About two weeks ago, VCAT held a compulsory conference for the proposed development at 7 Selwyn Street, Elsternwick. Readers should remember the following:
- The proposed height of 9 storeys is the equivalent of the 14 storeys that the Woolies application (directly opposite 7 Selwyn Street) stipulated. The Woolworth’s application was refused by both council and VCAT.
- Council last year granted a permit for the 9 storeys with a vote of 6 to 3 in the face of stern opposition from residents.
Apparently at the compulsory conference the applicant made no concessions in terms of reducing the proposed height. What did come out at this conference however was that council is quite prepared to spend tens of thousands of ratepayer funds to ‘defend’ its decision to grant a permit.
So the stage is set for a major hearing lasting at least 8 days. Interestingly, the developer will be requiring 3 days to present evidence and expert witnesses, whilst council is asking for 4 days to present their 2 lawyers and 4 expert witnesses! So we have the ludicrous situation where council is actively fighting its own residents, spending their/our money, and doing more than the applicant himself in attempting to justify his application!
As far as money goes, we can only speculate how much this will end up costing ratepayers. Most expert witnesses charge at least (conservatively) $4000-$5000 per day. Barristers can charge around $6000 per day and some charge even more. Lawyers are another cost. Our reckoning comes out to at least $60-$70,000 that council is prepared to spend on defending its decision to grant a permit!
Whilst it is reasonable to argue that councils have every right to defend their decisions, and to use ratepayer funds in undertaking this defence, we maintain that it is NOT okay when a permit has already been granted, and certainly not to the extent of 4 expert witnesses plus a bevy of lawyers. Councils do front up at VCAT and argue their case, but this is when they have refused a permit and not when one has already been granted as is the case here.
We also need to take a look at what Glen Eira has been doing at VCAT in the past. The following list of hearings and attendances clearly shows that what council is about to do has NOT occurred previously – especially when permits have been granted. Most of the time a council planner attends and that is the end of the story. Where urban designers have been called, these are the selected consultants on contracts to council.
There are however two cases listed below where lawyers and one expert witness was called when council had granted a permit. Both cases represent different circumstances. In the Horne Street development readers will remember that the application was for 14 storeys and council granted a permit for 8 storeys. The VCAT member severely criticised council for its decision making and lack of strategic justification. The other case involved 411-415 Glen Huntly Road, and this was an appeal against council’s failure to issue a secondary consent within the prescribed time limits regarding amending the planning permit for 8 storeys and demolition of heritage buildings. Much of the hearing centred around what is called ‘accrued rights’ and the introduction of the DDO10. Hence it became an important question of ‘law’.
We have not found any other case at VCAT, where council has gone to the lengths it is doing here to defend a decision to grant a permit. So why is this happening now? What pressures are being applied and by whom? How on earth can council justify spending all this money in fighting its own residents?
In order to support our claims, we present the following list of VCAT hearings for the past few years and those who attended on behalf of council (as listed in the respective decisions). They are under two headings – council refusals of permits, and council’s granting of permits.
DECISIONS WHERE COUNCIL REFUSED PERMIT
348-354 Hawthorn Road, = Mr Kristian Cook, town planner (council).
679-683 Glen Huntly Road, = Mr P O’Leary, town planner, Polplan.
6-8 Bevis Street, Bentleigh East = Mr P O’Leary, Town Planner of PolPlan Pty Ltd
51 Hawthorn Road, = Mr Michael Dowel, town planner (council)
39 Lilac Street, Bentleigh East = Mr Stuart Taylor, town planner.(council)
6-8 Bevis Street, Bentleigh East = Mr P O’Leary, Town Planner of PolPlan Pty Ltd (1ST HEARING)
103 Gardenvale Road,GARDENVALE = Mr M Dowel (Day 1) and Mr K Cook, Coordinator Urban Planning (Practice Day Hearing).(council)
31 Weeroona Road, MURRUMBEENA = Mr P O’Leary, PolPlan Pty Ltd.
371-377 Hawthorn Road and 3 Olive Street, Caulfield South = Ms K Piskuric, solicitor of Harwood Andrews
9A and 9B Muntz Street, = Mr Stuart Taylor, planner of Glen Eira City Council.
31 Weeroona Road, MURRUMBEENA (1st hearing) = Mr P O’Leary, PolPlan Pty Ltd.
9 Marlborough Street, Bentleigh East = Ms Alison Orwin, Senior Urban Planner
12 Wheeler Street, ORMOND = Mr Peter O’Leary, town planner of Polplan Pty Ltd
2 Pearce Street, Caulfield South = Peter English, town planner.
342-346 Centre Road, (time extension) = Ms M Marcus, Solicitor, Maddocks, Mr R McGauran, Urban Design
11 Caleb Street, BENTLEIGH EAST = Mr Andrew Crack, town planner of Crack & Assoc.
45 Hoddle Street, = Mr A Crack, Andrew Crack & Associates Pty Ltd.
81 Dalny Road, Murrumbeena = Mr Andrew Crack, town planner of Andrew Crack
2 Wattle Grove, McKinnon = Mr Andrew Crack, town planning consultant.
24-26 Vickery Street, (time extension) = Ms Sarah Porrit, Barrister, instructed by Ms Jacqueline Simpkin, Solicitor, of Maddocks.
277-279 Centre Road, Bentleigh (time extension) = Ms Mimi Marcus of Maddocks Lawyers
43-45 Kokaribb Road, Carnegie = Mr P O’Leary, Polplan Pty Ltd.
4 Clarinda Street = lucy Bond (council)
430-434 Neerim Road – Ms Mimi Marcus, Solicitor, Marcus Lane
388-394 Hawthorn Road – Mr Zac Van Grondelle, town planner (council)
64-68 Lumeah Road, Caulfield North – Mr Anthony Adams, Principal Urban Planner (council)
42 George Street – Mr Michael Dowel, town planner, from Glen Eira City Council
679-683 Glen Huntly Road – Mr P O’Leary, town planner, Polplan.
348-354 Hawthorn Road – Mr Kristian Cook, town planner.(council)
6-8 Bevis Street, – Mr P O’Leary, Town Planner of PolPlan Pty Ltd
10-16 Selwyn Street – Ms Susan Brennan SC and Ms Jane Sharp, both of Counsel, instructed by Marcus Lane lawyers; Ms Anita Brady (heritage); Mr Tim Biles (urban design);Ms Leanne Hodyl (urban design);Mr Jim Antonopoulos (acoustic);Mr Damien Iles (planning);Valentine Gnanakone (traffic).
51 Hawthorn Road – Mr Michael Dowel, town planner (council)
103 Gardenvale Road = Mr M Dowel (Day 1) and Mr K Cook, Coordinator Urban Planning (Practice Day Hearing). (council)
DECISIONS WHERE COUNCIL GRANTED A PERMIT
9 Faulkner Street, BENTLEIGH = Mr Julian Berzins, Town Planner (council)
Lot S4, PS448063B, 441 Inkerman Road, = Mr K Cook, Coordinator Urban Planning.(council)
10 Quinns Road, = Mr P O’Leary, town planner (council)
335 Chesterville Road, Bentleigh East = Mimi Nuciforo, town planner (council)
1 Portland Street, = Ms Alison Orwin, town planner of Council.
7-15 Horne Street, Elsternwick = Terry Montebello, Solicitor of Maddocks, Robert McGauran (architect) of MGS Architects
506 Hawthorn Road CAULFIELD SOUTH = Mr Alistair Dunlop, development planner (council)
122 Grange Road, Carnegie = Michael Dowel, town planner City of Glen Eira
285-287 Neerim Road, = Mr A Dunlop, Town Planner (council)
51 College Street, = Mr Alistair Dunlop, Town Planner (council)
1207 Glen Huntly Road, = Mr Peter O’Leary, town planner of PolPlan Pty Ltd.
38 Eddys Grove Bentleigh = Ms Mimi Nuciforo, town planner (council)
679 South Road, = Phoebe Hanna, town planner (council)
3 Ripon Grove, = Alistair Dunlop, town planner (council)
411-415 Glen Huntly Road, Elsternwick = Ms Mimi Marcus, Maddocks Lawyers (December 2018)
9 Faulkner Street = Mr Julian Berzins, Town Planner (council)
441 Inkerman Road – Mr K Cook, Coordinator Urban Planning. (council)
39 Lilac Street, – Mr Stuart Taylor, town planner. (Council)
March 18, 2021 at 3:04 PM
Pretty clear that some very influential vested interests are at play here.
March 18, 2021 at 4:02 PM
The listings of vcat decisions are an eye opener. By my reckoning council sends one planning officer alone 90% of the time. It brings out the big guns only when there is major community opposition or trying to cover their arses like the decision in Horne st. I don’t count all the appeals against extension of permits. The permits were given because council was so slow in introducing anything into the planning scheme and then shamed into trying to stop high rise. For them now to want to spend all this money is indefensible. Residents come last again.
March 18, 2021 at 10:53 PM
What is going on here, it simply sounds like the bureaucrats big ego’s have been dinted, and they are using ratepayer cash to take revenge on the residents.
Someone needs to take a big wide broom and do some serious house cleaning in the planning and sweep these repeat reoffenders out the back door into the car park. They can take their little bruised egos elsewhere, like into the real world.
March 20, 2021 at 2:24 PM
Thank you for your diligent work with this list. It is important to appreciate that Council is obliged to defend its deciding at VCAT. It is not going against residents. And I suggest that if the other side brings out the big guns so must council. No residents objected to council using extensive witnesses and expensive lawyers and experts in the Wool worth case
March 20, 2021 at 2:49 PM
With all due respect Cr Zyngier, the two cases are different. Council refused the Woolies application. In the 7 Selwyn Street instance a permit was granted. Also, if you check through all the VCAT cases where a permit was granted, only the time extensions and the Horne Street application had any legal representation and only one had an expert witness. We doubt very much whether residents would see council spending this amount of money on lawyers and expert witnesses as anything but opposing residents.
The issue sadly is now moot given that it has been called in by Wynne!
March 21, 2021 at 3:14 AM
This council formally showed complete irresponsibility when it approved the Dandenong Road Carnegie 12 storey dog boxes many without windows which meant no sunlight or fresh air for several units. The current mayor stated that those who were to occupy these units did not matter in effect as there were about 28. Would’t this have been a great place to have spent the lock down period. One would not need a great imagination to learn how those humans could not cope with life therein!!!!!!
One would of thought our society had come to believe in the health benefits of fresh air and sunlight. In days gone by when society was ignorant of this simple need many died of tuberculosis.
Amazing performances at VCAT too… only the residents pay for personal costs(with no taxation deductions) and the costs for council{indirectly we all pay) but the developers who usually win don’t lose anyway because they must have a large fund from other developments, if they lose it is a tax deduction anyway.
VCAT costs are almost $2,000.00 per day for each side in the major cases… no small amount which must be rung up each day before court beins.