No surprise that the recommendation for the 19 storey Calvary Health application is a refusal. With over 300 formal objections, wide media coverage, Wynne’s  call for Council to ‘get it right’ and the absurdity of what is undoubtedly an ambit claim, council was left with little option.  Trouble is that they have certainly not done residents a favour with the resulting officer’s report. If anything it has handed the developer enough ammunition to turn council into a laughing stock at VCAT.  The report is incompetent, and worse, deliberately misleading! Here’s why!

One of the major reasons for refusal is council’s sudden interest in open space.  We’re told:

The proposal is inconsistent with the City of Glen Eira Open Space Strategy (2014) as: The proposed public open space is of insufficient size to serve the open space needs of the existing and/or future population.

The area is said to be 457 square metres and consequently not large enough for public open space according to this version of reality. Trouble is that the cited Open Space Strategy (OSS), and the Planning Scheme itself says nothing of the sort! Yes, the area is designated as a ‘gap area’ requiring the creation of 2 Small Local Open Space parks. Clause 22.02 states that the size of such parks can be –


Then on page 75 of the OSS we find the following – the area allocated for Small Local open spaces range in size from 300 sqm up to 2,499 sqm and the larger sized spaces can accommodate large canopy trees.

457 square metres is acceptable as public open space according to both the Planning Scheme and the OSS. Further, council suddenly requires that the open space within the development itself has the capacity to not restrict the type of activities that could take place there.

Once again the OSS disagrees with this statement – Minimise duplication of facilities in Small Local open spaces to provide a diversity of recreational activities in open spaces within a local area, e.g. one Small Local open space could be predominantly for play facilities, while the next provides passive seating and open grassed areas. (page 261). In other words, Small Local Open spaces should be treated as unique sites and not be seen as providing options for multiple users and uses.

We also get the demand for a land contribution instead of a cash payment. Whilst the OSS and the Planning Scheme does list council’s preference for a land contribution here, nothing is mandatory. Council ‘may’ request a land contribution if they so wish, or opt for the cash alternative. Which they so happily did with the Virginia Estate amendment that is also listed as suitable for a land contribution. The Gillon Group then revealed that they had offered land but Council insisted on cash. Why the inconsistency is of course the crucial question.

Next there is the question of ‘neighbourhood character’ and council’s ‘policies’. We agree that 19 storeys is a joke. But so is the Planning Scheme and its ‘summary’ of ‘neighbourhood character’ in this area. The fact that any ‘policy’ can be so general, cover such an immense area, and be so wishy-washy, is hardly something that can be relied upon at VCAT!

Character Area 9: Elsternwick – Caulfield South

Character Type: Edwardian / interwar garden suburban base with modern overbuilding (infill development)

This area has an Edwardian and interwar base, with a range of modern overbuilding that creates a mixed character.

Many of the original buildings are constructed of timber.

The area generally has well established gardens with low to medium scale vegetation and regular planting of street trees. Occasionally private gardens include substantial trees and several streets are defined by their avenue planting.

It includes the areas of significant neighbourhood character around St James andRiddell Parades, which is valued for its intact Victorian, Edwardian and Interwarstreetscapes and the strong vegetation quality. (Clause 22.08).

Council also relies on its claims about ‘potential flooding’! Please note:

  • There has been no referral to Melbourne Water
  • There is no Special Building Overlay (SBO) impacting on the site (see image below)
  • All the VCAT member has to do is look at this nonsense and chuck it out. This of course doesn’t explain the fact that given all the flooding since at least 2011, Council has sat back and done bugger all about its SBO’s


The most important omission in our view is any discussion as to the legal interpretations that should play a large part in any VCAT hearing. Council simply states –

The mandatory height limit applies only to land used as a “Dwelling” or “ResidentialBuilding”. Any other use is not subject to the mandatory height.In this instance, the proposed “Residential Aged Care Facility” building fronting Ludbrook Avenue is the only component of the development which is subject to the mandatory height limit of 9 metres (as the slope of the land is greater than 2.5 degrees). The balance of the development including the nineteen storey building comprising the retired living units is exempt from the mandatory maximum height under the zone.

When 86 so called ‘independent living units’ are crammed into a 19 storey building, and some of these will include 3 bedroom apartments, then surely it is at least worth raising the issue of the status of such a proposal. Could they in any shape or form be considered as ‘dwellings’? If they are ’dwellings’ then they come under the Neighbourhood Residential zone requirements of an 8 metre mandatory height limit! Even the Planning & Environment Act would appear to provide some solace here with its definition of ‘dwelling’. Council simply ignores, or at best, skims over this vital consideration!

“dwelling” means a building that is used, or is intended, adapted or designed for use, as a separate residence, (including kitchen, bathroom and sanitary facilities) for an occupier who has a right to the exclusive use of it …..(planning and environment act, 1987 – definitions Section 46H)

There are plenty of other gaping holes in this Rocky Camera report. Until the competence of the planning department improves dramatically and until officer’s reports are accurate and not misleading, we do not hold out much hope that residents can have any faith in what is presented on the written page!