A very recent VCAT decision highlights once again how residents are personae non gratis when it comes to this council’s planning department and the sycophantic councillors who allow Newton and Akehurst to literally do as they please. Here’s a little bit of history.

On the 30^th August 2011 councillors voted unanimously to pass the following motion – “Seeks authorisation from the Minister for Planning to prepare and exhibit Amendment C90 which proposes to alter the Housing Diversity Area Policy and Urban Village Policy to include prescriptive guidance for development at the interface of Housing Diversity and Minimal Change areas”.

Nearly a year later we find out in the fine print of the Quarterly Reports that HERE IS A COUNCIL RESOLUTION THAT HAS NEVER BEEN CARRIED OUT. Nor has there been any motion to withdraw, rescind, put on hold, etc. The amendment has never been advertised, never had submissions called and been allowed to disappear into the ether. No public announcement has been made as to the reasons why officers have failed to carry out a council resolution. All that we know is that there suddenly appeared the minimalist sentence ‘Amendment will be withdrawn. The issue of transition will be addressed through the New Zones’. Who made this decision? When was it made? And how can a council resolution suddenly be overturned in secret?

That’s only half of the story because whilst countless other councils are passing amendment after amendment in the attempt to shore up as many safety precautions as possible for when the planning zone reforms come in, Glen Eira is sitting on its hands and doing bugger all. The ramifications of this inaction was evident in a recent vcat appeal and decision.

The VCAT hearing involved an application for a 3 storey building, multiple dwellings and reduced car parking. The site was Glen Huntly Rd (housing diversity/tram lines) and abutted Minimal Change. Hence the proposed amendment would have been extremely important here in protecting residential amenity. Here are the lamentable arguments put up by council and relevant extracts from the final decision. (See http://www.austlii.edu.au/au/cases/vic/VCAT/2013/381.html for the full decision)

Council advised that these setback distances were recommended in its proposed amendment C90 to manage the interface between housing diversity and minimal change areas, and as a response to Clause 22.07 to reduce the visibility of additional levels when the proposal is higher than the prevailing height of an area.

Council noted that it did not impose the minimum setback of 4 metres on the ground level as recommended in the amendment, acknowledging that there are currently out buildings in the rear yards of 6 Emma Street and 4 Lonsdale Street. Conceding that Amendment C90 has yet been exhibited, Council still wished to pursue the desired setback as a reflection of its thinking of interface management.

Council has imposed permit conditions to require the first and second floor to be further recessed to manage the change from a housing diversity area to a minimal change area, as recommended by its Amendment C90, which will result in the loss of dwellings.

As Mr. Bissett pointed out (for developer), Amendment C90 is not a seriously entertained planning proposal. It has not been on exhibition and it is premature to implement the setbacks recommended in this amendment. The approach should be one of the particular set of circumstances and the context of the site: that is whether the proposed setbacks of the various floors an acceptable interface with.6 Emma Street and 4 Lonsdale Street.

Given all this, questions have to be asked:

1. Why has a council resolution not been carried out?
2. Who made the decision to withdraw or abandon? When was it made? and most importantly – WHY was it made?
3. What is the real agenda behind all this?
4. Why are councillors allowing employees to rule the roost?
5. Why aren’t residents afforded the full protection as originally intended?
6. Why after two years has nothing happened? What aren’t residents being told?
7. Why didn’t this development come to a full council meeting in the first place? What is the precise criteria that determines whether an application remains in the hands of the hired help?
8. When will councillors start exercising their mandated duties and INSIST that proper transparency and governance occurs in this council?
9. When will councillors finally get off their backsides and insist that ALL of the outcomes of the 2010 Planning Scheme Review are carried out. 3 years of deferment, inaction, and silence is not good enough.
10. When will they stop being accomplices to the continued failure of good governance in Glen Eira?

Item 9.1 of last Tuesday night’s agenda concerned the amended permit application for a Tavern in Centre Road. Please note:

• We are not questioning the right of anyone to submit an application
• We are not questioning the right of any commercial enterprise to grow its business

What we are questioning is the woeful decision making capacity of this planning department and councillors; the continued shonky reports that fail to come up under scrutiny and finally the clear bias evident in the report. We are also highly critical of the inconsistency trotted out by Lipshutz and some others.

In July 2011 (that is LESS THAN 2 YEARS AGO) Lipshutz and Hyams moved the motion to accept the conversion of a ‘café’ to a ‘tavern’ that extended the hours of opening, waived car parking, and included a liquor license for footpath trading. The motion was carried unanimously. At the time objectors also claimed that the premises had been operating ‘without a permit’. Now there’s another application to extend existing hours to 3am, include live music and increase seating from 24 to 64 plus an increase of staff. All well and good, EXCEPT that the current officer’s report just happens to state – “The site context has not changed significantly from the time the previous approval was granted in that the residential properties to the north are still separated from the subject site by an Australia Post dispatch facility and a petrol station that is open 24 hours a day.”

In other words the surrounding environment, which has not changed, was good enough for the planning department to impose limits on numbers, hours, music and staff back in 2009, but not today when these exact some conditions persist! So, if nothing much has changed then how can something be regarded as having an adverse impact in 2011 and 21 months later suddenly be deemed as appropriate for a threefold increase in clientele, staff, and hours of operation? Did Ron Torres just happen to conveniently forget what he wrote at that time and now just regurgitates what happens to suit the decision for the go ahead?

We’ve drawn up a table that compares the officer’s report from 2011 and 2013. There’s much, much more that was in the 2011 report that has suddenly disappeared from the current version. What is repeated is merely all those points that would provide support for the current application. If that’s not ‘doctoring’ a document, then we certainly don’t know what is.

So how did councillors handle all this? – especially those who were party to the original permit? Here’s what happened –

MAGEE: moved that a permit be granted for 12 months only. Delahunty seconded. Magee went on to say that ‘this gives the operator what they are wanting’ and since there have been complaints from people and ‘council has some concerns‘ the permit is only for 12 months and the applicant has to then come back and reapply. The objective is for the applicant to ‘show us’ that ‘you can adhere to this permit’ and then council would issue the extension of the permit.

DELAHUNTY: said that this motion would ‘strike a balance’ between business and community ‘wants’. Said that it’s in everyone’s best interests to have ‘private business’ in the city but ‘they must be good neighbours’   so the motion is trying to ‘strike a balance’ between these two things. Looked forward to a year down the track and that the applicants can ‘show they’ve been well behaved’.

LIPSHUTZ: at first he was going to support it but ‘I’ve changed my mind’.  He’s got emails from people complaining and that recently officers had discovered that there were more people on the premises than allowed and that ‘bands were playing’ so they ‘had breached their license‘. So, when people come and ‘seek the indulgence of council’ you have to come with ‘clean hands’ and not treat both residents and council ‘with contempt’. Magee’s motion does ‘put them on notice’ that they have to ‘do the right thing’ but ‘they shouldn’t be allowed to get away with more’. It’s only ‘when you can show you’re a good neighbour’ that you should come to council instead of ‘asking for more’.

PILLING: supports the motion. Outlined where residential and commercial properties are. The motion ‘does strike a balance’ and he thinks the times are ‘reasonable’ and a good ‘alternative’ and ‘respects the wishes of residents’.

SOUNNESS: was at the planning conference and noted that ‘there comes a point when a development has reached its capacity’ and more makes it an ‘over development’. With this application there can’t be more space since the building isn’t big enough. Thought that the development was ‘overly ambitious’ and that there had been issues about ‘management’ of the place. So even though Magee’s motion takes this ‘down the right path’ it doesn’t take it ‘far enough’.

HYAMS: said it was a ‘strange planning conference’ in that there were opposite views expressed. People from ‘500 metres away’ said they could hear the music but patrons said that they ‘go there’ so they can actually talk with each other ‘above the music’ so ‘it’s not that loud’. Said the police were happy for the extended hours and that officers on the occasions they went there ‘reported’ that the tavern was ‘conforming’ to the permit. But then Lipshutz has said that ‘on one occasion they weren’t’. So he’s ‘happy’ with the ‘sunset clause’ and that the place will be ‘monitored’ and ‘if we’re happy’ then they ‘can go ahead’. Said that at the planning conference objectors said that people were urinating outside but this was denied by applicant. So there is a need for more staff to supervise this outside.

MAGEE; said that council ‘want to see business succeed’ and for residents to ‘live in peace and quiet’. The applicant has now got 12 months to show that ‘they are good operators of the business’. The tavern is a ‘bit of an icon’ in Bentleigh and gives the area ‘its bit of uniqueness’. It’s never ‘raised its head before as a concern with me’. He had walked past there recently and all was well. Hoped that ‘the business will succeed’ and that surrounding people ‘will accept it’.

MOTION PUT AND CARRIED. VOTING AGAINST – LIPSHUTZ & SOUNNESS

COMMENT: This is not the first time that breaches of conditions have occurred on numerous permits and not the first time that nothing much has been done about it by council. In the past Lipshutz and his cohorts have seen fit to ignore such breaches and to vote in favour of the permits. All that has been said by them is that council will be ‘vigilant’ and will come down on them ‘like a ton of bricks’ if the new permits are abused. How hypocritical then of Lipshutz to now get on his high horse and say that this application should be refused because the applicants have treated council with ‘contempt’. If Lipshutz is to stand on his record then the public has a right to demand consistency.

We draw readers’ attention to his stance on the extended 1A Albany Court decision (as just one example!) which involved a synagogue that had continually breached its conditions and which the VCAT member made absolutely clear that council had done nothing to ensure compliance. See https://gleneira.wordpress.com/2012/06/05/vcat-more-council-failures/. This is not an isolated example.

How many more times will we hear about council not informing all relevant parties on VCAT hearings as in the above judgement? How many more times will some applications get up because of what can only be reasonably perceived to be clear, vested interests and despite the fact that they have treated the permit conditions with ‘contempt’? How many more times will this planning department be permitted to produce reports that are short on argument, detail, and full justification for their recommendations?

This entire application history epitomises the failures of this council to embark on any decision making that is consistent, transparent, and protects residential amenity.