We beg your indulgence for this extremely long post, but we believe it is important that residents get the full and true picture of what has happened in Glen Eira, and what is still occurring as a result of Council’s inept and atrocious planning.

Item 9.8 of the current agenda features Minister Wynne’s response to Council’s letter requesting that the Planning & Environment Act, 1987 be amended to ensure that VCAT implements, rather than ‘considers’ local planning policies. Sounds good and fits in nicely with Council’s current campaign of scapegoating VCAT for all the ills faced by residents through rampant overdevelopment of the municipality. Sadly, this Rocky Camera report is another illustration of the ‘sins of omissions’ and therefore should be seen as entirely and deliberately misleading.

The Minister’s Response

It is no accident that the Camera report does NOT cite two paragraphs of the Minister’s letter. Why? Because if we were to read between the lines, Wynne is basically giving this council a glorious kick up the backside for its failures to do what it was meant to do! Here is what Wynne wrote:

A local planning policy is a guide to decision making in relation to a specific discretion in a zone or an overlay. It helps the responsible authority and VCAT to understand how a particular discretion is likely to be exercised. It is not seen as a mandatory requirement, nor do I consider that it should be mandatory as each proposal should be assessed on its merit against relevant State and local policy objectives. Nevertheless, a local planning policy that is well written, clear and unambiguous can reduce challenges at VCAT and make the whole decision process more transparent.

I appreciate the Council’s concern but I am not satisfied that legislative change is appropriate in this instance as other mechanisms such as zone and overlay provision can be used to achieve Council’s objective if strategically justified.

It is our view that what the Minister is in effect saying to Council is– get your act together through the existing mechanisms of zones and overlays and ‘well written, clear’ statements. All of which of course must be based on CURRENT, fully documented and reasoned ‘strategic justification’. Something that Council has never done. Its planning scheme is a mish-mash of contradictions, archaic data, and woefully expressed concepts. Nothing can be ‘strategically justified’ if the data that council relies upon, even if it wanted to do something, dates back to 1996, and is based on an Amendment (C25) that was seen by the Planning Panel to be “interim”. The easy option taken by council has been to do nothing and cosy up to Matthew Guy to rubber stamp more inept planning.

VCAT and Council Policy

We have reported numerous times on VCAT decisions and WHY council’s decision making is often overturned. In 99% of cases it has nothing whatsoever to do with whether policy is mandatory or not, and everything to do with what is missing from the planning scheme – ie Urban Design Frameworks, Structure Planning, Design and Development Overlays, Parking Precinct Plans, Tree Protection, Water Sensitive/Environmental Sustainability policies and most importantly – Preferred Character Statements for housing diversity. For an expose of Council’s inadequacies we refer readers to a recent post where we cited member statements that reveal fully how hopeless Glen Eira is – https://gleneira.wordpress.com/2015/10/07/statistics-glen-eira-style/

Statement after statement by VCAT members tells council that:

  • Either its imposed conditions aren’t supported by the planning scheme
  • Either there is no urban design framework to guide decision makers in what is ‘acceptable’
  • Either the imposed conditions are contradictory and so forth.

The errors, the poor performances, and the failure to have a decent planning scheme means that most developments (especially in housing diversity) get through. Again, this has nothing to do with whether policy is ‘mandatory’. Councils MUST HAVE POLICIES TO BEGIN WITH. What has Glen Eira got apart from the zones that arbitrarily carved up the municipality over a decade ago.

Mandatory Policies

Plenty of other councils have taken Wynne’s message to heart and introduced Design & Development Overlays that legally ARE MANDATORY. Manningham, Mornington Peninsula, and plenty of others have succeeded in having their various overlays gazetted as mandatory. Boroondara for example has ensured that NO development zoned Commercial in its Neighbourhood Centres can exceed 3 storeys. Unlike the countless instances of sheer waffle found throughout the Glen Eira Planning Scheme (ie “encourage”, “advocate”, “discourage”, “ensure”) these other councils use the explicit and legally binding language of “MUST”. Here’s part of the various Manningham Design and Development Overlays  –

For Doncaster Road area – Planting within the building setback area must include a row of avenue trees.

For Activity Centres – Development must: Include only one vehicular crossover, wherever possible, to maximise availability of on street parking and to minimise disruption to pedestrian movement. Where possible, retain existing crossovers to avoid the removal of street tree(s). Driveways must be setback a minimum of 1.5m from any street tree, except in cases where a larger tree requires an increased setback.

For Warrandyte & Tempelstowe areas – – Each lot must not be developed with more than one dwelling. A permit cannot be granted to vary this requirement.

BOROONDARA

For its Willesmere area – Buildings and works must be constructed in accordance with the following requirements:

􀂃 The density for a multi-dwelling development must not exceed 25 dwellings per hectare.

􀂃 A minimum of 60 percent of all dwellings within Areas B and C shown on Map 1 to this Schedule must be detached houses or dual occupancy.

􀂃 All low voltage electricity supply mains and all telephone lines must be located underground unless otherwise agreed by the responsible authority.

􀂃 On detached house lots, at least 50 percent of the area between the dwelling and road boundary must be free of paving to allow for lawns and other planting. On the balance of the site, there must be sufficient area free of buildings, paving, pools and tennis courts to enable a garden environment to be created.

We could of course go on and on, citing all the MANDATORY PROVISIONS that other councils have been able to achieve (some, years ago – ie the above Boroondara overlay dates back to 2006) and which Glen Eira Council has nothing to compare except for about 1500 dwellings included in Neighbourhood Character overlays. This alone, should be indictment enough for residents to start asking why this council has been so negligent?

Now to the zones themselves. Even here, Glen Eira has done nothing except change the dates from 2004 (ie C25 gazetted) to 2013 (C110). Again, other councils put Glen Eira to shame in terms of the number of schedules to their various zones, and the increasing numbers of amendments they have put through post the introduction of the zones to provide further protections. We’ve tabulated the evidence below –

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Please note that GRZ3 is a ‘belated’ addition to accommodate the rezoning of several sites – the Alma Club in particular. Basically, there are a paltry 2 General Residential Zones in Glen Eira. Also Yarra Council has had its RGZ removed entirely, and Bayside is awaiting the approval of its removal.

The Rocky Report

The Rocky Camera report continues the Glen Eira tradition of publishing misleading and deceptive information. We are supposedly given 4 cases where ‘VCAT has ruled contrary to Council’s planning policies’. Not true! We will examine a few of these in turn.

495 Glen Huntly Road, Elsternwick – In the first place, this application was for a 7 storey building, shops, and 44 dwellings. The officer’s report of 25th November, 2014 recommended a five storey building and 32 dwellings. The site is zoned MUZ (no height limit). Councillors accepted this recommendation and the vote was 7 to 2 with only Esakoff and Lobo opposing the motion. Thus it was NOT VCAT, but council itself which approved this application – minus the reduction in dwellings and 2 storeys. Further, given that there is no record of this on the VCAT website, we must assume that at the hearing, Council again caved in to the developer and either accepted his amended plan entirely so that no full hearing proceeded!

Numerous ludicrous statements are contained in the officer’s recommendations for this development. For example: It is recommended that changes to the building form in terms of height are required to respond to the preferred character for this location. How on earth can there be reference to ‘preferred character’, when there is no preferred character statement in existence?!!!!! And no urban design framework which includes height limits for such sites!!!! Readers may also wish to revisit the so called ‘debate’ that took place in chamber for this application – https://gleneira.wordpress.com/2014/11/26/are-councillors-really-representing-you/

322-326 Neerim Road, Carnegie – application was for 4 storeys, 38 dwellings. Here is part of what the member says. Ultimately, the application is supported to the hilt by council’s policies!!

In submissions, the Council says it took account of the site’s location in the Carnegie Urban Village where planning policies encourage substantial change. It acknowledged that the character of the north side of Neerim Road is rapidly changing as three and four-storey apartment buildings replace single attached and brick pair housing. In this context, it says that only some aspects of the development were unacceptable. These aspects are:

  • the inadequate space for landscaping; and
  • its setbacks from the frontages and the side and rear boundary;
  • a reasonable transition to the lower scale residential development to the north.
  • This implies that a four-storey building is an acceptable response to the site’s context if its scale and mass is proportionate to the site and its surrounds. Conversely, it implies the existing single-storey development to the north and west does not reflect the built form directions sought by planning policy for this area.
  • I find this is the case. I accept the Applicant’s submission that local policy at clause 22.05 specifically targets the delivery of higher density residential development within the municipality’s Urban Villages. Policy at clause 22.05 identifies the site as part of Precinct 8, which encourages ‘a mix of density and housing types’ to ‘accommodate different household types, especially the elderly’.
  • This policy direction justifies the application of the Residential Growth Zone to the site and surrounds. This Zone’s purpose is consistent with policy for Precinct 8 and its provisions envisage buildings up to 13.5 metres in height. Its decision guidelines anticipate site consolidation and larger buildings. .
  • The proposed building responds to the policy direction and the zone controls. It adopts a four-storey form and provides a form of housing that differs from the detached housing that dominates the municipality. The building contains one and two- bedroom dwellings serviced by a lift. These dwellings would suit elderly people seeking to downsize while remaining in the area in which they live. The building also takes advantage of the opportunities created through site consolidation and proposes a larger building.
  • It is substantially larger than the dwellings along Elliot Avenue. Yet the same policy direction and zone controls apply to these properties. I find this gives more weight to these properties’s development potential than it does to their existing low-scale form.
  • As such, I find the building responds to the site’s context.

And here are the real killer comments – .there is little in local policy of the Glen Eira Planning Scheme that directs any specific built form outcome for this site, or any of precinct 8 in the Urban Villages Policy at Clause 22.05. This leaves Clause 55 of the planning scheme to form the basis of decision making about built form, along with the provisions of the Residential Growth Zone and State policy at clause 15.01 and 16.

[6] There was also no dispute from Council that the Carnegie Urban Village policy (at clause 22.05 of the planning scheme) advocates for a substantial increase in housing density and a new built form that is different in character to much of the existing housing stock of the area. (my emphasis)

I agree with these comments. The policies at clause 22.05 anticipate a change in character without setting direction on what that character should be.

COUNCIL CANNOT HAVE IT BOTH WAYS! IT CANNOT ARGUE THAT VCAT IGNORES COUNCIL POLICY, WHEN POLICY IS NON-EXISTENT, ARBITRARY, OR CONTRADICTORY! Thus the statement that (e)ach (of these cases) are examples of VCAT not applying local policy is total bunkum.

Several other Camera statements need to be challenged. We’re told –

In 2000 Council refused a planning permit application for a residential development in Norwood Road, Caulfield North. Council refused the application primarily on noncompliance with its housing policies. VCAT overturned Council’s refusal. Council subsequently challenged VCAT’s decision at the Supreme Court on grounds that VCAT had not considered Council policy. The Supreme Court found that “to consider is not necessary to adopt or follow”.

Yes, it is true that Council (stupidly!) went to the Supreme Court, and probably spent a fortune on lawyers defending a case that should never have gone to court. Appeals to the Supreme Court against VCAT decisions can only be made on points of law – ie did VCAT err? The Justice of the Supreme Court found that there was no error in interpreting the law. In fact, Council simply had a planning scheme which did not make sense. We’ve gone back to the records of the time and here is what happened.

The VCAT decision was Gory v Glen Eira and council’s refusal to grant a permit was made under delegation by the Manager of the time. At the time, and it took over 4 years to change, Council had a policy which it labelled ‘incremental change’. This terminology and the policy itself was severely criticised by VCAT members on numerous occasions. Here are parts of the Gory decision and also another case – Anderson v Glen Eira (30th April 2000). We cite verbatim from the VCAT records –

This involves converting the rear split level apartment into two separate self contained dwellings. Each apartment is to have living, service areas and two bedrooms. All the additions and alterations are to be contained within the existing building envelope. The proposal involves a building in a courtyard at the lower level to increase the floor area of the ground level apartment. This is slightly compensated by the removal of the north-west corner of the building in order to provide ground level private open space. The upper floor is to have private open space consisting of two balconies totalling 11 sq. metres of inside area but both are narrower than the 1.6m depth parameter of the Good Design Guide. The ground floor open space is approximately 25 sq. metres. A new single driveway is proposed at the south-west corner of the frontage to an open car space within the frontage area now containing some dense vegetation.

The City of  Glen Eira  has a particular policy in relation to incremental change and this area is of one of those specified as an incremental change area. A number of tribunals including this one have commented on this incremental change policy in recent times and those comments have generally been negative ones. However, the City of  Glen Eira  keeps rolling the same policy out at any application for review of residential development. It insists that incremental change does not only mean an increase but a decrease in the number of dwellings per site for locations where higher densities already exist. Incremental change does not mean no change.

The Council’s grounds of refusal included reference to its Municipal Strategic Statement’s objectives. This proposes that, apart from key areas which are set aside for increased densities around shopping centres, transport nodes and the like, its residential areas should remain unchanged although some incremental growth will be provided for medium density housing. In the context of this policy one wonders what incremental growth is. The Oxford Dictionary defines incremental as “where something variable increases by a small amount”. This I believe could only be considered to be normal growth. The MSS also indicates that incremental does not mean no change and I agree with this. The problem here is that the responsible authority seems to consider it does mean no change. That is the perception I have gained from a number of recent submissions made to me. Incremental means normal. Normal growth should include some medium density housing and one would hardly consider the occasional house behind an existing house or a dual occupancy to meet the true meaning of multi unit development, which is why they were separately defined as “Dual Occupancy”. (Anderson versus Glen Eira) (30th April 2000)

The Municipal Strategic Statement of the time had this doozy in it –

 Incremental  change could vary from location to location within the municipality. It could mean, for example, a dual occupancy on a conventional site in a location predominantly characterised by detached housing. It could also mean several dwellings on a site where the site is significantly larger than conventional sized lots in a given location. The level of development would be limited to the extent that change could be said to be  incremental  . Conversely,  incremental  change could mean no increase or in fact a decrease in the number of dwellings per site for locations in which higher densities of development are not encouraged but already exist.

It’s no wonder then that in another judgement (Bedrega v  Glen Eira  CC [2001] VCAT 2400 (3 September 2001) – the member said –

Council’s view is that a dual occupancy development on the subject land would be  incremental  change, but 3 dwellings as proposed would not be. In fact the Council issued in September 2000 a planning permit for a dual occupancy development on the land. But what is ”  incremental  change”? This Tribunal has previously expressed its difficulties in interpreting the term and the policy as it is expressed in Clause 21.04, most notably in Brichon Developments Pty Ltd v  Glen Eira  City Council (2000/086932; 8 VPR 10), a case dealing with a situation similar to the one before me in that the proposed development was for three dwellings, but the Council refused to grant a permit on grounds including that the degree of change represented by the proposal would not accord with the  incremental  change policy. In the Brichon case Mr Read analysed in detail the  incremental  change policy and made a number of trenchant criticisms of it, perhaps best illustrated by the following statement:

“Another difficulty that I have had interpreting the “  incremental  “change policy is that it is almost impossible to convert it into any meaningful or objective measures (e.g. an  incremental  change in what: the height of the dwellings, the amount of open space, building bulk, driveway crossings, neighbourhood character?). The question of what degree of change is  incremental  is almost impossible to explain and the possibility of getting two independent people to agree on what or what is not an acceptable increment seems remote.”

Thus when judgement after judgement goes against council because of its nonsense and poorly worded policy of “incremental change”, council decides to spend a fortune and go to the Supreme Court. How much did this cost ratepayers, and for what?

The final Camera transgression comes with this –

Council’s local planning policies are “well written, clear and unambiguous”. If implemented, they can “reduce the challenges at VCAT and make the whole decision process more transparent”.

Perhaps Camera did not notice that Wynne is NOT TALKING ABOUT GLEN EIRA. He is stating the principle that all policies should be ‘clear and unambiguous’ – then they might have some hope of getting up. In Glen Eira a miracle needs to happen. It may have started with the departure of Newton and Akehurst, and hopefully all of these 9 councillors!

 

 

 

 

 

 

 

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