Council’s  heritage decision panned

Jason Dowling

September 6, 2011
A COUNCIL decision to reject heritage protection for three homes in Caulfield  South – one owned by the mayor  – has been  rebuffed by an independent planning  panel.

Glen Eira councillors ignored the advice of  the council’s own heritage and  planning advisers, and additional advice from independent heritage experts, to  extend heritage protection to all three homes.

In a sharp critique of the council’s decision to push to have the three  maisonette dwellings on the corner of Hawthorn Road and Seaview Street not  heritage protected, the panel found ”there should be good reasons when officer  and expert advice is disregarded but none were provided in this instance”.
When asked by the panel why it had not accepted the expert advice, the  council stated that ”council may form its own view”.The heritage dispute arose when the council discovered a heritage planning  anomaly for the three dwellings.

While the entire building containing the three dwellings was included on a  heritage planning map, only the address of one of the three individual dwellings  was recorded for heritage protection.

One of the two dwellings (2B Seaview Street) in the building not currently  heritage protected is owned by Glen Eira mayor Margaret Esakoff and her husband,  Jack.

Cr Esakoff has declared a conflict of interest and removed herself from  council meetings discussing the issue.

When council staff discovered the heritage anomaly, they recommended  extending heritage protection to all three dwellings. But Glen Eira councillors  rejected the advice of its own heritage staff on two occasions and voted to  begin a process to remove heritage protection from the entire site.

The matter was referred to an expert planning panel and the panel’s findings  were released publicly on Friday.

The panel’s report recommends the council’s attempt to remove heritage  protection from the building be dismissed and calls on the Planning Minister to  extend heritage protection to all three dwellings.

The panel said it was not provided with any justification to disregard the  view of heritage experts that the  entire apartment building deserved heritage  protection.

Read more: http://www.theage.com.au/victoria/councils-heritage-decision-panned-20110905-1jua1.html#ixzz1X5YPNCID

We have commented previously on the non appearance of a Glen Eira submission to the Ministerial Planning Scheme Review. Nothing has entered the public domain – no agenda item has listed this discussion, no draft has been made public. Our conclusion is that Glen Eira has not, and possibly will not, provide any input into the review. Since the gallery is continually assailed with attack after attack upon VCAT, then surely this is the opportunity to attempt to redress the balance and to offer considered opinion on how the laws and regulations might be improved. Council’s silence is thus extremely baffling  – especially in light of the numerous and comprehensive submissions provided by other neighbouring councils.

What is also alarming is that even if a submission has been made, councillors have not been party to this submission in an open public forum – again in stark contrast to other councils. We can only hope that even if a submission has been made that it is a vast improvement on the paltry page and a half that was submitted to the VEAC inquiry.

We’ve uploaded the Stonnington submission as an example of how other councils have responded.

The Panel Report on proposed Amendment C83 has been released. Below are edited highlights –

The Panel is satisfied that the significance of the entire apartment building supports its inclusion in the Heritage Overlay. The Panel does not support the deletion of HO114. Rather, the Panel recommends a Ministerial amendment to correct the description of HO114 in the schedule to the HO which omitted 2A and 2B Sea View Street in error. This will ensure that the protection of heritage values is taken into account in future planning decisions.

The Panel is satisfied that the Amendment C83 process, including the Panel process, has provided the affected landowners with an opportunity to make submissions with respect to HO114 and for the merits of the Amendment to be evaluated. This addresses the mistake made when notice was given of Amendment C19.

‘In my opinion, all three apartments should be included in the Heritage Overlay. In fact, the rear two apartments are perhaps slightly more intact than the front apartment, as tapestry brick embellishments remain unpainted (these have been over‐painted on the front apartment).’  (Council’s current Heritage Advisor‐ Gabrielle Moylan 27 July 2010)

‘I would agree (with the Statement of Significance) that this apartment block, clearly influenced by the architecture of Frank Lloyd Wright, is unusual in the context of this municipality, and even beyond, and I think individual protection of the site is warranted.” “ Property is significant and will not write any strategic justification for removal of this overlay‘ (John Briggs 15 November 2010)

‘This building justifies the current Heritage Overlay….The two rear dwellings are integral parts of the whole, the building being basically symmetrical on the Sea View Street façade (which is somewhat unusual as side street frontages of such buildings are often simpler). This building is of unusually good quality’ (David Bick 26 November 2010)

‘In my view, both publicly visible facades, while different from each other in composition, are integral to the strong overall design, and hence to the heritage value of this prominent building. I do not believe it would be appropriate to remove the current heritage protection.’ (Dale Kelly 14 December 2010)

‘The site is clearly worthy of heritage controls…further research might be undertaken which would have the likely effect of amplifying the heritage attributes of the place’. (Roger Beeston 14 December 2010)

It was Council’s decision not to call expert evidence and this limited the ability to test at the Hearing the expert advice provided to Council. This does not mean that the views and the consensus opinion of these experienced heritage experts should be disregarded. Nothing was presented to the Panel that would justify setting aside the views of any of these heritage experts.

The Panel accords significant weight to the consistent expert view that the heritage value of the Site warrants the application of the HO. There has been no expert view to the contrary.

Council responded to the query from the Panel about why the Council did not accept the expert advice provided by stating that Council may form its own view. These responses do not support removal of HO114. Planning authorities have a responsibility to ensure that planning schemes have a sound basis. There should be good reasons when officer and expert advice is disregarded but none were provided in this instance.

The Panel does not accept the argument put by Council that removal of HO114 is justified by the fact that one quite different example of development influenced by Frank Lloyd Wright will be retained and all examples would not be lost.

The Sea View Street properties are in a Minimal Change Area, whereas 466 Hawthorn Road is in a Housing Diversity Area, which identifies areas suitable for more intensive housing development. These strategic designations do not override or take precedence over all other planning objectives.

The Panel agrees with ….(objector)… that it would set ‘a dangerous precedent’ if a strategic designation for more intense redevelopment was deemed sufficient justification for removing heritage overlays. The protection of heritage values remains a valid planning consideration in planning decisions. It could even be argued that heritages places make a particularly important contribution to the urban fabric in areas undergoing significant change, such as along Hawthorn Road in the vicinity of the Site.

The Panel was not provided with any justification to disregard the clear view of heritage experts that the significance of the entire apartment building, in its current condition, supports its inclusion in the HO.

The Glen Eira Planning Scheme includes 466 Hawthorn Road in a Housing Diversity Area, which identifies areas suitable for more intensive development. This strategic designation does not override or take precedence over all other planning objectives. Rather, where the Heritage Overlay applies in a Housing Diversity Area, local policy (Clause 22.07) highlights the continued relevance of heritage considerations and makes it clear that development should not compromise heritage values.

We’ve had a few comments regarding the use of the Glen Eira Council logo in the recent Warriors advertisement in the Leader newspaper. Several public questions were asked on Tuesday night regarding the allocation of basketball courts to the Warriors instead of the McKinnon Basketball Association. One of the questions specifically mentioned the use of council’s logo.

This is an important issue. It’s even more important since council is expending ratepayers’ monies on ‘legal advice’ to sort out the mess. Judging by the in camera items, this issue remains unresolved after weeks and weeks. If this is the case, then answers to the tabled questions are vitally important in terms of transparency and good governance. We are still awaiting the minutes of the meeting in order to cite verbatim the response to these public questions. However, the following is an approximation of what was asked and the response:

To the question of who gave permission for the use of the logo the response went along these lines – (a) Groups using GESAC are ‘expected’ to show the logo and that anyone who receives a grant must also ‘enclose’ the logo

‘Expectation’ is such a wonderful weasel word. Does this mean that the Warriors weren’t ‘ordered’ to use the logo? That their letter of offer even mentioned logos? That by osmosis they realised that this was ‘expected’ since we believe they are not recipients of any grant for GESAC use? It also neatly sidesteps the core of the question – did any individual(s) inform, tell, advise, instruct, insist that the logo be used? If so, then implicit permission was granted without formal council approval and without the issue of who uses the courts having been resolved.

We would also suggest that the appearance of such an ad (with the logo) in effect undermines the very deliberations that are currently ongoing. Any reasonable person seeing the advertisement and the logo, could only assume that (1) the Warriors have the full imprimatur of Council for their use of GESAC and (2) that a decision has already been made. We doubt whether this is the case.

Well, the doors were unlocked tonight! However, strange things always seem to be going on – ie. two page 51 of the hard copy agenda items – and with different in camera items included on each! We’ve also learnt that several public questions that had been (a) hand delivered, and (b) emailed were simply not read out. Another ‘clerical error’ perhaps?

We highlight below the discussion on Item 9.1 – the 5 storey planning application and the resulting lack of consensus, vision, and we suggest, clear planning policy.

Motion: instead of 5 storeys, 4 storeys, 1 shop (with loading bay) and up to 30 dwellings instead of 42  (HYAMS/PILLING)

HYAMS: ‘appropriate site for large development’ because in Urban Village….’question is ‘how large?’….(busy area, single storeys across road)…’it will be the highest building in Carnegie…(supermarket carpark available but not for) ‘developers to take advantage of so I would support reducing that requirement….(shops should have loading bays)…’visually I don’t think it’s such a bad development…(conditions will add trees)…’one per 5 visitor (car parking) spaces’….’taking into account the nature of the site and the nature of the surroundings…appropriate compromise (in what’s been asked) and what residents might prefer….

PILLING: Supports motion…’good size development’…’large site, corner site…addition of loading bay…(no 5 storeys in Carnegie, 4 storeys approved before, so ‘appropriate’ (and this is what the) ’emerging streetscape is’….very busy site, very busy intersection…(the motion goes)’ some way to solving some of the issues raised…

PENHALLURIACK: (against and foreshadowed alternative motion)…Argued for 5 storeys because ‘we do need to provide accommodation’….’this is one of the better sites in this area…good off street parking…..I think this would be a good site for development….

LIPSHUTZ: Supports Penhalluriack since ‘ordinarily …I would not support a 5 storey development in this area….5th storey is recessed back (and looks like 4 storeys from street)….’if anywhere else …I would say ‘no to this’…it’s a unique site, it’s a large site….(carparking) there is a supermarket car parking….(and not every space there is going to be used especially on weekends) ‘reality is there will be some visitors….so for that reason I doubt that is an issue….(supported loading bay area)….(will go to VCAT and developers will get what they want) ‘I would have thought this is a perfect site for 5 storeys…If this doesn’t get up I will support
Penhalluriack’s motion…..

FORGE: supports Penhalluriack’s alternative. Spent time ‘wavering between 4 and 5′ (must look at future and how railway lines develop)….’there will be increased traffic to some point’…(in a couple of years down the track more development sites will be put in)…

LOBO: Supports Hyams’ motion which will help ‘reduce traffic and allow people to park quite easily’. Esakoff asked what he’s supporting – the 4 or 5 storey. LOBO: ‘4 storey’.

MAGEE: ‘2 storeys becomes 3, 3 becomes 4, and 4 becomes 5 and on we go’…(Argued that the city is unique and that its incumbent on councillors to try and maintain this uniqueness. When looking into the future and people ask ‘where will Glen Eira be I’d like it to be much) ‘like it is today’…(Hoped that minimal change areas remain as they are today)…(If someone can build 5 storeys then next person can ask for 6, ‘maybe 7’….’we have to be consistent’…’I’m not particularly happy with 4 (would prefer 3)…

TANG: ‘My position was one in favour of refusal…(but recently seen amendments made to planning and then done away at VCAT) and ‘leads to confusion in minds of councillors….and bad planning decisions….particularly around the elsternwick area where we’ve been looking at 14 storey applications….(with) some councillors supporting 14 storeys, some supporting 10, some supporting 7….what’s scared me is if I knock back the proposal (then there’s Penhalluriack’s 5 storeys) ‘which is even worse’….(outlined history of area and)’whilst there is some policy support for higher density areas…I found overwhelming reason to support a refusal…(urged councillors to knock back this motion and) ‘see if we can put together a motion of refusal’…’no less confusing but it’s the best outcome that I can see’….

ESAKOFF: Supports motion (for 4 storeys)…My preference is not for a 5 storey building…..doesn’t abutt other residences….it doesn’t overshadow other residences…it’s an appropriate site for a building of this size….

HYAMS: Size is ‘two or three blocks’…I wouldn’t be supporting a refusal and if I had to choose between (a refusal) and 5 storeys I’d probably go with 5 storeys….’so councillors might want to take that in mind when they’re considering how they might vote on this motion’….(spoke about full supermarket car parking; if it goes to VCAT and the argument that the loading bay would be lost that council has to) ‘stand by principle’….I don’t think this site is worthy of a refusal….(and if it came to a choice between refusal he would go for original recommendations).

MOTION CARRIED 5 to 4

COMMENTS:

  • 3 storeys, 4 storeys, 5 storeys, 10 storeys, 14 storeys, ‘compromise’, ‘refusal’ etc. etc. etc. This is not the first time, nor the last, that the arguments will continue on height limits and parking. Once again this ‘debate’ highlights the arbitrariness of decision making in Glen Eira. With no attempt to achieve interim or permanent height controls for certain areas within the municipality, we can only expect more of the same! Piece meal decision making!

Tonight’s Special Committee Meeting witnessed the following sequence of events:

  • Front clock tower door locked. Residents had to find their way into chamber via carpark and alert councillors
  • Agenda papers stated –“Agenda for Meeting to be held in the Caulfield Park Pavilion Caulfield Park, Balaclava Road, Caulfield. At 7pm”.
  • A procedural motion was moved to delay the meeting until 7.10 so that if any poor people were sitting waiting at Caulfield Pavilion they would have time to get to Council Chambers. We presume that someone was down there directing people to the right place – or that at least some notice had been posted!
  • Hyams moved the motion to accept officer’s report with 2 changes . Seconded by Pilling

2.1 metre black mesh fence be ‘replaced with 1.5 metre high post and rail barrier’ and ‘areas to be delineated for future playground equipment’. Pilling seconded.

HYAMS: ‘we are limited to what we can look at. we can only look at planning aspects…..(this) allows the MRC to build the park that they agreed to…if we knock it back other than on proper planning grounds (won’t get a park)….as simple as that….(fence replacement due to objectors and comments at planning conference)….(playground) would allow further equipment to be installed without a further permit….(further equipment thus becomes) consequential….(so could be assessed) by Planning Department and wouldn’t need any further planning applications….we can’t acutally put….that the MRC has to provide …..that’s not how planning permits work….(but we understand that this means more than) one board game….so by doing this there will be ongoing discussions between ourselves and the MRC……

PILLING: Thanked Hyams for the amendment ‘which does improve application….what’s proposed is within our guidelines….(hope that this leads to) greater use in the future….it’s not (to) everyone’s wishes but we are here tonight to judge the application on its merits…and I’m happy to….accept the motion.

ESAKOFF: Concurred with both Hyams and Pilling. The post and rail fence becomes ‘something more acceptable….we will be pursuing further (playground) equipment….other than that I’m happy with this approval….

LIPSHUTZ: ‘Much of what was said (at planning conference) was totally irrelevant to this particular issue…..(but important because people didn’t have an opportunity to have a say previously, so) in that regard it was helpful that the community….did express their views….even though it was extraneous (to the issue)….this is unfortunately just a planning issue and we have to deal with the planning issue alone….The planning officer….was attacked…I think that’s deplorable….(she’s an employee, doesn’t decide) we as council make a decision….don’t shoot the messenger….criticise councillors don’t criticise officer….I thank the public for putting their views….broad ranging and were helpful….I certainly support the motion as put.

UNANIMOUSLY PASSED.
Meeting closed at 7.16pm

Possibly today, but for certain tomorrow morning, we will have registered 100,000 hits for 2011 – and this includes a very slow holiday period of January and early February.  For our entire 2010 existence we recorded just over 41,000. Hence, we are continuing our growth and reaching more residents. We again thank readers for their interest and comments and ask that you simply continue spreading the word.

A reminder that the MRC application for works in the centre of the racecourse will be the issue for decision by the Special Committee this evening.

Time: 7pm

Where: Council Chambers

Decision makers: Lipshutz, Hyams, Pilling & Esakoff.

For years now the question of how to protect residents living in Minimal Change Areas that just happen to be near, or abutting activity or neighbourhood centres has been occupying the minds of many ratepayers – if not all councillors and planners! Listed for decision this coming Tuesday is the latest version of  Council’s vision for ‘transition zones’. We urge all readers interested in how this Council approaches planning to pay particular attention to this Item and to ask themselves whether the proposed ‘prescriptive guidance’ will achieve any positive outcomes for residents living in both Minimal Change Areas and in residential areas within Activity Centres.

We’ve received one email on this matter already and publish an edited version of it below:

“The new guidance applies very narrowly and specifically to properties on the Housing Diversity side of a transition boundary. It doesn’t address all the single-storey dwellings inside Housing Diversity areas who are repeatedly having their amenity trashed. It is (to me) blatantly unfair to expect these people to have their amenity trashed by allowing non-compliant developments next them that Council and VCAT refuse to allow elsewhere. In the spirit of the Charter of Human Rights and Responsibilities Act 2006 s8 “Recognition and equality before the law”, protections of amenity should be more equal than that. “All animals are created equal, but some animals are more equal than others.” [Not saying developers are animals mind you…]

Council really should be more explicit in saying what the minimum standards of protection are for *all* dwellings in Housing Diversity areas, and publicly justify why lesser protection is appropriate for people who inconveniently get in the way of developers’ profits. I’d go further and include explicit words in the document to make it clear that there are universal human rights and that Council’s policy is for all people to be treated equally–that relaxation of standards are dependent on a development not being sited next to an existing low-rise dwelling. These dwellings provide sensitive interfaces too.

If I was a Councillor I would be looking for a summary covering each proposed development of what standards are being violated, and an explanation provided of why it is appropriate. Helping a developer make more money isn’t good enough … I’d love to hear Councillors explain why the protection proposed is not appropriate for properties inside but not on the transition boundary.”

Submissions on the State Planning Ministerial Review close on August 31st. Thus far Glen Eira has not produced any public documentation on its anticipated submission. That’s fine, except that the next council meeting is set for the 30th August – one day prior to the closing date and there’s nothing in the agenda items for this important document. So once again the likely scenario is that officers will write the report but without full public discussion by councillors. Or perhaps no report from council will eventuate! In any event, the outcome will mean that councillors either will have had no input; or if there has been any input, then it is once again done behind closed doors. Without an agenda item, councillors can at least be saved from the embarrassment of rubber stamping something that is put under their noses at the last minute.

No so at other councils however. We discover that Bayside has included a ‘report’ on the draft submission at its last council meeting, thus providing plenty of time for debate and alterations. Kingston has also produced a draft six and a half page submission plus media releases and commentary by the Mayor. Surely it’s not too much to expect that in two months since the
announcement of the review and the establishment of the Panel, that something more than a link on council’s home page would eventuate?