Developers sue state government over Spring Creek decision

THREATS to sue the state government if it legislated against development in the Spring Creek valley have been followed through, with two developers taking action in the Supreme Court of Victoria.

Earlier this month, lawyers representing Zeally Investments Pty Ltd and Duffields Road Pty Ltd filed a joint motion naming Planning Minister Richard Wynne, the Surf Coast Shire and Minister for Local Government Shaun Leane as defendants (in that order).

The motion calls for Mr Wynne’s decision to finalise the Surf Coast Statement of Planning Policy (SPP) to be quashed and the SPP declared invalid.

It also calls for the shire and Mr Leane to be prohibited from exercising their powers and endorsing this version of the SPP, which was produced as the ultimate outcome of the long-running Surf Coast Distinctive Area and Landscape program.

Released in its final form on April 14, the SPP pulls the western boundary back from 1km into the valley from Duffields Road to Duffields Road itself and rules out any kind of urban development in the valley.

Zeally Investments Pty Ltd and Duffields Road Pty Ltd collectively own 245 hectares of land in the Spring Creek valley at 80 Duffields Road and 140 Duffields Road respectively.

Their motion cites six grounds to quash the existing SPP:

• A failure to consult in preparation of the finalised Surf Coast SPP
• A challenge to the minister’s findings with respect to housing supply
• The minister’s consideration of land supply
• A failure to take into account housing affordability
• A challenge to the minister’s characterisation of the settlement boundary
• The decision was affected by bias.

On this last point, the developers’ lawyers argue the Victorian government’s comments from 2018 onwards in support of setting the boundary at Duffields Road meant Mr Wynne’s decision on the SPP was “affected by apprehended bias in the form of prejudgment, in that an independent observer might reasonably apprehend that the Minister might not be open to persuasion in making the decision”.

Some developers and landowners had threatened legal action in recent years if development in the valley was ruled out, but the Victorian government had repeatedly dismissed these claims.

“Previous governments made decisions and I’ll leave it to them to defend some of the cozy relationships they had with cashed-up developers; I’m not in that business,” Victorian Premier Daniel Andrews said in 2019.

Labor candidate and eventual South Barwon MP Darren Cheeseman pledged to bring Torquay’s town boundary back to Duffields Road both before and after the 2018 election.

Mr Cheeseman said in 2017 that he had no doubt that “money hungry developers” would seek compensation if the boundary was moved.

“I fundamentally reject the notion that developers would win any court proceedings around this; this is an appropriate decision that a Planning Minister would make down the track after appropriate planning considerations with the community and key stakeholders.”

There will be a directions hearing on the motion held in the Supreme Court of Victoria on July 27.