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Shrinking overlays.

Development overlays are strictly enforced for you and me, but when the council wants to do something, overlays can be surprisingly flexible.

 

The Heritage Overlay on the Eastern Golf Course Site.

Consider the eastern golf course. Did you know that the ENTIRE 47 Hectares of the former golf course is covered by a heritage overlay (HO43) imposed by Manningham Council. That's right, not just the historic buildings on the property but the entire property - the golf fairways, water hazards, everything.

All of this is seen in "Eastern Golf Course - Heritage Assessment in accordance with Schedule to the Development Plan Overlay". This document was presented at the Council meeting on 27 August 2013. You can download it and check if for yourself.

This heritage overlay has been in place for years. (A change was made to it by amendment C38 back in 2004 where several residential blocks of land to the west of the golf course were removed from the overlay.)

Just imagine the restrictions placed on the Eastern Golf Club when they owned the property. Let me give you a list of the issues, policies, guidelines and so on that needed to be taken into account if the Golf Club wanted to change or build something on their old property.

 

Guidelines from Clause 43-01 of the heritage overlay:

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

  • To conserve and enhance heritage places of natural or cultural significance.

  • To conserve and enhance those elements which contribute to the significance of heritage places.

  • To ensure that development does not adversely affect the significance of heritage places.

  • To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.

 

Clause 65, the responsible authority will need to consider, as appropriate:

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

  • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

  • Any applicable statement of significance, heritage study and any applicable conservation policy.

  • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.

  • Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

  • Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

  • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

  • Whether the proposed subdivision will adversely affect the significance of the heritage place.

  • Whether the proposed subdivision may result in development which will adversely affect the significance, character or appearance of the heritage place.

  • Whether the proposed sign will adversely affect the significance, character or appearance of the heritage place.

  • Whether the lopping or development will adversely affect the health, appearance or significance of the tree.

 

The proposal may also be reviewed against the policy found at Clause 21.11:

  • To enhance cultural heritage through the retention and protection of significant buildings, precincts, trees and landscapes.

  • To minimise impacts on heritage places as a result of changes to adjoining land uses and development.

  • To protect sites of archaeological significance.

 

Guidance in relation to local heritage policy is found at Clause 22.03:

  • To recognize, protect, conserve, manage and enhance identified cultural heritage places.

  • To ensure that the significance of cultural heritage places involving the aesthetic, historic, scientific, architectural or social value of a heritage asset to past, present and future generations, is assessed and used to guide planning decisions.

  • To encourage the retention of cultural heritage places and ensure that these places are recognized and afforded appropriate protection to enrich the character, identity and heritage of the municipality.

  • To ensure that the subdivision of a cultural heritage place does not adversely affect the identified aesthetic, historic, scientific, architectural or social value of the heritage place or other features identified in the Schedule to the Heritage Overlay.

  • To promote the identification, protection and management of sites and areas of archaeological significance including aboriginal cultural heritage.

  • Additional buildings or works on the site of a heritage building and/or located within a heritage precinct conserve, enhance and be responsive to the heritage place and/or precinct.

  • The development of cultural heritage places be compatible with and not adversely affect the heritage value and significance of the cultural heritage place and/or precinct.

  • Development adjacent to heritage places and precincts responds positively to the heritage place in terms of its bulk, setbacks, materials, colour scheme and form.

  • The design of new buildings not "mock” the heritage building and/or precinct, but rather complement the original fabric and design characteristics of the heritage building and/or precinct in terms of bulk, style, materials, setbacks, colour scheme and form.

  • The design and location of external and internal alterations should preserve, restore or reconstruct the original features and forms of heritage buildings.

  • External alterations maintain the aesthetic, historic, scientific, architectural or social value of a heritage building/precinct and a building’s contribution to the streetscape.

  • All new materials used be respectful of the nature and colour of the original fabric of the building.

  • Alterations to the front façade of a heritage building are treated with particular care in recognition of their potential negative impact on the architectural and aesthetic contribution of the building to the streetscape.

  • Alterations to the rear of buildings are encouraged in order to minimize or avoid any detriment to the aesthetic and architectural contribution of the building to the streetscape and the heritage precinct.

     

Vegetation is also considered under Clause 22.03:

  • The removal or lopping of vegetation identified as making a significant contribution to the setting and heritage value of a heritage place is strongly discouraged.

  • Removal or lopping of significant vegetation may be supported in limited circumstances, including where parts or all of the vegetation is dead, dying or presents an immediate risk.

 

So if the Golf Club wanted to build, say, a shed to store their greens mowers in, they would have to consider all the above, have expensive and extensive heritage (and environmental) assessment documents prepared and then go cap-in-hand to the council for approval. And then have a massive fight with the council over interpretation, meaning, intentions, vistas, trees, grasses, and so on.

Just to give an idea of the possible scope for disputes. Did you notice that any new building must not MOCK the existing heritage buildings? Now that is a matter of personal opinion and also artistic taste and of schools of thought. If the golf club wanted to build something a bit avant garde on the property there would be a lot of scope for disagreement. In fact, even if they put up a period building that just looked just too new or too good, it could be argued that THAT mocked the older buildings.

When you consider all the guidelines, rules, etc. listed above, that applied to the property, the Golf Club was pretty much locked down, locked up and locked out of using and developing their own land.

And note that all of this was the councils' doing. The heritage overlay is entirely of the Manningham council's own making. 

The eastern golf course is not included on the Victorian Heritage Register, no part of it has been classified by the National Trust of Australia (Victoria), it is not included on the Register of the National Estate, the Commonwealth Heritage List or the National Heritage List. No other heritage organisation seems to place much importance on the Eastern Golf course. That is not to say that it has no heritage value. But both the intention to protect it and the controls, guidelines, rules, and so of the overlay are entirely the councils' doing.

 

Then something changed.

The golf club decided sell their property. The council found themselves with a 'strategic' property located on a main road near an activity center and near public transport that they could use to fulfill the population growth and high density housing objectives of the state government.

So what happened to that blanket heritage overlay? It went sailing out the window.

Manningham council knew full well that they would not be able to subdivide the old golf course land if this heritage overlay remained in place. So what did they do? Honey, they shrank the overlay.

The heritage overlay will now cover only the club house, the stables and THREE trees. (That's right, three trees). And it will cover a 10 meter buffer space around the old club house and the stables.

So what was a 47 Hectare (116 acres) heritage site shrank to something around 1 acre. That is a massive shrinkage of heritage.

 

And what document did Manningham Council rely on to justify this change to the heritage overlay? They appealed to: "Heritage Assessment in accordance with Schedule to the Development Plan Overlay July 2013" by Bryce Raworth Pty Ltd. 

On page 8 of this report it says: "The proposed master plan represents an appropriate outcome for this site" (The master plan being the recommendation to reduce the scope of the overlay.)

So are we to think that the previous heritage overlay, which covered the entire 116 acres, was NOT appropriate? 

It also says on page 8:

"'Tullamore' (the original name of the club house when it was a farm house years ago) is retained in a landscaped curtilage (10 meter buffer area) that seems appropriate and sufficient for the future conservation ..."

So are we to think that all that was really ever needed for heritage purposes was to preserve the homestead (and stables), three trees and a 10 meter buffer zone around them?

And are we to think that the original heritage overlay over the entire property was completely unnecessary and massive overkill?

 

The Eastern Golf club suffered and struggled for years under the heavy handed tyranny of the council and it's blanket heritage overlay. Then, when the council could use the land to meet it's own objectives, the blanket heritage overlay goes sailing out the window.

 

A Mirvac document may have inadvertently summarized the council's attitude on this property.

"The EGC Development Plan will achieve a net community benefit by 'releasing' a private land holding." - ("Eastern Golf Course Development Plan July 2013 by Mirvac", page 15. Section 3.3)

 

 

Now let's turn to the environmental significance overlay.

Basically the entire Eastern Golf course is also covered by an environmental significance overlay, ES05. Under this overlay, if you want to remove, lop or destroy vegetation native to Victoria, you need to get a permit from the council. The permit application process under this is quite extensive and involved. Consider the following:

 

3.0 Permit requirement

Buildings and works

A permit is not required to construct a building or construct or carry out works.

This does not apply to:

  • The construction of a building or the construction or carrying out of works within the canopy dripline of any vegetation that requires a permit for its removal.

  • In certain situations where you want to build a tennis court.

 

Vegetation

A permit is only required to remove, destroy or lop:

  • Victorian native vegetation.

  • A permit is not required for:

  • Dead vegetation.

  • The pruning of a tree for regeneration or ornamental shaping.

  • A tree with its trunk within two metres of the roof (including eaves) of an existing building (excluding a fence).

  • Any species listed as exempt from a permit requirement in the Table to this Schedule.

     

The term Victorian native vegetation means ‘Plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses’.

 

4.0 Application requirements

Buildings and works

An application to construct a building or construct or carry out works must be accompanied by the following information, as appropriate, to the satisfaction of the responsible authority:

  • A site plan (drawn to scale) including:

  • The boundaries of the site.

  • Details of the proposed works.

  • The location of all buildings, fences and other structures on the site.

  • The location, extent and type of vegetation on the site.

  • Measures to be undertaken to minimise environmental impacts during the construction period, including soil conservation, waterway and vegetation protection measures.

 

Vegetation

An application to remove, destroy or lop Victorian native vegetation must be accompanied by the following information, as appropriate, to the satisfaction of the responsible authority, including:

  • A Net Gain assessment, including:

  • A site plan (drawn to scale) showing:

  • The boundaries of the site.

  • The location and extent of vegetation.

  • Topographic information including ridges, crests and hilltops, streams and waterways, drainage lines, slopes of more than 20 percent, low lying areas and areas of existing erosion.

  • The location of any buildings and any other structures on the site.

  • A description of the vegetation to be removed, including:

  • The reason for the vegetation removal.

  • The species of vegetation.

  • The number and size of trees. The size must be provided as Diameter at Breast Height (DBH), that is, the trunk diameter (in centimetres) at 1.3 metres above natural ground level.

  • The Ecological Vegetation Class (EVC) and conservation status of the vegetation.

  • An explanation of the steps that have been taken to avoid, minimise and offset the loss of Victorian native vegetation.

  • An offset plan including implementation details and long term management and protection measures.

  • A description of any fauna species that are rare or threatened at the local, regional, state or national level, that have been recorded within 1.5 kilometres of the site or which are known to be or likely to be present at the site including:

  • The conservation status of each species.

  • An assessment of the likelihood that the site provides habitat for each species and

  • the impact of the proposal on the habitat of each species.

  • Actions to avoid and minimise adverse impacts.

A fauna survey including active searching is required where either of the following apply:

  • Vegetation removal or destruction exceeds an area of 1000 square metres.

  • Species that are rare or threatened at the local, regional, state or national level are known or likely to be present at the site.

An arborist’s assessment of any trees which are proposed to be removed for safety reasons.

 

So pruning or removing native trees on the site was no simple matter.

However the history of this overlay, ES05, is interesting.

From what I can find out, it was officially put in place on 21 Feb 2013 (just some months ago) as part of the C54 amendment to the Manningham planning scheme. This was the culmination of a process that started several years before.

However, in 2011 the Manningham Council was in possession of a report telling them that this ESO over entire the golf course was totally unnecessary because of already existing policies. Also an ESO over the whole property would be strange in that it would be protecting non-native vegetation. The report recommended a more practical approach - to only cover the remnant native vegetation areas only:

"Manningham City Council proposes the C54 ammendment for a new Environmental Significance overlay – Schedule 5 to be placed over the whole golf course. The aim of the ESO would be to ensure that the development is compatible with the environmental constraints and values of a site. As native vegetation removal is covered by clause 52.17 the proposed ESO – schedule 5 is not deemed necessary for the Eastern Golf Couse site. This is because the specific policies clause 22.02 or the proposed amendment C86 would be considered where a permit is required under clause 52.17. Furthermore, the extent of the proposed ESO – schedule 5 would cover non-native vegetation which is not important for the ecological functioning of the native vegetation present. It is therefore suggested that the ESO – schedule 5 not be placed over the Eastern Golf Course. If however, the amendment is implemented, the extent of the ESO should be revised to reflect the biosite location and only cover the areas of native vegetation presented in Figure 1 as this is where the environmental constraints are located. This would ensure the integrity of the ecological values located in these areas of remnant vegetation."

- ("Eastern Golf Course Manningham Planning Scheme Amendment C54 2011, Brett Lane and Associates Pty Ltd". Pages 11 and 12.)

 

So what did our council do? In their environmental fanaticism, they placed  ESO5 over the entire 47 hectares!

Now, some months later, they have a problem. If they want to subdivide the eastern Golf course property they have to deal with their own environmental significance overlay. So what do they do?

 

This is where it gets interesting.

Mirvac approached the council and requested that the ESO be reduced to only those areas with remnant native vegetation, pretty much along the lines suggested in the 2011 report.

In the August 2012 meeting of council an Alternative  Recommendation was adopted to retain the ESO over the entire property but to amend it so that certain native trees could be removed. What the original recommendation was, I cannot find out. But apparently the original recommendation  did not have the approval of all the Councillors.

 

The Amended ESO Over the Golf Course.

So the Environmental Significance Overlay over the entire property golf course property is retained but is amended to allow for certain native trees to be removed.

 

Which native trees will be removed? 

There are some 531 'scattered trees' on the property (page iv "Flora, Fauna ..." report). These 'scattered trees' appear to be native trees. (See p15. Section 2.5.1.) Of these 531 trees, 427 scattered indigenous trees are going to be removed. (page ix).

It is true that many native trees will be planted to replace them. But the change in Manningham council's approach is interesting. 

Barely 6 months before, Manningham council was prepared to protect every native and every non-native tree on the property. Now, they are prepared to accept wholesale landscaping over much of the site (which is what is going to happen), provided native trees are planted to replace those removed. That is quite a change for Manningham council.

 

Also, under the plans, certain parts of remnant native Valley Heathy Forest (VHF) is to be removed. (See VHF1, VHF2, page 66, "Flora, Fauna and Net Gain Assessment for the Eastern Golf Club. Mirvac Ltd", July 2013). It comes to just under a hectare. This also is quite a change in approach.

I wonder if the previous owners wanted to develop the property by putting in roads, removing native remnant heathy forest, bulldozing native trees, would they have found the council as co-operative?

 

The Problem with the Amended Overlay.

If I may digress for a moment.

I can think of a question that will be important for future buyers under this alternative recommendation.

Under this alternative recommendation, if a future homeowner were to plant a tree that happens to be a native Victorian tree (other than one of the nine exempt native species) and later wants to remove or relocate it, they may need to prepare a 'tree retention plan' for the council or alternately apply to the council for a permit. (See 9.2 A)

This is because there does not appear to be allowance made under this alternative recommendation for native Victorian trees planted by future homeowners.

Alternately, if a future homeowner finds they have a remnant native tree on their property that they want to remove, they will need to get approval from the council. This could be a problem that future home owners will need to contend with.

 

Conclusion.

When land is in private hands, we are told that heritage sites and native vegetation are irreplaceable community assets that need to be carefully and tightly controlled by the council. There is no stopping the council when it comes to applying heritage and environmental overlays. And the council fanatically prosecutes all infringements to their overlays.

But when the council can use the same land to meet their own objectives, the once rigid council overlays can shrink and the council can become surprisingly accommodating and flexible. 

 

13 Nov 2013.

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