Tag Archives: VCAT

April 2018

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Pigeon Bank application batted back to VCAT

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.

Pigeon Bank planning goes to VCAT

Community groups and neighbours join forces to try and appeal planning approval

FOLLOWING on from last month’s story on concern over a proposed development at 2 Pigeon Bank Road in North Warrandyte, several parties have appealed this matter to the Victorian Civil and Administrative Tribunal (VCAT).

Warrandyte Community Association (WCA) has joined forces with Friends of Nillumbik and the Green Wedge Protection Group to request a review by VCAT of the decision by Nillumbik Council to approve the planning application.

In addition, it is understood that the original objector, a neighbour, and a number of other nearby residents have lodged similar appeals.

One of the many grounds for the appeal by those who did not originally object to the council is that neighbours and community groups had not been properly advised of the application.

A directions hearing was set down at VCAT for last Friday May 5, intended to be a quick hearing to determine whether the late applicants would be allowed to appeal.

At this hearing, the barrister for the applicant requested the matter be thrown out because there had been no objectors to the original proposal before Nillumbik Council.

He contended the neighbour had put in a submission requesting some changes, rather than an objection and that without any objector there was no case to bring to VCAT.

Much discussion ensued on whether WCA should have been notified of the application, on the standing of the other community groups and their right to join in an action, and whether the community groups and immediate neighbours would be allowed to form a single group to appeal the decision.

The VCAT member, Ms Dalia Cook, reserved her decision on all matters, this is expected to be handed down within the next few weeks.

If the action proceeds, the next step is that the parties will attend a compulsory conference at VCAT on July 6 in an attempt to reach agreement.

If this fails, the matter will go to a full hearing which is not expected to occur before September, and may take between two and four days.

Warrandyte residents petition Manningham council to oppose petrol station at VCAT

WARRANDYTE residents turned out in force to petition Manningham City Council in opposition to the construction of the proposed petrol station near the roundabout in Yarra Street.

The submitters meeting at council offices was attended by the three Mullum Mullum ward councillors, mayor Cr Paul McLeish, Cr Meg Downie and Cr Sophie Galbally, and Cr Dot Haynes.

Dick Davies presented on behalf of the WCA, and Grant Waldram and Maurice Burley on behalf of the Warrandyte Character Protection Group. Several residents also presented a case against what they believe to be “inappropriate development”.

davies

WCA president Mr Davies

Residents made a case suggesting the development would be a first in what is supposed to be a Neighbourhood Residential Zone, that it would completely marr the ‘Gateway to Warrandyte’ aspect at the roundabout, that it could not be considered part of the West End complex, that disturbance as a result of all night access would be a problem, that bushfire and water contamination risks were exacerbated and many other concerns. WCA called on council to strongly oppose the appeal to VCAT with legal counsel and expert witnesses.

The developer declined to attend the submitters meeting and has appealed directly to VCAT.

The VCAT hearing is on October 19 and will last five days. At the request of the WCA, VCAT has ordered the proponent to produce new plans by August 14 allowing all parties two months to review the new plans before the hearing.

The WCA submission reads:

WCA Submission to the MCC submitters hearing

Officers report on 1,3,5 yarra street (pl13/023819)

The Warrandyte Community Association has a mandate from its membership to:

  • Promote all aspects of community life in Warrandyte
  • Defend the character and heritage of the Township, and
  • Protect the environment and encourage restoration and regeneration of native flora and fauna.

Our feedback over the years is that any new development should preserve this character and feel of Warrandyte.

Consequently, WCA has adopted the view that any large development, such as a fuel outlet, must blend in with the heritage character and environmental aspects of the Township. It is our view that the current proposal for a petrol station at 1,3,5 Yarra Street does not meet these criteria. While some might want a service station in Warrandyte, it is impossible to drive more than 10 minutes without finding one – some of which operate 7 x 24.

The WCA is one of 68 local objectors to this proposal. We oppose the current plan on the grounds of Traffic management, Visual amenity, Heritage streetscape, Loss of roadside vegetation and Environmental concerns.

Specifically these are:

  • As detailed in the Council Officers’ report, the proposal is inconsistent with Council’s planning scheme and neighbourhood character provisions. The scale and intensity of the proposal is an overdevelopment of the site from many perspectives.
  • By any reasonable judgement, the proposal fails to satisfy Clause 52.15 of the planning scheme, which states that: “The amenity of the locality must not be adversely affected by activity on site, the appearance of any building, works, or materials, emissions from the premises or in any other way.” There is no way that the proposal can come close to meeting this criterion.
  • Neighbourhood Residential Zone is the most restrictive of the Government’s three residential zones. There are no service stations in other NRZ. This would be the first , making a mockery of the purpose of the NRZ, which is —“to manage and ensure that development respects identified neighbourhood character, heritage, environmental or landscape characteristics”.
  • The Design and Development Overlay 3 (DDO3) adds another layer to the NRZ. The proposal appears to be in direct contravention of the objectives of the overlay.

(which seeks to ensure that:

  1. development responds to the area’s environmental characteristics;
  2. development recognises the existing infrastructure capacities and does not generate demand for extensive upgrades of infrastructure, including the standard of roads and drainage;
  3. development responds to the area’s environmental characteristics, including topography, soils and vegetation;
  4. development is sympathetic to the existing built form and style and retains the predominance of single detached housing and discourages other forms of works.)
  • No other businesses operate 24 x 7 in Warrandyte. The lights, traffic noise and disturbance would be unreasonable in a residential zone. The presence of a 7 x 24 convenience store (that could easily morph into a fast food outlet) would significantly change the character and ‘Country Town’ feel.
  • Furthermore, there is the potential for contamination in the flood zone.
  • Also there will be additional traffic impacts on an area already suffering significant congestion.
  • Removal of six large mature yellow box gumtrees contradicts the objectives and guidelines in the planning scheme for this area.

We note that the applicant has decided to bypass appropriate Council procedures with a direct appeal to VCAT, with changes that may appeal to the referral authorities, rather than amend the application to address the issues raised by Council Officers. At the request of the WCA, VCAT has ordered the proponent to produce new plans by August 14th allowing two months to review the new plans before the hearing.

We support the Manningham Council Officers Report (PL 13/023819) which proposes that Council oppose the application to VCAT. We urge Council to vigorously oppose this application and dedicate significant resources to fight it, including, but not limited to:

  • An experienced planning lawyer with a track record of defeating inappropriate developments at VCAT, and
  • Expert witnesses as recommended by the planning solicitor.

If this proposal were to be built, the character of Warrandyte, a resource not just for the residents but all of Melbourne, would be significantly and detrimentally affected.

We thank you for your time in consideration of this matter.

Dick Davies, President, Warrandyte Community Association Inc.

 

Servo to VCAT

WARRANDYTE residents are furious the final decision regarding the development of a 24-hour service station at 1-5 Yarra Street has been taken to Victorian Civil and Administrative Tribunal (VCAT).

A $1.5 million proposal was submit- ted by the applicant in April last year from site owner Platinum King Management Pty Ltd to develop a 250m/sq petrol station and convenience store accommodating six fuel pumps and 13 car parking spaces. Despite attracting a reported 69 objections, the proposal was neither accepted nor rejected by Manningham City Council.

The Diary understands the applicant has taken the matter directly to VCAT and is appealing for the proposal to be approved.

Manningham City Council informed the Diary just before going to print that a full council report would be available on July 16 and the matter would be addressed at a council meeting on July 28 outlining council’s position of not supporting the application.

In strong dialogue on social media pages in the past 12 months – and in particular last week on the Warrandyte Business & Community Network page – there have been mixed views for and against the service station being built at the site. Warrandyte Community Association (WCA) member Doug Seymour said it was surprising the community was not made aware of the decisions from Manningham council since objections were lodged 14 months ago.

“This is a complex issue and it is possible that council has not made a determination and therefore the applicant has lodged this application for review and decision. It would be helpful to all parties to know where council now stands on this issue,” Mr Seymour says.

Manningham council CEO Joe Carbone said objectors would be advised of council’s position on the application shortly. That position will then be advocated for at VCAT.

Only last week objectors to the proposal opened a letter in their mail to find that their objections to Manningham council had not been successful and the decision was to be finalised by VCAT at a hearing on October 29.

The letter, sent by the solicitor representing the applicant, stated July 10 (this Friday) would be the “closing date for objectors and referral authorities to lodge a statement of grounds with VCAT”.

Discussion on social media has been divided since the information was released. However, there are many concerns if the development goes ahead, including the environmental impact, compromising the character of Warrandyte, disturbance to residents, and safety concerns in the event of bushfires.

The development would require the removal of vegetation and six yellow box trees, as outlined in the initial proposal.

North Warrandyte resident Annie Watkins believes it is vital the environment in Warrandyte be protected at any cost.

“When you have a substantial and unique environment like Warrandyte, you have got to do what you can to preserve it,” she says. Ms Watkins is also concerned that, if approved, the proposal will set a potentially dangerous precedent.

“If we allow the service station, what else will be allowed to go up in Warrandyte?”

“We need to be a little more responsible as a society to recognise what’s valuable. We want to keep true to the essence of Warrandyte,” Ms Watkins says.

Other objectors believe a petrol station next to Andersons Creek is illogical particularly when the creek is prone to flooding which would allow pollutants and litter to enter the creek.

With the proposed development being next door to the Warrandyte Reserve Pavilion, others are concerned people’s safety will be com- promised in a bushfire emergency. According to the CFA, the reserve is the place of last resort for Warrandyte residents in the event of all other bushfire plans failing.

The disturbance caused by the construction of the petrol station is also a major concern. The WCA lodged an amended objection reit- erating the reasons why they object to the proposal, including the dif- ficulty at access and exit points at the Heidelberg Road / Harris Gully Road roundabout and the vague details relating to signage, lighting and hours of operation.

The impact on the character of Warrandyte is creating a lot of controversy. Resident Tricia Barrett believes the design of the building, along with the large bright advertising and signage, lighting and unnatural noise would affect all residents, especially those within close proximity to the site and visitors to Warrandyte.

“It is not within the character of Warrandyte and we don’t need it or want it.”

Nonetheless, not everyone is opposed to the petrol station. On social media some residents believe there is sufficient demand for it to be built, and consider the Yarra Street site to be a perfect location and a welcome alternative to the Warrandyte South petrol station.

Resident Elaine Raphael says while a 24-hour “monstrosity” is unnecessary, a petrol station in keeping with Warrandyte’s surroundings would be ideal.

Other concerned parties are asking the protestors to consider non-residents. Sheya Atherton points out that many commuters pass through Warrandyte for many reasons and having a petrol station in that spot would be convenient.

“Each community is made up of its locals and those that come into the suburb and there is as much of a positive and negative component to that,” Ms Atherton says.

In her objection to council, Ms Barrett expressed her belief that a petrol station at the proposed site is simply unnecessary.

“We (residents) are happy with nearest petrol availability in Warrandyte South, Fitzsimons Lane roundabout, and Reynolds Road – these facilities service Warrandyte residents adequately already.”

The Diary has been told that while a lot of the concern is stemming from the location and the imposing nature of the proposed petrol station, the prospect of a fast food or retail association being attached to the site is equally disconcerting with fears that would impact on local food and beverage businesses.

VCAT will hold a practice hearing on July 17 before the official hearing on October 29. The objectors are working together with the WCA before lodging their objections at the practice hearing.