Push to cut  planning appeals

Josh Gordon

November 29, 2011
VICTORIANS would have less scope to appeal against contentious planning  proposals under a    plan being considered by the Baillieu government.

A briefing by the Department of Treasury and Finance says  planning rules for  developers  have become a ”significant drag on growth”, urging government to  streamline the process to cut costs for new developments.

Planning Minister Matthew Guy tomorrow will  be handed a separate  review of  the planning system from an ”industry” advisory group he commissioned to  ”help overhaul the planning system”.

The treasury briefing document, obtained by The Age, suggests that  the appeal process should be pared back to cut the number of objectors, amid  complaints from developers that the average cost of delays waiting for planning  permits is $35,000.

Treasury has also expressed concern about what it sees as ”conflicting  policy objectives”, with the state government under pressure to tackle housing  affordability, maintain liveability and boost economic growth, while local  government bodies are worried about protecting heritage issues, maintaining the  value of the existing housing stock and keeping the ”character” of a local  area.

”The land planning framework should be overhauled to reduce the scope for  appeals due to conflicting policy objectives, clarify who has standing to appeal  planning decisions and assess the potential for greater use of market  instruments to achieve planning objectives,” the briefing document says.

Tomorrow, Mr Guy’s office will be handed its review of planning rules headed  by consultant Geoff Underwood, who faced claims of a conflict after it was  revealed his consulting firm, Spade Consultants, had been lobbying the  government on behalf of developers.

Under current rules, any person claiming to be affected by a proposed  development can lodge an appeal, even if they have not been officially notified  or they don’t live nearby.

The Master Builders Association of Victoria has told the review this is an  ”unacceptable state of affairs” that opens the  door to the possibility of  ”commercial extortion”. It says that in 2009-10, 7 per cent of all planning  applications ended up in the Victorian Civil and Administrative Tribunal.

Mr Guy’s spokesman, Nicholas McGowan, declined to address questions put by The Age, instead providing a list of unrelated list of achievements in  the planning area.

Mary Drost, from Planning Backlash, which represents almost 250 resident  groups across Victoria, said any move that blocked residents’ right to appeal  would be met with anger.

”We would be totally opposed to any restrictions placed on the ability to  object,” Ms Drost said.

Master Builders Association of Victoria executive director Brian Welch said  he believed the rules were ”excessively democratic” and encouraged ”vexatious  objectors”. ”Every person with $35 or $40 in their hand has third-party appeal  rights, so it’s a low threshold for people to have their voice heard, whether  they are on the same side of the city or not,” he said.”

Read more: http://www.theage.com.au/victoria/push-to-cut-planning-appeals-20111128-1o3c7.html#ixzz1f0opplcP

rebecca.thistleton@fairfaxmedia.com.au

Parents fight for centre

PARENTS have accused local, state and federal governments of buck-passing ahead of the planned closure of Elsternwick Children’s Centre on Christmas Eve.

Eighteen months after the centre’s impending closure was announced, parents are angry that they have not been offered an alternative in Elsternwick.

The council-run centre was based in a building belonging to Alfred Health’s Caulfield Hospital, which called in the 20-year lease to redevelop the land. Nicole Owen, whose two-year-old son, Liam, attends the centre twice a week, is part of the Save Local Childcare Coalition, a group of parents that has lobbied all levels of government to keep the centre open. Ms Owen said each had handballed responsibility.

‘‘No one will tell us when the site will be developed and our biggest worry is that it will sit vacant for a year or more,’’ she said.

Parents had asked the state government whether the centre could continue operating until the site was redeveloped but had not received a response. Ms Owen said she had tried unsuccessfully to find a place for Liam in several alternative centres and had been offered a transfer to the council-run Caulfield centre.

Glen Eira councillor Neil Pilling said the council needed a long-term childcare strategy to show how future demand would be met. The state government left childcare in the hands of councils, but Glen Eira Council was depending on the private sector to plug holes in the childcare system, which was unrealistic given land prices in the area, he said.

“Developers would make much more money putting units on a block instead of a childcare centre,” he said. “There have been no new childcare centres built in Glen Eira since 1999.”

Health Minister David Davis said the land was needed for a new brain injury facility. He said Glen Eira Council should develop a plan for childcare services to cope with a growing population.

Caulfield MLA David Southwick said parents had been offered places at Caulfield Children’s Centre where all staff would be transferred. Mr Southwick said he approached the education department to find a new site.

Candidates are lining up for the annual Mayoral Stoush. In the blue corner we have Hyams, whilst in the red corner there are two likely candidates – Pilling and Magee. It’s the traditional end of year derby that takes place behind the closed doors of assembly meetings and, you can bet your bottom dollar, countless private phone calls, secret meetings and emails, away from the prying eyes of the public and Newton. Favours are called in, promises made, hand on heart commitments to the ‘public good’, favourable time off from work, agreeable wives and husbands. The prize isn’t half bad either – just under $90,000 per annum; fame and glory; your mug shot on the hallowed walls and of course the opportunity to ram your (and Newton’s) agenda through with support from your allies. Sitting up on high you can squash debate so easily; you can rule anybody at any time out of order; you can prevent residents from addressing council; you can dismiss public questions as harassment; you can speak to the press and promulgate more spin; you can have your picture in the Glen Eira news innumerable times; you can, in short, rule the roost.

Or you have the real opportunity to return Glen Eira to what it should be – a place of respect for individuals, especially the public, and to oversee the change in corporate culture. We do not hold out much hope for this option if the blue corner maintains its current position.

Gazing into our crystal ball, the numbers are probably evenly split. We doubt that Pilling will stand if Magee does, and vice versa – this would only dilute their already limited power base. Lobo is the lynch pin. His vote is vital in breaking the Mexican stand off. Will he again stand with the gang and vote for Hyams? Will he resort to his former self and break with his new found friends? We do feel sincere sympathy for him – the pressure must be enormous. In a very real sense the future of good governance rests with him.

This post is arguably high falutin’  –  some might say esoteric and hence not for everyone. However, we believe that it touches on the crucial issues which surround governance at Glen Eira. ‘Governance’ is a much bandied about word. It lends itself to all sorts of restrictions as well as opportunities – depending on what the user wishes to emphasise. We highlight below extracts from a recent publication into the various forms of governance at the local council level and ask readers to contemplate the ostensibly narrow nature of ‘governance’ as practised in our council. The discussion paper identifies 3 distinct forms of governance – corporate, democratic and community. We suggest that the latter two incarnations are conspicuous by their absence in Glen Eira!

Source: (http://www.acelg.org.au/upload/program1/1300681762_Local_Government_and_Community_Governance_-_A_Literature_Review.pdf) 

5.2 Governance as democratic governance 

Building on the decision making elements of the definition of governance outlined above, the term democratic governance is used to refer to deepening democratic engagement through the participation of citizens in the processes of governance with the state. The Victorian Good Governance Guide acknowledges the link between governance and democracy:  

Relevant legislation is important in recognising and understanding the legal framework within which local government operates. However it is only one part of the guiding principles and issues that support good governance. Good governance must also have an ethical base. Democracy depends on generating and maintaining a strong foundation of trust between the community and those who govern. The need for transparency in governing processes underlies this trust, as does the honesty and integrity of the elected representatives and the administration (Exiter, R and the Good Governance Advisory Group, 2004: p 40).

The Victorian council, Surf Coast Shire, exemplifies this broader understanding of governance in their governance manual: “The Surf Shire Council is committed to promoting the wellbeing of the Shire’s residents and views good governance as the key to democracy at work. Good governance…also includes the way that local governments engage with their communities’ (Surf Coast Shire, 2009: 3).

Public discourse about democratic governance and its importance was heightened in Victoria following the period of local government amalgamations in the 1990’s and legislative requirements for compulsive competitive tendering of council services. Brian Galligan (University of Melbourne) explores democratic governance in the context of these reforms which were undertaken for efficiency purposes:

Even if we understand local government as enabler rather than provider of services, the distinction between local government as a system for ensuring efficient service provision and local government as a system of democratic governance remains a crucial one. That is because local government as enabler still has to determine the range and standards of services that its community requires (Galligan,1998:204).

The ‘Just Communities’ action research conducted with councils across Australia between 2006 and 2008, examined the practice of democratic governance by councils (Just Communities, 2010). The research report concluded that local government needs to find the right blend of community engagement, governance and decision-making processes, and management frameworks, to strengthen local democracy and advance community wellbeing. This project sought to define those interdependencies in what became the ‘GEM’ relationship model:

G – Democratic governance: Where leadership and decision-making by elected Councillors is based on a sound appreciation of community issues and needs and a commitment to effective community engagement in the political process.

E – Civic engagement: Where councils employ effective techniques to enable active citizens to influence the formulation and implementation of public policies that affect their daily lives.

M – Organisation management: Where public value management policies and practices are embedded in the workplace culture, acknowledge citizen participation rights and ensure that the outcomes of community engagement inform decision-making.

Below are some extracts from the last Auditor General’s report. We highlight these as particularly relevant to Glen Eira and the manner in which service performance is assessed and reported. It is not enough to have a performance measure as simply ‘investigation’ and a satisfactory outcome listed as ‘investigation completed’ as was the case with the ‘investigation’ regarding the location of another site for the Caulfield Park Depot. There are countless similar measures in the Community Plan, and dare we say it, probably in the CEO performance appraisal KPIs.

The Auditor General’s findings are not new, and admittedly, Glen Eira is not the sole culprit. Residents however need to insist that every consultation and policy includes thorough evaluation techniques so that we can have greater confidence as to whether or not we are getting value for money.

“Councils have yet to fully embrace performance reporting and the non-financialindicators of many are of limited relevance to ratepayers and residents. Councilscontinue to adopt a compliance approach to performance reporting. As a result, the performance reporting framework has yet to deliver relevant and appropriate information to the community on the quality of services delivered and achievement of outcomes by local councils.

Our review of a selection of performance statements identified that a large number of indicators related to key strategy areas are activity-based, focusing on whether an activity is completed rather than the impact of the activity. Councils continued to adopt a ‘compliance-centric’ approach to performance information and used the minimum legislative requirement when preparing performance statements as the maximum disclosure standard.

Councils have yet to fully implement previous audit recommendations and to produce performance reports which drive council outcomes and accountability by being relevant and appropriate to stakeholder needs.

  • • KSAs were activity-based with the sole measure being whether the activity was completed. Any effectiveness cannot be determined when it is not possible to determine the extent of progress toward, or achievement of, the councils strategic objectives.
  • • Effectiveness measures are being inconsistently applied by councils. Some measures will be time-based while other measures such as quality, cost and quantity are often not being used thus not providing a balanced approach to the basis of measurement.
  • • When quantity or cost targets were used, there was no information provided on how these targets had been established and no basis for assessing whether the targets were realistic, easily achievable or a ‘stretch’ target.

The measures used by the selected councils to determine effectiveness were often time-based. Other measures such as quality, cost and quantity were not always considered. Councils had not provided a balanced approach to the basis of measurement. When quantity or cost targets were used, there was no information provided on how these targets had been established and no basis for assessing if the target set was realistic, easily achievable or a ‘stretch target

Other areas of weakness identified include:

  • continued reliance on community satisfaction surveys as the sole basis of measuring activities of the council
  • • use of short-hand descriptors for performance measures, that do not provide users with necessary context and meaning, this means the reporting provides little insight into what is being measured.

The minutes of 22nd November at long, long last, contained a measly two and a half page ‘report’ on GESAC. We had been promised a full report and have previously commented on the lack of detail contained in this Pools Steering Committee Meeting minutes. We therefore hoped against hope that at the actual Council Meeting Lipshutz might enlighten the community further as to the financial state of affairs, the basketball fiasco, the opening dates, and a myriad of other issues. Here’s a summary of what he said.

LIPSHUTZ: Stated that the committee meets monthly and last meeting was 3rd November and ‘a number of matters were discussed…..the building completion program….originally slated to finish in mid September (never realistic) aiming for mid December…’and we until quite recently been told ….that was a very achievable date….builder has run into a number of problems…missed construction…we have…two fantastic pool managers….and they have been on the ball throughout this whole program….they have required the builder to rectify…(issues of labour and shortages of materials which means the pool won’t open in December)….we believe….late January or February….far better to have it done properly (than) a rushed job’……’no fault at all on our project managers, where the fault lies is….with the builder. (Council has done everything it can including) ‘liquidated damages…and the builder clearly does not wish to pay those damages (but it’s out of his hands)…..there are positives….the pool is progressing very well….water slide now constructed….(nearly 3000 members)…demonstrates there are people who want to go there and be members….(Pool has plenty of) fantastic programs – (sprint pool – ‘one of the best in Australia’; ‘lessons available 7 days a week’; ….small classes….continuous learning…communication feedback…Little Buccaneers….learn to swim classes…academy of swimming….dolphins for age 7 to 10….seniors ….special needs….’pool has been designed to ensure that people with disabilities can enter the pool’….’private lessons…school programs…birthday parties….leisure centre…..play, cannons, …adult programs…basketball stadium ‘will be used for a number of organisations’….competitive basketball for young kids….soccer….casual hire….netball….mornings and evenings….partnership with Marriot support services….training and competition….gymnasium ‘told at outset that whatever we build’ was going to be ‘too small’….’because gymnasiums attract people’…

TANG: point of order about speaking time.

ESAKOFF: asked for mover for extension of time. Moved Pilling and seconded Hyams. ‘Another 3 minutes’. Carried unanimously.

LIPSHUTZ: ‘gymnausium will have (several programs) nutrition’…boxing…body balance…body pump…yoga…tai chi….’developed for gesac’….ELDERLY…’warming pool is one of the best in Australia and has been designed that way’…physios, ….massage…..young families…with children a crèche…..’those are the things that we have….developed’….’disappointing that (it won’t be open) in December…..everyone has been pressing the builder….despite all that there is no possibility of opening in December….

MAGEE: Said he would have liked it to be open in November or December but ‘I’m just as happy for it to be built properly…..it wouldn’t be fair to try and rush it….this acquatic centre will be with us for the next 100 years….(and in a few years find out that things are wrong with it)…because someone rushed it…if it takes an extra month….I’m more than happy to put up with…knowing that the quality that we expect….(Went on to suggest two possible names for the slides – Anaconda, & Little Worm).

From the minutes of 22nd November under ‘Urgent Business’

STATEMENT ON BEHALF OF COUNCIL BY THE MAYOR 

Cr Esakoff: “On behalf of Council I wish to correct the record in relation to assertions made by Cr Frank Penhalluriack at the Ordinary Council Meeting on 2 November 2011 in his request for a report.  

It was stated by Cr Penhalluriack that Officers had failed to table reports at Council Meetings.  

This statement is not true and on behalf of Council I apologies (sic) to the CEO and Officers for these assertions being made without any supporting evidence.  

It is noted that reports listed were either tabled at Council Meetings or provided to Councillors. It is further noted that there is no requirement unless specified that a report once prepared must go to a Council Meeting as opposed to Councillors or an Assembly of Councillors.” 

We have previously commented that Andrew Newton’s statement  that reports are “submitted promptly – usually to the immediately following Council Meeting” implies that ALL requests for reports are tabled at ordinary COUNCIL MEETINGS – as signified by the use of Upper Case. The Esakoff statement is thus not only incorrect but again totally illogical. She in fact admits that Penhalluriack had made ‘assertions’ that Officers ‘failed to table reports at Council Meetings’ – yet in the final paragraph there is the admission that the reports Penhalluriack referred to were “EITHER TABLED AT COUNCIL MEETINGS OR PROVIDED TO COUNCILLORS”. This in fact CONFIRMS everything that Penhalluriack said.

There are many other points we could quibble with – such as; what does ‘provided’ mean? What ‘evidence’ is required when Penhalluriack is talking about the ABSENCE of tabled reports in full Council Meetings. The ‘evidence’ is to be found in the minutes of all these meetings and the fact that NONE of the reports he read out appear in them.  And surely the onus to provide proof to the contrary rests with Esakoff here and not Penhalluriack?

We can only ask why, with supposedly 8 intelligent people sitting as councillors, and 3 lawyers to boot, how no-one could see the inherent contradictions throughout this statement. It in fact makes a laughing stock of Esakoff and the rest. In their haste to do Newton’s bidding, logic, clear thinking, and respect for governance has been well and truly scuttled. This statement only cements the growing perception among residents of the incompetence of these councillors, the manipulation by officers for their own ends, and the abandonment of all principles of what constitutes good governance. It is utterly shameful and should be condemned by all residents concerned with what is happening to this Council.

The minutes for the November 22nd Council Meeting have made a very, very speedy appearance on Council’s website. We are however, continually amazed at the lack of logic that is contained in council’s reports and in the motions that are tabled. These minutes exemplify in spades the division and blatant ‘control mechanisms’ that we believe are being instigated by ‘the gang’ and Newton.

The in camera agenda items listed the following: “12.5 under s89(2)(f)” legal advice” which relates to right of reply”. More ratepayers funds are thus being wasted on ‘legal advice’ . Next, the minutes feature the outcome of this discussion item –

“Crs Lipshutz/Tang

In relation to Cr Penhalluriack’s 9 August Right of Reply, Council:

1. Notes that on 9 August 2011 Cr Frank Penhalluriack made a Right of Reply in which he stated in part:

“The article refers to a legal stoush, and claims that residents are saying that Council has sought legal advice concerning allegations that I have bullied our Chief Executive Officer, Mr Andrew Newton. I am embarrassed and demeaned by such an unfounded allegation reaching publication in such a widely circulated newspaper. And I can safely presume that our Chief Executive Officer will also suffer this embarrassment.”

2. Resolves to disassociate itself from the comments made by Cr Penhalluriack referred to in paragraph 1 above.

3. That this resolution be incorporated in to the public record of this meeting.

The MOTION was put and CARRIED unanimously.

 COMMENTS:

  • Penhalluriack is expressing a personal reaction to what has been in the public domain. He is entitled to respond to such items. Furthermore, he is stating that he is embarrassed. Since when is it a ‘crime’ and the cause for ‘legal advice’ when someone admits their embarrassment?
  • He ‘presumes’ that the CEO is equally embarrassed by such media reports. Again, a logical assumption and not a hanging offence.
  • Nowhere in this motion DOES COUNCIL DENY THE TRUTH OF PENHALLURIACK’S STATEMENT.
  • Nowhere in this motion does Penhalluriack BULLY, HARRASS, OR VILIFY THE CEO, so what on earth is there for Council to disassociate itself from?
  • Why after three months does this only now appear in the public domain?
  • What is the motivation behind such an ill thought out resolution except to tarnish and attempt to discredit one councillor?

But it gets even better. The minutes then record the following: Item 12.6(b). We note the following and again question the transparency of what goes on behind the closed doors of in camera meetings and assembly meetings. THERE IS NO ITEM 12.6 (b) LISTED IN THE AGENDA OR IN THE MINUTES – only Item 12.6(a). In other words, the Agenda & Minutes do not reflect in any shape or form what is discussed in secret. If this was a late item – then it should have been included as 12.6(b) in the minutes. Thus discussions go on without the necessary disclosure as required by the Local Government Act. However, we have full confidence that at the next Council Meeting Hyams will leap up with another ‘correction’ to the minutes which will annul this ‘clerical error’ or oversight!

The minutes then go on to report –  

Item 12.6 (b)

2. In the interest of considered decision-making, Council strongly encourages all councillors to submit all motions to the Mayor and councillors in writing prior to a Council meeting, except where the motion arises during the course of the meeting or in extraordinary circumstances.

3. That Council strongly encourages all councillors not to support any motion initiated by any councillor unless the motion has been submitted in writing to councillors prior to the Council meeting except where the motion arises during the course of the meeting or in extraordinary circumstances. 

COMMENTS

  • ‘strongly encourages’ is meaningless – legally, morally, ethically. It is nothing but an attempt to gag councillors and circumvent open, spontaneous, and genuine debate within the council chamber. It has no authority of law backing it – that’s why the phrase ‘strongly encourages’ is used. It is not worth the paper it is written on we suggest!
  • We also find it obscene in its attempt to direct how councillors should or shouldn’t vote on any matter raised by another councillor.

The extraordinary thing about all this, is that councillors continue to bow their heads, and abdicate their responsibilities to their constituents. When we thought that the low point has been reached in the governance practices of this council, we always seem to find another benchmark which is even lower!

The MRC application for the 7 lot subdivision was heard at VCAT yesterday. There were two objectors. Council was represented by lawyers, as were the objectors and the MRC. The following are some general impressions of the hearing.

  • Council’s lawyer provided all the ‘background’ material, including a 150 page bound ‘booklet’ which also became the reference document for many of the MRC’s arguments. We wonder whether ratepayers paid for the production of this tome, or the mrc?
  • Council’s lawyer used the word ‘access’ (the focus of objections) probably only 3 times in his 35 minute presentation.
  • The meeting revealed that Council and the mrc had come to a previous agreement regarding the need for a Section 173 rather than the creation of an easement. This information was not available to objectors until 24 hours before the hearing. Hence they were literally caught with their pants down.
  • There were several adjournments while the MRC and council’s lawyer ‘consulted’ with their respective bodies. The MRC provided the proposed draft wording for the Section 173 which was acceptable to Council’s lawyer.
  • It should also be noted that a council planner who was present was taking notes. The first words he wrote down on his sheets of paper were ‘Forge’, ‘Penhalluriack’ who were both present.

Our conclusions are that the member will have very little scope to find in favour of the objectors given the constraints on her power and the limitations of the Planning and Environment Act. We also conclude that there have obviously been many, many (secret) discussions on this application between the MRC and council. It is also unacceptable that objectors are not fully informed of any changes to an application in a timely manner.

The Auditor General of Victoria has released his report into the financial sustainability of local governments. The full report is available at: http://www.audit.vic.gov.au/publications/20111123-Local-Govt/20111123-Local-Govt.pdf

Below are some lowlights from his report, plus an extract from Council’s Chief Financial Officer’s response to the findings.

“Buloke Shire Council was again rated high risk and Glen Eira City Council increased from low to high risk”.

“The overall financial sustainability risk for inner metropolitan councils for 2010–11 was low. However, Glen Eira City Council was assessed as high risk. Glen Eira’s liquidity ratio fell below one in 2010–11. Its cash assets were used to fund building of the Glen Eira Sports and Aquatic Centre. This also increased the council’s non-current assets. Based on its forward plans, Glen Eira will borrow additional funds to complete the centre, thus keeping the liquidity ratio forecast for the next three years between 0.94 and 1.05″.

Peter Swabey’s response: “Over the last few years, we have forecast that our liquidity ratio would drop to a level of approximately 1, as we have invested heavily in our capital works progrms and have borrowed to complete construction of a major Sports & Acquatic Centre redevelopment (please note that the Centre is expected to operate at a cash surplus). Given that all other indicators for Glen Eira are green (i.e. Underlying Result; indebtedness; Self financing; Capital Replacement and Renewal Gap), we feel that an overall rating of red is a bit severe. A liquidity ratio around 1 indicates that we are fully utilising ratepayer funds to maintain a sustainable infrastructure base (supported by a high Renewal Gap indicator and high Capital Replacement Ratio)”.

COMMENTS

  • Swabey’s letter is dated 3rd November 2011. So, how long has Council known this rating was coming? Why was nothing stated at the November 2nd Council Meeting?
  • Is it mere coincidence that the CEO reappointment occurred prior to the release of this information and did Councillors know it was coming? If they did, then what impact did this have on their performance appraisal of the CEO?
  • Have residents been sold a furphy the whole way along the GESAC journey?
  • What impact will this report have on interest rates and future borrowings and ultimately rate increases?

There are literally dozens of other questions we might ask beginning with a thorough cost accounting of all GESAC expenses and incremental costs which have never been fully released nor itemised. It also makes us query the statement that GESAC will be operating at a cash surplus! What do our readers think?