Pigeon Bank application batted back to VCAT

by David Hogg
13th November 2017

THE SUPREME Court has dismissed the 2 Pigeon Bank Road case meaning it will now go to VCAT in January for a full hearing.

As reported in last month’s Diary, the case was originally heard on September 12 but Justice Kevin Bell reserved his decision until November 2.

Costs of the case are to be paid by the applicant, Phillip Mannerheim Holdings Pty Ltd. In a complicated legal case, which hinged on whether an email to Nillumbik Shire Council sent by neighbour Kim Cope was an objection or a submission; the court determined Mr Cope’s “polite” email represented an “expression of opposition” to the grant of the permit, and clarified that as being “a term of description ex post facto not a condition of eligibility a priori” which means Mr Cope’s email met all the requirements of the Planning and Environment Act 1987 for lodging an objection, and that VCAT’s earlier decision to continue with the case was valid.

Mr Cope was in attendance and spoke to the Diary following the decision.

“We are very happy with this judgment which enables us to move forward from here in the knowledge that the previous VCAT decisions were sound”.

Phillip Mannerheim, the applicant, whose planning application had been approved by Nillumbik Shire Council with conditions before the objectors took the case to VCAT, told the Diary “whilst disappointed by the Court’s decision, I will now be preparing for the Tribunal hearing in January next year.

“Council will be supporting my dwelling proposal, which is consistent with what has occurred on all of the surrounding lots (including on lots owned by people who oppose it) but will be more sensitively designed to the landscape and safer in terms of bushfire risks”.

The matter will now return to VCAT for a full hearing commencing on January 22 and set down for four days. If the VCAT hearing goes ahead in January, the Diary will report on the VCAT case in the February edition.

2 Pigeon Bank timeline up to this point

April: Planning application approved by Nillumbik, neighbour Kim Cope lodges a case with VCAT.

May: Original Objector Kim Cope and a collection of neighbours and community groups are allowed to for the coalition of objectors. Communityy groups involved in this coalition are the Warrandyte Community Association, Friends of Nillumbik and the Green Wedge Protection Group

July: After VCAT decide to go to Tribunal after the Practice Day Hearing, planning applicant Phillip Mannerheim takes VCAT’s decision to the Supreme Court (Warrandyte Diary July 2017, page 4)

October: Pigeon Bank has its day in court, the judge reserves his decision (Warrandyte Diary October 2017, page 5)

Community reaction

THE PLANNING application battle over 2 Pigeon Bank Road has attracted support from community groups on both sides of the arguement. In support of Kim Cope, a coalition of objectors approved by VCAT at the practice day hearing earlier in the year which includes the Warrandyte Community Association (WCA).

Not only did the WCA represent the coalition at the Supreme Court hearing but also sought representation for the coalition from not-for-profit environmental justice organisation Environmental Justice Australia (EJA).

Following the decision by Justice Kevin Bell, Nillumbik Pro Active Landowners (PALs) have released a statement in support of Phillip Mannerheim’s application to build on his land and their reaction to the Supreme Court decision.

Below are statements from groups on both sides of the argument.



Warrandyte Community Association (WCA) and Environmental Justice Australia (EJA) joint statement in reaction to the Supreme Court decision


The Warrandyte Community Association (WCA) welcomes the Supreme Court’s confirmation that everyday people can object to inappropriate developments in their community without their objections needing to pass specific legalistic hurdles,” said WCA spokesperson Jonathan Upson.

“Now that the Supreme Court has enabled the VCAT appeal to proceed, the WCA and other parties look forward to the opportunity to argue that clear-felling 740 trees to build one house on a ridgeline with nice views directly contradicts the Nillumbik and State Government planning schemes and requirements.

“The developer’s lawyers made it clear that if we were to fight this case and lose, they would seek an order for their legal costs against us. Therefore, I would like to acknowledge the courage of the three Community Associations – the WCA, Friends of Nillumbik and Green Wedge Protection Group – and several individuals who were parties to this case.

“The WCA, on behalf of the other parties, would like to sincerely thank Environmental Justice Australia for their invaluable assistance in prosecuting the Supreme Court case on our behalf.”

Environmental Justice Australia said the decision affirmed the importance of community participation in planning.

“Justice Bell’s decision represents a victory for common sense and fairness,” said Environmental Justice Australia CEO Brendan Sydes.

“The court’s decision emphasises the importance of minimising technicality and the value of community participation in our planning system.

“EJA is pleased to have been able to support the community in ensuring they can have a say about the important planning and environment issues raised by this permit application.”


Nillumbik Pro Active Landowners (PALs) statement in support of Phillip Mannerheim and in reaction to the Supreme Court decision


NILLUMBIK PALs welcomes the decision of the Victorian Supreme Court as it provides clarity in relation to the Mannerheim application to Council.

The Supreme Court action was purely related to a legal interpretation of a point of law.

It was not a result that confirmed a person’s right to object.

This was never an action that challenged that basic right. Further, it was not a reference to, or consideration of, the merits of the application. The merits will be determined by VCAT in January 2018.

PALs is conducting an online petition in support of Mr. Mannerheim’s right to build his home. To date this petition has 938 signatures.

This represents an incredible level of local support and as usual, sits in stark contrast to the mere handful that object.

“Objectors” now attached to the application were a result of implanted confected outrage based on highly emotive and misleading information.

Having completed their own buildings, they now oppose Mr. Mannerheim wishing to do the same, the hypocrisy is breathtaking.

PALs strongly support the Mannerheim application and will provide every possible assistance to ensure that this environmentally conscious home can be built delivering a superior end result than the existing vacant site.