FISH Creek property owner Bruce Thompson says he and his wife Sue Rivers were led to believe South Gippsland Shire Council planning staff would recommend approval of their application for a combined winery and residence at 570 Soldiers Road, if they adapted their plans to meet specific written recommendations, arguing council reneged on its commitment.
At May’s public council meeting, councillors voted to issue a Notice of Refusal for the use and development of the land for the specified purposes, therefore denying a permit for the intended project, with that decision consistent with the recommendation before them.
Mr Thompson provided the Sentinel-Times with a copy of a letter written by a shire Senior Statutory Planning Officer, which he says is evidence the couple were led to believe that if they altered plans as requested, council staff would recommend approval of their application.
The letter, which also refers to a fellow council officer, was sent to the couple’s planner, Alison Milner of Milner Planning Advisory, after their permit application was advertised.
It read:
Hi Alison,
Thank you for meeting us on site last week, it was very beneficial to see.
The officer (name removed) and myself have discussed the application in detail and for Council to recommend approval for the application, the following changes to the plans are required:
Staging plan amended so that vineyards are planted and established on site and the manufacturing shed constructed and completed prior to the dwelling being occupied.
The proposed dwelling is amended to a single storey form with a maximum roof/apex height that is no taller than the maximum height of the buildings on the neighbouring lot to the east of the subject site. It is recommended that a streetscape elevation of the subject site and the neighbouring lot is provided with a perspective shown from the public realm (Soldiers Road).
South Gippsland Shire Council CEO Kerryn Ellis concedes the wording of such letters may require tweaking in future but disputes the applicants’ argument that it was a guarantee the application would be recommended for approval if the specified advice was followed.
She said it is common practice for would be applicants coming to council to be encouraged to meet with planners prior to submitting an application, with the intention being to help people lodge the best quality application possible and to enable them to understand any potential issues or hurdles.
“That certainly does not mean that there’s any guarantee that the application will be approved,” Ms Ellis said.
Asked specifically about the letter, Ms Ellis stated her position.
While she said she wouldn’t address the planning advice provided as she is not a planner, the CEO discussed the sentence that included, ‘For Council to recommend approval for the application, the following changes to the plans are required’.
“The way I interpret that sentence is for it to even be considered for approval you would need to address these things; I don’t think the intent is to say there is any guarantee that the application would be approved,” Ms Ellis said.
“I think it’s more than reasonable that the planner has pointed out to them what the concerns are with the application that was originally submitted.”
Ms Ellis stressed that the letter should not be viewed in isolation.
“There have been many conversations between our planning staff and the applicants, so lots of advice had been provided to make it clear that there were a number of concerns with the application,” she said.
Principal of S & K Planning Lawyers Megan Schroor, acting on behalf of the applicants, argues in a letter to council that her clients acted on all advice provided by council officers, adjusting the design of the building and the staging plan as requested.
“To learn now that Council’s planning officers have recommended that their application be refused on grounds which they had understood had been resolved to the officers’ satisfaction some time ago is not only disappointing but has resulted in our clients incurring significant additional costs,” Ms Schroor states.
She said those costs arose through responding to the officers’ specific concerns, on the explicit understanding that addressing those concerns would lead to a recommendation of support.
Ms Ellis said the applicants were familiar with the planning process, having had a previous permit application for a similar project denied by VCAT and that all factors needed to be considered before council officers could make a recommendation.
“The applicants have 60 days from the date of the Notice of Refusal to appeal the decision at VCAT.
Shire disputes accusation of discrimination
South Gippsland Shire Council is adamant discrimination was not a factor in its decision to issue a Notice of Refusal for the use and development of land at 570 Soldiers Road Fish Creek for a winery and dwelling, after councillors voted last month to support a recommendation not to approve the planning application.
While councillors and council staff consider a dwelling is not required to operate the proposed winery, Melbourne scientist Bruce Thompson and his psychologist wife Sue Rivers have since lashed out at council through an article in the Herald Sun.
In it they argue Ms Rivers, who is confined to a wheelchair, would need to be able to stay on the property overnight due to an unspecified condition.
“My condition includes significant fatigue, and being able to reside there is critical to managing myself as well as the farm,” Ms Rivers is quoted as saying.
In the article, Mr Thompson unleashes on council, saying it “knowingly discriminated against a person with a disability”, and he repeated that claim during an interview on ABC Gippsland radio.
South Gippsland Shire Mayor Nathan Hersey spoke to the Sentinel-Times about the recent planning decision process followed by the current council in deciding to issue a Notice of Refusal.
“We don’t look at who the applicant is; we look at the merits of the application,” Cr Hersey said.
Council has expressed concerns about two partially constructed buildings on the property.
It deems both buildings, constructed by the current landowners who have owned the property for nine years, to now be ‘illegal’ due to planning and building permits having expired.
A permit was granted in February 2015 for development of the land for two agricultural buildings and associated works, with an 18-month extension of time given in March 2017 allowing the development to start by August 2018.
Council states that while construction began prior to that date, it was not completed by February 2020 as required, resulting in the expiration of the planning permit.
Mr Thompson acknowledges that, saying life circumstances changed causing a delay in completing construction, arguing that does not make the buildings illegal.
Furthermore, council stresses that while both buildings were approved as farm sheds only, work was carried out on one for it to be used as a dwelling.
Mr Thompson argues that is not the case despite the building’s large number of windows and timber floor.
A previous permit application for a dwelling and winery, deemed similar to the recent one, was lodged with council in early 2020.
A Failure to Determine appeal was subsequently lodged with VCAT by the landowners, with that body deciding not to grant a permit.
A new permit application was allowed due to differences including additional information concerning the feasibility of using the site for a vineyard and a staging plan seeking to commence use of the dwelling after the establishment of the vineyards, as well as alterations to the dwelling design.
“We are working within the South Gippsland rules and also the planning scheme that we have in place,” Cr Hersey said on ABC Radio.
“The scheme is in place in the way that it is to protect agricultural land for agricultural use and in this instance it was assessed against that criteria, meaning it was determined the primary use of the land was not for agriculture but rather a lifestyle dwelling.
“This proposal did not demonstrate that there was a need to live on site.”
In the past, South Gippsland Shire Council had planning powers removed by then Planning Minister Justin Madden, which was in part due to council approving residential developments in the Farm Zone.
“Council is committed to adhering to the scheme and making consistent decisions that will help to ensure the security of our largest industry and export (provider), farming,” council CEO Kerryn Ellis said.
However, Mr Thompson argues planning policy should be viewed in a less rigid fashion.
Council’s Planning Delegation Report, prepared in relation to the latest planning permit application, outlines the rationale behind councillors receiving a recommendation to vote against approving the proposal.
The landowners’ failure to demonstrate a commitment to establishing a vineyard is highlighted in the report.
