ALMA CLUB DEVELOPMENT – MOOT COUNCIL DECISION (PART 1)

The  55+ objectors* to the Alma Club Development proposal joined together and mounted an extremely effective 4 day campaign (between the publishing of the Officers Report and the Council Meeting).  Their campaign turned what was stated to be “close call” into a unanimous decision by Councillors (2nd July 2013 Council Meeting Minutes – Item 9.1) to reject both the Officers Report recommending approval (with relatively minor modifications) and the development proposal itself.  This should become an example for the whole community as it shows that a combined and concerted effort by residents can have an impact.

* The objectors have formed an incorporated association – Glen Eira Residents’ Against Inappropriate Development (GERAID).  Those interested may contact GERAID at almaclubobjectors@gmail.com

Unfortunately, Council’s failure to comply with the statutory 60 day notification period made the developer eligible (on 17th June) to lodge at VCAT  Appeal prior to the Council Meeting and thus rendered Council’s decision moot.

UNANIMOUS DECISION TO REJECT

The unanimous decision to both reject the proposal  and not support the application at the VCAT hearing was based on the proposals non compliance with the following Planning Scheme Clauses

1. The development is inconsistent with the intent and objectives of Clause 11 Settlement, Clause 15 Built Environment and Heritage and Clause 16 Housing of the Glen Eira Planning Scheme as it fails to provide an appropriate built form response to the existing and preferred neighbourhood character.

 2. The development is inconsistent with the intent and objectives of  Clauses 21.04 Housing and Residential Development and 22.08 Minimal Change Area Policy of the Glen Eira Planning Scheme for the following reasons:

The scale and intensity of the development is inconsistent with the preferred character.

The mass and bulk of the development will have an unreasonable impact on the streetscape.

The development will impose unreasonable visual bulk impacts on adjoining properties.

There are inadequate landscaping opportunities throughout the site due to the excessive basement footprint and inadequate ‘on structure’ landscaping.

The provision of secluded private open space is inadequate.

 3. The development fails to achieve the following objectives of Clause 55 (ResCode) of the Glen Eira Planning Scheme:

Clause 55.02-1 (Neighbourhood Character) The scale, bulk and intensity of the development is inconsistent with the prevailing and preferred character.

Clause 55.02-2 (Residential Policy) The development is inconsistent with Clause 22.08 Minimal Change Area Policy.

Clause 55.03-2 (Building Height) The overall height of the development is excessive, resulting in unreasonable character and amenity impacts on the streetscape and adjoining properties   

  • Clause 55.03-5 (Energy Efficiency) Dwellings within the apartment building will have a poor level of energy efficiency due to poor orientation and access to daylight.

Clause 55.03-8 (Landscaping) The extent of the basement restricts reasonable in ground planting opportunities in the southern part of the site and fails to make adequate provision for ‘on structure’ planting.

Clause 55.04-6 (Overlooking) There are unreasonable opportunities to overlook the secluded private open space of adjoining properties.

Clause 55.05-4 (Private Open Space) The size and dimension of a number of private open space areas for townhouses and apartments is inadequate and provides a poor level of amenity to future users.

Clause 55.05-5 (Solar Access to Open Space) Solar access to the private open space of a number of dwellings is inadequate, resulting in poor internal amenity.

 4. The development fails to satisfy the residential visitor car parking requirement of Clause 52.06 of the Glen Eira Planning Scheme and will have an unreasonable reliance on on-street parking in the area.

Please note the above listing is largely in line with GERA’s earlier assessment of the Alma Club development proposal.

While GERA welcomes Council’s decision (albeit moot) it raises a significant question on the role of the Planning Department and Planning Officers.  The Planning Department and it’s Officers are required to assess planning permits against the policies and standards included in the Glen Eira Planning Scheme.

Where a planning permit application is deemed to be non-compliant, Officers may negotiate with the developer to ensure compliance, however, the result of such negotiations should not be  Council attaching conditions to a permit that “reduces” or “tinkers” with some aspects of non-compliance.  Minimizing a breach does not constitute ensuring compliance with Planning Scheme, sets a precedence for future waiving or ignoring policy and results in a loss of amenity for existing and future residents.

As previously mentioned the Officers Report recommended approval of the development subject to relatively minor conditions.  Some of the “conditions”* are

  • Reducing the 4th storey of the apartment complex (a reduction of 2 dwellings to the proposed 75 dwellings)
  • Slightly improving the compromised internal amenity (ie. access to natural light) of the lower level north-side  apartments (which face an excavated wall) by increasing overhead balcony set backs.
  • Increasing the number of visitors parking spaces from the proposed 4 to 10 – 30% less than the required 15.

* The full Officers Report are included in the 2nd July 2013 Council Meeting Minutes  – Item 9.1

Given that Councillor’s and the Planning Department evaluated the development proposal against the Glen Eira Planning Scheme and arrived at very different conclusions we therefore re-iterate the above question on how the Planning Department and Officers views its/their role and how effectively it ensures compliance with the Planning Scheme.

VCAT APPEAL

As mentioned above Council’s decision to reject the proposal was made moot by Council’s Planning Department failing to comply with the 60 days notification period.  In response to a request from Cr. Magee, Jeff Akehurst (Director, City Development) commented that

  • Under the Law, Councils had 60 days, regardless of the complexity or size (major vs. minor) of a proposal, to make a decision on the proposal.

 GERA Comments:   In making this comment, it is regrettable that Mr. Akehurst did not acknowledge

  • the provisions for gaining an extension/s to the 60 day decision requirement (via requesting additional information from the developer or formally requesting departmental approval).  It is equally regrettable that no Councillor thought to  mention or question time line extension provisions
  • that, as is common practice, proposed development discussions occurred prior to planning permit lodgement (ie. prior to the commencement of the 60 day period – which started ticking when the planning permit was formally lodged on 19th March, 2013).   Given the magnitude of the proposal it is reasonable to assume that the discussions were more extensive and at a higher level than is customary.  Both the detailed reports, prepared by the developers expert witnesses, (“Town Planning and Urban Context Report”  and “Traffic Impact Assessment” ) submitted with the permit application confirm pre-application meetings and discussions with Council Officers.
  • The proposal submitted wasn’t minor or simple and involved a number of referrals to various departments which caused a delay.

GERA Comments :   It should be noted that the Officer’s Report Appendix makes the following statement “The application has been referred to various departments and individuals within Council for advice on particular issues as well as externally to the Director of Public Transport”.   Since only one of the referrals related to a third party (a routine query to the Director of Public Transport re the development’s potential impact on public transport services – “no objection”), all other referrals were internal and therefore within the management of Council’s Planning Department.

Given

  • The pre-application discussions, the subsequent 60 day period and extension provisions, and
  • That in response to a public question, Council acknowledged that the developer became eligible to lodge a “failure to comply” VCAT appeal on 17th June, 2013.  Council officers were therefore aware of the date two months prior (ie mid April and one month after the permit application was lodged)

both the complexity of the project and the referral steps, applicable to all development applications, were well known.  Residents are legitimately asking why didn’t Council’s Planning Department, prioritize allocated resources and referral processes to ensure compliance?

  • Although not a legal requirement, Glen Eira Council uniquely chooses to hold planning conferences to better provide residents with an opportunity to understand the application and express their views.  Planning conferences add a time element into the decision making process.

GERA Comment:  Leaving aside Mr. Akehurst’s comments on “Glen Eira’s “unique” planning permit consultative processes vs. that of other Councils (it will the subject of subsequent posting), again serious questions arise from Council’s failure to comply with the 60 day decision requirement.  It is worth noting that the permit application was lodged on 19/3/2013, permit advertising commenced 1.5 months later on 1st May with an objection closing date of  14/5 /2013, the resulting Planning Conference was held on 5/6/2013 and the Council decision was scheduled for 2/7/2013.  Inserting the date (17/6/201 – some 3 months or 90 days after application lodgement) the developer became eligible to lodge a failure to comply VCAT appeal into this time frame re-affirms the need to seriously question Council’s management of the assessment and decision making processes.

  • Presumably, the developer anticipated that the planning permit application would result in a VCAT appeal and therefore decided to jump the VCAT queue by lodging a failure appeal prior to Council’s formalising it’s opinion … from Council’s and the residents’ point of view the failure appeal was good news it deferred the need for Council to formalise it’s view until it’s presented to VCAT  (mediation in mid-August, final hearing end September).

GERA Comment: Such comments not only serve to re-iterate all above comments about the Planning Department’s management of this permit application (ie. failure to comply and still being unable to formalize a view, a view that should be in accordance with their own well known planning scheme) but also contradict Council’s previous criticisms of VCAT  (i.e. VCAT is an unknown and frequently goes against Council decisions or it is better for Council to approve this development to avoid the developer taking it to VCAT which may result in an even worse outcome for residents).

Many residents (both GERA members and non-members) have expressed the opinion that, with regards the Alma Club development proposal,  Council’s  failure to comply with the 60 day requirement indicates the adoption of a “politically preferred”  option i.e. let VCAT decide (presumably in favour of the development) this contentious issue and “take the blame”.   GERA is not supportive of this opinion – in the Council Meeting discussions, all Councillors and in particular Mayor Hyams,  commented that Council would unreservedly support the residents in their VCAT objections to this proposal.  Rather than speculate on Council motives, GERA prefers to review future Council and Councillor support of GERAID at the VCAT mediation and hearing – needless to say “the proof is in the pudding”.

Implications of the VCAT Appeal

 Although Jeff Akehurst made no comment on the implications of the VCAT Appeal, nor did any Councillor ask, there are significant issues that the GERAID objectors should be aware of.  These issues are

  • Council is no longer the adjudicating authority and hence Council’s role is now that of determining the conditions (ie. modifications) required to be applied to the permit application to make it compliant with the Planning Scheme and therefore acceptable to Council.  As per VCAT’s practice notes (ie. not a legally enforceable obligation) Council should notify the residents of these conditions with 7 days of the VCAT hearing.
  • While practice notes provide guidelines re the minimum requirements for keeping objectors informed, no upper limitations are placed on information provided to residents.  Since no limitations are placed on Council and the Developer continuing to negotiate “acceptable” conditions, it is important that residents maintain Council/Councillor contact to ensure they have sufficient time to fully gauge the implications of the each condition and avoid receiving all at once with limited time to review.

Such implications should be noted by GERAID members and objectors to the development.  All objectors should be actively requesting all Councillors to be aware of decisions made, or conditions agreed to, by Planning Officers and accordingly inform the resident objectors.  Councillor involvement in the process should not stop after a formal decision has been made – Councillors should be monitoring subsequent events and appropriately informing residents.  This is the proof that should be in the pudding.

GERA continues to support the objectors and wishes them well in  their  “tone it down”  quest – both for themselves and future development residents.

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