From Stonnington website:

590 Orrong Road: Development Request

The City of Stonnington received a request from Vivas Lend Lease to prepare an Amendment to the Stonnington Planning Scheme to rezone 590 Orrong Road / 4 Osment Street to a Mixed Use Zone, to introduce a Development Plan Overlay – Schedule 2 and an Environmental Audit Overlay over the site.

Stonnington Council deferred consideration of the application by Vivas Lend Lease in October, to ensure community input could occur before any formal consideration on whether the proposed Amendment should proceed to the next stage of formal consultation.

The proposal by Vivas Lend Lease is to redevelop the commercial site for approximately 479 apartments with 730 on-site car spaces and a limited number of small commercial tenancies. The proposal includes seven apartment buildings from 5-16 storeys and a number of 2-3 storey townhouses.

The total site area is 2.5 hectares and it is identified as a ‘large redevelopment site’ in the Stonnington Planning Scheme and a ‘major redevelopment site’ by the State Government. It is located adjacent to Toorak Station and Toorak Park.

Council officers have assessed the material submitted by the applicant. Key areas of concern include:

• The location and height of the proposed buildings;
• The changes to access through and around the site, and to Toorak Railway Station; and
• The impact of the development on the adjoining open space.

Council organised a range of preliminary consultation opportunities including a Public Meeting which attracted over 500 people, two feedback sessions at the Malvern Town Hall, documents and feedback forms available on the website, and displays at the Prahran and Malvern town halls. Information was advertised through the Stonnington Leader and brochures with feedback forms were sent to all owners and occupiers in the areas bounded by Williams Road, Dandenong Road, Kooyong Road and Toorak Road, plus identified stakeholder groups and the applicant.

Amendment Process

If an amendment is exhibited, then a formal consultation process would begin. The community would again be invited to provide input during the formal exhibition period. Input at this stage will assist Council in forming a position to present to an independent Panel. The Panel is appointed to consider and hear submissions from Council, the applicant, and other parties including objectors. The Panel will make recommendations to assist Council in making a final decision. Council’s final decision is then put to the State Planning Minister for final approval.

Council will continue to work with the community and the developer to ensure an appropriate outcome for this important site.

AND FROM THE MEDIA RELEASE:

Mayor, Cr Tim Smith said: “This is a major redevelopment proposal that needs to have extensive community input. 

“Council is keen to ensure our community is fully informed on the proposal and has the opportunity to comment on this matter, which has received significant community interest to date. 

“More than 250 people attended the Council Meeting this week and Council has received hundreds of emails and letters on this matter.”

 He said: “Council will ensure there are a range of opportunities for the community to have a say and find out more about the proposal being made by Vivas Lend Lease – through meetings, the website, documents at the Malvern Town Hall, displays/feedback forms and through written correspondence, which should be in residents’ mail boxes in coming weeks.”

Community Consultation Options – Notified to Residents by Post 

• A Public Meeting will be held on Wednesday 27 October at 7.00pm, at the Malvern Town Hall.
• Prior to the Public Meeting, the community will have two opportunities to drop in, ask questions and provide input to officers and Councillors on this important matter.
  • Monday 25 October from 9.00am to 12 noon at Malvern Town Hall.
  • Tuesday 26 October from 1.30pm to 8.30pm at Malvern Town Hall.

We have spent a large part of today seeking legal opinion as to the claims of ‘conflict of interest’ which are currently sidelining 4 councillors from voting on the C60 Amendment and the Centre of the Racecourse Planning application. Some background first.

The Councillors Racecourse Committee was established as a Special Committee to oversee Council and MRC ‘business’. The major rationale behind this was, as we understand, that since several councillors were trustees, and others were under threat of being ‘winky popped’, that council would not have a quorum in order to carry out its duties. The Special Committee was therefore created with full powers of delegation. Thus it became ‘law’ that four councillors were to determine the future of all matters relating to the Racecourse. That is, according to Glen Eira Council and their way of doing things!

This approach however is certainly questionable, and definitely not universal. Port Phillip City Council in 2008 (following the Winky Pop decision) also created a Special Committee under Section 86 of the Local Government Act to oversee the planning processes of a proposed development in their municipality. In stark contrast to Glen Eira however, their committee comprised:

community representatives, members with planning expertise, and councillor representation. The panel should have an odd number of members for voting purposes, so an appropriate makeup might be two community representatives, two members with planning expertise, and one councillor.

 Fully aware of the Winky Pop decision, the report went on to state: 

It should also be noted that part of the Winky Pop Supreme Court judgement by Justice Kaye reads:

“In determining whether there was prejudgment on behalf of a councillor, it must be borne in mind that councils are democratically elected, and that councillors necessarily carry out political and legislative roles. Accordingly, a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question.”

3.11. It seems likely that the judgement made about councillor actions in Winky Pop could also be applied to other members of a committee or panel with statutory planning powers.

3.12. Therefore, if a panel was established to decide on the planning application for the Kyme Place site, then people who have fully prejudged the matter should not participate in the voting and decision making process (bearing in mind Justice Kaye’s words that previously holding or expressing views does not automatically constitute prejudgement).

Clearly, the council would want to include high quality community, expert and councillor representation on this panel to decide the planning application. It is likely that this representation would include people who have previously held an opinion or expressed a view.

 These officer recommendations were carried by Council. (23rd June, 2008) 

So why is one Council so restrictive, and another capable of working within the parameters set by the Winky Pop decision, yet still maintaining direct community input and full voting rights for the majority of councillors? Is it really a case of ‘conflict of interest’ and Winky Pop, or merely what Penhalluriack labelled as ‘anti-community and anti-democratic’ – but not from the legislation alone in this case, but its interpretation by certain individuals within Council. 

The legislation covering councillor ‘conflict of interest’ has now been extended and elaborated upon. There are two kinds – ‘direct’ and ‘indirect’ conflict of interest. The former largely involves ‘pecuniary’ advantage and the latter, advantage of family and other relationships. In the context of the Racecourse however, we do not believe that trustees have a ‘conflict of interest’. This is based on the fact that:

• Councillor trustees are not paid for their “services” – hence there is no pecuniary interest and since the legislation was amended, hospitality is no longer applicable
• The MRC is technically a ‘not for profit’ organisation and hence the legislation exempts such groups from the conflict of interest provisions, and
• Council does not ‘select’ the trustees – they merely put forward several councillor names. Selection is thus not the province of the Council

Given the above, it is therefore perfectly reasonable to argue that both Magee and Tang are exempt from the ‘conflict of interest’ provisions which would prevent them from participating in the C60 and centre of the racecourse decision making. That leaves at least 7 councillors (and the possibility of  all of them) to partake in the decision making. The need for a quorum is thus fulfilled and the existence of the Racecourse Committee with its delegated powers becomes unnecessary.

At the last council meeting the arguments opposing the abandonment of this Special Committee were all about ‘risk’ – risk from a challenge by the MRC, risk about process, risk about liability. We maintain that the greatest risk to the community lies with allowing a Committee of 4 individuals exercising their delegated powers when there is no legitimate reason for them to do so. The Committee should be disbanded, its delegation powers removed, and the vote taken in a normal council meeting where the vast majority of councillors may present their arguments and vote.

The Agenda Items for the next council meeting (23^rd November) are out and as per usual, make for fascinating reading. Given the recent fiasco over the planning conference for the Caulfield Racecourse centre development, we did a little more digging and have come up with the following table. Please note that all of the 6 items were given the ‘stamp of approval’ by council officers.

We’d like residents to focus on two things:

1. Size of potential development and number of adjoining properties notified
2. Number of objections and how this is inversely proportional to the number of notifications?

We wonder why?!!!!!!!! 

Our previous two posts have focused on planning and highlighted the difference between Bayside’s and Glen Eira’s approach to planning in general, and structure planning specifically. Through its structure planning Bayside has been successful in gaining Ministerial approval for mandatory controls in its numerous activity centres. Glen Eira has steadfastly refused to implement any structure planning. Why? What is the ‘real’ reason behind this reluctance to plan for our future?

The recent Planning Scheme Review was nothing short of farcical. The published ‘Discussion Paper’ distinguished itself by its deliberate refusal to realistically address the concerns of the community; to provide real information; and the general side stepping of issues such as transport, parking, environmentally sensitive design, open space, and many other factors that the community has continually emphasised. This claim is abundantly clear when we look at the sections on ‘Structure Planning’. The document read:

“Structure Plans paint a picture in some detail of how development should look down the track. Individual planning decisions made in accordance with a Structure Plan ultimately deliver the desired Structure Plan future. Structure Plans provide a desired vision and add certainty. On the other hand, critics of Structure Plans argue that they:

• are too expensive and difficult to include in the Planning Scheme, with arguments arising about theoretical development; • stifle innovative development; and • can be changed too readily when a “real” development proposal is being evaluated”.  http://www.gleneira.vic.gov.au/Files/Planning_Scheme_Review.pdf)

Readers should note the short shrift given to the ‘advantages’ of structure planning, and the somewhat nebulous arguments decrying their benefits. Could someone please explain what is meant by the three bullet points above? Or is this just typical council mumbo-jumbo designed to confuse, distort, and ultimately misinform?

According to the Department of Planning and Community Development, the benefit of structure planning is to enable “the community and other stakeholders to actively participate in consideration of the future form and function of centres, ultimately helping to secure their confidence in the centre’s development”. (http://www.dpcd.vic.gov.au/planning/plansandpolicies/activity-centres/activity-centres-faqs#5)

But the real sting in the tail comes from this objective: 

“Community engagement is essential for the structure plan and involves the wider community and may include targeted consultation. Community engagement is appropriate during key stages of the development and implementation of the structure plan. This will include developing a vision for the centre, scoping community and stakeholder issues, developing the plan, seeking feedback on the draft plan, and outlining how the community and stakeholders can continue to be engaged during the implementation phase. Broader community involvement at these key stages can be supplemented by ongoing involvement of key stakeholder representatives, for example through a reference group or steering committee. Community engagement can be undertaken through various methods, and it is important to ensure that the project team has the appropriate skills to plan for and undertake effective community engagement. The plan should aim to ensure that a representative community is engaged. This can be achieved by engaging the community about matters that are of interest to them, for example safety, housing choice, shopping, car parking, open space, bicycle paths rather than focus purely on the structure plan document”. http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0020/41672/PN58_Activity_Centres___Structure_planning_for_Activity_Centres_Web_version.pdf

 ‘Real community consultation’ is not the Glen Eira Way, nor has it been for the past decade. We suggest that the failure to conceive, and implement structure plans by this council has as much to do with disenfranchising the community as it has to do with pro-development and the corporate ‘business plan’. The reverse is ostensibly true of Bayside and the ethos which appears to inform all their policy directions. For example, when developing one of their structure plans, the process involved:

“At Council’s request consultation with property owners and residents in all areas, of both high and moderate significance, was conducted as the next stage in the project. This included an information package with feedback forms sent to all owners and occupiers and ‘open house’ drop-in information sessions. Over 1,000 submissions were received, via feedback forms and individually drafted responses. The consultation provided vital input into the study in regard to the values placed by the local community on these areas and their response to the recommended planning controls. The submissions have been analysed in detail and recommendations for each area in view of the additional information received have been finalised. This has involved additional site survey work and in some instances adjustments to precinct boundaries or descriptions have been made.” (http://www.bayside.vic.gov.au/11_July_08_Final_Report.pdf) 

In the past two years Bayside has WITHDRAWN its original draft open space strategy when public response was largely negative. It has gone back, and instituted an entirely new consultation process that involves committees, dedicated websites, online surveys, email newsletters and public meetings. (http://au.cpg-global.com/projects/BaysideOSS/Index.html. Then there is also the ‘community engagement framework’ which sets out clear steps and commitments. (see: http://www.bayside.vic.gov.au/community_engagement_framework.pdf).

Nothing like this exists in Glen Eira. Despite the repeated jargon of ‘extensive consultation’ that is sprinkled throughout annual reports and other documentation, meaningful interaction with the community is non existent. To introduce structure planning that has any merit would mean turning the non-engagement principle on its head  – something this autocratic council sees as anathema.

Below is an agenda item from Bayside’s upcoming council meeting regarding Bayside’s success in gaining Ministerial permission for permanent height controls and setbacks in major activity centres. What is produced below is only ONE of the reports on several amendments pertaining to their activity centres. We post this as a contrast to the persistent argument that emanates from the Glen Eira Council – ie. no need for structure plans, no need for height controls in activity centres,  etc. etc. etc.

Major Activity Centre Controls – Sandringham C100 and Interim Controls for the
Major Activity Centres C91
City Strategy – Urban Strategy
File No: COR/6309/5790
1. Purpose of the Report
To consider the redrafted proposed amendments to introduce permanent and interim controls for the Sandringham Major Activity Centre (C100 & C91) in the context of the outcome of a meeting with the Minister for Planning on 14 October 2010.
2. Background
Council received a report on 28 September 2010 to consider correspondence received from the Department of Planning and Community Development (DPCD) in relation to Council’s request for authorisation to prepare a planning scheme amendment to introduce permanent and interim controls for the Sandringham Major Activity Centre. The response was received by Council, however, a decision on redrafting the amendments to make mandatory residential heights discretionary and removing upper level setbacks, as requested by DPCD, was deferred for one meeting cycle to allow a meeting with the Minister for Planning to occur.
On 14 October 2010, the Mayor, CEO and Director City Strategy met with the Minister for Planning to raise concerns relating to the Major Activity Centre amendments, particularly in relation to DPCD’s insistence on discretionary height controls in the residential areas of the Major Activity Centres and the deletion of upper storey rear setback provisions on commercial land.
In response to the specific concerns raised, the Minister advised that he will approve mandatory 3 storey height controls for the residential areas within the major activity centres and also council’s proposed upper level setback requirements from rear boundaries of commercial developments abutting residential land.
The Minister advised that he would confirm his undertakings in a letter which would be received prior to the Council meeting on 26 October 2010.
3. Discussion
Following the meeting with the Minister for Planning on the 14 October 2010, and Council’s resolution at its Ordinary Meeting of 20 July 2010 to redraft the amendment (C100) into a revised Local Planning Policy Framework and Schedule to the Design and Development Overlay based on current zonings, the amendments have been redrafted and are attached for consideration.
As agreed with the Minister for Planning, they include mandatory 3 storey height limits for the residential areas within the Sandringham Major Activity Centre and upper level setback requirements from rear boundaries of commercial developments abutting residential land.
4. Implications
4.1. Policy
The 2009-2013 Council Plan, Commitment 3: Managing our built environment is the relevant Council Policy reference for this matter. Amendment C100 will provide additional policy support to enable Council to manage Bayside’s built environment.
In addition, the proposed amendments C91 and C100 are consistent with the Sandringham Village Structure Plan previously adopted by Council.
4.2. Legal/Statutory requirements
Any planning scheme amendment must be undertaken in accordance with the Planning & Environment Act 1987.
4.3. Financial and resource implications
Funds are available in the 2010/11 Budget to progress the amendment requests.
4.4. Environmental impacts
The amendments will introduce controls to guide the preferred form of development within Bayside’s Major Activity Centres.
4.5. Social impacts
Not applicable to this report.
5. Consultation and engagement
Consultation took place during the Structure Plan Process. Additional consultation will take place as part of the formal exhibition period for amendment C100.
6. Summary
Following a meeting with the Minister for Planning on the 14 October 2010, the Sandringham Major Activity Centre Amendment has been drafted to include mandatory 3 storey height limits for the residential areas within the Centres and upper level setback requirements from rear boundaries of commercial developments abutting residential land.
Recommendation
That Council:
1. seeks authorisation from the Minister for Planning under Section 8A (3) of the Planning and Environment Act 1987 to prepare amendment C100 to the Bayside Planning Scheme, in the form of attachment 1 to this report;
2. requests the Minister for Planning under Section 20 (4) of the Planning and Environment Act 1987 to introduce interim controls (C91) through a schedule to the Design and Development Overlay (DDO) for the Sandringham Major Activity Centre mirroring the controls contained within the DDO provided in attachment 1; and 3. authorises the Director City Strategy to make any minor editorial changes to the amendments.

This post is entirely speculative. Given the information that we have, we are simply exploring a couple of possible scenarios and wishing to alert the public to what may be a most unfortunate outcome in regard to the C60 Panel Report.

The report was handed down in July 2010. Thus far nothing has been forthcoming from officers or council. The next council meeting is set for November 3^rd. That is OVER 60 days that council has had to deliberate and present their recommendations. The law requires a response in 60 days. It therefore seems that Council may not have met its legal obligations thus allowing the developer to go straight to VCAT. This has already happened with the Bay Rd development in Bayside.

So the questions come thick and fast:

1. Will the developer stand on his rights even if the C60 report is on the next council agenda?
2. Is this a deliberate ploy by council to wipe its hands of any decision making and again say it’s all VCAT’s fault?
3. Are councillors fully aware of these time limits? If so, what have they done about it?

Our suspicions are further raised when we read the following paragraph that is on the MRC Caulfield Village website:

“Overall the submissions made to the Panel recommended Caulfield Village as a positive response to Melbourne’s expanding population and demand for services close to public transport.

Council’s closing statement described Caulfield Village as “a reasonable response to the opportunities and constraints afforded by the land and the area” and that “a development of the magnitude proposed has the capacity to bring about significant public realm benefits and contribute significantly to the achievement of community ‘betterment’ leading to a clear net community benefit”.