Council has mastered the technique of not answering all aspects of a public question. What is responded to often becomes a game of semantics, half-truths and not so subtle acts of omission. We illustrate this from the following examples of public questions tabled at last week’s council meeting. The bolded sections represent those aspects that have been entirely ignored.

QUESTION: The residential development at 175 Balaclava Road, North Caulfield, is a toxic site which was not comprehensively remediated. The amount of permeable surface, if any, is much less than the minimum required. There is zero setback from Balaclava Road where the standard is six metres. There is zero setback from the side street, Elmhurst Street. Balconies and awnings extend from this development over both Balaclava Road and Elmhurst Street, and no fees, rents or other charges are applied to this occupation of public space. How does council account for this generous flexibility in application of the planning rules, and what is the estimated financial benefit that has accrued to the developer from this?

ANSWER: “The Town Planning Application in relation to the residential development at 175 Balaclava Road which incorporated balconies that extended beyond the title boundary was refused by Council. An appeal against Council’s decision to refuse the application was lodged at the Victorian Civil and Administrative Tribunal (VCAT). VCAT directed the grant of a permit which retained the balconies beyond the title boundary. This was not Council’s preferred town planning position given that Council had refused the application. However, VCAT did apply a permit condition requiring the applicant to enter into an agreement which, amongst other things, acknowledges Council’s ownership interests and would absolve Council of any risks associated with the balcony overhangs.

A condition of the VCAT directed permit related to the provision of a Statement of Environmental Audit prior to the commencement of the development. In order to comply with this condition, the Applicant was required to submit a Statement of Environmental Audit that confirmed that the site is suitable for the use and development allowed by the planning permit. In December 2008 the Statement of Environmental Audit was received and, as a result, the abovementioned condition was met.”

COMMENT: What is not stated is that the VCAT order was not the result of the first appeal, but the result of ‘mediation’ between Council and the developer. In other words the VCAT decision merely formalised what council agreed to previously.

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QUESTION: What is Glen Eira Council’s current policy on rooms, balconies, and awnings that extend over public space from a/. residential buildings, and b/. commercial buildings? Is the public space so occupied leased or sold or is it a gift of space to developers? What legal liabilities might accrue to ratepayers from this use of public space? 

ANSWER: Council does not support developments with balconies and rooms that overhang the title boundary. However, as was the case with 175 Balaclava Road, Council does not always make the final decision in relation to these matters. In those situations, it is Council practice to advocate for VCAT to require, via a permit condition, that the applicant enter into a Section 173 agreement with Council.

Section 173 agreements apply in those circumstances where controls are required outside title boundaries. Typically Section 173 agreements address property rights and protect Council, and in turn ratepayers, from risk.

A Section 173 agreement in such cases would explicitly state that ownership of the area outside the title boundary does not pass to the owner of the land being developed. The agreement also sets out restrictions on the owner’s use of the balcony /encroaching area. These restrictions allow Council to tightly control use and minimise risk. Generally, Council does not charge owners for use of the airspace, unless there is a commercial use. Owners are required to have appropriate insurance for public liability in relation to their use of the airspace. Section 173 agreements are placed on the title of the property and bind current and successive owners of the property.

Section 173 agreements are not required for awnings.

Council may enter into a licence or lease of the airspace above Council land.

Decisions of this nature are made on a case by case basis.”

COMMENT: what a wonderful word ‘generally’ is. It can encompass a multitude of sins without disclosing a single thing. This response makes it clear that:

  • There is no formal policy on gifting the public realm to developers
  • Nor are they asked to always pay for this largesse
  • Contradictions do not appear to worry Council either – for example, please compare the opening and penultimate sentences in this response (underlined)!

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QUESTION: Will Council be undertaking community consultation on the residential zone reforms? 

ANSWER: The extent of consultation would depend on the extent of any departures from the current Housing Diversity/Minimal Change arrangements and that is not known at this time.”

COMMENT: Here is further evidence that there will NOT BE ANY PUBLIC CONSULTATION on the residential zones, except in the most trivial and unavoidable areas such as amending the East St.Kilda student housing areas from Minimal Change to Housing Diversity since this is already fait accompli with 5 storey permits granted and Council’s failure to adhere to its own policy as pointed out several times by VCAT members. As for the rest of the municipality it is clear that council intends to rubber stamp the current  scheme without community input!

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