PAINKALAC VALLEY

Update November 2019: 

Update July 2019

Update March 2019:

Update December 2018:

We have continued to hear the community’s concerns about the state of the Painkalac Valley. Like many of you, the AIDA committee has continued to raise its concerns with the shire and our ward councillors. We have sought advice from our lawyers and are waiting for this to be provided.

We are aware that the shire is working with the landowners, prospective landowner and lessees to develop action plans to manage the valley land into the future. Until these are finalised it would seem that it will not be taking any action.

The shire has advised one of our concerned community members that there are no planning controls over the use of barbed wire. We understand the shire is seeking advice about the volume of nutrients flowing into the creek from the horse manure and whether there are planning controls to manage this. We also understand that the shire’s engineering management team are looking at the drainage works to determine their impacts and what, if anything, can be done.

In early October, the shire provided the following information in relation to grazing in the now fenced ephemeral wetlands:

Grazing is not prohibited in the valley under the Planning Scheme. While the Rural Conservation zoning of the land requires a permit for agriculture (including grazing) the lots 1 to 3 have existing use rights under clauses 63.01 and 63.06 and 63.11 of the planning scheme. The land has been used for grazing for many years. If grazing were to cease for a period of 2 years these rights can be lost, however they are not prohibited but would require a permit to be able to recommence.

The section 173 Agreement and Conservation Management Plan (CMP) does not prohibit grazing. The CMP gives Council a greater level of control over lots 1, 2 and 3 than other land in the valley. The CMP is essentially focused on the conservation areas now fenced in accordance with the third dot point under section 2.3.

The five dot points under 2.3 of the CMP are included [for] completeness as they set up ve main positive obligations as actions under the CMP.

• Preserve the existing remnant Eucalypts and wetland along the western boundary.
• Contain services such as electricity and sewerage to drive alignment to reduce edge effects and the amount of machinery trampling, excessive runoff, disturbance and weed invasion.
• Construct temporary and permanent fences to minimise edge effects and unnecessary disturbance and protect conservation areas. Fencing will control human access, minimise soil compaction, tree root trampling and flattening of regeneration areas and they will highlight the conservation value of the area by indicating areas warranting protection.
• Implement fire, weed and pest management and erosion and sediment control measures with minimal impact on threatened and significant species.
• Undertake an annual monitoring and evaluation program to assess achievement and management objectives.

The owner and lessees have existing use rights for grazing all of the land. The CMP says fencing has to be constructed which is the obligation, then goes on to explain why the fencing obligation is required i.e. to ‘minimise edge effects’ or ‘control human access’ and ‘minimise soils compaction’. These relate to impacts by grazing activity. They are not instructions to not graze and the agreement did not introduce a prohibition. However removing or restricting grazing from the fenced areas is consistent with the intent of the CMP and achieving the preservation of the existing remnant Eucalypts and wetland along the western boundary which is the rst positive obligation.

The last dot point is the key positive obligation under section 2.3. This is the mechanism to ensure the CMP obligations are achieved. It requires a program to be developed to achieve the conservation of the wetlands and remnant vegetation areas. To achieve this we require the negotiated development and resolution of an annual program of use and activities to meet the positive obligations of the CMP and the detailed sub-actions under 2.3 including weed management and re management, etc.

We have been engaging with the new land owners, the lessees, the prospective land owner and the existing land owner to achieve a lasting and long-term program that will see the wetlands preserved and stands of remnant vegetation enhanced. When the program has been agreed upon it will contain the annual compliance requirements including the control of grazing.

When we met with AIDA we envisaged this would take about 6 months to achieve the program actions with the involvement of the land owners. We are still committed to achieving this by the end of December.

 To assist you to ‘read’ the valley we (AIDA) have included a  map showing the three lots and the fenced ephemeral wetlands (marked as Conservation Management Plan protected areas). Lot 2 has been purchased by an AIDA member and it will be rehabilitated and its wetlands restored.

Charlotte Allen

Update June 2018:

In our March newsletter we reported that the owner of the three valley blocks was proceeding to build a house on each. Construction of the first of these houses, on Lot 1, has now commenced.

We anticipate that the house on Lot 2 will be built soon. As many will be be aware, Lot 3 has been sold to the owners of Blazing Saddles who sent this message to AIDA members:

“To the AIDA community:

We have recently purchased the 84 acre lot 23–79 Bambra Rd. While we understand that some members would have liked to have seen this land brought in to public hands it has been on the market for 10 years and this has not eventuated. Many people will be pleased it remains as open grazing land.

Aireys has been our home for 30 years. We are integrally connected to the community and to our unique environment. Our aim is to continue grazing while restoring and rehabilitating key areas. We will be seeking advice about how best to achieve this. There may be future opportunity for some areas to be seeded back to public ownership and we remainopen to discussions regarding this.

Our previous purchase was met with distrust and miscommunication. After decades of adversarial conduct between AIDA and John Allen, we believe our purchase is a positive step forward. A communicative and respectful dialogue in to the future is welcomed.

Yours sincerely

Tim & Caroline Wood”

Conservation Management Plan

AIDA will continue to be vigilant to ensure that all the conditions in the Section 173 agreement and in the CMP continue to be met. As mentioned in the President’s Report to the AGM, AIDA sought and received legal advice about the shire’s interpretation of the wording in the CMP with regards to the now fenced ephemeral wetlands in the PainkalacValley. (The shire believes that grazing at times of the year is still permitted.) While grazing of stock is not explicitly prohibited by the CMP, our lawyers agreed that it was not the intention of the tribunal for grazing to continue once the wetlands had been fenced. We provided our legal advice to the shire and and will be meeting with them soon to discuss the issue.

Charlotte Allen

Update March 2018: 

In the December 2017 newsletter we reported that the Surf Coast Shire was doing an audit of the requirements of the Conservation Management Plan (CMP) that was agreed between the shire and the land owner as part of the Section 173 agreement that applies to the three blocks on the valley land. This audit demonstrated that the requirements of the CMP had been met and the planning permits are valid. The CMP required that the ephemeral wetlands in the upper valley had to be fenced prior to any building work commencing as well as temporary fencing around the three house sites and around the landscaping. This fencing has now been completed as the owner prepares to put a house on each of the three blocks; you may have seen the earthworks and orange temporary fencing. The permits would have expired in April had works not been started.

The shire, DELWP, the landowner and the people who lease the land will now have discussions to decide on the ongoing management of the fenced-off ephemeral wetland areas. In the meantime, horses will continue to graze in these areas.

The Painkalac Project (TPP), that was established by AIDA and ANGAIR, with some community representatives, has continued to try to reach an agreement with the landowner to move some of the land into public ownership for rehabilitation into a wetland and TPP has had discussions with the shire, Trust for Nature and the Corangamite Catchment Management Authority about the concept. It remains our hope that this aspiration will be successful.

In the meantime the shire is interested in developing a walking track through the Painkalac Nature Reserve as part of its involvement in the ‘City Deal’. We understand this would start from somewhere behind the Bottom Shops.

Charlotte Allen

Update December 2017:

During the recent Painkalac Valley planning applications it became apparent that there may be some compliance issues with meeting the requirements of the Conservation and Management Plan (CMP) that was part of the section 173 agreement between the owner and the shire. The shire is doing an audit of 23–79 Bambra Road to check whether or not the owner has complied with the CMP that was agreed between the shire and the owner when the subdivision was approved.

We understand that the owner is continuing to pursue the option of putting a pre-fabricated house on each of the three house sites and has advertised the blocks with available ‘contemporary Eco house design plans’. The owner has a planning permit for three houses, one on each of the blocks for sale. These permits expire in April 2018 when the owner would need to apply for an extension should a start not have been made to build on the sites.

The Painkalac Project was established to investigate the potential to publicly fundraise to purchase the valley blocks. It remains our aspiration to acquire the land to hold in public ownership.

Charlotte Allen

Update from the June 2017 AIDA Newsletter. 

Update 4th April 2017:  The Surf Coast Shire Council held a Hearing of Submissions meeting on March 14 to hear from objectors to the proposed s173 amendments and from the applicant.

While Council had to date received over about 120 objections, seven objectors, including AIDA, made presentations. The issues raised in these presentations covered many areas of concern related to the need for the protections over the valley provided by the s173 agreement to remain, the potential environmental impacts and potential for additional development that would result from the requested amendments to the s173, and some important legal and planning process issues. About two thirds of objectors are not AIDA members.

The applicant’s planning consultant then told the meeting he is no longer acting for Tim Wood but that the landowner, John Allen, is now the applicant. (AIDA’s lawyers had advised us that Mr Wood was not legally able to apply for amendments to the s173.)

Shortly after the Hearing of Submissions all objectors were advised that Council had deferred its consideration of the Painkalac Valley applications. These will now be on the agenda for its meeting at 6pm on Wednesday, April 26. We understand that this delay was because there were some outstanding matters to be resolved. We also understand that the Council is seeking legal advice about the implications of the change of applicant.

AIDA wrote to Council following the March 14 meeting about its concerns over some planning process issues and the change of applicant.

Update 17 February 2017:   The next steps in the process of dealing with the planning applications affecting the valley land are the hearing of submissions (March 14) and the Council meeting (March 28).
 
AIDA members who sent a personal submission to Council about the two Painkalac Valley planning applications will have received a letter about hearing of submissions and when Council will make its decision. 

If you haven’t sent a submission, and would like to, there is still time. All submissions received up until the time Council decides on the applications will be considered (see information below under 31 January update).

1.  Hearing of submissions – March 14
We encourage you to take up the opportunity to make a verbal presentation to the Submissions Committee on March 14. This meeting starts at 4pm. AIDA will make a submission. You can make a verbal presentation yourself or as a a group with similar issues.  We also encourage you to go the meeting even if you don’t want to speak. Your presence will express your objection.
 
2.  Council meeting – March 28
The full Council will consider its decision on the the planning permit application and the application to change the Section 173 agreement on March 28. This meeting starts at 6pm. The planning officer’s report and recommendations, as well as a summary of all submissions, will be considered by Council. This report will be with the Council meeting agenda which will be available on

Update 10 February 2017: If you haven’t let Council know your views about the two Painkalac Valley planning applications you still have time. Submissions on the two applications can be made to Council up until the time the applications are considered.

While the information about the applications will be moved from “Applications on Public Exhibition” to the “Public Exhibition Recently Completed” you should still be able to open the two applications. Submissions on the two applications can be made to Council up until the time the applications are considered.

UPDATE 31 January 2017:  AIDA has received advice from our planning lawyers to help with submissions to Council about the two Planning Applications, 16/0402 and OA 2558, for the subdivision of Lot 3, 23-79 Bambra Road, and to amend the conditions of the existing Section 173 Agreement between the Shire and the landowner over the whole of 23-79 Bambra Road. 

It is important that separate letters of objection be sent for EACH of the two applications, which should each be written on copies of the official form Planning_objection_form, with further material if desired.

Your submission should be made as soon as possible and must be with the council by February 10. 

Many of you will have your own reasons for wanting to object to the two applications and you should include these as well as any of these planning grounds for your objections. 

Please note the information below which has the Section 173 Amendment and the Planning Permit application under two separate (blue) headings.

We realise that this is lengthy and complex guidance on what has been a challenging process.  Please don’t feel obliged to include all of the points below in your objection.  It would be quite appropriate to treat these points as a shopping list for inclusion in your objection where you agree with them or feel they are particularly relevant.

We also provide two plans which we hope might clarify the issues.  This link to the Plan_of_proposed_boundary_realignment provides the proposed plan of subdivision of Lot 3 in Bambra Road showing how it is proposed to be connected with 115 Bimbadeen Drive.  The second image (see below) below is a map of the whole valley, showing how the points of the objections fit together.

Please contact AIDA if you have any queries.

Application to amend the Section 173 Agreement over 23–79 Bambra Road, Aireys Inlet

Application No. OA2558

This application, which can be inspected at http://www.surfcoast.vic.gov.au/My_Property/Building_Planning/Planning/Applications_On_Public_Exhibition/23_Bambra_Road_Aireys_Inlet  is to amend one and delete two of the conditions of the existing Section 173 Agreement between Council and the owner as directed by VCAT in 1998.

The three proposed changes and our objections are:

1.    Generally – to allow the three amendments to the Section 173 Agreement.

Objections:

a)    No justification has been provided for the proposed amendments.

b)    There would be no community benefit and no better planning outcome if these amendments were allowed.

c)    These amendments seek to satisfy the commercial interests of the existing property owners at 115 Bimbadeen Drive and 23-79 Bambra Road in ways that will jeopardise than the interests of the wider community and the environmental values of the Painkalac Valley.

d)    The protections provided by the Section 173 Agreement have worked well and there is no compelling reason to change them.

e)    It has not been claimed or demonstrated that the proposed amendments would protect or enhance the environmental or landscape qualities of the land.

f)    Two of the proposed amendments and the owner’s consent for the third amendment apply generally over all of 23-79 Bambra Road, while no reason or justification has been provided for their application beyond only Lot 3 of 23-79 Bambra Road. 

g)    The proposed amendments threaten an environmentally and ecologically significant area with further damage and erosion.

h)    The application to amend the Section 173 Agreement is not valid as its objectives, in particular the limited opportunity for development imposed on the valley and the prohibition of any further subdivision, are reflected in the Planning Scheme and in Council policy. 

i)     The Section 173 Agreement is not void and the terms of the Agreement remain very much relevant to the land at 23-79 Bambra Road, and for this reason under the terms of the Agreement the application should be refused.

j)     Council should consider that the agreement was entered in to at the direction of VCAT, which gave considerable weight to the  impacts of the proposed use and development on the environmental values of the valley land.

2.    To allow further re-subdivision of 23-79 Bambra Road Aireys Inlet.

Objections:

a)    The extent of this application is not clear as the owner’s consent applies to the whole of the 23-79 Bambra Road land while the application itself claims to apply only to Lot 3, the subject land of the current subdivision application under Planning Permit 97/7281. 

b)    A re-subdivision is the same thing as a subdivision as defined in the Act, and we object to the further subdivision of the land

c)    The proposed amendment would allow subdivisions which are less than the minimum subdivision size permitted in the Rural Conservation Zone.

d)    The proposed amendment will result, on the subject land of Lot3, in two separately saleable lots, and therefore a total of four separately saleable lots on the whole of the 23-79 Bambra Road land, in direct opposition to the Surf Coast Shire’s 1990s permit refusal and the resulting 1998 VCAT order disallowing a four lot subdivision.

e)    Any further subdivision of the lots created on the Plan of Subdivision is prohibited.

3.    To remove from 23-79 Bambra Road the current restriction of 3 metres on building wall height to allow building wall heights of 5 metres.

Objections:

a)    The proposed amendment is incompatible with the 1998 VCAT decision which agreed with Council’s argument that it would not be appropriate to allow for wall height in excess of 3 metres.

b)    The existing 3 metre wall height restriction remains appropriate because the purpose of the Rural Conservation Zone is to protect the natural features and significant landscape of the site.

c)    By increasing the height limit, Council would allow increased visibility of the dwellings permitted on the land from views into the valley, and this will disrupt the significant landscape in opposition to the purpose of the zone.

d)    Council is required to consider whether the permitted development protects and enhances the landscape qualities of the site and its surrounds. An increased wall height limit would intrude on rather than enhance the landscape qualities.

e)    An increase in wall height would contradict the intention of the VCAT conditions to protect the valley from an unacceptable degree of visual intrusion.

4.    To remove from 23-79 Bambra Road the current prohibition of allowing dogs on the land.

Objections:

a)    The proposed amendment is incompatible with the 1998 VCAT decision which determined that the keeping or permitting of dogs on the land would be incompatible with the land’s sensitive environment and fauna.

b)    VCAT expressed concern for the protection of habitat remnants, the ongoing habitat value of the creek and wetlands and the impact that dogs may have on specific species in the area.

c)    VCAT concluded that whatever can be done to minimise further hazard to surviving fauna in the area should be done and therefore dogs should not be kept on the blocks on the valley.

d)    Although other property owners in the area have dogs, this does not mean that dogs should be allowed on the valley land.

e)    We object to the proposed amendment because the high environmental and ecological significance of the land should not be jeopardised by the introduction of foreign species, such as dogs.

Application to amend the planning permit for 115 Bimbadeen Drive, Fairhaven & Lot 3 23-79 Bambra Road, Aireys Inlet

Planning Permit Application No. 16/0402

This application, which can be inspected at http://www.surfcoast.vic.gov.au/My_Property/Building_Planning/Planning/Applications_On_Public_Exhibition/115_Bimbadeen_Drive_Fairhaven_amp_23-79_Bambra_Road_Aireys_Inlet  is to secure the future of the horse riding business on the land by re-subdividing Lot 3 of 23-79 Bambra Road through the realignment of its boundaries to create a small residential lot plus a larger residual lot, and to join the larger lot with 115 Bimbadeen Drive across the Painkalac Creek to create a new single lot for the horse riding business.

The application also seeks to permit the re-subdivision of Lot 3 of 23-79 Bambra Road in this way by removing the existing restriction in its Planning Permit prohibiting the further subdivision of this land.

Objections:

a)    Both a boundary realignment and a re-subdivision are the same thing as a subdivision as defined in the Act, and we object to the further subdivision of Lot 3 of 23-79 Bambra Road.

b)    The proposal to further subdivide Lot 3 of 23-79 Bambra Road would result in two lots which are less than the 60 hectare minimum subdivision size permitted in the Rural Conservation Zone.

c)    The proposed subdivision will result, on Lot3 of 23-79 Bambra Road, in two separately saleable lots, and therefore a total of four separately saleable lots on the whole of the 23-79 Bambra Road land, in direct opposition to the Surf Coast Shire’s 1990s permit refusal and the resulting 1998 VCAT order disallowing a four lot subdivision.

d)    Any further subdivision of the lots created on the Plan of Subdivision for 23-79 Bambra Road is prohibited.

e)    The application seeks to satisfy the commercial interest of one person over the interests of the wider community 

f)    The proposal to join one of the subdivided lots out of Lot 3 23-79 Bambra Road with 115 Bimbadeen Drive to form a single lot separated by the Painkalac Creek and the Council conservation reserves along each bank of the creek will not provide an operational property as is stated as the reason for the subdivision.

g)    The subdivision is prohibited under the Surf Coast Planning Scheme, and the planning permit and section 173 Agreement affecting the land at 23-79 Bambra Road.

h)    By permitting the applicant to further subdivide Lot 3 of 23-79 Bambra Road to create smaller lots, Council would be acting in contravention of the object of the Rural Conservation Zone to preserve the open rural landscapes and character of the land. 

i)     The section 173 Agreement affecting 23-79 Bambra Road prohibits its further subdivision.

j)     Planning Permit 97/7281 over 23-79 Bambra Road prohibits its further subdivision.

k)    Registered covenant PS431010T dated 13/11/2002 over Lot 3 of 23-79 Bambra Road states in part that “No lot on the land can be further subdivided”.

l)     We object to the application to amend the restriction in Planning Permit 97/7281 over 23-79 Bambra Road which prohibits further subdivision.

m)   The proposed subdivision conflicts with the Aireys Inlet to Eastern View Structure Plan which highlights the importance of the Painkalac Creek’s open valley landscape and sets out the need to protect this landscape and the environmental values of the Painkalac Creek. 

n)    The proposed subdivision and the proposed amendment of the planning permit restriction to permit it, both conflict with the following key issue and influence from the Planning Scheme’s Aireys Inlet Eastern View Strategy:
“The open valley landscape of the Painkalac Creek, separating the timbered hillsides of Aireys Inlet and Fairhaven, has high environmental, geomorphological, scenic and cultural values and contains flora and fauna of high State ecological significance.”

o)    The proposed amendment threatens an environmentally and ecologically significant area with further damage and erosion.

p)    The proposed use of the land does not protect or enhance the environmental, agricultural and landscape qualities of the site and its surrounds as required by the decision guidelines in the Planning Scheme.

Painkalac Valley – subdivision and application to amend the section 173 agreement.