First some background to refresh people’s memory. An application for a 3 storey, 10 unit development on Mavho St., Bentleigh was rejected unanimously by all councillors in March 2012. Planning officers had recommended a permit. The earlier planning conference was severely criticised by residents. Lipshutz was accused of gagging residents (See our earlier post: https://gleneira.wordpress.com/2012/02/23/tansparency-accountability-who-do-councillors-really-represent/). Objections then ensued from the applicant and residents and the case was set down for a VCAT hearing this Monday and Tuesday (21st & 22nd January).
We present below an email exchange between one of the objectors and Hyams. Names are deleted.
Dear Jamie & Oscar
It is with great disappointment that I write to you both about the recent correspondence from the Council’s planning office (received today) (Thursday 17th January). Attached is the Planning departments proposal for VCAT hearing which arrived today! The hearing is on the 21st & 22nd of Jan. Your Planning department is putting forward a proposal for 10 apartments! Were you aware of this situation? Did you follow up with the so called planning experts as to how they planned to stand their ground at defending the councils decision to reject the development? I fully understand that:
“While Council has prepared suggested conditions in accordance with this VCAT requirement, it is emphasised that Council continues to oppose the proposal.”
Please explain why the residents, that have so vehemently rejected this entire development, not been privy to this compromised proposal by your planning department till the last minute? Is this draft proposal a joke? It beggars belief that the person representing the Council (and by default, the residents of the area) is committed to the decision that the Mayor and all Councillors took in the Chambers.
You will recall that the meeting of the erstwhile Councillors (elected representatives of the residents of Glen Eira) had rejected the development outright. Is the representation at VCAT not to defend the councils decision on the day? The rather late receipt of this draft simply reinforces belief that the developers are in cahoots with the planning department and the residents are mere fools, misled by those in power. Let me assure you that as residents we oppose this draft. We are left with no time to question anyone in the planning department.
We are shocked that the amendment has been sent to all of us a day before the hearing is set? A clever ploy by the Council’s planning department to avoid any discussion on the matter. You leave us with no time to question the draft.
Jamie, in all you correspondence to me, you had assured me that the Council representative at VCAT would be an independent person. It seems otherwise. Whilst the Council would not be using a qualified legal representative, it would have an expert, independent planning authority. Correspondence received today leaves us with little hope and confidence.
The representation should be without FAVOUR or FEAR. This hearing/case will set a precedent for all of Bentleigh and it should be monitored and dealt with extreme due diligence. Given the timing of this draft proposal (attached above) by the council, perhaps, you are happy for the develpers to PLUNDER the residential streets of not just Bentleigh, but all of Glen Eira. The preparation for the VCAT hearing should focus on complete rejection and NOT COMPROMISE in favour of the developer.
Please treat this as a matter or urgency and reply ASAP.
Thank you
Regards
Xxxxx
++++++++++
Dear xxxx
Thank you for your email. I understand your concern as to how this looks. However, it is a requirement of VCAT that whenever Council refuses an application, it must still draw up a set of conditions to assist VCAT. This is the requirement set out in Practice Note PNEP1, referred to in the covering letter. It is a legal requirement, but does not in any way mean that Council will not be defending its decision to refuse the application.
Council’s representative at the hearing will be independent of Council’s planning department, as you mentioned I had previously advised you. We will be using a well-regarded private planning consultant named Andrew Crack.
If you have any further enquiries, please do not hesitate to contact me.
Good luck with the hearing.
Regards,
Jamie
+++++++++
Dear Jamie
I am certain that you do not understand my concerns. The key issue has not been answered by you. Why have the concerned residents been informed of the proposed, back up draft plan at the nth hour? The planners in all their arrogance have assumed that what they recommend will suit the residents. This development, if approved, will have an adverse impact on lot of people. The correct process is that the objecting parties have to be kept in the loop about all suggested changes to the plans.
I request you to explain why we have received the draft suggestions a day before the hearing?
+++++++
Dear xxxxx,
I agree that the short notice given was inappropriate. The VCAT requirement is that such notices are sent out 5 business days prior to the hearing. In this case, the notices were sent out later than that. I am informed that this was a rare lapse, and was because the relevant officers were just returning from their annual leave.
However, the important point is that, as I mentioned, Council will be defending the refusal, not advocating for the draft plan.
Regards,
Jamie
+++++++++
Dear Jamie
Once again you defend the planning departments shortcomings. The VCAT requirement gives you more than 5 days. I have a copy of the PNEP. A rare lapse? I had made it very clear to you in my email in December that given the timing of this hearing and the holiday season, particular attention needs to be paid to this case. I had pre empted the planning departments lack of diligence and bought the timing to your attention. Lo and behold! You come back to me saying the employee concerned was on annual leave!! This once again reflects on the inefficiencies of your planning department and further consolidates our belief about how the departments favour the developers.
What your planning departments treats with such non chalance is blood, sweat and tears for the residents of Glen Eira. We need some answers and someone needs to be made accountable.
Thank you
COMMENT
The hearing took place as scheduled. We have been told that the ‘expert’ consultant spent most of his time holding up photographs of ‘high’ buildings already located in the street! A strange way to argue a case AGAINST DEVELOPMENT we suggest! The question thus becomes:
- Why is council spending ratepayers’ money on consultants if this is the best they can do, or the best they are ‘allowed’ to do?
- How can a planning department get things so wrong so often? Even if staff take leave, surely they must have some procedures in place to ensure that all runs smoothly over the xmas holidays? Further, they MUST know what cases are coming up and require attention? Or is it simply that no-one cares – after all these are only residents?
- Whilst we commented from the start that we believed the councillor vote was largely due to an election year and the volume of loud protest, it still does not excuse the failure of officers to actively, diligently and professionally support councillors’ decision and residents.
- The usual excuse will be that the planning department should enforce planning law (ie the planning scheme). Councillors will (pretend?) outrage no doubt and blame VCAT when the decision is handed down. What they have never done is to demand a total and full review of the planning scheme. What they have never done is ask for detailed justification as to how and why a house that sits 100 metres on one side of a street is in a Housing Diversity area, and a house that sits directly opposite is in Minimal Change.
- Okotel recently asked for a report on the information provided to residents and applicants. The result was a glowing endorsement by her and other councillors. It’s time that the following happened:
- Delegatory authority to officers on planning be cut back substantially and councillors have ‘call in options’
- Councillors be informed BEFOREHAND and IN DETAIL of any DPC scheduled meetings. We believe that currently they often do not even know what is up for decision.
- Councillors attend DPC meetings or this officer love-in be disbanded and a formal special committee instituted to consider planning applications as happens in so many other councils.
- A total review is required of notification processes
- Finally, we’ve uploaded the Practice Note (here) and invite residents to compare the wording of Hyams’ email with what the Practice Note actually says!
Glen Eira Debates 
January 24, 2013 at 1:51 PM
Friend told me last night that a yellow sign had gone up in the front of a property next door to them. Still waiting for a letter. Shucks, it’s the holiday period isn’t it and these poor overworked and super efficient staff under Akehurst will get around to it when they feel like it. How much did they spend this year on computer systems?
January 24, 2013 at 3:16 PM
Sooooo, here we have a situation where the planning process was held “enabling” residents to have their input (even though the planning conference was a total shambles) and, contrary to the planning department’s recommendation for approval of the development, Councillors agreed with the residents that the development was inappropriate and formally voted to refuse the application.
The developer goes to VCAT and the Planning Department, aided and abetted by the Mayor, not only fails to comply with VCAT notification requirements, but also sends along an external consultant (paid by ratepayer funds) that fails to represent the decision of the elected representatives and their constituents and instead supports the planning department.
What an absolute travesty and what a mockery it makes of Council’s rhetoric re representing and listening the residents – and this is regardless of the ultimate VCAT decision. Should the VCAT decision be in favour of the developer, no doubt Council will spin it as a VCAT decision against their recommendation – such a spin totally ignores the fact that the Administration sabotaged the residents case via the external consultant (the residents can take heart in that they will ultimately foot the consultant’s bill and also experience a major long term loss of amenity).
I’d say it would be interesting to see what action Councillors will take over this but I suspect the actions taken will only make a depressing story even more depressing.
January 24, 2013 at 6:58 PM
Hyams claims 5 working days. That’s not quite right. Vcat reckons at least a week earlier that the date set for the hearing. Okay, the date is set for a Monday. That means that the objector should have received the council letter the previous Monday at the latest – meaning it had to be posted on the Friday before that to get to the people on time. This would make it the 11th Jan. 10 days before the hearing at the very least. Vcat says nothing about working days. Hyams uses this because it sure sounds better than a week.
January 24, 2013 at 7:08 PM
It is lucky that some of the bloggers don’t have to rely on the law to make a living. The council has done everything right except not notifying the objectors outside of 5 days. It would not have made any difference if the had given 2 weeks notice. When a planning application is disputed then VCAT must “stand in the shoes” of the Council. They then go about testing the application against the Glen Eira Planning Scheme. If they do find for the developer they are not equipped to impose conditions. They ask for these conditions up front just in case they find for the developer. If the Council wins then all the conditions go in the bin. The conditions are never part of the argument. The council would have argued that the development not proceed. Your complaint should be about the G.E. planning scheme in particular the Urban Village section. The proposal is hideous and hopefully the VCAT members will visit the street and understand the raw greed involvled. Don’t rule out that 10 units is an ambit claim. That would have been noticed during the hearing. Good Luck. Hope the VCAT bloke or woman liked the shoes he had to stand in. The Council did everything normally just that you didn’t understand how it normally works.
January 24, 2013 at 7:59 PM
Clearly the resident did not understand what the conditions meant. That’s a gaping gap in the information that council provides to residents. The correspondence makes it clear that there have been countless conversations between councillors, objectors, planners and so on. Yet no-one seems to have alerted these people that this may happen.
I don’t agree that informing residents beyond the required time limit is good enough. It is grounds for deferment – not pleasant for either developer or objector. I do agree though that the planning scheme is unfair, inadequate, and needs rehauling.
January 24, 2013 at 9:15 PM
No one has done anything wrong. This is normal. Just because you may not have come across this before doen’t count for anything. VCAT dosen’t defer. No one is going to overhaul the urban villages. Those affected should have moved 10 years ago. This is not new. 10units on one block will not happen. The developer has got a bit ahead of himself.
January 25, 2013 at 12:29 PM
It is not a policy in either SPPF or LPPF that people should be forced out of their homes through loss of amenity. Quite the opposite. Any member of Council Staff or VCAT that believes it *is* acceptable should be removed from their position. A prerequisite for Council exercising its power to force people out of their homes should be that suitable alternative accommodation is being built in the area. Council has refused to embrace or support the relevant policy from SPPF concerning diversity, and no councillor even mentions it when speaking to a motion concerning a development proposal. BTW 10 units on one block routinely happens.
January 24, 2013 at 10:26 PM
Anon 4’s posting doesn’t sit right with me.
Anon 4 seems to be saying that when Councillors openly and unanimously voted to refuse the permit in March, 2012, they did so without knowing that the planning scheme supported the development. This development was never discussed in any subsequent ordinary/open Council meeting and when it comes time to present to VCAT the focus is all on on the planning scheme and the developments compliance with that scheme – this is okay because that is what Council is required to do (despite the fact that the development is contrary to the wishes of both the residents and their elected representatives, ie. those legally and morally responsible for the administering the municipality in the interests of it’s residents).
On the other hand, my interpretation of the above post gives rise to some serious questions which should be asked both within and of Council.
1. Councillors do not understand the planning scheme they vote on and/or the relationship between Councillors and the Administration is so dysfunctional that neither does the work (asking and answering the questions) to ensure Councillors fully understand what they are voting on.
2. Assuming VCAT overturns Councils refusal for the development (and I strongly suspect the refusal will be overturned) – did Councillors, knowing the development was in compliance with the planning scheme, opt to appease the very vocal residents in an election year (while being pretty sure that both the VCAT hearing date and decision would occur early in the new Council term) and that
. by the time of next election (2016) all would be forgotten by residents and
. even if all Councillors are re-elected (6 out of 9 made it), the blame for approval on the development can be shifted to VCAT.
Is either within the law – hard to prove without a whistleblower. But that should not stop residents raising the issues and seriously questioning the performance of the Councillors (past and present).
January 24, 2013 at 10:39 PM
The thing about the Glen Eira Planning Scheme like most of them it is a bit furry in places. It can mean one thing or the other. In some places it is very prescriptive in other places ambiguous. Some Councillors will vote against a proposal regardless of what the schemes says. This why VCAT overturns lots of decisions. For some councillors it is too hard or they look for the favour of the objectors. They take little notice of the GEPS if it suits them.
January 24, 2013 at 10:35 PM
Anon 4 mentions “law” as if that is relevant when it concerns how VCAT makes decisions. Practice Notes aren’t legal requirements and they’re not binding. They are however there for a reason, which is to assist in delivering justice via fair hearings. Failure to comply undermines the process. Even more serious is when expert witness reports aren’t served in the timeframes specified by direction or order or PNVCAT2. Parties need a reasonable amount of time to digest the material. Its probably true that VCAT doesn’t care when Council or developers fail to comply.
There’s still an issue about why Council failed to comply. Simply claiming that a member of staff was on leave isn’t good enough. A fraction of staff are expected to be on leave each day of the year, and Council should have in place an appropriate workflow management system that ensures it meets its obligations. The failure is evidence of a management problem within Council staff.
I’m not surprised if an external advocate didn’t mount a very credible argument on behalf of Council. They usually don’t know the area or Council’s policies or relevant past decisions, and are handed inadequate briefs. Its odds-on that Mavho St developer will get a permit, even though the proposal fails to comply with relevant policy objectives in both SPPF and LPPF, but the Member *may* be persuaded to adjust the conditions to improve the development slightly. I hope there is room for some crown trees, but that is not part of Council’s preferred character for activity centres.
January 24, 2013 at 10:52 PM
Practice Notes may not be binding as you say Reprobate, but there’s a ‘Red Dot’ decision out which makes it clear that for this member at least, Practice Notes MUST BE ADHERED TO. It says:
“In view of the need for amended plans to be circulated 30 business days before the hearing, the decision notes that the onus rests with applicants to ensure that they are ready to go with respect to the circulation of amended plans. Applicants must also seek direction from the Tribunal as to the action to be taken if the requirements of Practice Notes are not met. (see paragraphs 18-19).
Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2013/40.html
January 25, 2013 at 7:06 AM
This thing is concrete fence to fence. Crown trees will not fit. Unfortunately.
January 25, 2013 at 12:10 PM
Standard B9 states “At least 20 per cent of the site should not be covered by impervious surfaces”, but I haven’t looked at the plans to know what is proposed. VCAT and Council both regard the ResCode Standards as only guidelines anyway, despite it being a requirement that a development “should meet all of the standards of this clause” [Clause 55]. There is a standard cop-out from Council about trees, vegetation, landscaping not being its preferred character for Housing Diversity areas. In order to squeeze 10/11/12/15 units onto a block in a 3-storey form factor, the standards inevitably are compromised. No Councillor has ever explained their support for waiving compliance when its simply to help developers make more money. 10-12 units on a block with minimal landscaping and lacking permeable soil and crown trees is a relatively common, and ugly, outcome these days. Council has also been negligent in failing to consider the capacity of the drainage network when supporting site coverage approaching 100%.
January 25, 2013 at 12:21 PM
See: https://gleneira.wordpress.com/2012/03/09/impervious-surfaces-elections/
At the council meeting of 28th February 2012 part of the resolution that was passed stated: “Prepare a Planning Scheme Amendment to lower the percentage of impervious surfaces within the Minimal Change Area and Housing Diversity Areas”.
We’re now practically one year down the track and nothing has materialised. As far as we know, no councillor has had the gumption to ask – where’s the amendment? No councillor has brought this issue up again in any public forum and no councillor has demanded why a year should pass for a council resolution to be acted upon and completed.
January 25, 2013 at 12:42 PM
Haha how funny. Hard to believe that the same councillors that have voted in support of 100% site coverage also support increasing permeable surfaces.
January 25, 2013 at 9:50 AM
Will there be a post on the reason for the cleanup of Queens Avenue at last. The are really cleaning it up
January 25, 2013 at 11:07 AM
Ha I saw that too. Unfortunately like most things in Glen Eira, Council commenced the works last Thursday. lasted half the day and then ran out of puff and haven’t been back since! Perhaps if they had a regular maintenance programme, the need for such a substantial cleanup would not arise.
January 25, 2013 at 1:27 PM
Does look much better. I presume the MRC are getting it ready for the centre of the racecourse park to be opened in April, according to Southwick. Still nothing from Council. I wonder if they even know things are happening there?
January 25, 2013 at 7:00 PM
Curious, I went back and reread the comments made last year in response to the post concerning Mavho St. Smart Aleck raised “satisfaction surveys”, although personally I have never been surveyed about a DPC or Planning Conference. An anonymous person thought “planning is about laws”, which it certainly is not. Multiple people (including myself) raised the question of what is the definition of medium density. In hindsight, an appropriate definition is whatever Council refuses in Minimal Change areas—anything more than 2 dwellings on a block. I’m pleased to see that I pointed out our Dear Leaders use a “performance”-based approach, in which prescriptive standards are avoided, meaning that there are no standards.
Its a fact that Council doesn’t have the nerve to review its most contentious planning policies through public consultation: the Housing Diversity [sic] and Urban Village policies are, from their perspective, immutable. The 2010 Planning Scheme review was a lost opportunity, devoted as it was to praising the Planning Department. Little wonder, since it was written by the Planning Department. And so the juggernaut rolls on, making expensive mistakes that will be very hard and expensive to rectify, should there be a change of regime.
January 26, 2013 at 12:00 AM
Just like the Gillard Government.