The recent decision of the Minister for Planning (Minister) to approve an amendment for a planning permit for a sand quarry in Grantville has attracted much media attention. While that focus has been on the Minister's actual decision, less attention has been paid to the report from Planning Panels Victoria (Panel) which assessed the application and made recommendations to the Minister.

Dandy Premix Quarries Pty Ltd has occupied and operated a sand mining quarry in Grantville since 2015. They sought to extend their operations and had obtained an endorsed work plan variation from the Earth Resources Regulation branch of the Department of Jobs, Precincts and Regions (ERR). They then sought to amend their existing planning permit to conform with the endorsed work plan variation.

The planning permit amendment application was lodged with Bass Coast Shire Council (Council) in September 2020. Council required notice of the application to be given to more than 1,000 landowners and occupiers and 78 objections were received.

In November 2020 the Minister 'called in' the application pursuant to his powers under Section 97B of the Planning and Environment Act 1987 (Act). As part of the 'call in', the objections were referred to the Panel pursuant to Section 97E of the Act.

As part of its assessment the Panel identified three overarching issues they considered were necessary to be considered in order to understand the strategic and policy context underpinning the assessment of the proposal:

• the significance of the site being on the Extractive Industry Priority Project List in a planning context;
• policy balance and net community benefit; and
• the relationship between the work plan and the planning permit.

Planning implications of the site being on the Extractive Industry Priority Project List

The Panel heard arguments from the parties about the significance and planning implications of the site being included on the Priority Project List maintained by ERR.

The applicant argued that significant weight should be given to the inclusion of the site on the list and unless there were fundamentally good reasons not to do so, decision makers should be attempting to facilitate sand extraction. Department of Environment, Land, Water and Planning (DELWP) argued that inclusion on the list was only meant to prioritise the streamlining of approvals.

After considering the submissions the Panel concluded:

• The strategic significance of the sand resource to the State is clear.
• Being on the Priority Project List means that assessment of the Proposal must be prioritised, but does not provide determinative policy support for the Proposal.
• The Proposal is still subject to a full planning assessment, including a balanced assessment of policy considerations as required by the Planning Scheme.

Policy balance and Net community benefit

The proposal required the removal of a significant area of native vegetation, with the Panel noting that 'the native vegetation corridor is likely to be irreversibly damaged by the Proposal'.

The Panel then went on to identify that there was 'direct tension between policies relating to extractive industry and native vegetation' and that the issue of policy balance had been 'challenging'.

After considering these conflicting policies, the Panel concluded:

….on balance the Proposal provides a net community benefit in that it:

• will facilitate the extraction of important sand resources that are required for the construction and infrastructure industries, and close to areas of high demand
• create new jobs and associated expenditure
• upgrade road infrastructure.
• The Panel has also found that local community benefits are contingent on careful and considered management to ensure that local amenity and environmental impacts are acceptable. A number of issues and mitigation measures are discussed and recommended in this report, including:
• biodiversity and vegetation
• noise, air quality and water
• cultural heritage
• landscape and visual amenity.
• The delivery of long term net community benefits depend on the delivery of ecological benefits that are in turn critically reliant on successful offset and revegetation programs.

While the Panel found that, on balance, there would be a net community benefit, it was clearly a matter they wrestled with and was based on the specific facts of the case. Had the vegetation been more significant, or the benefits which flowed from the proposal slightly less, a different recommendation might have been made. In our view, this demonstrates the importance of future planning permit applicants being able to clearly and robustly demonstrate the community benefits attributable to the project.

Relationship between the Planning Permit and the Work Plan

As part of its assessment the Panel considered what was required to be addressed by the planning permit, relative to the work plan.

As part of this assessment, the Panel examined Planning Practice Note 89 'Extractive Industry and Resources' (PPN89). The Panel noted that PPN89 identified that most of the information required for assessment of a planning permit will be included in and addressed by a Work Plan and that the Work Plan provides a 'substantial basis for regulating the use and development'.

Submissions were made by the parties about the relationship between the two.

DELWP submitted that planning permit conditions should not duplicate or copy the requirements of a Work Plan and that a number of the draft planning permit conditions were already addressed in the work plan and were therefore not required in the planning permit.

The applicant submitted that details of the operations sat within the work plan, and the Panel needed to consider 'what was legitimately part of the planning process'. They submitted that it was necessary to determine what went into the planning permit to complement the work plan.

The Panel observed that while there was a clear desire and intent for there to be a delineation between the Work Plan and the Planning Permit in the parties' submissions and evidence, in practice this was difficult to achieve. It went on:

The process of determining suitable planning permit conditions is not as simple as ‘filling the gaps’ of those not included in the Work Plan. The Responsible Authority needs to assure itself that all planning matters have been considered and adequately addressed, regardless of whether the Work Plan has determined that the Proposal is satisfactory from a technical, environmental and operational perspective. Whilst it is appropriate that operational matters are assessed and conditioned by ERR through the Work Plan Variation, the land use planning implications of operational matters still need to be considered.

It then concluded:

• Conditions should be streamlined, and duplication avoided.
• Conditions should be included on the planning permit that reinforce alignment and link the approvals.
• To the extent possible, planning permit conditions should complement Work Plan conditions, or add an additional level of detail required to respond to the requirements of the Planning Scheme.
• Where possible the detailed controls should be included in the Work Plan, and associated plans so these can be updated through an ongoing Work Plan management process with ERR.
• Planning permit conditions may require amendments to the final Work Plan Variation.