The MRC application for the 7 lot subdivision was heard at VCAT yesterday. There were two objectors. Council was represented by lawyers, as were the objectors and the MRC. The following are some general impressions of the hearing.
- Council’s lawyer provided all the ‘background’ material, including a 150 page bound ‘booklet’ which also became the reference document for many of the MRC’s arguments. We wonder whether ratepayers paid for the production of this tome, or the mrc?
- Council’s lawyer used the word ‘access’ (the focus of objections) probably only 3 times in his 35 minute presentation.
- The meeting revealed that Council and the mrc had come to a previous agreement regarding the need for a Section 173 rather than the creation of an easement. This information was not available to objectors until 24 hours before the hearing. Hence they were literally caught with their pants down.
- There were several adjournments while the MRC and council’s lawyer ‘consulted’ with their respective bodies. The MRC provided the proposed draft wording for the Section 173 which was acceptable to Council’s lawyer.
- It should also be noted that a council planner who was present was taking notes. The first words he wrote down on his sheets of paper were ‘Forge’, ‘Penhalluriack’ who were both present.
Our conclusions are that the member will have very little scope to find in favour of the objectors given the constraints on her power and the limitations of the Planning and Environment Act. We also conclude that there have obviously been many, many (secret) discussions on this application between the MRC and council. It is also unacceptable that objectors are not fully informed of any changes to an application in a timely manner.
Glen Eira Debates 
November 24, 2011 at 2:03 PM
Vey good of Council to subsidise the MRC’s legal costs by providing most of the reference material. Obviously Council and the MRC set a deliberate pact to scuttle the two objectors by their 11th hour advice of their secret agreement. What a squandering of resources for all concerned and what total disgard for residents.
Lets imagine a different scenario – Council having been notified months ago of VCAT objections, contacts the residents and advises them that they are negociating with the MRC and outlines the various options (S173 vs easement) and their advantages/disadvantages. Council updates the objectors as the negotiations progress. What would be the outcome
. the sun would still continue to rise
. the objectors would probably have withdrawn their objection
. Council would have not incurred any substantial legal costs (a minimum of $15K)
. the community would be happy because actual (not pretend) consultation would have occurred.
Valuable opportunity lost Councillor’s – when are you going to stop this cr*p and start spending ratepayers money on items that actually benefit them.
November 24, 2011 at 3:43 PM
Council’s lawyer for the heritage fiasco cost $9000 say council. This would have cost plenty more.
November 24, 2011 at 4:27 PM
Much as I like your imagined scenario, I’m afraid this Council wouldn’t do it because legally they didn’t have to. Much better to shot the objectors at the hearing because it sends a loud and clear message to anyone else who might wish to object.
When this Council has an opportunity to send such a message, factors like cost, morality and reasonableness are just not considered.
November 24, 2011 at 2:07 PM
By the sounds of this the MRC didn’t even need a lawyer. All the arguements were provided by our own paid for lawyer. And I must congratule this administration on their success in inculcating KGB practices so well into the staff. Fancy taking down names of councillors who were there! This top secret information will I guess end up in Newton’s massive file somewhere to be used at the appropriate time no doubt.
November 24, 2011 at 3:50 PM
We’re not lawyers, but these two definitions may shed some light on the difference between an easement and a Section 173 Agreement. These definitions may also raise alarm bells when the history of the dealings between Council and the MRC are factored in. The definitions come from: (http://www.relv.com.au/reference.asp)
Easement
An easement is a right that allows one person’s land to dominate another person’s land by exercising some right of the dominated land.
The land that benefits from the easement is called the dominant land, while the land affected by the easement is called the servient land.
Common examples of easements are:
• The right of a farmer to move cattle along a path across a neighbour’s paddock;
• The right of water authorities to run sewerage pipes across suburban properties;
• The right to use a private carpark.
• An easement is an encumbrance and will usually appear as a registered easement on the title, but unregistered easements do exist, and can arise as a nasty surprise after a Contract has been signed.
(http://www.relv.com.au/reference.asp)
Section 173 Agreement
Basically, a Section 173 Agreement is an agreement between a planning authority and the owner of real estate.
It usually starts as an agreement between the authority and the developer of an estate, whereby certain works are supposed to be completed, but is then registered on title. This means that the obligations and/or restrictions imposed by the council on the developer, continue to bind the new owner of the land.
Example:
A developer wanted to subdivide land adjacent to and existing house, intending to build a two storey structure to take advantage of sea views. A problem arose when the neighbour complained that someone standing on the balcony of the new building could look directly into the neighbouring property. The council and developer entered into a Section 173 Agreement, whereby the developer was required to erect a screen, designed to prevent over-looking. The Section 173 Agreement was registered on title, so that future owners of the property would be similarly obliged to maintain the screen.
November 24, 2011 at 4:49 PM
Thanks for the explanation Gleneira.
Now I am just wondering what is in the agreement and when will Council announce the details to the public – eg. pedestrian access, points of access and access hours are but a few.
I’m not holding my breath.
November 24, 2011 at 7:46 PM
In old fashioned language the word “covenant” best describes a 173. It is written on the Title of the land. No getting out of it. By installing a 173 over the MRC land that means that it is there for all time. That is until someone can convince a future council to remove it.
November 30, 2011 at 1:04 PM
Could this possibly be refered to the ombudsman to investigate?
The ombudsmans report into the Stkilda triangle was a triumph for probity.
The C60 and now this subdivision and sale are just outrageous and the community has no voice due to the unrepresentative councillors (most of them) and executives of GEC.
Something really smells around the Caulfield racecourse and it isn’t just the horse manure.