Barragunda. A Brewery in the Green Wedge
The $6.8 million development includes a restaurant, function centre, brewery and plant nursery.
Approval for the development, by the Colonial Leisure Group was been recommended by shire planner Sotirios Katakouzinos even though he concedes that it doesn't conform to the definition of a micro-brewery, allowed under Green Wedge planning rules and passed on October 17 by council voting 8-2 with only Crs Leigh Eustace and Tim Rodgers voting against
Local group the Friends of Cape Schanck have strongly opposed this development from the beginning
Approval for the development, by the Colonial Leisure Group was been recommended by shire planner Sotirios Katakouzinos even though he concedes that it doesn't conform to the definition of a micro-brewery, allowed under Green Wedge planning rules and passed on October 17 by council voting 8-2 with only Crs Leigh Eustace and Tim Rodgers voting against
Local group the Friends of Cape Schanck have strongly opposed this development from the beginning
An alternative view
Doubles all round! But brewery decision might come back to haunt the shire
COMMENT David Harrison
Were councillors fully informed before making their decision in the Cape Schanck brewery application, heard on Monday night?
One major – indeed crucial – consideration missing from the officer’s report was the “in conjunction with” rule that applies to many non-agriculture uses of Green Wedge land.
It was not mentioned in discussions at the meeting on this extremely contentious matter, which councillors approved by a large majority.
The rule is contained in the Mornington Peninsula Planning Scheme at clause 64.02. It states:
“If a provision of this scheme provides that a use of land must be used ‘in conjunction with’ another use of the land:
* there must be an essential association between the two uses; and
* the use must have a genuine, close and continuing functional relationship in its operation with the other use.”
Shire planners frequently refer to the clause in Green Wedge-related applications. It is surprising councillors apparently were unaware of it.
The rule is also covered extensively by the large law firm Phillips Fox in a Planning Bulletin. It states:
“A number of uses are prohibited in Green Wedge ... unless the use is undertaken ‘in conjunction with’ another use. ... the meaning of the words ‘in conjunction with’ are crucial in determining a landowner’s ability to develop Green Wedge ... land.”
Phillips Fox draws on several VCAT cases, some of them involving Mornington Peninsula Shire, to illustrate and expand on the “in conjunction with” rule.
In one, it ruled that “...in an operational sense there is no essential or intrinsic association between a vineyard on the one hand and a restaurant on the other hand, and yet these are uses that clearly the planning scheme anticipated can and should occur in association”.
Relevant to the brewery case is Neve & Ors v Macedon Ranges Shire Council, where the tribunal expands on the rule. Phillips Fox remarked: “When considering the ‘essential association’ the Tribunal found that it requires a nexus with the permitted use that includes:
* A required or necessary link(s) between bona fide activities;
* A demonstrable, rather than speculative, link(s) between uses;
* A link(s) of substance not of minor, token or tenuous association; and
* An association with the permitted use from inception.”
The Colonial Brewery plan is for a restaurant-function centre, a plant nursery and brewery. The brewery will use hops and barley grown on the land. It is believed a crop has been planted.
First, the “required or necessary link” does not yet exist at the property, so it cannot yet be claimed the link is “bona fide”.
Second, and similarly, it cannot yet be ascertained whether the link is “speculative”, since it is not yet known whether either the hops or barley Colonial plans to grow will thrive among the Cape Schanck sand dunes.
Further to that point, Colonial has told the shire it will not produce all the grain or hops it needs – some 40 per cent of the barley and some 20 per cent of the hops mustbe trucked in, as will sugar and yeast.
Third, whether the link will be substantial, or “minor, token or tenuous” cannot be known for several years, until when – and if – the crops prove viable.
Fourth, VCAT stipulated that the required or necessary link must exist “from inception”. That is not the case at Cape Schanck: the soil is indifferent, the crops are not a proven success, as are grapes at the time vignerons apply for a restaurant.
This raises an interesting question for shire bureaucrats and councillors eager to open the Green Wedge for business: what happens if the crops fail to live up to expectations?
Colonial will have a brewery, built at a cost of millions, which has no “required or necessary link” with agriculture, as stipulated by the State’s and shire’s, planning schemes.
Would the shire be obliged to close the brewery and restaurant-function centre, or would it quietly permit Colonial to truck in all its brewery needs?
It’s a dilemma that could drive a man (or woman) to drink.
COMMENT David Harrison
Were councillors fully informed before making their decision in the Cape Schanck brewery application, heard on Monday night?
One major – indeed crucial – consideration missing from the officer’s report was the “in conjunction with” rule that applies to many non-agriculture uses of Green Wedge land.
It was not mentioned in discussions at the meeting on this extremely contentious matter, which councillors approved by a large majority.
The rule is contained in the Mornington Peninsula Planning Scheme at clause 64.02. It states:
“If a provision of this scheme provides that a use of land must be used ‘in conjunction with’ another use of the land:
* there must be an essential association between the two uses; and
* the use must have a genuine, close and continuing functional relationship in its operation with the other use.”
Shire planners frequently refer to the clause in Green Wedge-related applications. It is surprising councillors apparently were unaware of it.
The rule is also covered extensively by the large law firm Phillips Fox in a Planning Bulletin. It states:
“A number of uses are prohibited in Green Wedge ... unless the use is undertaken ‘in conjunction with’ another use. ... the meaning of the words ‘in conjunction with’ are crucial in determining a landowner’s ability to develop Green Wedge ... land.”
Phillips Fox draws on several VCAT cases, some of them involving Mornington Peninsula Shire, to illustrate and expand on the “in conjunction with” rule.
In one, it ruled that “...in an operational sense there is no essential or intrinsic association between a vineyard on the one hand and a restaurant on the other hand, and yet these are uses that clearly the planning scheme anticipated can and should occur in association”.
Relevant to the brewery case is Neve & Ors v Macedon Ranges Shire Council, where the tribunal expands on the rule. Phillips Fox remarked: “When considering the ‘essential association’ the Tribunal found that it requires a nexus with the permitted use that includes:
* A required or necessary link(s) between bona fide activities;
* A demonstrable, rather than speculative, link(s) between uses;
* A link(s) of substance not of minor, token or tenuous association; and
* An association with the permitted use from inception.”
The Colonial Brewery plan is for a restaurant-function centre, a plant nursery and brewery. The brewery will use hops and barley grown on the land. It is believed a crop has been planted.
First, the “required or necessary link” does not yet exist at the property, so it cannot yet be claimed the link is “bona fide”.
Second, and similarly, it cannot yet be ascertained whether the link is “speculative”, since it is not yet known whether either the hops or barley Colonial plans to grow will thrive among the Cape Schanck sand dunes.
Further to that point, Colonial has told the shire it will not produce all the grain or hops it needs – some 40 per cent of the barley and some 20 per cent of the hops mustbe trucked in, as will sugar and yeast.
Third, whether the link will be substantial, or “minor, token or tenuous” cannot be known for several years, until when – and if – the crops prove viable.
Fourth, VCAT stipulated that the required or necessary link must exist “from inception”. That is not the case at Cape Schanck: the soil is indifferent, the crops are not a proven success, as are grapes at the time vignerons apply for a restaurant.
This raises an interesting question for shire bureaucrats and councillors eager to open the Green Wedge for business: what happens if the crops fail to live up to expectations?
Colonial will have a brewery, built at a cost of millions, which has no “required or necessary link” with agriculture, as stipulated by the State’s and shire’s, planning schemes.
Would the shire be obliged to close the brewery and restaurant-function centre, or would it quietly permit Colonial to truck in all its brewery needs?
It’s a dilemma that could drive a man (or woman) to drink.
