Mornington Peninsula C100 Panel Report.pdf - Victoria's Planning ...

MORNINGTON PENINSULA 

PLANNING SCHEME 

AMENDMENT C100 

PANEL REPORT 

12 MAY 2011

MORNINGTON PENINSULA 

PLANNING SCHEME 

AMENDMENT C100 

PANEL REPORT 

Michael Kirsch, Chair 

12 MAY 2011

Contents 

1. INTRODUCTION.................................................................................................... 1 

1.1 The Amendment........................................................................................................ 1 

1.2 The Panel .................................................................................................................... 3 

1.3 Planning context ........................................................................................................ 4 

2. DISCUSSION OF ISSUES ..................................................................................... 5 

2.1 3301 – 3303 Point Nepean Road, Sorrento (Item No 698) .................................... 5 

2.2 79 Station Street, Somerville (Item No 703) ........................................................... 7 

2.3 Incorporated document (Item No 764)................................................................... 9 

3. CONCLUSION AND RECOMMENDATION................................................. 11 

MORNINGTON PENINSULA PLANNING SCHEME AMENDMENT C100 

PANEL REPORT: 12 MAY 2011

1. Introduction 

1.1 The Amendment 

The exhibited Amendment 

The Planning Authority is the Mornington Peninsula Shire Council (the 

Council). 


PANEL REPORT: 12 MAY 2011 

Page 1 

The exhibited amendment included 7 elements described in Table 1 provided 

below. 

Item No 703 was included at the request of Adrian Atkins & Associates on 

behalf of VicTrack. Council initiated the remainder of the items. 

Item No. Address What the amendment does. Why the amendment is 

required. 

590 878 Point Nepean 

Road, Rosebud. 

698 Part of (206 m 2 ) 

3301-3303 Point 

Nepean Road, 

Sorrento. 

703 Part of 79 Station 

Street, Somerville 

(railway land on 

the east side of 

the railway line 

abutting 

Frankston- 

Flinders Road, 

north of Foxwood 

Place) (part Lot 1 

TP885734). 

739 Craigie Road 

Bushland 

Reserve, 168, 170 

& 170A Craigie 

Rd, 36A Dunns 

Rd and 7A 

Reginald Way, Mt. 

Martha. 

Rezones the land from Residential 

1 Zone to Public Use Zone 3. 

Rezones the land from Residential 

1 Zone to Business 1 Zone. 

Rezones Parcel A, (as shown in 

Figure 1), from Public Use Zone 4 

to Residential 1 Zone; applies a 

Development Plan Overlay 

Schedule 16 to Parcel A; and 

rezones Parcel B from Residential 1 

Zone to Public Use Zone 4. 

Rezones the land described as 36A 

Dunns Road, 7A Reginald Way and 

170A Craigie Road from Low 

Density Residential Zone to Public 

Conservation and Resource Zone. 

Rezones the land described as 168 

and 170 Craigie Road, from Public 

Park and Recreation Zone to Public 

Conservation and Resource Zone. 

Deletes the Vegetation Protection 

The land is public land that is 

currently used as a community 

and information centre. 

The land forms 206 square 

metres of a larger parcel of land 

which is zoned Business 1 

Zone. The entire lot is used for 

commercial purposes and the 

rezoning will mean that the 

property will be in the one zone. 

Will allow for the sale of Parcel 

A with an appropriate 

development control and will 

correct an error on the planning 

scheme map for Parcel B. 

The whole of the land is 

Council owned and is managed 

for bushland conservation 

purposes. 

The Public Conservation and 

Resource Zone is considered a 

more appropriate zoning, and 

Environmental Significance 

Overlay 28 recognises that the 

land has broader environmental 

values requiring more than just

748 3522 Point 

Nepean Road, 

Sorrento. 

764 23 & 25 Fingal 

Road and 188 

Cape Schanck 

Road, Cape 

Schanck. 

772 Land within 

Environmental 

Significance 

Overlay 25 

(ESO25) - Port 

Phillip Coastal 

Area. 

Table 1 Elements of the Amendment 

Changes to the Amendment 

Overlay 1 and applies and 

Environmental Significance Overlay 

28 to the whole of the land. 

Extends the application of Heritage 

Overlay 188 (HO188) from part of 

the property to the whole property. 

Rezones the land from Green 

Wedge Zone 4 to Public 

Conservation and Resource Zone 

and applies an Incorporated 

Document under Clause 52.03 and 

Clause 81.01 to prevent further 

subdivision. 

Provides exemptions from the need 

to obtain planning approval for use 

and development that falls within 

the following categories: 

• A use or development 

conducted by or on behalf of a 

public land manager or Parks 

Victoria under the relevant 

provisions of the Local 

Government Act 1989, the 

Reference Areas Act 1978, the 

National Parks Act 1975, the 

Fisheries Act 1995, the Wildlife 

Act 1975, the Forest Act 1958, 

the Water Industry Act 1994, 

the Water Act 1989, the Marine 

Act 1988, the Port of 

Melbourne Authority Act 1958 

or the Crown Land (Reserves) 

Act 1978. 

• A use or development specified 

in an Incorporated Plan in a 

schedule to the Public Parks 

and Recreation Zone or Public 

Conservation and Resource 

Zone 



vegetation protection. 

A boundary realignment under 

Planning Permit No P07/0541 

recently enlarged the property 

and extension of HO188 to the 

whole of the property will better 

protect the heritage significance 

of the property. 

The land is part of the 

Mornington Peninsula National 

Park. 

Updates the exemptions from 

permit control to bring them into 

line with those provided under 

the Public Conservation and 

Resource Zone i.e. by 

excluding use and development 

undertaken by a public land 

manager acting under relevant 

legislation, or in accordance 

with an Incorporated Plan. 

The amendment will also 

update references to authorities 

and legislation which have 

been superseded. 

At is meeting held on 29 November 2010 Council resolved to abandon Item 

No 772 (changes to the ESO25). This element of the Amendment had 

attracted five opposing submissions. 

In light of Council’s resolution, the Panel has not considered these 

submissions, nor has it formed any views about this element of the 

Page 2

Amendment. The Panel has recommended in Section 3 of this report that 

this element of the Amendment be deleted to reflect Council’s resolution. 

1.2 The Panel 

The Panel (Mr Michael Kirsch) was appointed under delegation on 28 

February 2011 pursuant to Section 153 of the Planning and Environment Act 

1987 to hear and consider submissions in respect of the Amendment. 

Hearings and inspections 

A Directions Hearing was held on 1 April 2011 at the Council offices, 

Mornington. The Panel Hearing was held on Monday 9 May 2011 at the 

Council offices, Mornington. 

The Panel undertook unaccompanied inspections on the day of the 

Directions Hearing and the day of the Panel Hearing. 

Exhibition 



Page 3 

The Amendment was exhibited between 31 July 2008 and 1 September 2008. 

Authorisation 

The Amendment was authorised on 2 May 2008. 

Extension of time 

On 7 July 2010 the Minister for Planning agreed to a Council request to 

extend the period for the adoption of the Amendment until 30 July 2011. 

Submissions 

The Panel has considered all relevant written and oral submissions and 

material presented to it in connection with this matter. 

The Panel heard the parties listed in Table 2 below. 

Table 2 

Submitter Represented By 

Mornington Peninsula Shire Council Ms Ana Borovic 

Ms Ros Franklin 

A list of all written submissions to the Amendment is included in Table 3 

below.

Table 3 

Submitter Organisation (if any) 

D Woodward South East Water 

R Warren Department of Sustainability and 

Environment 

L Melei VicRoads 

A Hensman APA Group 

J Noy Department of Transport 

A Maudsley Melbourne Water 

D Ewart Nepean Historical Society Inc 

B Robinson 

F Thompson Mornington Peninsula Ratepayers’ and 

Residents Association 

E Cain The Friends of Rosebud Beach and 

Foreshore Inc 

L Warfe Port Phillip Conservation Council Inc 

G Howard 

A Atkins Adrian Atkins and Associates (on behalf of 

VicTrack) 

1.3 Planning context 

The Explanatory Report that was exhibited with the Amendment provided 

comprehensive ‘strategic assessments’ of the various elements of the 

Amendment. This material was not challenged in submissions. 

In relation to those submissions and issues that are before the Panel, the 

Panel is satisfied that the Amendment is strategically justified. 



Page 4

2. Discussion of issues 

2.1 3301 – 3303 Point Nepean Road, Sorrento (Item No 698) 



Page 5 

The Amendment proposes to rezone part of 3301 – 3303 Point Nepean Road, 

Sorrento (206 sqm) from Residential 1 Zone (R1Z) to Business 1 Zone (B1Z). 

The site is a strip of undeveloped land between Grange Road (to the west) 

and developed land zoned B1Z (to the east). The remainder of the lot is 

zoned B1Z. 

The site is currently informally used for car parking and is the subject of a 

planning permit issued at the direction of VCAT and recently extended by 

Council. The permit is for a mixed use development including associated car 

parking and is yet to be acted upon. 

2.1.1 What are the issues? 

The issues are the impacts of the rezoning on the provision of car parking in 

the area and the existing gas main that traverses the site. 

2.1.2 Submissions 

The Nepean Historical Society opposed the rezoning on the basis that it will 

allow ‘structures to be built up to the title boundary adjacent to the narrow Grant 

Street (sic)’. The submission noted that the site is currently used for parking 

and that the loss of the car parking area ‘will be deleterious to the adjacent 

business customers’. The submission concluded that any change of zoning 

should require a building set‐back from Grange Street. 

In response, Council submitted: 

The issues raised are ones that could be satisfactorily dealt with in the 

processing of any planning permit application and are not of sufficient 

stature to warrant a new Design and Development Overlay provision to 

implement a setback requirement especially given that it is considered 

that the safety risk and potential loss of parking are issues that can have 

alternative design solutions. 

In evidence of this position, it is submitted that the existence of a 

planning permit (P05/0579 for shops, restaurants and dwellings) on the 

land that was issued at the direction of VCAT, that includes a building

over the land and an underground car park demonstrates that an 

alternative design solution is available. 



Page 6 

The APA Group initially objected to the rezoning, expressing concern that it 

would encroach upon an existing 50mm high pressure gas main that 

traverses the site (letter to Council dated 12 August 2008). The objection was 

withdrawn subject to an easement being applied to the main as part of the 

Amendment (letter to Council dated 11 October 2010). Council subsequently 

advised the APA Group that the easement could not be introduced as part of 

the Amendment. 

Further discussions between Council and the APA Group led to the APA 

Group again withdrawing its objection; this time on the basis that Council 

would amend the planning permit that applies to the site to include a permit 

condition relating to the relocation of the gas main (e‐mail to Council dated 

29 April 2010). 

Council’s submission provided an overview of the discussions that had been 

held with the APA Group and concluded that: 

The Shire does not believe that the application of an easement to the land 

at this stage (even if legally achievable) is a good planning outcome as the 

valid planning permit has already been issued. 

The issues relating to the location of the gas main, in the light of the 

approved development, would be exactly the same if the land was not 

rezoned; however the Shire is willing to initiate planning permit 

amendment and has requested the applicant to put in the formal request 

to amend the permit. If the permit was not amended, the applicant 

would, under common law, still need to contact the gas authority in 

order to conduct any works in the vicinity of the gas main. 

The Shire maintains that the land should be rezoned as exhibited, 

regardless of the statutory planning process outcome. 

Neither the Nepean Historical Society nor the APA Group attended the 

Hearing. 

2.1.3 Discussion 

In relation to the Nepean Historical Society submission, the Panel does not 

believe that the rezoning by itself will impact on parking issues affecting the 

site or the immediate vicinity. If there are parking issues, then these will 

exist regardless of the change of zone and would typically be considered and 

addressed through the planning permit process. The Panel also notes that 

the planning permit that applies to the site provides for revised car parking

arrangements, including underground parking. Should this permit be 

actioned, then the parking and traffic conditions that exist in the immediate 

area will change. 



Page 7 

The Panel agrees with Council, that there is no ‘parking’ or ‘traffic’ 

justification for applying a control (such as a Design and Development 

Overlay) that would require a building setback to Grange Street. This is also 

a matter that could be considered and addressed through the planning 

permit process if need be. 

In relation to the APA Group’s submissions, the Panel notes that the basis for 

the objection being withdrawn was that Council would require an additional 

condition to be included on the planning permit that applies to the land. 

This condition would make reference to the relocation of the gas main. 

Given that Council cannot guarantee the inclusion of such a condition in an 

amended planning permit, the Panel has proceeded on the basis that the 

APA Group objection stands. This was foreshadowed in the Panels 

Directions dated 28 April 2011. 

In this context, the Panel does not agree with the APA Group’s submission 

that the rezoning will ‘encroach’ upon or ‘compromise’ the future use of the 

gas main. The submission did not explain the rationale for this view, it did 

not demonstrate how the main was at risk from the rezoning and it did not 

explain why the current R1Z should be preferred over the proposed B1Z as a 

means of protecting the gas main. If the main needs to be relocated then 

there are mechanisms available for this to be done. 

The Panel does not believe that the issues raised in the submissions preclude 

the rezoning of the site. The Panel is satisfied that the B1Z is an appropriate 

zone given that it currently applies to the remainder of the lot, the lot is used 

for commercial purposes, and a planning permit has been issued for more 

intensive mixed use development of the site. 

2.2 79 Station Street, Somerville (Item No 703) 

The Amendment affects two areas of land within 79 Station Street, 

Somerville (south of the Somerville railway station) and proposes to: 

� rezone Parcel A from Public Use Zone 4 (PUZ4) to Residential 1 Zone 

(R1Z) and apply a Development Plan Overlay Schedule 16 (DPO 16); 

and 

� rezone Parcel B from R1Z to PUZ4.



Page 8 

Both parcels are owned by VicTrack Access, and are undeveloped land 

associated with the Somerville railway station. The parcels are indicated on 

Figure 1 below. 

Figure 1 VicTrack land parcels 

2.2.1 What is the issue? 

The issue is whether the rezonings and application of the DPO16 should 

proceed.

2.2.2 Submissions 

VicTrack initiated the rezoning of these parcels in June 2007, noting that the 

rezoning of Parcel B would correct a zoning error and that Parcel A was 

‘surplus to requirements’. 



Page 9 

In response to the exhibition of the Amendment, VicTrack objected to the 

application of DPO16 to Parcel A (letter to Council dated 29 August 2008). 

Following the appointment of the Panel, VicTrack advised Council and the 

Panel that it no longer intended to pursue the rezoning of its land (including 

both Parcels A and B). VicTrack advised that it had been unable to resolve 

issues associated with the site that had been raised by the Department of 

Transport. 

The Department of Transport supported the rezoning of Parcel B on the basis 

that it corrects a zoning error. It objected to the proposed changes affecting 

Parcel A, submitting that they would be premature in light of uncertainties 

about the future use of the Frankston – Stony Point rail line which provides 

access to the Port of Hastings. 

Council advised the Panel that it in light of VicTrack’s decision not to 

proceed with the rezonings, it would abandon the rezoning of Parcel A. 

However, Council indicated that it would continue with the rezoning of 

Parcel B on the basis that it corrected a zoning error. 

Neither VicTrack nor the Department of Transport attended the Hearing. 

2.2.3 Discussion 

Given that VicTrack is no longer seeking the rezoning of Parcel A, the Panel 

agrees with Council that the rezoning and application of the DPO16 should 

be deleted from the Amendment. In this context it is appropriate that the 

existing PUZ4 be retained. 

The Panel supports the rezoning of Parcel B to PUZ4 on the basis that it 

corrects a zoning error. 

2.3 Incorporated document (Item No 764) 

In its submission to the Panel, Council advised that: 

During the preparation of documentation for this Panel submission, it 

became apparent that, if adopted in the exhibited version, schedules to 

Clauses 52.03 and 81.01 ... would contain two incorporated documents 

with very similar names...

To avoid any possible confusion, and given that both documents have 

identical controls and the only difference is that they apply to different 

land parcels, the Shire suggests to Panel that these two incorporated 

documents should be merged, and the schedules to Clause 52.03 and 

81.01 amended... 

Council provided revised schedules in accordance with its submission. 



Page 10 

Although the Panel does not have any objection to Council’s proposal, this is 

a matter for Council and DPCD to resolve.

3. Conclusion and recommendation 



Page 11 

For the reasons set out in this report the Panel recommends that Mornington 

Peninsula Shire adopt Amendment C100 to the Mornington Peninsula 

Planning Scheme as exhibited, subject to: 

� deleting the proposed revisions to the Environmental Significance 

Overlay Schedule 25 (Item No 772); and 

� deleting the Residential 1 rezoning and the application of the 

Development Plan Overlay Schedule 16 to Parcel A, 79 Station Street, 

Somerville (Part of Item No 703).

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