth Boundary north of Kingston and Heatherton Roads zoned Special Use Zone Schedule 2 (Earth and Energy Resources Industry) to the Green Wedge A Zone; apply a schedule to the zone with a minimum subdivision area of 40ha; apply an Environmental Audit Overlay and Environmental Significance Overlay to the area; and make supporting changes to the Municipal Strategic Statement and Local Policy, including introducing the Kingston Green Wedge Plan as a Reference Document in the Planning Scheme.

The creation and retention of a green wedge in this area has been supported in various forms in State and local policies since 1954. Kingston Council has sought to identify the values of the green wedge that ought to be protected in the Kingston Green Wedge Plan, adopted by Council in 2012. The Amendment implements the findings of the Kingston Green Wedge Plan.

Central to the aspirations articulated in the Kingston Green Wedge Plan is the desire to retain non‐urban uses, and for a considerable proportion of the area north of Kingston ‐ Heatherton Road to be open space/parkland.

The area has a long history of sand extraction, landfill and rehabilitation and, whilst landfill is nearing an end on most sites, rehabilitation including management of landfill gases and other hazards will continue for at least another thirty years.

Council submitted that this Amendment should make clear the long‐term aspirations for the area by introducing the Green Wedge A Zone which protects the non‐urban values of the land and prohibits materials recycling, refuse disposal, transfer station and industrial uses. This will impact on a range of uses, and this impact was the source of the majority of objecting submissions. The Panel also received a number of supporting submissions from local residents and groups who made it clear that the community expects that the subject area will be transitioned to non‐urban uses, preferably parkland, as soon as possible.

Objectors submitted that the application of the Green Wedge A Zone was premature, did not allow appropriately for transition of sites under rehabilitation and did not allow a reasonable opportunity for private land owners to achieve an economic return on their land. Other submitters, including Sustainability Victoria and the Metropolitan Waste and Resource Recovery Group, submitted that the Amendment failed to take into account the future role of the area in recycling and resource recovery in Melbourne. They submitted that the area is well located to be considered as a regional waste and resource recovery hub, and prohibiting transfer station, materials recycling and resource recovery through the introduction of the GWAZ would be in conflict with State waste and resource recovery policy.

The Panel has made a detailed assessment of existing State and local policy along with an assessment of the Kingston Green Wedge Plan and other relevant adopted strategies. The Panel has concluded that the Kingston Green Wedge Plan has been soundly developed and provides a clear statement of long‐term community expectations regarding this section of the south eastern green wedge. The Panel, however, has some concerns about a number of inconsistencies within the Plan, and more particularly, concerns about some inconsistencies


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between the recommendations of the Kingston Green Wedge Plan and the changes proposed in the Amendment. This raises some doubts in the Panel’s mind about the best path to follow to achieve the long term vision of the Plan. The Panel has, on balance, concluded that the application of the Green Wedge A Zone to the entire area at this time would be premature. The Panel agrees with Council, however, that the Special Use Zone Schedule 2 has outlived its usefulness for this area as its primary purposes, for extraction and landfill, are coming to an end.

The Panel agrees that there are some areas where a clear commitment has been made to future parkland (by existing Council ownership or by application of a Public Acquisition Overlay) and these areas could appropriately be zoned Green Wedge A Zone now. Likewise there are some areas where the existing use and the proposed future use are clearly consistent with the Green Wedge A Zone. The Panel agrees that these areas should also be in the Green Wedge A Zone now.

There are, however, some sites in the subject area that the Panel believes should not be rezoned Green Wedge A Zone for a range of reasons. The Panel is mindful that work is still underway in developing State waste and resource recovery policy, and that this area may have a role to play in providing for transfer stations and resource recovery operations. The Panel acknowledges that there is at least a debate to be had on this issue and concludes that it would be premature to prohibit such uses in the area at this point. In other parts of the subject area the Panel was not able to draw clear conclusions from the Kingston Green Wedge Plan about the intended future use of the land or how Council intended that the uses would transition to the preferred future use. The Panel believes that Kingston Green Wedge Plan is lacking in a realistic, achievable plan for transitioning privately owned sites to future recreation uses. The Plan seems to just accept that existing uses will continue, yet proposes that the Green Wedge A Zone be applied which makes a number of existing and possible future economic uses prohibited. The Panel is of the view that this may be counter‐productive and may create ‘blighted’ land holdings with no incentive for owners to develop and no obvious pathway for the land to be transitioned to open space in the future.

For these sites, the Panel recommends that the existing Special Use Zone Schedule 2 be retained in the short term, but that Council should move to develop a new Special Use Zone Schedule to better recognise the need for rehabilitation and aftercare of former landfill sites; recognise the current and immediate future roles of landfill and resource recovery sites; and recognise the role of the commercial area along Clayton Road. The new Schedule should reflect the role of this area in delivering State policy on waste and resource recovery once this is more clearly determined. The new Schedule should reflect the long term objectives of the Kingston Green Wedge Plan and recognise that time will be required to transition uses to the long term desired outcomes. In the long term the Panel agrees a green wedge zone, other non‐urban zone, or a Public Park and Recreation Zone may be appropriate for these sites as they finish rehabilitation; are purchased by Council or the State; or another appropriate land use is determined.

The Panel has assessed the proposed Environment Audit and Environmental Significance Overlays and agrees that there is merit in applying the Overlays across the subject area.

The Panel has recommended that the proposed changes to the local policies be modified to reflect the Panel’s other conclusions in relation to zoning and land use.


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(ii) Recommendations

Based on the reasons set out in this Report, the Panel recommends that Kingston Planning Scheme Amendment C143 should be adopted as exhibited subject to the following recommended changes:

1. Delete the proposed Schedule 1 to the Green Wedge A Zone.

2. Amend the Schedule to Clause 45.01 Public Acquisition Overlay to amend the Acquiring Authority for Public Acquisition Overlay 2 (Open Space land) from Parks Victoria to the Department of Environment, Land, Water and Planning.

3. Amend references to land acquisition by Parks Victoria to the Department of Environment, Land, Water and Planning as required in Clause 21.10, Clause 21.11 and Clause 22.03‐4.

4. Remove the redundant Public Acquisition Overlay 1 on land between Warrigal Road and Barkers Road in the north east corner Karkarook Park that has been transferred to the Crown and is managed by Parks Victoria as open space.

5. Remove Areas E, F, H, I, J, K and L (as designated in Figure 10 of this report) from the area to be zoned Green Wedge A Zone and retain in the Special Use Zone Schedule 2 as shown on Figure 12 of this report.

6. Apply the Environmental Audit Overlay and the Environmental Significance Overlay Schedule 4 to the entire subject area as exhibited subject to the addition of the following under Clause 4.0 Decision Guidelines in Environmental Significance Overlay Schedule 4:

where appropriate, the Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013) and the Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788.2, October 2014)

7. Modify proposed Clauses 21.10, 21.18, 22.04 and 22.07 in accordance with the Panel’s conclusions in Table 2 of this report.

8. Add the following words to the end of the fourth dot point under Clause 21.10‐2 Key Issues:

… recognising that the rehabilitation of such sites can be complex and lengthy.

(iii) Further Recommendations

The Panel makes the following recommendations for further action on zoning of land in the Kingston northern green wedge:

A. A new Schedule to the Special Use Zone should be developed to better reflect the purposes of land in the Kingston northern green wedge that is not yet suitable for zoning to a green wedge zone, including to:

Reflect the long term objectives of the Kingston Green Wedge Plan.

Recognise the need for rehabilitation and aftercare of former landfill sites.

Recognise the current and immediate future roles of landfill and resource recovery sites.

Recognise the role that the commercial area along Clayton Road plays.


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Reflect the role of this area in delivering State policy on waste and resource recovery once this is more clearly determined.

B. The new Schedule to the Special Use Zone should be applied to all existing Special Use Zone 2 land not rezoned to Green Wedge A Zone.

C. Consider the option of applying the Public Park and Recreation Zone to Karkarook Park as part Amendment C143.

D. If Council elects to rezone Karkarook Park to the Green Wedge A Zone in the interim, it should seek to rezone Karkarook Park to Public Park and Recreation Zone in a future Amendment.

E. In the longer term, Council should investigate and resolve once and for all the future use of land north of Leslie Road, including investigating the merits of residential use and a change to the Urban Growth Boundary.


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1 Introduction

1.1 The Proposal

(i) The subject area

The Amendment applies to land north of Kingston Road and Heatherton Road currently in the SUZ2 as shown in Figure 1.

Figure 1 The subject area

(ii) Amendment Description

The Amendment proposes to rezone the subject land outside the Urban Growth Boundary (UGB) north of Kingston and Heatherton Roads zoned Special Use Zone Schedule 2 (Earth and Energy Resources Industry) (SUZ2) to a Green Wedge A Zone (GWAZ).

The Amendment also proposes to:

Introduce a Schedule to the Green Wedge A Zone with a minimum subdivision area of 40 hectares.

Introduce an Environmental Audit Overlay over the area.

Introduce an Environmental Significance Overlay over the area.

Amend Clause 21.03 (Land Use Challenges for the New Millennium) of the Local Planning Policy Framework.

Amend Clause 21.10 (Non Urban Areas) of the Local Planning Policy Framework.

Amend Clause 22.04 (South East Non Urban Area Policy) of the Local Planning Policy Framework.

Amend Clause 22.07 (Enterprise Sites Policy) of the Local Planning Policy Framework.


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Amend Clause 22.18 (Materials Recycling in the Green Wedge) of the Local Planning Policy Framework.

(iii) Purpose of the Amendment

Council submitted that the Amendment is required to implement the recommendations of the Kingston Green Wedge Plan, April 2012 (KGWP) in relation to landfills, waste transfer and materials recycling, and to facilitate a transition to the proposed ‘Chain of Parks’. The Plan was adopted by Kingston City Council on 27 August 2012. The Plan acknowledges that the northern section of Kingston’s Green Wedge has been extensively mined for its sand resources and that a number of landfills located on these former quarries are nearing the end of their lifecycle. Most landfills will cease waste operation by 2017. Post closure, these sites will require rehabilitation for a number of years.

Council submitted that landfills, waste transfer and materials recycling are not seen as suitable long term uses in the Kingston green wedge due to the high potential for conflict with nearby residential, agricultural and recreational facilities. In Council’s submission, applying the GWAZ will see the area transition over time to more appropriate green wedge uses.

Council submitted that the application of an Environmental Audit Overlay (EAO) is required as much of the land within the proposed GWAZ was previously used for agricultural activities, extractive industry and landfill.

Council submitted that the application of an Environmental Significance Overlay (ESO) will ensure that buildings or works on or in proximity to any landfill are designed to mitigate any impact on the landfill and mitigate impacts caused by the landfill on the building or works.

The Amendment proposes changes to the Local Planning Policy Framework that provide the strategic basis for the proposed rezoning. The removal of an area north of Heatherton and Kingston Roads from the Enterprise Sites Policy reflects the intention for this area to be managed through the requirements of the GWAZ.

The Amendment proposes to transition landfills once rehabilitated to open space for recreational purposes contributing to the ‘Chain of Parks’, which Council submitted is consistent with the decisions granting permission for many of the landfills since the 1970s.

(iv) Background

The history of the area and relevant policy that has applied over the years is summarised in Chapter 4 of this report.

1.2 Amendment Process Kingston Planning Scheme Amendment C143 (the Amendment) was prepared by the Kingston City Council as Planning Authority.

The panel process is summarised in the Overview section of this report.

The Panel Hearings were held on 16, 17, 18, 19, 20 and 25 February 2015. Those in attendance at the Panel Hearing are listed in Table 1.


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Submitter

City of Kingston represented by Mr Paul Chiappi of Counsel and Mr Stefan Fiedler of Russell Kennedy Lawyers who called expert evidence from:

Mr Rob Milner of 10 Consulting Group on Strategic Planning

Mr Peter Ramsay of Peter Ramsay and Associates on Environmental Issues

Delta Group represented by Mr Michael Gerner of Golder Associates

Lantrak Projects Pty Ltd represented by Mr Michael Gerner of Golder Associates

Alex Fraser Pty Ltd represented by Mr Stuart Morris QC and Ms Juliet Forsyth of Counsel, instructed by Ms Clare Somerville of Norton Rose Fulbright, and calling expert evidence from:

Mr Michael Barlow on Planning

EPA Victoria represented by Marleen Mathias

Metropolitan Waste and Resource Recovery Group represented by Ms Michelle Lee

Allied Sand Nominees Pty Ltd represented by Mr Tony Anderson and Ms Jackie McKay

Mr Steve Malotis represented by Mr Jose Virguez of Taylors

Mr Norm and Mrs Lyn Dennis represented by Mr Matthew Townsend of Counsel, instructed by Rigby Cooke Lawyers and calling expert evidence from:

Mr Michael Treadwell of Millar Merrigan on Planning

Mr Patrick O’Neill of Eco‐tainable on Landfill gas

Cities of Boroondara, Glen Eira, Stonnington and Whitehorse represented by Mr Ian Pitt QC, instructed by Best Hooper Lawyers and calling expert evidence from:

Mr Michael Barlow on Urban Planning

Silvana Anthony

Claude Botti and Other Clayton Road owners represented by Ms Alice Maloney of Ratio Consultants

Kingston Heath Golf Club represented by Mr Gregg Chapple

Defenders of the South East Green Wedge Inc. represented by Mr Barry Ross

Table 1 Parties to the Panel Hearing

1.3 Conflicts of interest The Panel members have made a declaration that they have no conflicts of interest in relation to the matters considered.


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2 Details of the Amendment

2.1 Location The subject area forms the northern end of the south east green wedge. Figure 2 shows the portion of the south east green wedge in the City of Kingston.

Figure 2 Kingston portion of the south east green wedge1

2.2 Zones and Land Use The existing zone map is as shown in Figure 3. The Amendment proposes to rezone all of the SUZ2 land outside the UGB and north of Kingston Road and Heatherton Road on the above map to GWAZ1 as shown in Figure 4.

Current land use is as shown in Figure 5.

1 Source – Mr Milner’s expert report.


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Figure 3 Existing zoning2

Figure 4 Proposed GWAZ1

2 Source – Kingston Northern Non‐Urban Area Framework Plan 2008


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Figure 5 Existing land use (from Kingston Northern Non‐Urban Area Framework Plan 2008)


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The location of current and former landfill sites is shown in Figure 6.

Figure 6 Current and former landfill sites3

The following is a summary of sites in the subject area that have active or recently expired planning permits for landfill, materials recycling and waste transfer:

Alex Fraser – sand extraction site never filled, materials recycling permit in conjunction with refuse transfer station – expiry 2023.

Henry Street – inert landfill, closed 2014, aftercare until 2044.

Elder Street – refuse disposal (non‐putrescible), closed 2002, aftercare until 2032.

3 Source – Mr Milner’s expert report.


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Clayton Regional landfill – inert and putrescible landfill, soft green waste transfer station – expected to close late 2015, aftercare until 2045.

Lantrak – fill and acid sulphate soils, rehabilitation. Application lodged for materials recycling in conjunction with transfer station.

Delta – clean fill and acid sulphate soils, rehabilitation for at least five years.

Victory Road – solid inert waste landfill, soft green waste transfer station – expiry 2018, aftercare until 2048.

Deals Road – putrescible waste, landfill ceased 2010, may be some further solid inert fill, aftercare until 2040.

Former Ryans Road landfill – Solid inert, closed 1998, aftercare until 2028.

Former Clayton Road landfill – Municipal and solid inert, closed 1989, aftercare until 2019.

Heatherton Park – Municipal and solid inert, close 1984, aftercare until 2014.

The majority of active landfill sites will be completed filling by 2016. The Panel was advised by the EPA that putrescible landfill sites generally require a 30 year aftercare period after final capping to allow settlement, conduct rehabilitation and manage landfill gas.


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3 Identification of Issues

3.1 Summary of issues raised in submissions The key issues raised in the submissions of the various parties are briefly summarised as follows:

(i) Planning Authority

The key issues for the Council were:

Strategic justification for the proposed GWAZ1.

The need to protect the non urban character of the green wedge post landfill and rehabilitation.

The need to prohibit or discourage inappropriate uses in the green wedge.

Strategic justification for the proposed EAO and ESO.

Existing use rights will allow existing land uses to continue and potentially expand.

(ii) Views of the relevant agencies

The key issues for the Metropolitan Waste and Resource Recovery Group and Sustainability Victoria were:

The Amendment fails to take into account state waste and resource recovery policies.

The GWAZ is not appropriate for sites that have ongoing potential as waste and resource recovery sites. Rezoning to GWAZ is premature for these sites.

Application of the ESO and EAO as proposed is not supported.

The EPA submitted that:

The Amendment does not adequately recognise the lengthy rehabilitation process for former landfills and extractive industry sites.

The proposed ESO will not allow adequate protection of buffers around former and operating landfills.

The proposed zone allows the possible introduction of sensitive uses adjacent to Industrial zoned land.

The Department of Environment and Primary Industries (DEPI) submitted that:

Karkarook Park should be PPRZ not GWAZ.

Application of the EAO to Karkarook Park is not supported.

Requested change in acquiring authority for PAO2 to DEPI (now DELWP) rather than Parks Victoria.

(iii) Individual Submitters

The key issues for supporting submitters were:

The GWAZ supports the achievement of the ‘Chain of Parks’ concept.

Support for prohibiting landfill, transfer stations and concrete crushers in proximity to residential land.

The Amendment helps fulfil the aspirations and expectations of the community.


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The GWAZ provides certainty about what can and can’t be done in the area.

The Amendment protects non‐urban uses.

The key issues raised by objecting submitters were:

Existing uses will now be prohibited.

Some submitters requested other zones (residential or industrial) be applied to their sites.

The proposed zone overly restricts the viable economic use of land.

A broader range of uses including resource recovery can co‐locate with recreational land uses and should not be prohibited.

Rezoning to GWAZ1 is premature.

The GWAZ1 should not be applied to the whole area.

The proposed ESO is a misuse of this control.

The proposed minimum lot size of 40ha is overly restrictive and not consistent with the recommendations of the Green Wedge Plan.

The Amendment is inconsistent with the Kingston Northern Non‐Urban Area Framework Plan (NNUAFP).

3.2 Issues dealt with in this Report The Panel considered all written submissions, as well as submissions presented to it during the Hearing. In addressing the issues raised in those submissions, the Panel has been assisted by the information provided to it as well as its observations from inspections of specific sites.

This report deals with the issues under the following headings:

Planning Context.

The Most Appropriate Zone.

The Proposed EAO and ESO.

The Proposed changes to the LPPF.


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4 Planning Context

Council provided a response to the Strategic Assessment Guidelines as part of the Explanatory Report.

The Panel has reviewed the policy context of the Amendment and made a brief appraisal of the relevant zone and overlay controls and other relevant planning strategies.

4.1 Policy framework

(i) State Planning Policy Framework

Council submitted that the Amendment is supported by the following clauses in the SPPF:

Clause 11.03: Open Space Planning, has the objective of assisting the creation of a diverse and integrated network of public open space commensurate with the needs of the community.

Clause 11.04‐7: Green Wedges has the objective of protecting the green wedges of Metropolitan Melbourne from inappropriate development. Strategies include:

the strategic planning and land management of each green wedge area to promote and encourage its key features and related values.

support development in the green wedge that provides for environmental, economic and social benefits.

Protect areas of environmental, landscape and scenic value.

Protect significant areas of stone, sand and other mineral resources for extraction purposes.

Clause 13.03‐1: Use of Contaminated and Potentially Contaminated Land, has the objective of ensuring that potentially contaminated land is suitable for its intended future use and development and that contaminated land is used safely.

Clause 13.04: Noise and Air, has the objectives of assisting the control of noise effects on sensitive land uses and assisting the protection and improvement of air quality.

Clause 19.03‐5: Waste and Resource Recovery, has the objective of avoiding, minimizing and generating less waste to reduce damage to the environment caused by waste, pollution, land degradation, and unsustainable practices. Strategies include:

Establishing new sites and facilities to safely manage all waste and maximize opportunities for resource recovery.

Encourage facilities for resource recovery to maximize the amount of resources recovered.

Encourage waste generators and resource generators and resource recovery businesses to locate in close proximity to enhance sustainability and economies of scale.


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Ensure buffers for waste and resource recovery facilities are defined, protected and maintained.

(ii) Local Planning Policy Framework

Council submitted that the Amendment supports the following local planning objectives:

Clause 21.02, Municipal Profile, notes:

Open Space ‐ Several recreational and open space areas in Kingston generate demand across a regional catchment. The proposed ‘Chain of Parks’ which will extend across the northern parts of the municipality and join with open space networks in the City of Greater Dandenong will also contribute to satisfying regional open space needs ...

Non urban land ‐ Kingston’s non urban areas extend across the northern and eastern parts of the municipality, including Heatherton/Clayton South and Braeside/Keysborough. These areas form part of a south eastern regional wedge of non urban land which traverses the Cities of Kingston, Greater Dandenong, Frankston and Casey to Westernport Bay.

Kingston’s non urban land fulfils a range of rural and ‘urban related’ roles, including agricultural production, sand extraction, land filling, regional open space, protection of Moorabbin Airport’s flight paths, nature conservation, and a location for urban related uses including churches, sporting facilities, institutional uses, etc.

The non urban areas comprise a largely rural landscape character, and although some areas have developed a semi‐urban appearance the re‐creation of pre‐settlement landscapes remains an important objective in Kingston’s non urban areas. The area also plays an important role in providing recreational opportunities for the south east metropolitan area. The future transformation of the non urban area into a carefully managed network of parks will bestow community benefits of the highest order, following years of blight brought about by the negative impacts of sand extraction and land filling …

Clause 21.03, Land use challenges for the new millennium, notes that the non‐urban areas will continue to experience significant pressure for more intensive urban development. The sustainable management of the non‐urban areas is one of the largest challenges facing the City. Specific issues include the management of landfills; the rehabilitation of landfill sites to provide for the timely development of regional open space networks through the Sandbelt Open Space Strategy; and the creation of a hard edge to the non‐urban interface.

Clause 21.10, Non urban areas, includes:

an overview which notes the importance that land use outcomes are resolved through structure planning, are not driven through short term economic expediency, but seek to achieve sustainable use and development outcomes.


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Key issues include:

Coordinated management of extractive industry and land filling operations, including planning for the rehabilitation and after use of such sites.

Development of regional parks and creation of a network of regional open space linkages.

Planning and management of ‘urban related uses’ in non urban areas.

The objectives include supporting and maintaining the green wedge concept; protecting the economic and operational viability of key industries and infrastructure including landfilling; providing for open space links and opportunities for recreation.

Clause 21.11, Open space, includes the objective of promoting the creation of a major regional north‐south spine of open space within a predominantly non urban context.

Clause 22.03, Sandbelt Open Space Project Policy, includes the objectives of implementing the Project and promoting the rehabilitation and conversion of extractive industrial and landfill sites to open space or other productive after uses which are compatible with the Project.

Clause 22.04, South East Non Urban Area Policy, includes objectives of protecting the economic and operational viability of key industries including extractive industries; and providing for opens space links and opportunities for recreation. Preferred uses include agriculture, horticulture, extractive industries and land fill operations; as well as public open space facilities.

Clause 22.07, Enterprise Sites Policy, has objectives of promoting development compatible with the Sandbelt Open Space project along the Clayton Road spine.

Clause 22.18, Materials recycling in the green wedge, has the objective of protecting the environment, amenity and strategic future of the green wedge. The policy seeks to constrain the nature and extent of materials recycling facilities. The policy presently expires on 1 June 2015.

(iii) The South East Green Wedge

The concept of a green wedge in the Kingston‐Dandenong area has a long history, which was extensively outlined in expert witness reports prepared by Mr Rob Milner and Mr Michael Barlow, and in Council’s submission to the Panel.

In summary, the key documents included the following:

1954: Melbourne Metropolitan Planning Scheme (Melbourne & Metropolitan Board of Works)

This report outlined the importance of providing sufficient space for recreational and healthy pastimes in metropolitan Melbourne, and identified a major parkland in the broader area of what is now described as the south eastern green wedge.


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1967: The Future Growth of Melbourne (Melbourne & Metropolitan Board of Works)

This report introduced the concept of growth corridors for urban development, with non‐urban areas between these corridors forming the ‘breathing space’ for the city. The report identified non‐urban areas of landscape significance being areas used for agriculture and extraction of mineral resources. The area subject to Amendment C143 is included within a larger ‘area in which special protection may be needed’.

1971: Planning Policies for Melbourne Metropolitan Region (Melbourne & Metropolitan Board of Works)

This report built on the recommendations of the 1967 Report, and specified that urban development should not take place within the defined wedges, which included the subject land.

The report identified key features of the land, including:

deposits of high quality, coarse concrete sands north of Lower Dandenong Road;

the desirability of retaining at least part of the intensive market garden area; and

the need for adequate recreational opportunities for the population of south east Melbourne.

1981: Metropolitan Strategy Implementation (Melbourne & Metropolitan Board of Works)

The 1981 report developed the ideas in the 1971 report. The Strategic Framework Plan identified the south eastern green wedge as ‘non urban land’, classified as ‘broad scale mixed or intensive farming’.

1987: Shaping Melbourne’s Future (Victorian State Government)

This report further developed the concept of non‐urban wedges. It identified the environmentally sensitive areas in the Upper Yarra Valley, Dandenong Ranges, Mornington Peninsula and Macedon Ranges, which led to protection through Statements of Planning Policy. The other non‐urban wedges were largely distinguished on the basis of their rural activities and natural resources.

1992: Implementation Strategy for the ‘Chain of Parks’ (Deloitte Ross Tohmatsu)

This report was prepared for the municipalities of Moorabbin, Oakleigh and Springvale, and developed a series of proposals for implementing the concept of the ‘Chain of Parks’ ‐ which it notes was envisaged ‘20 years ago’. It referred to significant tracts of land within the green wedge, blighted through sand extraction and tipping activities. Further, it proposed a 700ha ‘Chain of Parks’ extending over public and private land from Braeside Metropolitan Park to Warrigal Road, south of Centre Road.

It suggested that the ‘Chain of Parks’ could be developed in the following two decades to create an extensive recreation and open space area ‘complementary to the non‐urban and green wedge within which it is contained’. Further, the realisation of the concept would require:

...a comprehensive planning framework, preferably covering sand extraction, landfilling and reclamation, gas collection, revegetation and the development


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of recreational activities. Success will also depend on the support of Local Government Authorities and the co‐operation of existing land owners.4

1994: Sandbelt Open Space Project – Development Plan (Melbourne Parks and Waterways

This report reinforced the significance of the sand quarries in the area, and the potential for their filling and rehabilitation. It referred to the concept of a series of linked parks which has been proposed in the Heatherton Dingley area since the early 1970’s. Amongst its recommendations were:

A core area of 355 ha of publicly owned land which provides a continuous linear park spine from Warrigal Road, Moorabbin to Braeside park, Dingley;

Acquisition of 170 ha of disturbed land to achieve this continuous park linkage ...

1995: Living Suburbs (Victorian State Government)

This report focused on reinforcing the strengths of Melbourne. Direction 4 ‘Enhance Melbourne's environment and liveability’ included a commitment to provide a world‐class open space system. It proposed the development of new parks, specifically referring to Karkarook Park as part of the Sandbelt in the inner south‐east.

2002: Melbourne 2030 (Victorian State Government)

Melbourne 2030 introduced Melbourne’s Urban Growth Boundary and identified 12 green wedges. It strengthened their protection from inappropriate development, flagging the introduction of new planning scheme provisions to secure this protection.

The report assessed the distinguishing features of each green wedge, with the south‐east noted as:

Internationally recognised wetlands, such as Seaford‐Edithvale.

Eastern Treatment Plant and related odour buffers.

Areas for potential waste water recycling.

Sand resources and metropolitan landfills, such as Dingley/Heatherton and Langwarrin.

Areas of landscape and environmental significance.

Designation odour and safety buffers near Dandenong South industrial area.

Moorabbin Airport and related flight paths.

Location of productive agricultural significance.

2008: Northern Non Urban Area Framework Plan (NNUAFP) (Kingston City Council)

This report was prepared by officers of Kingston City Council, aiming to address the planning challenges in the northern non‐urban area of Kinston City, encompassing parts of Heatherton, Clarinda and Clayton South. It explored the cycle of quarrying, landfill and rehabilitation of the area, breaking the study area into seven precincts:

Karkarook Park Precinct.

Core Parkland Precinct.

4 Deloitte Ross Tohmatsu, Implementation Strategy for the ‘Chain of Parks’ (1992), p2.


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Nursery Precinct.

Enterprise Sites precinct.

Urban/Non Urban Integration.

Resource Recovery.

Golf and Leisure.

Figure 7 Precincts as shown in the Northern Non Urban Area Framework Plan (2008)

Kingston City Council adopted the NNUAFP in August 2008. The Plan proposed ‘catalyst projects’ and future planning considerations for each precinct.

2014: Plan Melbourne (Victorian State Government)

Plan Melbourne followed a number of reviews of Melbourne 2030, including Melbourne @ 5million (2008), the Logical Inclusions reassessment and Delivering Melbourne’s Newest Sustainable Communities (2009). It maintained the delineation of the south east green wedge, stressing its contribution to the urban development of the south east Metropolitan Melbourne, and referring to existing parks including Karkarook Park.

(iv) Kingston Green Wedge Plan

In 2008, SGS Economics and Planning was commissioned by the former Department of Planning and Community Development to prepare base information to assist with the preparation of a South East Green Wedge Management Plan. The South East Green Wedge Background Report and Issues Paper provides information about land use and economic


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conditions in the South East Green Wedge, summaries of existing conditions, analysis of the issues and possible management solutions.

Subsequently, in 2010, Kingston City Council engaged Planisphere to develop a Green Wedge Management Plan, the Kingston Green Wedge Plan (KGWP), for the northern portion of the south eastern green wedge within the City of Kingston.

Chapter 1 of the KGWP, ‘What is a Green Wedge Plan?’, described its functions:

The Plan will identify the values and features of the Green Wedge, the preferred land uses, environmental and natural resources that should be protected, and the needs of the local community. The Plan will stand alone, but is also intended to sit within the South East Green Wedge Management Plan when completed.

When completed, relevant parts of the Kingston Green Wedge Plan will form a Green Wedge Management Plan under the relevant planning provisions. A Green Wedge Management Plan is a council adopted strategy that identifies the vision, objectives and actions for the sustainable development of each Green Wedge. All Green Wedges should have a Management Plan and the process for developing such a Plan is outlined in a State government Practice Note5. The process must include extensive engagement with all stakeholders, including landowners, businesses and residents in the Green Wedge. All interested parties will have had the opportunity to input to the vision and objective setting, as well as comment on the Draft Plan.

The Plan will provide the Council, landowners, business operators and residents with certainty about the future of the Green Wedge and all the land within it. It will involve relevant government authorities and it is proposed that the Plan will be implemented through the Planning Scheme, as well as other mechanisms and processes, to provide it with statutory weight. The Green Wedge Plan must provide justification for any necessary change to the Kingston Planning Scheme. While this Green Wedge Plan can advocate for changes to the UGB, changes are initiated by the State Government.

The principles that are required to underpin preparation of the Green Wedge Plan are:

Consistency with relevant State Government policies

A common basis for the preparation of the Plan,

A well informed, inclusive plan preparation process

A common approach to the preparation of all plans

Involvement of stakeholders and land owners.6

The process of developing the Plan started in 2010, and included: background research and analysis; release of a discussion paper; consultation on the vision and key issues; preparation

5 VPP General Practice Note: Preparing a Green Wedge Management Plan, DSE (August 2005). 6 Planisphere, Kingston Green Wedge Plan (2012), p17.


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of and consultation on a Draft Green Wedge Plan; and preparation of the Final Green Wedge Plan. The Plan was adopted by Kingston City Council on 27 August 2012.

The KGWP is arranged according to topics such as Environmental Qualities, Types of Land Uses and Activities, Public Spaces and Access and Movement Systems. Each chapter identifies the issues, ‘What do we want?’, ‘What are we going to do?’ and ‘How are we going to do it?’. Its focus is summarised in the vision for the Kingston green wedge, which is ‘to be an exemplar environmental and recreational resource for the local and regional community’7.

Chapter 4 on types of land uses and activities is particularly relevant to Amendment C143. It identifies the land uses to be encouraged, including conservation areas, recreation facilities, agriculture and associated services, urban forests, environment parks, renewable energy generation (that have no off‐site impacts), schools and tertiary campuses, and community and church facilities. It outlines the existence of ‘intensive’ land uses on main roads, and the continued operation of Moorabbin Airport. It also proposes the ‘elimination of uses that cause off‐site impacts on residential amenity, agricultural viability and environmental qualities’8, specifically the phasing out of existing landfills, waste transfer and materials recycling activities.

Chapter 8 on governance and leadership models explores ‘Planning Scheme Implementation Options’, recommending the rezoning of Special Use 2 Zoned land to Green Wedge A Zone.

The Plan is not currently referenced in the Kingston Planning Scheme, and Amendment C143 proposes to include it as a reference document in the renamed Clause 21.10 Green Wedge.

(v) Waste Management Policies

As noted above, the subject land has had an extensive history in sand quarrying, landfill and waste management. The evolution of this role, and the references to it in State waste management policies, were summarised by expert witness reports prepared by Mr Rob Milner and Mr Michael Barlow, and in Council’s submission to the Panel.

The key documents included the following:

2005: Towards Zero Waste (Victorian State Government)

This report outlined a 10‐year strategy to generate less waste, increase the sustainable recovery of material for recycling and reprocessing, and reduce damage to the environment created by waste disposal. It was structured around state‐wide targets addressing waste avoidance, resource recovery and litter prevention.

The report’s high‐level focus on meant that it did not provide detail on waste management activities in the Melbourne’s south east.

7 Ibid, p9. 8 Ibid, p72.


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2009: Metropolitan Waste and Resource Recovery Strategic Plan (Metropolitan Waste Management Group)

This report aimed to deliver on key targets of Towards Zero Waste for metropolitan Melbourne, providing a strategic framework for the management and reduction of solid waste in Melbourne over 30 years.

The future of the south eastern area is outlined in Chapter 5 of the report, covering landfill rehabilitation:

New landfill sites in the south and east are likely to be needed within the next 10 to 20 years due to a number of closures. At a minimum, TPI Carroll Rd, TPI Victory Rd, The Glen, SBI Cranbourne and the Clayton Regional Landfill will be closed before 2020. Other sites such as TPI Fraser Rd may close by about 2020.

Sites seeking inclusion in this Schedule from the south and east catchments were for solid inert waste only and a combination of solid inert and putrescible waste. The earliest new site needed will be for a replacement for SBI Cranbourne in approximately 2018, and it would be best located in the outer south and east corridor of metropolitan Melbourne.

When the solid inert sites in the Clayton area close, it will be possible to schedule an additional site in this area. This will not occur until the latter stages of the life of the TPI Heatherton Sands site. The Delta site at Kingston Road, Heatherton (which is located immediately south of the Heatherton Sands site) would potentially be a suitable replacement site when the other Clayton solid inert sites are filled.

The City of Kingston released a draft Northern Non Urban Framework Plan in September 2007. This plan supports the filling of the Delta site in order to facilitate the development of the ‘Chain of Parks’. This Schedule supports the use of the Delta site in accordance with the Kingston Plan. The timing of the filling of the Delta site should be further considered in the next review.9

2013: Getting Full Value ‐ Victorian Waste and Resource Recovery Policy (Victorian State Government)

Getting Full Value proposed a range of market‐based actions aiming to more effectively deal with waste in Victoria, particularly through the strengthening of the resource recovery industry.

It noted the need to minimise the impacts of odour, noise, dust, litter and vermin on communities located near waste and resource recovery facilities. In particular, it aimed to facilitate the long term purpose of landfills to be for receiving and treating residual waste, and ensure a range of support mechanisms for closed landfills.

9: Metropolitan Waste Management Group, Metropolitan Waste and Resource Recovery Strategic Plan

(2009), Part 3 p11.


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The report stressed the importance of waste management policy integrating with land use planning, transport and development. Further, it flagged the establishment of a connected system of ‘hub and spoke’ infrastructure and logistics, where hubs are major facilities that process or contain significant quantities of waste, or provide specialised processing capacity for smaller quantities; and spokes will be the sequence of activities that move material from waste generators to and from hubs.

Getting Full Value did not specify the location of the hubs, nor did it specifically refer to current waste management activities in the City of Kingston.

2013: Draft Statewide Waste and Resource Recovery Infrastructure Plan (Sustainability Victoria)

This report (SWRRIP) includes a vision to provide Victoria with the roadmap to guide future investment in waste management and resource recovery infrastructure. It aims to effectively manage the expected mix and volumes of waste, support a viable resource recovery industry and reduce the amount of valuable materials going to landfill.

SWRRIP identifies the hubs of state importance, highlighting the factors that need to be considered in planning at local and regional levels. These include:

The costs and benefits to local communities and industries of keeping these sites as part of the waste management and resource recovery system.

The alternative management requirements for materials currently going to these sites, if they were no longer available or had reduced functionality for waste management and resource recovery activities.

Whether it is appropriate to preserve in planning schemes the buffers and ability to use these sites for waste and resource recovery activities in the long term.

Community expectations around the future activities on these sites.

There is a major opportunity to preserve land for future waste and resource recovery activities, by identifying sites of importance. Often, these sites have existing buffers, transport links and supply spokes that support future activities. However, preserving the land usually involves ensuring that new, incompatible land uses do not encroach on it.

Preserving these sites for waste and resource activities does not mean that activities on these sites do not change. For example, landfills that have either been closed or are scheduled for closure can transition to other resource recovery activities, including transfer stations and resource recovery centres (TS/RRCs). This continues the provision of services to the community and improves recovery options 10.

The Kingston/Clayton/Dingley precinct is identified as a hub of state significance, and is described in the following way:

10 Sustainability Victoria, Draft Statewide Waste and Resource Recovery Infrastructure Plan (2013), p37.


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This precinct is a significant hub for the surrounding area for organics, landfill and C&D processing. The landfills are all anticipated to close within seven years, providing an opportunity to transition the site to resource recovery activities that are compatible with surrounding land use and do not impact on the amenity of the surrounding community.

Preserving the land for resource recovery activities will increase the ability to meet the future needs of the surrounding metropolitan area.

Pressure from surrounding residential activities and community expectations could threaten the functionality of this site for recovery activities. Planning needs to preserve adequate buffers and prevent the establishment of incompatible land uses that could impact on the functionality of the site.

Community engagement is needed to demonstrate and explain the benefits to the community of this site remaining available for resource recovery activities, and to reassure the community that activities will have minimal impact on local amenity.11

2013: Consultation Draft ‐ Metropolitan Waste and Resource Recovery Strategic Plan (Metropolitan Waste Management Group)

This report provided a review of the 2009 Metropolitan Waste and Resource Recovery Strategic Plan (MWRRSP). It built on Getting Full Value, identifying five priorities for waste and recovery services in Metropolitan Melbourne:

Aligning infrastructure investment with market development.

Better alignment between land use planning and waste and resource recovery planning.

An immediate need to address waste and recovery / disposal needs in the south east arising from the demise of the Clayton Landfill.

Expanding the capacity of Melbourne’s transfer station / resource recovery centres

Continued Council cluster procurement of organic waste.

The Consultation Draft is described as a document to help the Melbourne Waste Management Group ‘to facilitate a conversation with local government, industry and community’, and work in partnership with stakeholders to finalise the final plan for Melbourne’s waste and resource recovery network.

The report identifies the potential loss of landfill capacity in the south east of Melbourne:

The Kingston/Clayton/Dingley precinct is a significant hub for organics transfer and composting, putrescibles and solid inert landfilling and C&D processing. The draft SWRRIP identifies this precinct as a ‘hub of state importance’ and advises ‘that these sites are important to the state’s waste management and resource recovery system’. The SWRRIP also acknowledges the opportunities these sites provide to transition to resource recovery. Preserving the land for

11: Sustainability Victoria, Draft Statewide Waste and Resource Recovery Infrastructure Plan (2013), p39


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future resource recovery activities will allow future waste and recovery needs of metropolitan Melbourne to be met.

MWMG acknowledges that while the market will determine the location for most resource recovery facilities, MWMG expects that preference will be given to current resource recovery hubs and employment precincts. For organics processing, the preference will still be for sites in green wedges and farming zones as they provide the best opportunities to operate with appropriate buffers that will preserve amenity and mitigate against public health impacts.12

4.2 Planning scheme provisions

(i) Zones

Amendment C143 applies to land currently zoned Special Use Zone Schedule 2: Earth and Energy Resources Industry (SUZ2). It proposes to rezone land outside the urban growth boundary (UGB) north of Kingston and Heatherton Roads within the SUZ2, excluding the Spring Valley Golf Course, to the Green Wedge A Zone (GWAZ).

SUZ2 describes the following purposes:

To recognise or provide for the use and development of land for earth and energy resources industry.

To encourage interim use of the land compatible with the use and development of nearby land.

To encourage land management practice and rehabilitation that minimises adverse impact on the use and development of nearby land.

Amongst the Section 2 permit required uses within the SUZ2 include Landscape gardening supplies, Leisure and recreation (other than Informal outdoor recreation), Manufacturing sales, Materials recycling, Place of assembly (other than Amusement parlour and Nightclub), Refuse disposal and Transfer station.

The Amendment proposes to introduce the Green Wedge A Zone (GWAZ) to the land, with a schedule limiting the size of subdivisions to 40 hectares.

12: Metropolitan Waste Management Group, Consultation Draft ‐ Metropolitan Waste and Resource Recovery

Strategic Plan (2013), p64.


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Figure 8 The proposed GWAZ

The Purposes of the GWAZ are as follows:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for the use of land for agriculture.

To protect, conserve and enhance the biodiversity, natural resources, scenic landscapes and heritage values of the area.

To ensure that use and development promotes sustainable land management practices and infrastructure provision.

To protect, conserve and enhance the cultural heritage significance and the character of rural and scenic non‐urban landscapes.

To recognise and protect the amenity of existing rural living areas.

GWAZ includes a small range of Section 1 (No permit required) uses, while materials recycling, refuse disposal and transfer station are Section 3 prohibited ‘Industry’ uses (they are Section 2 permit required uses in the SUZ2). A further significant difference with SUZ2 includes the condition that function centre, group accommodation or restaurant must be used in conjunction with agriculture, natural systems, outdoor recreation facility, rural industry or winery.

(ii) Overlays

The main existing overlay of relevance to this Amendment is the Public Acquisition Overlay Schedule 2 (PAO2) which is land set aside in favour of Parks Victoria for open space to form the ‘Chain of Parks’. Figure 5 shows the PAO2 and the PAO1 (Road reserve for the Dingley bypass).


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Figure 9 Public Acquisition Overlays

There are a number of other smaller existing overlays that are not critical to the Amendment, including:

DDO5 – Airport height overlay – applies to a small area north of Kingston Road on either side of Old Dandenong Road.

HO45 – Heritage Overlay – applies to a house at 241‐301 Kingston Road, Clarinda.

LSIO – Land Subject to Inundation Overlay – applies to land adjacent to the Melbourne Water Clayton South Main Drain just east of Old Dandenong Road.

The Amendment proposes to introduce an Environmental Audit Overlay (EAO) and an Environmental Significance Overlay (ESO) over the same area as the proposed GWAZ1. These are discussed in Chapter 6 of this report.

(iii) Particular provisions

Clause 57 Metropolitan Green Wedge Land applies to land outside an Urban Growth Boundary. Amongst the Purposes of the Clause are:

To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values.

To protect productive agricultural land from incompatible uses and development.

To ensure that the scale of use is compatible with the non‐urban character of metropolitan green wedge land ...

Clause 57 lists a range of land uses which are prohibited. Amongst these are the following:

Materials recycling, unless it is in conjunction with refuse disposal or transfer station


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Industry (other than materials recycling, refuse disposal, transfer station, research and development centre, and rural industry).

(iv) General provisions

Clause 63 Existing Uses is central to the implementation of Amendment C143. This establishes an existing use right if a land use was lawfully carried out immediately before the approval date. This allows for continuation of a use in Section 2 or 3 of a zone for which an existing use right is established, provided:

No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

Kingston City Council’s submission to the Panel noted that existing use rights enable existing landfill and resource recovery operations to continue operations, together with commercial enterprises along Clayton Road and the Oakleigh go‐kart track.

4.3 Ministerial Directions and Practice Notes The following Ministerial Directions and Planning Practice Notes apply to the Amendment:

Direction No. 1: Potentially Contaminated Land

This Direction aims to ensure that potentially contaminated land is suitable for a use which is proposed to be allowed under a planning scheme amendment.

Direction No. 9: Metropolitan Planning Strategy

This Direction aims to ensure that planning scheme amendments have regard to the Metropolitan Planning Strategy (Plan Melbourne).

While Practice Notes do not have statutory weight, they provide clarity about the development of Planning Scheme amendments. The Practice Notes that are relevant to Amendment C143 include the following:

PPN03: Applying the Special Use Zone, February 1999

This Practice Note describes the circumstances when a Special Use Zone should be considered, when either:

An appropriate combination of the other available zones, overlays and local policies cannot give effect to the desired objectives or requirements.

The site adjoins more than one zone and the strategic intent of the site, if it was to be redeveloped, is not known and it is therefore not possible to determine which zone is appropriate.


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The Practice Note outlines the requirements for any Schedule, including the need to ensure that the purpose of the zone is clearly identified and the outcomes sought are clear.

PPN31: Preparing a Green Wedge Management Plan, Revised July 2014

This Practice Note provides guidance for the preparation of Green Wedge Management Plans, covering the policy context and basis for the plans, their content and status. It states that the plans should be a council adopted strategy identifying a vision, objectives and actions for the sustainable use and development of each green wedge. The plan should identify the values and features of each green wedge, the preferred future land use, environmental and natural resources that should be protected, and the needs of the local community.

The Practice Note describes the Government’s expectation for the green wedges:

The government’s vision for the green wedges is to encourage their proper management and to protect them for non‐urban uses. The government is working closely with councils and communities to ensure the proper protection, management and planning of these areas.

Green wedges are not another type of park. They are active, living areas that include agriculture and many other non‐urban activities.

The green wedges accommodate agricultural and recreational uses, as well as a variety of important functions that support Melbourne. These include major assets such as airports, sewage treatment plants, extractive industry and landfill sites – uses that support urban activity but which cannot be located amongst normal urban development. The green wedges include areas that have strong environmental, landscape, built and Koori heritage value for Victorians – many of which are of state, national or international significance. They provide important resources for recreation and tourism. Each green wedge has unique features and will require a management approach that promotes and encourages its diversity.

Collectively, green wedges have a broad range of purposes. This means that each GWMP will need an individual, tailored approach to establish the clear role, purpose, objectives and related actions for each area.

The Practice Note provides a list of opportunities in the green wedge, including:

agricultural uses, such as market gardening, viticulture and broad acre farming, as well as forestry and land‐based aquaculture

assisting the preservation of rural and scenic landscapes

ensuring the conservation of important environmental assets close to where people live

managing renewable and non‐renewable resources and natural areas (such as water supply catchments)

providing and safeguarding infrastructure sites that support urban areas (for example, sewage treatment plants)

allowing industries such as sand and stone extraction to operate close to major markets


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providing opportunities for tourism and recreation

recognising and conserving heritage features.

PPN62: Green Wedge Planning Provisions, November 2013

This Practice Note provides information on the nature of green wedge land outside the Urban Growth Boundary, outlines the Core Planning Conditions in Clause 57 in the VPPs, and describes the application of zones to green wedge land.

The Green Wedge Zone is described as follows:

The Green Wedge Zone is appropriate to recognise and protect non‐urban land outside the UGB in the metropolitan area for its agricultural, environmental, historic, landscape or recreational values, or mineral and stone resources.

The zone provides opportunity for all agricultural uses and limits non‐rural uses to those that either support agriculture or tourism, or that are essential for urban development but cannot locate in urban areas for amenity and other reasons (such as airports, schools, waste treatment plants, land fills and reservoirs). A dwelling requires a permit and is restricted to one dwelling per lot.

The zone provides a minimum lot size of 40 hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is prohibited unless the subdivision is the re‐subdivision of existing lots or the creation of a small lot for a utility installation.

In comparison, the Green Wedge A Zone is described as having the following characteristics:

The Green Wedge A Zone is appropriate to apply to areas recognising and protecting non‐urban land outside the UGB in the metropolitan area for its agricultural, environmental, historic, landscape, infrastructure, natural resource and rural living attributes.

The zone provides opportunity for all agricultural uses and limits non‐rural uses to those that either support agriculture or tourism, schools, major infrastructure or rural living. A dwelling requires a permit and is restricted to one dwelling per lot.

The zone provides a minimum lot size of eight hectares unless an alternative is specified in a schedule to the zone. The creation of smaller lots is prohibited unless the subdivision is the re‐subdivision of existing lots or the creation of a small lot for a utility installation.

The Practice Note also describes the use of the Rural Conservation Zone in green wedges, aiming to conserve, maintain and enhance the environment.


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5 The Most Appropriate Zone

5.1 Introduction The central feature of Amendment C143 is the proposal to rezone the subject area from Special Use Zone Schedule 2 to Green Wedge A Zone.

The following questions have arisen out of submissions:

Is the Green Wedge A Zone the most appropriate zone for all or part of the area?

Is the current or a modified version of the Special Use Zone more appropriate?

Should other zones (such as the Green Wedge Zone) be considered for part or all of the area?

Is the Green Wedge A Zone appropriate for all or part of the subject land some time in the future, but not now?

In this Chapter the Panel examines these questions in the broader strategic context, reviews the most appropriate controls for a number of specific sites and makes recommendations on zones to apply to land in the subject area.

5.2 Strategic Context

5.2.1 The Future of the South Eastern Green Wedge

(i) The Issues

With the exception of submissions relating to the sites north of Leslie Road (the Allied Sand and Dennis properties), none of the submitters proposed that the subject land should be excised from the south eastern green wedge. However, there were wide differences in perceptions of the future of the green wedge, the nature of the transition to a desired future, and the planning tools that may be used to achieve this future.

The Panel reviewed submissions and evidence relating to the future of the south eastern green wedge, providing context for the consideration of the most appropriate zones.

(ii) Evidence and Submissions

In his expert evidence, Mr Milner accepted that the south eastern green wedge is different from other green wedges because of its history and trajectory. He described the area’s landscape as having been ‘brutally modified over many decades by extraction and landfill and for many generations it has been anything but scenic’. He concluded:

The current and future journey is therefore principally one of repair, enhancement and re‐creation as opposed to a primary driver of protection and conservation.

The economic values and key industries referred to in policy are planned and have been managed to give way to a restored and rehabilitated landscape in


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which open space, recreation and environmental values are seen as the primary outcomes.13

With regard to the balance between the future role of the green wedge and its current role in waste management, Mr Milner relied on the KGWP, which he concluded that ‘has generally identified the appropriate response between the conflicting and complementary expectations of emerging waste management and green wedge policy’.

Several of the submissions on the exhibited Amendment from local residents reflected this perspective. An example is that from Mr Matthew D Whyte, who submitted that:

Re‐zoning of this area is in line with the ‘Green Wedge Plan’ already adopted by the Kingston City Council which recommends the phasing out of waste industry activities and reflects the overwhelming community support that this area be used for public recreational use and a ‘Chain of Parks’.14

In his expert evidence relating to the Alex Fraser site, Mr Barlow addressed the history of green wedges in Melbourne, reaching similar conclusions to Mr Milner on the nature of the south eastern green wedge:

Since the initial designation of non urban lands, there has been clear differentiation in the focus for each of the green wedges

The South East Green Wedge was set aside principally for its important sand resource

It is apparent that after the natural resources have been extracted, the South East Green Wedge would be utilised for non urban purposes15.

He also analysed the history of the ‘Chain of Parks’ concept within the south eastern green wedge, raising a number of concerns that Mr Milner considered were not critical for the Amendment:

The public open space component has been significantly decreased, with the role of private land holdings to fulfil the vision increased.

The plans have advanced ideas for the private land to be developed for recreation and complementary uses but have not assessed the economic viability or practicality of those uses.

At the present time there does not appear to be a specific action plan for the acquisition and development of the public park components.16

(iii) Discussion

The Panel notes the strong support in State Policy under Clause 11.4‐7 of the Planning Scheme for the protection of the green wedges of Metropolitan Melbourne from inappropriate development, in particular the strategies ‘to ensure strategic planning and

13 Rob Milner, 10 Consulting Group Pty Ltd, Kingston Planning Scheme Amendment C143: Strategic Planning

Evidence, March 2015, p20. 14 Submission 31. 15 Michael Barlow, Urbis Pty Ltd, Expert Evidence: Amendment C143 to the Kingston Planning Scheme: 275‐

315 Kingston Road, Clarinda, 2015, p14. 16 Ibid, p23.


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land management of each green wedge area to promote and encourage its key features and related values’, and ‘support development in the green wedge that provides for environmental, economic and social benefits’. In the case of the south eastern green wedge within Kingston, this has been reinforced in several sections of Local Policy, notably:

Clause 21.02, Municipal Profile

Clause 21.03, Land use challenges for the new millennium

Clause 21.10, Non urban areas

Clause 21.11, Open space

Clause 22.03, Sandbelt Open Space Project Policy

Clause 22.04, South East Non Urban Area Policy

Clause 22.07, Enterprise Sites Policy

Clause 22.18, Materials recycling in the green wedge.

The vision for the relevant section of the south eastern green wedge is outlined in KGWP as follows:

The Kingston Green Wedge is to be an exemplar environmental and recreational resource for the local and regional community.

It will showcase the best in environmental management, former land fill reuse, sustainable energy generation, community interaction and focus, sustainable agriculture, open space linkages, local and regional recreation and community facilities.

It will:

have a semi‐rural feel and appearance;

protect and regenerate areas of environmental and ecological significance;

showcase the best environmental and ecological sustainability practices;

provide all types of recreational areas and facilities;

be easy to navigate and move around via all modes of transport;

provide some local employment opportunities;

provide local and regional services and facilities; and

contain activities that interface well with one another.17

The Panel accepts that this vision reflects community aspirations. However, the Panel considers that Amendment C143 assists in achieving the vision only in part. The Panel is concerned that the proposal to rezone all SUZ2 land to Green Wedge A Zone fails to differentiate areas that will form the future ‘Chain of Parks’ from those that are likely to remain in private ownership for the foreseeable future, and which will include a mix of land uses that are not supported by the Green Wedge A Zone. The proposed blanket rezoning will not help to encourage the long‐term transition from the current mix of land uses to those implied by the vision.

The Panel agrees that there is a clear intent in State and Local Policy for green wedges to be non‐urban areas. The reason that there is an Urban Growth Boundary is to differentiate

17 Planisphere, Kingston Green Wedge Plan, 2012, p9


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land uses within the boundary from those outside it. It is clear that areas in green wedges outside the Urban Growth Boundary discourage land uses such as those residential and commercial uses that are traditionally part of the urban fabric, while open space, conservation and rural land uses are encouraged. But the challenge for green wedges generally, and the south eastern green wedge in particular, is the consideration of ‘borderline’ non‐urban land uses.

There is not a single template for green wedges, and therefore each Green Wedge Management Plan will differ18. In the case of the KGWP, the Panel considers that it provides a relatively clear statement of long‐term community expectations regarding this section of the south eastern green wedge. However, as discussed in later sections of this report, we are not convinced that the complexity of the matters addressed in several key sections of the Plan have been translated into Amendment C143.

(iv) Conclusion

The Panel concludes that:

The long term vision for the Kingston green wedge is clearly stated in the KGWP and that the long term vision is consistent with State and local policy.

The implementation of planning controls to achieve the long term vision requires closer examination.

5.2.2 Community Expectations

(i) The Issues

Several submitters stressed the importance of the community expectation that the south eastern green wedge will continue to undergo a transition to an area of open space, conservation and compatible land uses. They argued that local communities have suffered the amenity impacts arising from the cycle of quarrying, landfill, resource recovery and rehabilitation, on the basis that the green wedge will be transformed into an attractive environment with a healthy level of biodiversity in the long term.

The Panel has reviewed the nature of these expectations, and their implications for Amendment C143.


Several strongly‐worded submissions to the exhibited Amendment were received from local residents, supporting the protection of the area from future waste management operations, and referring to the ‘overwhelming community support’ for the Kingston Green Wedge Plan and for Amendment C14319. The submission to the Panel from Mr Barry Ross from Defenders of the South Eastern Green Wedge provided a clear summary of the expectation that the area should be protected from continuation of land uses that impinge on local amenity:

18 Planning Practice Note 31, Preparing a Green Wedge Management Plan, 2014, p1. 19 Examples are Submissions 27, 28, 29, 30 and 31.


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... there has been a common theme for nearly 60 years that the land that is the subject of this hearing should be retained in the long term as a non urban area primarily as open space for recreation, parkland and to a lesser extent agriculture.

Nowhere in all this material is there any suggestion that the land should be set aside for waste transfer stations, concrete crushers and the like. The only exception being the 2008 Northern Non Urban Land Framework Plan with its vague recommendations, including the establishment of employment and enterprise zones. Fortunately, this plan was shelved by the Council and no action taken on its recommendations ...

To sum up, we consider that the Amendment should be adopted forthwith without change as it is a most important step in realising the long term plans to transform this wasteland into a valuable asset that can be used and enjoyed by the community.

If any minor changes to the zoning or overlays are subsequently found to be necessary, they can easily be attended to. But there is absolutely no justification to hold fire on the Amendment pending more investigations and report writing 20.

These long‐standing expectations were also noted by Mr Milner in his expert evidence. Mr Milner cited Local Policy in the Kingston Planning Scheme, and the Kingston Green Wedge Plan, both of which he considered to reflect the expectation of transformation of land use and associated amenity impacts into the future.

(iii) Discussion and Conclusion

The Panel accepts that the transition of the south eastern green wedge from its former mix of land uses to ones with significantly lower impact on residential amenity has enjoyed wide community support within and beyond Kingston City. Further, the Panel concludes that the Kingston Green Wedge Plan is a sound reflection of these community values.

5.2.3 State Waste Management Policies

(i) The Issues

Several submissions on the Amendment supported the continued operation of waste management and resource recovery activities on parts of the subject land, citing a range of State Government policies and plans to support their case. In particular, they noted that the Kingston/Clayton/Dingley precinct is specifically identified as being of State significance in the role it plays in waste management. These submissions contrasted with community‐based arguments that waste management and resource recovery have no place in a green wedge, and that there has long been an expectation that the south eastern green wedge will transition away from waste management and resource recovery after landfills have been filled and rehabilitated.

20 Barry Ross, Defenders of the South East Green Wedge, Submission to the Panel.


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The Panel has therefore considered the apparent conflict between State Policy aimed at protecting and enhancing the non‐urban characteristics of green wedges, and policies aimed at supporting waste management and resource recovery, assessing their relevance for Amendment C143.


In its submission to the Panel, the Metropolitan Waste and Resource Recovery Group (MWRRG) detailed the history, operation and strategic significance of waste and resource recovery facilities in what it described as the Clayton South Waste and Resource Recovery Precinct. It provided details of the current operations of key sites within the precinct, outlining key closing dates of landfills, and the period of rehabilitation required for each site. It supported the locational advantages of sites within the precinct, concluding that:

There is a need for the Clayton South Precinct to continue to play a role in the waste disposal and resource recovery network. Its role is changing from a focus on disposal to a focus on rehabilitation and resource recovery. Amendment C143 does not recognise or support this ongoing responsibility.21

MWRRG outlined the State waste and recovery legislative framework, in particular State Policy in the SPPF, concluding that these provided both general and specific policy support for the continued operation of the industry in the precinct. With regard to application of the GWAZ to the whole area of the Amendment, it acknowledged the open space and recreational aspirations of Council, and raised no objection to application of the GWAZ in the following areas:

Former waste and resource recovery facilities (WRRF) land that has been rehabilitated for public open space (e.g. Karkarook Park, Henry Street Trail and Henry Street playing fields); or

The waste and resource facility use of the land is transitioning to closure and agreements are in place between the Council, land owners and the relevant public authority for the use and development of land for open space; or

The land is not part of the WRRF precinct to the east of the Dingley bypass.22

MWRRG concluded that several aspects of Amendment C143 are premature, including the blanket rezoning to GWAZ. Its main concerns with application of GWAZ across the whole exhibited area include:

It permits a wide range of sensitive uses on sites that will adjoin operating and closing landfills. This could result in adverse amenity impacts and increase the risks of harm to the community from the operation of these facilities. It would not act to maximise the protection of the environment and public health.

21 MWRRG, Submission to the Panel, p4. 22 Ibid, p14.


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It does not identify and address how the buffer distances are to be managed given the wide range of uses the GWAZ could allow and the impacts of sensitive uses in adjoining residential and green wedge zones.

If the land is rezoned as proposed this would create a range of non‐conforming uses.23

The EPA’s submission supported the concerns raised by MWRRG:

There will be a significant lapse of time before landfills within the Amendment area will be able to transition to new uses due to rehabilitation and aftercare requirements.

EPA has concerns about the Amendment as exhibited and the lack of reference in the proposed provisions to the lengthy periods that may be required for the rehabilitation and aftercare of landfills. In some cases a significant period may be required before landfill sites and areas within the prescribed buffer distances for landfills may be able to be transitioned to new uses that are consistent with proposed Green Wedge A Zone.24

In his expert evidence relating to the Alex Fraser site, Mr Barlow concluded that the application of the GWAZ is inappropriate, and would lead to a constraining reliance on existing use rights:

If the Green Wedge Zone A was applied then the Alex Fraser operations (along with others) would become an ‘existing use’ – that is a use that is otherwise prohibited by the planning controls but is able to continue operations given it pre‐existed the introduction of the new controls.

Whilst the provisions of Clause 63 of the Kingston Planning Scheme offer this protection the fact an activity becomes an ‘existing use’ immediately places a series of constraints on that activity and its ability to respond to change – be market conditions or simply a desire to improve or alter current operations and development. 25

In his evidence, Mr Milner provided the alternative case that there is no place for the waste management industry to continue in the long‐term in the precinct:

There is a strategic and extremely rare opportunity to use the termination of landfill to facilitate transformation and change in the role and character of the area towards attractive open and recreation space.

There is no current policy expression for the Kingston Green Wedge that envisages the demise of landfill transforming into an alternative range of waste management land uses.

23 Ibid, p15. 24 EPA Submission to the Panel, p2. 25 Michael Barlow, Urbis Pty Ltd, Expert Evidence: Amendment C143 to the Kingston Planning Scheme:

275‐315 Kingston Road, Clarinda, 2015, p37.


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In the event that the recommendations of the SWRRIP to recognise the land north of Kingston and Heatherton Roads as a waste infrastructure hub of state importance were to be upheld, the consequences for the balance of recommendations of the Green Wedge Plan would have to comprehensively revisited and potentially recast.26

Mr Milner noted references to the precinct in State waste management policy, but did not consider that this justified ongoing involvement of the industry:

The commentary on waste policy has highlighted the need and priority to find long term waste management facilities for the south east metropolitan area arising from the demise of the Kingston / Clayton land fills. It has emphasised establishing a Statewide network of infrastructure.

Concerns that the loss of Kingston / Clayton as a hub of waste infrastructure will bring some uncertainty to the market are understandable in this locality of priority need but do not justify a short term, opportunistic, response in a location where the draft infrastructure strategy acknowledges that sensitive uses and proximate communities will resist the emergence of another extended period in waste management.

The appropriateness of this location for a growth sector in waste recovery is further challenged by the need to provide effective buffers in a location where residences are proximate.27

Mr Milner’s evidence was reinforced by Mr Barry Ross, in the submission of the Defenders of the South East Green Wedge to the Panel:

The [Metropolitan Waste & Resource Recovery] Group and other submitters are critical of the Kingston Green Wedge Plan because it does not contain a detailed analysis of the needs of the waste processing industry. We say this criticism is a bit rich when you look at the claim for a Waste Hub in the Kingston/Clayton/Dingley Precinct by the Group and Sustainability Vic who do not attempt to define exactly what a Waste Hub is, precisely where it should be located, how much land would be needed and what activities would be undertaken.

Also, they do not say why a Waste Hub should take precedence over the long held, well established plans for the retention, protection and rehabilitation of the Green Wedge land and the establishment of the ‘Chain of Parks’.28

Kingston City Council’s submission to the Panel argued that landfill has been an acceptable land use in former sand quarries, but that resource recovery is inappropriate:

The extraction of sand is an appropriate use of land within the green wedge. Similarly, the reclamation of that land through landfill serves appropriate

26 Rob Milner, 10 Consulting Group Pty Ltd, Kingston Planning Scheme Amendment C143: Strategic

Planning Evidence, March 2015, p38 27 Ibid, p39. 28 Barry Ross, Defenders of the South East Green Wedge, Submission to the Panel.


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purposes of both returning the land to a usable condition and dealing with the community need for waste disposal. These are matters that are reasonably within the expectation for green wedge land.

The benefit of co‐location of resource recovery with landfills is not doubted. The continued presence of resource recovery after completion of the landfill is, however, not an appropriate use of land within the non‐urban area. It is a stand alone industrial use. The long term land use planning for the green wedge does not provide for such use.29

In its response to submissions, Council addressed the status of recent State Government policy documents relating to waste management:

The Amendment has not ignored the draft policies supporting the establishment and consolidation of a resource recovery hub. These are, however, draft policies developed principally from the perspective of the resource recovery sector and do not sufficiently allow for the long term planning considerations relevant to the Subject Land.30

(iii) Discussion

The Panel’s assessment of the long‐term role of the waste management and resource recovery commences with consideration of the primary strategic planning document for the Amendment, the KGWP.

In describing ‘The Issues’ relating to land use, the KGWP includes sections on landfills (pp. 61‐62), and transfer stations and materials recycling (pp. 62‐63).

On landfills, it describes the number of landfills on former quarries that have reached or are reaching the end of their life, and the requirement for rehabilitation and aftercare for from 10 to 40 years, depending on the nature of the landfill and the potential risk from gas emissions. It notes that much of the land is privately owned, and that there is a limit to the amount of land that can be purchased by Council and government. Further, it notes that:

...there is also a limit to the amount of open space that is required and can be usefully and viably maintained. Alternative uses for the landfill sites need to be encouraged. As technology improves options for building on filled land may increase, and examples of cutting edge building techniques can be found overseas.31

With regard to transfer stations and materials recycling, the KGWP reviewed the operation of the Alex Fraser recycling plant, describing it as strategically located, and citing the EPA as considering that the operation demonstrates best practice for the industry. Nevertheless, it noted:

Current Green Wedge planning provisions encourage this form of activity for land that is not located in the Green Wedge Zone. However no other Green

29 Kingston City Council, Submission to the Panel, Part B, p1. 30 Ibid, p5. 31 Planisphere, Kingston Green Wedge Plan (2012), p62.


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Wedge is located as close to residential areas as Kingston and therefore off‐site impacts are of primary concern. As with landfills and mining activities, these uses are not considered to be a suitable long‐term use of the Kingston Green Wedge due to the high potential for conflict with residential, agricultural and recreational facilities.32

KGWP also referred the possibility of a longer‐term role for materials recycling:

Recycling industry is considered a ‘developing’ industry. As availability of non‐renewable resources declines, investment in recycling processes becomes more viable. It is possible that technological and operational improvements could increase to a point within the next 10 to 15 years that some form of recycling activities may be compatible with nearby residential / agricultural uses. Recycling of glass, computer, clothing or other household waste may become possible and even desirable in a location close to urban areas, without off‐site impacts.

If technology improves to this extent, there should be the opportunity within the Green Wedge Plan to revisit this issue, in limited locations and within strict parameters. For this reason, the Plan retains an ‘open mind’ about future possibilities in this field, while remaining firm that any such uses with off‐site impacts such as dust, noise, fumes or heavy transport through residential areas, is unacceptable. The areas designated ‘Transition Areas’ on the Land Use Map are the locations where this type of activity might be considered in the long term should all environmental concerns be satisfied.33

While accepting the community expectations for the south eastern green wedge, as largely reflected in KGWP, the Panel also reviewed the metropolitan and State policy support for waste management and resource recovery in the precinct.

Clause 19.03‐5 Waste and Resource Recovery in the SPPF provides the framework of State Policy, based on the Objective ‘To avoid, minimise and generate less waste to reduce damage to the environment caused by waste, pollution, land degradation and unsustainable waste practices’. The strategies to achieve the objective are:

Establish new sites and facilities to safely and sustainably manage all waste and maximise opportunities for resource recovery.

Encourage facilities for resource recovery to maximise the amount of resources recovered.

Provide sufficient waste management and resource recovery facilities to promote re‐use, recycling, reprocessing and resource recovery and enable technologies that increase recovery and treatment of resources to produce energy and marketable end products.

Encourage waste generators and resource generators and resource recovery businesses to locate in close proximity to enhance sustainability and economies of scale.

32 Ibid, p62. 33 Ibid, p63.


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Ensure buffers for waste and resource recovery facilities are defined, protected and maintained.

Site and manage waste disposal and resource recovery facilities in accordance with the Waste Management Policy (Siting, Design and Management of Landfills) (EPA, 2004).

In addition, the Clause refers to the requirement to consider Towards Zero Waste (2005) and the Metropolitan Waste and Resource Recovery Strategic Plan (2009), as well as a series of EPA and other documents on matters such as siting, buffers and litter.

The more recent Victorian Government policy documents including Getting Full Value (2013), the Draft Statewide Waste and Resource Recovery Infrastructure Plan (2013) and the Consultation Draft ‐ Metropolitan Waste and Resource Recovery Strategic Plan (2013) are not referred to in the Policy Guidelines and therefore do not have the same status. However, all reinforce the focus on waste minimisation and resource recovery.

(iv) Conclusion

The Panel concludes that there is clear metropolitan and State policy support for the waste management and resource recovery sector, with a strong focus on shifting from landfill to resource recovery. This also includes consideration of the need for a strategic plan for waste management for the south‐east of the metropolitan area, for which the subject land for Amendment C143 has played a central role.

This does not necessarily mean that land in this section of the south east green wedge will continue to play the same significant role in the future. There is consensus that the majority of landfills have either reached the end of their active life, or are approaching it.

Despite this, the Panel has concluded that there remains an important role for the waste management and resource recovery sector in the area in the short to medium term. We consider that the necessity for rehabilitation and aftercare, which continues for up to 30 years in some cases34, means that it is inevitable that operators of landfills will have land management responsibilities for a very long period.

The Panel has also concluded that the option to continue a role in resource recovery should be retained for the foreseeable future, assuming off‐site amenity impacts are managed effectively. In particular, the Panel considers that the Alex Fraser site at 275‐315 Kingston Road, Clarinda provides advantages in terms of its access and physical properties and, based on the evidence presented to the Panel, generates few amenity impacts on neighbouring properties. While the Panel notes that existing use rights are generally liberally interpreted, it considers that reliance on existing use rights may not provide adequate support for the existing operation, and may not provide for the range of alternatives that may be possible in the future.

In reaching this conclusion, we consider that the KGWP provides an important argument. We agree that it is appropriate to retain an ‘open mind’ about future possibilities in resource recovery, as long as off‐site impacts such as dust, noise, fumes or heavy transport are

34 See the list of planning permit expiry dates and aftercare dates in Section 2.2 of this report.


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managed. We do not consider that the blanket application of the GWAZ over the whole of the area covered by Amendment C143 achieves this ‘open mind’, because it seriously constrains the option of resource recovery.

5.2.4 The Kingston Green Wedge Plan

(i) The Issues

Amendment C143 is the culmination of a long process of planning for the south eastern green wedge, with the central document being the 2012 KGWP. Amendment C143 proposes to include KGWP as a reference document in the Kingston Planning Scheme.

The Panel therefore reviewed the background, methodology and findings of the KGWP and the way in which it is reflected in the Amendment.


While some of the evidence and submissions expressed concern about elements of the Amendment, and by implication the conclusions of KGWP, there was little debate over the approach adopted by Planisphere in developing the plan.

(iii) Discussion

The Panel reviewed the process of engagement in the development of the KGWP, from the initial research carried out in 2008 by SGS Economics and Planning, through to the appointment of Planisphere in 2010, preparation of background research, discussion papers and draft plans, culminating in the plan adopted by Kingston City Council in 2012. The Panel also noted the governance arrangements including a Steering Committee of Councillors and a Stakeholder Reference Group, and the range of consultation meetings and surveys. The Panel concluded that the processes of developing the report were generally sound.

KGWP refers to the high level of community support for the environmental and open space improvements, pedestrian and cycle linkages and agricultural or ‘green’ activities and for a reduction in the amenity impacts of industrial uses proposed in the plan. It also notes:

There was also, however, considerable concern and frustration expressed by land owners about the limitations of the Green Wedge zoning, previous inaction and uncertainty, and some support for changes that would allow limited development to allow other improvements to the Green Wedge. A number of submissions related to specific parcels of land and rezoning or development proposals.35

The Plan provides discussion of preferred zones and reference to specific development proposals, but is not clear about the engagement processes with landholders who expressed concern and frustration.

The Panel also notes the strong community support for the KGWP, and the lack of submissions challenging the engagement processes and rigour of the report.

35 Planisphere, Kingston Green Wedge Plan (2012), p18.


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The Panel believes that the KGWP broadly satisfies the requirements of Planning Practice Note 31 Preparing a Green Wedge Plan, although more could have been included on how the transition from existing uses to desired future uses is to be achieved. The Panel believes the Plan is deficient on this important point and leaves some doubts about how realistic the aspirations of the KGWP are, particularly with respect to the very large tracts of open space and parkland designated in the future land use plans. There is no obvious path for how this will be achieved.

The NNUAFP (adopted by Council in 2008) addressed this issue to some degree and introduced the concept of ‘catalyst projects’ to progress the transition of each precinct. The Panel sees merit in this approach and thinks that Council would do well to revisit some of the practical ideas presented in the NNUAFP.

The Panel also identified a number of areas within the KGWP where the content of the analysis is not congruent with the final conclusions. Examples are:

Reference to transfer stations and materials recycling in Chapter 4, including the possibility of technological and operational improvements in coming years, and the Plan retaining an ‘open mind’ about future possibilities. In Chapter 8, the preference for a blanket rezoning to GWAZ is supported, partly because it closes the option for new materials recycling processes.

Inclusion of a range of future land uses in Map 5 and in Section 4.4 Planning Scheme Changes, including a distinction between ‘Green wedge low intensity’, ‘Green wedge intensive’ and ‘Transition areas (until 2025)’, but silence on the option of considering different zones in Section 8.5: Planning Scheme Implementation Options.

Reference to the commercial uses along Clayton Road as providing local employment and not generating significant amenity impacts, but which would only be allowed to remain using existing use rights.

Recognition of a range of possible land uses throughout the report, yet Map 7 Chain of Parks shows almost the entire area as potential active or passive open space.

In addition to internal inconsistencies within the KGWP, the Panel was concerned that there were discrepancies in the translation of the strategic directions of the Plan into Amendment C143. Examples are:

With regard to minimum lot sizes, KGWP notes that a ‘8 ha minimum appears to be a reasonable standard to adopt should the land be rezoned from SUZ2 to another zone’ (p157). The exhibited Amendment included a minimum lot size of 40 ha, rather than the default 8 ha minimum in the Green Wedge A Zone.

Chapter 4 refers to ‘a small portion of land adjoining the Urban Growth Boundary along the north of Leslie Road could also be suitable for some form of residential development for a number of reasons’, but that ‘Therefore this Plan cannot recommend that the land be rezoned or excluded from the Green Wedge at this point in time’ (pp. 66‐67). The Amendment supports retention within the green wedge, but proposes rezoning from SUZ2 to GWAZ.

The Plan recommends Karkarook Park be zoned PPRZ. The Amendment proposes GWAZ.


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The Panel does not agree that all green wedge land should ultimately become open space and parkland. Nor does it agree with the contention made by Mr Chiappi in his closing remarks that ‘the Department requires the green wedge to be managed by a green wedge zone’. The Panel believes that the KGWP is deficient in not concluding that a range of non‐urban uses and zones may be appropriate to more effectively achieve the desired outcome.

The Panel nevertheless accepts that it is appropriate to include the KGWP as a Reference Document in the Planning Scheme. In making this statement, the Panel is mindful of the status of Reference Documents in the Planning Scheme as providing ‘background information to assist in understanding the context within which a particular policy or provision has been framed’36. As such, it forms background to interpreting policy, but it does not have the same status as State or local policy that is part of the Planning Scheme.

(iv) Conclusion

In summary, the Panel concludes that the engagement processes and rigour of the KGWP are sound, but the Panel has concerns about some inconsistencies in the Plan and in the translation of KGWP into Amendment C143.

5.3 Zone options

(i) The Issues

Amendment C143 proposes the rezoning of all the subject land from SUZ2 to GWAZ. The Panel reviewed a number of questions in the context of the strategic issues discussed in section 5.2:

Should the whole of the subject land be rezoned to a single zone, or is there is merit in considering different zones within the area?

Is the Green Wedge A Zone appropriate, or are other zones (such as the Green Wedge Zone) more appropriate for the subject land?

Is the Special Use Zone appropriate for part or all of the subject land? If so, is an update to SUZ2 required?


The evidence and submissions relating to zones were in three categories:

Those which strongly supported rezoning of the whole exhibited area to GWAZ, including the evidence of Mr Milner, the submissions to the Panel by Kingston City Council and the Defenders of the South East Green Wedge, and the submissions by several local residents to the exhibited Amendment. Kingston City Council’s preference for a Green Wedge A Zone covering all of the subject land was described in its submission to the Panel:

Council selected the GWAZ in preference to the Green Wedge Zone, as it provides a more restrictive land use control, prohibiting the further

36 Planning Practice Note 13 Incorporated and Reference Documents.


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proliferation of transfer stations and material recycling facilities in conjunction with transfer stations.

The purposes of the zone include ensuring use and development promotes sustainable land management practices and infrastructure provision. This provides assurance that the establishment of open space, recreational facilities and parkland will not be compromised by incompatible or conflicting land uses.

Uses that will become prohibited uses under the new zone will have the protection of clause 63 of the planning scheme.

Those which supported rezoning of part of the land to GWAZ, but opposed rezoning of the whole area, preferring to retain the SUZ for some sections. An example is the submissions to the Panel from the Metropolitan Waste Management Group.

Those which considered that GWAZ was inappropriate and premature and should not be considered. An example is Mr Barlow’s evidence on behalf of Alex Fraser:

It is my view that the application of the Green Wedge A Zone:

Does not recognise the attributes and characteristics of this non urban precinct.

Is a poor planning outcome as the purposes of the zone do not fit with the evolution of land use and development in this non urban precinct.

Will prohibit a range of land uses that are both non‐urban in focus and not prejudicial to the ‘Chain of Parks’ concept.

Will prohibit the establishment or expansion of resource recovery operations.

Will prohibit the establishment of many uses that would be appropriately located within this non urban area and would sterilise many properties that will continue to remain in private ownership.

Will not equitably facilitate the ongoing management of the landfills within the precinct.37

(iii) Discussion

A Single Zone, or Different Zones?

The KGWP noted the complex history of Kingston’s green wedge, and the inherent difficulty in establishing planning controls that would satisfy all parties. With regard to Zones, the Plan considered the merits of four options:

Retaining the existing zonings.

Rezoning all Special Use 2 land to Green Wedge zone, retaining the Green Wedge zone where it exists.

Rezoning the existing Special Use 2 zone and Green Wedge zone land to Green Wedge A zone.

37 Michael Barlow, Urbis Pty Ltd, Expert Evidence: Amendment C143 to the Kingston Planning Scheme: 275‐

315 Kingston Road, Clarinda, 2015, p37.


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Creation of a new Green Wedge or Special Use zone for the existing Special Use 2 and Green Wedge zoned land.38

Thus, the KGWP only addressed the range of possible zones to apply to the whole of the subject land, and this in turn was proposed in the exhibited Amendment C143.

The Panel considers that there is not a requirement, nor any inherent advantage, in applying either the Green Wedge Zone or Green Wedge A Zone, over the entire subject area. These zones are clearly options, particularly in the longer term, but may not necessarily be the best zones depending on the circumstances of the relevant section of green wedge. Examples of other zones which may be applied in the green wedge that are entirely consistent with the non‐urban vision of the green wedge are any of the rural suite of zones, Public Park and Recreation Zone, or a version of a Special Use Zone.

There is no debate about the fact that the subject land is undergoing significant transition, as sections of it progress through quarrying, landfill and rehabilitation to alternative uses. However, there are significant parts of the land that have a different history, such as the commercial operations along Clayton Road and land that has never been quarried or filled such as the Dennis land north of Leslie Road. Further, the Alex Fraser site has been determined as an appropriate location for its resource recycling operation at least until 2023, and the aftercare periods for several of the landfill sites will significantly limit future land use options for many years.

For these reasons, the Panel concludes that there is no compelling reason to apply a single zone to the entire subject area.

Merits of the Green Wedge A Zone

A central issue for the Panel is the appropriateness of the GWAZ for all or parts of the subject land, as exhibited. By comparison, the Green Wedge Zone is applied in a number of areas south of Kingston Road and Heatherton Road.

In particular, the Panel reviewed the Purposes of the zone which, as noted above in Section 4.2(i) of this report, focus on use of land for agriculture; protection of biodiversity, natural resources, scenic landscapes and heritage values; promotion of sustainable land management practices; protection of the cultural heritage significance and the character of rural and scenic non‐urban landscapes; and protection of the amenity of existing rural living areas. As noted above in Section 4.3 of this report, Planning Practice Note 62: Green Wedge Planning Provisions states that both the Green Wedge Zone and GWAZ are appropriate to recognise and protect non‐urban land outside the Urban Growth Boundary in the metropolitan area for agricultural, environmental, historic and landscape values. The Green Wedge Zone also refers specifically to protection of recreational, mineral and stone resources, while GWAZ protects infrastructure, natural resource and rural living attributes.

The Panel considers that the Purposes of the GWAZ make sense in the context of a green wedge with a strong agricultural, rural living and scenic component, but the advantages are less obvious in the case of the current transition of the south eastern green wedge.

38 Kingston Green Wedge Plan, 2012, p152.


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Nevertheless, despite reservations about the applicability of the GWAZ, the Panel concludes that it is reasonable to apply it in those sections of the subject land that reflect its purposes. These parts include:

Land that is clearly identified as part of the ‘Chain of Parks’, either through existing public ownership or with PAO2. In these cases the Panel believes a commitment has been demonstrated to bring this land into public ownership and convert the land to passive or active open space.

Those sections that have current and future land uses that are consistent with the purposes of the Green Wedge A Zone, such as horticulture and nurseries; and the future use is unambiguously expressed in policy.

The Special Use Zone

The implication of the Panel’s conclusion is that the balance of the land should not be rezoned, and should be retained in SUZ2, because rezoning to GWAZ is premature. Land in this category includes:

Those sections that have functions that are not compatible with the purposes of the GWAZ and the Kingston Green Wedge Plan provides strategic support for continuation of these uses. These include the commercial areas along the western side of Clayton Road.

Those sections that currently play a significant role in landfilling and/or waste recycling, and are likely to continue to have limited capacity to meet the purposes of the GWAZ for many years while operation and rehabilitation takes place. These include the Clayton Regional Landfill and Transpacific site north of Victory Road.

Other land identified as ‘transition sites’ in the KGWP, including the Alex Fraser site.

Those areas that provide a physical link or buffer between existing residential areas inside the Urban Growth Boundary and rehabilitated sites, including the Allied Sand and Dennis sites north of Leslie Road. The reconsideration of the roles of these areas, and the potential for a change in the Urban Growth Boundary to accommodate them, are foreshadowed in the Kingston Green Wedge Plan, and may be subject to review in the future. Continued inclusion in SUZ2 rather than rezoning to GWAZ would be more conducive to an objective review.

For these areas the Panel believes there is a strong case for Council to develop a new Special Use Zone Schedule purposely designed to better facilitate the desired outcomes of the KGWP. The current title of the Schedule to SUZ2 is ‘Earth and Energy Resources Industry’, does not reflect the current state of transition of the area. Further, the Purposes as listed in the Schedule include:

To recognise or provide for the use and development of land for earth and energy resources industry.

To encourage interim use of the land compatible with the use and development of nearby land.

To encourage land management practice and rehabilitation that minimises adverse impact on the use and development of nearby land.

A new SUZ Schedule should be developed to better recognise the need for rehabilitation and aftercare of former landfill sites; recognise the current and immediate future roles of landfill


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and resource recovery sites; and recognise the role of the commercial area along Clayton Road. The new schedule should reflect the role of this area in delivering State policy on waste and resource recovery once this is more clearly determined. The new schedule should reflect the long term objectives of the KGWP and recognise that time will be required to transition uses to the long term desired outcomes. The new schedule should also protect the area from new uses being introduced that are incompatible with the future vision.

It may be that it will become appropriate in the future to apply the GWAZ or other non‐urban zone on areas where it is not appropriate now. The Panel believes that there are a number of advantages in deferring the application of the GWAZ in some parts of the subject area:

It allows time for regional waste and resource recovery policies to be clarified in regard to the role of this area.

It allows finalisation of filling of sites still in operation, potentially more quickly if the GWAZ is not applied.

It allows time for landfill rehabilitation to progress in accordance with EPA guidelines.

It allows time for Council to develop a realistic and achievable plan for the transition of uses from existing to desired long term uses.

It allows land owners to use the land for a broader range of economically viable uses in the meantime.

The Panel has made comment on how this might apply to specific parcels of land in the subject area in Section 5.5 of this report.

(iv) Conclusions

With regard to the merit of applying the Green Wedge A Zone to the subject land, the Panel concludes:

A range of zones could and should have been applied in this part of the south eastern green wedge.

It is reasonable to apply the Green Wedge A Zone in parts of the subject land. These parts include: - Land that is clearly identified as part of the ‘Chain of Parks’, either through

existing public ownership or with PAO2. - Those sections that have current and future land uses that are consistent with

the purposes of the Green Wedge A Zone, such as horticulture and nurseries; and the future use is unambiguously expressed in policy.

In other parts of the subject land, a rezoning to Green Wedge A Zone is premature and inappropriate, and therefore should be retained in the SUZ2. These include: - The commercial areas along the western side of Clayton Road. - Those sections that currently play a significant role in landfilling and/or waste

recycling and those former landfill sites still under rehabilitation. - Those sections that have current land uses that may be consistent with the

purposes of the Green Wedge A Zone, but future use is unclear.


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- Areas that provide a physical link or buffer between existing residential areas inside the UGB and rehabilitated sites, including the Allied Sands and Dennis sites north of Leslie Road.

There is a strong case for Kingston City Council to develop a new version of the SUZ, for those areas that are not yet suitable to be rezoned to GWAZ.

5.4 Minimum subdivision size in the Schedule to the GWAZ

(i) The Issues

As exhibited, the Amendment proposes a 40ha minimum lot size in the GWAZ and proposes that this be specified in Schedule 1 to the Zone. The issue is whether this is appropriate.


The KGWP makes an assessment of the current lot sizes in the SUZ2 and draws the conclusion (at page 157) that ‘an 8ha minimum appears to be a reasonable standard to adopt should the land be rezoned from SUZ2 to another zone’. The Plan makes the observation that this would mean that only 7 lots over the SUZ2 land would be able to be subdivided. The Plan goes on to say that as this would allow greater subdivision potential than the current provisions, this would require ratification by Parliament.

In Council’s submission to the Panel it was confirmed that the Amendment had been prepared on the basis that parliamentary approval was required under Part 3AA of the Planning and Environment Act 1987 to reduce the minimum lot size below 40ha. Council noted Mr Milner’s evidence that 8ha is an appropriate minimum lot size. In closing submissions Council stated that:

Council accepts that the adoption of a lesser minimum than 40 ha for the GWAZ as proposed to apply to the Subject Land will not require ratification of Parliament under Division 3 of Part 3AA of the PE Act.

Council maintains, nonetheless, that a 40 ha minimum appropriately constrains the division of land into parcels that will reduce the ability to use that land for appropriate purposes under the GWAZ.

Mr Gerner, on behalf of Delta and Lantrak, submitted that minimum lot sizes of 40ha (coupled with the GWAZ) would unreasonably constrain viable uses for his client’s land.

The written submission on behalf of owner of 721‐731 Clayton Road and 461 Heatherton Road submitted that 40ha is considered excessive and ‘this inability to further subdivide the land may negatively impact on the social, financial and economic viability of the area’ and impact land value.

(iii) Discussion

The current Special Use Zone and the Schedule 2 do not apply any limit to minimum lot size. Clause 57 also does not apply any minimum lot size. The Panel is not clear why Council has


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assumed that a 40ha minimum applies currently. The Panel’s reading of the current controls is that no minimum lot size applies.

The ‘default’ minimum lot size in the GWAZ is 8ha39 unless an alternative lot size is specified in a schedule to the zone. Based on the evidence and submissions before the Panel, it is not clear whether the application of a smaller lot size triggers the need for parliamentary approval. Opinion was divided on this in discussion between the parties at the Hearing.

In any case, the Panel has not been presented with any submissions or evidence in support of Council’s conclusion that a 40ha minimum lot size is desirable to constrain subdivision. In fact the conclusions of the KGWP and Mr Milner’s expert evidence both support 8ha. The Panel concludes that the default minimum lot size of 8ha should apply to any land that is rezoned to GWAZ and the Schedule 1 is not required. Council may wish to seek further advice on whether Division 3 of Part 3AA of the Planning and Environment Act 1987 applies.

The Panel has not been provided with any evidence regarding applying minimum lot sizes to land where the GWAZ is not to be applied.

(iv) Conclusion

The Panel concludes that the default minimum lot size of 8ha should apply to any land that is rezoned to GWAZ and the Schedule 1 is therefore not required.

39 Clause 35.05‐3


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5.5 Site Specific Zone Issues In this section the Panel discusses how the zones apply to specific sites. For ease of description the Panel has broken the subject area into areas numbered A to M as shown in Figure 10. For each area the Panel has noted ownership, former and current use of the land and future use as proposed in the KGWP and the NNUAFP.

Figure 10 Map showing Areas referred to in this section

5.5.1 Area A (Karkarook Park)

(i) Description

Ownership: Public ‐ Parks Victoria.

Former use: retarding basin.

Current use: public park.

Future Use: public park.


The Most Appropriate Zone

DEPI submitted that Karkarook Park is managed under the provisions of the Crown Land (Reserves) Act 1978, and therefore should be re‐zoned as a Public Land Zone consistent with Planning Practice Note 2. DEPI submitted that:

In accordance with the reservation purpose, Karkarook Park should be re‐zoned as Public Park Recreation Zone and not re‐zoned as the Green Wedge Zone A as proposed.

L


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This action would also be consistent with the Municipal Strategic Statement ‐ Clause 21.10 which states that all existing parks within the Green Wedge land will be zoned as Public Park and Recreation Zone.

It should be noted that Karkarook Park is an existing park, that transitioned to public open space over 10 years ago and should not be included in the amendment purpose ''to transition landfills once rehabilitated to open space for recreational purposes”.

In response, Council submitted that:

The PPRZ allows the land to be used for a sensitive use without a permit where the use is conducted on behalf of the public land manager, in this instance Parks Victoria.

In comparison the GWAZ allows the land to be used for a sensitive use40 subject to the grant of a planning permit.

Rezoning Karkarook Park to GWAZ will allow the Council in its capacity as the responsible authority to consider any substantive effect the land may have on the proposed use or development in determining an application for planning permission for a use consistent with open space, excluding Informal Outdoor Recreation, which is a section 1 use. This opportunity does not arise if the PPRZ is applied.

Neither DELWP nor its predecessor (DEPI) has provided the Council with an assessment confirming Karkarook Park is suitable for open space.

The variations proposed to the Amendment by DELWP would allow the further development and use of Karkarook Park without any assessment of the suitability of the land for the proposed use or development.

The EAO and ESO

The applicability of the EAO and ESO to Karkarook Park is discussed in Chapter 6.

Public Acquisition Overlay

DEPI submitted that:

In responding to the City of Kingston, the Department has consulted with Parks Victoria (Karkarook Park's land manager) and recommends council give consideration to seeking an amendment to the Schedule to Clause 45.01 Public Acquisition Overlay (PAO) to amend the Acquiring Authority for PAO‐2 (Open Space land) from Parks Victoria to the Department of Environment and Primary Industries (Panel note – now Department of Environment, Land, Water and Planning).

Amendments to Parks Victoria land acquisition references regarding Public Acquisition Overlay land are also required to Clause 21.10, Clause 21.11 and

40 Dwelling, Primary School.


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Clause 22.03‐4. The Kingston Planning Scheme Map No 2 PAO shows a redundant PAO1 on land between Warrigal Road and Barkers Road that has been transferred to the Crown and is managed by Parks Victoria as open space in the north east corner Karkarook Park.

In response Council submitted that it accepted these as sensible changes and agreed to the amendment of the references as proposed.

(iii) Discussion

The Panel notes that:

The KGWP recommended that Karkarook Park should be zoned PPRZ.

Council submitted that Karkarook Park, Heatherton Park and ultimately other publicly owned former landfill sites that are converted to open space should be zoned PPRZ.

The Panel is of the view that all publicly owned parkland in the subject area that has been opened to the public for use as passive or active recreation should ultimately be zoned PPRZ. The Panel does not accept Council’s argument that the GWAZ will necessarily provide a higher level of control over potential sensitive uses. The Panel believes that the EAO and ESO4 provide sufficient permit triggers to mitigate the potential environmental impacts on sensitive uses.

The Panel agrees with DEPI that the PPRZ for Karkarook Park is appropriate given the guidelines in PPN2 Public Land Zones, which state:

It is intended that a public land zone be applied to public land where the surrounding zoning is inappropriate or where there is a special reason to identify separately the public land for planning purposes. This will commonly be where land management arrangements apply under legislation other than the Planning and Environment Act 1987.

A public land zone will normally be applied to public land owned or managed by a government department or public land manager, including national parks, state forests, coastal crown land and land reserved under the Crown Land (Reserves) Act 1978.

The Panel has considered whether applying the PPRZ to Karkarook Park as part of this Amendment would be a transformation and has concluded that it would not. Such a change would not impact adjoining uses and would cause no amenity impact.

The Panel sees little advantage in changing the zone to GWAZ in the interim, nevertheless accepts that the land use is also appropriate in the GWAZ and has no objection to GWAZ in the interim if this is Council’s preferred position.

The Panel concludes that Karkarook Park could be rezoned to GWAZ or PPRZ in the current Amendment.

The Panel believes that whilst Heatherton Park could also be rezoned to PPRZ it does not so clearly fit the description of land as suitable for a public land zone as Karkarook Park and if Council wishes to apply the GWAZ as an interim step it is of no great consequence.


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The Panel accepts the proposed changes to the PAO proposed by DEPI and supported by Council. The Panel believes that the proposed changes are administrative corrections and do not constitute a transformation of the Amendment.

(iv) Conclusion

The Panel draws the following conclusions:

Karkarook Park should be rezoned to GWAZ or PPRZ.

If Council elects to rezone Karkarook Park to GWAZ in the interim, it should seek to rezone Karkarook Park to PPRZ in a future Amendment.

Amend the Schedule to Clause 45.01 Public Acquisition Overlay (PAO) to amend the Acquiring Authority for PAO2 (Open Space land) from Parks Victoria to the Department of Environment, Land, Water and Planning.

Amend references to land acquisition by Parks Victoria to the Department of Environment, Land, Water and Planning as required in Clause 21.10, Clause 21.11 and Clause 22.03‐4.

Remove the redundant PAO1 on land between Warrigal Road and Barkers Road in the north east corner of Karkarook Park that has been transferred to the Crown and is managed by Parks Victoria as open space.

5.5.2 Area B (Area East of Old Dandenong Road with PAO2 applied)

(i) Description

Ownership: Private – Delta, Transpacific.

Former use: Sand extraction, solid inert landfill.

Current use: Solid inert landfill, various stages of rehabilitation.

Future Use: Parkland.

The area has the PAO2 applied.

(ii) Submissions

Mr Gerner on behalf of Delta submitted that, whilst the PAO2 applies to all land in this area, not all of the land owned by his client in Area B is required as ‘core parkland’. He submitted that any rezoning of the land should not be undertaken until the position of Parks Victoria is made clear in relation to which land it intends to acquire. He submitted that the GWAZ is not appropriate to apply to land that is not ultimately acquired for parkland.

Ms Thies, on behalf of Transpacific, submitted that the proposed changes (the amendment) are ‘unlikely to impede the proposed rehabilitation of the sites or impose additional permit triggers.’ Transpacific did not oppose the amendment.

Council submitted that the SUZ is no longer appropriate for the land and the land ought to be rezoned to the GWAZ, consistent with the long term intended use.

(iii) Discussion

The Panel is of the view that the PAO on the land is a strong indication of intent that the land will form part of the longer term parkland vision for the area. The Panel was not provided with any evidence that Parks Victoria intends to change the area to be acquired. The Panel


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does not agree that there is any distinction between ‘core parkland’ and parkland as it relates to flagging any intent to purchase the land.

The Panel concludes that the GWAZ is appropriate to apply to this land as the future land use seems clear. In the event that in the future Parks Victoria seeks to reduce the area to be purchased, the Panel agrees that the GWAZ may not necessarily be appropriate for the land that does not form part of the purchased parkland. A rezoning to a more appropriate zone could be pursued if this eventuality arises.

(iv) Conclusion

The Panel concludes that Area B should be in the GWAZ.

5.5.3 Area C (Area on NW corner of Old Dandenong Road and Kingston Road)

(i) Description

Ownership: Private.

Former use: Market gardens, nursery.

Current use: Market gardens, nursery.

Future Use: KGWP says green wedge intensive, NNUAFP says nurseries and supporting uses.

(ii) Submissions

No submissions were received in relation to this site.

(iii) Discussion

The Panel notes that the current and future proposed uses are consistent with the purpose and allowable uses in the GWAZ and therefore agrees that the GWAZ is appropriate for this area. The KGWP and the NNUAFP are consistent in defining the future use for this area.

(iv) Conclusion


Area C should be in the GWAZ.

5.5.4 Area D (Area between Old Dandenong Road and Dingley Bypass North of Elder Street)

(i) Description

Ownership: Private.

Former use: Market gardens, nursery.

Current use: Market gardens, nursery.

Future Use: KGWP says green wedge low intensity; NNUAFP says nurseries with supporting uses.


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(ii) Submissions

No submissions were received in relation to this area.

(iii) Discussion

The current and proposed future uses of this area are consistent with the GWAZ. The KGWP and NNUAFP are consistent in the future vision for the use this area as primarily nurseries.

(iv) Conclusion


Area D should be in the GWAZ.

5.5.5 Area E (Area between Old Dandenong Road and Dingley Bypass South of Elder Street)

(i) Description

Ownership: Private – Lantrak.

Former use: Sand extraction.

Current use: Clean fill landfill, rehabilitation.

Future Use: Unclear ‐ KGWP says green wedge low intensity; NNUAFP says enterprise sites.

(ii) Submissions

Mr Gerner, on behalf of Lantrak, submitted that his client’s intention is for the land to be developed for ‘employment generating commercial development’ consistent with the NNUAFP. He submitted that the GWAZ is too restrictive in prohibiting a range of what would be otherwise suitable economic uses for the land in the future. He further submitted that the GWAZ would restrict recycling and resource recovery on the site and thereby slow down the rate of filling and rehabilitation of the land.

(iii) Discussion

The Panel notes that the vast majority of rehabilitation activities would be able to continue under the GWAZ.

The Panel notes the inconsistency between the KGWP and the NNUAFP in relation to the future land use for this area, and notes that the land owner’s aspirations are different again. Whilst the Panel believes that the intended uses flagged by Lantrak may be a stretch in a non‐urban area, the KGWP does not provide clear guidance on what might be a reasonable future economic use for the site. The KGWP shows the site as ‘potential active or passive recreation’. It is not clear that there is any intention by Council or the State to acquire the land for parkland.

These uncertainties lead the Panel to conclude that the SUZ should be retained on the area at least until rehabilitation is complete and the future use of the land more fully debated in the light of clearer policy directions, both in relation to possible land uses in the green wedge and resource recovery. The Panel agrees, however, that the SUZ2 has outlived its


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usefulness in this area and the Panel recommends that this area be included in the area to be covered by a new purpose built SUZ.

(iv) Conclusion

The Panel concludes:

Retain Area E in the SUZ2 for the time being.

Include Area E in a new SUZ Schedule.

5.5.6 Area F (Land north of the Leslie Road)

(i) Description

Ownership: Private – Allied Sands, Dennis.

Former use: Allied Sands – sand extraction and solid inert landfill; Dennis land – market gardens.

Current use: Generally unused.

Future Use: NNUAFP recommends urban use and move UGB; KGWP recommends GWAZ.

(ii) The Issues

Several submissions were received in relation to land north of Leslie Road (north of the ‘Chain of Parks’ PAO). The land is just outside the UGB and is bordered to the north by residential zoned land as shown in Figure 11. Land owners submitted that the land is suitable for urban development and should not be included in the GWAZ. The issue for the Panel is what planning controls should apply to this land?

(iii) Evidence and Submissions

Mr Anderson, on behalf of Allied Sand, advised the Panel that his land had previously been a sand extraction and solid inert landfill site. Landfill ceased in 2000. He submitted that remediation of the site is complete and the land is ripe for residential development.

Mr Townsend, on behalf of Norm and Lyn Dennis, submitted that his clients’ land has never been used for sand extraction or landfill and is suitable for residential development. Mr Townsend submitted that his client opposed the application of the GWAZ to the land, but did not oppose the EAO or ESO.

Mr Townsend submitted that the Northern Non‐Urban Area Framework Plan 2008 noted that this land is suitable for urban development and considered there is no useful planning purpose in retaining the area outside the urban growth boundary. He further submitted that development of the land would improve access between existing residential areas and the future ‘Chain of Parks’. The land itself (north of Leslie Road) is not required for the ‘Chain of Parks’ and does not have any PAO applied.

Mr Townsend submitted that rezoning the land to GWAZ would create a false expectation that the land would be future parkland and create a social or political resistance to future rezoning to and urban use.


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Figure 11 The area north of Leslie Road

Mr Anderson noted that the Kingston Green Wedge Plan 2012 states, at page 66 ‘A small portion of land adjoin the Urban Growth Boundary along the north of Leslie Road could also be suitable for some form of residential development’. He noted that the Green Wedge Plan suggested further investigation would be required to determine if the land is suitable for urban use.

In relation to the Allied Sand land, Council submitted that:

The Council holds no information on which it can be satisfied that the Allied Sands Landfill is appropriate for rezoning to a residential land use, even in circumstances where the EAO is applied. The Council must have some understanding and certainty, particularly given the historical refuse disposal on the land which remains, and Council must have some expectation that the land can be utilised for a residential purpose.

Regardless of the waste buried on site, the potential risk of landfill gas migration from the adjoining Victory Road Landfill, which is not yet complete and is not finally capped, is a further substantive consideration that has not been assessed and there is no basis on which the Council could be satisfied that landfill gas is not migrating from the Victory Road Landfill onto the Allied Sands Landfill.

Regardless of these issues in relation to the suitability of the land on a human health and environmental basis, the site is outside the Urban Growth Boundary and urban development is not promoted in the green wedge.

PUZ land (not part of C143

Allied Sand

Dennis

UGB


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In relation to the Dennis land, Council submitted:

We refer to and repeat our response to Submission 3, noting that Submitter 36’s land has not previously been used for the purpose of waste disposal. The immediate proximity to the Victory Road Landfill and the Allied Sands Landfill, nevertheless presents a substantive risk to the future development of the site and any urban land use. The Council submits that the land is outside the Urban Growth Boundary and forms part of the green wedge and, accordingly, it is appropriate to rezone the site at this juncture to the GWAZ, rather than leave it as a continuing anomaly in the SUZ2.

(iv) Discussion

The Panel agrees with Council that the land north of Leslie Road is not able to be zoned for any urban purpose at this time by virtue of its location outside the UGB. The Panel also agrees that a substantial body of work would need to be done to assess the physical and strategic suitability of the land for some alternative future use.

The Panel agrees that the SUZ is an anomaly in this area, particularly considering that part of land has never been landfill. The Panel is, however, not convinced that there is any strategic support to apply the GWAZ to the area. Council seems to have taken the view that the SUZ is not appropriate, the area is in the green wedge, and therefore the GWAZ should be applied. The Panel does not believe this is sound planning, particularly given that this land is not earmarked for the future ‘Chain of Parks’ and has no PAO over the land. The GWAZ will not permit the residential or urban uses that have been flagged as possible in the Kingston Green Wedge Plan and the Northern Non‐Urban Area Framework Plan 2008. The Panel agrees with Mr Townsend that zoning the land GWAZ may prejudice an objective assessment of future uses.

If the land is to be rezoned prior to consideration of possible residential use, a modified SUZ may be appropriate that prohibits sand extraction and landfill but encourages a more positive transition towards longer term objectives.

The application of the EAO and ESO were not opposed and the Panel agrees that there is merit in applying both overlays to this land.

(v) Conclusion


The GWAZ should not be applied to the area north of Leslie Road.

In the short term, the SUZ2 should be retained until a modified SUZ schedule can be developed.

In the longer term, Council should investigate and resolve once and for all the future use of land north of Leslie Road, including investigating the merits of residential use and a change to the Urban Growth Boundary.

The EAO and ESO should be applied over this land.


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5.5.7 Area G (PAO2 and Council owned land)

(i) Description

Ownership: Council/Private with PAO.

Former use: Sand extraction, landfill.

Current use: Rehabilitation.

Future Use: Core parkland.

(ii) Submissions

Council submitted that the SUZ is no longer appropriate for the land and the land ought to be rezoned to the GWAZ, consistent with the long term intended use.

(iii) Discussion

Council owns part of the land in this area and advised the Panel that it intended to develop the area as parkland consistent with the ‘‘Chain of Parks’’ concept. The Panel is of the view that the PAO on the privately owned land in this area is a strong indication of intent that the land will also form part of the longer term parkland vision for the area.

The Panel concludes that the GWAZ is appropriate to apply to this land as the future land use seems clear.

(iv) Conclusion


Area G should be in the GWAZ.

5.5.8 Area H (Balance of land between Dingley Bypass and Clayton Road)

(i) Description

Ownership: Private.

Former use: Sand extraction, Market gardens, landfill.

Current use: Market gardens, rehabilitation.

Future Use: Unclear – KGWP says green wedge low intensity; NNUAFP says enterprise sites.

(ii) Submissions

Submissions were received in relation to landfill and former landfill sites in this area from Lantrak and Delta. As discussed in previous sections, they submitted that application of the GWAZ limits and slows rehabilitation activities and limits future economic uses for these sites.

(iii) Discussion

As discussed earlier in this report the Panel has concerns about the extent to which the GWAZ restricts rehabilitation, although the Panel notes that the vast majority of rehabilitation activities will be able to continue.


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The Panel notes the inconsistency between the KGWP and the NNUAFP in relation to the future land use for this area. The KGWP does not provide clear guidance on what might be a reasonable future economic use for the site. The KGWP shows the majority of this area as ‘green wedge low intensity’. It is not clear to the Panel what this means in terms of the range of land uses that may be possible on this land. Whilst some of the land is former sand extraction and landfill, some is not and has a history as market garden.

These uncertainties lead the Panel to conclude that the SUZ should be retained on the area at least until rehabilitation is complete and the future use of the land more fully debated in the light of clearer policy directions, both in relation to possible land uses in the green wedge and resource recovery. The Panel agrees, however, that the SUZ2 has outlived its usefulness in this area and the Panel recommends that this area be included in the area to be covered by a new purpose‐built SUZ.

(iv) Conclusion


Retain Area H in the SUZ2 for the time being.

Include Area H in a new SUZ Schedule.

5.5.9 Area I (Alex Fraser site)

(i) Description

Ownership: Private – Alex Fraser.


Current use: Recycling and resource recovery.

Future Use: Resource recovery until 2023; uncertain after that. KGWP says transition use and ‘keep an open mind’; NNUAFP says enterprise site.

(ii) Submissions

Submissions on behalf of Alex Fraser and Council’s response in relation to a number of issues have been discussed in sections 5.2 and 5.3.

Mr Morris, on behalf of Alex Fraser, submitted (in summary) that41:

The AFG’s site at Clarinda is a strategically important site, which significantly contributes to the achievement of waste reduction policy.

There is a policy imperative to preserve the Land and broader area as a state significant hub for waste reduction/recycling opportunities.

It is hard to imagine a land use which is more deserving of a supportive planning framework than the use conducted by the AFG on the Land. Not only does it play a significant role in the achievement of waste reduction, but it operates in an exemplary fashion. Rather than amendments to reduce the level of support that the use enjoys, the planning framework ought to be strengthened to support and encourage the use.

41 Alex Fraser submission to the Panel Hearing para 9.


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The retention of the SUZY for the subject Land and surrounding land will not prejudice the ‘‘Chain of Parks’’ concept which has been articulated through planning policy and by the imposition of a Public Acquisition Overlay (PAO) for many years.

The use of the Land, and surrounding land, for waste reduction/materials recycling constitutes an economic use of land. On the other hand, the Council’s vision for virtually the whole of the Amendment C143 land (and beyond) to be used for active and passive open space purposes is aspirational and unrealistic. The land which is nominated in the Kingston Green Wedge Plan for open space is far greater than the relatively small amount of land which is the subject of the PAO. It is quite clear that there are not the economic drivers for private investment to realise Council’s vision, and there is no commitment to publicly fund such a plan.

The evidence of Mr Ramsay (environmental consultant for Council) is that the use of the land within the Amendment C143 area for resource recovery / waste reduction uses is not incompatible with the past use of land for landfilling purposes.

Mr Ramsay’s evidence is also that there is no reason on the basis of applicable separation distances between resource recovery uses and sensitive uses that resource recovery uses could not establish within the Amendment C143 area subject to appropriate management and technologies.

If there really is a planning imperative to have large areas of this part of the South East Green Wedge developed for regional passive and active open space, one would expect a coordinated and thorough implementation strategy by the relevant councils, supported by the relevant State government agencies, including Parks Victoria, as well as a funding strategy. Those factors are absent.

Mr Morris called Mr Barlow. Mr Barlow’s evidence has already been cited in previous sections and is not repeated.

In Council’s submission to the Panel, Mr Chiappi submitted that transitional uses are proposed to transition out of the local area by 2025, but added that:

The KGWP acknowledges that if technology improves to an extent that reduced buffers and amenity impacts can be controlled and indeed eliminated from these land uses that opportunities may exist within the broader Kingston green wedge to reconsider these land uses.

(iii) Discussion

The KGWP identifies the Alex Fraser site as one of two Transition Areas, the other being the Regional Landfill site on Clayton Road. At page 75 of the KGWP it lists as an action:

Investigate the potential for state‐of‐the‐art household waste transfer recycling facilities with no of‐site impacts as a possible future use of Transition Areas identified on the Land Use Map.


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The Panel has not drawn any conclusions about whether recycling and resource recovery should continue on the Alex Fraser site after the expiry of the current permit. The Panel believes that there is considerable policy uncertainty about the future use of the site including:

Internal inconsistencies in the KGWP which on one hand says ‘keep an open mind’ on resource recovery and designates the land as a ‘transition area’ for further investigation; and on the other hand recommends the application of the GWAZ that prohibits resource recovery.

Inconsistency between the KGWP and the NNUAFP, which designates the area as an enterprise site.

Lack of clarity about the future local and regional impact of State recycling and resource recovery policy.

The Panel is of the view that introducing the GWAZ to this site is not consistent with keeping an open mind and a more neutral position should be adopted until the future operation of this site can be objectively reviewed. Any review should consider the role of this site (and the broader area) in State recycling and resource recovery policy.

In the meantime, the Panel believes the Alex Fraser site should remain in the SUZ2, but that Council should investigate a new SUZ Schedule to applied to this site (and a broader area as discussed in section 5.3) for at least as long as it takes to determine a suitable long term use for this site. The Panel was not presented with any evidence that the Alex Fraser operation has created any amenity impact on the surrounding area, and it may well be that further technology improvements may mean that continued resource recovery operations could meet the necessary standards to continue. This is a debate for a future panel or permit assessment, and in the meantime the Panel does not believe it is appropriate to pre‐empt that debate by making the existing use non‐conforming.

(iv) Conclusion


Retain Area I in the SUZ2 for the time being.

Include Area I in a new SUZ Schedule.

5.5.10 Area J (Clayton Road commercial and industrial uses

(i) Description

Ownership: Private.

Former use: Market gardens, various other uses.

Current use: Panel beater, reception centre, market garden, concrete batching plant, flower nursery and sales, and four dwellings.

Future Use: Unclear – KGWP says green wedge intensive; NNUAFP says employment precinct.


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(ii) Submissions

The Panel received submissions from property owners along the western side of Clayton Road, including: Mr Malotis (Submission 13), Mr Botti and others (Submission 18). It was submitted that existing use rights did not provide the certainty that was needed to allow the businesses in this area to expand and remain viable and for this reason the application of the GWAZ is unreasonable.

Mr Virguez, on behalf of Mr Malotis, submitted that his client’s land ought to be zoned Commercial or Industrial. Mr D’Amico, on behalf of Mr Botti and others, submitted that his clients’ land should remain in the SUZ, but the SUZ schedule should be reviewed to ‘reflect the changed nature of land use and to guide the future management of the precinct over the future decades’.

Council responded as follows:

The Submitter’s cluster of properties has the benefit of existing planning permission and will be allowed to continue regardless that they become prohibited land uses under the Amendment. The further expansion of the land uses is unlikely, considering the site configuration and layout. Any future urban land uses ought to be encouraged within the Urban Growth Boundary and not within the green wedge.

Council added the following comment in the further reply provided at the end of the Hearing:

The Clayton Road industrial uses are not appropriate for the non urban area – they have established by default rather than design. The KGWP acknowledges their ongoing presence but it is not appropriate to encourage their expansion or entrenchment.

(iii) Discussion

The Panel is not clear exactly what land uses are envisaged in the KGWP designation of ‘green wedge intensive’. On one hand the KGWP seems to imply a more intensive range of uses in this area and accept that existing industrial and other uses will continue with existing use rights; and on the other hand it recommends the GWAZ, which restricts and makes non‐conforming many of the current uses.

The NNUAFP identified the area as an employment precinct. The Plan recommended a modified SUZ schedule to facilitate the preferred end uses.

The Panel concludes that this is another area where the GWAZ has been proposed without proper consideration of the desired future use of the land. It seems to the Panel that the application of the GWAZ to this area may have the effect of stifling the viability of businesses and effectively sterilising the land. The Panel agrees with submitters that existing use rights are unlikely to provide the certainty that land and business owners need to invest in retaining viable businesses.


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The Panel therefore concludes that the approach proposed in the NNUAFP is more appropriate, i.e. apply a modified SUZ schedule tailored to more realistically allow for viable uses on the land whilst still reflecting the long term vision for the green wedge.

(iv) Conclusion


Retain Area I in the SUZ2 for the time being.

Include Area I in a new SUZ Schedule.

5.5.11 Area K (Regional landfill)

(i) Description

Ownership: Cities of Boroondara, Stonnington, Glen Eira and Whitehorse.


Current use: Putrescible landfill due to close by 2016.

Future Use: Rehabilitation for 30 years. KGWP says transition area; NNUAFP says resource recovery precinct.

The PAO2 applies to the northern end of the site which is in the area designated as the ‘‘Chain of Parks’’.

(ii) Submissions

Mr Pitt, on behalf of the Cities of Boroondara, Stonnington, Glen Eira and Whitehorse, submitted (in summary) that:

The purpose of the Amendment, being effectively for the whole of the Amendment area to be used for open space purposes, cannot be achieved for a period of 30 years or more due to the requirement for a rehabilitation and ‘aftercare’ period for landfill sites.

The Amendment area exhibits none of the characteristics sought by the Purposes of the GWAZ.

Land not within the ‘‘Chain of Parks’’ area is entitled to a viable range of uses.

The Amendment does not address policies for waste disposal and recycling.

The Amendment is contrary to the fair, orderly, economic and sustainable use and development of land.

He submitted that the utopian aspirations of Council and Mr Milner are not realistic and that application of GWAZ would severely limit the economic uses that would be otherwise possible on land geographically well connected to a large portion of the urban area of Melbourne.

Mr Pitt relied on the expert evidence of Mr Barlow who drew the following conclusions42:

As a result of the significant sand mining and land fill activities the precinct cannot be described as having a rural character or role. This is especially the

42 Extract of Mr Barlow’s evidence for Boroondara City Council and others p5‐6.


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case for the landfill sites that will require many years of further remediation management before the sites are able to be used for other purposes.

The opportunity to utilise the non urban precinct north of Kingston/Heatherton Roads for public open space has been under active consideration for the past 30 years with the development of the ‘Chain of Parks’ concept. Over that time the scale of the park concept has diminished with a significantly smaller amount of land now proposed to be included in public ownership. Most of the land within the precinct will remain in private ownership.

The suite of planning controls proposed to be introduced over the precinct do not recognise the circumstances described above and are not appropriate as the land use provisions are too restrictive as to allow the continued beneficial use of land within the precinct.

Following the closure of the Clayton Regional Landfill it will need to be managed for a period of approximately 30 years during which time the contents of the landfill decompose and continue to generate methane gas and leachate. During this time it would be appropriate to enable that part of the site that is unaffected by the landfill activities to be used.

I consider that the proposed suite of planning controls for the precinct are fundamentally inappropriate for the following reasons:

The controls do not recognise the attributes and characteristics of this non urban precinct.

The imposition of a Green Wedge A zone will prohibit the establishment of many uses that would be appropriately located within this non urban area and would sterilise many properties that will continue to remain in private ownership.

The controls will not equitably facilitate the ongoing management of the landfills within the precinct.

The net effect of the proposed zone, the overlays and the amended policy settings would prevent the beneficial use of large parts of the precinct over future years and in effect sterilise the land. This is not consistent with the objectives for planning as set out in the Planning and Environment Act.

In summary the proposed amendment is fundamentally flawed and has the real prospect of creating long‐term planning blight for those parts of the precinct that will remain in private ownership. Given this the amendment should not proceed.

Mr Barlow gave evidence that whilst the majority of the site is landfill, an area of approximately 1.6ha along the Clayton Road frontage that has been used as the access road and transfer station is not filled land. He gave evidence that this portion of the land could have a number of reasonable economic uses including: Industrial (including transfer station); Institutional uses; Function Centre; Horticulture; and Landscaping gardening supplies. A number of these uses would be allowable under the current zoning but not under the GWAZ.


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(iii) Discussion

The Panel notes the aspirations of the current owners of this site to realise an economic return from the site once landfill has ceased in order to offset the rehabilitation costs. The Panel understands that the Councils concerned would prefer to keep open the option of retaining a transfer station on this site due to its relatively convenient location to their respective cities.

The Panel accepts the evidence of Mr Barlow that some potential land uses may be curtailed if the GWAZ is introduced.

The Panel notes that the KGWP designates this site (along with the Alex Fraser site) as a Transition Area ‘for investigation potential for state‐of‐the‐art household waste transfer recycling facilities with no of‐site impacts’.

The Panel believes that, whilst the GWAZ or PPRZ may be the appropriate zone for this site in the long term, there are no advantages in terms of achieving the long term objectives of the KGWP by rezoning the land to GWAZ now. At least 30 years will pass before the former putrescible waste site will be suitable to be used for public open space and the Panel believes it is reasonable for the owners to seek to achieve an economic use from the site in the meantime. This, in the opinion of the Panel, could include the option of a transfer station provided that this location is consistent with State recycling and resource recovery policy and any adverse amenity impacts can be managed. The Panel was not presented with any evidence supporting why such a use should be prohibited. The KGWP in fact suggests that waste transfer recycling facilities should be investigated for this site and the NNUAFP designates the site for resource recovery. Applying the GWAZ, which would prohibit recycling and resource recovery, is not consistent with these Plans.

The Panel believes the SUZ2 should be retained in the short term until a new SUZ schedule can be developed for the area.

(iv) Conclusion


Retain Area J in the SUZ2 for the time being.

Include Area J in a new SUZ Schedule.

5.5.12 Area L (Balance or area east of Clayton Road)

(i) Description

Ownership: Private.

Former use: Sand extraction, market garden.

Current use: Landfill, market garden.

Future Use: Unclear – KGWP says part green wedge intensive, part active recreation, parkland; NNUAFP says enterprise site and resource recovery precinct.


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(ii) Submissions

A submission on behalf of the owners of 721‐731 Clayton Road and 461 Heatherton Road (Baguley market garden) submitted that the GWAZ would severely limit uses that would otherwise be appropriate. They submitted that, given the proximity of the Dingley Bypass, the land is suitable for a more intensive zoning such as Industrial or Special Use.

(iii) Discussion

As discussed earlier in this report the Panel notes that the vast majority of landfill rehabilitation activities will be able to continue.

The Panel notes the inconsistency between the KGWP and the NNUAFP in relation to the future land use for this area. The KGWP does not provide clear guidance on what might be a reasonable future economic use for the site or what is meant by ‘green wedge intensive’.

These uncertainties lead the Panel to conclude that the SUZ should be retained in the short term, and that this area be included in the area to be covered by a new purpose‐built SUZ.

The Panel considered whether it was appropriate to include the part of this area that is market garden and has never been filled in the GWAZ. The difference, in the Panel’s mind, between this land and that in Areas C and D is that the future use of this area in Area L is not clear. Therefore, on balance, the Panel believes it is better to apply the new SUZ over the entire area.

(iv) Conclusion


Retain Area L in the SUZ2 for the time being.

Include Area L in a new SUZ Schedule.

5.5.13 Area M (Heatherton Park)

(i) Description

Ownership: Council.

Former use: Sand extraction and landfill.

Current use: Public park.

Future Use: Public park, KGWP says GWAZ; NNUAFP says PPRZ.

(ii) Submissions

No submissions were received in relation this site. Council noted that in future Council would seek to rezone to PPRZ, but that GWAZ is the appropriate zone in the short term.

(iii) Discussion

It is not clear to the Panel why Heatherton Park would not be suitable for rezoning to PPRZ immediately but sees no disadvantage in zoning the land GWAZ in the interim.


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(iv) Conclusion


Rezone Area M (Heatherton Park) to the GWAZ.

Rezone Area M (Heatherton Park) to the PPRZ in a future amendment.

5.6 Recommendations Amendment C143 Recommendations

The Panel makes the following recommendations in relation to Amendment C143:

1. Delete the proposed Schedule 1 to the Green Wedge A Zone.

2. Amend the Schedule to Clause 45.01 Public Acquisition Overlay to amend the Acquiring Authority for Public Acquisition Overlay 2 (Open Space land) from Parks Victoria to the Department of Environment, Land, Water and Planning.

3. Amend references to land acquisition by Parks Victoria to the Department of Environment, Land, Water and Planning as required in Clause 21.10, Clause 21.11 and Clause 22.03‐4.

4. Remove the redundant Public Acquisition Overlay 1 on land between Warrigal Road and Barkers Road in the north east corner Karkarook Park that has been transferred to the Crown and is managed by Parks Victoria as open space.

5. Remove Areas E, F, H, I, J, K and L (as designated in Figure 10 of this report) from the area to be zoned Green Wedge A Zone and retain in the Special Use Zone Schedule 2 as shown on Figure 12 of this report.

Figure 12 Panel recommended zones

GWAZ or PPRZ


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Further Recommendations

The Panel makes the following recommendations for further action on zoning of land in the Kingston northern green wedge:

A. A new Schedule to the Special Use Zone should be developed to better reflect the purposes of land in the Kingston northern green wedge that is not yet suitable for zoning to a green wedge zone, including to:

Reflect the long term objectives of the Kingston Green Wedge Plan.

Recognise the need for rehabilitation and aftercare of former landfill sites.

Recognise the current and immediate future roles of landfill and resource recovery sites.

Recognise the role that the commercial area along Clayton Road plays.

Reflect the role of this area in delivering State policy on waste and resource recovery once this is more clearly determined.

Recognise that time will be required to transition uses to long‐term desired outcomes.

B. The new Schedule to the Special Use Zone should be applied to all existing Special Use Zone 2 land not rezoned to Green Wedge A Zone.

C. Consider the option of applying the Public Park and Recreation Zone to Karkarook Park as part Amendment C143.

D. If Council elects to rezone Karkarook Park to the Green Wedge A Zone in the interim, it should seek to rezone Karkarook Park to Public Park and Recreation Zone in a future Amendment.

E. In the longer term, Council should investigate and resolve once and for all the future use of land north of Leslie Road, including investigating the merits of residential use and a change to the Urban Growth Boundary.


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6 The Proposed Environmental Audit Overlay and Environmental Significance Overlay

6.1 The EAO

(i) The Issue

The issue is whether it is appropriate to apply an Environmental Audit Overlay (EAO) over the entire subject area.


Council submitted that the use of the EAO complies with Ministerial Direction No 1 on Potentially Contaminated Land. The Ministerial Direction has the following purpose:

The purpose of this Direction is to ensure that potentially contaminated land is suitable for a use which is proposed to be allowed under an amendment to a planning scheme and which could be significantly adversely affected by any contamination.

Council submitted that the EAO was justified for the following reasons:

Most of the Subject Land has been used for extractive industry purposes and subsequently for waste disposal or filling with acid sulphate soils and clean soil. The remaining portions of the Subject Land are largely market gardens and industrial/ commercial uses on Clayton Road, including a concrete batching plant and warehouses. With the exception of the warehouses, the balance of land uses, including market gardens, are recognised as land uses that may cause the contamination of land. The regional assessment of groundwater completed by Golder Associates, identified a plume of leachate contaminated groundwater extending beneath a large part of the Subject Land, including the industrial/commercial uses on Clayton Road.

In these circumstances, where there known contamination and extensive land use with the potential for contamination, it is appropriate to apply the EAO over the entire Subject Land.

The EAO is triggered where a sensitive use is proposed for the site ‐ a residential land use, a childcare centre, or a primary school. There will be a transition of land uses over the coming years, with the rehabilitation of the landfills and other uses being realised, including open space and recreational purposes. It is appropriate that the former use and potential contamination of the land is recorded to ensure statutory planning decisions do not expose the community to unacceptable risk from potentially contaminated land.

The EPA supported the application of the EAO as an appropriate control.

The evidence of Mr Milner, Mr Barlow and Mr Ramsey supported the application of the EAO.


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Ms Lee, on behalf of MWRRG, raised concerns that the EAO did not cover the entire separation distances required under the BPEM. She submitted that this ‘may result in some sites that might reasonably be considered at risk of potential contamination not being effectively protected by the proposed planning scheme provisions.’

In response to this, Mr Chiappi submitted that it is beyond the scope of this Amendment to incorporate an overlay for those areas and would require further careful assessment.

The Department of Environment and Primary Industries (DEPI) submitted that the application of the EAO to Karkarook Park is not appropriate:

The application of the Environmental Audit Overlay to Karkarook Park is not supported and is inconsistent with Clause 21.10 as this overlay is to apply to all extractive industry, land‐fill and agricultural land. While a significant portion of Karkarook Park was zoned for extractive industry and sand was extracted specifically to develop the lake and wetlands, it is now a well‐established and popular Public Park which, consistent with its reservation and recommended zoning, will not be developed for any sensitive use such as residential use, child care centre, pre‐school centre or primary school.

Council provided the following response to the issues raised by DEPI:

Minister’s Direction No 1 requires the Council, as the planning authority in respect of an Amendment which rezones potentially contaminated land, to be satisfied that the environmental condition of the land is suitable for that purpose.

Council does not hold information concerning the condition of the soil or groundwater environments of Karkarook Park on which it could be satisfied the site is suitable for a sensitive use or open space.

The PPRZ allows the land to be used for a sensitive use without a permit where the use is conducted on behalf of the public land manager, in this instance Parks Victoria.

In comparison the GWAZ allows the land to be used for a sensitive use43 subject to the grant of a planning permit.

In the absence of an environmental audit (section 53X of the Environment Protection Act 1970), Minister’s Direction No 1 requires an EAO to be applied on the rezoning of the land to either PPRZ or GWAZ. This will ensure that an environmental audit is completed confirming the land is suitable for the proposed sensitive use prior to its commencement.

43 Dwelling, Primary School.


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(iii) Discussion

There is general agreement that, given the current and former uses of the land in the subject area, an EAO is an appropriate control over the land. Whilst there may be some overlap with existing EPA licence requirements, it was agreed that the EAO was not unreasonable.

In relation to the issue raised by Ms Lee, the Panel agrees that it would be better if the EAO was mapped in more detail to ensure that all land potentially affected is protected. The Panel, however, accepts Council’s position that to do so would require significant additional work (including assessment of the cost impositions of any audit requirement) and is outside the scope of this Amendment.

The Panel agrees with Council’s reasons for seeking to apply the EAO to existing park land including Karkarook Park. Whilst there may never be any sensitive uses introduced, the PPRZ does technically allow, subject to permit, a range of sensitive uses and the Panel agrees that any such proposals, no matter how unlikely, should require the appropriate environmental risk assessment.

The Panel believes that it may have been better to apply the EAO to all land outside the UGB north of Heatherton Road and Kingston Road, including land in the PPRZ, PUZ and SUZ1. The same issues apply to these sites in regard to the need to assess potential environmental risks. It is not clear to the Panel why they were excluded, and the Panel believes a future amendment should correct this anomaly and apply the EAO over the entire area.

(iv) Conclusions


The EAO should be applied to the entire subject area.

A future amendment should apply the EAO over all land outside the UGB north of Heatherton Road and Kingston Road.

6.2 The ESO

(i) The Issue

The issue is should the Environmental Significance Overlay Schedule 4 (ESO4) be applied over the whole subject area?


Council submitted that a purpose of the ESO is to identify areas where the development of land may be affected by environmental constraints. ‘That is appropriate to the Subject Land where large parts of the area are affected or may be affected by landfill gas, leachate or settlement from landfill. The condition of the landfill itself – the cap, gas monitoring systems and so on, constitute an environmental constraint on the development of the land.’ Mr Chiappi submitted that one of the main benefits of applying the ESO will be to trigger a permit requirements for all buildings and works proposed so that Council can assess any requirements to consider, for example, landfill gas migration in the design of the buildings.


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Council submitted that:

The application of the ESO is consistent with ‘Using Victoria’s Planning Scheme’, which provides that the overlay is intended to be interpreted widely and may include issues such as effects from noise or industrial buffer areas, as well as issues related to the natural environment.

The Draft MWRRSP identifies and recommends the application of the ESO for this purpose in relation to waste management infrastructure.

Mr Milner, in his evidence, supported the application of the ESO over the entire subject site on the basis that it is an appropriate tool to manage off site impacts of former landfills and the area effectively represents a series of overlapping sources of dust, odour and gas that warrant the broad application of the ESO. In has cross examination of Mr Milner, Mr Pitt asked whether the ESO was necessary given the other EPA controls that exist on areas within buffer distances of former landfills. In response, Mr Milner gave evidence that the ESO is a more clearly understood approach. In response to questions from the Panel, Mr Milner acknowledged that the broad application of the ESO is a cautious approach.

In his evidence, Mr Barlow gave the opinion that ‘the ESO is replicating matters already dealt with more appropriately by EPA with respect to licencing and management of landfill and waste recovery operations together with the detailed controls of both the BPEM and the Waste Management Policy.’ Mr Barlow also noted that whilst the Kingston Green Wedge Plan considered the application of both a Design and Development Overlay and a Significant Landscape Overlay but did not consider the EAO, and only considered the ESO in a different context. He argued that this approach is flawed and brings into question the purpose of the proposed controls.

Mr Pitt submitted that that each of the objectives in the proposed ESO4 is addressed in the BPEM and the ESO4 therefore ‘simply has no work to do’.

Mr Gerner, on behalf of Delta and Lantrak, submitted that the proposed ESO is a misuse of the overlay. He submitted that an ESO is typically used to protect areas of environmental value and not for the purpose of introducing development controls associated with potential impacts from adjacent landfills. He submitted that a DPO or DDO may be more appropriate to allow development controls on future development.

In response to this, Mr Milner gave evidence that:

The government publication Using Victoria’s Planning System (2007) notes at page 15 that the Environment Significance Overlay is intended to be interpreted widely and may include issues such as effects from noise or industrial buffers, as well as issues related to the natural environment.

The specific purposes of the ESO are: • To identify areas where the development of land might be affected by

environmental constraints. • To ensure development is compatible with environmental values.

The concept of the scope and what constitutes environmental constraints is assisted by the State Planning Policy Framework at Clauses 12 and 13. While


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environmental values such as biodiversity, flora, fauna, floodplains and water are encompassed within that policy so are a series of Environmental Risks including soil degradation, noise and air quality.

It follows that the ESO has a role in both conservation and protection as well as cautioning and controlling development where risk is posed to property, health, amenity and safety.

A simple example with a similar intent, in proximity to the locality, is the application of the ESO to the environs and buffer areas of the south east purification plant. In a recent abattoir matter in Mildura the ESO had been applied to clearly express, through the planning scheme, areas affected by the buffer associated with odour.

Ms Mathias, on behalf of the EPA, submitted that the EPA publication Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills, October 2014 (BPEM) applies to landfills during their ‘aftercare’ period, typically 30 years for a putrescible site. The BPEM sets out buffer distances from solid inert and putrescible landfills of 200m and 500m respectively for the distance between former or current sites and offsite buildings and structures. The purpose of these buffers is to manage odour and landfill gas impacts. The EPA’s view is that buildings should not be allowed within these buffers or should at least have a risk assessment carried out through and environmental audit or by an environmental auditor under Section 53V of the Environment Protection Act 1970. Ms Mathias noted that the proposed ESO does not refer to the BPEM and proposed that it should be referred to in the decision guidelines of Schedule 4 to the ESO.

In summary, Ms Mathias submitted that the EPA supported the application of the ESO4 but requested the following changes:

Include the following within the Environmental Objectives to be achieved:

a. To ensure that any development in the overlay area does not prejudice the development of and ongoing operation of premises in the neighbouring Industrial 1 Zone (IN1Z).

b. To minimise the potential for future sensitive uses to be affected by off‐site amenity impacts and reduce land use conflict.

With reference to the Decision Guidelines include the following:

a. Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788.2, October 2014)

b. Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013).

With reference to the Decision Guidelines update the relevant standards to include:

BS 8485:2007 – Code of practice for the characterization and remediation from ground gas in affected developments

CIRIA C665 (2007) – Assessing risks posed by hazardous ground gases to buildings


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National house building council (NHBC) Report edition 4, March 2007 – Guidance on evaluation of development proposals on sites where methane and carbon dioxide are present.

In support of this, Ms Mathias noted that whilst landfill sites were still under licence, the EPA has a mechanism to apply the appropriate standards, but after closure an alternative mechanism is required.

Ms Forsyth asked whether it may be more appropriate for the EPA to be a referral authority rather than to list all the appropriate standards. In response (by letter following the hearing) the EPA prefers not to be a referral authority and that the BPEM and Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013) are listed in the ESO4 decision guidelines.

Ms Lee submitted that:

Amendment C143 proposes applying an Environmental Significance Overlay (ESO4) to all sites in the precinct. The ESO is generally an acceptable tool to address some separation (buffer) distance matters for WRRF in the absence of a more specific planning tool, and has been identified as an appropriate approach for other sites (such as Gippsland Planning Scheme Amendment C99). However the ESO as proposed addresses only one aspect of the tools needed to define buffers and protect public health and amenity.

While the proposed ESO4 is intended to address the issues of landfill gas and leachate or groundwater contamination, this overlay is limited in its scope to these specific environmental issues and will only apply to applications for buildings and works. The change of use of land will not be subject to the provisions of the ESO, and as such this overlay does not address the significant challenge of managing the potentially diverse and sensitive range of land uses and sites to which it is intended to be applied.

The ESO does not address the significant challenge of managing such a large WRRF precinct made up of dozens of WRRF sites that are undergoing significant changes, including landfill closures and rehabilitation as well as investment in waste and resource recovery infrastructure for ongoing operations.

The current limited scope of the ESO4 limits its usefulness for addressing the full range of issues associated with WRRF separation (buffer) distances.

Ms Lee concluded that the Panel should consider ‘limiting the applicability of the ESO and EAO so as not to duplicate regulatory controls already in place for existing and closed landfills to ensure there are options for the type and level of risk assessment needed for sites.’

Mr Ramsay, in response to a question from the Panel, agreed that ideally the boundaries of an ESO should extend to the limits of the hazard being mitigated against. This should include, he agreed, extension beyond the boundaries of the SUZ land, but only if the appropriate detailed work had been done to accurately plot the extent of the hazard. He


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submitted that this detailed work has not been done and the application of the ESO as proposed is a reasonable alternative.

In response to some of the issues raised Council submitted that:

If the Panel thought it appropriate that there be specific warning in the planning scheme of the prospect of a separation distance being relevant to a buildings or works application, the ESO could be amended as follows:

Clause 2.0 can be amended by the addition of a new bullet point ‘minimise the potential for development for sensitive uses to be affected by existing or completed landfill operations’; and

The decision guidelines can require an application to be assessed, where appropriate, against the Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013) and the Landfill BPEM;

The EPA says that the ESO should refer to standards that expressly address ventilation in buildings to deal with hazardous ground gases. Council submits that the current wording is sufficient as it allows Council to apply whatever standards are appropriate.

The MWRRG criticises the ESO and EAO on the ground that the overlays apply to the waste sites, not the buffers for the sites. This is not quite correct as the overlays are to apply to all land within the GWAZ, whether landfill or not. In relation to buffers falling outside the GWAZ, Council submits it is beyond the scope of this Amendment to incorporate an overlay for those areas. That requires a careful assessment of what is to be achieved and the appropriate means of addressing it.

Whilst DEPI opposed the application of the GWAZ to Karkarook Park it submitted that the application of the Environmental Significance Overlay (ESO4) to Karkarook Park may be applicable due to its close proximity to an adjacent landfill. DEPI further submitted:

ESO4 will require a permit for potential future of buildings and works on previously disturbed land and a permit for development of outbuildings with floor areas less than 50 square metres which are not adequately ventilated or protected by a gas barrier from adjacent landfills. The application of this overlay will ensure that any future development of buildings addresses risks associated with the adjacent landfill site. The requirement for permits are likely to minimal in that the any further development of the park will most likely occur on previously undisturbed land and permits are not required for vegetation management, construction of bicycle pathways and trails and fencing.

(iii) Discussion

The Panel agrees with Council and Mr Milner that the ESO is an appropriate planning tool to manage the potential environmental risks as proposed. The Panel does not agree with the position put by Mr Gerner that such application of the ESO is a misuse and agrees with Mr Milner that there are many examples where the ESO has been used in this way.


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The Panel agrees with the position put by some submitters and experts that the ESO duplicates many of the controls and management mechanisms applied by the EPA licences on existing and former landfills. The Panel notes, however, that not all of the subject area is within the buffers required under the EPA controls (BPEM), therefore leaving some areas potentially affected by noise, landfill gas or odour unprotected. The Panel accepts the expert evidence of Mr Milner that the overlapping nature of the sources of hazard means that a broader application of the ESO is warranted.

Ideally the Panel would have preferred to see each of the hazard sources mapped so that the full extent of protection from potential risk could be applied. This may have resulted in the ESO being extended to some surrounding land outside the subject area. The Panel accepts that Council has not yet done this level of detailed work, and in any case such a change would be outside the scope of this Amendment.

On balance the Panel accepts that the ESO is appropriate to apply over the entire subject area as proposed, subject to clarifying the relationship with EPA controls.

The Panel agrees with the EPA that it would be helpful to list the Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013) and the Landfill BPEM in the decision guidelines in ESO4. The Panel believes that it is not necessary to add to the objectives in Clause 2.0 of the ESO4 as suggested by Council. The Panel believes that the objectives are clear as they are.

The Panel also agrees with Council that it is not necessary to list the standards that may apply. Assessment against standards is required to be to the satisfaction of the responsible authority meaning that Council can have regard to the standards appropriate at the time of assessment.

The Panel does not agree with the position put by Ms Lee that ‘the current limited scope of the ESO4 limits its usefulness for addressing the full range of issues associated with WRRF separation (buffer) distances’. In the Panel’s view the ESO does not need to address the full range of issues as the BPEM and Recommended Separation Distances continue to apply during the rehabilitation (aftercare) period. The ESO will work to complement the ESO, albeit with some duplication on sites also covered by the BPEM. The Panel sees no problem with this.

The Panel supports the application of the ESO to publicly owned parkland at Karkarook Park and Heatherton Park for the reasons put by Council and supported by DEPI. The Panel believes that it may have been better to apply the ESO to all land outside the UGB north of Heatherton Road and Kingston Road, including land in the PPRZ, PUZ and SUZ1. The same issues apply to these sites in regard to protecting buildings and works from the impact of nearby current or former landfills. It is not clear to the Panel why they were excluded, and the Panel believes a future amendment should correct this anomaly and apply the ESO4 over the entire area.


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(iv) Conclusions


The ESO4 should be applied to the entire subject area as exhibited, subject to the addition of the following under Clause 4.0 Decision Guidelines in ESO4: - where appropriate, the Recommended Separation Distances for Industrial

Residual Air Emissions (EPA publication 1518, March 2013) and the Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788.2, October 2014)

A future amendment should apply the ESO4 over all land outside the UGB north of Heatherton Road and Kingston Road.

6.3 Recommendation The Panel recommends:

6. Apply the Environmental Audit Overlay and the Environmental Significance Overlay Schedule 4 to the entire subject area as exhibited subject to the addition of the following under Clause 4.0 Decision Guidelines in Environmental Significance Overlay Schedule 4:

where appropriate, the Recommended Separation Distances for Industrial Residual Air Emissions (EPA publication 1518, March 2013) and the Best Practice Environmental Management: Siting, Design, Operation and Rehabilitation of Landfills (EPA publication 788.2, October 2014).


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7 Proposed Changes to the LPPF

7.1 The Proposed Changes The Amendment proposed to introduce a number of changes to the MSS and Local Policy, including:

Clause 21.03 (Land Use Challenges for the New Millennium)

Clause 21.10 (Non Urban Areas)

Clause 22.04 (South East Non Urban Area Policy)

Clause 22.07 (Enterprise Sites Policy)

Clause 22.18 (Materials Recycling in the Green Wedge).

The Explanatory Report for the Amendment notes that the proposed changes provide the strategic basis for the proposed rezoning to Green Wedge A Zone. In addition, it states that ‘the removal of an area north of Heatherton and Kingston Roads from the Enterprise Sites Policy reflects the intention for this area to be managed through the requirements of the Green Wedge A Zone’.

The proposed modifications fit a number of categories:

Changes in reference from ‘non‐urban’ areas to ‘green wedge’ (Clause 21.03, Clause 21.10).

Reference to extractive industries in the past rather than present tense (Clause 21.03, Clause 21.10).

Reference to current operation of landfill activities, their phasing out and after use of the sites (Clause 21.03).

Reference to consideration of sites outside Kingston green wedge for hubs identified for materials recycling (Clause 22.18).

Reference to active and passive recreation facilities currently within the green wedge (Clause 21.10, Clause 22.18).

Removal of references to protecting the economic and operational viability of extractive industries and land filling (Clause 21.10, Clause 22.04).

Reference to the need for buffers around materials recycling facilities and transfer stations, and discouragement of new materials recycling facilities, transfer stations and landfills (Clause 21.10, Clause 22.18).

Reference to removal of SUZ2, application of the rural suite of zones, and application of the EAO and ESO).

Inclusion of a number of reference documents, notably the Kingston Green Wedge Plan (2012) and the EPA Recommended Separation Distances for Industrial Residual Air Emissions (2013) (Clause 21.10, Clause 22.18).

Removal of reference to the applicability of Clause 22.07 Enterprise Sites Policy to areas north of Kingston Road and Heatherton Road (Clause 22.07).


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7.2 Evidence and Submissions Mr Milner provided a brief assessment of the proposed changes to the LPPF:

The proposed changes to local policy articulate the scope and direction of the issues considered in this evidence, recognising the approaching end to extractive uses and discouraging the establishment of a new phase of waste management in the area. I find the change in language from non‐urban areas to green wedges assists the consistent interpretation of the planning scheme.44

In his expert witness statement relating to the Clayton Regional Landfill, Mr Barlow addressed the exhibited changes to the LPPF in detail. He argued that:

Reference to extractive industries land filling should be retained where the landfill sites will continue to have the liability burden of remediation for over 30 years.

There is a need to identify land uses that may have policy support, apart from open space or recreation.

There is no benefit in including a number of EPA publications as reference documents.

There should be a regional approach to waste management, in the absence of a clear answer to where the waste hubs will be located:

It is my view that land within the precinct remains the appropriate site for waste recovery/materials recycling and transfer station uses. The desire for Kingston to shift these uses to urban areas fails to recognise the nature of these uses and the role of green wedge land in providing for the range of services to support the urban area.45

Mr Barlow referred to Clause 22.01‐2 of the Greater Dandenong Scheme, which he considered provided ‘a far more welcoming of a range of possible land uses when compared to the draft Kingston policy’.

In the submission to the Panel on behalf of the Metropolitan Waste and Resource Recovery Group, Ms Lee expressed concern about the lack of alignment between the proposed policy changes and the wider metropolitan waste management strategy and best practice. In particular:

...these restrictive policy elements are inconsistent with the waste hierarchy and existing state waste and resource recovery policy to encourage materials recycling at transfer stations and ensure materials are not sent to landfill that can be recovered for reuse or recycling.46

On behalf of the EPA, Ms Mathias sought the addition of the following to the fourth Key Issue in Clause 21.10 Green Wedge:

44 Rob Milner, 10 Consulting Group Pty Ltd, Kingston Planning Scheme Amendment C143: Strategic Planning

Evidence, March 2015, p68. 45 Michael Barlow, Urbis Pty Ltd, Expert Evidence: Amendment C143 to the Kingston Planning Scheme:

Clayton Regional Landfill, 2015, p22. 46 Michelle Lee, submission on behalf of the Metropolitan Waste and Resource Recovery Group, p14.


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…., recognising that the rehabilitation of such sites can be complex and lengthy.

Council did not oppose the change proposed by the EPA.

In reference to the proposal to remove the applicability of Clause 22.07 Enterprise Sites to the subject site, Council submitted:

Clause 22.07 applies to the enterprise sites on Clayton Road/Heatherton Road. (The southern boundary on map 1 differs from figure 9 – it appears to now follow the shape of the bypass acquisition.) The objectives at clause 22.07‐2 promote development compatible with the project and the surrounding non urban location; as well as ensuring development makes a positive contribution to the achievement of the linked network of public open space. To that end, the policy at clause 22.07‐3 calls for new development to make a financial contribution to the provision and development of public open space.

Council advises that the financial contribution aspect of the policy has not been applied. In Council’s view, this element of the policy serves no valid function. The appearance and built form elements of the policy are satisfactorily addressed elsewhere in the planning scheme. Council intends addressing the balance of the policy area, on the south side of Heatherton Road, when reviewing the southern part of the green wedge.

7.3 Discussion The Panel’s position on the proposed changes to the LPPF reflects the conclusions relating to the other elements of the Amendment.

The Panel has not prepared rewritten versions of the exhibited clauses, but proposes that Council review the exhibited changes in light of the other Panel conclusions and recommendations relating to zones and overlays. The Panel supports references to the ‘green wedge’ rather than ‘non‐urban areas’. However, the long‐term nature of rehabilitation and aftercare of landfills, the existence of a current resource recycling industry and the ongoing operation of commercial areas in Clayton Road should be addressed explicitly.

The Panel notes Council’s reasoning for removing the area north of Kingston Road from the area of applicability for Clause 22.07. The Panel notes, however, that Clause 22.07 does not just provide for a financial contribution from development but also provides built form objectives and policy. In the Panel’s view, these should be preserved as long as the SUZ2 is to be retained. A future zone schedule or other controls may warrant Clause 22.07 irrelevant to the subject area, but the Panel was not convinced that the lack of need for financial contributions was adequate reason to remove it now.

The Panel supports the addition to Clause 21.10 proposed by the EPA.


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7.4 Conclusions The Panel concludes that the exhibited changes to the LPPF should be reviewed as follows:

Proposed Changes to LPPF Panel Conclusion

Changes in reference to ‘non‐urban’ areas to ‘green wedge’ (Clause 21.03, Clause 21.10)

Supported – the green wedge is a central feature of State and Local Policy

Reference to extractive industries in the past rather than present tense (Clause 21.03, Clause 21.10)

Supported – this reflects the reality of the current extractive industry

Reference to current operation of landfill activities, their phasing out and after use of the sites (Clause 21.03)

Supported – the references to completion of landfilling activities and the need for long periods of aftercare are appropriate

Reference to consideration of sites outside Kingston green wedge for hubs identified for materials recycling (Clause 22.18)

Not supported – the location of metropolitan hubs is not yet confirmed, and Kingston may play a role

Reference to active and passive recreation facilities currently within the green wedge (Clause 21.10, Clause 22.18)

Supported

Removal of references to protecting the economic and operational viability of extractive industries and landfilling (Clause 21.10, Clause 22.04)

Removal of references to extractive industries supported, but removal of references to existing landfill not supported – landfill is not yet completed

Reference to the need for buffers around materials recycling facilities and transfer stations, and discouragement of new materials recycling facilities, transfer stations and landfills (Clause 21.10, Clause 22.18)

Reference to the need for buffers supported, but discouragement of materials recycling not supported because the location of metropolitan hubs is not yet confirmed

Reference to removal of SUZ2, application of the rural suite of zones, and application of the EAO and ESO (Clause 21.10)

Reference to removal of SUZ2 should be modified to include reference to a new version of SUZ; application of the EAO and ESO supported

Inclusion of a number of reference documents, notably the Kingston Green Wedge Plan (2012) and the EPA Recommended Separation Distances for Industrial Residual Air Emissions (2013) (Clause 21.10, Clause 22.18)

Supported – the Kingston Green Wedge Plan provides a history of the process culminating in Amendment C143; EPA documents may duplicate other parts of the regulatory framework, but provide explicit reference in the Planning Scheme

Removal of reference to the applicability of Clause 22.07 Enterprise Sites Policy to areas north of Kingston Road and Heatherton Road

Not supported – the Policy provides guidance for any development in the existing commercial area along Clayton Road

Table 2 Panel Conclusions on Exhibited Changes to LPPF


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7.5 Recommendations The Panel makes the following recommendation:

7. Modify proposed Clauses 21.10, 21.18, 22.04 and 22.07 in accordance with the Panel’s conclusions in Table 2 of this report.

8. Add the following words to the end of the fourth dot point under Clause 21.10‐2 Key Issues:

… recognising that the rehabilitation of such sites can be complex and lengthy.


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Appendix A List of Submitters

No Name Organisation

1 Mary Rimington Mordialloc Beaumaris Conservation League

2 David Bell Oakleigh Go Kart Racing Club

3 Gary Dickinson Allied Sands, Leslie Road Clarinda

4 Robert Lean Frankston City Council

5 Rachel Lunn Greater Dandenong

6 Terry Dalgleish South East Water

7 Barry Ross Defenders of the South East Green Wedge Inc

8 Diana Donohue

9 Shiranthi Widan Boroondara City Council WITHDRAWN

9 Zoran Jovanovski Boroondara City Council (submission withdrawal request)

9 John Duppino Boroondara City Council

10 Leigh Bryant EPA Victoria

11 Peter Murphy Alex Fraser Group

12 Shantini Gill Golder Associates Pty Ltd / Delta Group

13 Michael Meyer Taylors

14 Max Wright

15 Wendy Thies The Planning Group Australia

16 Rob Millard Metropolitan Waste and Resource Recovery Group

17 Stan Krpan Sustainability Victoria

18 Sam D'Amico Ratio Consultants Pty Ltd

19 Gregg Chapple Kingston Heath Golf Club

20 Michelle Bateman Reeds Consulting

21 Andrew & Carol Dawson Heatherton R.A.I.D. Inc

22 Max Ginn Department of Human Services

23 David Erczmann

24 Louis, Melinda, Jacques & Zane

Carstens

25 Kerrie & Chris Ryan

26 Shantini Gill Golder Associates Pty Ltd / Lantrak

27 Bianca & Gus Vatnsdal


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No Name Organisation

28 Nola, David & Brendan

Baker

29 Peter Sowerbutts

30 Roger Edgecombe

31 Matthew Whyte

32 Sarah Hill Department of State Development Business & Innovation

33 Silvana Anthony & family

34 Emile Kyriacou Department of Environment and Primary Industries

35 Shirlene Marquis

36 Norm and Lyn Dennis


Page 88 of 93

Appendix B Document Lists 1. Documents Provided by Kingston City Council

Document Number

Date Description Presented by

K1 16/3/15 Amendment C143 – Exhibited Documents, October 2014

Mr P Chiappi

K2 16/3/15 Maps and Plans, 15 March 2015 Mr P Chiappi

K3 16/3/15 Report – Melbourne Metropolitan Planning Scheme 1954 (Melbourne and Metropolitan Board of Works), July 1953

Mr P Chiappi

K4 16/3/15 The Future Growth of Melbourne (Melbourne and Metropolitan Board of Works), June 1967

Mr P Chiappi

K5 16/3/15 Planning Policies for the Melbourne Metropolitan Region (Melbourne and Metropolitan Board of Works), November 1971

Mr P Chiappi

K6 16/3/15 Sandbelt Open Space Project – Development Plan (Melbourne Parks & Waterways), May 1994

Mr P Chiappi

K7 16/3/15 Melbourne 2030 – Planning for Sustainable Growth (Department of Sustainability and Environment) , December 2003

Mr P Chiappi

K8 16/3/15 Northern Non Urban Area Framework Plan (Kingston City Council), August 2008

Mr P Chiappi

K9 16/3/15 Kingston Green Wedge Plan – Final Plan (Planisphere), October 2012

Mr P Chiappi

K10 16/3/15 Council Plan 2013‐2017 & Living Kingston 2035 – One Vision (Kingston City Council), 2013

Mr P Chiappi

K11 16/3/15 Plan Melbourne – Metropolitan Planning Strategy (Victorian Government), May 2014

Mr P Chiappi

K12 16/3/15 South East Regional Refuse Disposal Group – Plan of landfills, 1991

Mr P Chiappi

K13 16/3/15 Waste Management Plan (South Eastern Regional Waste Management Group) – Extracts of 1999 and 2001 Plans

Mr P Chiappi

K14 16/3/15 Metropolitan Waste and Resource Recovery Strategic Plan (Victorian Government), March 2009

Mr P Chiappi

K15 16/3/15 Getting Full Value – The Victorian Waste and Resource Recovery Policy (State Government), April 2013

Mr P Chiappi


Page 89 of 93

Document Number


K16 16/3/15 Draft Statewide Waste and Resource Recovery Infrastructure Plan 2013‐2043 (State Government), September 2013

Mr P Chiappi

K17 16/3/15 ‘2013 Consultation Draft – Metropolitan Waste & Resource Recovery Strategic Plan’ (Metropolitan Waste Management Group), October 2013

Mr P Chiappi

K18 16/3/15 Minister’s Direction No 1 – Potentially Contaminated Land, September 2001

Mr P Chiappi

K19 16/3/15 Best Practice Environmental Management – Siting, Design, Operation and Rehabilitation of Landfills (EPA Publication 778.2), October 2014

Mr P Chiappi

K20 16/3/15 Closed Landfills (EPA Publication 1490), December 2012

Mr P Chiappi

K21 16/3/15 Recommended Separation Distances for Industrial Residual Air Emissions (EPA Publication 1518), March 2013

Mr P Chiappi

K22 16/3/15 Managing Landfills (Victorian Auditor General’s Office), September 2014

Mr P Chiappi

K23 16/3/15 Stage 3 Environmental Audit Report – Regional Groundwater in the Clayton South Area (Golder Associates Pty Ltd) – Excluding appendices, 22 March 2012

Mr P Chiappi

K24 16/3/15 Advisory Committee Report – Permit Application KP881/07 Materials Recycling & Refuse Transfer Station 293‐315 Kingston Road, Clarinda, August 2008

Mr P Chiappi

K25 16/3/15 Kingston Planning Scheme (Extract), 15 March 2015 Mr P Chiappi

K26 16/3/15 Submission on behalf of Kingston City Council Mr P Chiappi

K27 25/3/15 Reply submissions on behalf of Kingston City Council Mr P Chiappi

K28 25/3/15 ERM Landscape Plan for TPI Victory Road landfill site Mr P Chiappi

K29 26/3/15 Tracked changes version of proposed Clause 21.10 with modifications identified in Kingston City Council’s reply submissions

Mr S Fiedler

K30 26/3/15 Tracked changes version of proposed Clause 22.18 with modifications identified in Kingston City Council’s reply submissions

Mr S Fiedler


Page 90 of 93

2. Documents Provided by Alex Fraser Group

Document Number


A1 16/3/15 Alex Fraser Group – A History of Innovation Mr S Morris

A2 16/3/15 Planning permit KP881/07 Mr S Morris

A3 16/3/15 Kingston Rd Clarinda Transfer Station (ACI) [2008] PPV 85 (11 August 2008)

Mr S Morris

A4 16/3/15 Photographs of the site Mr S Morris

A5 16/3/15 Optimal, Kingston Road Dust Monitoring Report (February 2015)

Mr S Morris

A6 16/3/15 Aerial photograph of the Land Mr S Morris

A7 16/3/15 Landscape plan endorsed under Permit KP881/07 Mr S Morris

A8 16/3/15 Cross section plan Mr S Morris

A9 16/3/15 Site Management and Environmental Improvement Plan

Mr S Morris

A10 16/3/15 Map of AFG sites Mr S Morris

A11 16/3/15 Schedule ‐ quantities of material received and produced on the Land.

Mr S Morris

A12 16/3/15 AFG PowerPoint presentation Mr S Morris

A13 16/3/15 Site context plan (2007) and Map (and accompanying table) showing the uses of surrounding land and noting whether they are regulated by permit

Mr S Morris

A14 16/3/15 Waste Transfer & Recycling Facilities Review Final Report (AC) [2009] PPV 95 (25 September 2009)

Mr S Morris

A15 16/3/15 Cartage rates and price list Mr S Morris

A16 16/3/15 Mr Milner’s evidence to the 2008 Advisory Committee

Mr S Morris

A17 16/3/15 Towards Zero Waste Mr S Morris

A18 16/3/15 Getting Full Value: the Victorian Waste and Resource Recovery Policy (approved April 2013) (Getting Full Value report)

Mr S Morris

A19 16/3/15 Plan Melbourne (May 2014) Mr S Morris

A20 16/3/15 Draft State‐wide Waste and Resource Recovery Infrastructure Plan (September 2013)

Mr S Morris

A21 16/3/15 Consultation Draft Metropolitan Waste and Resource Recovery Strategic Plan (October 2013)

Mr S Morris


Page 91 of 93

Document Number


A22 16/3/15 A summary of relevant parts of the Getting Full Value report, SWRRIP and MWRRSP

Mr S Morris

A23 16/3/15 DTPLI publication, Creating Liveable Open Space Case Studies July 2013

Mr S Morris

A24 16/3/15 Victorian/Tasmanian Division of Parks and Leisure Australia (PLA) Open Space Planning and Design Guide (June 2013)

Mr S Morris

A25 16/3/15 Greater Dandenong New Format Planning Scheme, Report of the Panel and Advisory Committee (1998)

Mr S Morris

A26 16/3/15 Kingston New Format Planning Scheme, Report of the Panel and Advisory Committee (1998)

Mr S Morris

A27 16/3/15 DSE Referral Letter dated 11 December 2007 Mr S Morris

A28 16/3/15 The Sandbelt Open Space Project Development Plan, May 1994

Mr S Morris

A29 16/3/15 VEAC Metropolitan Melbourne Investigation (2011) Mr S Morris

A30 16/3/15 Practice Note 62: Green Wedge Planning Provisions (November 2013)

Mr S Morris

A31 16/3/15 PPN03 Applying the Special Use Zone (February 1999)

Mr S Morris

A32 16/3/15 Implementation Strategy for the ‘Chain of Parks’, Deloitte Ross Tohmatsu, 1992

Mr S Morris

A33 18/3/15 Selected hard copy versions of Documents AF1 to AF32

Mr S Morris

A34 18/3/15 Submissions of behalf of AFG: Re 275‐315 Kingston Road, Clarinda

Mr S Morris

A35 19/3/15 Selection from City of Kingston Ordinary Council Meeting Minutes, 25 August 2008

Mr S Morris

A36 19/3/15 Selection from Transport Integration Act 2010 Mr S Morris

A37 19/3/15 The Evolution of the Kinston Green Wedge – hard copies of images in PowerPoint presented by Mr Barlow

Mr S Morris


Page 92 of 93

3. All Other Documents Received by Panel

Document Number


O1 16/3/15 Delta Group Submission 91‐185 Kingston Road, Heatherton, submission to Amendment C143 Panel

Mr M Gerner

O2 16/3/15 Map 7 of Kingston Green Wedge Plan (p94 of report) Mr M Gerner

O3 16/3/15 Lantrak Submission 150‐170 Old Dandenong Road, Heatherton, submission to Amendment C143 Panel

Mr M Gerner

O4 16/3/15 Lantrak Capability Statement 2014 Mr M Gerner

O5 20/3/15 Submission to the Planning Panel on behalf of the Environment protection Authority

Ms M Mathias

O6 20/3/15 Submission to the Planning Panel on behalf of the Metropolitan Waste Management Group

Ms M Lee

O7 20/3/15 Allied Sand Pty Ltd: Submission to Planning Panels Victoria

Mr Tony Anderson and Ms Jackie McKay

O8 20/3/15 Amendment C143 to the Kingston Planning Scheme: Submission by Taylors for Navarone Accident and Vehicle Repair

Mr Jose Virguez

O9 20/3/15 Submission to the Planning Panel on behalf of Norm and Lyn Dennis

Mr M Townsend

O10 25/3/15 Selection from EPA, Siting, design, operation and rehabilitation of landfills, October 2014

Mr M Barlow

O11 25/3/15 Letter from Kingston City Council to Urbis Pty Ltd re Planning Permit PO127/90, 654‐718 Clayton Road, Clayton, April 2014

Mr I Pitt

O12 25/3/15 Written outline of submissions on behalf of the Regional Councils

Mr I Pitt

O13 25/3/15 Transfer Station use by customer postcode, June‐August 2014, Clayton Regional Landfill

Mr I Pitt

O14 25/3/15 Minute relating to Special Meeting of Council 13 August 2012, referring to project management of Kingston Green Wedge Plan

Mr I Pitt

O15 25/3/15 Submission on behalf of 683 Clayton Road, 693 Clayton Road and 705‐707 Clayton Road to Amendment C143 of the Kingston Planning Scheme

Mr S D’Amico

O16 25/3/15 Kingston Heath Golf Club: Submission to Panel ‐ Kingston C143

Mr G Chapple


Page 93 of 93

Document Number


O17 25/3/15 Submission on behalf of Defenders of the South East Green Wedge Inc.: Amendment C143 to Kingston Planning Scheme Panel Hearing

Mr B Ross

O18 26/3/15 Letter from EPA responding to Panel request regarding its potential role as a referral authority under Schedule 4 to the ESO

Ms M Mathias

O19 26/3/15 Letter from EPA responding to Panel request for provision of documents requested to be included in Decision Guidelines in the ESO

Ms M Mathias

O20 19/3/15 The Planning Group, Panel Hearing: Amendment C143, Kingston planning Scheme, Submission on behalf of Transpacific Industries Group Limited, 19 March 2015, and covering letter

Ms Wendy Thies

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