We’ve received the following correspondence from a resident. It reveals another very worrying aspect of governance and planning within Glen Eira Council.

Saga of 175 Balaclava Road

The development at 175 Balaclava Road in Caulfield North is a corner block facing onto the south side of Balaclava Road and on the western side onto Elmhurst Road. It is zoned Residential 1. It is a narrow, elongated block, approximately 9 x 46 metres. In previous incarnations the land housed a petrol station and a car repair shop, but for many years after that the site was vacant.

A planning application was made in 2006 by a developer for a three storey building comprising 8 units on the site.

The final resolution of planning issues was by mediation at the Victorian Civil and Administrative Tribunal (VCAT). The VCAT order which confirmed the mediation conditions became the planning permit. A planning permit was issued in January 2007, followed by a corrected permit in May 2007.

That proponent went bust and the site and the permit passed to another developer.

The site had toxicity issues – hydrocarbons, asbestos, and heavy metals. A site environmental assessment report was produced July 2008. Some underground storage tanks were removed, but a complete clean-up of the site did not occur. Instead, the remedy was to cover the whole site with concrete, with the agreement of the Environment Protection Authority (EPA).

While the standard setback in Balaclava Road is 6 metres, here there was none. At the rear of the block is a sewerage easement. This became the place for a tree (we will see if one appears or not). Little or no permeable area, or open space was provided.

Construction began early in 2013.

In May a framework for balconies appeared over Balaclava Road and Elmhurst Road. Although impressions of the completed building had been put on hoardings around the site it was not apparent balconies were projecting over the street (and casual observers probably did not consider such a thing possible). Clarification was repeatedly sought from the local council. A building inspector said he had visited the site and suggested the projections were verandahs rather than balconies and that they were in accordance with the permit. The permit stated that these balconies should not impinge more than 1 metre into the public domain.

An inquiry was made at the council office to see the plans for the development. The plan showed balconies extending over both roads. The plan was approved on 10 September 2010. At least three extensions of time must have been granted.

There was also a request to see the planning permits for the site. A member of council staff said that the request would incur a fee of $52 for the ‘history’ of the site. Section70 of the Planning and Environment Act was cited: “The responsible authority must make a copy of every permit that it issues available at its office for inspection by any person during office hours free of charge.” A staffer said she would get a copy of the permit and went away.

She came back without the permit and accompanied by a man named ‘John’ who said he was an enforcement officer. John explained that viewing of the permit was not necessary as it was ‘more or less’ the same as the VCAT order.

Glen Eira Council said there would be a delay in providing the permits because the permits had to come from archives offsite. A couple of weeks later, council said that the files could not be located in the archives, and later still that the files had been located and forwarded to the council, but had been mislaid in the council offices. Further inquiry was met with polite but firm hostility – more inquiry was not welcome, and council would forward advice when the files were found. That was weeks ago, and the advice is still not forthcoming.

And what of the public space occupied by developers in this way?

In the case of 175 Balaclava Road, if setback and permeability rules had been applied it is likely that two units would have to be removed from the development – a loss of over $1million to the developer. The occupation of public space over the footpath is equivalent to a gift of at least $50,000 to the developer. Indeed the developer advertises the ‘private’ ‘huge balconies’ as a key feature of the place.

On May 6th this publicity was downloaded –

SMALL BOUTIQUE DEVELOPMENT – HUGE STAMP DUTY SAVINGS! – 1 + STUDY

175 BALACLAVA ROAD – CAULFIELD

 Selection of designer 1 and 2 bedroom apartments starting from $450,000. Buy now off the plan for massive stamp duty savings. Ideally suited to owner occupiers or the astute investor. In a sought after location close to shops, cafes, bars, Monash University, Chadstone Shopping Centre, parklands and with easy access to public transport and within close proximity to the CBD.

 Features include: high quality fittings throughout, designer kitchen with granite bench tops and glass splashbacks, reverse cycle air conditioning, security entrance, individual secure undercover car park with storage cage, huge balconies, open plan living.

 Charles Marvelli: 0423 530 172

On Friday 24 May 2013 the Estate Agent for this site rang back to tell me there were 3 units left, a ground floor unit with one bedroom and a study was selling at $550,000, while a two-bedroom unit on the first storey was $612,000. The units would become available early next year.

According to the ‘responsible’ authorities spoken to at local and state government level there are no rules regarding the occupation of public space by developers. It is terra nullius – free for the taking, by developers at least. Our loss their gain, all facilitated by government authorities and the courts.

Who bears the legal liability for private occupiers of public open space? Is it the council (and therefore rate payers) who issued the permit? Who has the right of use of this public space? Is it exclusive to the building occupant? Is a homeless person who sleeps on a balcony occupying public space committing trespass? Can someone store goods there rent free? Can anyone attach posters or banners to these balconies? If there’s an accident who pays? What is council’s policy on allowing developers to extend into the public realm?

Reflecting on my experience with the above, it is clear that

1/ It is often very difficult to discover what the history of a development is, especially when conducted over such a long time frame. Many residents come and go in that time.

2/ The operation of planning in Glen Eira, and in the State, is unduly complex and not especially transparent.

3/ There is a distinct lack of clarity in the operation of planning rules – in Glen Eira and in  planning generally there is a strong tendency for abandonment of rules in favour of development of any kind. Exception is the rule.

4/ Developers, Glen Eira Council and VCAT appear to use complexity in planning schemes and processes to subvert opposition from communities.

5. Council’s planning register which is a legal requirement is far from accurate and up to date. Much detail in missing and even what’s there is impossible to decipher.

Simple planning rules would be adequate – areas for development prescribed, mandatory height limits applied, and open space and permeable areas mandated on a scientific basis.

Where planning rules and their implementation is not transparent the public is right to be suspicious.

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COMMENT

Worthy of mention is the fact that we believe that some of the public questions that suddenly went astray and hence weren’t read out by Burke, concerned this development and these issues! Questions galore arise:

  • Does the community receive any compensation for this encroachment on public land? If not, why not?
  • Does council have a policy on such issues? Where is it? Other councils do have extensive policies that state clearly the conditions upon which public land can be used and the cost to the developer. (uploaded here)
  • How many other ‘gifts’ have developers received from Council – especially in residential areas?
  • Why have so many standards contained in the planning scheme been ignored – ie setbacks, excessively high walls on neighbouring properties, failure to respect neighbourhood character and countless others?
  • What does all this say about council’s mandatory record keeping processes?
  • Why are residents subjected to false claims for payment?
  • Is there a ‘cover-up’ going on here?

We’ve also received the following photographs: (a) the developer’s ‘vision’, and (b) the construction phase at two different angles and at different time periods.

balconies

balcony2-1

bala2p-1

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