We’re highlighting one particular decision from last night’s council meeting because we believe it exemplifies practically everything that is amiss in planning decisions by this council and especially the role that councillors should play.

To state the obvious, applications are meant to be judged according to the standards prescribed by the Planning Scheme. It is Council’s responsibility to enforce those standards. Full stop! The granting of a permit should never be decided on the basis of what councillors think might happen at VCAT if objections crop up and the case is taken to this body. Time and time again the arguments that issue from certain councillors is that VCAT is ‘arbitrary’, ‘inconsistent’ and that it all boils down to the individual member. So, if this is indeed the case, then how can Lipshutz state, as he did last night, that ‘I know VCAT will approve’ and hence the permit was granted. It is even worse when Sounness, who moved the motion to grant the permit, also argued on these same lines – ie. that he couldn’t see how Council could mount a ‘defence’ in VCAT and the best option is to ‘apply conditions’. Hence, a permit was granted. Whether or not some of the ‘fault’ lies with the Planning Scheme itself, has never of course been broached by any councillor. Nor has the question of how well Council actually defends its decisions at VCAT.

As for the regular VCAT Decisions report, Hyams together with Lipshutz again implied that resident objectors would be better off if they refrained from objecting. According to Hyams, one decision handed down was a ‘salutary lesson’ for objectors since they were now ‘worse off’ in going to VCAT because the developer got more than Council had granted in their original permit. In other words, DON’T OBJECT and leave everything to us, the ‘experts’.

We’ve know of no other Council, where such disdain for the rights of citizens is so frequently featured. Nor do we know of any other Council where arrogance is so prevalent. If Council’s record at VCAT is so wonderful due to this ‘expertise’ then they need to explain why the vast majority of their decisions in the past year have either been overturned completely or the conditions varied considerably. And scattered throughout the hearings there are occasions when resident objectors (that ignorant lot) were successful in completely overturning Council’s decision to grant a permit.

Residents Beware! We are about to be dudded by this administration and its developer friends and councillors in the very near future in relation to the Virginia Estate site. Item 9.14 of today’s agenda tells us:

• An amendment is in the pipeline to rezone all of the 12 hectares into Commercial 1 zone. Currently only the centre of this site is suitable for residential development and not its ‘ourskirts’ that abut residential streets.
• No detail is provided by the Akehurst report as to the precise nature of this proposed amendment and its potential ramifications
• There is absolutely no sense in rezoning this land unless the objective is to cram more residential units onto the land. Currently up to 10 storeys is mooted. How many units will 12 hectares hold we wonder?

What we do object to most strongly however is the entirely devious, disingenuous and ultimately misleading information that is contained in the Akehurst report. Readers are told –

The amendment seeks a rezoning of the land only. No development application has been received. Any future development will be subject to a town planning permit process which will be advertised to the public. VCAT appeal rights, including to the community, would also apply to any planning permit application. 

What Akehurst does not fully reveal in this report, and instead resorts to totally incorrect language of ‘town planning permit process’ is that Amendment C75 passed in 2011 comes with a specific Schedule that demands the submission of a DEVELOPMENT PLAN. In other words, whatever planning processes will evolve over time will follow the same course as the Caulfield Village fiasco – ie an Incorporated Plan that residents did not see prior to the Panel hearing, then a Development Plan where all residents could comment upon were heights and setbacks with NO APPEAL RIGHTS. In this instance however, there is not even an Incorporated Plan.

Below we quote what was written at the time of the original Amendment and these quotes come directly from the minutes –

8^th June 2010 –

The schedule to the DPO, introduces a requirement for Council approval of a Development Plan (i.e. the “detail”) to be submitted down the track when the specific design of a particular building/s is known. The Development Plan must be generally in accordance with the Precinct Plan, however, no third party appeal rights apply at this stage. This is a similar approval mechanism as proposed by Amendment C60 (Melbourne Racing Club). It allows community input at the broad conceptual level. At the detailed level, Council must seek community feedback by advertising the development plan. However, there are no third party (residents) appeal rights. This approval process is becoming common in cases like this where there is no actual development currently under consideration.

It is recognised that this amendment does result in some uncertainty about “what” is being proposed and the ability for the community to have a say when the detail is known. To this end, the requirement for a Development Plan to be submitted when the detail of development is known should give some comfort to the community. Development Plans are required to be submitted on a precinct by precinct basis and are required to provide detailed information on likely traffic impacts and the traffic management works which may be necessary to accommodate the predicted traffic generated by the development. Council is also required to display these plans and seek community views. It is important to note, however, that third party appeal rights will not apply at this stage. This is a similar process to that adopted by the Melbourne Racing Club with its masterplan amendment.

Following the Panel Hearing, council had to decide what to do with the amendment. On 5^th March 2011 the following appears in the minutes –

Does not forward the adopted Amendment to the Minister for Planning for approval until the Gillon Group enters into a Section 173 agreement with Council for the provision of infrastructure works.

The one issue where the Panel disagrees with Council is in relation to the extent of the landscaped setbacks to the south and east of the site. Council proposed an 8 metre setback to accommodate substantial canopy trees. The Proponent argued that 5m was sufficient. The Panel agreed with the proponent and accepted the evidence given on this issue on behalf of the proponent.

It is recommended that in this instance, Council should accept the ‘umpire’s decision’ and adopt the amendment with reduced landscape setbacks to the south and east.

Crs Lipshutz/Magee

That Council:

1. Adopts Amendment C75 in the form recommended by the IndependentPanel with the following change:

(a) The exhibited setback of 8 metres to the southern boundary (Virginia Reserve Interface Precinct) and eastern boundaries (Third Avenue Precinct) is adopted.

2. Does not forward the adopted Amendment to the Minister for Planningfor approval until the Gillon Group enters into a Section 173 agreementwith Council for the provision of infrastructure works.

The MOTION was put and CARRIED.

Please note that the final gazetted version of the Amendment includes the following in the Schedule –

West boundary (East Boundary Road Precinct): 8m landscape setback.

 South boundary (Virginia Park Precinct): 5m landscape setback

 East boundary (Third Avenue Precinct): 5m landscape setback for a 4 storey building from a public open space, or 5m landscape setback for a 3 storey building from interface with any residential use.

 More questions are therefore needed:

• Given the above council resolution NOT TO ACCEPT the panel’s recommendations on site setbacks, why was this resolution not adhered to? Who made the decision to accept a 5 metre setback? And why was this never reported back to the public and/or council?
• If a Section 173 agreement is in existence, then why has this never been made public – especially since East Boundary Road is already a nightmare?
• Why is this Akehurst report so bereft of real detail? Are residents and councillors simply being sold more furphies and the ultimate agenda is to grant the developer everything he wants – aka the MRC?
• Whilst this practice of Development/Incorporated Plans is certainly ‘legal’, residents need to start asking whether the manner in which this council accommodates such practices is indeed in the very best interests of the community.

Finally, we deplore the failure of officer reports to include:

• All relevant information
• The use of language that can only be seen as deliberately misleading