Glen Eira Debates

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’.

MOTION PUT AND PASSED UNANIMOUSLY

Item 9.8 of the current agenda continues the council tradition of presenting officer reports that are sub-standard and which tell only half the story. Here are our explicit criticisms of the Camera Report which was supposed to present evidence of the ‘inconsistencies’ of VCAT decisions:

• Of the hundreds of cases that have gone to VCAT, Camera plucks out only 6. Why these specific 6 are chosen is not explained.
• Much vital information such as land size, council accepting amended plans, etc is not reported upon – thereby guilty of selective editing at best, and at worst, misrepresenting the truth.
• Comparing cases in Minimal Change versus Housing Diversity is like comparing apples and oranges given that the latter has practically no protection written into the planning scheme.
• Why are there no Residential Growth Zone cases included? – overdevelopment in this zone is surely the biggest complaint from residents? (ie Bent St., Mavho St., Elliott Avenue; Neerim Road, etc. etc.)

We conclude that the report is useless except as another piece of council propaganda and damage control. It fails to reveal what has really happened at VCAT and the role of council’s too frequent incompetence in handling cases.

First off, we wish to highlight several comments made by VCAT members on the cases presented by Camera. They encapsulate everything that is wrong with this planning scheme and why council claims of ‘inconsistency’ (especially in these cases) are hogwash.

“This brings us to the most difficult issue in this case – how does this proposal respect the neighbourhood character? The purpose of the General Residential Zone (GRZ) includes implementing neighbourhood character policy and encouraging development that respects the neighbourhood character of the area. Clause 55 elaborates on this by encouraging development that either respects the existing neighbourhood character or contributes to a preferred neighbourhood character. A preferred character would be one identified through a neighbourhood character policy. In this case, the Council submits there is no preferred neighbourhood character statement or policy because this site is in a Housing Diversity Area. Unfortunately, the Housing Diversity Area Policy provides no helpful guidance on how development in such areas should respect the neighbourhood character. Similarly, the Schedule to the GRZ does not contain any requirements other than the maximum height of 10.5-11.5 metres. So we are left with having to make a decision about how a modern three storey apartment building will respect the existing neighbourhood character”. (from the Penang Street judgement)

There’s also this succinct summation of the problem –

“The residents do not want an apartment building on this site. Many of them are opposed to the significant extent of change envisaged and encouraged for this neighbourhood in the planning scheme. The Tribunal must consider the acceptability of a proposal having regard to the physical context and the planning policies and controls that are in the planning scheme or that are seriously proposed to be included in the planning scheme (e.g. a well advanced planning scheme amendment). In this case, the Council has not advised that there are any proposed planning scheme amendments of relevance. Hence, we must consider and give weight to the planning scheme policies and controls. If the residents consider these controls and policies are not appropriate for this neighbourhood, that is a matter for them to pursue with the Council acting in its role as the planning authority for the municipality (responsible for proposing changes to its planning scheme)”.(Penang St.)

Here are the cases listed by Camera. We will provide the background information that Camera just happened to omit from this report.

4 Lilac St (zoned GRZ) – one lot of 650 square metres. Proposal 3 storey and 10 dwellings

This case boiled down NOT to an ‘inconsistent’ interpretation of council policy but overall developer greed. Here are some quotes from the judgement –

Its sheer three storey presentation to the north is a particular concern, with the skewed visual ‘weighting’ of the building toward the adjacent property to the north when viewed from Lilac Street. It is also relevant that the upper level does not meet the ResCode B17 setback.

This combines with what I regard as a compromised level of internal amenity by virtue of screening for upper level dwellings, a southern orientation for some secluded private open space areas and fenced secluded private open space within the frontage setback.

The aim to fit too much on this site is also evidenced by the extent of boundary construction which includes a vehicle turntable within the basement to provide sufficient space to manoeuvre. It has also resulted in minimal side setbacks for in ground planting to assist a building of a vastly increased scale to integrate within its surrounds.

Significantly the proposed provision of screening to this development, while intended to satisfy ResCode, is excessive and would result in unacceptably diminished liveability for future residents, especially where used on small and confined balconies. For example, on level 2, all windows and balconies for dwellings 5, 6 and 7 are entirely screened.

In addition, it is concerning that Dwelling 3 would be provided with poor solar access to its open space that would not comply with B29 of ResCode.

I regard these aspects of the design as further indicators of excessive development proposed for this site.

36 London St (zoned NRZ) – 650 square metres. Two double storeys.

In this case Camera neglects to inform readers that amended plans were submitted by the developer and that apart from a few further ‘modifications’, Council had found these new plans ‘acceptable’. An objector appealed to VCAT. Given that the application basically met all of the ResCode ‘standards’, this decision again had nothing to do with being consistent or inconsistent, but adhering to what the planning scheme said. In this example Camera quotes council’s concerns about ‘upper floor and bulk’ but he neglects to state the following –

The Council supports the amended design response of increased setbacks from the eastern boundary of Unit 2 that faces Ms Rodger’s property. The amended plans propose 2m at ground level and 2m up to almost 4m of the first floor. The Council believes these setbacks provide sufficient visual relief from building bulk because of the resulting vertical and horizontal articulation, and that the setbacks will allow an acceptable degree of landscaping.

It is common ground between the parties that standard B17 is not only met but that the proposed side (and rear) setbacks readily exceed those that would be calculated under this formula. The dispute about this proposal is whether the amenity objective will be still met notwithstanding this compliance with B17. To a lesser, but no less relevant degree, issues are also raised about neighbourhood character of the building form.

The rear setbacks of 11m at the upper level and 10m of the lower level are almost three times the rear setback requirement of 4m under schedule 1 of the zone. In the context of its relationship to the adjoining open space to the west, I agree with the Applicant that the combination of these setbacks and the building forms articulation provide an acceptable level of relief from building bulk and massing.

4-6 James st (zoned GRZ) – land size is 2462 square metres. Proposal is 3 storeys and 45 dwellings.

Being within a residential area very close to the commercial area of the neighbourhood centre, high density residential development is expressly encouraged by local policy. There is a clear strategic direction for such areas

The proposal accords with the policy at clause 22.07-3.1 to ‘Encourage the consolidation of sites to promote residential development opportunities’ in the residential areas of Housing Diversity Areas. It is also policy to ‘Encourage a decrease in the density of residential development as the proximity to the commercial area of the neighbourhood centre decreases’. Conversely, an increase in density is to be encouraged on sites close to the commercial area. The subject land is very close to the core of the activity centre/commercial area, in that the laneway to the north of the subject land is the boundary of the commercial area.

With respect to the site context, it must be appreciated that the neighbouring properties are also within a Housing Diversity Area and are thus candidates for a change in character. In particular, I agree with Ms Bowden that there is no rationale to modify the proposal to be more deferential to residential neighbours such as property to the north. Indeed, an application to redevelop 2 and 2A James Street was lodged this year. The plans tendered by Ms Bowden show a three level building accommodating six attached townhouses. The application has not yet been advertised, and it may be a long time before a development is approved, but there is clearly an intention to redevelop that land. Furthermore, the owner of the land to the north offered no objection to the proposed development on the subject land.

The immediate context includes the development at 18-20 Etna Street. The Tribunal proceeding regarding that site was an appeal by objectors against the Council’s decision to issue a permit for a four storey development. There is also a four storey development on the southwest corner of James Street and Glen Huntly Road, a short distance to the north of the subject land.

No concerns have been raised by any third parties about the impact of the proposed development on neighbouring properties.

Prince Edward avenue (724 square m) (zoned GRZ) – proposal was 3 storeys and 10 dwellings

In this case, greed is again the main culprit

In principle, I consider that the zone, the absence of overlays, the consideration of relevant planning policies and the locational attributes all lend support to a more intensive development on the review site. Although residents may prefer medium density developments of not more than two or three double storey townhouses, that intensity of development is inconsistent with the extent of built form expected within a neighbourhood centre and in a housing diversity area.

However I make the point that more intensive development does not necessarily mean that individual lots along Prince Edward Avenue  will be capable of accommodating three storey apartment style buildings containing ten dwellings. It may be, for example, that individual lots are unable to comfortably accommodate such development and that lot consolidation will provide a means whereby such buildings can be comfortably accommodated in this area. It is certainly the case that policy at Clause 22.07-3 encourages lot consolidation to promote development opportunities.

They also concern those ResCode requirements which are not subject to assessment against a numeric standard but which, when taken together, suggest the proposal is trying to do ‘too much’ on a single width suburban site. These include the location of ground level open space for Dwellings 1 and 2 in the front setback behind a 1.8 metre high fence, the location of the primary area of open space off the living area for Dwelling 2 on the south side of the building and shadowed during the relevant equinox assessment period (the secondary open space for this dwelling in the front setback is accessed through a bedroom), the small 8 and 8.4m² first floor balconies at the rear screened on all sides, and all upper floor windows except those facing the street have high sill heights or are screened to avoid overlooking. A number of these shortcomings were discussed at the hearing and could be addressed by permit conditions requiring changes to the design. However, those changes do not address the issues of scale and density which I have discussed earlier in my reasons.

Penang st (zoned GRZ)

This judgement basically says it all. Policy is adhered to throughout and council’s ineptitude is also clearly evident. Please note that this case involves 2 judgements. In the first, the VCAT member made an interim order requiring amended plans. These ‘new’ plans he deemed to have met all conditions required. The following quotes are from both judgements – again something that Camera does not mention.

From interim order – Whilst we are cognisant of the residents’ submissions and photographs tendered about the overland flow, the view of the Council is that this site is not affected by a probable 1% in any one year occurrence of flooding from the local Council drainage system; and the view of Melbourne Water is the northeast corner of the site is below the applicable flood level for the  Penang Street  road reserve. The amended design addresses the potential for flooding of the basement in a manner that is acceptable to Melbourne Water. For these reasons, we are now satisfied that the implications associated with the potential for overland flow have been fully considered by the relevant authorities. In absence of any further submissions or evidence regarding the flooding potential of this site, we must give weight to the views of the relevant authorities. As such, there is insufficient reason to refuse this proposal on the basis of this issue.

This site is a consolidated parcel of land comprising two residential lots at the southeast corner of  Penang Street  and Graham Avenue. Apartment developments already exist in the neighbourhood centre close to McKinnon Road. This proposal for a further apartment building contributes to the mix of dwelling types that are encouraged. For all of these reasons, an apartment building on this site is an acceptable planning outcome.

If there was any doubt about the extent of change envisaged for this neighbourhood (e.g. units and townhouses rather than apartments), the nomination of a maximum building height clarifies this. A building height of 10.5-11.5 metres is not akin to the mostly two storey recent developments referred to by Mr Ziltzer. Rather, it is a three storey building height. This means a three storey apartment building on this site is an acceptable planning outcome.

The Council does not oppose the proposed reduction of one on-site visitor car space and raises no concern about any impact upon available on-street parking. On the basis of Ms Dunstan’s evidence and the Council’s support for this aspect of the proposal, one additional residential visitor car parking on the street is an acceptable outcome that will not adversely impact upon the general availability of on-street parking.

The residents are concerned that the traffic generated by this proposal will adversely affect traffic safety in the surrounding road network. They made mention of recent accidents involving bicycles and pedestrians in the surrounding major roads, particularly McKinnon Road, that are not included in Ms Dunstan’s evidence. Their concern is not shared by the Council or Ms Dunstan.

There will be shadow cast by the proposed building towards Claremont Terrace. However, the setbacks of the building from Claremont Terrace comply with the clause 55 standards in regard to overshadowing of open space and north facing windows. This is not to say that this proposal will not have an impact. It will, but the impact is acceptable and continues to provide for some sunlight access to the north facing units and the communal open space area along the north side of Claremont Terrace.

We acknowledge that the development of a three storey building on this site will impact upon the extent of westerly sunlight enjoyed by 6  Penang Street  . The planning scheme only seeks to provide a level of protection to northern sunlight, so there are no design standards relevant to the loss of morning or afternoon sunlight. When this fact is combined with the context of a residential zone that allows for buildings of between 10.5 and 11.5 metres in height, the loss of afternoon sun is an acceptable amenity impact in this case.

Overall, there will be a significant change to the west side of 6  Penang Street  and the outlook from the west facing windows and from within the rear open space area will be different. This extent of change is acceptable because of the planning controls and policies that apply to this area.

The Council made no submissions about this issue (flooding) during the hearing. Its drainage engineering referral comments request no net increase in peak stormwater runoff in Council’s drainage network with post development stormwater discharge to be maintained at pre-development level for 10 year ARI. There is no mention of whether there are any potential overland flow issues for the basement car park or the ground floor apartments, particularly those cut into the natural ground level. The Applicant submits this issue is a matter for the drainage authorities to address by reviewing the SBO in light of submissions such as those made by these residents. The Applicant sought advice from the Council during the hearing about this issue. We were told the Applicant was unable to obtain any information about a flood level for this site, and that the Applicant was advised there is no proposal to place a flooding overlay on this site.

CONCLUSION

There is absolutely nothing in Camera’s report to support the contention that VCAT is ‘inconsistent’ in applying council policy. We would in fact argue the reverse – that in every single one of the decisions listed, the VCAT member has diligently and conscientiously applied council policies as stated in the woeful planning scheme. The fault lies not with VCAT in these instances but with council’s determination to continue to pull the wool over residents’ and councillors’ eyes. It is surely time that council stopped pretending that its scheme is adequate and went back to the drawing board to come up with a planning scheme that is worthy of the name. The first step for councillors is to insist that officer reports are up to the necessary standard. In this instance, Camera’s effort must be relegated to the dust bin!