REASONS FOR DECISION TO EXERCISE POWER OF INTERVENTION
UNDER SECTION 20(4) OF THE PLANNING AND ENVIRONMENT ACT 1987
East Gippsland PLANNING SCHEME AMENDMENT C130
The Planning and Environment Act 1987 (the Act), the Heritage Act 1995 and the Victorian Civil and Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in planning and heritage processes.
In exercising my powers of intervention, I have agreed to:
· Make publicly available written reasons for each decision; and
· Provide a report to Parliament at least every twelve months detailing the nature of each intervention.
REQUEST FOR INTERVENTION
1. The request for the Minister for Planning to intervene and prepare, adopt and approve East Gippsland Planning Scheme Amendment C130 was made by Debra Butcher Consulting Pty Ltd on behalf of Independence Stockman Project Pty Ltd.
WHAT POWER OF INTERVENTION IS BEING USED?
2. I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect to Amendment C130 to the East Gippsland Planning Scheme (the amendment).
1. Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations.
2. In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.
BACKGROUND
3. The amendment would facilitate a mining project (‘the project’), for the purpose of the East Gippsland Planning Scheme (‘the Scheme’).
4. The project relates to a mining licence located approximately 19 kilometres south-east of Benambra in East Gippsland. The project comprises the concurrent development of two underground mineral deposits, including the recommissioning of the Wilga mine and the development of a new Currawong mine.
5. On 16 August 2010, the Minister for Planning determined that an Environment Effects Statement (EES) was required for the project under the Environment Effects Act 1978 due to the potential for it to have significant environmental impacts.
6. Under section 42(7) Mineral Resources (Sustainable Development) Act 1990, planning permits are not required for the development and operation of the project within the mining licence area.
7. Outside the mining licence area, facilities and infrastructure are required, a number of which are prohibited under the current zoning controls. A draft planning scheme amendment was prepared (and exhibited in conjunction with the EES) to facilitate the use and development of those facilities and infrastructure associated with the project including:
a. A residential village to accommodate the mining workforce.
b. A car park in Benambra to provide a 'park and ride' facility for workers of the mine.
c. A borefield adjacent to Pattersons Lane near Benambra.
d. A water pipeline which, if required for the project, will run above ground along Limestone Road and McCallums Road (to the north and east of these roads within an 8 metre corridor), from the borefield to the mine site.
e. A power line which, if required for the project, will run underground down the middle of McCallums Road from the mine site to the residential village.
f. A telecommunications facility at the residential village site.
g. Localised widening of McCallums and Limestone Roads from the intersection of Limestone Road with Beloka Road and the mine licence area.
h. Vegetation removal.
8. The amendment affects several sites in Benambra including:
a. Crown Allotment 10 Section 4 Parish of Guttamurra comprising the north-west corner of the site at 2668 Limestone Road, Benambra.
b. Crown Allotments 3 and 4 Section 7A Township of Benambra, known as 2 Gibbo Street, Benambra.
c. Crown Allotment 6 Section 11 Parish of Hinno-Munjie comprising land adjacent to Pattersons Lane, forming part of 257 Limestone Road, Benambra.
d. Land along Limestone and McCallums Roads.
e. Land within and adjacent to Limestone and McCallums Roads from the intersection of Limestone Road with Beloka Road and the mining licence area.
9. Acombined Inquiry and Advisory Committee considered public submissions and the environmental effects of the proposal at public hearings in June 2014. The Inquiry and Advisory Committee’s report was provided to the Minister for Planning inSeptember 2014. In relation to the amendment, the Inquiry concluded:
‘The Inquiry considers the proposed amendment to allow mine tenement elements of the Project, (including the accommodation village, a car park in Benambra, linear infrastructure, the bore field and the removal of native vegetation) subject to conditions specified in an Incorporated document pursuant to Clause 52.03 of the planning scheme is appropriate. We have recommended some amplification of matters addressed in the incorporated document, such as in relation to bushfire risk, the Transport Management Plan and the management of amenity impacts from the car park in Benambra. Otherwise the Inquiry endorses the use of Clause 52.03 to facilitate elements of the Project and the scope of the associated Incorporated Document as exhibited.’
10. The recommendation of the Inquiry was assessed by the Minister in October 2014. The Minister concluded that the Project should proceed in accordance with his assessment and subject to the Inquiry recommendations. The Minister included a number of additional requirements that the incorporated document should include.
11. The incorporated document has been updated to address these requirements and respond to comments made by both the Inquiry Panel and Advisory Committee and the Minister.
12. The amendment inserts a new incorporated document titled Stockman Base Metals Project, April 2016 into the Scheme, to exempt use and development associated with the project from the need for a planning permit.
13. The changes to the Scheme include:
a. Amend the Schedule to Clause 52.03 ‘Specific Sites and Exclusions’.
b. Amend the Schedule to Clause 81.01 ‘Table of documents incorporated in this scheme’ to include the incorporated document titled Stockman Base Metals Project, April 2016.
Benefits of exemption
14. The main benefit of the exemption is that it would enable a prompt decision to be made in relation to the adoption and approval of the amendment, which will facilitate the project.
15. The grant of such an amendment would avoid a statutory notice process which may be regarded as unnecessary.
Effects of Exemption on Third Parties
16. The effect of the exemption is that third parties will not receive notice of the amendment and will not have the opportunity to make a submission or be heard by an independent panel in respect of the amendment.
17. However, notice of the amendment is unlikely to identify any new issues, or to be justified for any other reason, given that a draft of the amendment was exhibited as part of the EES for the project that was subsequently reviewed by a combined Inquiry Panel and Advisory Committee.
18. Extensive consultation was undertaken with relevant agencies through the preparation and exhibition of the EES. A number of those agencies, including Southern Rural Water and the Country Fire Authority, made submissions on the EES and appeared at the Inquiry Panel.
19. The recommendation of the Inquiry Panel and Advisory Committee was assessed by the Minister for Planning in October 2014.
20. The Inquiry Panel and Advisory Committee supported the amendment, as did the Minister in his assessment, subject to the inclusion of some additional requirements being included in the incorporated document. The incorporated document has been updated to address these requirements and to respond to the comments made by both the Inquiry Panel and Advisory Committee and the Minister for Planning.
21. The amendment is not expected to result in the need for any new referrals under section 55 of the Act.
22. It follows that the effect of the effect of the exemption on third parties may be regarded as quite limited, in practical terms. All affected persons have already had an exhaustive opportunity to participate in the decision-making process which has preceded the amendment.
Assessment as to whether benefits of exemptions outweigh effects on third parties
23. The benefits of the proposed exemption outweigh any effects on third parties given the extensive public process which has already occurred, and the limited effect that this exemption would have on third parties, in practical terms.
24. The proponent has consulted the relevant responsible authority, East Gippsland Shire Council regarding the planning scheme amendment provisions and the council has written to the Minister to confirm it is satisfied with the form and content of the amendment.
25. It is most unlikely that compliance with the usual statutory notice requirements would result in a substantively different outcome.
26. Accordingly I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act outweigh any effects of the exemption on third parties.
DECISION
27. I have decided to exercise my power to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of Amendment C130 to the East GippslandEast Gippsland Planning Scheme.
REASONS FOR INTERVENTION
28. I provide the following reasons for my decision to exercise my power under section 20(4) of the Act.
29. I am satisfied that -
Compliance with any of the requirements of sections 17, 18 and 19 of the Act and the regulations is not warranted because:
· The matter will give effect to an outcome where the issues have been reasonably considered and the views of affected parties are known.
· Further consultation is not likely to identify any new issues or give rise to a substantively different outcome.
SIGNED BY THE MINISTER
HON RICHARD WYNNE MP
Minister for Planning
Date: 19 April 2017