There are a couple of convoluted, confusing and curious items set down for decision tomorrow night. Both involve what is now known as Kimberly Gardens in Inkerman Rd. It appears that the following is about to happen:
- The loss of further public open space
- The potential for further private development down the track once this open space is lost
- The possible absence of ministerial approval for the amendment of a Section 173 agreement
- Deletion of agreement clauses without showing due cause such as evidence of ‘nuisance’ as stipulated by the agreement
- A strange ‘in camera’ meeting on 16th March, 2010 which involved this property – a most unusual occurrence!
Questions to councillors:
How does the community benefit from this arrangement?
What reimbursement/contribution will council receive from this deal?
Has the public been told the ‘full story’ and nothing but the ‘full story’?
Glen Eira Debates 
November 2, 2010 at 9:08 PM
Secret meetings to clean up all those nasty legal complications, then the formal application and in a year’s time – like pulling a rabbit from the hat – whoopee, a new application to either extend the hotel or the synagogue on what is now public land. All done nice and neatly with no-one being any the wiser. I keep wondering why is it always the developer that comes out advantaged rather than the residents?
November 2, 2010 at 10:38 PM
Very pleased to see you have mentioned these items.
As the agenda states, the land in question was once owned by council. However, the agenda doesn’t explain how the conditions came to be applied to the property.
The property was formerly the site of the Caulfield Arts Centre – which (from recollection) was housed in a rambling old house with extensive grounds – and staged exhibitions and ran a wide range of art classes.
It was a valued community asset that was sold off by council despite considerable community protest (sound familiar?). The art gallery was re-established at the Town Hall (at great expense) and the art classes soon all but ceased.
To appease the community for the loss of this significant recreational asset, the council put conditions on use of the land to allow public access to the front garden.
These agenda items are simply the last step in selling out the community. In practical terms it probably makes little difference – very few people even know the garden is available for public use and it seems the owners have done little to maintain it.
Of course, this is being done to remove any impediment to further development of the site. It is my understanding that discussions with council have been going on for over a year (behind closed doors of course).
So the decision has already been made. I doubt we’ll see much debate on this item.
The issue of compensation that you raise is very relevant. The agenda items states that the 5% recreation levy was waived at the time due to the conditions placed on the property. It would seem logical that by removing the conditions, that this levy should now be payable. However, the agenda items makes no reference to this – so whose interests are being served?
November 2, 2010 at 11:01 PM
The groundwork is/has been laid – ie.
“Section 173 agreements can only be amended with the approval of the Minister. This can sometimes be time consuming and generally difficult to achieve. An amendment
also requires agreement between the responsible authority and all persons who are bound by any covenant in the agreement. This may be particularly difficult to achieve
where the land covered by the agreement has been subdivided into a number of lots (and there are several parties bound by it) or where there are multiple parties to the
agreement. It is therefore important that agreements are prepared carefully to avoid the necessity for subsequent variation.
Where an agreement is no longer applicable to part of the land over which it was originally registered, VCAT may approve an amendment to the agreement to remove
that part of the land from the application of the agreement.
Where the amendment to an agreement is minor, it may be able to be achieved by a short Deed of Variation. If the agreement is longer, it will be less confusing if the
original agreement is brought to an end and a new agreement incorporating the changes is executed.
Click to access Chapter_8_-_Agreements.pdf