The original application was for a 14 storey development at 221-229 Glen Huntly Rd. Council granted a permit for 7 storeys. In this decision, VCAT approved the amended plans by the developer and granted a permit for 10 storeys. Below are some extracts from the decision. The full transcript may be read at: http://www.austlii.edu.au/au/cases/vic/VCAT/2011/2203.html
“The officers considered that the proposed development at 10 storeys was appropriate given the location of the site within the housing diversity area, having had regard to the VCAT decision acknowledging the strong policy support for high density development with regard to a development at 233-247 Glenhuntly Road Elsternwick in February 2010[. Therefore, it is the Tribunal’s position that a multi-storey mixed-use development is appropriate on the site. However the three groups of conditions that have been appealed by the Permit Applicant in this case revolved around height and external appearance of building and the objectors concerns relate to car parking, access to the site and off-site amenity impacts
We consider that a multi-storey development on this site is consistent with the vision of the Elsternwick Urban Village where the statement for the retail hub requires:
The height of residential development be determined by:
- Site context, including the scale and character of surrounding development.
- Site characteristics, including area, dimensions, orientation and topography.
- Existing development on the site, including height, bulk and site coverage.
Council in its final decision required the overall building height to be reduced to seven storeys and amended plans were then prepared. The Permit Applicant prepared amended plans for a 10 storey building generally in accordance with the recommendations of Council’s officers”.
AND FROM TODAY’S ‘AGE’
Building permits system damned
Clay Lucas and Adam Carey
December 7, 2011
VICTORIA’S building permit system is broken, with little evidence to show even minimum construction and safety standards are being upheld, according to a report by state Auditor-General Des Pearson.
The report, to be tabled today in Parliament, will reveal that 96 per cent of 401 building permits examined by the Auditor failed to comply with basic standards. It provides a damning critique of the Building Commission, the state agency that regulates construction standards in everything from home extensions to major city towers.
The $24.3 billion-a-year construction industry, instead of being properly regulated, ”depends heavily on trust which is neither guided nor demonstrably affirmed by reliable data on the performance of building surveyors”, says a leaked draft of the report obtained by The Age.
”Our results have revealed a system marked by confusion and inadequate practice, including a lack of transparency and accountability for decisions made. In consequence, there exists significant scope for collusion and conflicts of interest,” the draft report states.
Building Commissioner Tony Arnel – who has been in his position for 11 years – is legally prohibited from commenting on the report before it is tabled.
Planning Minister Matthew Guy, who oversees the Building Commission, would wait to read the report before commenting, a spokesman said.
The Building Commission was established 17 years ago to regulate council and private building surveyors, and to monitor how effectively surveyors enforce building laws.
The Auditor found that damning reports on the commission’s work in 2000 and 2005 had been ignored, and that it had fundamentally failed to do its job. ”The commission cannot demonstrate that the building permit system is working effectively, or that building surveyors are effectively discharging their role to uphold and enforce minimum building and safety standards,” the draft report says.
It also finds that while the commission monitors the number of complaints against builders, little is done to monitor whether surveyors do their jobs properly.
Surveyors assess and approve building permits and check that work meets the standards of building laws.
Speaking ahead of the report’s release, the president of the Australian Institute of Building Surveyors’ Victorian chapter, Con Giazi, admitted the Auditor had highlighted ”deficiencies”. But he said the failures were a case of poor administration, not lax safety standards.
The report warns of possible collusion between surveyors and clients because of ”inadequate monitoring and enforcement” by the commission.
The Auditor randomly selected 401 building permits lodged with Melton, Monash and Mitchell councils.
Audit office inspectors found ”the vast majority” of permits examined failed to adequately document whether buildings met all requirements. They found far more problems with commercial buildings than with new houses. The report also found serious problems with:
■Adherence to town planning requirements.
■Site plans inconsistent with properties in 167 of 319 cases.
■Fire safety standards.
■Demolition works, with little evidence of adequate precautionary measures.
Big builders this week rallied around Mr Arnel and the commission before the release of the report. Grocon chief Daniel Grollo said Victoria’s building industry was ”as efficient, if not more efficient [than anywhere] in Australia. Any process can be improved, but we don’t see any evidence that the system is broken. Is the issue one of record keeping or is it [problems] with the building itself?”
Executive director of the Housing Industry Association Gil King said the problems identified were about paperwork, not safety. ”Very rarely do we see major faults in the structure of buildings,” he said.
Read more: http://www.theage.com.au/victoria/building-permits-system-damned-20111206-1ohcf.html#ixzz1fnVdn3Wx
Glen Eira Debates 
December 7, 2011 at 11:20 AM
If councillors honestly thought that they’d get away with a 7 storey building after acquiescing to 8 storeys previously then they’ve got rocks in their heads. Glen Huntly Rd and all other main thorough fares can now look forward to monsters all along such roads – thanks to the outrageous planning scheme that this council has got.
December 7, 2011 at 11:49 AM
I’ve just had a look at the judgement and who represented who. I’ve copied this – Mr Chris Canavan QC, instructed by Dominic Scally, solicitor of Best Hooper. Mr Canavan called Mr Mark Sheppard to give urban design evidence, Mr Stuart McGurn in relation to town planning evidence and Mr Henry Turnbull regarding traffic evidence.
For Responsible Authority Mr Ragu Appudarai, solicitor of Russell Kennedy Solicitors.
For Respondents Mr Jane Sharp, Barrister by direct access.
Strikes me as a really sorry state of affairs. QCs for developers and council with a solicitor for something this important. Even the objectors had a barrister. Curiosity getting the better of me, I Googled Mr Appudarai and found his CV (http://www.rk.com.au/uploads/file/Professional%20Profile%20Ragu%20Appuduari%202011(2).pdf). Does anyone know what a Diploma of Law means?
December 7, 2011 at 12:57 PM
I don’t know anything about the Diploma of Law program, but intuition would tell me that it’s better to have a ‘full service’ law degree rather than a slapdash one-year diploma. I could be wrong though!
December 7, 2011 at 5:47 PM
Lets cut to the Quick.. The underlying problem is that Glen Eira council can’t afford more than a simple solicitor. It can’t have a barrister or Senior Counsel because Glen Eira is running out of money. Many projects, such as the Elsternwick Library & Supermarket project, have already been deferred, and the costly GESAC regional sports & swimming complex itself is delayed and on hold. Nobody; least of all the councillors, knows when we will be able to afford to finish it properly. But we can guarantee a pompous Official Opening – or two – before then.
Sadly, this is not a new problem.It has all happened before, many times. Take the official opening of the Caulfield Arts Complex at City Hall. While the grand Official Opening was being celebrated by the Mayor and Councillors up front, down the back people were still working on the TWO lift shafts, which were completely empty (no lifts) Council simply did not have the cash to pay for the lifts to be installed. Worse, neither Caulfield, nor the later Glen Eira council, ever had the spare cash to finish the project properly. The special lighting needed for the Art gallery area has never actually been installed, nor has the stage lighting switchboard and light faders. (Still not done, even now, 25 years later).
So, the current problem of “a QC for developers, but only a solicitor for Council” will be with us for many years to come. At least until we pay off our huge GESAC loan debts, perhaps in 15 or 20 years time.
December 7, 2011 at 6:19 PM
Have to disagree with you here. Whether or not council can afford lawyers is not the point. I think they simply don’t care enough and wouldn’t want to win these cases anyway. That would put a real dampener on the Newton vision of all out development everywhere. They probably figure that any hick lawyer will do but not one so good that he is likely to win. Then the chances of winning are lousy anyway given the planing scheme so it would be like chucking good money out after bad and fighting against your own agendas. The result is one poor little solicitor having to go up against senior counsels again and again. Even this is a total waste of money because it’s doomed right from the start. What they should and must do is make the planning scheme totally unappealing to developers. Now that would take a bit of guts from our gutless councillors. They try and get themselves off the hook by arguing here’s 8 stories instead of 10 and for this one, we will be real dramatic and go for 7 storeys instead of 14 when they know that since the 10 storey one got the go ahead this one will as well. They set the precedent not VCAT.
December 7, 2011 at 6:26 PM
Readers might find the following extract from Cr. Rosemary West in the Kingston News (December 2011) of real interest, especially in light of the Glen Eira planning scheme (sham) review and its failure to include any real advances in protecting the community –
“Planning scheme review
Council is now reviewing our local planning scheme. Please take part, by
attending community meetings and putting your concerns into a written submission before the deadline of 20/12, which I am hoping can be
extended to allow more time for consultation. If you wait until there is a planning application in your street, it may be too late, unless we have
strong local provisions to indicate what is and is not acceptable.
I recently visited a friend in Monash, in a beautiful street full of single-storey renovated Californian Bungalows and the like. “Where are your stacked
shoeboxes,” I asked? In Monash, I learnt, any street with 60 per cent intact neighbourhood character is covered by an overlay to prevent disruptive development. If you want this – for Kingston, say so in a submission. (I have asked for a council report on this Monash provision.)
Likewise if you want stronger protection for our environment, heritage, open space, foreshore residential streetscapes or green wedges”.
Source: http://www.kingston.vic.gov.au/Files/KYC_December_2011.pdf
What’s also different about the Kingston version, is that each councillor is given the space to comment on events in the municipality.
December 7, 2011 at 6:43 PM
14 to 7 and 10 to 8. Is the difference cos Newton lives round the corner maybe?
December 7, 2011 at 11:27 PM
Apologies for the length – but these extracts from the Auditor General’s report tabled today (and listed in the Age article) are important.
Source: http://www.audit.vic.gov.au/publications/20111207-Building-Permits/20111207-Building-Permits.pdf
The new system removed municipal building surveyors’ monopoly on issuing building permits and opened the market to private building surveyors, who have to be registered and insured to protect the public’s interests. By 2009–10 they were issuing around 85 per cent of permits worth 93 per cent of the total value of approved building works.
Local councils are also responsible for administering and enforcing parts of the Act, and for appointing municipal building surveyors who, along with their private counterparts, authorise and oversee building works to assure they are safe and comply with requisite building standards. Municipal building surveyors also have additional responsibilities for community safety and for enforcing statutory building requirements in their municipality.
Ninety-six per cent of permits examined did not comply with minimum statutory building and safety standards. Instead, our results have revealed a system marked by confusion and inadequate practice, including lack of transparency and accountability for decisions made. In consequence, there exists significant scope for collusion and conflicts of interest.
In the absence of leadership, guidance and rigorous scrutiny from the commission, councils have adopted a largely reactive approach to enforcing the Act that offers little assurance of compliance within their municipalities. Together with private surveyors, they apply varying interpretations of what the Act requires of them, resulting in further
confusion and ad hoc practices. Consequently, there is little assurance that surveyors are carrying out their work competently, that the Act is being complied with, and the risk of injury or damage to any person is being minimised.
Councils are responsible for enforcing the Act in relation to their municipal districts but lack clarity on how their role extends to private surveyors. Further, their monitoring is limited and reactive in nature offering little assurance that all buildings and associated works in their municipalities meet requisite standards.
Councils do not have a statutory obligation to proactively monitor compliance with the Act, but can do so at their own discretion to gain assurance it is being administered and enforced effectively within their municipal districts. Councils do not systematically review permit documentation lodged with them by private building surveyors or inspect associated works, considering this to be the role of the commission. Councils therefore only investigate matters if there is a complaint
from the public.
Councils have access to significant information relating to building permits lodged by private building surveyors, but there are no documented arrangements in place between the commission and councils to monitor surveyors’ performance and the system’s overall effectiveness.
Thus significant opportunities exist for councils and the commission to work together more effectively to monitor the building permit system.
The Act requires a building surveyor to determine if proposed works comply with all statutory requirements before issuing a permit. However, significant gaps exist in council records to demonstrate that surveyors have adequately discharged this statutory obligation, and that approved works meet requisite building and safety standards.
Specifically, there was inadequate information on file for 96 per cent of the 401 permits examined to assess compliance with these requirements.
The regulations require an application for a building permit to contain sufficient information to show that the building work, if constructed as proposed, will comply with the Act and regulations. Hence this information should be evident in the documentation lodged by the surveyor with each permit at the relevant council. A failure to lodge this information is an offence under section 30 of the Act. However, 72 per cent of domestic permits and 76 per cent of commercial permits did not contain sufficient information to demonstrate compliance with five or more required
building technical or safety standards. Similarly, approximately 12 per cent of domestic permits and 27 per cent of commercial permits failed to show compliance with respect to 10 or more requisite standards.
In addition to these critical information gaps, there was also insufficient evidence in 89 per cent of the 80 permits subsequently selected for more detailed examination to determine whether building surveyors had thoroughly assessed all lodged information. Therefore, there is little systemic documentation that surveyors had sufficient information upon which to form a reasonable view that proposed building works complied with the Act and regulations prior to issuing the permits.
Greater scrutiny of the professional conduct of building surveyors, and better adherence by them to minimum competency standards and statutory requirements is required.
Councils should review and, where relevant, strengthen their monitoring and enforcement strategies to assure:
• they are risk based, targeted and sufficiently informed by reliable data on the performance of the local building permit system and of the surveyors operating within it
• that building works and associated permits comply with the Building Act 1993, the Building Regulations 2006 and the Building Code of Australia within their municipal districts
Among the councils examined, there was also a lack of clarity on the extent to which their role to administer and enforce the Act within their umnicipalities extends to private building surveyors. For example, Monash expressed a belief that because municipal building surveyors in some circumstances can compete with private building surveyors, it would therefore be inappropriate for them to audit the private building surveyor in
those circumstances. However, this issue is not relevant to a council’s statutory enforcement role under section 212 of the Act because this responsibility rests with the council and not with the municipal building surveyor.
All councils indicated that they do not have an obligation to ‘monitor’ private building surveyors, as the Act does not expressly state that they have this function. Councils contrasted their functions with the explicit powers given to the board and the commission to perform this role.
However, the Act does not exempt a council from discharging its statutory enforcement role when it is aware that a private building surveyor has not complied with his or her responsibilities under these provisions. This demonstrates the councils view is at odds with their statutory obligations.
Councils advised that they usually only investigate matters if there is a complaint from the public. It is widely acknowledged, however, that members of the public do not generally have the technical knowledge to determine whether building works comply with the Act, regulations and technical provisions of the Building Code of Australia.
While the role of building surveyors is to make such determinations on behalf of the public, the Act in establishing the commission as the regulator, the board as a disciplinary body, and in affording enforcement powers to councils, also clearly envisages that building practitioners operating within municipalities may not always act appropriately. Hence relying on consumer complaints alone is not a reliable basis for
detecting deficiencies with a practitioner’s conduct.
Monitoring by councils is generally limited to specific issues such as pool safety and the periodic inspection of essential safety measures. While these activities are positive they are not adequate as a councils’ statutory responsibility for administering and covered by parts 3, 4, 5, 7 and 8 of theAct enforcing the Act extends to all buildings and associated regulations. All councils included in the audit indicated it would be
difficult for them to substantially increase their current levels of proactive enforcement due to the limitations of their staffing and other available resources. Therefore, responding to complaints was effectively the only compliance action being undertaken.