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 All that we know is that there suddenly appeared the minimalist sentence ‘Amendment will be withdrawn.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.

There have been 2 recent VCAT decisions that we wish to highlight. In BOTH cases council’s planning department failed in its legal obligations – namely to alert resident objectors as to the council’s position on amended plans within the required 7 day period of notice. What this means is that objectors show up to the hearing with practically no time to adjust their claims or to prepare sufficiently for what could be a completely different set of circumstances. They are left out in the cold and perhaps totally unaware of the secret deals that have been made between council and developer. Certainly without sufficient time to prepare an adequate defence or to even contact council planners.

We’ve previously featured Hyams’ pathetic response to one such objector – the officer was on holidays. (See: https://gleneira.wordpress.com/2013/01/24/does-council-support-residents-or-developers/) Not good enough! How many such ‘rare lapses’ have taken place and what steps have been implemented to ensure they don’t happen again? How often will the same pathetic excuse be used to explain sheer incompetence or indifference to residents? How much longer will councillors allow the inefficiencies and lack of accountability to continue?

What is even worse is that the VCAT Watch reports reveal nothing of these incidents. It is spin all the way. Except, that if one bothers to go to the actual judgement the Glen Eira Version of History is revealed for what it is – a total sham!

Here’s what council’s version of events regarding the 14-16 Maroona Rd hearing stated (from the minutes of 5^th Feb) –

Prior to the hearing, the applicant approached Council seeking support for amended plans which satisfied a number of Council’s conditions, whilst the plans also provided for a revised design incorporating twenty six (26) dwellings. The amended plans were considered to be satisfactory and, in principle, Council supported the amended plans.

What really happened though is revealed by the member –

Prior to the hearing the Permit Applicant circulated amended plans which were intended to be a response to, though not fully comply with, many of the Condition 1 requirements for amended plans sought to be imposed by Council. Prior to the hearing, further discussions were held between the Council and the Applicant, such that an agreed position between these two parties was presented to the Tribunal as to a modified form of Condition 1 that should be applied as a result of the proceeding under Section 80 of the Planning and Environment Act.

Ms Coram and the other residents had not been part of these discussions and at the start of the hearing declined an opportunity requested by the Permit Applicant to attempt to mediate the matter.

Further, the original application was for 27 units. The original DPC decision cut this back to 24 and then lo and behold we’re back up to 26 units and a reduction in car parking. So we now have 26 two bedroom units when one of the major planks of the Planning Scheme is to ensure that there is ‘diversity’ of dwellings! We insist that no bigger hoax has been perpetrated on residents that this bit of fluff and bubble.

There are some other comments that clearly show how little effort is put in by this council to ensure the bona fides of applications. None of this of course is evident in the officers’ report. We’ll simply extract those passages.

During the course of the hearing it occurred to me (ie member) that the shadow diagrams for 9.00am had not been drawn correctly. As a result at the conclusion of the hearing I gave oral orders for an amended shadow diagram to be circulated to all parties within seven days of the date of the hearing, and for the other parties to have an additional seven days to make further submissions, if desired. At the hearing all parties agreed that these timelines were sufficient.

During the course of the hearing Ms Bowden (for developer) submitted that due to the removal of the two existing crossovers to the review site, that one additional on street visitor space is to be created. On this basis, and considering Council’s support for the proposal following the review by their traffic engineers, I cannot see any reason why I should not approve the reduction of the standard visitor car parking requirement by one space.

Ms Silveira (objector), in her concerns regarding the intensity of the development, referred to the risk caused by the increased traffic levels to be experienced in Maroona Road. At no stage during the hearing was I addressed specifically in relation to the existing or anticipated traffic levels, or any difficulties experienced by residents in exiting the street to either Neerim Road or Glen Huntly Road. Given the absence of any such detailed submission, I must give weight to the assessment of the application by Council’s traffic engineers and the support for the development as expressed by Council. I therefore cannot find any reason to refuse to grant a permit based on traffic grounds.

The questions that follow have to be addressed by councillors:

• Why are resident objectors not always informed of amended plans nor council’s agreement to these new plans AND if they are informed why is there not sufficient notice given as required by law?
• Why does this council so often merely accept the developer’s  assessment of various elements such as overshadowing, traffic, parking, without checking the veracity of these claims?
• Why did council not check the accuracy of the shadow diagrams?
• Why has traffic engineering not insisted upon the car parking standards?
• How much longer will councillors allow residents in Housing Diversity to be the sacrificial lamb to a flawed vision that desperately needs to be jettisoned?
• How much longer will councillors sit in silence and permit shoddy reports to pass without comment, without serious questioning, and without proper analysis?
• Are we right in assuming that this council has no respect for residents and ostensibly no respect for the legal requirements? If they did, then such incidents would not happen or would certainly not be allowed to continue!

If you know of any other incidents along similar lines then please contact us!

 A public question was asked at the 5^th February Council Meeting. It read:

“Glen Eira Council is reported as having made a submission to the Ministerial Advisory Committee investigating Development Contributions under the Planning and Environment Act. Will Council make this submission public and accessible to all? When was this issue discussed with councillors?”

The Mayor read Council’s response. He said: “In September 2012 Councils were asked a standard list of specific technical questions relating to the DPCD position paper entitled Standard Development Contributions Paper – A Preferred Way Forward.

Council officers provided answers to these technical questions in October 2012.

Councillors were informed of this during that time.

It is understood that Councils and members of the public will be given opportunities in the future to make further submissions.”

Since then there has been no public disclosure, and no further mention of this important issue. Even worse, the fact that councillors were ‘informed’ does not feature anywhere in the Records of Assembly for this period. Conclusion? Either the Records of Assembly are a total (censored) joke, the ‘informing’ was a brief verbal aside, or perhaps did not even take place?

We’re getting mightily sick of revealing how often this council is out of step with the majority of its neighbours. This is not the first time that submissions to various committees or government have not been ratified by council resolution first off (as done in other municipalities) much less made public. Residents have no idea as to how this council votes at MAV conferences; what positions will be taken, or much about anything. We even wonder if councillors get a look in, or have a say on anything. Yet they do nothing!  They allow residents to be treated like mushrooms and the disease of inaccurate reporting and secrecy continues unabated.

The development contributions is a vital issue for any municipality that is experiencing the unprecedented growth that Glen Eira is. Given that this council has REMOVED the contributions from its planning scheme it becomes even more important that residents know what council’s position is. Will Newton and his cohorts meekly accept the pro-development agenda, or will there be some insistence that ratepayers stop subsidising greed?

Below are the views of our neighbours – all made public and above board – not like Glen Eira City Council!

1. PORT PHILLIP EXTRACTS

http://www.portphillip.vic.gov.au/Report_3_-_Submission_to_Standard_Development_Contributions_Advisory_Committee.pdf

There remains a bias in the design of the proposed development contributions framework towards the establishment of development contributions in growth areas. This translates into some gaps in the frameworks application in established areas where project delivery can be much more complex and expensive that broad acre green field development. These gaps include:

• Assumptions about spare capacity in existing infrastructure to cope with development.

• The suggestion that a “25% discount” be applied to standard leviesin established areas compared to growth areas.

• Failure to recognise the complexities and additional costs associated with development in established urban areas.

• The significant land cost component in the provision of new infrastructure in established areas.

Project contingencies cost allowance set at 10% of project cost. A contingency set at a standard 10 % is very low for projects, particularly in inner urban areas. This should be scaled across a range in accordance with industry best practice and be project specific.

There is no recognition in the proposed framework that additional growth in established urban areas can create “tipping points”, exceeding infrastructure capacity and rendering some types of existing infrastructure redundant. This in turn will necessitate complete replacement in order to upgrade the capacity.

The framework proposes that historical capital works expenditure and population growth over time be used as a basis to set the contribution for new development. This approach is not supported as it:

• has no direct relationship to actual need for infrastructure generated by additional growth relies on historical spending that may not be an accurate indication of either infrastructure cost or infrastructure need

• takes no account of the nature of the population increases and subsequent infrastructure needs

• does not allow for consideration of current standards and costs of infrastructure provision

• is contrary to the basic tests of need and nexus that have long been established in setting development contributions.

2. BAYSIDE

http://www.bayside.vic.gov.au/5_March_2013_Councillor_Briefing.pdf

in the councillor briefing notes under – ‘proposed submission’

3. STONNINGTON (uploaded in full here)

• The application of the Development Levy Scheme (DLS) to only large scale Strategic Redevelopment Areas lacks the flexibility needed to respond to the various levels of development occurring and infrastructure needs across metropolitan Melbourne. The needs in the Chapel Street Principal Activity Centre are not considered.

• That the DLS decision making process should include a Social Impact Assessment