Development application abandoned prior to hearing

On 22/12 Phillip Mannerheim Holdings Pty Ltd and the Nillumbik Council agreed to VCAT making an order that the Council’s decision to issue a permit for the proposed development at 2 Pigeon Bank Road be set aside and instead that no permit be issued. The CFA has also now consented to this proposed order, and we expect that VCAT will make the consent order in due course. This means that we have won this battle before the VCAT hearing.

While much of our focus in preparing to stop this inappropriate development was on the proposal itself and the developer, Phillip Mannerheim Holdings Pty Ltd, in the bigger picture the issue is with the current Nillumbik Shire Council. It was the Council which approved the application, at its ‘Future Nillumbik Committee’ meeting on March 14, overriding the recommendation of their own Senior Statutory Planner, thus leading the developer down an expensive and indefensible path. Quite remarkably not one ground for granting the permit was given at the meeting. Councillors who voted in favour of the failed development were Peter Perkins, Bruce Ranken, Jane Ashton, Karen Egan and Peter Clarke. Only John Dumaresq and Grant Brooker voted against.

It is apparent that many in our community thought the development should have been allowed. Some characterized the anti side as self-interested, as in ‘you people have cut down trees to build your houses, and now you don’t want others to do what you have already done’. While it is true that the first objector was a neighbour whose outlook would have been affected, the strength of the protest against the development was based on the commitment of many to the protection of the Nillumbik Green Wedge and to Melbourne’s green wedges in general – as is obvious from the involvement of the Warrandyte Community Association, the GreenWedge Protection Group and the Friends of Nillumbik.

It is in the nature of ‘the market’ that our green wedges will be continually under threat from developments of various kinds. Sometimes these threats involve political influence at State Government level in relation to zoning issues, and sometimes they will be evident as single lot proposals like 2 Pigeon Bank Road. Because the administrative machinery for maintaining our green wedges is complex, depending upon both State and local governments and containing multiple elements, including legislation, Melbourne 2030, Green Wedge Management Plans, Local Policy Frameworks and so on, the long term protection of them is complex.

As has been reported in this newsletter and our website, the current Nillumbik Council is conducting a ‘Nillumbik Planning Scheme Review’. The substantive reason for having this review is not clear from what has been published, and given the Council’s clear willingness to ignore the current green wedge protection regime we must closely watch the progress of this project.

Often under-represented in argument about the current development is the case for the green wedges, possibly because it seems so obvious. Unfortunately it is not obvious to everyone, so the case must be continually made. We should be articulating it unabashedly at every worthwhile opportunity, including to our councillors, and especially in the lead-up to the next Council elections.

So, a good news story, and a credit to the many who contributed in various ways. But the big issue is not settled. Please pass this email on to friends and supporters of Melbourne’s green wedges. We’ll continue to keep you in the loop.

No Deferral: 2 Pigeon Bank Road Hearing to proceed

Last week, on December 12, VCAT rejected the request by the developer to defer the VCAT hearing, now set to run for 4 days starting January 23.

The story so far: at its meeting on 14th March the Nillumbik Council overturned the decision by its own officers to disallow this inappropriate residential development in the Green Wedge. Following objections by neighbours a VCAT hearing date was set for September 25, the objectors being joined by the Warrandyte Community Association, the Friends of Nillumbik and the Greenwedge Protection Group.

Then the developer, Phillip Mannaheim Holdings Pty Ltd applied to the Supreme Court against the objectors’ right to appeal. The Supreme Court hearing date was set for June 30, but on June 28 this hearing was deferred, but January 22 was established as the VCAT hearing date, should it stand. On November 2 the Supreme Court upheld our right to object.

Next, the developer applied to have the VCAT hearing date deferred, on various grounds to do with time lost due to his own Supreme Court application and the availability of his experts. Nillumbik Council supported this request, of course, but the objectors did not, requesting that the hearing be held as scheduled.

Last week, on December 12, following a hearing on December 6, VCAT announced that the hearing would proceed on the original week, albeit shortened by agreement from the originally scheduled 5 days to 4, starting on January 23.

At the hearing the VCAT member agreed that although the date for submitting amended plans had passed it would extend that date to December 22 – although it noted that ‘no in principle changes’ had ‘been identified yet’. The VCAT Member also noted that if the applicant was not going to be ready on the date it could always withdraw the application and re apply in the future.

You should know that all of these procedural steps and delays requested by the developer are demanding of campaign volunteer time and money, and both are short. So please, chip in if you haven’t, chip in again if you can, and pass this email on to friends and supporters of Melbourne’s green wedges.

Victory in the Supreme Court. Now for the important part!

The  Supreme Court has upheld the right of objectors and community groups to appeal to VCAT against the development of 2 Pigeon Bank Road, North Warrandyte. Although our right to object to the development had been accepted by VCAT for hearing  in January the developer challenged that right in the Supreme Court on the purely technical grounds that the objection by neighbour and WCA member Kim Cope was not valid because it did not contain the words ‘objection’ – even though Kim’s letter was clearly objecting to the development. On Thursday 2nd of November the Court released the decision of Justice Bell resoundingly endorsing the validity of the objection. The judgement is worth reading as a positive story about our legal system and its duty to be accessible. You can read it here. And you can read the media release by the WCA and Environmental Justice Australia here. This means that our challenge will go ahead at a VCAT hearing scheduled for January 22nd.

Even with rates discounted by our supportive legal team and other necessary experts this will be a costly exercise. This challenge is vital to stop developmental erosion of the Nillumbik Green Wedge. If you have not already donated now is the time. And if you already have, more is needed.

Supreme Court confirms rights of community to participate in planning

Media Release by WCA and Environmental Justice Australia,
November 2nd 2017

A decision of the Supreme Court today confirms the ability of concerned Victorians to object to inappropriate developments and emphasises the importance of minimising technicality and the value of community participation in the planning system.
The Warrandyte Community Association and Environmental Justice Australia welcomed the decision.
“The Warrandyte Community Association 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.”

Media enquiries:
Jonathan Upson, Warrandyte Community Association, 0400 501 676
Josh Meadows, Environmental Justice Australia, 0439 342 992

Supreme Court sets date to hear appeal against the objector’s right to appeal

The Supreme Court has now set a date to hear the developer’s application for leave to appeal the VCAT decision to accept objectors.
If the Court grants leave to appeal then it is likely that the Court will immediately begin hearing the case. The date for the Supreme Court hearing is set for September 12 2017.
If the Court upholds the VCAT decision the matter will go back to VCAT for a hearing on 22-29 January 2018.

Council Decision on No. 2 Pigeon Bank Road

The decision to grant a permit for the development at 2 Pigeon Bank Road was made at a council sub committee meeting on 14 March 2017.

The Senior Planning Officer’s report and recommendations to Council read as follows:

That the Committee (acting under delegation from Council) issue a Notice of Decision to Refuse to Grant a Permit to the land at 2 Pigeon Bank Road, North Warrandyte, for the use and development of the land for a dwelling, construction of an outbuilding, native vegetation removal and driveway works, on the following grounds:

  1. The proposed use of the land for a dwelling on a substandard sized lot is not consistent with the intended purpose and decision guidelines of the Rural Conservation Zone and the proposal does not seek to use the land to protect and enhance the environmental and landscape value of the site as found at Clause 35.06 of the Nillumbik Planning Scheme.
  2. The proposed use of the land for a dwelling on a substandard sized lot is not consistent with Clause 11.06-4 (Green Wedges), Clause 21.04 (Vision Strategic Framework), Clause 21.05-1 (Settlement and Housing) and Clause 21.05-2 (Rural Land Use).
  3. The proposal does not respond to the decision guidelines of the Rural Conservation Zone (Schedule 3) and Clause 22.04 (Siting and Design Policy for Buildings and Works in Non-Urban Areas) due to the level of site disturbance required for the construction of the dwelling, and the associated conservation and environmental impacts.
  4. The proposal has not adequately responded to the objectives and decision guidelines of the Bushfire Management Overlay and Clause 22.13 (Wildfire Management Policy) as the development of the land for a dwelling will pose a threat to life and property, is inappropriately sited, requires an impractical level of maintenance in light of the site’s topographical features, and is deemed unsafe.
  5. The proposed development is not responsive to the objectives and decision guidelines of Clause 52.17 (Native Vegetation) in that the proposal has not adequately consider the role of native vegetation as both habitat, and playing a crucial role in minimising land degradation.
  6. The proposal has not adequately responded to the objectives and decision guidelines of the Environmental Significance Overlay (Schedule 1) in terms of the potential to detrimentally impact on the environmental values of the land due to the proposed vegetation removal.
  7. The proposal will not result in an acceptable planning outcome as outlined in the decision guidelines of Clause 65 (Decision Guidelines), having regard to the orderly planning of the area, the degree of fire hazard for the proposed development, the extent of vegetation proposed to be removed, and the potential land degradation and erosion.

The Council ( at its sub committee, the Future Nillumbik Committee ) on the motion of councilors Ashton and Egan, resolved that the permit be granted “ on the following grounds…”.

However, remarkably, there are no grounds set out in the resolution. The resolution continues with eight pages of conditions to be attached to the permit, but none of the Officer’s grounds for recommending against the permit were addressed or rebutted, and not one ground for granting the permit was given.

The minutes and the full list of conditions can be found on the Council website.

Supreme Court Hearing Deferred

28 June 2017

The Supreme court has notified parties to the case that, because of Court time constraints, the directions hearing has been deferred to a date yet to be announced. The Court has indicated that the new date will not be in July or August.

Developer Goes to Supreme Court

Phillip Mannerheim Holdings Pty Ltd have upped the ante in this Pigeon Bank Road case and sought permission from the Supreme Court to appeal the VCAT decision to allow an appeal against the development.

The application for Leave to Appeal will be heard on June 30

VCAT Allows Appeal

VCAT today accepted the right of residents and community groups to mount an appeal against Council’s on the Pigeon Bank Road development. This was despite vigorous opposition from the developer, Phillip Mannerheim Holdings Pty Ltd. The Tribunal member said that among another things, ” I am not persuaded by the permit applicant that the impact of the proposal would be ‘minimal’. Notwithstanding the general support of statutory authorities, I consider that the scale of the proposal raises broader impacts on the community, beyond just adjacent properties.” And later “I consider that the section 82 and 82B applicants’ case has some chance of success. The acceptability of the proposal having regard to relevant planning policy and zone/overlay controls, the nature and extent of proposed vegetation removal (and its environmental impact), together with the siting and landscape impacts of the dwelling warrant independent consideration by the Tribunal.”

A hearing date has been set for September 25, 2017

WCA Mounts Campaign to Overturn Council Decision

The Warrandyte Community Association, in conjunction with Friends of Nillumbik and The Green Wedge Protection Group, has decided to appeal Council’s decision to allow a development at Lot 2 Pigeon Bank Road. The surprise decision of Council to ignore the expert officers report has meant that a rear-guard campaign has to be organised said WCA President Dick Davies. The community groups are going to support the residents who have objected to the proposal and take a case to the Victorian and Administrative Appeals Tribunal ( VCAT ).

A solicitor and barrister have been appointed to help with the case.

At its meeting on 14th March 2017 the new Nillumbik Council granted planning permission for a dwelling on Lot 2 Pigeon Bank Road, North Warrandyte – despite the  recommendation from Council Officers that the application be refused. The proposed development is contrary to the purpose of the Rural Conservation Zone and the planning regulations of the Green Wedge. It is on a block that does not a carry an automatic right to build and which is smaller than the current minimum subdivision. While there have been some developments on small lots in this zone most are on open land.

This land is heavily treed and steep. The report of the Royal Commission into the 2009 bushfires recommended against housing in such inaccessible areas because of the risk to residents. The proposed development consequently seeks to remove a very large portion of the vegetation, including over 740 trees. This clearing will also have adverse consequences for fauna which will lose essential habitat.

This decision sets a very bad precedent. It is bad planning and indicates a worrisome disregard for the planning requirements of the Green Wedge and the Rural conservation Zone within the wedge.

See Council Officer’s recommendations and Council decision here

Council Issues Planning Permit – rejects officer recommendations

At its meeting on March 14, 2017 the new Nillumbik council granted planning permission for a dwelling on Lot 2 Pigeon Bank Road, North Warrandyte.

Permission was granted despite a recommendation from the Council Officers that the application be refused.

The proposed development is contrary to the purpose of the Rural Conservation Zone and the planning regulations of the Green Wedge. It is on a block that does not a carry an automatic right to build and which is smaller than the current minimum subdivision. While there have been some developments on small lots in this zone most are on open land.

This land is heavily treed and steep. The report of the Royal Commission into the 2009 (?) bushfires recommended against housing in such inaccessible

areas because of the risk to residents. The proposed development consequently seeks to remove a very large portion of the vegetation, including over 740 trees.

This clearing will also have adverse consequences for fauna which will lose essential habitat.

This decision sets a very bad precedent. It is bad planning and indicates a worrisome lack of good governance by the new council and disregard for the planning requirements of the Green Wedge and the Rural conservation Zones within the wedge.

See Council Officers’ Recommendations here.