REASONS FOR DECISION TO EXERCISE POWER OF
INTERVENTION
UNDER SECTION 20(4) OF THE PLANNING AND
ENVIRONMENT ACT 1987
COLAC OTWAY PLANNING SCHEME AMENDMENT C66
The Planning and Environment Act 1987, 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 my powers of intervention, 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 intervention.
REQUEST FOR INTERVENTION
1. The amendment has been made at the request of the Barwon Region Water
Corporation (Barwon Water). Barwon Water has requested that the expiry date specified in Clause 5.0 of Schedule 5 to the Environmental Significance Overlay
(ESO5) in the Colac Otway Planning Scheme be extended to allow for the completion of a planning scheme amendment to apply Schedule 3 to the ESO on a permanent basis over the whole Barham River Water Supply Catchment Area.
2. Schedule 3 to the ESO over the now revoked Skenes Creek Special Water Supply
Catchment Area is also removed to address an anomaly in the planning scheme.
WHAT POWER OF INTERVENTION IS BEING USED?
2. I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Planning and Environment Act 1987 (the Act) and the regulations in respect to Amendment C66 to the Colac Otway Planning Scheme.
3. Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations.
4. In seeking to exercise this power, section 20(4) of the Act requires that the Minister must 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.
BACKGROUND
5. The amendment is required to protect the quality of water within the East Barham
River which supplies potable water to the towns of Apollo Bay, Marengo and Skenes
Creek.
6. Amendment C44 was approved by the Minister for Planning in July 2005 to introduce the ESO5 into the Colac Otway Planning Scheme on an interim basis. ESO5 was designed to protect the East Barham River catchment while Barwon Water sought to have the area declared a Special Water Supply Catchment under the Catchment and
Land Protection Act 1994 and put in place the necessary permanent planning scheme controls. This water supply catchment was declared in 2009.

7. In the absence of the ESO5 requirements, many developments proposed in the East
Barham River catchment no longer require planning permission. This places water quality in the catchment at risk which may have consequent public health impacts on the Apollo Bay, Marengo and Skenes Creek communities.
8. Amendment C66 is necessary to quickly extend the expiry date of the interim ESO5 provision to ensure that impact of proposed development in the catchment can be assessed in consultation with Barwon Water (acting in its capacity as a referral authority) while a planning scheme amendment is considered to put in place permanent controls.
9. Now that the Barham River Water Supply Catchment has been declared, Skenes
Creek will be supplied with potable water from the Barwon River catchment. The existing Skenes Creek Special Water Supply Catchment has accordingly been revoked. Consequently the existing ESO3 applying to the Skenes Creek catchment is redundant and its prompt removal is appropriate.
BENEFITS OF EXEMPTION
10. The main benefit of the exemption is that it will enable the prompt adoption and approval of the amendment to protect the water supply catchment from inappropriate development.
11. The amendment achieves objectives 4(1)(b) and (e) of planning in Victoria as it provides for the protection of the catchment of the East Barham River which is necessary to protect Apollo Bay, Marengo and Skenes Creek’s potable water supply thereby safeguarding community health standards and also enabling the orderly provision and coordination of public utilities and other facilities dependant on high quality water for the benefit of the public.
12. This amendment will maintain planning permit application requirements over the East
Barham River catchment to ensure that the potential impacts of proposed buildings, works and vegetation removal on the catchment are assessed in consultation with
Barwon Water. This will ensure that future development does not prejudice the quality of water harvested from the catchment.
13. The current ESO5 schedule within the Colac Otway Planning Scheme contains an expiry date of 31 December 2011. There is an urgent need to extend the expiry provision so that the ESO5 remains in effect until the conclusion of the amendment to be prepared and exhibited by Barwon Water that puts in place permanent planning controls.
14. As the Skenes Creek Special Water Supply Catchment has been revoked, the ESO3 over the Skenes Creek catchment is redundant and its removal ensures planning permit applications for buildings, works and vegetation removal are no longer required.
EFFECTS OF EXEMPTION ON THIRD PARTIES
15. Third parties will not have an opportunity to make a submission on the amendment or be heard by an independent Panel. However, the amendment will have a generally positive effect on the health of residents and visitors in Apollo Bay, Marengo and
Skenes Creek by safeguarding the quality of potable water supplied by the East
Barham River catchment.
16. The amendment extends the expiry date of the existing ESO5 provisions by 18 months and maintains the planning permit requirement for buildings, works and vegetation removal in the East Barham River catchment. All planning permit applications will be assessed by the Colac Otway Shire Council in consultation with

Barwon Water . Any party aggrieved by the Council’s decision may seek a review of the decision at the Victorian Civil and Administrative Tribunal.
17. Whilst the amendment will extend the existing control until 30 June 2013, third parties affected by the interim controls will have the opportunity to participate in the public amendment process to permanently apply ESO3 over the whole Barham River catchment, including the East Barham River catchment, through the proposed
Amendment C62 process. This includes the opportunity to make a submission on the amendment and be heard by an independent Panel.
18. The removal of the Skenes Creek ESO3 control will not have an impact on third parties as the removal of this redundant control will leave the affected land with the same planning controls as the surrounding land.
ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS
ON THIRD PARTIES
19. The current interim ESO5 control will cease to have effect after the 31 December
2011 and should this control be allowed to lapse, development proposals may prejudice the quality of water harvested from the East Barham River.
20. The amendment extends the operation of an existing interim provision until 30 June
2013 while an amendment is undertaken to replace this interim provision with a permanent control. The extension of time for the existing ESO5 control continues the operation of the existing control over 45 separate private land ownerships while protecting the potable water supply for the townships of Apollo Bay, Marengo and
Skenes Creek.
21. As all parties affected by the current interim control will have the opportunity to make a submission on the proposed Amendment C62 and possibly be heard by an independent Panel considering the permanent controls I consider it appropriate to make this exemption.
22. The removal of the redundant ESO3 over the Skenes Creek catchment will not impact third parties but will remove unnecessary planning permit requirements.
23. Accordingly I consider that the benefits of exempting myself from sections 17, 18 and
19 of the Act outweigh any effects of the exemption on third parties.
DECISION
13. I have decided to exercise my power to exempt myself from all the requirements of sections 17, 18 and 19 of the Planning and Environment Act 1987 and the regulations in respect of Amendment C66 to the Colac Otway Planning Scheme.

REASONS FOR INTERVENTION
14. I provide the following reasons for my decision to exercise my power under section
20(4) of the Planning and Environment Act 1987 .
15. I am satisfied that -
Compliance with any of the requirements of sections 17, 18 and 19 of the Act and the regulations is not warranted
because:
 parties affected by the extension to the current interim control will have the opportunity to make a submission and be heard by independent Panel considering the proposed amendment (C62) to introduce the permanent controls
 the removal of the redundant ESO3 over the Skenes Creek catchment will remove unnecessary planning permit requirements.
Signed by the Minister
MATTHEW GUY MLC
Minister for Planning
Date: 5 March 2012