In this issue - 1. Save Lake Knox!; 2. Moreland votes to refuse development at 38 Harrison St Brunswick; 3. Secret plans for Surrey Hills/Mont Albert Railway Station; 4. Heritage Victoria Decision on Wattle Park; 5. High Rise proposed for central Coburg Heritage Church Site; 6. Melbourne's liveability tanks; 7. Kilmore Residents VCAT win; 8. Plans for Poolman House; 9. Boroondara Cycleway proposals update; 10. National Collections left to languish; 11.
In this issue: Friends of Queen Victoria Market Annual General Meeting; Tree Canopy Cover Forum (Mordialloc); Tree Canopy Cover Whitehorse; Tree Canopy Cover Darebin; VCAT win to protect native grassland; Heritage win at Moonlight Head; Concrete to be removed from Moonee Ponds Creek; Surrey Hills-Mont Albert level crossing removal project; Save Lake Knox update; Beaumaris Modern update; Preserving Mornington Peninsula Open Space; Caulfield Racecourse Update; North East Link
If you want to save this area of the Mornington Peninsula from over development and save the koala bears who live there, would you chip in a bit to help the Save Reg's Wedge group to fight this. The place in question is the Sir Reginald Ansett Estate Green Wedge in Mt Eliza.
Act now to stop the multi-tower, multi-story Ryman Development at 60-70 Kunyung Rd, Mount Eliza on Green Wedge Land in Koala habitat!
The Save Reg's Wedge Community Group are raising funds to enlist legal representation to the upcoming VCAT Hearings in November 2020 and March 2021 (Reference: P1362/2020) but they need your help!
Mornington Peninsula Shire Council unanimously rejected Ryman’s massive development, along with the majority of the concerned community, but Ryman seem to be ignoring our community’s wishes and instead attempting to push their project through.
This development will cause environmental destruction, dangerous traffic chaos, and set a precedent for development across the Mornington Peninsula and Victoria.
Legal representation that has the expertise to fight poor planning development proposals is expensive and beyond the reach of us individually, but collectively we can work together to help save the habitat from this gross over-development on the Urban Growth Boundary, in proven Koala habitat! Will you help us?
Go fund me campaign.
"People have a right to a say in the character of their street, and their neighbourhood. The principle of subsidiarity, of devolving power to the lowest practical level, is important. It is indeed good for people’s mental health if they have a say, and bad for their mental health if they feel powerless. My Bill does two key things – it requires VCAT to follow properly made Council decisions, and it gives Councils, rather than Ministers, the last word on height controls. Hayes says, "At present VCAT is out of control. Its proper role is to ensure that Councils don’t act in an arbitrary or capricious fashion [...]. But VCAT behaves as a Planning Authority in its own right, telling Councils that although the Council wants a height limit of, say, 4 storeys, they think that 6 storeys would be better! Councils should be able to put in place mandatory height controls at a height acceptable to the community. The high rise buildings being approved by Planning Ministers are not in the best interests of residents, overshadowing them and turning Melbourne into a soulless concrete jungle. Communities should have a say in relation to height limits." (MP Clifford Hayes in speech to Protectors of Public Lands Vic. reproduced here.) (Photos by Jill Quirk)
“Protecting Open Space in 21st Century Melbourne” - Speech to Protectors of Public Lands Saturday 26 October 2019 by Clifford Hayes
Thank you for the invitation to speak with you this afternoon and thank you also for the opportunity to represent you in the Victorian Parliament. I am aware that it is a great honour.
I want to congratulate the Protectors of Public Lands on what you do. Protecting the public domain is very selfless, unselfish work. It is also often thankless and difficult work. They’re not making any more land, but we are making many more people, and the resulting clash over the uses to which land should be put are becoming more acute with every passing year.
And of course the increasing price of land in our suburbs has made open space immensely valuable in dollar terms, leading to landowners including Commonwealth and State Governments looking to sell it off and make a real estate killing. Yet the population growth that drives the escalating land price also makes open space more valuable than ever AS open space – keeping our city and suburbs cool, giving us public places to walk, meet or rest, helping our mental health.
Just a fortnight ago the journalist Noel Towell reported in The Age that the State Labor Government is poised to massively ramp up its sales of publicly owned Crown land around Victoria, with more than 2600 hectares set to go under the hammer.
About 150 sites in Melbourne and country Victoria are listed as on the market for future land sales in a sell off that dwarfs the 533 hectares sold in the past 10 years.
Last week I asked a Question without Notice in the Legislative Council about this Report as follows – “Given the dramatic ongoing decline in open space per capita in Melbourne as a result of population growth of well over 100,000 per annum and the alarming decline in Melbourne’s vegetation cover, will the government investigate offering these parcels to local Councils for a nominal amount subject to an enforceable condition that they are turned into, maintained and retained as public open space?”
I am well aware that people in this room have spent a lot of time trying to stop the State Government selling off public land, often involving Government agencies offering the land to Councils at inflated prices that amount to duress, and a scam, where the public is being expected to pay for land that we already own. The Minister’s reply was polite, but not very encouraging. That is why your work is so important, keeping Governments and their Departments and agencies honest.
I see the clash over using land for public open space, or for other uses – which are often in themselves good and socially beneficial, such as facilities for women’s sport – played out time and time again in my Electorate. I have the good fortune to represent a significant area of beautiful Port Phillip Bay beachfront, and that is an area of great conflict. We have proposals to add a large restaurant to the Brighton Life Saving Club as part of its redevelopment. We have a proposal from a café lessee to take over and develop an area where public toilets are located at North Point. We have proposals to extend the opening hours for a café/restaurant at Ricketts Point.
Each of these proposals can sound reasonable, and many of us like to eat or drink by the beach or foreshore, but their sum total is to kill off the connection with nature that is the very thing that makes the beach attractive in the first place – to kill the goose that lays the golden egg.
Unfortunately – and I think your late Secretary and driving force, Julianne Bell, grasped this with great clarity – there is hardly a blade of grass or grain of sand that isn’t being eyed off by someone who wants to make a dollar out of it or appropriate it for their own benefit. It’s not just in my part of the world – I know of the battle, for example, in historic Footscray Park, where the well connected Melbourne Victory soccer club is seeking to establish a large stadium in parkland close to the Maribrynong River. And of the Warrnambool Racing Club’s appropriation of the beaches between Warrnambool and Port Fairy to train racehorses, to the detriment of other beach users, particularly the endangered Hooded Plover.
Often when land is appropriated and vegetation bulldozed elaborate promises are made about offsets elsewhere. In my experience these undertakings are seldom honoured. For example 10 years ago when a previous State Labor Government expanded Melbourne’s Urban Growth Boundary to allow for massive development in Melbourne’s west it said developers would have to pay a habitat protection levy which would enable the purchase of areas of grassland which would offset the development. 10 years later it has emerged that at the present rate of progress it will take the Victorian Government 100 years to purchase the amount of grassland it promised to protect at the time!
And just last week it introduced a Bill to amend the levy. For starters I am disappointed to read that the Habitat Compensation fee system is being renamed the Environment Mitigation Levy. It is the loss of habitat that is the core issue here, and we should never lose sight of it. I am also troubled to learn that property developers are talking about how well the Government has consulted with them over this Bill, when I don’t think it has been consulting with environment groups at all!
In my first speech to Parliament in February I set out my vision for Melbourne – to make it a great place to live, not merely a great place in population size to rival such places as Shanghai, New York, London, or Sao Paolo. Such greatness would be mere obesity, with all the disadvantages of such.
Not a city or a state where people are crammed into dogbox apartments, living on crowded and congested streets in an environmentally unfriendly concrete heat island, but a spacious city with open skies, open and tree-filled streets, with gardens.
Unfortunately this is not the direction in which Melbourne is headed. Since Australia’s migration programme was turbocharged and effectively trebled some 15 years ago, Melbourne has been growing at a rate of over 100,000 people each year, and is now growing at around 130,000 people each year. This has had numerous adverse impacts on our quality of life – traffic congestion, housing unaffordability, loss of vegetation, wildlife and open space. One of the consequences of Melbourne’s rapid population growth has been an attack on local democracy. Residents have lost their right to a say in the character of their street, their neighbourhood and their community.
Consistent with my election commitments I moved a Private Members Motion in May, aimed at restoring local democracy in planning issues and curbing the power of the Victorian Civil & Administrative Tribunal (VCAT). The Motion called on the Government to give more power to local councils to defend their communities from inappropriate developments.
In particular it called on the Government to amend the Planning & Environment Act so that VCAT was required to give effect to local planning policies, rather than just taking planning schemes into account. It also called on the Minister for Planning to implement mandatory height controls, rather than discretionary height controls, where Councils sought them.
I was delighted that this motion was passed in the Legislative Council with the support of the Liberal opposition and my crossbench colleagues. It is very unusual for a Motion to pass in either House without the Government’s support.
I believe there is a real mood for change in the community to fix a planning scheme which is biased against local residents and skewed in favour of property developers. I am now preparing amendments to the Planning & Environment Act which would give legal effect to the sentiments in my Private Member’s Motion. I believe these amendments would help restore the balance and give local residents a genuine say in planning decisions. I am encouraging residents and community groups to support my campaign for greater local democracy in the Planning & Environment Act.
People have a right to a say in the character of their street, and their neighbourhood. The principle of subsidiarity, of devolving power to the lowest practical level, is important. It is indeed good for people’s mental health if they have a say, and bad for their mental health if they feel powerless.
• The Bill does two key things – it requires VCAT to follow properly made Council decisions, and it gives Councils, rather than Ministers, the last word on height controls.
• At present VCAT is out of control. Its proper role is to ensure that Councils don’t act in an arbitrary or capricious fashion, for example by allowing one person to build four units on their property, and refusing to allow a next door neighbour with the same size property to do the same. But VCAT behaves as a Planning Authority in its own right, telling Councils that although the Council wants a height limit of, say, 4 storeys, they think that 6 storeys would be better!
Councils should be able to put in place mandatory height controls at a height acceptable to the community. The high rise buildings being approved by Planning Ministers are not in the best interests of residents, overshadowing them and turning Melbourne into a soulless concrete jungle. Communities should have a say in relation to height limits.
That said, I am absolutely aware that giving Councils more power is not a silver bullet, and that Councils can and do make poor decisions.
• It is not true that people who oppose high rise are NIMBYs, or that they favour urban sprawl. They don’t want the high rise forced in ANYONE’s backyard. What the State Government needs to examine is the premise that Melbourne has to keep increasing by 130,000 people each year. That’s the issue that people are never given a say about.
• Melbourne’s rapid population growth, combined with enforced urban consolidation, has resulted in a paving over of open space and a loss of vegetation and wildlife, when in times of climate change we need our vegetation, front yards and back yards. Urban consolidation has turned suburbs into heat islands. Population growth has driven traffic congestion and road rage. It has driven housing unaffordability and homelessness, and population growth has driven the construction of high rise buildings which are full of defects and even unsafe.
• Property developers have done well out of this government sponsored building boom of the past 15 years, but ordinary residents have not. Their quality of life has declined, and it will continue to decline unless legislation like this puts power back in the hands of ordinary people.
A study in December 2017 found that high-rise living had adverse impacts on mental health. It found that sharing semi-public spaces with strangers can make residents more suspicious and fearful of crime. Many feel an absence of community, despite living alongside tens or even hundreds of other people.
There is a fear of isolation. During ongoing research into social isolation among older people in the English city of Leeds, residents of high-rise buildings reported feeling lonely and isolated – some were afraid to even open their front doors.
Many advocates of high density living claim that it is better for the environment and climate change than suburban sprawl. Studies have shown this to be not the case. One 3 year US study in 2017 found that living in a high-rise tower in Chicago was much less environmentally sustainable than moving to a house in the suburbs. Apartment dwellers consume more energy, spend more of their time travelling, and use their cars more.
In terms of embodied energy in construction high-rise fared even worse. The project found that high-rise buildings required 49% more embodied energy to construct per square metre, and a stunning 72% more on a per person basis.
As has been noted before, the most energy efficient building is the one that already exists. Unfortunately State Governments have paid way too little attention to this and have made it far too easy to demolish existing houses, even those of heritage significance.
The idea that high density apartments, which require more lighting and air conditioning, are more sustainable than detached houses, which can have solar panels, rainwater tanks, and front yards and back yards with trees, shade and open space, is contradicted by the evidence.
So what needs to change? In my view, it’s not complicated. Two words - local democracy. Give the local residents the power in relation to planning. The Planning and Environment Act 1987 was supposed to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians. It is my contention that it has been changed by successive governments so that it does not achieve those objectives.
The bill I will present seeks to do this in two ways. First by directing planning authorities and VCAT to consider and give effect to local planning policies which have been approved by the Government. Secondly by allowing Municipal Councils to set real height limits, including mandatory controls, which cannot be undermined by either State Government or VCAT.
Under my bill the Minister for Planning will be required to accept Council proposals for mandatory height limits, rather than arbitrarily raise the limits or make them discretionary and therefore worthless, as he does at present.
The bill will also make VCAT consider Strategic Planning Policies developed by Councils. What’s more, it will instruct VCAT to give effect to such local planning policies as expressed in the Local Planning Policy Framework.
I encourage your members to contact your local Members of Parliament by phone, email, letter, or in person, to encourage them to vote for the Bill. And on Sunday 10 November, in the week before my Bill gets debated in the Legislative Council, there will be a Rally at the Elsternwick Plaza, next to Elsternwick Station, at 2pm. I encourage you to attend, and bring others!
My bill is a modest proposal that is intended to start the process of giving back planning controls to local communities through their elected councils.
I hope it will not only be a shot in the arm for local democracy and genuine community say, I hope it will act as a brake on rampant habitat destruction. The key driver of habitat destruction is population growth. Sadly environment groups seem to lack the courage to stand up and say this. One honourable exception I came across recently was Jeff Davis, Assistant Director of the Washington Department of Fish and Wildlife Habitat at a June 2019 meeting of the Southern Resident Killer Whale Task Force, who said “Population Growth is the Top Challenge for Conserving Habitat”.
He was followed by a Task Force Member G.I. James, who works with the Lummi Nation’s Natural Resources Division, who was prepared to tell a few home truths about the threat to the orcas –
“We’re worried about the population that’s going to be here in the next 25 years and we can’t even address the problems that are being created by the people who are here right now. We think we can have it all. We can have the roads, we can have our cars, we can have our businesses and we can still have those natural resources that depend on the very same things all that destroys”.
Indeed. I thank the Protectors of Public Lands for everything you have done, and are doing, to protect the quality of life in Melbourne from overdevelopment. It is often hard, unrewarding work, but it is very important in maintaining our quality of life, and not allowing it to quietly slip away.
I hope you can join my fight for a better, not bigger, Australia, and I and my office are always ready to assist you in any way we can.
Clifford Hayes, MLC,
Sustainable Australia Party
Southern Metropolitan Region.
Direct: (03) 9530 8399 | 0458 750 700
Business Address: 206 Bay Street, Brighton
"People end up with nothing because they really don't believe we have a system as bad as we do." Consumers are unprotected in Australia's building disaster. "You may have a house that's being demolished, but you still have a block of land. If you've got any superannuation or anything in the bank, at least hang on to that." Anne Paten of Victorian Building Action Group (VBAG) talks about how the system that's supposed to help building consumers actually bleeds the victims of the industry even more. People qualify for insurance, but never get the money. They go to VCAT and are sent away with nothing. The results are bankruptcy, divorces, and suicides. Substantial reports and inquiries are removed from the internet. Australians need to realise that the government won't help them; they have to join together and help each other.
We have transcribed some highlights from the videoed speech full of extraordinary revelations - made at the Victorian Building Activists Group AGM 2019.
Since 2002 there have been mandated payments for builders in all states to take out domestic building insurance (DBI in Victoria), yet almost no owner who has suffered by bad building has successfully claimed their insurance, despite multiple defects. For instance, in 2011, $88m was paid into the Victorian fund, a year when 40% of building consumers suffered financial loss.  Yet, for that same year, only three owners had successful insurance claims against their builders. Yet many, many more qualify. The money goes to salaries in administrative infrastructure for the funds. Recently it was reported that owners who suffered in the 2011 Lacrosse dangerous cladding fire disaster had a 'big' win of $7.5m at VCAT. This sum does not even cover the amount paid to get people out of the building on the day of the fire. Owners have borrowed far more than that just to go to court. And the builder was not even held responsible. They system protected him.
At 10 minutes into the video:
"In 2012, the Victorian Omsbudsman found  that the [Victorian] Building Commission, instead of being a 'regulator'[...] was taking the big building companies out to dinner, to the best restaurants, with the best bottles of wine then getting them tickets for the tennis centre, for the football, and so on, and giving the money to the HIA, the MBA. [...] the money that runs all of those organisations is from building permits [...] so, in other words, all of us [victims of this system]. [...]"
"[The Victorian Building Commission, VBA] uncovered the registration system. Effectively the registration system is, if you cannot speak English, cannot read plans, cannot write a sentence, know nothing about building, and have never seen a hammer, you would make an excellent builder. So get registered. The book, the Game of Mates, calls it the 'favour system'. It's not like you go to the doctor, the teacher, the school: These people have no qualifications. And, of course, they don't build! So, we have builders who don't build, we have surveyors who don't survey, and we have regulators who don't regulate. So, in a sense, that's it. That's all we have to really understand.
So, by 2015, they had changed the name of the [Victorian] Building Commission. They had removed everything from its 20 year history from the web."
[You cannot even find the Auditor General's 2012 report. The link from TROVE to the pdf at Auditor General's site leads to a page-error.]
In 2015, they're [...] doing the third Auditor General's report, and they've changed auditor generals and they've changed the Ombusdsman, because anyone who is putting all the facts and pointing out has to be moved on.
 Consumer Confidence and Market Experience Study Victorian Consumers CAV 2011.
 Victorian Ombudsman: Own motion investigation into the governance and administration of the Victorian Building Commission 2012-12-12. See https://trove.nla.gov.au/work/175510781?q=Victorian+Building+Commission&c=article&sort=holdings+desc&_=1567828294045&versionId=261204408.
"This report identifies problems in the governance and administration of the Victorian Building Commission and the manner in which it expends monies generated from its regulation.
"In March 2012 the Ombudsman's Office received information from several sources in relation to concerns about the Victorian Building Commission (the Commission). These concerns included that the Commission:
- paid contractors significant amounts for investigative services
- contracted external investigators who were former Commission staff
- made significant payments to external investigators based upon invoices which lacked detail about the amounts charged
- employed former police officers as investigators with little or no building experience
- poorly managed an information technology project which was several million dollars over budget
- operated at a significant deficit.
-This resulted in Ombudsman conducted an own motion investigation into the governance and administration of the Commission.
During the investigation additional issues were identified. These included significant expenditure by Commission staff on hospitality and entertainment and concerns about the administration and integrity of the registration system for building practitioners."
Source https://apo.org.au/node/32338. The link from this source to a pdf at the Auditor General's office results in a "Page not found" at the Auditor General's site. Here is the link, try for yourself: https://www.ombudsman.vic.gov.au/resources/documents/Investigation_into_the_governance_and_administration_of_the_Victorian_Building_Commission.pdf.
A couple of days ago, when I was driving from Melbourne to Brisbane and the only radio I could get was the Jon Faine Show on 774, I heard Jon on the subject of the Dan Andrews Victorian Government's intention to subsidise recladding of unsafely clad buildings in Victoria by the sum of $AUD200m, half of which was to come from taxes on the public and the other half sought from the federal government - but not from the perpetrators themselves. Jon put to a woman he was interviewing that she might give some acknowledgement to the Dan Andrews Government that this was a positive act. I was really impressed by the woman's response, which put Victoria's continuing building fraud and the government's facilitation of it in proportion and Jon Faine in his place at the same time. With interest I scribbled down the name of the organisation she represented and looked it up when I got to Brisbane. It is the Victorian Building Action Group Inc (https://www.vbag.org.au/) and it describes itself as "the only consumer organization in Australia representing the interests of all building consumers." Anne Paten is the President of the Victorian Building Action Group Inc.
Image from https://bostonreview.net/literature-culture-arts-society/john-crowley-inside-every-utopia-dystopia
"Consumers who attempt to build, extend, renovate or do repairs are totally unprotected and we can prove that this has been the case for the last 23 years. Many independent inquiries have confirmed this fact, but no government will listen or act to stop what is essentially 'legalized' building fraud. Just read some of the stories of those whose lives have been ruined, then come join us and be a part of bringing genuine change. The stories of those affected are heart-wrenching. It is virtually impossible to claim on the mandatory insurance and the various levels of the dispute system are utterly dysfunctional. The financial toll often mounts into hundred of thousands of dollars and the emotional toll is incalculable. No-one deserves to be bankrupt or suicidal because they try to build a home for their family." (The Victorian Building Action Group Inc (https://www.vbag.org.au/.))
VCAT process exposed
Here is an animated critique of the Victorian Civil and Administrative Tribunal on the question of dealing with building fraud, described as follows at https://www.vbag.org.au/victorian-civil-administrative-appeals-tribunal/: Find out about VCAT: How it really works; Why building owners are bound to ‘LOSE’ and the role of solicitors in ensuring they do!’ In fact the video was created in 2012, but the process has become even worse since then.
Construction chaos and corruption Australia-wide
In reality, the situation is Australia-wide. Elsewhere, in the national corporate press, I read that the "Building Sector 'could collapse'. (Richard Ferguson, Brad Norington, "Building sector 'could collapse', The Australian, July 16, 2019, p.1.)
"Mr Massey [JMG Building Surveyors] said certifiers were concerned that state governments were responding to skyrocketing insurance premiums with legislation to allow policy exclusions in the mistaken belief 'this will somehow make the problem disappear'." [...] The JMG chief's warning comes as a proposal by Industry Minister Karen Andrews yesterday for a national taskforce to formulate a nationally consistent approach to building regulations was immeditely rejected by state governments ahead of a joint minister's meeting called to deal with the crisis on Thursday.
Mary Drost, (Convenor of Planning Backlash Inc), Joanna Stanley (Brunswick Residents Group), and Ann Reid (Convenor of Malvern East Group) met VCAT President Justice Greg Garde on Wednesday April 18. One of our objectives in having this meeting was to persuade him to arrange a forum for residents such as the ones previously arranged by Justice Kevin Bell and Iain Ross some years ago. Both of those men had actually listened to residents and had approached the then Attorney General to have some changes made to procedure so the "natural justice" would get more attention in the Planning and Environment section of VCAT than had previously been the case. Alas, apart from two minor changes no actual reform was permitted.
Justice Garde's reaction to our request was interesting. He said he would speak at a meeting but did not seem interested in following the previous Presidents and arranging a meeting to hear residents' opinions. He explained that VCAT was run by handpicked professionals who followed the rules to the letter.
We raised a number of issues that we residents have with VCAT.
1. The question of expert witnesses having to give sworn evidence
We raised the question of expert witnesses having to give sworn evidence.
His response was that we could ask for it and the Member would consider the request and it was up to the Member to decide if it was necessary. He then said that expert witnesses were entitled to their opinions on a subject and they were not necessarily lying, as it was their honest opinion. Have you ever been at VCAT and heard expert witnesses sworn in? I even mentioned that Maddocks knows of a case where the witness was heard later laughing about what he had said as he believed the opposite. I was ignored.
We explained that when we met with the Senior Adviser to the present Attorney General he was astonished that expert witnesses did not give sworn evidence. Justice Bell just smiled and said nothing.
So we got nowhere with that.
2. We raised with him the fact that applicants (developers) request a certain Member to hear their case.
Justice Garde said that is prohibited and does not happen. I recently heard from a resident that the developer in the case was saying they asked for a Member and got them. We checked this out at the front desk, whether it was true that this happened, and the front desk person verified that they ask and, if possible, they get the one they ask for. Justice Garde refused to believe this.
3. We raised the subject of order of presentation
We asked if it can be changed as we consider it unfair that the one bringing the case goes last. In a court of law they go first. In VCAT council go first, then objectors and then the developer. This gives the developer an unfair advantage as they hear all we say and then set to work to demolish our points. Councils on the whole agree with us on this.
Justice Garde said it did not matter which way it was as the Member will hear from all whichever way it goes. He did not agree that the current way is to our disadvantage. However he did say that a party could request the change and it was up to the Member.
We said we had never known a case where it is changed. Does anyone know a case where it has been changed???
Justice Garde maintains that it is done. We asked for statistics on this and he said all cases are set out on Aust.Li and we could read them. We said we had tried that and we cant find a case. Justice Garde responded that it wouldn't be mentioned in the report. I did explain to Justice Garde that Justice Bell agreed with us on this.
Suggestion by me to people going to VCAT: Next time you are going to speak in VCAT write to Justice Garde requesting the order of presentation be changed so that the developer goes first and you last so that you can hear what they say and answer them.
Justice Garde said to me that you do have the right of reply to which I said, "Last time I was in VCAT and Michael Wright was the Member, I asked for right of reply and was refused."
4. Applicants bringing ammended plans to VCAT and Compulsory Conferences
We raised the subject of applicants turning up to VCAT with amended plans and even now coming to Compulsory Conferences with amended plans. (We believe that amended plans should go straight back to the Responsible Authority.)
Justice Garde responded that amended plans are a good and positive thing and if they can use those to reach a compromise it is the right thing to do.
In our opinion this is hardly Natural Justice.
5. Malvern East group record of members decisions
We raised the study that was carried out a few years ago by a Malvern East Group member, keeping record of which VCAT Member decided which way and we could then see which members gave nearly all their decisions in favour of the developers. We are always nervous as to which Member we get as we know which side they usually favour.
Justice Garde seemed to absolutely deny that this was a proper study and had any relevance. He said he did not select Members but Government officials did that and they choose the people with the right backgrounds and they are trained thoroughly in what to do. They did their job properly and followed Government policy to the letter. Also last year when they advertised positions available in VCAT they had 400 applications - not sure what that means.
What became very clear from the beginning was that there was no point in Justice Garde having a meeting with residents, as we had hoped for. You see, he seems to think VCAT is perfect right now and no change is possible while Justice Garde is President.
So we are planning to meet with the Shadow Attorney General to educate him about how VCAT must be reformed the way residents and councils see as fairer, in case there is a change of Government next year at the election. Meantime the only thing I can suggest, and I am going to do it, and that is next time you are going to VCAT write to the President and ask for the order of presentation be changed for your case.
Mary Drost is the convenor of Planning Backlash, a group with a network of 250 residents' groups, which last year held the biggest ever population awareness function in Australia. Recently VCAT issued a very limited survey for users to fill out. Many of the 250 residents' groups in Planning Backlash were formed through bitter experience of appealing to the law via VCAT. Here is what Mary Drost has to say, in her frank and concise manner.
Statement to VCAT re their survey 
I think VCAT is doing a terrible job and not at all what it was intended to do. I refer to the things that most people are involved with and that is planning. For a start you have never before charged people to speak at a case. Now, suddenly, we have to pay, and you don't even put the amount on the form called 'Statement of grounds'. It is very badly done.
Then we residents believe that your Members are the developers' friend and usually give developers whatever awful development they want. In fact you should only be assessing if the council has followed its own rules but instead you set yourself up as the Responsible Authority and that is not your role.
Further it is obvious that the developer's barristers are buddy buddy with the Members, the way they speak to each other. Further VCAT staff have told me that developers ask for the Member they want and that is disgraceful, they get their friend.
Further VCAT should have its own expert witnesses as the ones developers use are only guns for hire who have been known to lie for money.
Then it would be much fairer if the ones bringing the case spoke first. [It is] not fair that they listen to the objectors and then try to knock them down. They [the objectors] like to be the last to speak.
As you can see, I am not happy with VCAT and I am in touch with many people across Melbourne. People are very disappointed by this survey. It has not allowed people to say what they think about planning, very poor survey. You should do a proper one and let people say what they really think. I am happy to discuss it with you anytime. I am Mary Drost Convenor of Planning Backlash, a network of 250 resident groups, all unhappy with VCAT and very disappointed that this survey is such a non event. [Email address left out by candobetter.net editor]
 Some editorial changes to punctuation, spacing and capitalisation have been made for easier reading, since this was originally an entry in an online form.
Save our Suburbs (S.O.S.) have developed the attached survey on planning issues for candidates at the coming State Election. They are writing to ask planning groups to sign on to the survey. They will be listing all groups supporting the survey. The more groups that are signatories, the more influence the Survey will have, both on candidates and political parties, and also in the media.
S.O.S. proposes sending the survey to candidates on October 1, and to formally conclude the survey on October 31. Late responses will be included in publicity where possible. S.O.S. will publish the results on their website and also send the results to other groups. It is hoped that the results can be used by local and state groups to highlight planning issues with candidates and as content for media releases. You can find out more or contact Save Our Suburbs via www.sos.asn.au.
[Editor: The following content was teased out of the linked to pdf file and there may be some inaccuracies due to the difficulty of this process. For the real questionnaire you still need to go to this link and look at the .pdf file.
Victorian Planning Survey 2014
Candidate Survey - Victorian Election
Question 1: Local issues
What are the major planning issues in your electorate?
How will you handle these issues?
What are the major infrastructure needs in your electorate?
How will you help address these needs?
Question 2: Local policy and amenity
Do you think the Environment and Planning Act should be amended to give local policy and local amenity greater weight?
Question 3: Community consultation on planning
Do you believe residents have been adequately consulted on major planning issues like the creation of Melbourne 2030 over a decade ago and the formulation of the current Plan Melbourne strategy?
If not, what sort of community consultation do you think should be adopted by the State Government and Local Councils?
Assuming that Melbourne continues to grow, would you rather see Melbourne develop like:
A Northern European city, with medium density diverse 4-5 storey development
Surfer's Paradise and many Asian cities, with massive centralised highrise development
Chicago and Los Angeles, with sprawling low density housing and vastly extended urban boundaries
Question 4: Undue influence and political donations
Do we have an inappropriate culture of undue influence in public decision making on planning matters in Victoria?
Do you support reforms to ban political donations from developers, as in NSW?
Do you support reforms to require disclosure of political donations within 14 days as in some parts of Australia, as opposed to up to 18 months in Victoria?
Do you support restoring the previous $1500 limit for mandatory disclosure of political donations, instead of the current limit of over $12000?
Question 4: Undue influence and political donations
According to the Productivity Commission Report, a majority of Victorians think that developers
have too much influence in planning. In answering this question please refer to the two links below.
Minister Guy's role in the Ventnor development
Hulls and Madden's role in the Hotel Windsor development
Do we need to improve transparency and integrity in governance of planning in Victoria?
How would you work to achieve better transparency and integrity in governance of planning?
Do you have further comments about this?
Question 5: Governance
Currently, the Minister is able to 'callin' planning matters, that is, to intervene and remove planning applications and appeal hearings from Council and the Courts.
Would you support mandatory criteria to define the scope of ministerial callin powers?
Do you think the Minister should be required to publish advice relied on and reasons for decisions on projects that are called in?
Do you have any further comments about this?
Question 6: Ministerial powers
Is there too much discretionary decision making in our current planning system?
Do you support minimum mandatory provisions for VCAT and Local Councils?
Do you have any further comments about this?
Question 7: Mandatory and discretionary requirements
Would you vote to amend the Planning and Environment Act to give greater precedence to environmentally sustainable development?
Recognising the need to address sustainability, human rights, and social equity, would you support wider public debate on a stable population policy for Victoria?
Do you have any further comment about this?
Question 8: Sustainability
The major political parties have withdrawn from the historic central planning role of Government. In Government, they want to 'reduce red tape', to 'get out of the way of business' and as Plan Melbourne states, to facilitate development, not regulate it
Do you think the deregulation of planning as represented by Plan Melbourne is in the public interest?
Do you think Victorians support the current policies of deregulation of planning?
Do you think the marketplace alone can address planning issues that involve long-term social, environmental and economic factors?
Do you have any further comment about this?
Question 9: Deregulation of planning
How important are the following areas of reform?
Do you have any further comments about how to achieve better planning for Victoria?
Question 10: Major planning issues
[Asked to rate the following:]
Changing the inappropriate culture of undue influence
Long-term infrastructure planning by an Independent Infrastructure Authority
Locating sustainable jobs closer to where people live
Improved resources and methods for enforcement of conditions of planning permits
Diverse and affordable housing
Planning and development to cope with the increasing impact of climate change
Minimum mandatory planning controls for Councils and VCAT, such as Rescode and Overlay requirements
Banning political donations from developers
Giving greater weight to local policy and amenity
Governance to protect integrity and transparency
Improved public transport network
Rail freight transport network
Stop policies promoting unlimited growth
Smarter ways of managing growth
Limiting the Minister’s call in powers
In this report, Ernest Healy, spokesperson for the Moreland Planning Action Group, concludes that VCAT, together with the MCC, have created a precedent which overrides the intended meaning of government policy. He argues that the meaning of the Victorian government’s Policy on Commercial 1 zone can be interpreted to mean that, if the commercial potential of a commercial 1 site is poor, then its suitability for medium density residential development should also be deemed poor.
Moreland City Council – Density at all costs
On April 7th and 8th, 2014, the Moreland City Council opposed an application for the development of 14 three-storey townhouses on a Commercial 1 site in Xavier St Oak Park at VCAT. It did so on the grounds that the commercial site included a public road, for which the City claimed responsibility.
Despite this objection relating to the road, the MCC submission to VCAT made it clear that Council had no serious objections to the project proceeding on planning grounds.
In fact, the Council submission went to some lengths to discredit local resident objections to VCAT, which largely addressed planning criteria – parking, congestion, visual bulk, out-of character development.
Part of Council’s argument for the suitability of this development related to the site’s proximity to the Oak Park shopping centre and railway station.
However, Council’s argument to VCAT, that the townhouse development was suitable because of the close proximity to the Oak Park shops, flatly contradicted its own previous assessment of access to the Oak Park shops from the western side, published a month earlier, when Council staff assessed the Oak Park shopping centre’s suitability for inclusion as a Neighbourhood Activity Centre. The Oak Park shopping centre was rejected by Council officers as unsuitable for inclusion as a NAC because of poor accessibility from the western side of the shopping centre.
Because the proposed townhouse development was to the western side of the Oak Park shops, where access had been deemed to be poor, one would expect that Council would advise VCAT that the development did not have good access to the Oak Park shops and railway station. But, they did not. Consider the following two sets of statements
Again, the relevant statements relate to the question of ease of access to the Oak Park shopping centre from the proposed development site in Xavier St to the West.
Moreland City Council submission to VCAT, March 18, 2014- including response to objectors (residents) grounds:
“The proposal is an appropriate renewal of land that is currently underutilised given its commercial zoning and reasonable access to transport and shops.” (my emphasis)
“The subject land is located in an established urban area with good access to a range of infrastructure and services.” (my emphasis)
“The site is approximately 300 meters walking distance from Oak Park Railway Station. The Oak Park Village shopping strip is located just east of the station, providing good access to local shops.” (my emphasis)
Moreland City Council assessment of access to the Oak Park Shopping Centre, Published February, 2014:
“Access to the centre is provided via Snell Grove and Waterloo Road on the eastern side of the railway which is considered the catchment for this centre. The railway and topography to the west makes pedestrian and vehicle access to the centre from the west challenging. (my emphasis)
… the steep topography of western side of the railway results in poor pedestrian and vehicles access to the centre (i.e. steep, concealed underpass and no vehicle crossing point) from the west. The catchment would principally be east of railway line given this.” (my emphasis)
(MCC, MORELAND ACTIVITY CENTRE FRAMEWORK, REPORT 1 - FEBRUARY 2014, p. 53)
1. The MCC undertook to undermine resident objections to this development when a plausible case on planning grounds could have been made against it, in support of resident concerns.
2. In its submission to VCAT, the Moreland City Councils’ assessment of access to the Oak Park shopping centre from the Western side of the Oak Park Station flatly contradicted its recent, detailed assessment which deemed access from the west to be poor.
The Bigger Picture:
This instance raises serious doubts as to how the Victorian government’s Commercial 1 zone will be treated in cases where the commercial potential of the site is deemed to be poor – as is the case with many dilapidated shopping strips.
Having decided that the Xavier St site had little or no commercial potential, VCAT simply decided that, by default, the site could be treated almost solely as a residential development.
VCAT was simply not interested in discussing the meaning of the Victorian government’s
Policy on Commercial 1 zone, which can be interpreted to mean that, if the commercial potential of a commercial 1 site is poor, then its suitability for medium density residential development should also be deemed poor.
Commercial 1 zone:
To create vibrant mixed use commercial centres for retail, office, business, entertainment
and community uses.
To provide for residential uses at densities complementary to the role and scale of the
One reading of this is that where the role and scale of the commercial centre is low, the potential for medium-density housing development will also be low. Here, ‘Complementarity’ relates to the creation of mixed-use centres, and does not mean that one use can be simply substituted for another where the other use is deficient.
VCAT, together with the MCC, have created a precedent which overrides the intended meaning of government policy.
Whitehorse Council and WERA joined forces to refuse to agree to amended plans going to VCAT and Deputy President Helen Gibson agreed. So the application has gone back to council. "This is what we have been asking for for years," says Mary Drost of Planning Backlash. "Bring this to the attention of your council and urge them to do the same. The precedent has now been set."
Geoff White, WERA President, refers to
"the letter that WERA and residents of Everton Grove sent to VCAT when the developer came up with 68 changes and a “ complete redesign” after the initial application for 6 townhouses and a 20 apartment block across 4 blocks in Everton Grove; Surrey Hills was refused a planning permit by Council.
"When Whitehorse planning officers and Council saw the resident letter asking VCAT to not hear an appeal on the amended plans because of the extent of change they decided to join the Hearing in support of the residents application to VCAT. The practice day Hearing on Friday 25 Oct took 1 hr 15 minutes but the decision of Deputy President is what we required. The developer yesterday advised the parties that they will not proceed on the original planning application to a VCAT hearing listed to start 13 November.
We think this is the first time Whitehorse has opposed amended plans before the scheduled VCAT hearing date."
Letter to VCAT from West of Elgar Residents Association Inc
October 14, 2013.
The Principal Registrar
VCAT - Planning & Environment List
55 King Street
Melbourne, VIC., 3000
Dear Principal Registrar,
Re: VCAT Reference No: P830/2013, for 8, 10, 12 and 14 Everton Grove, Surrey Hills, VIC., 3127.
1 Application to strike out the appeal.
Earlier this year, the Whitehorse Council refused under delegation to grant a permit to Gardencity Australia Pty Ltd to build a four storey 20 apartment and 5 three storey and 1 two storey town houses development on the blocks at 8, 10, 12 and 14 Everton Grove. Subsequently, Gardencity has appealed to the Victorian Civil & Administrative Tribunal (VCAT) against that Council refusal, and in support of their appeal have submitted extensively revised plans for that site.
The plans submitted on October 1, 2013 for consideration at VCAT include:
- a 4 storey apartment block of 26 apartments, an increase of 6 on the 20 listed in the original application;
- four two storey town houses instead of 6 proposed; but
- a total of 30 dwellings on the four sites – an overall 15% increase on the numbers of dwellings proposed previously.
- The plans submitted on October 1, 2013 show a significantly different building configuration and land use to that rejected by the Whitehorse Council.
- The developer has submitted a listing of 68 changes they have made to the proposal rejected by Whitehorse Council.
- The developer has advised (in the ninth point of their 68 advised changes) that
“The design response has been completely revised to reflect the design intent of the new architect.”
These 68 changes are so extensive that the development submitted to VCAT and to the parties to the appeal is that of a new development proposal and not merely changes to the original proposal.
Planning decisions in the City of Whitehorse are the role and responsibility of the Whitehorse Council. The development provided on October 1, 2013 is so significantly different from the one rejected by Whitehorse Council, including its significant increase in dwelling numbers and extensive other changes proposed, that it is a new proposal and one we think should be first considered by that Council.
Accordingly, we respectfully request that VCAT strikes out the appeal P830/2013.
2 Application to VCAT to refuse the substitution of plans
If VCAT decides to strike out the application P830/2013, for 8, 10, 12 and 14 Everton Grove, Surrey Hills, VIC., 3127, this request does not apply, but if VCAT chooses to continue the hearing, the undersigned accordingly respectfully request that the VCAT refuse to allow the substitution of plans.
Our reasons for this request follow directly VCAT’s Practice Note PNVCAT9 [March 2012] which states:
“3 As a guiding principle, amendments should not be used to materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.”
As the applicant advises, their proposal of October 1, 2013 has:
1. Increased the number of dwellings in the development by 15% - a material increase in the scale and density of a proposal; and
2. “The design response has been completely revised to reflect the design intent of the new architect.” and so has introduced significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.
3. The developer has submitted a listing of 68 changes they have made to the proposal refused by the responsible authority, the Whitehorse Council.
Accordingly, as the plans of October 1, 2013 are a material increase in the scale and density of the plans considered by the responsible authority, substitution should not be permitted.
We understand, as the Practice Note indicates, the appeal can still continue and can consider the original plans that the responsible authority refused.
3 Saving time and resources for all parties
The Practice Note also states that:
“2 Permit applicants sometimes seek to amend an application or the plans that form part of an application. The ability to amend plans introduces certainty to the planning and environmental approval process and saves time and resources of authorities, applicants, objectors and the Tribunal by enabling improvements to be made to a proposal without a new application being required.
Key elements of this principle are that the applicant has made genuine efforts to compromise and improve the development.
We consider the increased density, increased scale, almost unchanged visual bulk, unchanged monolithic appearance of an extensive block in a distinctly different streetscape, retained four storey apartment block, and the overall 15% increase in dwellings do not comply with this principle.
The responsible authority (the Whitehorse Council) and the other parties to the appeal must all commit extensive time, resources and money to review the new proposal. Accordingly, the proposal submitted by the applicant fails to meet the Practice Note’s requirements of introducing certainty by saving time and resources. On these further grounds, the undersigned respectfully request that VCAT refuse the applicant permission to substitute plans for those initially considered by the Whitehorse Council.
West of Elgar Residents Association Inc
[Address and contact details]
VCAT Administrative decision response
[Some changes to formatting for easier reading - limited to emboldening of some headings and phrases]
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P830/2013
VCAT Practice Note PNPE9 – Amendment of Plans and Applications – application to amend permit application by substituting amended plans – cumulative effect of changes – whether amended plans represent a significantly different proposal
APPLICANT Gardencity Australia Pty Ltd
RESPONSIBLE AUTHORITY Whitehorse City Council
RESPONDENT Janine Dankesreither & Others
SUBJECT LAND 8 - 14 Everton Grove
SURREY HILLS VIC 3127
WHERE HELD 55 King Street, Melbourne
BEFORE Helen Gibson, Deputy President
HEARING TYPE Hearing
DATE OF HEARING 25 October 2013
DATE OF ORDER 29 October 2013
1 The application by the applicant to amend planning permit application WH/2012/333 by substituting amended plans prepared by Noxon Giffen Architects dated 30 September 2013 is refused.
2 The application by objectors to strike out this proceeding is refused.
3 It will be sufficient compliance with the requirements of clause 24 of VCAT's practice note – PNVCAT2 Expert Evidence for parties to file and serve the expert witness statements upon which they intend to rely at the hearing by no later than 1 November 2013.
For Gardencity Australia Pty Ltd Ms Roz Wilson, solicitor and town planner
For Whitehorse City Council Ms Kim Piskuric, solicitor, of Maddocks
For Geoff White – West of Elgan Residents Association Mr G White, in person
For R B Ferguson R B Ferguson, in person
For Elizabeth Meredith & Others Ms E Meredith, in person
For Philip Andrew Jeremy Derham Mr P Derham, in person
What is this proceeding about?
1 This proceeding is an application for review under section 77 of the Planning and Environment Act 1987 against the council’s refusal to grant a permit for construction of multi dwellings on the subject land and reduction of visitor car parking. A hearing is scheduled on 13 November2013 for three days. The applicant/permit applicant (Gardencity) has given notice of its intention to amend the permit application by substituting amended plans. The council and objectors oppose the proposed amendment. When there is strong opposition to the substitution of amended plans, it is usually appropriate to resolve the issue before the final hearing to provide certainty for all parties as to the basis on which the Tribunal will make a decision. The purpose of the practice day hearing was to consider whether to amend the permit application.
2 The form of development shown on the plans, which currently form part of the permit application, show five detached, three storey dwellings with a mansard style roof spaced across the full width of the Everton Grove frontage. There is a further two storey detached dwelling with a pitched roof form located behind unit 1 close to the southern boundary of the site. Behind units 2, 3, 4 and 5, is a three storey residential building comprising 20 dwellings with a basement car park. The residential building has a pitched roof form and is set back 3 metres from the rear western boundary of the site. Units 3, 4 and 5 have separate driveway access from Everton Grove. The balance of the units and the residential building are accessed from a common driveway off Everton Grove between units 1 and 2 at the front and between unit 6 and the residential building at the rear.
3 The amended plans show four two storey dwellings with pitched roofs, located across the front of the site fronting Everton Grove. Two of these townhouse units are freestanding and two are attached. At the rear of these dwellings is a three storey residential building with a flat roof profile containing 26 apartments with a basement car park. Entry to the basement is via a driveway parallel to the southern boundary with a landscaping set back of 2 metres. Car parking for the four townhouses is by way of separate crossover for each dwelling from Everton Grove.
4 The council and objectors submit that the amended plans are not in accordance with the spirit or intent of the opportunities offered to amend a permit application under the Tribunal’s Practice Note PNPE9 – Amendment of Plans and Applications.
5 For its part, Gardencity submits that the overall height has been reduced slightly; setbacks along the rear (western) boundary remain the same; other setbacks have been reduced slightly; there has been a slight increase in the footprint of the building of 75m2 but this is not significant or substantial in the context of a site of 2902m2. Gardencity submitted that it was not the number of changes that was relevant but the quality of changes. The redesign of the proposal has been a direct response to the concerns expressed by the responsible authority and objectors. To reject the application to amend the permit application and substitute amended plans would only result in a further permit application to the council and a 12 month delay, which would be unfair to the applicant.
6 Gardencity also said that attempts to amend the plans at the council level pursuant to section 57 of the Planning and Environment Act 1987 had been rejected by the council. It submitted that:
The amended plans should not have been a surprise to Council or the main objectors. At the public meeting on 13/2/13 … Gardencity [said it] would change the plans to address many of the issues raised by Council & objectors based on expert advice, which we have now done albeit through the VCAT process.
If Council had given us a realistic timeframe for Section 57, then we wouldn’t be wasting VCAT's time at a Practice Day. Council rejected our request for maximum three months to provide amended plans. I recall one month being their tolerance…
7 Having regard to this submission, it is relevant to look at the background to the way in which the permit application was dealt with at the council level.
Background to permit application
8 The permit application was lodged on 16 May 2012. The plans initially forming part of the application showed a development of seven townhouses and one three storey building comprising 15 dwellings with basement car park (total 22 dwellings).
9 In June 2012, the council requested further information. An extension to the further information due date was granted in August 2012 with the new due date being 21 November 2012. In its request for further information, the council also provided a preliminary assessment of the proposal and identified a number of planning concerns about a wide range of matters. It advised that council “will not support your application in its current form”.
10 On 19 October 2012, Gardencity responded to the request for further information and submitted amended plans. The council amended the permit application pursuant to section 50 of the Planning and Environment Act 1987 so that the amended plans now form part of the permit application. The council wrote to Gardencity again on 9 November 2012 indicating that it still had concerns about the amended plans.
11 The permit application was advertised and attracted 104 objections. A consultative meeting was held on 13 February 2013, which was attended by 57 objectors.
12 Following the meeting in February 2013, there was further dialog between the council and Gardencity in which Gardencity indicated it wished to submit further amended plans. By email dated 14 February 2013, the council advised Dwayne Singleton of Gardencity that it must lodge a section 57 amendment request by 20 February 2013 indicating timelines in which reviews and amended plans can be expected, and if possible the likely extent of changes. The council also advised that in the event that Gardencity elected not to make a section 57 amendment request, or any substantial changes to the proposal, council would proceed to determination of the application “as outlined at last night’s forum” (ie it would refuse the application).
13 On 15 February 2013, Dwayne Singleton of Gardencity advised the council that a section 57 request could be lodged by next week (ie by 20 February 2013) provided revised plans are submitted within 3 months of the section 57 request being made. The delay was due to the need to refer the project to experienced experts “and the revision of the plans typically involves many meetings and redesign hours”. Mr Singleton also noted that: “As we have not shown the plans to experts, it is impossible to guess the extent of change”.
14 The council responded on 19 February 2013 to say that it was resolved to proceed to determination of the application in its current form. Notice of the council’s refusal to grant a permit was issued on 7 March 2013.
15 The amended plans, which Gardencity now wishes to substitute for the plans forming part of the permit application, have been prepared by architects, Noxon Giffen, whereas the current plans appear to have been prepared in-house by Gardencity Australia Pty Ltd. The amended plans are dated 30 September 2013. Notice of the application to amend the permit application was given on 1 October 2013.
Practice Note PNPE9
16 The Tribunal’s Practice Note PNPE9 – Amendment of Plans and Applications sets out when the practice note applies, procedures to be followed and what considerations the Tribunal will take into account when deciding whether to amend an application to which the practice note applies.
17 The introduction to the practice note states as follows:
2. Permit applicants sometimes seek to amend an application or the plans that form part of an application. The ability to amend plans introduces certainty to the planning and environmental approval process and saves time and resources of authorities, applicants, objectors and the Tribunal by enabling improvements to be made to a proposal without a new application being required.
3. As a guiding principle, amendments should not be used to materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not been considered by the responsible authority or primary decision-maker at first instance.
4. It is also important to give the responsible authority and those potentially affected by amended plans a reasonable opportunity to consider them before a hearing.
5. Plans may be amended following consultation or mediation between the parties, or as a result of improvements suggested by expert witnesses, or to respond to issues raised by the responsible authority or objectors during the permit process.
6. This practice note sets out the procedures to be followed by applicants when submitting amending plans or seeking to revise other aspects of an application; and details the considerations the Tribunal will take, when making a decision whether to amend an application in a proceeding.
18 Clause 22 provides as follows:
22. The decision of the Tribunal to amend an application to which this practice note applies is discretionary. In exercising its discretion, the Tribunal may consider the following matters, as relevant:
(a) the extent and impact of the changes;
(b) whether all parties and potentially affected persons have been given reasonable notice of the application in time to consider the proposed amendment before a hearing;
(c) whether the time limits in this practice note have been complied with and any prejudice to a party or potentially affected person arising from any non-compliance;
(d) whether the amendment improves the proposal or responds to issues that have been raised in the course of the decision making process;
(e) whether the amendment materially increases the scale or intensity of a proposal or introduces significant changes or new aspects that have not been considered by the responsible authority or primary decision-maker at the first instance;
(f) whether the amendment involves the consideration of additional planning controls or policies that were not previously relevant; and
(g) whether any special circumstances would support the amendment.
Should the permit application be amended?
19 The fundamental principle underlying the guidance provided by Practice Note PNPE9 is that amended plans should be an evolution or refinement of the original plans. The substitution of amended plans is not an opportunity to put forward a different proposal.
20 The subject land is a large site with development potential. However, the council and objectors say that the proposed development is too intense and constitutes an overdevelopment of the site for various reasons. Whether the amended plans constitute an overdevelopment of the site is not the issue at this stage. That is a matter which will be determined at the final hearing on the merits of the proposal. At this point, the factors I must consider are whether the amended plans materially increase the scale or intensity of the proposal or introduce significant new aspects that have not been considered by the responsible authority at first instance. Do they constitute an evolution or refinement of the proposal currently the subject of the permit application or do they so alter the proposal that it has become, in effect, a different proposal?
21 Gardencity points to the similarities between the plans. Both sets contemplate a series of townhouses along the frontage of Everton Grove with a three storey apartment building at the rear with basement car parking. The overall height is similar. The boundary setbacks are similar or increased.
22 I acknowledge these points of similarity. However, there are also many points of difference, including the following:
• Architectural expression. The external architectural expression of the two sets of plans is quite different, including roof profile, the general massing of the buildings and patterns of fenestration.
• Footprint. There is a marginal increase in the footprint of the amended plans, but the layout is quite different. The townhouses fronting Everton Grove are decreased in number (from 5 to 4) but they are no longer all detached. Townhouses 2 and 3 are attached thus presenting as a more solid built form to the street. The townhouse at the rear has been deleted, but the residential building has been enlarged and now extends as a solid built form across the entire width of the site at the rear.
• Setbacks. The external boundary setbacks are, in the main, similar or reduced. However, there are numerous changes to internal setbacks between buildings. There are also numerous changes by way of the provision of terraces and retaining walls within the front setbacks of the townhouses fronting Everton Grove and the provision of terraces to the dwellings in the apartment building.
• Layout. There are significant differences to the site layout of the amended plans (as noted above in the context of footprint) and to the internal layout of dwellings.
• The total number of dwellings has increased from 26 to 30.
• Increase in car spaces within basement car park from 24 to 33. The amended plans are not accompanied by an amended traffic report. The site plan for the basement (Drawing No A004) suggests that further detail will be provided in the final traffic report, presumably to be presented as part of expert evidence at the hearing.
• Landscaping. There is no detailed landscape plan accompanying the amended plans. It is noted on the plans and in the list of changes to the development that a new Landscape Concept Plan is being prepared and will be distributed in accordance with practice note PNPE2, ie with the expert evidence report.
• Access. The main access to the basement car park has been shifted towards the southern boundary.
23 In the list of changes to the development circulated by Gardencity with its notice of application to amend the permit application, it states that the design response has been completely revised to reflect the design intent of the new architect. I consider this accurately describes the new set of amended plans – it is a complete revision of design to the point of being a different proposal. Cumulatively, in my view, the number of changes transform the proposal from something that could be described as an evolution or refinement of the current proposal into a new proposal. The new set of amended plans steps over the line of what is acceptable by way of amendment under Practice Note PNPE9 becoming something that is not acceptable and that should properly be the subject of a fresh permit application to the council.
24 I find there has been no diminution of scale or intensity. Whilst Gardencity submits that the amended plans improve the proposal and respond to issues that have been raised by the council and objectors, the extent and significance of the changes and the new aspects they introduce mean that the responsible authority has not had a proper opportunity to consider them at first instance. The changes are so numerous and significant that it is not possible to say whether the amended plans represent an improvement to the proposal or exactly how they respond to issues raised by objectors and the council without the sort of detailed consideration that was undertaken by the council when the permit application was initially lodged.
25 I am not persuaded that the plans should be amended on the basis of Gardencity’s argument that a refusal to substitute the amended plans will disadvantage it by delaying their consideration and that this should be a factor weighing in favour of a decision to amend.
26 I consider that Gardencity has had plenty of opportunity to refine its proposed development in response to the council’s concerns since it first lodged the permit application in May 2012. It has known since June 2012 that the council did not support the proposal and the reasons for this. It has already amended its permit application once at the council stage. It is evident from the email correspondence between council and Mr Singleton of Gardencity in February 2013 that Gardencity had not subjected its plans to any detailed expert scrutiny up to this stage. Its failure to do so or to use an architect to design the proposal was a choice that it made. It was not unreasonable for the council to refuse to grant Gardencity an additional three months for it to redesign the proposal given that Gardencity could provide no indication of the changes it proposed to make. The permit application had been lodged some nine months previously and it had already been the subject of detailed commentary by the council and amendment by Gardencity. Responsible authorities are under an obligation to act as promptly as is reasonably practicable. Under the Planning and Environment Regulations, the prescribed time for making a decision on a permit application by a responsible authority is 60 days , a period well exceeded in the current case. The council was entitled to make a decision on the application it had before it.
27 In any event, it has taken Gardencity well in excess of three months to redesign the proposal. The delay between February 2013, when it made the request for additional time, to the time when the plans were prepared and notice given under Practice Note PNPE9 is in the order of seven months, not three months.
28 In my view, Gardencity has been responsible for many of the delays to date by its slow and inadequate response to council’s concerns and by its decision to redesign the proposal late in the piece, just prior to the hearing at VCAT, rather than earlier when first provided with council’s detailed feedback. I am therefore not persuaded that the additional delay, which Gardencity may suffer if the permit application is not amended by substituting the amended plans, is a factor that should outweigh the application of the principles embodied in Practice Note PNPE9.
29 Finally, it is evident that the amended plans are not the complete set of plans that Gardencity wishes to rely upon. Detailed landscaping plans and traffic/car parking reports have not been provided but are proposed to be introduced by way of expert evidence at the hearing. The Tribunal has previously commented in Savrez Pty Ltd v Stonnington CC that this is inappropriate.
30 My conclusion is that this application to amend the permit application by the substitution of amended plans pushes the boundaries of what is acceptable practice under Practice Note PNPE9. Individual changes to aspects of the overall development proposal, which are reflected in the amended plans, may have been acceptable, but it is the cumulative effect of all the changes that lead to my conclusion that this a significantly different proposal to that considered at first instance by the responsible authority and for which the permit application was made. As such, I determine that the permit application should not be amended by substituting these amended plans.
31 In these circumstances, if Gardencity wishes to pursue the proposal represented by the amended plans it should lodge a fresh permit application with the council. So far as the present proceeding before the Tribunal is concerned, Gardencity has two options. It may proceed to the hearing, which is scheduled on 13 November 2013 for three days, on the basis of the current plans that form part of the permit application, or it may withdraw the proceeding.
Another activist writes:
In my voluntary role with WERA [West of Elgar Residents' Association Inc], I have attended hearings on more occasions than I care to remember. Whilst all my experiences were associated with the City of Whitehorse, on ALL those occasions the Council had refused the application. Often the original proposal failed so many of the local planning scheme objectives that it was refused under delegation.
I was also involved in Justice Bell's review of VCAT - [submission and meeting]. Despite his review, there remain real problems with VCAT from the community's point of view.
I list the major problems which I have encountered-
* Substitution of plans at the last possible time before a VCAT hearing. Often these are not minor. In one recent case,[original directly refused by Council], I counted over 60 alterations. Surely, this should have gone back to Council as a new proposal.
* Lack of independence of "Expert" witnesses . So many times they have been employees of the developer, or involved in the development of the proposal.
* VCAT Member acting as a Planner -altering the design of the application, and then setting aside the decision of the Responsible Authority.
After Whitehorse Council had rejected an application on 14 grounds, the Tribunal RE-DESIGNED 19 of 32 units set in a Surrey Hills side street, imposed 28 planning conditions and gave approval.
Further, in the years since I first represented WERA [i.e the local community] at VCAT, the type of developer and the size and density of the proposals have changed. Originally, a proposal was by a local builder wanting to erect up to 3 units on a block. All of WERA's most recent applications have involved overseas consortiums acquiring relatively cheap [compared to activity centre] land in local streets and then applying to erect 25 -36 apartments, wall to wall and 3-4 storeys high. Such massive proposals make it even more daunting for ordinary residents, as these developers come to VCAT with barristers and supporting staff and their own witnesses.
The current classic example is in a short side street near me:
No shops, no bus, no units, Californian bungalows, tree lined -family community. An application for 6 x 3 storey townhouses + 20 units in 3 back yards - 3-4 storeys high, minimum set-backs.
This application was totally rejected by Council under delegation,so now we are off to VCAT - with apprehension in our hearts.
If we could believe that planning substitution was not allowed.[ie the plans put to Council are being judged], that witnesses were truly independent, and especially that local planning schemes were to be respected, then maybe we could be more hopeful.
The onerous charges inflicted on citizens attempting to access rights to control over their local environment and government are increasingly medieval. With the Judiciary now almost uniquely serving the corporate sector, one gets the sense that developers truly think they are Lords and that the state government thinks it is a King, and that both see the suburbs as their frontiers and their inhabitants as some insignificant race of beings. It seems clear that capitalism, as practised in Australia, is antithetical to democracy. It is clear that VCAT supports government policy of growth at all costs and that citizens are paying most of those costs, but not getting justice in return.
From the Macedon Ranges Christine's description of VCAT charges on citizens evoke Charles I's star chamber. She says that there is a case in the area, initiated by objectors against a council approval, which was lodged before the changes on 1 July.
The objectors are a group, and another individual (i.e. there are two formal ‘objectors’).
The group asked for 3 hours. They have just been told it is a 5 day hearing, with the developer asking for 21 hours.
The objectors have to pay $2,000 in daily hearing fees for this (split between objectors), on top of lodgement fees.
They have to pay every day before the hearing day because if they pay in advance, and the hearing is deferred or cancelled, they lose their ‘hearing day’ money.
The developer apparently pays nothing.
How VCAT was meant to function:
When Justice Bell first took up the position of President of VCAT he said:
“Local government is the primary decision-maker and we are truly a review tribunal, that’s our statutory purpose.”
“I would be disturbed if it were true
that we had become a default state
planning tribunal; if , for example,
the power of amendment we have is
being abused by developers such
that they are not presenting their
true case to council and are
saving it for VCAT.”
Justice Kevin Bell
Link here for Macedon Ranges Residents website
Read this letter sent to the principle registrar of VCAT by a resident from Knoxfield:
I won’t be attending this hearing as I have already wasted too many days off work at previous VCAT hearings.
There is no point in putting in a written submission based on my own objections to this development as VCAT (Victorian Civil and Administrative Tribunal) have publically stated that concerns/objections by members of the public do not count and won’t be taken into consideration.
In every VCAT case that I have been involved in across our local area the developer has always managed to have the council refusal overturned despite council rejecting their applications and many local residents posting valid objections.
The developers legal council are extremely well prepared and no expense is spared in the preparation of their case. They can hire lawyers & barristers to search every loophole and rubbish every legitimate objection by council and members of the public. They regularly submit revised plans at the VCAT hearing, at the last minute, to win favor in their cases (I have seen this on many occasions).
VCAT is not the unbiased umpire that it was originally intended to be. It is now a defacto planning approval body with no real interest or knowledge of the local area where these inappropriate developments will be built.
VCAT is responsible to no one and answerable to no one.
If VCAT were truly unbiased then the majority of rulings would confirm the local councils professional planning assessments. Instead we see the majority of council rejections overturned in favour of the developer despite them not meeting local council approval.
There is a huge public groundswell of resentment across Melbourne at the way developers can use VCAT to circumvent valid local council decisions and completely ignore local residents objections and concerns.
VCAT must be drastically overhauled before residents and councils can have any faith that it is a fair and just umpire in planning review decisions.
 [CAT stands for the Victorian Civil and Administrative Tribunal. It is supposed to dispense justice cheaply and democratically for Victorians. But it has become expensive, biased and corrupted to satisfy developers.
"An amazing start to the supreme court case. It was a packed courtroom with standing room only, more than 100 of you came to show resident opposition to VCAT saying that our objections don't count. The outcome of this hearing will affect us all. Barrister Stuart Morris presented the case for the council. It has been suggested that if this case goes against the people that people should write to the Attorney General demanding that VCAT be abolished and they set up a proper simple appeal body for planning issues. The hearing continues tomorrow, Wednesday, and the barrister Chris Canavan will be speaking for the developer. If you have time do go to hear what he has to say for the developer. " (Mary Drost of Planning Backlash).
Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd & Ors.
Well, an interesting day at the Supreme Court, conducted at the High Court building. This was the third venue given since the day before. Nonetheless the court room was packed, with standing room only for about 8 people, others sitting on a table at the back and another 8 or so allowed to sit in the jury box.
Another consequence of privatisation
You could say that all the trouble started with the privatising of public land, involving a building and site that used to belong to state water, which was later purchased by a corporation. Now, years down the track, Lend Lease and a partner want to build a series of massive towers on this site which seems to be located between two areas of parkland in an area largely without other green open space.
Stonington Council, represented by barrister Stuart Morris, was appealing a decision by VCAT which gave the green light to Lend Lease to build - if I heard correctly- at least 19 buildings ranging in size with 11 to be of 4-12 stories on or adjacent to parkland in a neighborhood where the highest residential buildings are around two or three stories.
Naturally the community objected. There were a total of around 618 or 627 objections and only 3 letters of support for the project. However, despite this manifest opposition to an obviously disruptive development:
"VCAT, in its determination of 10 July 2012 to grant, in full, Lend Lease’s Planning Permit Application, ruled that the extent of the community’s opposition to a planning application was irrelevant.
“We (VCAT) are exercising an administrative review power. It must be exercised in accordance with law. We
must not have regard to irrelevant considerations. The extent of the opposition per se in one of these” –
i.e. irrelevant.[Source: http://www.orronggroup.com/]
"Stonnington Council, with support of the Orrong Group, recognised the implications that such a ruling would have on all planning applications for all Victorians. Council has succeeded with the first stage of the appeal – the Supreme Court [...] granted Council the right to appeal the matter to the full court on Tuesday16 April."
The Orrong group say, rightly:
The Council is commended for taking this brave step. Because of the widespread ramifications of the VCAT ruling this is a case that justifies the cost of the appeal. It has the possibility of being a “watershed case”. We must support the Council in its action."
The whites of their eyes
We are supposed to live in a democracy. A 'democracy' implies self-government and control over what happens in one's community. But reality in Victoria (and the rest of Australia) is that the corporate sector has far more influence over government than the people and usually wins over real communities. This is becoming more and more problematic in Australia, as open space becomes a civil battle field because of government- and corporate- engineered population growth that is driving unwanted development everywhere.
Economic theory behind our predicament
It takes being caught up in the undignified, expensive and painful reality of turbo development for people to begin to grasp just how mad our laws are and how weak our democracy. You can spend a lot of time trying to argue sensibly, writing submissions and getting nowhere. Meanwhile some corporation is making a lot of money out of your misery.
The economic theory behind this goes back to the 18th century in Britain, the time of the Restoration, where a particularly predacious kind of land-tenure law replaced an earlier kind that gave people more rights. Although enclosures had happened since the time of the Normans, the 18th century was particularly fierce.
“In the eighteenth century, when the British economy entered an unparalleled era of expansion, Britain’s Parliament began operating according to Coasian principles and reorganized property rights en masse. In the nineteenth century, when most common-law doctrines reached their modern form, doctrines of equity (enforced through the Chancery Court) dominated the conveyance of land. These doctrines were designed to protect beneficial interests, not to maximize productivity. Efficiency became a dominant doctrine in the English legal system only after Parliamentary intervention.”(Source: Bogart, Daniel E. and Richardson, Gary, 2008, June. "Making Property Productive: Reorganizing Rights to Real and Equitable Estates in Britain, 1660 to 1830."NBER Working Paper No. W14107, p.7)
Coasian economic theory was originated by Ronald H. Coase in “The Problem of Social Cost”, Journal of Law and Economics, 3: 144, 1960. The theory assigns value arbitrarily, according to the highest dollar profit probability. It takes no heed of non-monetary values and therefore is unresponsive to social cost or individual equity. [Extracts from book close to publication: Sheila Newman: Demography, Territory, Law 2: Land Tenure and the Origins of Capitalism in Britain, Countershock Press.]
And that is the key:
Coasian economics takes no heed of non-monetary values and therefore is unresponsive to social cost or individual equity
This works out to mean that big business can almost always claim to be benefiting the community because of large financial through-puts, and that residential or small business objectors are NIMBYs, with much lesser financial sums at stake. This method of appraisal of a situation almost completely ignores every non-monetary interest affected and lesser monetary interests of small businesses. Residents cannot claim financial costs that might be incurred, for instance through loss of sunlight rendering solar panels useless or vegetable gardens unproductive.
Importance and Elements of this case
So this case begs those conventions that dispossess us of our individual rights to enjoy our properties and our neighbourhoods and participate in local self-government - the very essence of democracy.
Below I list some of the issues I understood from Barrister Stuart Morris's arguments, which occupied most or possibly all of the first day. [Candobetter did not remain for the rest of the day and supposes that the Lend Lease barrister (Chris Canarvan) will present his case tomorrow.]
- Stonington Council had unanimously vetoed the Lend Lease project after receiving approximately 620 objections
- The parties to the proceeding should be taken to include people who made petitions, including those who were did not come in to the tribunal. The responsible authority must consider all objections not withdrawn.
-It must consider environmental impact and any significant social and economic effects. Environmental impact, particularly under the Planning and Environment Act could extend well beyond the immediate neighborhood.
- Participation is a key factor: The Tribunal must where appropriate take account of the extent of which persons owning land nearby participated in the decisions before granting the permit. It was suggested that this provision carries over from an older Act which actually goes back itself to the Planning Appeals Board Act 1980. It's all about participation. John Caine's (Victorian Premier from 1982-1990) ammendments in parliament form some of the history of this part of the law.
- In case the defendants seek to narrow the scope and leave no room for the actual operation of the principle, the scope has to be broad, the triggers to be generic in nature.
- The Tribunal is required to consider all objections.
- The substance of the objection can be important
- The number of objections can be important
- The number of objections plus the substance is relevant to the purpose of the Act to include embracing public participation and fairness
- There needs to be ability to participate in the objection procedures (noting the fact that it is commonplace for applicants to be exempt from third party rights and therefore not to advertise their projects)
- The fact of participation is crucial
- The extent to which persons participate makes relevant the number of persons who participate
- Evidence of social effects: suggestion that one is not lawfully considering a matter if one excludes the number feeling strongly enough to object
- There has been an error of law when a party who has made a written submission is ignored.
- A planning decision is informed by the degree of community response which may still be relevant if not determinant
The above points are a very sketchy rendition of some very detailed citations and arguments made over the course of several hours. The case continues on the 17th of April at the same venue. The counter arguments of the Lend lease barrister will then be heard.
Candobetter.net is interested in receiving opinions and notes on tomorrow's presentations.
Details of court and case
Valuation Compensation and Planning List
Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd & Ors.
NOTE! Venue changed to Court 2, Ground Floor, Old High Court, 450 Little Bourke Street. LAST MINUTE REMINDER ABOUT THE SUPREME COURT APPEAL - TUESDAY 16 AND 17 APRIL 2013. This is about your fundamental property and citizenship rights - the very basis of democracy. Come and sit in the gallery.This involves the Orrong Group. The fact that this case has arisen is a consequence of commercially driven population growth in Victoria and Australia. The Supreme Court has changed the venue for the Hearing tomorrow, commencing at 10.30am.
WHAT IS BEING CHALLENGED?- VCAT'S DETERMINATION :-
THAT THE EXTENT OF RESIDENT OPPOSITION IS IRRELEVANT IN PLANNING APPLICATIONS
If you could spare an hour or two the Orrong Group (of Melbourne, Victoria, Australia) residents would greatly appreciate your presence in the gallery as this vital hearing proceeds.This may well prove to be a test case for many future community issues and we the community need to be seen to have a voice.
The hearing will begin at 10.30am in Court 2, Ground Floor, Old High Court, 450 Little Bourke Street.
The Listing Judge may then allocate the case to another courtroom.If you arrive late check with the Supreme Court Registry Level 2. Phone number 96036111 - The case number is SCI 2012 045 07.
As the Court has 'airport like' security in place for entry to the court we suggest you arrive around 10 am. We hope to have media coverage before the hearing. We will have an Orrong Group member at the Court entrance to assist with directions. We can meet at the court entrance.
Should you intend coming to the hearing on Wednesday 17th we recommend you check the supreme Court "Daily List" on the internet from 5pm on the 16th, to confirm that the hearing is continuing.
Margot Carroll of the Orrong Group says, "THIS IS CASE WHERE WE NEED THE COMMUNITY TO COME TOGETHER AND SHOW DETERMINATION AND STRENGTH.
PLEASE JOIN WITH US AT THE COURT.
Express your views if opportunities arise in any talkback programs.
0409 174 194 & 9 5104845
As a residents’ group which deals with planning procedures, Malvern East Group (MEG) finds that VCAT fails its own mission statements of being a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution. The institution of draconian fees now dramatically highlights this disconnect.
Submission to the VCAT Fee Review
From Malvern East Group to the Regulations Officer, Courts Policy. (See details at end of article)
We quote from VCAT’s website….
“VCAT’s purpose is to provide Victorians with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution.
We aim for service excellence by being cost effective, accessible, informal, timely, fair, impartial and consistent.”
As a residents’ group which deals with planning procedures, MEG has taken issue with these statements on a number of occasions…e.g. at the forums conducted by Justices Kevin Bell and Iain Ross, in our submissions re ‘transforming VCAT’ and at meetings with both the Attorney General Robert Clark and Planning Minister Matthew Guy. We have stated repeatedly that most of these aims are rarely, if ever, met.
If the Government allows the proposed fee increases it provides the Victorian community, which it purports to represent, with a final nail in the coffin of justice at VCAT.
The proposed increases constitute a financial barrier for residents and residents’ groups and are yet another barrier for them to negotiate in seeking some degree of fairness in the entire planning situation.
Every single thing in this process is against the residents
Every single thing in this process mitigates against the residents. They cannot match the money of developers nor the specific expertise of planners. They do not have the perceived ‘old boys’ network that seems to operate at VCAT hearings between developers, their ‘hired guns’ and VCAT Members so they are ‘behind the eight ball’ from the very beginning of an appeal because they can never match the expensive representation developers use as a matter of course. Local Policy on which residents tend to rely is swatted away by Tribunal Members who pay rapt attention to expert (so-called) witnesses who are PAID to give unsworn evidence which favours their employers. Why else would they be there?
Developers play games with citizens
At the core of the cost of administering VCAT is the endless games played by developers…e.g. the ambit claims, the amended plans, the employment of so many “hired guns” who take up endless amounts of time with statements that inevitably marvel at the sheer wonder of the plans before the Tribunal and the repeat applications and, inevitably, appeals for MORE than they got in the first decision. The money developers are allowed to spend in the “people’s” court is the major factor in making the entire planning appeals procedure so lengthy and expensive.
Legal representation needs to be downsized and equalised
The process we would like to see in planning disputes is that each party to the appeal either self-represents or employs one person only to persuade the Member that theirs is the point of view that complies with the objectives and standards of applicable Planning Schemes. Cases would be shorter, cheaper and justice would not only be done but it would be seen to be done in such a level playing field if this were to happen.
We have long despaired of VCAT ever introducing a system of independent expert witnesses and we now despair of VCAT ever providing ‘low cost’ dispute resolution if the proposed massive fee increases are allowed. Residents will be priced out of the planning dispute process. In most cases they are already ‘out-moneyed’ by applicants. With the suggested fee increases they won’t even be there. Residents’ perception of VCAT’s proposed fee increases is that it is a somewhat devious way of cutting down the waiting times for appeals to be heard.
We urge the Government to “fix” the Planning Appeals section of VCAT in the ways we have repeatedly suggested and not allow the proposed fee increases.
Ann Reid (MEG Convenor)
The above submission was from the:
Malvern East Group
MEG Supports PLANNING BACKLASH
C/- 14 Chanak Street,
Malvern East Vic 3145
Phone/Fax 9572 3205
Regulations Officer, Courts Policy
Strategic Policy and Legislation
Department of Justice
"I am writing to express my serious concerns regarding the proposed VCAT fee increases. I believe these fee increases will unfairly hurt everyday Victorian residents, by undermining access to, in the words of VCAT’s motto, ‘Fair, Efficient Justice for all Victorians’" (Kelvin Thomson MP to the Victorian Attorney General.)
[Letter from] Kelvin Thomson MP, Federal Labor Member for Wills
Tuesday 15th January 2012/ac
The Hon Robert Clark MP Victorian Attorney- General Level 26, 121 Exhibition Street MELBOURNE VIC 3000
Submission to the VCAT Fee Review:
Let’s keep access to justice, fair, affordable & accessible for all Victorians
Thank you for the opportunity to make a submission to the Regulatory Impact Statement for proposed Victorian Civil & Administrative Tribunal (VCAT) Fees Regulation Review (VCAT 2013).
I am writing to express my serious concerns regarding the proposed VCAT fee increases. I believe these fee increases will unfairly hurt everyday Victorian residents, by undermining access to, in the words of VCAT’s motto, ‘Fair, Efficient Justice for all Victorians’ (VCAT 2013A).
By increasing the financial barriers for Victorians to access VCAT, the justice system will lock out Victorians who cannot afford large fees and assist those who do have the money to fight legal cases, namely property developers and big business.
I believe these fee increase proposals are out of step with community expectations, are out of step with a fair and equitable justice system, and will play into the hands of property developers.
I have outlined steps I believe the Victorian Government should consider in making VCAT fairer and more accessible, rather than engage in fee hikes.
The Victorian Government states that the previous Government failed to keep VCAT fees in line with the cost of running the Tribunal, and failed taxpayers. The fee changes aim to reduce the burden on taxpayers and reinstate a ‘reasonable balance’ between taxpayer and user funding. The proposed changes expand the two-tier model for major cases, which allows some users to pay more to have a matter heard faster (Hudson 2013).
In my submission, however, VCAT’s establishment never intended that fees should cover the costs of running the tribunal, but rather fees and red tape are limited as to not prevent Victorians from accessing affordable and efficient justice.
Since its inception, VCAT’s (2012:2) purpose has been to provide Victoria’s with a low cost, accessible, efficient and independent tribunal delivering high quality dispute resolution.
The proposed changes would mean that the cost of launching small claims, planning appeals, tenancy disputes, and many other matters would accelerate from March under a planned expansion of the user pays system. VCAT is expected to collect an extra $22 million over the next 3 years from proposed fee increases and new charges (Hudson 2013).
The Victorian Government states that it proposes to recognise the mix of public and private benefits of the activities provided by VCAT, consistent with the approach taken in setting Victoria’s courts, by setting cost recovery for VCAT at 45% on average, of current expenditure in government appropriation funded lists. Currently VCAT only recovers costs ot an average 14% in these lists (Jaguar 2012:5).
I understand that revenue generated by VCAT’s Planning and Environment List if these changes proceed, will be in the vicinity of 44%, with revenue from year estimated to be over $2.7 million, in year two $3.2 million, and in year three $3.8 million (VCAT 2013:7).
If imposed, the fee increases would be higher than any other Australian state, affecting up to 8,000 Victorians per year. Under the proposed increases;
• The cost of lodging small claims over faulty goods will increase from $38 to $160
• Planning applications would attract an additional $1,000 fee, up from $322.
• Cases heard over more than one day will attract a new $1,800 a day fee (Pakula 2013).
The proposed fee changes mean that from March, fees to lodge an objection with the tribunal would quadruple from $322 to $1,462 for a development costing between $1 million and $5 million. By 2015 the fee would rise to $2,014. Developments costing more than $5 million would increase from $1,290 to $1,462 (Tran 2013).
I am particularly concerned that fees for planning appeals are much higher than other forms of appeals. Why is this the case? The higher fees for planning appeals act as a barrier to local residents and communities being able to effectively exercise their right to decide what kind of neighbourhood or community they live in.
VCAT should not be about revenue raising. VCAT should remain as the low cost dispute resolution body it was always intended to be.
Impact on the Community
Pursuing justice will cost more from March and would skyrocket in two years’ time (Gough 2013). Fee increases of this magnitude will discourage future VCAT applications from lodging claims before the tribunal (Pakula 2013).
Many Victorians will be denied access to justice under these planned fee hikes. The whole point of VCAT is to be a low-cost, easy-to-use alternative for Victorians, to give them a chance when they’re dealing with dodgy traders or shonky businesses. It would be a terrible shame if Victorians can no longer enforce their rights because they are priced out of it (The Australian 2013).
Yarra Mayor, Jackie Fristacky, and Protectors of Public Lands spokeswoman, Julianne Bell, have raised concerns that fee increases would restrict the accessibility of the tribunal to individual residents and resident associations. High fees are likely to inhibit people from appealing, yet the cost of planning appeals is already prohibitive for residents (Price 2013).
Save our Suburbs President, Ian Woods, says groups with fewer objectors would be hardest hit. Developers continually tend to resort to using lawyers, meaning the tribunal’s legal system is becoming more costly over time (Tran 2013).
Demand for community and legal aid services, and access to justice, is on the rise, illustrating that Victorians need to be provided with fewer barriers, not more, to access justice. Victorian Legal Aid (2011-12) has reported a 2% increase in the number of clients contacting them for assistance, up from 89,255 in 2010-11 to 91,079 in 2011-12. There has been an increase of 2% in the number of clients they support with no incomes. Overall 3 in 10 clients of Legal Aid had no income, 1 in 2 were receiving some form of government benefit or pension, 1 in 5 were from linguistic and culturally diverse backgrounds, 7% were in custody, 1 in 8 were under the age of 19 years, 2% were homeless and 3% were of Aboriginal or Torres Strait Islander background.
Residents deserve to be heard
I am very concerned that the increase in VCAT fees will greatly benefit and assist property developers, by preventing local residents and communities from having their say.
VCAT (2013B) states that planning matters are often difficult and can involve complex legal or planning issues and can involve numerous parties and objectors. VCAT is currently experiencing delays between 8-10 months from commencement to hearing for planning and environment matters.
VCAT (2012:5) has reported that it received a 3% increase in the number of cases lodged, 89,470 in 2011-12, compared to 86,890 in 2010-11. Residential development proposals continued to be the subject of the majority of applications dealt with by VCAT’s (2012:32) Planning and Environment List, and in 2011-12 were have reported to have increased by 3% to 3,873 cases, compared with 3,775 in 2010-11 (VCAT 2012:5).
VCAT (2012:32) has reported that Planning and Environment cases are increasing in complexity due to the more complex and detailed policy framework. For example, planning strategies encourage high-density development close to activity centres which have resulted in more applications for large residential buildings in areas new to high-density living.
Applications involving developments worth approximately $6.39 billion were initiated in 2011-12. VCAT (2012:32) finalised 3,718 matters in 2011-12, a 6% increase in finalisations, with the list having a clearance rate of 96%.
In my own electorate of Wills, I have been supporting residents to oppose inappropriate developments in their neighbourhoods for many years. I believe that local residents should be given a meaningful opportunity to object and oppose inappropriate developments in their neighbourhood.
I support residents who approach me with genuine concerns about high density development proposals in their area, and fight for their voice to be heard in the planning process.
In July 2009 I lodged a detailed 30 page submission to the Victorian Government’s Melbourne at 5 Million Review, in which I specifically recommended that Melbourne’s population needed to be stabilised, and that the State Government and local councils should extensively consult with, and respect the views, of local communities on planning issues.
I have assisted, supported and lodged objections on behalf of residents in relation to numerous planning issues across Wills.
In some cases Moreland Council listened and respected the views of local residents, but in others residents continued their fight to oppose developments at VCAT. For those who did appeal decisions to VCAT, residents had to work hard to organise and raise money to support their appeals, through fundraisers, sausage sizzles and other avenues. For those who did not appeal unfavourable decisions, it was reported to me that existing VCAT fees were a significant barrier.
Property developers have the capacity to claim VCAT expenses as a tax deduction, in the context of their business dealings and operations. Residents, on the other hand have no capacity to claim any such expenses, despite the fact they are likely to be much more affected by a development than the developers.
The Government should not increase VCAT fees. It should work to make the existing planning framework and appeals process a great deal fairer for local residents, so that their views are proactively sought, listened and adhered to through planning and development decisions across the state. Property developers should not be given the green light to continue ramming down the throats of Victorians a proliferation of high rise, high density, concrete monstrosities that are clogging the arteries of Melbourne and increasing our carbon footprint.
I ask that you consider the information contained in my submission in the context of making Melbourne more liveable. I look forward to your consideration and response.
[Signed: Kelvin Thomson]
Federal Member for Wills
Cc: VCAT, The Hon Ted Baillieu MP, The Hon Martin Pakula MP, The Hon Daniel Andrews MP.
- The Australian(2013) ‘VCAT hikes will price out Victorians: Oppn’, published in The Australian 8/1/13 [Online] http://www.theaustralian.com.au/news/breaking-news/vcat-hikes-will-price-out-victorians-oppn/story-fn3dxiwe-1226549606147 [Accessed 9/1/2013]
- Gough, D. (2013) ‘VCAT fees set to rise’, published in The Age 8/1/13 [Online] http://www.theage.com.au/action/printArticle?id=3937023 [Accessed 14/1/2013]
- Hudson, P. (2013) ‘Victorians may be priced out of justice as VCAT fees soar’, published in Herald Sun 8/1/13 [Online] http://www.heraldsun.com.au/news/law-order/people-priced-out-of-vcat/story-fnat79vb-122654916828 [Accessed 14/1/2013]
- Jaguar Consulting (2012) Regulatory Impact Statement; VCAT Tribunal (Fees) Regulations 2013. Prepared for the Victorian Department of Justice [Online]
b5af056866ea/risvcatfeesregs2013.pdf [Accessed 14/1/2013]
-Lee, J. (2012) ‘Minister sidesteps VCAT’, published in The Age 4/10/12 [Online]
- Pakula, M., The Hon. (2013) ‘VCAT Fees set to skyrocket under Baillieu
Government’, Media Release issues 8/1/13 [Online]
http://www.danielandrews.com.au/media/releases/vcat-fees-set-to-skyrocket-under-baillieu-government/ [Accessed 14/7/2013]
- Price, N. (2013) ‘VCAT fees not appealing’, published in Melbourne Leader 14/1/13 [Online] http://melbourne-leader.whereilive.com.au/news/story/vcat-fees-not-appealing/ [Accessed 14/7/2013]
- Tran, D. (2013) ‘VCAT fee hike eliminates ‘cheap option for appeals’, published in Dandenong Journal 14/1/13 [Online]
http://www.dandenongjournal.com.au/story/1229869/vcat-fee-hike-eliminates-cheap-option-for-appeals/ [Accessed 14/1/2013]
- VCAT (2013) Regulatory Impact Statement for proposed Victorian Civil &
Administrative Tribunal Fees Regulation Review (2013) [Online]
- VCAT (2013A) ‘Fair, Efficient Justice for all Victorians’ [Online]
http://www.vcat.vic.gov.au/ [Access 14/1/2013]
- VCAT (2013B) ‘Frequently asked questions re delays in Planning and Environment List’ [Online] https://www.vcat.vic.gov.au/disputes/planning-and-environment/news/delays-planning-and-environment-list [Accessed 14/1/2013]
- VCAT (2012) VCAT Annual Report2011/2012 [Online]
http://www.vcat.vic.gov.au/files/VCAT%20Annual%20Report%202011% 20-%2012.pdf [Accessed 15/01/2013]
- Victorian Legal Aid (2012) Annual report 2011-12 [Online]
http://www.legalaid.vic.gov.au/annualreports.htm [Accessed 15/1/2013]
Kelvin Thomson MP Federal Labor Member for Wills
VCAT is proposing draconian fees on citizens who wish to protect their property and environment from undemocratic corporate backed development and overpopulation. Fees for a citizen lodging an objection to any development in 2012 were $38.80. For 2013 fees are proposed to rise to $731.80 (for developments costed at less than $1.0m) and to $1,462.30 for developments estimated at $1.0m or more. These fees would increase even more in 2014 respectively to: $869.60 and $1,737.90, and, in 2015, respectively, to $1,007.40 and $2,014.80. Add to this the cost of hiring barristers and this will make a complete mockery of democracy, which is already a laughing stock in Victoria anyway.Submission deadline is 5pm Friday 15 February 2013.
Victorian Government overdevelopment regime trying to price citizens out of their rights to object at law
The government is trying to act to protect the interests of developers and their overwhelming vested interest in unwanted population growth by restricting peoples access to their own courts and tribunals through the imposition of draconian fees. The fact is that so many 'developments' (multiple new structures with costly impacts) are being forced on the people of Melbourne and Victoria that their objections are clogging up VCAT. Although VCAT stands for the Victorian Civil and Administrative Tribunal, instead of heeding democratic objection and curbing this remorseless overdevelopment, the government is attempting to stop democratic objections by making them too costly for citizens to bring about. This is a total scandal and if the government succeeds in removing most peoples' ability to influence what happens around them to their environment, there will be very little left that it will feel that it cannot do. Making government for big business is a major part of fascism, as is removing access to the law for communities. The only thing lacking now is overt violence against citizens.
Source of fee details - Regulatory Impact Statement
Here is information regarding the proposed fee increases at VCAT (they want to cover part of their costs). Submissions are invited on the attached Regulatory Impact Statement no later than 5pm Friday 15 February 2013. Information on how to make a submission can be found here: http://www.justice.vic.gov.au/home/the+justice+system/regulatory+impact+statements/ris+for+proposed+vcat+fees+regs.
Go to the Regulatory Impact Statement, near the bottom of the page.
It could see an objection against a development valued at over $1m go from the present $38.80 to $2,014.80. Obviously a massive cost impost on any affected person objecting to a development
For example, page 13 0f the Regulatory Impact Statement, dealing with an increase in fees for the years 2012, 2013, 2014, & 2015:
#ChargeIncreases" id="ChargeIncreases">1. If the proceedings are in respect of a development of any kind where the estimated cost of the development is less than $1 million
(2012) $38.8 (2013)$731.8 (2014)$869.6 (2015)$1,007.4
2. If the proceedings are in respect of a development of any kind where the estimated cost of the development is $1 million or more
(2012) $38.8 (2013)$1,462.3 (2014)$1,737.9 (2015)$ 2,014.8
To put these increases in percentages really highlights how out of proportion they are - an indication of how out of proportion population growth and overdevelopment are in Victoria.
Kelvin Thomson’s submission re this matter:
The Age article on the fee increase is here: http://www.theage.com.au/victoria/vcat-fees-set-to-rise-20130108-2cdtr.html.
The Herald Sun article on the fee increase is here: http://www.heraldsun.com.au/opinion/vcats-win-is-peoples-loss/story-e6frfhqo-1226549124582
What we have here in Victoria - and the same thing is happening Australia-wide - is a small set of people who happen to have been able to get financial domination of institutions and land-use planning and who are now using the parliament and the law to get whatever they want by depriving all the other citizens of their democratic right to self-government and control over their environment. Another name for this power-elite is the Growth Lobby.
“It is considered that VCAT failed to give due regard to significant community input and has made a decision that is not supported by the local community or Council." (Councillor Chandler).
10 Aug 2012
Stonnington Council will appeal the recent VCAT decision on 590 Orrong Road, at the Supreme Court, based on an ‘error of law’.
The Victorian Administrative Appeals Tribunal (VCAT) had ruled in favour of Lend Lease, in July, granting a permit for a major, controversial development at 590 Orrong Road and 4 Osment Street, Armadale, which drew significant community objection.
Stonnington Mayor, Councillor John Chandler said:
“Council’s focus on appealing the VCAT decision is based on legal advice that there is an ‘error of law’ to be pursued, which presents the potential for a different decision to have been reached.
“The legal opinion considers that an error of law could be established, principally based on the tribunal’s express statement that “the number of objections to the proposed development was an irrelevant consideration.”
Cr Chandler also said:
“It is considered that VCAT failed to give due regard to significant community input and has made a decision that is not supported by the local community or Council. In Council’s view, the decision reflects a lack of consideration of neighbourhood character or respect for local community concerns around appropriate development.
“Council remains committed to seeking an appropriate planning outcome for the site.”
Documentation was lodged on Monday 6 August for Stonnington Council to be granted leave to appeal to the Supreme Court.
Information from the West of Elgar Group (WERA) shows what could happen in your street. So keep alert just in case. The developer is an overseas company and the development is being advertised overseas. The size of some of the units indicates they may only be of interest to the overseas student market. In Surrey Hills, close to Wattle Park tram terminus, and far from shops, developers are buying cheaper land in our local streets. VCAT has just approved an application by an overseas consortium for 32 apartments in such a street. Three development applications for this site have been knocked back. This one breaks rules set for the others. Where is the sense or the justice in this?
28-34 Boisdale Street Surrey Hills
Local residents have spent an immense amount of time and effort since 2009 in an attempt to preserve the character and amenity of their neighbourhood.
The planning void left after the Brumby Government’s Melbourne 2030 disappeared has yet to be replaced with a clear planning policy by this State Government. As a result , out here in Surrey Hills, not far from the Wattle Park tram terminus, and not near any shops, developers are buying cheaper land in our local streets.
VCAT has just approved an application by an overseas consortium - the Ever Bright Group - for 32 apartments in such a street. (The neighbourhood consists mostly of houses, plus occasional units and town houses.)
Previous applications knocked back; how is this one better?
The first application [2009-10] was refused by both Whitehorse Council and VCAT.
The second application had much the same footprint, and in fact, the number of units was INCREASED from 27 to 32.
Whitehorse Council again refused this application outright as it failed over 14 sections of the Whitehorse Planning Scheme and it was contrary to the neighbourhood character objectives and standards of the scheme
Despite this, and the fact that the site is nowhere near an activity centre, and over the objections of 150 local residents, VCAT approved this application .
In order to set aside the Whitehorse Council's decision, the tribunal became a de facto Planning Authority - inserting a number of conditions including structural deletions, alterations to the ramp and garage, and alteration of the footprint of some 2800mm.-this will require yet another re-drawing of the plans#. In addition it allowed some of the factors which the previous tribunal had rejected!
# In effect, the resulting plan will be different from that originally put to the Council, and they will have no say in it!
Further, the proposed building is no architect’s delight. Most of the units will be very small (some only the size of a double garage- 55 sq m) and a fair percentage will never receive any direct sunlight (as they are entirely south facing) nor will the building’s limited communal open space receive any sunlight after the equinox.
This result has been bad enough, but now there is an application for over 40 units in another short street nearby. Already there are cars parked overnight in both streets.
All this can still occur because the planning community is in "No-man's-land", where M2030 is no longer valid, but a definite new planning policy has yet to be pronounced.
No activity centers here yet big appartment blocks planned
This means that despite the fact that Matthew Guy has stated repeatedly that higher density developments should be "limited to activity centres", developers are still able to use local streets to take advantage of the planning void.
We desperately need a co-ordinated planning system, not just these ad hoc decisions.
Community and developers need to have certainty.
Surely by this time we could expect better outcomes for the community from our current State Government.
Source: Elizabeth Meredith
West of Elgar Residents’ Association Inc.
W E R A
Freeway proponents' argument for clearing push prior to provision of net gain offsets:
"Their main argument was that granting this injunction would cost them millions of dollars. They did not challenge that the Incorporated Document said the offsets should be in place prior to construction. They did not produce a list of offsets that are being considered." (Gillian Collins)
Ed. The below was written by Gillian Collins. The only editorial changes are the use of subtitles and emphasis by formatting changes. Note that VCAT stands for Victorian Civil and Administrative Tribunal - an institution where Victorian laws are meant to be administered in a relatively low key and inexpensive way by 'members' who are usually not professionally legally trained.
"At the VCAT Directions hearing yesterday, the Frankston North Community Group, Inc., Pines Protectors, was represented by Felicity Millner of the Environment Defenders Office, and Barristers Julie Davis and Stephen Grant. Julie Davis presented the argument. And I was there.
The LMA, Southern Way, and AbiGroup had a total of 19 lawyers, solicitors, and helpers, including one Queens Council for LMA. Frankston City Council and Mornington Council each had one lawyer there. Neither supported our application, which was very disappointing.
Four against 19 - David and Goliath indeed.
At the hearing in the Administrative Division, Planning and Environment section, we asked for an Interim injunction to prevent AbiGroup from clearing the two remaining sections of the Peninsula Link right-of-way that still contain rare and endangered plant communities - the Pines Flora and Fauna Reserve and the Eastlink interchange Herb rich Grassy Wetlands - until the entire application could be heard. That may take up to six months.
"Our argument was fairly simple - the Incorporated Document in the Frankston and Mornington Planning Schemes that give permission for the project state that net gain offsets will be provided prior to the beginning of construction and works."
Ms Davis presented the evidence based on the documents and Ms Millner and Mr. Grant supported her with additional points. It took about an hour and 15 minutes.
The rest of the 4 hour hearing was taken up with the QC and other lawyers presenting the defence, plus a 10 minute break. Their affidavit from Geoff Rayner of LMA was only presented shortly before the hearing, and it was huge, so neither the Judge nor our representatives had had time to read it.
"During their testimony, they actually presented a new version of the Environment Management Plan. Quite extraordinary."
Freeway proponents' argument
"Their main argument was that granting this injunction would cost them millions of dollars. They did not challenge that the Incorporated Document said the offsets should be in place prior to construction. They did not produce a list of offsets that are being considered. They did produce a letter from Mark Winfield from DSE dated after the Incorporated Document saying they had one year to produce them. They created lots of date discussion that seemed without any relevance to the application."
We finished about 7:00pm with the Judge saying that she will have her decision on the interim injunction by close of day on Monday. The date for the regular appeal about the offsets will probably be set then."
0414 309 960
When the Standing Committee on Finance and Public Administration hearing convened to hear from Peta Duke on 12 March 2010, she did not attend in answer to the summons. She had written the notorious Media Plan proposing a sham public consultation process to earn favour with the electorate. Mr Madden, who had not been summoned, sat in the chair reserved for the witness – his former Ministerial adviser - and said that he would answer questions. This was a blatant attempt to take over the inquiry being carried out by Parliament into his office’s conduct. - Protectors of Public Lands (Victoria)
When the Standing Committee on Finance and Public Administration hearing convened to hear from Peta Duke on 12 March 2010, she did not attend in answer to the summons. She had written the notorious Media Plan proposing a sham public consultation process to earn favour with the electorate. Mr Madden, who had not been summoned, sat in the chair reserved for the witness – his former Ministerial adviser - and said that he would answer questions. This was a blatant attempt to take over the inquiry being carried out by Parliament into his office’s conduct.
By his crass tactics in derailing the hearing of a properly constituted committee, the Minister of Planning has tried to frustrate the accountability to Parliament of himself and his office. The Premier and the Attorney-General have supported this tactic.
"Grave abuse of power"
This impropriety strikes at the heart of Parliamentary democracy and is a grave abuse of power.
Julianne Bell, Secretary of Protectors of Public Land, Victoria, (PPL Vic), attended the hearing. She commented:
“The Minister had the opportunity to explain himself during the nine hours of debate on the subject the previous Wednesday but chose not to attend. Why would he expect a hearing now?
Minister failed to use legitimate opportunities to explain himself
Over the last six months PPL has made extensive submissions to both the Planning Department and Heritage Victoria on proposed policy, and on planning decisions, including:
• the Review of VCAT (Victorian Civil and Administrative Tribunal),
• the extension of the Urban Growth Boundary,
• the Mornington Peninsula Link (through Westerfolds);
• the Melbourne International Flower and Garden Show in the Carlton Gardens; and
• the Windsor Hotel development.
Any suggestion that public consultation could be treated as a sham is of grave concern to PPL disclosing as it does a cynical attitude to the people of Victoria. The actions of the Minister have now treated the Parliament, to which he is accountable, and which represents the people of Victoria, with contempt. The community expects our democracy to be respected.”
"Scandalous situation made worse"
Brian Walters SC, President of PPL Vic, said:
“Minister Madden has made a scandalous situation far worse. As found by the Children Overboard inquiry in the Senate, ministerial advisers have no immunity from appearing before parliamentary committees, yet it seems the Government has attempted to direct or advise her to disobey the summons to do so. This undermines the rule of law and Parliamentary oversight. If the Minister’s office is not accountable to Parliament, we have lost one of the most fundamental checks of our democratic system.”
Source: Press Release from PPL (Vic), 14 March 2010
This interesting letter about the experience of a citizen representing a group's appeal at VCAT vindicates the citizen, educates others about the VCAT attitude, and shows VCAT up.
Protectors of Public Lands Victoria Inc. (PPL VIC).
The Hon. Justice Kevin Bell
Victorian Civil and Administrative Tribunal
55 King Street
13 August 2009
ADDENDUM TO SUBMISSION TO VCAT REVIEW
I refer to my letter of 15 May 2009, written on behalf of our organisation Protectors of Public Lands Victoria Inc., containing our submission to the review of VCAT. I am writing to you with an addendum about a number of urgent concerns about VCAT proceedings following a Practise Day Tribunal hearing on 13 March 2009.
See attached the VCAT Order (Reference P3692/2008) relating to the Practice Day hearing on 13 March 2009, the applicant being the Protectors of Public Lands Victoria Inc. and the Responsible Authority Port Phillip Council. We were represented by a barrister.
A matter which perturbs us greatly is the failure of the Tribunal to comply with the Practice Note which sets out procedures for submitting evidence and submissions. Port Phillip Council failed to comply with the Practice Note as its legal representative produced additional documents at the hearing without having previously circulated them to us the requisite two days beforehand or at all. Apparently this is a routine occurrence at VCAT hearings and puts community groups at a significant disadvantage because they cannot afford the expense of an adjournment to consider fresh material. I have heard from a number of our member groups that this has happened to them. In our case the Port Phillip Council brought its request to strike out our case on 13 February 2009 yet came up with additional material five minutes before the hearing a month later on 13 March 2009. Hence Council’s legal representative had plenty of time to circulate additional documents.
I understand that there are many different jurisdictions (14 different lists?) and each has different procedures for “bringing applications”. There are different Practice Notes, different forms and requirements for the different jurisdictions. It appears that Tribunal members do not enforce them, as we found in our case.
The Tribunal member hearing our case justified allowing Port Phillip Council’s legal representatives to provide additional material five minutes before the hearing by saying:
“The applicant was aware of the statement of grounds being relied upon by the council prior to the hearing; they have not come as a surprise... In the present case, there was nothing in the council’s outline of submissions or the additional material that the applicant or I could not comprehend or respond to on the day”.
In fact, some of the material was new and there was no time to even read it closely. (See Paragraph 9, Page 2 of Order.)
The Chair further made the following comment:
“The applicant, Protectors of Public Lands Victoria Inc., through its spokespersons, Julianne Bell, appears regularly before VCAT and is familiar with Tribunal procedures, planning legislation and planning control. The applicant was represented by experienced legal counsel who himself presented detailed written submissions and was well able to request an additional opportunity to respond to anything at the practice day hearing if indeed he has been taken by surprise. He did not do so.”
(See Paragraph 10, Page 5 of Order.)
Not only was the statement about regular appearances before VCAT false, and not based on any evidence, it is apt to create great disincentive to community groups seeking to have a voice at VCAT hearings. The Protectors of Public Lands Victoria Inc. has not appeared regularly at VCAT, in fact we have had two cases only since our establishment in 2004 - the present one included. The other case was an application in July 2008 to obtain information under FOI from Port Phillip Council. (VCAT referred the case to the Ombudsman who was unable to extract information from the Council and the case lapsed.) The organisation does not know about planning legislation or Tribunal procedures as claimed by the Tribunal Chair and accordingly engaged lawyers to represent it. I have only had very limited further contact with VCAT in other matters and do not pretend to understand the procedural requirements.
The comments by the Tribunal carry the implied slur that Protectors of Public Lands Victoria Inc. has been vexatious, but of course there is no redress for a community group confronted by this kind of attack from a VCAT member.
Community groups come to VCAT in order to have a hearing according to law about issues of importance to the community. In many ways they ought to have more entitlement to a proper hearing than those who do so from motivations of profit. The refusal to hear a properly formulated proceeding, accompanied by this studied slight to the group bringing the claim, is typical of the type of alienation of the community by VCAT which has been so distressing for those involved in the process.
Protectors of Public Lands Victoria Inc.
PO Box 197
"VCAT unelected, unaccountable and system has lost all respect from community." VCAT is Victoria's Civil and Administrative Tribunal. (Australia)
There was an impressive turn-out of Victorian community groups at the VCAT Community Forum between 4.30 and 6.00 pm on 13 October at Room 2.1, Level 2, 55 King Street, Melbourne from 4.30pm to 6.00pm. The forum had been advertised as "a series of consultative forums with stakeholder groups during 2008."
The seriously undemocratic nature of Melbourne's planning and environment policies and laws is reflected in the rise of so many suburban protest groups, no longer able to rely on the system and the government to oversee moderate fairness.
Groups came from Broadmeadows, Darebin, Carlton, Southbank, Maribyrnong, Seddon, Hobsons Bay, Bayside, Stonnington, Malvern East, Carnegie, Boroondara, Whitehorse, Doncaster, Kingston, Mt Eliza, Camperdown, Daylesford and several other suburbs. More registered but were unable to be there for a variety of reasons. Nevertheless, a wide spread of Melbourne was directly represented.
Some groups probably stayed away because because they feel so disillusioned with VCAT.
The chairs of the "Community Consultation" meeting were the VCAT President, Justice Kevin Bell, and Deputy President Helen Gibson. Gibson was reported to have initially seemed reluctant to allow community group representatives to speak.
Eventually Gibson seemed to respond to pressure and spokespersons from most of the groups present spoke -- often eloquently -- of the problems that the State development policy and the VCAT system were inflicting on the people of Melbourne.
Complaints that VCAT-Justice is only for the Rich
Issues raised included the unfairness of professional developers being able to afford top barristers and expert witnesses when many councils are no longer able fund the community right to oppose unwanted developments.
Two suggestions for solutions to this problem came forward. One was that a blind bank of experts be set up and applicants would take whichever was available. The second suggestion was that the barristers and experts be cut out of the VCAT hearings completely, with a return to a level playing field. In this case the developers, residents and councilors would represent themselves.
Brookland Greens, Casey Methane gas scandal
An attempt was made to raise the case of how VCAT had overturned Council objections to developers going ahead with building a new suburb, Brookland Greens, on a landfill. Justice Bell, however, arbitrarily ruled out discussion of individual cases, causing resentment among resident group members present.
This scandal concerns hundreds of residents of the new estate who have been told they may have to leave their homes for at least a year because of explosive levels of methane gas in a nearby landfill. Casey Council subsequently froze rates for Brookland Greens, costing that city $1m. The council fears massive compensation claims. A Herald Sun article said that,
"The Victorian Civil and Administrative Tribunal must accept responsibility for approving the housing development so close to the landfill.
Casey Council and the Environment Protection Authority rejected the developer's original plans, but still the controversial housing estate went ahead. "
Community consult no real dialogue
The Malvern East group told of how they had written in advance about a number of issues to be raised and had been told they were not suitable items. They said that they had then written to Justice Bell asking what would be suitable, but had received no reply before the meeting.
Justice Bell admitted that he had not replied.
The subjects that the Malvern East group had been discouraged from raising were, nonetheless, all raised by other groups at the hearing.
The Seddon group claimed that VCAT only uses the policies from M2030 (Melbourne 2030, Victoria’s State development policy) that support development and ignores the policies that protect neighbourhood character.
Change the role of VCAT to serve electorate better
The argument was put, in a variety of ways, that VCAT should no longer have the role of a planning authority. It should instead become a review board with the task of ensuring that councils follow their own policies.
VCAT rewards developers for bypassing councils
The community groups felt that developer should not take their amended plans for review by VCAT. They should bring them back to the councils concerned. And, if they did bring amended plans to VCAT they should be told to take them back to council to be looked at again.
VCAT spokespersons response was that they were trying to save councils time and money.
But many see the role of VCAT as a rubber stamp for State policy which is no longer democratic and prioritises steamroller developments over Victorians’ human rights to self-government and control over their environments.
Developers abuse 60 day periods for review and VCAT approves
A sixty day review period is being abused by developers, in the view of numerous community groups. They say that developers delay getting information to councils and then rush off the VCAT because they know they have a better chance of getting it approved by VCAT.
"VCAT unelected, unaccountable and system has lost all respect from community"
VCAT President, Justice Kevin Bell, and Deputy President Helen Gibson were told that VCAT was unelected and unaccountable and the community has lost all respect for the system.
The issue was raised that councils often pass an inappropriate development because they say VCAT will approve it so residents are wasting time and money to oppose it. Many bad development proposals don’t even get to VCAT, because councils have no confidence in VCAT.
It is a cause of resentment that the local people and local councils usually know better about their area than VCAT, yet they are overruled by VCAT the majority of times.
The significance/outcome of this VCAT community consultation
Members of the community groups that attended this VCAT meeting wondered if President Bell or Deputy President Gibson either listened or heard the residents’ views on this occasion. One activist wrote, “As an optimist I hope so, as a realist, I doubt it. They have heard from the community [before] and as usual they will ignore it.”
Despite this many remained prepared to go on fighting.
Mary Drost said that she felt proud to be there with “so many really great people who are trying to keep the Marvellous in Melbourne, as well as coast and country.”
It is important to document these reactions to the VCAT Planning ‘Consultative’ forums. These are historical civil steps in an increasingly serious battle by Victorians to regain democracy for their city and State.