A planning application for the demolished Frogmore site is now public. It proposes a 120 bed aged care facility. The site is just under 8000 square metres, yet according to the plans is NOT big enough to ensure that all aspects of the requirements for the Neighbourhood Residential Zone are met. Even worse is that dozens upon dozens of healthy trees are to be removed. Here are some of the proposals –

  • Of the 92 trees on site, Jewish Care wants to remove 88
  • Only 38 car parking spots will be provided on site (plus 2 ‘drop off’ sites). This is despite the fact that the proposal states – “ Total number of staff is expected to be around 100 Full Time Equivalent (FTE), while the maximum number of staff on duty at peak times is projected to be around 45 people”.
  • Failure to reach the required ‘permeability’ requirements is stated to be a ‘minor variation’, as is site coverage. Incredible for 8000 square metres of land!

The plans themselves are incredibly short on detail such as providing actual dimensions, whilst the so called traffic report can be challenged time and time again. What did catch our attention is this gem from the arborist’s report – Development changes the use of an area, adding buildings, infrastructure and people to the landscape. This increases the potential for trees to cause damage to people and property. Therefore, trees that are structurally poor or that have a short life expectancy are generally unsuitable for retention on development sites.

So, this is justification for removing 88 trees – many of which are ‘significant’. Here is the list of trees to be removed. Please note the number that even the developer’s arborist sees as ‘healthy’ and of ‘high significance’. Of course, with a council that has no tree protection policies and facilitates as much moon-scaping as possible, the applicant is definitely on solid ground.

What will be fascinating is:

  • Will Magee be present at voting time? Will the ‘decision’ deliberately be delayed so that Magee in all likelihood will no longer be mayor and thus cannot use his vote twice as Pilling did?
  • Will Esakoff have ‘resolved’ her conflict of interest issues and her ‘close relative’ have found a place in the meantime?
  • And has the decision already been made and this will end up at VCAT – due to objectors and not council decision?


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Neither Lipshutz or Hyams are averse to a little fabrication, or manipulating the truth. In plain English, residents are fed a bunch of furphies designed to mislead and to portray VCAT as the single arch villain. As we’ve repeatedly stated, scapegoats are necessary in order to deflect attention away from council’s inept planning and the decade long failure to implement promises, consult with the community, and to undertake any strategic planning that is worthy of that name.

The claims made by both Lipshutz and Hyams simply do not stand up to scrutiny. Here are their bogus claims, from individuals who would certainly know better given their legal backgrounds and the length of time both have been on council.

  1. VCAT members are ‘nameless/faceless’. Wrong, wrong, wrong! Each decision carries the name of the member – which by the way is far more ‘transparent’ than many council reports that remain ‘anonymous’. A full list of vcat members is available plus the criteria for their selection. Again, far more transparent than this council in regards to its staff, and especially in regards to the continued contract extensions for the CEO!
  2. Site inspections were not carried out on the decisions in question. Dead wrong again. The date of each tribunal visit to the site is listed in the decision itself. In fact 99% of all VCAT decisions involve site visits and often commentary of what the member observed.
  3. The prize for sheer hypocrisy however goes to this line – ‘we as councillors and residents know what the area needs…’ .. Given that the zones were introduced WITHOUT WARNING AND WITHOUT CONSULTATION clairvoyance and mind reading is another highly developed Lipshutz skill!

Two VCAT decisions are the focus – one in Bent St McKinnon and the other in Orrong Cresc, North Caulfield. Council had granted the latter a permit with conditions such as lopping off one storey to 3 – despite the fact that it was zoned as Commercial 1 – and numerous other contradictory impostes that the member basically threw out because they simply didn’t make any sense. VCAT has its faults clearly, but when judgement after judgement criticises council for its lack of policy, or nonsensical demands, or points out the multitude of loopholes in the planning scheme and council has done nothing to address these, then VCAT is not to blame. It is this administration and its lackey and deliberately misleading councillors.

Here are some telling extracts from these two decisions. Readers should compare these with what Lipshutz and Hyams have stated and draw their own conclusions as to the veracity of the claims.

BENT ST (http://www.austlii.edu.au/au/cases/vic/VCAT/2015/1203.html)

It is important to note that this policy is not about respecting the existing neighbourhood character. There is no preferred neighbourhood character nominated for housing diversity areas. For residential development, it is about scale relative to the commercial centre, for it not to dominate the streetscape, and promotion of site consolidation to maximise development opportunities.

The site is not near a Neighbourhood Residential Zone. There is no issue of transition of scale against a lower intensity residential zone. It is comprised of two lots, a consolidation of site encouraged by the schedule of the zone and Clause 22.07 to maximise development opportunities.

My inspection of the site reveals that recent development in McKinnon Road is three storeys, also with four storeys, the (e)merging scale of this activity centre.

The proposal is in essence a three storey building above a basement. The top floor is recessed from the two lower floors. This is not a building mass that would dominate the streetscape of Bent Street. The size of the land, particularly the combined width of the two lots, enables a wider and larger building to facilitate a three storey building bulk that can meet the side and rear setback standard (B17) of Clause 55, which would otherwise be impossible or difficult to achieve on a single lot.

I am satisfied that the scale and massing of the development responds appropriate to the emerging character of the McKinnon Neighbourhood Centre, and as a response to the zoning and policy for the site.

With regard to side and rear setbacks, Council conceded that the non-compliance is minor, and recommended that the building be pulled back against 62 Bent Street  to the south for increased in ground landscaping.

The building meets Standard B17 except Bedroom 2 of apartment 2.03 on the top floor facing north. I agree with Mr. Pitt that not meeting this standard is acceptable, as there is a buffer between the review site and the rear of No. 170 McKinnon Road to the north by a 3.05 metre wide laneway. This means the building mass has the benefit of a 3.05 metre wide separation from the north. The decision guidelines of Clause 52.04-1 specifically gave consideration if a site abuts a laneway.

….there has been a change in planning circumstances, notably the zoning of the land has changed from Residential 1 Zone to the current General Residential Zone Schedule 1, which contemplates more intensive development where height of building can be 10.5 metres and up to 11.5 metres on a slope plus promotion of site consolidation, compared to the maximum height of 9 metres recommended in Clause 55 for the Residential 1 Zone.


1A ORRONG CRESCENT (http://www.austlii.edu.au/au/cases/vic/VCAT/2015/1224.html)

Conditions 1(a), (d), (j), 36 and 38 are deleted.

Commercial 1 Zone and no overlay.

Tribunal Inspection – 1 August 2015

Condition 1(a) requires deletion of the third floor (top level) and the roof replaced by a style that is consistent with the architectural style of the building, and which may include pitched forms. This condition was not a recommendation of Council officer’s, and has the most severe impact on the yield of the development. Condition (d) requires additional setback of the third floor. As this condition is to require further setback of the top floor which is required to be deleted, it contradicts Condition 1(a).

By an amendment to the permit pursuant to Section 71 of the Planning and Environment Act 1987, Council has, by letter dated 8 July 2015, advised that it has amended condition 1(d) by the following: Dwelling 13 and 14 at second floor setback a minimum of 6m from the western boundary and absorbed within the remaining building envelope. Mr. Scally conceded that the modification to Condition 1(d) after the permit was issued is lawful based on an error of the original permit. He, however, requested costs against Council for the town planning addendum report needed to address the amended condition.(Note: costs not awarded)

As for policies, there is common ground that the site is not specifically covered by a policy that relates to a site in a Commercial 1 Zone and which is not part of an activity centre.

The site is in the Commercial 1 Zone, and the existing building has been a commercial building for many years, decades before planning controls. As for the notion that the site should be treated as if it is in a residential zone such as the Neighbourhood Residential Zone as its surrounding properties, it is not so in fact or law.

This condition requires gates and steps in the terrace/outdoor spaces of units 1, 2 and 3 on the ground floor to provide direct pedestrian access from Orrong Crescent. These three dwellings are ground floor units and accessed from an internal corridor instead of from the street. This elevation (north) of the building is constructed to the street boundary, with recesses in the form of balconies. The ground floor of these dwellings is elevated above the footpath level by about 1.9 metres (scaled). To comply with this condition of providing stairs and gates directly from Orrong Crescent by using the terrace/outdoor space, it means the balconies will be reduced substantially in size, leaving little room, if any, for it to function as the private open space of these dwellings.

A third possible intention is to ensure that each dwelling has its own identity when read from the street. I agree with the notion that a direct entry would achieve such an end. In this case, the cost is to sacrifice the private open space for these dwellings. On balance, the loss of the only private open space and hence reducing the internal amenity outweighs the benefits of direct entry. This condition will be deleted.




At last council meeting one public question was declared ‘inappropriate’ and not read out. It related to the role of councillor representatives on the Caulfield Racecourse Reserve Trustees. Before we publish the question and the answer, some history.

  • Esakoff, Lipshutz & Hyams were appointed by the Liberal Government as councillor reps on the trustees. There were 8 councillor nominees but magically these three got the nod.
  • All three had formed part of the Special Committee deciding on the Caulfield Village proposal.
  • A petition containing 64 signatures was tabled at council in February 2013, asking that the Minister review the appointments.
  • The petition was rejected (a first in Glen Eira). Those voting against acceptance of the petition were Pilling, Lipshutz, Hyams, Esakoff, Sounness & Okotel
  • Lobo raised the issue of conflict of interest since Lipshutz, Hyams, & Esakoff were directly involved in the petition. None declared a conflict of interest.

In the discussion that took place, both Hyams and Lipshutz declared their role as trustees to be one of working, representing, and advancing the cause of their constituents. Here is what they said –

HYAMS: thought that the petition was ‘pathetic’ and didn’t want to ‘set a precedent’ where ‘we’re rehashing council decisions because some people don’t like it’ and that would lead to petitions on all council decisions.Said that the government appointed the 3 councillors ‘who came first in their wards’. Read out the numbers of first preference votes for each of the three councillors that people ‘are happy to have those councillors representing them’ and ’64 people come along and think they are more important’ and this ‘shows at the very least an exaggerated sense of their own importance’. Went on to say that it was ‘very sad’ that people can be ‘so spiteful’ and that he knows what’s ‘behind it’ and the ‘people behind it’ and it doesn’t ‘surprise’ him at all.

LIPSHUTZ: said the petition was ‘ridiculous’ but that ‘when any member of this council’ is appointed that they’re appointed as ‘representatives of council’ and ‘we in fact act on behalf of the community’. Spoke about the Leader article and Magee and ‘what he tried to achieve’ and that was following council policy and he’s (Lipshutz) asked for the same things since ‘2005’. This wasn’t ‘something new’ it was what ‘council has approved’. Council doesn’t want training at the racecourse which is what Magee was advocating and it’s what council wants too. The petition is ‘ridiculous’ and just ‘shows the small minded people’…’we’re councillors and we’re here for the benefit of the community’. People mightn’t like every decision but the choice is ‘vote us out’. Voters had ‘confidence’ about all 9 councillors and even though they’ve got different views on things ‘we are a councillor group as one’ and as trustees they ‘will be there to support the community’

So to the inadmissible public question –

If councillors on the Board of trustees for the Caulfield Racecourse Reserve Trust do not represent the council, or the citizens of Glen Eira, who do they represent?

Response: On the basis of your own statement in part 3 of your Public Question Part 3 is deemed inappropriate pursuant to Clause 12 (b) of Council’s ‘Guidelines for Public Question Time’ and clause 232(2)(j)(ii) of the Local Law which states: “does not relate to the business of Council or otherwise relates to a Councillor or staff member other than in their Council capacity;”


  • Either councillor trustees do not know what their role is, or they will say anything that will further their spurious arguments – even if this contradicts the ‘advice’ provided by Newton in both 2003 and in 2006 – ie Council is not “represented” on the Trust. The duty of a trustee is to the Trust. A trustee, who is also a Councillor, is under a legal obligation to make Trust decisions
    in the best interests of the Trust.
  • How valid such Newton advice is, needs to be challenged, as it has been by the Auditor General –

The make-up of the trust enables MRC, Glen Eira City Council and state government views to be considered as part of its decision-making processes. Until recently, however, members of the local community had no direct means of engaging with trustees on matters of importance to them. They had to rely on council representatives to present their views.

Within the trust, there have been differing views about how these competing uses can be reconciled. More recently, this has created tensions between trustees representing the Melbourne Racing Club (MRC) and those representing the government and Glen Eira City Council.

  • How many more times will this council denigrate and refuse to answer genuine public questions? Please note that the role of the trustees is to serve the public interest. That means the residents of Glen Eira. If the local community cannot have any faith that Lipshutz, Esakoff and Hyams are in fact truly representing their best interests, then they should not be trustees.

The General Residential Zone, schedule 2 is, according to our wonderful council, supposed to provide the necessary ‘buffer zones’ between properties in housing diversity and minimal change (ie NRZ) because of the upper level setbacks included in the schedule. No other limitations, apart from the deficient ResCode numbers, have been enforced on this zone. For example – in Glen Eira we find:

Site Coverage – 60%

Permeability – 20%

Height – 10.5 metres

Private Open Space – minimum of 25 square metres (ResCode) and

Nothing about tree protection or landscape plans.

Other councils in their ‘negotiations’ and subsequent amendments just happened to be far more successful in introducing limits on what can be build in the GRZ2 zone. Here are some examples that are gazetted and in operation.

Banyule –

Site coverage 40%

Landscaping – Landscape plans will provide 1 tree for every 400 square metres of site area, including 1 large tree in the front setback – A Landscape Concept Plan must be submitted which considers the Banyule Tree Planting Zone Guidelines. It should distinguish landscaped garden areas from useable private open space, show tree planting locations and the extent of the mature canopies.


Landscaping – One canopy tree per dwelling

Private Open space – An area of 60 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with minimum area of 40 square metres, a minimum dimension of 5 metres and convenient access from a living room. It cannot include a balcony or roof top terrace.

Height – 9 metres


Height – 9 metres

Private open space – Private open space consisting of an area of 80 square metres or 20 per cent of the area of the lot, whichever is the lesser, but not less than 60 square metres. At least one part of the private open space should consist of secluded private open space with a minimum area of 40 square metres and a minimum dimension of 5 metres at the side or rear of the dwelling with convenient access from a living room.


Front setback – 7.6 metres.

Private Open Space – A dwelling or residential building should have private open space consisting of:

 An area of 75 square metres, with one part of the private open space at the side or the rear of the dwelling or residential building with a minimum area of 35 square metres, a minimum width of 5 metres and convenient access from a living room



Basements should not exceed 75% of the site area.

Walls on boundaries – Walls should not be located on side boundaries for a distance of 5 metres behind the front façade of the building fronting the street.


Site coverage – 40%

Permeability 40%

Provision of at least two canopy trees with a minimum mature height of 12 metres. At least one of those trees should be in the secluded private open space of the dwelling. The species of canopy trees should be native, preferably indigenous.

Development should provide for the retention and/or planting of trees, where these are part of the character of the neighbourhood.

Walls on boundaries – Walls should only be constructed on one side boundary.

Yarra – height 9 metres

Whilst other councils are moving fast to shore up their defences against inappropriate development, Glen Eira sits on its hands and does nothing. We’ve already highlighted the Bayside draft Amendment C140 that is seeking to introduce a minimum size subdivision of 400sqm, plus a 40% permeability requirement in its Neighbourhood Residential Zone. Now we have Monash Council and its C125 Amendment that takes in all Neighbourhood Residential and General Residential zones. The significance of this amendment is:

  • It is based on the 2014 Housing Strategy. Glen Eira’s housing strategy is a fossil, based on data from 1998.
  • 3 new NRZ schedules are introduced, 3 GRZ schedules and 1 RGZ
  • Development in activity centres are now to pay 10% open space levy. Glen Eira pats itself on the back for achieving a paltry 5.7%
  • Subdivision in the nrz schedules 2, 3, and 4 will now have a minimum lot size of 300sqm. Glen Eira does not have any minimum. The impact of such planning is clear when there is a current application in for 363R Neerim Road (zoned grz2) for 4 townhouses on land that is approximately 310sqm.
  • Introduction of Design and Development overlays
  • 40% permeability in GRZ3 sites plus a maximum of 40% site coverage plus 7.6 metre front setback from street
  • In grz4 there is a 30% permeability requirement
  • In the NRZ, 40% permeability and site coverage
  • And even in RGZ there is as requirement of 40 sqm private open space and a balcony of 10 sqm

In every single one of the above (if the amendment is approved), residents of Monash will be far better off, than their cousins in Glen Eira. All Glen Eira does is continually pass the buck and blame VCAT for all its woes. That will no longer wash, especially when no action has taken place in either reviewing the atrocious planning scheme or even attempting to introduce amendments that will ameliorate the damage that is currently occurring through rampant overdevelopment. Every time a VCAT member makes statements such as the following, the blame lies entirely with this administration and its complicit councillors.

The Council advised that there is no neighbourhood character policy which applies to the review site and its surrounds, and no neighbourhood character guidelines to assist in determining anticipated built form outcomes. Guidance must therefore be obtained from policy within the MSS and at Clause 22.07.

There is nothing within the policy framework which would indicate that apartment-style development should not be permitted here. Rather, what is evident is an expectation of change as multi-dwelling developments replace the traditional single-dwelling housing stock. The diversity of housing types sought for neighbourhood centres indicates that apartment-style development can be contemplated. (August 6th 2015)