Hyams moved motion to accept ‘as printed’. Seconded by Magee.

HYAMS: started by saying that there is ‘frustration’ that VCAT gets away with ‘pretty much ignoring our policies’. The act ‘requires VCAT to consider’ policies ‘rather than apply them’. Said that council went to the Supreme Court ‘many years ago’ about this and was ‘declined’. ‘Residents are continually let down by VCAT’. Admitted that it is ‘hard’ to compare applications that are exactly the same but claimed that ‘when VCAT is not bound by our policies’ it creates ‘uncertainty’ and that doesn’t ‘benefit’ anyone including ‘applicants because they don’t know what they can apply for reasonably’. Council will continue advocating like they have to ‘several governments’ for change.

COMMENT – When the new zones were introduced in secret, without community consultation, the argument went –

The new arrangements make clear the intensity of development that is allowable on any block. That provides certainty and “…as VCAT’s areas of discretion are reduced, Councillors’ views and decisions carry more weight. (Source: council ‘Guide to the Community’ from 2013). Now we have the reverse argument it seems – the zones have not brought ‘certainty’! Our view is that applicants know exactly where and what they can build because the zones tell them that this site can have 4 storeys, and that’s what council is encouraging you to build!

MAGEE: societies ‘live by what is reasonable’ and when the ‘majority’ want to go ‘left, we go left’ and when right, ‘we go right’. The Government requires a planning scheme and council ‘over a two year period talked to our residents’, ‘we consulted widely’. They produced a ‘booklet of what our residents wanted’ which ‘looked street by street’ and they ‘identified where high density should be’ near stations and the areas further away was ‘that’s where you want your minimal change’. So over time and ‘many many consultations’ the document ‘called the Glen Eira planning scheme’ was produced. This was approved at all levels. This was what council and ‘what our residents wanted’. But VCAT ‘has the right to ignore’ so there is a ‘statutary body ignoring what your residents have said’ like height limits and ‘increased setbacks’ and residents wanted to know where high density would go and ‘that is what you got’ with the planning scheme. ‘I believe we have a very, very good planning scheme’. Last year ‘VCAT approved 582 apartments’ that had been refused by council and that was because ‘it wasn’t consistent with our planning scheme’. ‘Our planning scheme is what our residents said they wanted’. Council ‘went to the community’ and asked ‘Do you approve?’ and residents said ‘yes’. The minister then approved but VCAT ‘only have to consider it’. So when council consider buildings of 9 or 2 storeys ‘we look at residential building codes’, and the planning scheme. Councillors ‘sometimes’ give a permit to ‘buildings we don’t like’ mainly because ‘there are no grounds for refusal’. ‘It is wrong to say we want this and then to vote for something different’. Council and community has ‘asked’ for this planning scheme and that is ‘what is so disappointing about VCAT’. VCAT is ‘like a box of chocolates’ in terms of its members that ‘you don’t know which one you are going to get’. You can ‘have a good member or a member that just goes to the letter of the law’. This isn’t ‘how society works’. Society ‘works in an environment where we want to make it better’. Said that no councillor wants a resident to ‘live near a 4 or 5 or 6 storey’ building. Reiterated about the current zones – ie two storey height limit in Neighbourhood Residential Zone and ‘98% of Glen Eira has a height limit’. ‘We have done what our residents have asked us’. It is ‘disappointing’ when VCAT ‘come back time and time again quoting ResCode’ and ‘totally ignoring the Glen Eira planning scheme’.

COMMENT: we need not comment on the above because the hypocrisy is simply mind boggling and frankly insulting. When Council can publish documents which state that they didn’t seek community input because they knew that residents would be worse off, and Magee can resort to using such terms as ‘consultation’ and imply democratic process, then this speaks loudly and clearly enough.

DELAHUNTY: they wanted the report to ‘show inconsistencies’ but what it ‘more outlines’ is the ‘frustrating nature of those inconsistencies’. Claimed that some members provide reasons for upholding council decisions and others use these very same reasons to ‘overturn’ council decisions. Council was trying to help those who have power to ‘understand the frustrations’ of council. Admitted that ‘it is very hard to find an apple and apple comparison’ but reading through decisions ‘you find yourself agreeing with the member’ one day and then the next there is a different decision. Said that ‘subjective decisions’ are relied up by both VCAT and councillors. That is ‘right’ because ‘we are closest to the community, we live in the community’ so that ‘sometimes we need that ambiguity’ in the planning scheme. This sometimes means that ‘we will apply some differences’ to the policies. (gave example of a previous decision for synagogue extension in Inkerman Road). ‘We do it ourselves’ we ‘change and we interpret our policies’ differently according to circumstances. When VCAT does this is it ‘frustrating’ because they are not ‘the closest to the community’. Hoped that government and VCAT would be ‘able to learn’ from the report as well as ‘council’ learning from ‘the way we have formulated the scheme’ and since they have ‘always stayed away from structure plans’ but maybe if they looked at ‘other councils’ that ‘have structure plans’ and how they go at VCAT but officers have said that they don’t fare any better – ‘it is not the case’. Hoped that ‘community voices’ and the ‘petitions’ will make government ‘take it into account’ in bringing the VCAT ‘member’ and the ‘decisions’ ‘closer to the people’. Thought that the report provided ‘enough’ for council to ‘advocate very strongly’.

COMMENT: how many times has Delahunty got on her high horse and demanded that ‘policy’ be adhered to by council? Examples – McKinnon Bowls club for one? Radio antennaes on council towers? If we are talking ‘inconsistencies’ then perhaps Delahunty needs to look at her ‘consistency’ levels when it comes to advocating on adherence to ‘policy’ or even the need to ’ ‘create’ policy to guide council decisions

SOUNNESS: thought planning was like the Japanese ‘chinko’ game where balls ‘go up’ and ‘down’. Going through all the processes ‘the community is bemused’ and the ‘planning officers do their very, very best’. Supported the ‘intent’ of the report but advised that people should read the ‘dense, turgid’ member decisions which are ‘quite entertaining’. This is the current state of the planning system and VCAT members have got ‘enormous discretion to go any way they want’. Didn’t think that council and planners have ‘got good tools to work with’. Has seen other places where the system works ‘with much more clarity’.

OKOTEL: shared the ‘frustration’ of all and ‘it is clear there is inconsistency in VCAT’s decision making’ especially on ‘neighbourhood character’. VCAT ‘interprets that very, very differently’. When council determines something they are a ‘quasi-judicial body’. It goes through the planning department and they consider ‘planning policy’ and put in their recommendations and ‘we apply’ the planning laws again. At VCAT there is an ‘unelected representative’ making a decision ‘as one person’. They ‘don’t have the same level of understanding’ as to ‘what is important’ to residents. The inconsistencies ‘are troubling’ because they ‘create uncertainty’ even for councillors because they have to think how VCAT will respond if an appeal goes in. Said this was ‘hard because we have consistently seen inconsistent decisions’.

COMMENT: and when council delegates practically all of its planning decision making to officers, who are also ‘unelected’ and probably don’t live in the municipality – then how different is this? As for the old chestnut, or thinking will need to consider what VCAT might do – could any councillor, please point to the exact clause, or section, of the Act which says this is part of any planning decision making process?

LIPSHUTZ: agreed with everyone and said ‘what a difference’ between democracies and ‘tin pot’ countries. In democracies, legislation and the courts ‘are separate’. In Australia, at all court levels judges are ‘appointed’ until they are 70, but not at VCAT where ‘members are appointed for a term’. ‘If they don’t follow the guidelines of government’ they won’t be reappointed. Said ‘there is no independent judiciary’. Also decisions by magistrates or supreme courts create ‘precedents’ and they are ‘independent’ and ‘make decisions irrespective of what the government said’. ‘The members of VCAT are not independent’. All members whether Labor, Liberal are ‘beholden’ to make decisions which are ‘in accord with government policy’ or ‘they do not get reappointed’. If this was ‘addressed’ then ‘some of the problems we are talking about today would disappear’.

COMMENT – we suggest that Lipshutz should start reading some VCAT judgements in order to discover how often members refer to previous decisions (in effect as ‘precedents’). As for high court judges, and state judges, Australian history is full of contentious ‘political’ court appointments!

HYAMS: endorsed Lipshutz and said the report ‘gave some hope’.