A couple of basic questions to start with:
- How much does it cost ratepayers to defend the indefensible at VCAT?
- How ‘competent’ are our planning staff, or
- Are we witnessing the expansion of council’s agenda that is designed to reinforce the image of VCAT as the awful ‘villain’?
For the past year or so, council via ‘manager’ has refused an extraordinary number of planning applications for 2 double storeys in the Neighbourhood Residential Zone. These applications then invariably head off to VCAT and we estimate that over 90% are granted their permit and council’s refusal is set aside.
Here is a sample and the full summary for the past year is uploaded HERE 
The applications in this image are all well and truly over 600 square metres and one is over 700 square metres. Surely, any ‘transgressions’ could have been remedied via thoughtful conditions rather than incurring the costs of going to VCAT for both the developer and council.
What is literally staggering is the quality of the council arguments that then occurs at VCAT. A recent VCAT decision must surely take the cake for the most inept and farcical attempt to defend council’s refusal. We quote:
- The responsible authority’s key concern focused on the rear of the site and what it considers to be an open backyard character of the area. In particular, it was concerned that the rear setback of the first floor of the proposed dwelling 1 would be closer to the rear boundary of the subject land than the rear setback of the older dwelling at number no.16 Molden Street. It submitted that the rear setback of the first floor of the proposal should not extend deeper into the review site than the rear setback of the existing dwelling at no.16 Molden Street.
- We do not agree with the responsible authority that it is appropriate the prevailing setback to the rear boundary of a dwelling built some seven decades ago should prescribe the rear setback of one or two new contemporary dwellings. Simply ruling a line across the subject land aligned with the setback of the existing older dwelling on no.16 Molden Street does not comprise site and context responsive design. It is a very blunt tool to use to determine whether a proposal is respectful of the existing character of the area. More importantly such an approach has no basis in the scheme.
So the questions remain:
- Why are so many applications in NRZ being refused? Surely they can’t all be that poor? and especially when they meet all the NRZ schedule requirements for site coverage, height, permeability, setbacks as the one cited above has done?
- Why is council content to waste its planners’ time and effort in defending the indefensible?
- How much is this costing ratepayers – especially in an era of supposed cost cutting and pressures on councils to be far more frugal and proficient in what they do?
- We suggest that instead of spending tens of thousands on such cases, that council should employ far more competent planning staff to deal with the current planning chaos that is Glen Eira!
PS: in order to provide a little more context to the above we add the following – a list of all published VCAT outcomes from January 2016 to the present day. All decisions involved 2 double storey applications in the Neighbourhood Residential Zone. Council’s record as revealed below is literally appalling with only one ‘refusal’ upheld and only several ‘varied’ – ie council’s conditions chucked out. More applications are awaiting decision.
8 Bokhara Road, Caufield South – set aside
45 Mortimore Street, Bentleigh – affirmed
285 Alma Road, Caulfield North – set aside
20 Cushing Avenue, Bentleigh – varied
40 Fromer Street, Bentleigh – set aside
19 Thomasina Street, Bentleigh East – set aside
12 Anarth Street, Bentleigh East – set aside
20 Begg Street, Bentleigh East – varied
1 Heatherbrae Avenue, Caulfield – set aside
6 Glenmer Street, Bentleigh – set aside
309 East Boundary Road, Bentleigh East – set aside
6 Burreel Avenue, Elsternwick – set aside
3 Malcolm Street, McKinnon – set aside
1 Jane Street, Bentleigh East – set aside
633 Warrigal Road, Bentleigh East – set aside
7 East Boundary Road, Bentleigh East – set aside
1A Osborne Avenue, Bentleigh – varied
8 Murrong Avenue, Bentleigh – varied
34 Omar Street Caulfield South – set aside
25 Coates Street, Bentleigh – varied
2 Draper Street, McKinnon – set aside
5 Lord Street, McKinnon – varied
3 and 4 Beatty Crescent, Bentleigh – set aside
18 Richard Street, Bentleigh East – set aside
30 McArthur Street, Bentleigh – set aside
Glen Eira Debates 
May 16, 2017 at 3:19 PM
Knocking back so many of these is nuts and a waste of money and resources that should be put to better use.
May 16, 2017 at 4:45 PM
Let’s the bullshit artists Hyams and Magee say we rejected 1000 dwellings and nasty ol vcat let them through.
May 16, 2017 at 5:14 PM
Well if they approved and didn’t knock back dodgy applications, they would get a kick in the pants from residents and from us council watching bloggers. So, from them, the bureaucrats and the councillors it’s better to let VCAT do their dirty work isn’t it?
The money spent to run this sideshow isn’t theirs so I’m speculating it matters little.
May 16, 2017 at 6:42 PM
All can’t be “dodgy”.Must be over 100 refusals in the uploaded pdf and on big lots some of them. “Managers” are only supposed to refuse if downright out of kilter with the planning scheme. Will never accept that a developer wouldn’t try to get his application passed without the time lag and cost of going to vcat. This is council’s baby for political purposes – full stop and it’s costing us plenty.
May 16, 2017 at 9:51 PM
I take a different view regarding several of the applications. VCAT appears nowhere in the Planning Scheme and has absolutely no statutory role in the assessment of an application according to the “decision guidelines” by the Planning Authority.
Council officers should implement Council policy, and in the case of applications for two double-storey dwellings in Minimal Change areas it is explicit policy to discourage the siting of two storey or multiple storey dwellings at the rear of sites. Refusing a permit and contesting at VCAT is a form of discouragement.
VCAT doesn’t respect the Glen Eira Planning Scheme, in fact it shows contempt for the concept of representative democracy. It is not VCAT’s role to replace Council’s policies with its own even if, in their incompetent view, Council’s policies are silly.
May 16, 2017 at 9:56 PM
Please note that this application was NOT for a double storey behind another double storey. It was for 2 ATTACHED (ie side by side) double storeys – something very, very common in Glen Eira. Furthermore, the point we make is that when council fronts up at VCAT it should argue on the basis of its planning scheme and as the member pointed out, not concoct arguments that have no basis in the respective scheme.
May 17, 2017 at 5:21 PM
I have provided a plausible and reasonable explanation for why two double storey developments on a single lot may be refused at Manager level. The Planning And Environment Act is explicit that the responsible authority may refuse to grant a permit on any ground it thinks fit. [The converse is NOT true.] If Council does argue for something that is not explicitly in the Scheme then it is more exposed to being rolled by VCAT, but not all material that must or should be considered need be in the Scheme. 60(1A)(g) covers this.
As an example of VCAT making policy and basing its decisions on matters that aren’t in the Scheme, consider how many decisions use the expression “emerging character”, and then search for the same expression in the Glen Eira Planning Scheme. It should be clear that VCAT makes decisions on criteria that aren’t in the Scheme and that form no part of the decision guidelines.
May 17, 2017 at 5:33 PM
Thanks for your comments Reprobate. It seems as if 2 wrongs do make a right in our council. From the minutes of 12th April, 2017 –
The height and scale of the proposal are in keeping with the emerging character of the area
encouraged by State and Local Policy. (page 4)
AND
To achieve a consistent street wall height of approximately three storeys which responds to the
emerging built form along Hawthorn and Glen Huntly Roads. (PAGE 1 OFTHE DDO) (Minutes of 21/3/2017)
May 17, 2017 at 9:42 AM
VCAT does good work in some areas. Planning isn’t one of them. Would leaving planning issues at a local level, with and our councillors having the last say be a better system?
I think of the Hyams, Lipshutze, Pilling and for a time the self confessed developer Cr. Ho, this lot dominated Glen Eira council, putting community interest and important planning issues and decisions in the hands of these partisan Liberals was a disaster. Frogmore was a prime example of this.
If democracy means sending a planning depute to a body of pseudo judges whose decision cannot be scrutinised or challenged is inviting corruption inconsistencies, but what is an alternative?
Our council officers could and should base their arguments on the planning scheme, but wouldn’t VCAT would just shift the goal-posts in favour of their developer mates, and back it up with nonsense, surly they are masters of this.
May 17, 2017 at 4:03 PM
Vcat bends over backwards to give developers what they want. Council makes it all that much easier for them with rotten defense and a rotten planning scheme.
May 18, 2017 at 9:04 AM
How’s this? http://www.heraldsun.com.au/news/victoria/councils-spend-millions-defending-planning-decisions-at-vcat/news-story/857fb4480d73d346d7bc5818239fcd2b
May 18, 2017 at 4:51 PM
The article is bordering on the ridiculous. Might as well have a headline “VCAT spends millions thwarting democracy”. Beside if the HUN can be believed, Councils “win” more often than they lose. Most of us who have been to VCAT have reluctantly got involved because a developer has requested a review of a Council decision. It is the developer costing us all millions, and they’re not even happy when we spend tens or hundreds of millions on infrastructure to subsidize their developments.
And then there’s the soundbite from Danni Addison, CEO of Urban Development Institute of Australia [think they may have a conflict of interest?]. She demonstrates an ignorance of the law concerning planning. The Planning and Environment Act does NOT determine what decisions should be. It specifies processes, and provides a list of criteria that allegedly must or should be considered in making a decision. What the law actually says is “the responsible authority may decide to refuse to grant a permit on any ground it thinks fit”.
Further, when a Council makes a decision, it does so not only under PAEA but also the Local Government Act. And LGA says “the primary objective of a Council is to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions”. When VCAT makes its highly political decisions, as it does, it has no regard for the principles of representative democracy, isn’t a democratically elected body itself, doesn’t represent anybody other than the government [their employer], and aren’t accountable for the consequences of their decisions. In practice they don’t even have to comply with their legislation because it is mostly unenforceable.
VCAT survives only because relatively few of us have participated in a VCAT hearing. Over time more and more of us will be exposed to its nonsense and the community may finally demand reform.