Below are some incredible statements that were made on Tuesday night by Lipshutz and then Hyams on the Council Watch item. Please note carefully:

  • The Lipshutz sudden change of heart with his admission that council policy is ‘deficient’.
  • The Hyams counter that it is still VCAT’s fault!

LIPSHUZ: On the McKinnon application he said that ‘VCAT held again’ on the grounds of ‘policy direction’ in a housing diversity,  decided that in ‘the absence of any neighbourhood character guidelines, there was no requirement to respect this neighbourhood character’. Said that they would be looking at ‘the issue of having guidelines so that VCAT can’t necessarily refuse us’. Said that council is looking at ‘mandatory issues rather than discretionary’ but VCAT in a ‘discretionary situation can look at our policy’ and ignore it. Said ‘we haven’t got mandatory requirements detailing height limits, neighbourhood character, those sorts of things, VCAT will ignore those issues’.

Called the results a ‘mixed bag’ and the reason why vcat decided against council was ‘deficiencies in policy’. Said that council was aware of this and ‘improved’ their situation with the zones but ‘we need to do more than that’ and ‘hopefully that will be addressed in the planning review’. Said that when it comes through ‘everyone will have a chance to speak’ and council will then ‘go to the minister and seek changes’. Claimed that ‘as a council we will be listening to our residents’ and ‘will make sure there are stricter policy guidelines in place’.

HYAMS: said when an application is refused at manager level that means it is ‘so unreasonable’ and therefore more disappointing that it is approved by VCAT which does ‘happen from time to time’. Lipshutz said ‘it’s our policies that are deficient’ but he takes ‘a slightly different view’. Said that VCAT appears ‘to have changed the goal posts’ in that ‘unless you’ve got prescribed neighbourhood character for an area, all of a sudden neighbourhood character doesn’t apply’. Wished that if the ‘goalposts’ were changed that VCAT ‘gave us a couple of years notice to rewrite our policies so we could do what they say’. So ‘neighbourhood character seemingly doesn’t apply’


For Lipshutz to admit that council’s policies are ‘deficient’ is indeed a remarkable first. Sadly, it has only taken him 11 years to come to this realisation! As for his ‘promises’ that council will ‘listen’ to residents, that remains to be seen.

What is even more telling is Hyams refusal to side with his colleague. The same line of defense is used – it is VCAT’s fault and never, ever, his and council’s. However, what irks us most is the continued spouting of untruths by Hyams. He would have residents believe that VCAT has ‘changed the goal posts’ and that council should have been given a ‘couple of years notice’. Utter bullshit as he probably well knows. VCAT has NOT changed the goal posts and council has had at least a decade of VCAT decisions which highlighted the deficiencies of their planning scheme. Council has had plenty of time to address all of these loopholes – especially in relation to housing diversity prior to 2013 and now the new zones. They have steadfastly refused to do a single thing until ordered to by the minister.

As proof of the falsity of Hyams’ statements we cite some extracts from VCAT decisions going back years where ‘neighbourhood character’ and the shortcomings of the planning scheme were referred to time and time again – most clearly for applications involving housing diversity. We could have cited scores and scores of judgements but feel that these examples suffice. The only conclusion possible is that council has known for years that its policies are ‘deficient’ but has simply turned a blind eye to this reality.

No particular neighbourhood character study applies. No relevant overlays or R1Z schedule applies. The surrounding neighbourhood has a relatively wide variety of dwelling types. Haycox v Glen Eira CC [2011] VCAT 1384 (19 July 2011)


Ms Hanson submitted the proposed building did not adequately respond to local policy to facilitate high quality urban design that enhanced neighbourhood character and promoted good streetscape design. …. In this regard she submitted a four storey form would be uncharacteristic of the area which was predominately single storey to the east and two to three storey elsewhere nearby. …..·  All parties acknowledged that local policy 22.07 was not clear in its direction to assess proposals in a Mixed Use Zone. MIG Pty Ltd & Ors v Glen Eira CC [2010] VCAT 1954 (8 December 2010)


The thrust of the Housing and Residential Development policy is that sites in Urban Villages can expect a higher order and density of development. Sites in a Housing Diversity area can expect some change, but less than in the Urban Villages whilst sites in Minimal Change areas can expect a smaller amount of development, such as dual occupancy development to protect the neighbourhood character. The policy does not really deal with differences in extent of development at the interface …..I acknowledge the concern about the building mass impacting on properties in the Minimal Change Area behind the site in Yendon Road but there is little guidance in the planning scheme or the local policy to categorically define the level of acceptability. Perkins Architects v Glen Eira CC [2009] VCAT 437 (19 March 2009)