At its meeting on 26 April the Surf Coast Shire refused both the planning application to alter some of the conditions in the section 173 agreement protecting the Painkalac Valley, and the application to subdivide the largest and most southern block.
Once again the community demonstrated its passion for the valley by objecting to the applications. AIDA objected on behalf of its 400-plus members and it is interesting to note that about two-thirds of the remainder of the >120 objections were from people who are not AIDA members.
The sixty-day limit for an appeal to VCAT against the shire’s decision to refuse the applications is up on 25 June and we understand there will be no appeal.
A number of significant issues were raised through the planning application process, which we are now following up with our planning lawyer. These include the advice from the lawyer that many of the conditions in the Conservation Management Plan and Landscape Plan for the three blocks of valley land are not being met or enforced.
The incorporated association, The Painkalac Project, that was formed by AIDA and ANGAIR to investigate the potential to purchase the land through a public fundraising campaign will now reconvene to see if this plan can be progressed.
However, the AIDA committee has been informed that the owner of the three blocks on the valley is investigating the concept of building a house on each of the blocks and that he has been in discussion with a builder.
AIDA’s concerns about the best use of the valley land are underscored by the recent launch of the CCMA’s online flood portal. The map shows floods of a particular magnitude (or greater) that have a 1 per cent chance of occurring in any given year. Importantly the map is colour coded to indicate where there is detailed flood information. It appears that the valley land will be increasingly vulnerable.
The portal may be accessed at https://protect-au.mimecast.com/s/ EM1xBvSWZaDxiRdomain=ccmaknowledgebase.vic.gov.au
Update 27th April 2017: Painkalac Valley planning applications refused by Council at the Surf Coast Shire meeting April 26.
The officer reports recommended that the applications should be refused. This was agreed unanimously by Council without debate. Ward Councillor Margot Smith spoke passionately about the valley and it’s history. Our other Ward Councillor, Libby Coker, declared a conflict of interest and did not take part in the proceedings.
We encourage you to contact the Councillors if you wish to discuss these recommendations. It would be good if AIDA members who are available can be at the Council meeting at 6pm on the 26th April to show your support for this outcome.
The officers have recommended:-
That Council refuse to amend the Section 173 Agreement which applies to 23-79
Bambra Road, Aireys Inlet as:
1. There are no changes in circumstances to necessitate the amendment.
2. The purpose of the agreement and the reasons why Council entered into the agreement continue to
remain valid and seek a planning and environmental outcome which is supported by the Planning
3. The amendments sought have the potential to disadvantage persons who are not party to the
The officers also recommend that Council refuse the subdivision application on the following grounds:-
1. The subdivision is prohibited by the Section 173 Agreement which applies to the land and Council is
not inclined to amend the Section 173 Agreement to facilitate the subdivision of the land;
2. The variation of restriction would facilitate the subdivision of the land contrary to legitimate
expectations of affected people who have understood that the land cannot be further subdivided;
3. The subdivision of the land is contrary to orderly planning principles in that Crown land, a Council
reservation and a creek separate the two parcels of land; and
4. There is no direct legal point of access established to facilitate pedestrian, stock or vehicle
movement between the two parts of the proposed Lot 2.
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
We encourage you to attend this meeting to hear Council make its decision. Your presence will help demonstrate the community’s feeling.
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.
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.
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.
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.
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.
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.
The AIDA committee is aware of the community’s keen interest in proposals for the valley and members are continuing to contact us seeking information. We are committed to ensuring the valley, its wildlife, natural beauty and landscape remain protected.
AIDA members will be aware that there was an application made last year to subdivide the largest, most southern block on the Painkalac Valley currently used for horse grazing. 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 out for public comment from 16 to 30 January. AIDA is concerned that this application to subdivide the large southern title involves joining the private land on both sides of the creek into a single lot, which potentially impacts the Council owned conservation reserves along each side of the creek and the planned creek-side walking paths. AIDA wants to make sure that these walking tracks will still be made and that the community will have free access to them. AIDA would also like to understand whether there are other potential impacts on the creek environs and water quality.
In addition there is an application to amend three conditions of the Section 173 agreement between the Shire and the landowner over this and all of the Bambra Road valley land to its north. This agreement was signed in 2000 and strengthened with the addition of a conservation management plan in 2002 in accordance with a VCAT order, and provides for significant protection over the valley land. The Section 173 application, which is also out for public comment from 16-30 January, can be inspected at http://www.surfcoast.vic.gov.au/My_Property/Building_Planning/Planning/Applications_On_Public_Exhibition/23_Bambra_Road_Aireys_Inlet . It seeks to amend the agreement to :-
· allow the further re-subdivision of the land if no new lots are created
· allow the wall height of the buildings permissible on the three blocks to increase from 3 metres to 5 metres
· delete the clause prohibiting dogs from being kept on any of the three blocks on the valley
The AIDA committee has met a planning lawyer to seek advice about the application to amend the Section 173 agreement and will be making submissions to the Shire about both the subdivision application and the proposed amendments to the Section 173 agreement.
In the meantime, we encourage members to review the applications and to make their views known to the Shire.
We are also concerned about the subdivision’s associated proposal to join the private land on both sides of the creek into a single title and the potential impacts this would have on the planned walking paths on Council owned land along each side of the creek. We want to make sure that, if this proposal is approved, these walking tracks will still be made and that the community will have free access to them. We would also like to understand whether there are other potential impacts on the creek environs and water quality.
As you will be aware Council is in caretaker mode prior to the council elections and we have written to the Shire requesting that no decisions are made about this application before the new Council is elected.
The Painkalac Project
Over the past few months AIDA has been involved with The Painkalac Project which was investigating the possibility of fundraising to purchase the Painkalac Valley land to place it in public hands and to restore its wetlands.
While we still believe in the project it cannot be progressed as the largest block of the valley land is under contract to another purchaser subject to a subdivision application.
The concept of placing the valley into public ownership is well supported by many in the community.