New port zone for Geelong, Hastings and Portland

In brief

A new 'Port Zone' has been applied to three major Victorian ports, at Geelong, Hastings and Portland, with announcements that it will make it easier for port operations to expand. The Port of Melbourne, however, is not included in the new zone, consistent with the State Government's intention to develop the site for alternative commercial uses in the medium term. Managing Associate Meg Lee and Lawyer Emily Johnstone report.

Background

A new Port Zone has been implemented for three Victorian ports, with the purpose of protecting existing ports and making way for operations to expand. Planning Scheme Amendment VC112 was approved by the Minister for Planning, Matthew Guy, in early September and was gazetted on 2 October 2014.

The Amendment has been a long time coming, following the appointment in September 2009 of the Ports and Environs Advisory Committee (the Advisory Committee), the release of its discussion paper in 2010¹, extensive public hearings, and the release of its Final Report later in 2010² recommending a new Port Zone and a new Port Environs Overlay. 

While an initial response to the Advisory Committee Report came in the form of Amendment VC94 in 2012 to include some limited State policy changes and other local amendments to areas surrounding each port (including application of the existing Environmental Significance Overlay (ESO) to areas surrounding the ports, rather than creating a new Port Environs Overlay), there has been a two-year hiatus in implementing the other recommendations of the Advisory Committee. The approach taken in VC112, however, departs in several respects from the recommendations of the Advisory Committee and, indeed, from the then-Minister's initial response in 2012³ to the Advisory Committee Report. 

The Amendment

The Amendment replaces a range of schedules to the Special Use Zone in each scheme that previously applied to land owned and operated by a port manager and introduces a new Clause 37.09 'Port Zone' into the Victorian Planning Provisions, and, more specifically, into the Greater Geelong, Mornington Peninsula and Glenelg Planning Schemes. 

The new Port Zone has been applied to land and waters in three major Victorian ports at Geelong, Hastings and Portland as follows:

• Glenelg: Rezones land formerly zoned Special Use Zone (Schedule 4) to the new Port Zone and further rezones land adjacent to Canal Court, owned and operated by the Port of Portland, from Industrial 1 Zone to the new Port Zone.
• Greater Geelong: Rezones land and water adjacent to the Port of Geelong and Point Henry pier from Special Use Zone (Schedule 6) to the new Port Zone, as well as rezoning some Public Park and Recreation Zone and Public Conservation and Resource Zone to the new Port Zone. The Amendment also changes the boundary of the Planning Scheme at Point Henry and updates references in the Local Policy to zoning of the port.
• Mornington Peninsula: Rezones the Special Use Zone (Schedule 1) land. Rezones land owned and operated by the Port of Hastings Development Authority, as well as loading dock areas owned and operated by Bluescope Steel (the declared Port Manager).

The application of the new Port Zone to the additional land beyond the previously existing Special Use Zone areas will assist these ports to expand their operations into these new areas.

Interestingly, despite earlier announcements that a new zone would be applied to the Port of Melbourne⁴, the zone has not been applied to that land at this stage, although little explanation has been given as to why not⁵. Obviously the fact that the State Government is currently going through a tender process to lease the Port of Melbourne for the medium term and then to redevelop the land is the reason the Port has not been treated in the same way as the other ports. While investors in the Port of Melbourne may initially be frustrated that the new zone hasn’t been applied to the site, given the intention to continue to operate the port in the medium term, after comparing the existing Special Use Zone (Schedule 4) (SUZ4) that applies to the Port of Melbourne to the new Port Zone, there is very little material difference. 

Our analysis shows that the Table of Uses in the SUZ4 of the Melbourne Planning Scheme is largely the same as the new Port Zone Table of Uses. In fact, the SUZ4 permits a wider range of uses without the need for a permit, including pleasure boat facilities, service stations, mining/mineral exploration and telecommunications facilities. One possible limitation on the Port of Melbourne that doesn't apply in the new Port Zone is that 'office' use is permitted with a permit only up to 500sqm, whereas in the Port Zone it still requires a permit, but there is no limit on the floor area; however, it must be associated with port operations. We do not expect that this will be a material limitation on the Port of Melbourne operations.

One notable difference, however, is that the Port Zone provides for an exemption from third party notice and review rights in relation to permits for section 2 uses in the Table of Uses, whereas the current SUZ4 does not have this exemption.  

Of note, 'as-of-right' uses in section 1 of the Table of Uses in both the SUZ4 and the new Port Zone need to comply with buffer distances set out in clause 52.10 of the Victorian Planning Provisions. 

The other main difference between the SUZ4 and the Port Zone is that subdivision is only permitted in the Port of Melbourne if the land is to be used for an approved port-related use, whereas under the new Port Zone, subdivision is permitted without this express restriction, although the decision guidelines include consideration of whether the proposed subdivision is consistent with the relevant port development strategy and the ability of the land as subdivided to accommodate future port-related uses.

Where a planning permit is required for section 2 uses under the Port Zone, the responsible authority will be required to take into account a range of matters, including:

• consistency with the relevant Port Development Strategy and its precincts;
• the effect on sensitive uses on adjacent land;
• the effect on environmental values of adjoining land and port waters;
• visual and built form impacts of proposed buildings and works; and
• traffic implications on the surrounding road network.

Again, these are essentially the same matters required to be considered under the SUZ4 for the Port of Melbourne.

Other existing controls

As noted above, an earlier series of amendments in 2012, VC94 and local amendments (such as C125 Melbourne Planning Scheme), in response to the Advisory Committee Report included:

• the application of the ESO to selected areas around the four ports (including the Port of Melbourne), with the aim of minimising future land use conflicts between a port and port environs, and to require that a permit be obtained for any sensitive uses within the overlay area and to require consideration of whether or not the proposed use would impede the operations of the port in the future;⁶ and
• the publication of Ministerial Direction No.14, which provides that planning scheme amendments should avoid the establishment of sensitive land uses in areas adjacent to the four operating ports (again, including the Port of Melbourne).⁷ The Ministerial Direction requires that any planning scheme amendment in the area mapped for each port in the schedule to the Direction has regard to protecting the operations and development of the port from the encroachment or intensification of sensitive uses.

These 2012 controls remain in place and are complimentary to the new Port Zone and at least provide some protection to the Port of Melbourne in the short term from encroachment, even though it was not included in the new Port Zone.

The wash-up

The implementation of the Port Zone follows a period of extensive consultation, but also uncertainty for port operators. The new Zone seeks to acknowledge and protect the key role that the three non-CBD ports play in supporting Victoria's economy and to provide more certainty to the ports for future expansion opportunities by including additional land in the Port Zone compared to the Special Use Zone at these locations. However, upon close analysis of the Port Zone provisions, there is no material difference between the previous permitted uses in the Special Use Zones and the new Port Zone. 

The failure to include the Port of Melbourne as part of the rezoning is consistent with the Government's direction to move in the medium term to privatise the port and to subsequently redevelop it for future commercial and other uses given its proximity to the CBD. However, on our analysis, the failure to include the Port of Melbourne in the new Port Zone will not hinder the ongoing operations of the Port of Melbourne in any material manner. Further, the existing ESO and the Ministerial Direction 14 assist the Port of Melbourne to protect itself from encroaching sensitive uses until the end of the lease period.