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REASONS FOR DECISION TO EXERCISE POWER OF INTERVENTION

UNDER SECTION 20(4) OF THE PLANNING AND ENVIRONMENT ACT 1987

Ararat PLANNING SCHEME AMENDMENT C37

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 identified powers under each Act, 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 decision.

REQUEST FOR INTERVENTION

  1. Mr John Merritt, Chief Executive, VicRoads, has requested that I prepare an amendment to the Ararat Planning Scheme (Amendment C37), and exercise my power under Section 20(4) of the Act in respect of that Amendment, to enable VicRoads to use and develop land for Section 2B (Ararat to Buangor) of the Western Highway Duplication Project (without the need for a permit).

DECISION

  1. Section 20(4) of the Act enables me, as the Minister for Planning, to exempt an amendment which I have prepared from any of the requirements of sections 17, 18 and 19 of the Act and the regulations, if I 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.
  2. Having prepared Amendment C37 (the Amendment) to the Ararat Planning Scheme, I have decided to exercise the power under s 20(4) of the Act to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations with respect to the Amendment.

The Amendment

  1. The Amendment introduces an incorporated document into the Ararat Planning Scheme (Western Highway Project Section 2B (Buangor to Ararat), Incorporated Document, June 2017).
  2. The Amendment, once approved, will amend the Ararat Planning Scheme to allow for the use and development of land forSection 2Bwithout the need for a planning permit, in accordance with the terms of the Incorporated Document.
  3. The Incorporated Document, as prepared, contains a number of conditions, relating to construction and environmental management, native vegetation management and offsets, threatened species and groundwater.
  4. The Amendment, as prepared, reinserts into the scheme an Incorporated Document to replace an expired Incorporated Document to largely the same effect. The current Incorporated Document has some refined, and stricter, conditions than the expired Incorporated Document.

Material Considered

  1. I have had regard to the following:

8.1Correspondence and attachments from VicRoads (dated 2 June 2017) Re Western Highway Project – Stage 2B Request for Planning Minister Approval of Planning Scheme Amendment

8.2Supplementary correspondence and attachments from VicRoads (dated 8 November 2017) Re Request for Planning Minister approval of planning scheme amendment

  1. In addition to the material provided to me by VicRoads, I have also had regard to the Amendment (as prepared), relevant provisions of the Act, and advice from my department in the form of a Ministerial brief. I have specifically had regard to the following documents (being attachments to that brief):

9.1Documents comprising proposed Amendment C37, [including an incorporated document prepared by my department containing material amendments from that submitted by VicRoads]

9.2Officer Amendment Report

9.3Ararat Rural City Council Meeting – Tuesday 18 July 2017, 9 Officers Reports

9.4Correspondence from Ararat Rural City Council Re: Ararat Planning Scheme Amendment C37 – Western Highway Duplication Section 2B (Buangor to Ararat)

9.5Correspondence from Aboriginal Victoria to VicRoads (dated 15 November 2017) Re Reported Possible Aboriginal Places, Western Highway Duplication at Buangor and Dobie

  1. While the decision under s 20(4) is wholly a matter for me, on advice from my Department, I have had particular regard to information provided by VicRoads about road related matters, as the State body vested with the responsibility to provide, operate and maintain Victoria's road system.

Context

The Project

  1. The Western Highway is the principal road connection between Melbourne and Adelaide. It provides the most critical road link between the eastern seaboard and South Australia and Western Australia. It also provides critical connections between towns includingBallarat,Ararat,StawellandHorsham, which are major agricultural and manufacturing centres.
  2. The Western Highway is the busiest undivided National Highway in Australia in terms of freight movements, with a rapidly increasing proportion of heavy vehicle traffic that is projected to double by 2025.
  3. The Western Highway is being progressively upgraded between Ballarat and Stawell to provide for a safer and more efficient four-lane divided road, as part of a project known as the Western Highway Duplication Project (Project). The Project has proceeded to date as follows:

13.1Section 1 (between Ballarat and Beaufort) was completed in May 2015.

13.2Section 2 - including Section 2A (between Beaufort and Buangor), the Buangor bypass and Section 2B (between Buangor and Ararat) - was assessed through an Environmental Effects Statement (EES) (as set out in more detail below).

13.3Section 2A was completed in November 2016. The Buangor Bypass has also been completed.

13.4Section 2B is the subject of this further Amendment.

13.5Section 3 (between Ararat and Stawell) has been through an EES process.

  1. The Project is a state significant project that was identified in the Victorian Transport Plan 2008. $505 million has been allocated to the Project so far. $97.3 million of Commonwealth funding has been received for Section 2B alone.
  2. Section 2B of the Project forms a critical linkage between the constructed sections of the Project (Sections 1 and 2A) and Section 3.

Prior Environment Effects Act 1978 process

  1. Section 2 (including Sections 2A, Buangor bypass and Section 2B) was subject to assessment under the Environment Effects Act 1978 (EEAct). The process consisted of the following key steps:

16.1On 27 October 2010, the then Minister for Planning decided that an EES was required for the Project under section 8B(3) of the EE Act

16.2In the period through to August 2012, the Roads Corporation prepared its draft EES.

16.3On 28 or 29 August 2012, a delegate of the Minister authorised the public exhibition of the draft EES (with minor modifications) as the EES for the Project.

16.4Between 14 September 2012 and 25 October 2012, the EES was on public exhibition.

16.5On 2 November 2012, the Minister approved the terms of reference for the “Western Highway Project Section 2 Inquiry and Advisory Committee” which he appointed under s 9 of the EE Act and s 151 of the Act.

16.6Over 3 days in December 2012, the Inquiry Panel received 23 submissions and held public hearings in Beaufort (and also visited the site).

16.7On or about 11 February 2013, the Inquiry submitted its report to the Minister and provided a copy to the Department (Inquiry Report).

16.8In May 2013, the Minister assessed the environmental effects of the works under the EE Act (Minister's Assessment).

16.9The Minister’s Assessment and Inquiry Report were published on the Department's internet site, on or shortly after 17 May 2013.

  1. Relevantly, for the purposes of the EES process, VicRoads conducted extensive investigations to find the most appropriate route for Section 2 of the duplication. The EES process identified the Section 2 alignment, consistent with the Amendment, as the alignment with the least overall environmental impact.
  2. The Inquiry Panel report contained a number of recommendations, including in relation to the preferred alignment for Section 2. The alignment recommended by the Inquiry Report was supported by the Minister’s Assessment.

Issue arising with prior EES

  1. The EES was based on a Biodiversity and Habitat Impact Assessment Report prepared by Ecology and Heritage Partners (which formed Technical Appendix H to the EES). The advice, with respect to impact on Large Old Trees, was that 221 Large Old Trees were required to be removed for the alignment ultimately recommended.
  2. In May 2014, it became apparent that the EES substantially understated the number of Large Old Trees likely to be impacted by the works, including the Section2B works. VicRoads has identified that the error was caused by the methodology employed by its consultant (Ecology & Heritage Partners) that extrapolated Large Old Trees within similar habitat zones to estimate the total number, rather than survey of each of the habitat zones.
  3. VicRoads revised the expected impact to 1350 Large Old Trees, based on the same project footprint, after the error was brought to its attention by members of the community and environmental groups.
  4. The incorrect advice with respect to impact on Large Old Trees was inadvertently adopted and replicated in the Inquiry Report and the Minister's Assessment (the error not being known at the time). As a result:

22.1The EES process - including the Inquiry Panel report and the Minister's Assessment - cannot be wholly relied upon as an accurate and up to date assessment of the environmental impact of Section 2B works with respect to Large Old Trees.

22.2The balance of the EES, and the resulting Inquiry Report and Minister's Assessment, remain well founded (acknowledging that broader recommendations were likely affected by the error as to Large Old Trees).

  1. VicRoads has provided an updated assessment of social, environmental and economic matters to reflect current conditions and the most up-to-date information available. The updated material includes a new assessment of impacts on native vegetation, including Large Old Trees, that is based on sounder methodology.
  2. The Incorporated Document requires VicRoads to further minimise native vegetation removal within the existing Public Acquisition Overlay. Since the initial approval, VicRoads has progressed concept designs for the project and through this process has been able to demonstrate a reduction in impact e.g. through the use of wire rope barriers that allow vegetation to be retained closer to the Highway. These measures will be captured in the submission of a native vegetation management plan required by the incorporated document.

Further community consultation

  1. VicRoads' community consultation since the EES has included the following:

25.1Establishment of two community groups, the Environmental Community Group (ECG) and a Community Consultation Group;

25.2Advance notice about intended vegetation clearing and tree removal;

25.3Widely publicised community consultation sessions in Ararat, Buangor, Great Western and Ballarat;

25.4Publication and circulation of materials including computer animation to show the completed highway and its impact, information bulletins and website updates;

25.5Commissioning and presentation to the ECG of a detailed tree register;

25.6Extensive tours for the ECG of the proposed alignment;

25.7Meetings with affected landowners and occupiers that have shown particular concern about the project.

  1. VicRoads' advises that its feedback indicates that, while there remains some opposition to Section 2B on environmental grounds, stakeholders are mostly satisfied with the initial EES process and the subsequent additional efforts made by VicRoads to address the community’s concerns.
  2. VicRoads continues to run community meetings, offer individual meetings, and has expanded its area of advertising and information distribution to ensure it captures a wide community view.

Amendment C27 to the Ararat Planning Scheme

  1. On 31 October 2013, the then Minister for Planning approved Amendment C27 to the Ararat Planning Scheme.
  2. Amendment C27 applied the Public Acquisition Overlay (PAO) to reserve land for the project, and allowed the use and development of land through the use of an incorporated document ('Western Highway Project: Section 2 - Beaufort to Ararat, Incorporated Document') (2013 Incorporated Document).
  3. The 2013 Incorporated Document did not include an expiry date. As a result, by operation of clause 52.03 of the Scheme, the controls expired if the development was not completed within one year of the date of commencement of works.
  4. The 2013 Incorporated Document has expired. VicRoads advises that the control likely expired between January and June 2015, based on its estimate of when the works relying on the Incorporated Document commenced.
  5. VicRoads did not become aware of the expiry until February 2017. VicRoads could have requested an extension prior to, or within 3 months of, the expiry date, but did not do so. VicRoads advises that the 2013 Incorporated Document expired as a result of an administrative oversight on its part.
  6. VicRoads undertook works in the intervening period, purportedly relying on the 2013 Incorporated Document, without realising that the Incorporated Document had expired. Some of those works may have been inconsistent with the planning scheme.

Benefits of the project generally

  1. The EES identified a number of important overall benefits associated with the broader Project in terms of the community, freight industry and the state, being:

34.1providing safer conditions for all road users by:

(a)reducing the incidence of head-on and run-off road crashes

(b)improving safety at intersections

(c)improving safety of access to adjoining properties

34.2improving efficiency of freight by designing for High Productivity Freight Vehicles;

34.3providing adequate and improved rest areas; and

34.4locating the alignment in a way that allows for possible future bypasses and upgrades.

  1. VicRoads also advises that if Section 2B is not re-authorised under the Planning Scheme, this will result in:

35.1Approximately $8.8 million already spent on Section 2B being lost. While some of these costs may have been expended or incurred in undertaking works after the 2013 Incorporated Document had expired, most relate to costs that were properly and lawfully incurred without reliance on the 2013 Incorporated Document (such as land acquisition and project planning costs).

35.2A lack of realisation of the expected benefits of Section 2B, being:

(a)Increased commercial and industrial activity, including increases in capacity and speeds;

(b)Increased employment opportunities in regional Victoria, including 120 FTE jobs that would be created for the 18-24 month duration of the construction of Section 2B;

(c)Greater transport network efficiency, leading to greater tourism opportunities and more efficient freight movements; and

(d)Increases in safety due to the reduction of possible conflicts and upgrade of the road.

Benefits of exemption

  1. The main benefit of the exemption is that it will enable a prompt decision to be made on the adoption and approval of the amendment. Following the usual process may mean that Stage 2B of the project is delayed by a further 12-18 months.
  2. Exempting the amendment from the requirements of sections 17 to 19 of the Act and the regulations will mean the significant benefits of the projects will be able to be delivered sooner, and the significant safety and economic consequences of further delay will be avoided, including:

37.1Safety benefits: an estimated 60 per cent reduction in people involved in crashes (potentially avoiding an estimated 4 people involved in accidents over an average 18 month period); and

37.2Economic benefits: an increase in highway capacity and speed limits, and the minimisation of travel delays, will assist the movement of freight and have positive economic consequences.

  1. An exemption from the usual notice requirements will assist in the realisation of benefits associated with the works already completed for Sections 1 and 2A, and also facilitate further works necessary to complete the Project within a reasonable period.

Effects of exemption on third parties

  1. The main 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 relation to the Amendment.
  2. The new Incorporated Document will apply to VicRoads land, and does not directly affect private land. VicRoads has already acquired the Section 2B land (and the PAO was unaffected by the expiry of the Incorporated Document). Development and use of that land will still have effects on adjacent landowners.
  3. The effect on third parties of not having that opportunity is mitigated to some extent by the earlier EES process, noting:

41.1All affected persons at that time had an opportunity to make submissions, which were considered by the Inquiry Panel (being also an Advisory Committee under the Act).

41.2The EES process was some years ago, and proceeded on the basis of inaccurate information about the effect on Large Old Trees, so is not an adequate replacement for the planning process for this Amendment.

41.3However, the error in the earlier EES is not the reason why this Amendment is required (being the expiry of the 2013 Incorporated Document). If not for that expiry, the works would have been able to proceed without a further planning process.

  1. Community consultation since then has provided some opportunity for newly affected parties and new views to be expressed to VicRoads. However, VicRoads' informal consultation did not concern the Amendment directly, is not equivalent to a panel process, and has not resulted in a report to me about community submissions on planning matters.
  2. Some people affected by the Amendment have requested the usual process be followed.Certain persons seek an opportunity to make further submissions about route selection. Even if the usual process was followed under the Act, submissions are properly about the prepared Amendment. The process is concerned (broadly described) with whether or not to authorise the use and development the land to which the Incorporated Document will apply, and on what terms (not with VicRoads' route selection or preferred road network solution per se).

Other effects of exemption

  1. If the Amendment followed the usual planning processes, in considering whether to adopt and approve the amendment, I would have the benefit of third party submissions and a Panel report.
  2. Given the circumstances, particularly the passage of time, the error with the EES process, the expiry of the Incorporated Document (and the resulting possibility that the scheme may have inadvertently been breached), I understand that the exemption will be contrary to the wishes from at least some parts of the affected community to have a further say in the planning process.

Reasons for decision

  1. I have decided to exercise my power under s 20(4) of the Act to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of Amendment C37 to the Ararat Planning Scheme.
  2. I have decided to exercise the power under s 20(4), in the following manner:

47.1In considering whether the interests of Victoria or part of Victoria makes the exemption appropriate, I have weighed all relevant matters of which I am aware.

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