Wednesday, July 15, 2009

No 32 kathryn Road - VCAT Decision - VCAT Review

NO 32 Kathryn Road 

VCAT issued an Order  yesterday for the approval of the development of three double storey townhouses and one single storey townhouse on No 32 Kathryn Road Knoxfield.

There is no appeal unless we take it to the Supreme Court.

The main issues that are of concern with this decision are:

1.  The Order was issued for the wrong address (probably a typo, but how could they get it so wrong)

2.  No mention is made in the decision of residents’ concerns. Our efforts and the voices of 437 people with the petition have BLATANTLY been ignored in the process.

3.  Amendments were made to the plans, submitted before VCAT. Changed plans ought to have been resubmitted to council again for approval. VCAT is usurping the role of council and becoming a defacto planning organization.

4.  Agreements made with the developer in VCAT were not issued in the Order, therefore the developer can get away with issues they watered down in VCAT by saying they’d agree to building 2 metre high fences at their cost and retaining screening hedges to block out the units from neighbors vision.

There are some gains though that we did gain in the process. We now have a far better development than that initially submitted. We delayed the process by 16 months and in that process seemed to have dissuaded developers from approaching Knoxfield as a development area. There are now awaiting a decision on No 40 Kathryn Road. The hearing was 4 months ago. As the proverb says, ”No news is good news”.

Chairnan’s Review of VCAT

Yesterday four residents attended a meeting with Justice Bell, the Chairman of VCAT.

The meeting was an open forum for people from all over Victoria to express their concerns with the VCAT process and to initiate change. Justice Bell ensured everyone had a chance to express their opinions on issues and he followed up discussions on how the process could be improved.

The main issues we have from our experiences are:

1.      Procedure of Hearings. The applicant ought to address the hearing first, followed by council and then other submissions. The applicant could have a right of reply at the end of the hearing. This would bring the hearings into line with the legal system.

2.      The weight given to the evidence provided by “Expert Witnesses”. These witnesses are in the employ of the applicant and should be treated as such. At one hearing we attended, the applicant organized the expert witnesses over the lunch break to present new evidence to counter everything we said. Our evidence proved that of the expert witnesses to be false. This new evidence was accepted and the chair passed the application unchanged as she accepted the evidence of the expert witnesses over the local residents.

3.      The low weight applied to retaining indigenous vegetation, especially in areas protected by a Vegetation protection Overlay 3.

4.      The low weight applied to the planning regulations like the Rescodes, in favour of Melbourne’s 2030 Policy and the desired future outcomes.


Most of these issues were expressed by people from other areas of Victoria, from Port Campbell, Macedon, Kilmore, St Kilda, Camberwell, Hawthorn, Knox. The issues are the same and I genuinely think that Justice Bell was shocked with some things that were stated at the meeting.

·    Basically people do not have confidence in the VCAT Review system, which is not operating as a system of justice as originally planned. People have a perception that local authorities do not have confidence to present good decisions on planning, as developers see VCAT as the final decision maker, and budget for this in their costs.

·    Appeal Process: The only appeal process is to take the decision to the Supreme Court. Justice Bell is suggesting another level of appeal could be implemented for decisions made which are flawed. This process would be available for all involved in the process.

·    Mediation: Justice Bell suggested that VCAT could operate a system of mediation to try to usurp the need to take Planning Applications to VCAT. This would be done at the local level. We are fortunate in Knox that the council will conduct a Planning Consultative Committee Meeting if there are 10 or more objectors. Basically from experience though this permits residents to air their concerns but has only resulted in one developer submitting alternative plans and that was for No 32 Kathryn Road. The other developers took the applications directly to VCAT and see the council process as only a stepping stone to VCAT.

·    Appointment of Members: Justice Bell was clearly shocked when told that having a chairperson as a Town Planner just doesn’t work. The process is incestuous, with Town Planners for the developer presenting to a Town Planner who is the chair and having the council argument presented by another Town Planner. As we have discovered they are all acquaintances, mostly having worked together at a council planning department. At one hearing concern was raised with the council’s Consultant Town Planner that the chair was overly interrogating him on issues, and his comment to me was don’t worry about it as he was my past boss at a local council. Justice Bell did say that in the past 18 months that he has been chair he’s been immediately involved in the selection process. But it does seem that the Minister of Planning has direct control of that process.

·    Leagal Representation: VCAT  was set up to be the Peoples’ Forum where people could get mediation without legal representation. That has now generated into a legal forum and unless you have legal, professional representation with “Expert Witnesses” you don’t really get a hearing. When you are fighting developers that have millions in their bag to throw around what hope has the small citizen have in the process.

·    The acoustics of the Hearing Room were also discussed and how the developers and their representatives intimidate residents with bullying tactics. The rooms need to be setup to provide everyone with equal space and position to be heard by all.

Finally a quote from one person present at yesterdays forum:

“It seems to be Government policy that VCAT presents decisions for developers”.


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