MORNINGTON Peninsula Shire Council is seeking legal advice over moves by trucking magnate Lindsay Fox to claim yet another slice of Point King beach as his own.
The contentious 2008-09 dredging of Port Phillip and widening of The Heads has being blamed for sand being washed from Portsea beach to the beach at Point King in front of the $30 million Fox family compound.
Cr Hugh Fraser successfully moved at the Tuesday 8 December council meeting that shire CEO John Baker provide councillors with a detailed written report on all current planning applications, consents by the Department of Environment, Land, Water and Planning, litigation at VCAT and the Supreme Court, and applications to Land Use Victoria, concerning Mr Fox’s landholding.
Mr Baker was also to arrange for the documents to be independently reviewed by experts in property, administrative and planning law and advise if council has any interest in the litigation and the applications and their result or potential result.
Cr Fraser said later that the council had to know where it stood in regard to Mr Fox’s moves to claim land up to the ever-receding high water mark.
“The Port Phillip Bay channel deepening project carried out between February 2008 and November 2009 has had a direct impact on the loss of the Portsea beach,” he said.
“The state government’s own technical reports show a measurable narrow band of wave energy directed at the Portsea beach where the sandbag wall was rebuilt by the Department of Environment Land Water and Planning after 10 years.
“It cannot be said that the accretion of sand at Shellys beach and Point King beach since 2010 is ‘gradual and imperceptible’ and ‘is the result of natural processes’.
“If this recent further application succeeds in the Office of Land Use Victoria, the loss of public Crown Land at the Point King beach will be substantial.
“The state government can and should urgently take the matter to the Supreme Court of Victoria where this ‘gradual and imperceptible’ movement and ‘result of natural processes’ evidence can be tested and decided by the court and after hearing from all interested parties.”
The council has been grappling with its position since July, when it asked the head of governance and legal Amanda Sapolu to review any applications to the Land Titles Office in relation to the boundary of the Fox land to “ascertain if council has any interest in the matter”.
Her report to Council on 11 August found that a Supreme Court action by Mr Fox related to a decision by the Panning Minister Richard Wynne to exempt himself from the requirements under the Planning and Environment Act 1987 as it related to giving notice of a planning scheme amendment.
“The claim in this matter is not against the council, nor is it against the council’s decision to refuse the planning scheme amendment,” she stated.
“The claim does not relate to the decision of the minister to allow the change in boundary to include the additional land.”
At its 11 August meeting council moved that: The defence and any reply to any court orders as to the conduct of the Supreme Court proceedings be reviewed by the CEO … and that a further report be brought (to council).
Ms Sapolu said council had applied to the Supreme Court for the file and made an FOI request to the Department of Land Titles and that “the relevant documents have been obtained”.
Ms Sapolu said there were no legal implications in reviewing the documents or seeking legal advice but there were “potential legal implications in implementing any advice”.
“It is worth noting that council is not a party to this [Supreme Court] proceeding, nor has the applicant or respondent indicated their intention to join council to the proceedings. This is a matter between a private citizen and the Minister for Planning.”
Ms Sapolu said legal advice for a review of the council’s position could cost up to $10,000.
First published in the Southern Peninsula News – 22 December 2020