There have been 2 recent VCAT decisions that we wish to highlight. In BOTH cases council’s planning department failed in its legal obligations – namely to alert resident objectors as to the council’s position on amended plans within the required 7 day period of notice. What this means is that objectors show up to the hearing with practically no time to adjust their claims or to prepare sufficiently for what could be a completely different set of circumstances. They are left out in the cold and perhaps totally unaware of the secret deals that have been made between council and developer. Certainly without sufficient time to prepare an adequate defence or to even contact council planners.
We’ve previously featured Hyams’ pathetic response to one such objector – the officer was on holidays. (See: https://gleneira.wordpress.com/2013/01/24/does-council-support-residents-or-developers/) Not good enough! How many such ‘rare lapses’ have taken place and what steps have been implemented to ensure they don’t happen again? How often will the same pathetic excuse be used to explain sheer incompetence or indifference to residents? How much longer will councillors allow the inefficiencies and lack of accountability to continue?
What is even worse is that the VCAT Watch reports reveal nothing of these incidents. It is spin all the way. Except, that if one bothers to go to the actual judgement the Glen Eira Version of History is revealed for what it is – a total sham!
Here’s what council’s version of events regarding the 14-16 Maroona Rd hearing stated (from the minutes of 5th Feb) –
Prior to the hearing, the applicant approached Council seeking support for amended plans which satisfied a number of Council’s conditions, whilst the plans also provided for a revised design incorporating twenty six (26) dwellings. The amended plans were considered to be satisfactory and, in principle, Council supported the amended plans.
What really happened though is revealed by the member –
Prior to the hearing the Permit Applicant circulated amended plans which were intended to be a response to, though not fully comply with, many of the Condition 1 requirements for amended plans sought to be imposed by Council. Prior to the hearing, further discussions were held between the Council and the Applicant, such that an agreed position between these two parties was presented to the Tribunal as to a modified form of Condition 1 that should be applied as a result of the proceeding under Section 80 of the Planning and Environment Act.
Ms Coram and the other residents had not been part of these discussions and at the start of the hearing declined an opportunity requested by the Permit Applicant to attempt to mediate the matter.
Further, the original application was for 27 units. The original DPC decision cut this back to 24 and then lo and behold we’re back up to 26 units and a reduction in car parking. So we now have 26 two bedroom units when one of the major planks of the Planning Scheme is to ensure that there is ‘diversity’ of dwellings! We insist that no bigger hoax has been perpetrated on residents that this bit of fluff and bubble.
There are some other comments that clearly show how little effort is put in by this council to ensure the bona fides of applications. None of this of course is evident in the officers’ report. We’ll simply extract those passages.
During the course of the hearing it occurred to me (ie member) that the shadow diagrams for 9.00am had not been drawn correctly. As a result at the conclusion of the hearing I gave oral orders for an amended shadow diagram to be circulated to all parties within seven days of the date of the hearing, and for the other parties to have an additional seven days to make further submissions, if desired. At the hearing all parties agreed that these timelines were sufficient.
During the course of the hearing Ms Bowden (for developer) submitted that due to the removal of the two existing crossovers to the review site, that one additional on street visitor space is to be created. On this basis, and considering Council’s support for the proposal following the review by their traffic engineers, I cannot see any reason why I should not approve the reduction of the standard visitor car parking requirement by one space.
Ms Silveira (objector), in her concerns regarding the intensity of the development, referred to the risk caused by the increased traffic levels to be experienced in Maroona Road. At no stage during the hearing was I addressed specifically in relation to the existing or anticipated traffic levels, or any difficulties experienced by residents in exiting the street to either Neerim Road or Glen Huntly Road. Given the absence of any such detailed submission, I must give weight to the assessment of the application by Council’s traffic engineers and the support for the development as expressed by Council. I therefore cannot find any reason to refuse to grant a permit based on traffic grounds.
The questions that follow have to be addressed by councillors:
- Why are resident objectors not always informed of amended plans nor council’s agreement to these new plans AND if they are informed why is there not sufficient notice given as required by law?
- Why does this council so often merely accept the developer’s assessment of various elements such as overshadowing, traffic, parking, without checking the veracity of these claims?
- Why did council not check the accuracy of the shadow diagrams?
- Why has traffic engineering not insisted upon the car parking standards?
- How much longer will councillors allow residents in Housing Diversity to be the sacrificial lamb to a flawed vision that desperately needs to be jettisoned?
- How much longer will councillors sit in silence and permit shoddy reports to pass without comment, without serious questioning, and without proper analysis?
- Are we right in assuming that this council has no respect for residents and ostensibly no respect for the legal requirements? If they did, then such incidents would not happen or would certainly not be allowed to continue!
If you know of any other incidents along similar lines then please contact us!
Glen Eira Debates 
March 30, 2013 at 9:56 AM
Even if people got the amended plans and council’s position within the proper time limit I doubt that it would have made any difference to the result. What stinks in all this is that property developers have access to the planning department for months on end and ordinary residents get the heave ho. Someone should do some research on how much time planners spend with developers compared to the time they spend with residents and we’ll see how our rates are being used to support development. It’s not an even playing field and this council is making it worse.
March 30, 2013 at 11:25 AM
And funnily enough when one attends city hall to view the plans as invited.. the effort it takes form the reception and planning department is unbelievable. It has always been very off putting, as i’M SURE INTENDED, and can take up 30 minutes before the correct plan is obtained even when one takes the numbers and address. Just a steeple race of the racecourse!!!
March 30, 2013 at 11:27 AM
This is the 21 century. Computers everywhere and they can’t get a notice out on time. Rubbish. They don’t get them out cos they don’t give a stuff. Plus it puts residents at a real disadvantage.
March 30, 2013 at 6:10 PM
The planning process is pretty broken but I don’t agree that there is a legal requirement for Council to notify objectors of its position prior to a VCAT hearing. In the case of 14-16 Maroona Rd it sounds like objectors were notified of amendments to an existing planning application, as required, and the legal obligations were met. It may be that provisions in Practice Notes were not adhered to, and unfortunately that is up to the discretion of Tribunal Members. I have encountered blatant abuse of the PNs with respect to Expert Witness evidence for example.
One of the shortcomings of the current system is that a matter gets heard by Council or a DPC and a decision is made, but the decision can be overturned by an officer acting with delegated authority. This doesn’t provide the oversight that it should. DPC may require a condition based on the evidence available to it (and to interested parties), then an officer conspires with “our” Traffic Department to roll the DPC decision secretly. And you only find out when you front up to VCAT, and of course are denied the opportunity to cross-examine the Traffic Department officer despite their opinions being treated as “expert”.
I do object to VCAT referring to council officers as “Council”. They are two different beasts. If an officer makes a decision, it is not Council making a decision. Worst of all is where an officer makes a decision that fails to comply with Council policy, which can easily happen since there is no oversight and no accountability in the use and exercise of delegated powers. VCAT somehow keeps confusing council staff with Council.
While Ms Bowden can claim whatever she likes at VCAT, she cannot talk with the authority of Council about on-street spaces if she is representing a developer. It again is an abuse of planning processes and policy to rely on on-street parking rather than have a development meet its internally-generated needs.
The objectors had no hope since the matter was heard by Michael Deidun. As can be seen in his decision, because of Council’s Minimal Change Area policy, he is quite prepared to sacrifice amenity in Housing Diversity areas regardless of SPPF and LPPF policies.
Andrew Bromley had better be prepared to justify his extraordinary statement to the Tribunal that LPPF overrides SPPF ie that Glen Huntly is only a Neighbourhood Activity Centre when Melbourne 2030 clearly and explicitly labels it a Major Activity Centre. It has multiple modes of transport, has shops and services, has open space in close walking distance, has educational opportunities. This is more than some other MACs have.
March 31, 2013 at 11:12 AM
The entire process is flawed and nepotism would seem to be rife. Is the Ms Bowden named in this application the same Rachel Bowden who does or did work for council? anyone know? There’s Bowden consultants – are they related?
Council has also outsourced its traffic management to O’Brien’s. These people often represent developers. I don’t see how any of this can be healthy. There has to be conflicts of interest all over the place when a company is the contractor and at times someone else from that company could be representing the developer. It reminds me of Tang working for a legal firm that took on Penhalluriack and Tang voting on the issues.
March 30, 2013 at 7:22 PM
It’s good to complain loud and clear. Many times it results eventually in a satisfactory response. Examples are: Caulfield Park, kindergarten issue, sporting facility like GESAC, cycling paths, food services etc. However, focus on proper processes although it should be done, is not a fundamental, because that does not solve a problem as such. As a number of Councillors remarked, operational matters are left to the administration and not the Councillors. They are there only to ensure that the operational framework is there. Clearly, that is there and it is not being adhered to. The end result, however, would probably not matter a great deal.
What I am trying to suggest is that the focus should be on the 20/80 rule, which is supposed to protect the 80% of residential areas from over-development. I suggest it does not do that. In addition the real problem is that it should never have been a 20/80 rule. A 10/90 division between housing diversity and minimal change areas is sufficient for Glen Eira. The Council will pay dearly in trying to keep up with its infrastructure and service delivery pressures at the growth rate it is experiencing at present. GED, plse focus on specifics of those pressures as your blog does bring to bear some changes, however small they seem at present. Please keep on keeping on.
March 31, 2013 at 12:06 AM
Your comments explains to residents what is basically wrong with this Council (Councillors and Administration).
Operational matters are left to the administration, Councillors only ensure the framework is there, the framework is not being adhered to.
First off, the definition of operational matters needs to be established – Councillors have delegated too much authority to act to the Administration. For example, if a number of residents contact Councillors re a development proposal which the DPC (delegated planning committee which consists of Council planning staff only – no Councillors) has decided not to submit the development to Councillors, no Councillor is able to “call it in” to be discussed at a open Council Meeting. Ergo, the administration gets to decide what developments Councillors can or can’t discuss.
Second, ensuring that the framework is there is not enough – Councillors are obligated to ensure that the not only is the framework there but that it is complied with. The Administration reports to Councillors – what is the point of having a framework if Councillors do not ensure it is being complied with – it also begs the question of what is the point of Councillors.
Äs for the end result not being much different if Councillors ensured compliance or not – I beg to differ. Councillors acting with due diligence in their elected roles and ensuring compliance with frameworks and expressed community wishes would make a heck of a lot of difference. Unfortunately, due diligence is not a term Glen Eira Councillors are familar with.
March 31, 2013 at 4:32 PM
Where is Frank P when he is most needed. Surely he is the bloke to take the MRC to VCAT to invoke the s173 that lists the conditions that have been breeched by the MRC. In effect their C60 permit is invalid.
March 31, 2013 at 6:24 PM
C60 isn’t a Permit, and in a legal sense is quite separate to the subdivision of MRC land to faciliate the so-called land swap deal. However Cr Lipshutz did unwittingly reveal just how intimately intwined C60 and the Racecourse Reserve were when without discussion the Special Committee agreed to “put on hold” the MRC’s planning application for the centre of the reserve, until such time as the MRC had got what it wanted re C60. C60 establishes a very special Zone where the same officers who waive compliance with our Planning Scheme generally, get to decide without effective scrutiny what will be permitted to be built in the new Zone. The repeated breaches of the s173 Agreement one suspects must be with secret council staff approval (an oxymoron). There are no visible signs of enforcement action being taken.
March 31, 2013 at 10:15 PM
OK c60 is a planning scheme amendment. The planning permits that were issued to the MRC have conditions which appear to be ignored. The responsible authority should have responsible officers that pursue non complying permit holders. . It appears, for some reason that the officers are sitting on their hands. It begs a question. Have letters been written to thye MRC? Will letters be written and when? The MRC may have good reason for the delay in their compliance. If so, why not share it with the people? I suppose the officers may be very busy.
April 1, 2013 at 11:49 AM
Actually, Council now has very little to do with C60. The Special Committee (Hyams, Lipshutz, Esakoff and Piling) voted for it to be Priority Development Zone (or whatever the current term is) which means it is now in the hands of the Minister and residents have lost their right of appeal. The only way residents or the community get a say now is if the MRC makes a significant change which is “not generally in keeping with the original approved plans”. Fat chance of that happening as the Special Committee approved nebulous plans (i.e. no detail, only conceptual diagrams and wording), so nebulous that it will be hard to argue that any any change is not in keeping with the original plans.
The Minister for his part is now supposed to ensure compliance with plans and that the combined Monash University Development and C60 are compatible and will not couse any serious disadvantage traffic, public transport or residents. Another fat chance of that happening as there will most probably be one person handling Monash and another handingly C60 and no one considering what is happening on the other other side of Dandenong Road in Stonnington (latest news is 11 storey apt. retail complex at the corner of Torronga and Dandenong Roads)
April 1, 2013 at 12:34 PM
GECC remains the responsible authority for the Caulfield Mixed Use Area, described in PDZ2, which is Schedule 2 to the Priority Development Zone [S37_06] in GEPS. The schedule spells out the “rules”. A development plan has to be submitted to and approved by the RA, and be “generally in accordance with the Incorporated Plan”. A Permit is not required and a development is exempt from Notice and Review provisions if it is in accordance with the development plan and doesn’t exceed the preferred maximum heights and setbacks specified in the Incorporated Plan.
April 2, 2013 at 7:39 AM
As per Anonymous above, the conceptual nature of the Incorporated Plan means just about any change the MRC makes will be “generally inaccordance”.
For instance, from 1200 dwellings it has become 1500 dwellings – no doubt this will be regarded as a only a 25% increase and therefore “generally inaccordance”. And as for the moving height of the tower on the triangle – it’s anybody’s guess what it will eventually be but you can bet the minimum will be 20 storeys.
April 1, 2013 at 10:45 AM
In planning, there are very few legal requirements around decision-making, and virtually no rules. For all the talk about new Zones, Zones have no legal status—like everything else in a Planning Scheme they are informative, not normative. There is a chance that Council and VCAT might choose to abide by the “requirements” of a Zone, but they can’t be compelled to. Its a bit like the way VCAT can make “Rules” but then specify that Members have the discretion not to apply the rules.
Take Mixed Use Zone for example. As Council knows, one of its purposes is “to encourage residential development that respects the neighbourhood character”. There is a schedule to the Zone specifying a range of “Standards” that apply: setbacks, building height, site coverage etc. These are designed to protect residential amenity and respect neighbourhood character. As can be seen from multiple Council decisions, Council ignores everything that a Mixed Use Zone stands for. VCAT does too.
Council is well aware it has been abusing MUZ, so when C80 came along and despite it being primarily for residential dwellings, Council decided the appropriate zone was Business 2 Zone [B2Z], whose purpose is “to encourage the development of offices and associated commercial uses”. And “coincidentally”, there are no rescode Standards specified in the schedule to the zone. There are still the Guidelines for Higher Density Residential Development, but Council refuses to apply them also.
Little wonder our councillors and council staff have no clue what they mean when they refer to “inappropriate development”.
April 1, 2013 at 11:46 AM
There IS a paucity of knowledge and understanding as to what constitutes “inappropriate development”. Our view is that in Glen Eira the vast majority of planning concerns itself strictly with LAND USE or how many developments can be crammed into a specific, ill defined and non-justifiable area such as Housing Diversity. There is no attempt to update figures, to consider parking, open space, etc. This would require some real work and a strategic vision that is holistic, accountable, and long term. In Glen Eira as we’ve repeatedly stated this simply does not happen. Without structure plans, formal urban design frameworks, parking precinct plans, public realm policies and so much more, Glen Eira is ripe for the picking – as intended we believe!
Another simple illustration of how out of step this council is with its neighbours can easily be found via its failure to introduce Urban Design Frameworks as part of structure plans or even stand alone policies. For all those interested we suggest that the following will make for interesting reading and reveals what can be done to ensure long term strategic planning that enhances rather than destroys neighbourhoods.
http://www.yarracity.vic.gov.au/planning–building/urban-design-frameworks/
http://www.knox.vic.gov.au/Page/page.asp?Page_Id=363&h=0
http://www.brimbank.vic.gov.au/About_Council/Governance/Council_Policies_Strategies_Plans/Council_Strategies/Central_Sunshine_Urban_Design_Framework
http://www.maribyrnong.vic.gov.au/page/Page.aspx?Page_id=2692
http://www.geelongaustralia.com.au/ct/documents/item/8cbc14a19e17c24.aspx
http://www.stonnington.vic.gov.au/residents-and-services/planning/strategic-planning-projects/structure-plans/
http://www.whitehorse.vic.gov.au/Tally-Ho-Urban-Design-Framework-.html
http://www.cardinia.vic.gov.au/Page/Page.aspx?Page_id=1409
Click to access MaroondahUrbanDesignFramework_Volume_1_Internet.pdf
http://www.maribyrnong.vic.gov.au/page/Page.aspx?Page_id=3139
http://www.brimbank.vic.gov.au/About_Council/Governance/Council_Policies_Strategies_Plans/Council_Plans/McIntyre_Road_Urban_Design_Framework_-_adopted_November_2006
http://www.melton.vic.gov.au/Services/Building_planning_transport/Strategic_planning/Studiesstrategiesguidelines/Toolern_Urban_Design_Framework
http://www.greatershepparton.com.au/council/buildingplanning/planning/statutory_planning/adopted_stat_strategies/urbandesignframeworknorthandsouth.html
http://www.monash.vic.gov.au/planning/oakleighudf.htm
http://www.portphillip.vic.gov.au/stkilda-urban-design-framework.htm
Click to access sp_pakenhamtowncentreudf_2004-07-30.pdf
April 1, 2013 at 6:43 PM
When I first got involved in planning issues in Glen Eira, I was staggered at how careless and sloppy developers were in their planning applications. It became clearer after I spoke to Jeff Akehurst, because he emphasized that Council wasn’t responsible and didn’t check for accuracy and that if developers were required to be accurate then Council would have no applications to consider. When pressed on the lack of structure plans and design frameworks, and his vision for the future, he very dismissively waived his hands in the air and simply said “look at Elsternwick”. I can look at Elsternwick, I can see the planning mistakes, but I don’t see how this absolves Council from its failure to plan. For Jeff, its all about his “fast-track” processes, not outcomes or quality of decision-making. The short answer to some of the questions above is that Council does the barest minimum it can get away with. Council has little incentive to comply with Practice Notes since its not the one that suffers as a result.
April 2, 2013 at 8:35 AM
Your summation gives us some in understanding how the Glen Eira Council keeps the rates so low. They only do half the job in some areas. If they stopped mowing the grass it would be noticed. Planning is complicated and they can hide their errors. The shortcomings will stand out in 20 years time when we are surrounded by slummy looking buildings. Cheap rates will be long forgotton.
April 2, 2013 at 6:41 PM
Glen Eira rates are not low anymore. Around year 2000 Glen Eira had the lowest rates, now they are roughly in the middle. Last year the Council approved a 6.5% increase in rates for the next few years, because of its debt position due to GESAC. However, if you look at your total Council payments, which increase by 10% each year. I do not expect to be different this year, rather likely to be greater since fire levy will be part of the additional charge. For people on fixed income this becomes a problem over time.
As to planning flexibility, that is deliberate to ensure greater development. Quality wise it is not Council responsibility, but the builder. Even the certification of planning applications is now done by private Registered Building Certifiers. Council officers assume that the applications are OK.
April 2, 2013 at 6:55 PM
Anon above raises some points about how planning for PDZ2 can be corrupted or perverted. Yup, we are at the mercy of Council, its staff, and VCAT. Its open to interpretation what “generally in accordance” means, but increasing dwellings from 1200 to 1500 I interpret to be *not* in accordance with the Incorporated Plan. It would have flow-on consequences for traffic management, parking, and the supply of dwellings of diverse size suitable to the needs of all residents in the municipality. One of the worst aspects of the Incorporated Plan that Crs Pilling, Esakoff, Hyams, and Lipshutz endorsed, is the placement of a 6-storey building 1 metre from a single-storey dwelling denoted as Lot A. Those poor residents have been threatened and bullied, and have no Review rights if a (MODERATORS:word deleted) council officer decides to allow a 6-storey building in the development plan because its in the Incorporated Plan. Council has form on this, as there are other parts of the municipality where it has supported 100% overshadowing of secluded private open space to help a developer make more money.