Glen Eira Debates

Council continues on its merry way of destroying Elsternwick by recommending a 12 storey permit for Horne Street (Daily Planet site). We remind readers that this area sits alongside single and double storey dwellings, even though the latter (Ross Street) is zoned RGZ (four storeys). Council therefore sees no problems with a 12 storey building backing onto dwellings of this size.

The application was for 14 storeys and true to form we get a recommendation to lop off a couple of storeys. There is much in this officer’s report that is highly questionable if not straight out farcical.

In this post we will simply concentrate on the draft permit and what the recommendations allow. We quote from the report. 

The building height to be reduced to not more than 46.30m above natural ground level comprising not more than 12 storeys, with no architectural features,services, stairs, lift overruns or masts higher than 50.30m above natural ground level.

COMMENT: Amendment C157 has as the ‘maximum building height’ 43.0 metres (discretionary). Thus, even though council might be reducing the number of storeys, the overall height of the building itself will be even greater than the structure plan suggests. Plus with masts up to 50.30 metres the building will definitely reach for the skies. The adopted C157 Amendment only allows a 4 metre extra height for masts, telecommunications, lift overruns, etc. So now we have the absolutely ludicrous situation where council first wanted 8 storeys and with ‘community benefit’ maybe 12. Now they are okaying extra height for both building and its masts, both in opposition to its own planning scheme!

The owner will maintain the shared space side laneway for not less than 5 years after the date of its completion to the satisfaction of Glen Eira City Council. 

COMMENT: This is the only time that the phrase ‘not less than 5 years’ is included in the officer’s report. It is only to be found in the pages upon pages of the ‘conditions’ and not in the body of the report itself. Instead we find this contradictory statement in the rest of the report

A Section 173 Agreement should be entered into for the permit holder to provide and maintain the shared space side laneway for the life of the building and to secure the office floor space for the life of the building.  

Which is it? Or is the above comment intended to camouflage what the Section 173 agreement will state? Surely the ‘life of the building’ is more than the 5 years stipulated in the conditions for the permit? Secondly, why only 5 years? Does this mean that in the 6^th year the costs of maintenance will now fall upon council and hence ratepayers?

The front (north-eastern) setback of the tower element (third floor and above) to Horne Street increased to a minimum of 4.0m. 

COMMENT: We have to ask, what’s the point of having a structure plan if it ends up being ignored. The recommended setbacks are the perfect example of this. Amendment C157 included a requirement (preferred) of a 5 metre setback. The original urban designs for our activity centres had featured a 6 metre setback but council changed this to 5 without any real explanation. Even so, how on earth is it now considered appropriate that this be even further reduced? Why bother with structure plans at all when council itself decides it can ignore what it so loudly championed? 

As to what constitutes ‘community benefit’ we get the rubbish of widening a laneway by a few metres as proof of this, plus the creation of ‘passing areas’ because otherwise cars won’t get through.Creation of offices is nothing more than pie in the sky at this stage as well.

We have also had a good laugh at this sentence  Over time, the character of Elsternwick will change as buildings, consistent with the planning controls are constructed. One must question how many of these past high rises and now this one can be seen to be ‘consistent with the planning controls’?

We can only speculate as to why council would recommend a permit of this height? Our suspicion is that it is merely another nail in the coffin for low rise along Nepean Highway. Council is determined that Elsternwick becomes the high rise capitol of Glen Eira. Granting a permit for one more eyesore makes it a lot easier to have 12 storeys along all of Nepean Highway, regardless of whether this is needed or not!

Well done council. At least you are consistent in your appalling planning decisions!

In a packed gallery last night, overflowing into the passageways, councillors voted unanimously to refuse the Selwyn Street application for the 10 and 14 storey towers. Hardly a surprise given the failings of the application itself and the strong opposition mounted by residents.

Objectors asked several questions in the ‘community participation’ section of the meeting. One wanted a commitment that when the developer headed off to VCAT, that council would employ a top quality ‘silk’ to defend the refusal. The response was that council had already held discussions with lawyers and would provide a good ‘legal team’.  Hence, the question whether more than a (lowly) solicitor would be employed was never really answered. Readers will of course remember the Calvary/Bethlehem Hospital case in Kooyong Road where council’s ‘legal team’ consisted of one hired ‘solicitor’ (Mr Vorchheimer) and 2 expert witnesses – a traffic engineer and an urban designer. It was up to the residents themselves to hire a barrister and town planner.

As for the comments of councilors themselves, there was the usual grandstanding and claims of caring about community and what a wonderful job council has been doing with its structure planning and how it has been listening to resident aspirations.

Interspersed throughout the various comments there were blatant untruths and distortions of historical fact that are mind boggling. We highlight these below.

SILVER: Admitted that the structure plan is not as yet an accepted document in the planning scheme and that it would anyway be of the ‘lowest order’ – ie merely a ‘reference document’. He then goes on to state that the Urban Villages policy provides greater guidance and that …’we are in the unfortunate situation this site is about to accommodate, based on the planning scheme, more than many people would be comfortable with’. Thus council’s planning becomes dependent on a document that began its life in 1999 and was finally gazetted in the early 2000’s. If Silver and the other councillors therefore rely on the planning scheme it should be asked:

• how can they suggest in their draft structure planning a height of 8 storeys for this site when residents’ throughout the ‘community consultation’ phase were vehemently opposed to such heights.
• And if the planning scheme’s Uban Villages policy is the be all and end all as claimed by Silver, then how can they now support an 8 storey height that differs from what the planning scheme states – Development in Selwyn Street be of scale similar to surrounding buildings with buildings greater than two storey being located towards Glen Huntly Road, and buildings to the northern end of the street being sympathetic to the character of the surrounding streets due to its visibility.
• There is also this gem – No retail activities occur along Selwyn Street.

DELAHUNTY: “that design and development overlay has been in place for some time’…’it was certainly no surprise to the applicant’ and we ‘rested upon it quite successfully for a number of years here in council’.

Absolute hogwash. The DDO10 was only gazetted by the Minister on 16th August 2018 – hardly a period of years as Delahunty goes on to claim. The first developer application made it into the public arena in February 2018. Discussions with council had clearly been on the cards well and truly before this time. The overall draft structure plan only made it onto the council agenda on 27th February 2018 when it was resolved to seek the Mnister’s intervention without further community consultation. And please remember that the first inkling that residents had that council was contemplating 12 storeys anywhere in Elsternwick or Carnegie came in July 2018.

SZTRAJT: claimed that council’s structure planning was to give the community ‘reassurance’ as to ‘where development should go and where it shouldn’t go’. Said he didn’t believe that the application ‘matches the community expectations’ that council ‘went out and sought’ when they developed the structure plans’.

The one consistent element of all council’s shoddy community consultation was that the overwhelming majority of responses did NOT WANT the ‘urban renewal’ heights that Council determined. None of the structure plans are in accordance with community expectations as to allowable maximum heights. Sztrajt concludes that the application ‘just doesn’t fit’. Perhaps residents should start asking whether council’s proposed 8 storey height limit would also ‘fit’ this site given its location abutting heritage areas, schools, etc. It would also be wonderful to see some real justification for even 8 storeys given these constraints!

ESAKOFF: was the only councillor that at least sounded some disquiet with council’s planning – ie ‘the whole aspect of community benefit itself troubles me’ and ‘allowing’ extra height for community benefit is ‘fraught with problems’. Another problem lies with ‘architectural excellence’ and how this will be adjudicated. Went onto dissect the compliance ratio of Clause 58 where she stated that 11 comply and 10 don’t comply and another 6 could comply with conditions.

ATHANASOPOLOUS: claimed that the application doesn’t ‘address’ how the ‘interface’ doesn’t address what is in the planning scheme. Said he also heard comments that council is destroying Glen Eira but that council was working very hard to ‘achieve some very important zoning changes’ which the site had before. Wanted residents to think about the ‘work’ that council is doing to ‘achieve the best possible outcomes that we can’.

So introducing a structure plan that has zoning changes of 8 storeys (or 10 storeys) abutting heritage is council’s idea of the ‘best possible outcome’!!!!!!!!

MAGEE: claimed he always looked at ‘transition’ and how a development ‘transitions’ from the ‘activity centre’ to the residential areas and that has to be ‘from highest to lowest’. Said that the application ‘goes the opposite’ – from lower to higher.

Of course this flies directly in the face of council’s structure plan and DDO – where they decided that up to 8 storeys would sit quite comfortably alongside one and 2 storeys!!!!! and in other areas of Elsternwick, that 12 storeys is a good fit against 4 storeys!!!!!

The most astounding thing to issue from Magee’s mouth was the plea to objectors to go to VCAT and fight the application on ’emotional grounds’ – how it affects them. After 11 years on council this is the most ridiculous statement and displays either one of two things – that Magee knows nothing about the workings of VCAT or that he simply enjoys more grandiose grandstanding. Even with the 2015 Objector’s Bill passed by Labor, the onus still remains on planning law and what is in the planning scheme. Magee should know this very well given his appearance at VCAT when the Claire Street debacle occurred and the member stated in this decision – The Tribunal’s role is to interpret and implement the Glen Eira Planning Scheme, in a manner that is separated from the emotional or political positions brought by all parties. A fundamental component of any assessment against the Glen Eira Planning Scheme is consideration of the policy intent, particularly the local policies drafted by the Glen Eira City Council.

HYAMS: stated that council had asked for 8 storeys mandatory but Wynne made it 10 storeys discretionary. However, ‘perhaps’ when the amendment for the structure plans comes in then the ‘protections’ might ‘vary one way or the other’. The government he said did provide interim protection once VCAT showed ‘it was no longer listening to our policies and you got 12 storeys going in other places’.

Hyams statements are lamentable. VCAT has NOT changed its position on council policies. Council simply had NO POLICY on height control in Mixed Use and Commercial and only in 2013 were height limits made mandatory for large swathes of residential land in Glen Eira – again without any community consultation. So concerned were council about ‘heritage’ in Elsternwick that they zoned huge areas as suitable for 4 storeys (RGZ). The sheer hypocrisy is unbelievable. Even when draft structure plans were produced for Bentleigh and Carnegie, Elsternwick was left out completely – giving free rein for more and more inappropriate development. As a designated Major Activity Centre why wasn’t Elsternwick included in the first set of drafts? As for the potential for council to now backtrack and reduce the height limits contained in the interim controls is a joke – even if council were willing which we doubt. No Minister will approve going backwards from 12 storeys to 6 or even 8 storeys.

CONCLUSION

We concur that this application is totally inappropriate and there are very many planning reasons for why it should be rejected. This however does not excuse councilors getting up on their hind legs and making statement after statement that lacks veracity, is misleading, or displays their total ignorance. We are left to wonder whether another decision might have been arrived at if there were not 187 formal objections, a petition of over 1700 and a packed gallery of angry and upset residents.

The bottom line is that council

• HAS NOT LISTENED TO residents in its strategic planning
• No justification has ever been provided as to why Glen Eira needs 12 storey buildings and thousands upon thousands more dwellings when the municipality is well and truly meeting its population growth demands

What residents want is a set of councillors who have the gumption to stand up and speak honestly instead of continually attempting to cover up this council’s woeful and continued shocking record in planning. Instead of congratulating themselves as to how well they get on with State Government (an item in last night’s agenda) residents would like council to stop being so compliant and to do their jobs – ie representing the wishes of residents above the wishes of developers!

The officer’s recommendation for the Woolies site in Elsternwick is available in the current agenda. The recommendation is for a refusal. The application is for:

• Two towers – one of 10 storeys and one of 14 storeys
• 181 apartments
• Large supermarket and 3 ‘kiosks’

There were 187 objections and an opposing petition with 1787 signatures. One letter was in favour!

The recommendation for refusal is not a surprise given the vast community opposition. What is a surprise is some of the nonsense and misleading statements contained in the officer’s report.

Mention is made several times of council’s ‘preferred character’ for this activity centre, and especially this site – for example:

The height, form, scale and design detail of the building is not sufficiently resolved and therefore the proposal does not appropriately respond to the existing low rise heritage character of the area or the preferred character envisaged as part of Schedule 10 of the Design and Development Overlay.

Readers should note that THERE IS NO SPECIFIC PREFERRED CHARACTER STATEMENT in DDO10. Instead, we get vague generalities and motherhood statements that make up the ‘decision guidelines’ for increased height  –

Whether any building in Precinct 5 or 6 that exceeds the maximum preferred building height

 Demonstrates that the development includes the provision of significant community benefit; and

 Does not create unreasonable impacts on the amenity of sensitive interfaces as a result of additional height; and

 Demonstrates architectural design excellence.

The officer’s report also cites just one VCAT decision to reject a Monash application for a 7 storey building in a 4 storey preferred height limit. Hardly the same as a 14 storey building in a 10 storey limit! The argument presented in the officer’s report is that

The Victorian Civil and Administrative Tribunal (VCAT) has also issued decisions, stating that departures from the preferred height limit should not be treated as expected, but rather only in exceptional circumstances such as those outlined above (Boneng (Portman) Pty Ltd v Monash CC [2017] VCAT 797).

Furthermore, the Monash DDO contains far more ‘guidance’ than anything in the Glen Eira DDO10. In place of the above ‘permission’ for applications to exceed the preferred height limit, Monash includes this paragraph –

A building should not exceed the Preferred Building Height (in metres and storeys) specified in the built form precinct provisions of this Schedule unless particular site conditions warrant an alternative design response and that design response demonstrates a respect for, and significantly contributes to, the preferred character of the Oakleigh Major Activity Centre. (refer Figure 2 in this schedule

AND the ‘objectives’ for this precinct state:

To retain and enhance the pattern of urban development in the core centre that is characterised by small lot frontages, two storey federation and inter-war buildings, steeply pitched roofs and architecturally detailed upper storeys

Glen Eira’s ‘objectives’ for this precinct is simply – To encourage developments in urban renewal areas and on strategic sites that provide a significant benefit for the Elsternwick community.

There are also countless VCAT decisions that would fly in the face of this ‘exceptional circumanstances’ view including a centre road Bentleigh application – http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT//2017/1656.html

As well as these –

http://www.austlii.edu.au/au/cases/vic/VCAT/2016/2104.html

http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1833.html

http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1477.html

http://www.austlii.edu.au/au/cases/vic/VCAT/2016/1088.html

http://www.austlii.edu.au/au/cases/vic/VCAT/2016/254.html

More worrying is the implicit acceptance in the officer’s report that a 12 storey building would be okay! –

The applicant’s own Urban Design Strategy prepared by MGS Architects does not support a building height of 14 storeys. Rather, it identifies that a 12 storey height limit should be adopted. This is more towards what is suggested as being the appropriate height for this strategic site and recognises the community benefit contribution included as part of the proposal.

What is not acknowledged here is that council’s resolution of February 2018 designated this area as suitable for a 6-8 storey building. Wynne gazetted 10 storeys. There is no excuse therefore for the comment that at even 12 storeys this is ‘more towards what is suggested as appropriate’.

When this goes to VCAT will council cave in on 12 storeys or will they fight this tooth and nail?

There are plenty of other issues such as traffic, heritage, overshadowing, setbacks that we will refrain from commenting upon. All in all this application was doomed to failure and will certainly test council’s commitment to the community once this ends up at VCAT.