If anyone needs further proof of what an unmitigated disaster planning is in Victoria the events of the past week prove this in spades. Wynne has certainly outdone himself this time in gazetting Amendment C143 on the 15th May, without any consultation, without any forewarning, and handing more and more advantage to developers and complicit councils which we label Glen Eira as.

Amendment C143 has basically diluted the much vaunted ‘garden requirement’ – especially for areas zoned as General Residential (GRZ). When this amendment was introduced in March 2017, garden areas were mandatory and proclaimed that dwellings in both NRZ and GRZ had to set aside, 25%, 30% and 35% of the site depending on their respective size. Each garden area was supposed to be at ground level, not to include any ‘covered’ areas, and there was no scope for councils to ignore this. On the 15th May all this changed. What we have now is depicted in the following image taken from the amendment

Please note the following:

  • Councils now have the option to include in their schedules an ‘exclusion’. That means that if they so desire then the garden requirement need not apply to any proposed development. Further, if the site is designated as ‘medium density’ then it may also be excluded. We note that according to council’s draft structure plans and the Urban Design guidelines Garden townhouses and Urban townhouses are defined as ‘medium density’ and given the ridiculous label of 2 to 3 storeys. That can only mean that all these areas will be rezoned to GRZ and hence may be excluded from the requirement to provide any ‘garden area’.
  • Land under the eaves is now to be included in any garden area calculation.
  • Garden areas now do not need to be at ground level – they can be calculated via balcony size and whatever is under a balcony that projects out from the building is also included in the garden area calculation.
  • Sheds of up to 10 square metres can now also be included in the required calculation. If the site happens to be 420 square metres, then 25% should be ‘garden area’. That means 105 square metres. Thus if a shed is built, it can occupy 10% of the previously designated garden area.
  • Pergolas are now also acceptable – even if they have louvred shutters that at various time could form an ‘enclosed’ area. And who will supervise that these louvres remain open all the time?
  • The most interesting aspect is again the possibility that everything included in an approved structure plan can also be excluded from having a mandatory garden area. In Glen Eira where we estimate 90% of the municipality will become ‘activity centres’ according to council’s published ‘study area’ borders, that could mean that only a small proportion of land will be required to meet the garden area clause.

Making matters worse is that VCAT has finally started hearing cases post the introduction of Amendment C110. In two recent decisions, labeled as ‘red dot’, one respective member had this to say:

The Tribunal’s finding regarding the MGAR (minimum garden area requirement) is that the areas underneath the eaves and extended roofline of the proposal are excluded from the calculation of the ‘garden area’ because they are not ‘uncovered outdoor areas’; and because they are ‘roofed areas’ within the ordinary meaning of those terms.  (Source: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/646.html)

Both decisions came to the same conclusion on MGAR. But not a week later, Wynne gazetted his Amendment C143 which contradicted these decisions! Where does that leave us? What are the legal ramifications? How much further will Wynne go to accommodate developers and reduce residential amenity for communities? And the $64 question?– which way will council jump? Will they introduce some nifty clause into their amendments which remove the need for garden areas in the GRZ? Will they continue to plough on in their unjustified endeavours to expand activity centres and facilitate more and more development – in the face of huge community opposition? How many more attempts to bypass the community via applying under section 20(4) of the Planning & Environment Act will we have to endure? When will this group of 9 councillors have the guts to stand up and say ‘enough is enough’?

To what extent is council’s planning department in cahoots with developers? A recent application renders this question very, very relevant. The application is for an 8 storey student accommodation building  in Dudley Street, Caulfield East. The proposal is to house 104 students, a shop at ground level and a car parking waiver of 31 spaces. The application is currently being advertised.

All well and good – perhaps. Except that:

  • The site is zoned as Neighbourhood Residential – ie a MANDATORY HEIGHT LIMIT OF 9 METRES OR 2 STOREYS
  • The site is NOT PART of the Phoenix precinct which is (partly) geared towards accommodating student housing.

Yet, this application is now being advertised. Why? Why hasn’t it been refused outright given the above? Secondly, why when the developer admits to ‘pre-application’ meetings with the planning department has council allowed this application to reach this stage of advertising instead of refusing it outright under delegation? Doesn’t the planning department know its own zoning or its own planning scheme?

Regardless of whether Dudley street should have been rezoned eons ago given that there is now 5 storey buildings in this street, the fact remains that it hasn’t been rezoned. So what conclusions can we draw from this? It is clear that council and the VPA intends to expand the Phoenix Precinct. That residents of the area can expect more and more high rise development. This however does not excuse the planning department’s failure to enforce the current planning scheme or to insist that the ‘errors’ contained in the application are removed. For instance: we are repeatedly told that the site is in ‘housing diversity’ area. It is NOT. We are also repeatedly told that the site is part of the Phoenix precinct. It is NOT. Time and again council’s officer reports tell us that it is the current planning scheme that matters and that council’s draft structure plans therefore play no part in the decision making since they are not approved parts of the planning scheme. Surely the same should apply to this application? The fact that it hasn’t, that the developer has been allowed to get away with blue murder, raises fundamental questions about governance, ‘favouritism’, the sheer competence of the planning department and of course, council’s hidden agendas!

We’ve uploaded the current zoning (below)  that clearly shows the NRZ status of the land –

It will be fascinating to see the officer’s report (if we get one) and the rationalising that will undoubtedly attempt to excuse the inexcusable. What is at stake here is the community’s faith in the integrity and objectivity of planning in Glen Eira.

The two tables presented below are from the latest ABS building approvals. (uploaded HERE) The first table features the total number of building permits granted per year for the past 6 years and 9 months – ie until March 2018. Glen Eira is still ahead of the pack in unit development, plus the fact that Stonnington is a special example – ie three times the commercial zoning that Glen Eira has, whilst Port Phillip is in a league of its own with over 15% of its land mass designated as ‘capital city zone’ plus its large quotient of commercial zoning plus tourism. Monash is double the size of Glen Eira and has double the number of houses built compared to Glen Eira. Boroondara is also well ahead of Glen Eira in the number of houses versus apartments erected in that municipality.

So, once you add in the following, then the ‘damage’ done to Glen Eira is evident:

  • Small size of municipality
  • Least amount of open space
  • High population density and increasing
  • Dwellings per hectare
  • Lack of any traffic plans
  • No developer contributions for drainage, community infrastructure, parking waivers
  • Small commercial zoning which means development is occurring in local streets (approx 3% compared to Stonnington’s 8%)
  • Money squandered on open space ‘improvements’ instead of the purchase of more and more open space
  • No local environmental or water policy in the planning scheme
  • No local policy regarding tree protection in the planning scheme – and a mooted ‘significant tree register’ which will probably total only about 150 trees. This won’t go far enough by a long shot to halt the rampant moonscaping that has been plaguing Glen Eira for decades.
  • Most importantly, these figures make a mockery of council’s prognostications. Our supposed 13000 net new dwellings by 2031 will be here within the next few years – especially with a mooted 4500 net new dwellings for East Village and precinct 3 for Caulfield Village. Thus, why are hundreds upon hundreds of properties being rezoned? Why are activity centres being doubled in size? And why oh why does council refuse to address and answer these fundamental questions?

Some enlightened councils have set up ‘citizen juries’ in order to work on budget priorities each year. In Glen Eira there is no such thing. Residents get no say in how they would like their money spent. Thus year after year we find the lion’s share of expenditure going the same way – more fancy ‘redevelopment’ of open space instead of the purchase of additional open space. More and more staff (from 810 EFT last year to 829 EFT for 2018/19). More and more money going to ‘consultants’ and ‘contractors’, etc.

We provide the following table which lists the proposed expenditure on various items for the last 3 years. Readers should note:

  • The consistent decline in expenditure for traffic management
  • With development at an all time high, drainage funding has basically remained constant
  • The consistent reduction in council’s contribution to the pensioner rebate. By way of contrast we note that the following councils all provide a far greater rebate:
  • Port Phillip – A pensioner rebate that will increase by 3.1 per cent to $165 in 2018/19.
  • Monash – $50
  • Manningham – $50
  • Darebin – $150
  • Kingston – $100

Readers should ask themselves if this table is in line with their thinking on how our money should be spent –

We’ve received the following email from the BHCAGROUP and uploaded the VCAT decision HERE 

Hi All,

I am not usually in the habit of looking back, but as we have learned of VCAT’s decision, I remember that horrible sinking feeling that we all experienced when we learnt of Calvary’s proposed 19/20-storey tower.  While everyone recognised that the Bethlehem hospital site was ripe to be updated and improved, we all understood the deep impact that development on the scale proposed would have on the neighbourhood character and the direct effect on surrounding properties.

The community knew that this proposed development needed to be resisted.  It was with your support – moral, practical and financial, that we, as a community, forcefully expressed our objection in this administrative VCAT process against the high-powered team of barristers and experts engaged by Calvary.

The decision issued by VCAT has not stopped the redevelopment of the Bethlehem Hospital by Calvary.  It has, however, fundamentally reshaped it.

VCAT has directed the Glen Eira City Council to issue a permit for the redevelopment of Bethlehem Hospital that is now 10/11 storeys.  The appearance of the buildings is more articulated with a finer grain exterior.  The retirement village, aged care and ancillary uses are now more evenly spread over the site.  The 90 place childcare centre has been abandoned.  The inadequacy of the car parking arrangements were acknowledged and the at-grade car park on the corner of Saturn Street and Kooyong Road reserved, as a condition of the permit, as a permanent carpark, serving to somewhat alleviate the pressure on the surrounding streets.

I hate to think what might have been the outcome of the VCAT process without the local community’s engagement of strong legal representation and expert witnesses.  Attending each day of the hearing demonstrated to me that this was the right approach and that our well-argued objection contributed to a revised development that is substantially reduced in scale.  It also confirmed to me that had we relied solely on the promises of our elected councillors and allowed the Glen Eira City Council to prosecute our objections alone, it would have been a major folly. (our emphases)

Significantly, and notwithstanding our expertly constructed legal arguments about the application of height limits on retirement villages, VCAT determined that retirement villages are exempt from height limits, setting a new legal precedent that I am sure will be adopted by other developers throughout the suburbs of Melbourne.  (Incidentally, it appears that VCAT’s decision has introduced an even bigger loophole to the planning regulations for applications made prior to the current act – time will tell what impact this has).

For those that wish to read the VCAT decision, it is attached.

As the spokesperson for the BHCA Group and the local community, and in what will be the last communication to the group, I would like to thank everyone for the energy, financial contributions and support to defend the character of our local streets and the amenity of our own properties.  I am firmly of the view that without it, we could not have achieved any amendment to the original scheme.

Kind regards

Kelvin Cope

VCAT has handed down its decision on the 10-11 storey development of its hospital site. This long and complicated case involved much legal wrangling as to whether Independent Living Units (ILU) were ‘buildings’, etc. and what the current regulations and council’s planning scheme had to say about aged care and minimal change areas. In the end, the members decided that the height limits in various zones DO NOT APPLY to aged care or ILUs.

We’ve extracted some comments from the decision and if residents wish to read the full decision, it is available at http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/655.html (PS: THE DECISION HAS INEXPLICABLY DISAPPEARED FROM THE AUSTLII WEBSITE. WE HAVE NOTIFIED THEM REQUESTING THAT THE DOCUMENT BE REINSTATED/GLITCH FIXED ASAP).

  • The ILU component constitutes a retirement village for the purposes of the planning scheme. It is neither a dwelling nor a residential building. It is not bound by mandatory height limits for dwellings in the NRZ.
  • There is no maximum building height requirement imposed by the NRZ for a dwelling or residential building that is subject to the transitional provisions in Clause 32.09-14 (although the requirements of Clause 55 of still apply)

The Tribunal has assessed the change this proposal will present in its context and, for a hospital with co-located facilities consistent with policy, finds the outcome is acceptable. It finds that the built form is appropriately managed around the site’s perimeter. In considering whether the most contentious higher buildings are acceptable, it is relevant that the expert evidence for the Council is not substantially different to the expert evidence presented for the applicant and focuses on two levels of the tallest corner building.

  1. This means that the specific response to the question:

Does clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres? is “No”.

  1. Policy is not a requirement nor can it be applied as if it is mandatory:
    • The Victoria Planning Provisions are predominantly performance-based. They specify the objective to be achieved and provide a degree of freedom as to how it is achieved.
    • Extensive case law addresses the role of policy in planning schemes and makes the point that policy is not a mandatory requirement or control.
    • Further, and consistent with Clause 20, Practice Note 59 addressing the role of mandatory provisions in schemes says:

A local planning policy is not a control. Local planning policies have a defined role to guide the exercise of discretion created by a zone, overlay or particular provision. Local planning policy cannot remove the discretion under the relevant planning control that triggers its consideration. Mandatory requirements cannot be included in local planning policy as to do so would remove the very discretion created by the planning provision. Hence mandatory requirements must be in a zone or overlay.

Policy for the minimal change areas also anticipates higher development yield than would normally apply in minimal change areas on key pre-existing development sites of more than 2,000m2. While local policy states that “Ensuring that any multi-unit residential development is consistent with the prevailing streetscape scale, especially along the perimeter of sites” it is silent about other forms of residential and non-residential development on sites of more than 2,000m2.

We conclude these reasons by balancing various policy considerations in favour of net community benefit. It is not our role to rewrite or dispute local policy. However, we observe that although the scheme acknowledges institutional land uses and the prospect of their expansion, it does not provide specific guidance about the future development of relatively large, historical, institutionally-used land. The policy in Clause 22.02 is to be applied as it relates to matters such as location, amenity and design. The policy does not distinguish between single lots contemplated for (say) a medical centre or child care centre and large and, (say) complex large institutions with multiple land uses. Local policy also does not acknowledge the subject land as a community facility on the map at Clause 21.09 but it is identified in the Framework Plan

Sixth, Clauses 21.08 and 22.10 adopt terminology that is not consistent. For example, Clause 21.08 references retirement villages in the context of being associated with medical uses/institutions yet other parts of local policy include retirement villages and residential aged care in the context of accommodation. We have endeavoured to reconcile differences in interpreting and understanding, holistically, what local policy is seeking to achieve.

  • Neither State nor local policy support a proposition that the existing hospital site is unsuitable for growth or for new associated and related land uses. As indicated earlier, the reverse applies. Local policy recognises the location and expressly supports retirement village and medical uses co-locating here. That is in the knowledge that public transport options are more limited than in other parts of Glen Eira.
  • Despite local policy encouraging co-location at smaller hospitals, it also states a preference for a location with better access to transport and other services. Better served locations are expressly preferred for some types of aged persons accommodation, particularly for the more independent categorisation. Minimal change areas are regarded as being less appropriate. However, Clause 22.10 states that “… on some pre-existing large sites, aged persons housing may be appropriate in Minimal Change Areas”.
  • an increase in activity, in itself, is not a reason to refuse a permit. The suitability of the intensity of the proposal will be determined by an analysis of its impacts not by the numbers or site coverage per se. It is essential to assess the amenity and other impacts of the new uses and activities, such as traffic, parking and relationships with existing residential properties. The outcome of this assessment carries significant weight through Clause 32.09 and when applying local policy.
  • We think it is noteworthy that the Council does not take issue with the overall extent of activity when it indicates that there would be scope to re-configure the ILUs to achieve the same yield.

The proposal sees demolition of all existing buildings, replacing them with a 10-11 storey (36.5 metres) built form at the north-east corner, linked to a seven to eight storey building along Saturn Street which serves as a central access to all services on the site and provides levels of ILUs above. To the east of this is a three to four storey building housing the specialist palliative and progressive neurological services. A series of three storey linked pavilions are proposed along Ludbrook Avenue housing the residential aged care facility. Between these and the higher built form to the north are two gardens for use by patients at the hospital and a large open space providing outlook from the residential aged care and the public access from Kooyong Road. We note that rooftop plant and equipment adds to the height.

It is open to the Council as planning authority to advance the inclusion of controls in the scheme for other hospital sites/medical precincts to guide their future development.

COMMENTS

Whilst this case highlights the many shortcomings in State planning, it also highlights the shortcomings in Council’s planning scheme. When we find that the planning scheme contains a reference document that is alluded to in this case, and that it dates back to 2002, (Glen Eira Housing and Redevelopment Strategy 2002) then something is drastically wrong. The failure over decades to consistently analyse VCAT decisions and to respond in some meaningful fashion has not been high on council’s priority list. Residents have paid the price and will continue to pay the price of shoddy, and incompetent planning!

The following public question was asked at the last council meeting –

The Strategic Resource Plan indicates a planned allocation of $2.95m for Shepparson Avenue Market Development for design, concept plans and initial consultation and there is also planned budget allocations for the market/library area in the 2018-19 Draft Annual Budget. This there a budget and timing estimate for the actual market?

Council’s response was:

Council has prepared a Strategic Resource Plan (SRP) for the ten years 2018-19 to 2027-28 as part of its ongoing financial planning to assist in adopting a budget within a longer term strategic framework.

At this stage, funding for construction of the Market Development has been provisionally allocated from 2028-29 to 2030-31. This timing will be dependent on community feedback, funding models and Council priorities.

The SRP and capital works program is reviewed annually as part of the Council’s budget process and funding for capital works projects is reprioritised where required

It would appear that council is determined to proceed with spending $3 million on ‘design’ and ‘consultation’ – despite the fact that its commissioned Blair Warman Economics report (October 2017) had this to say about the Shepparson Market proposal –

Hardly a ringing endorsement for anything! If the only true option is a ‘speciality’ food market that relies on the more ‘high income households’ of Malvern, then god help us. The examples that this report provides include the Oasis Bakery in North Road and a site in Brisbane. Significantly, no mention is made of the Prahran market in the heart of Malvern where we would expect these ‘high income households’ to do their shopping! That leaves us to question the efficacy of both the report and to question why council is so determined to pursue this option worth $3m just for plans!