OVERVIEW OF VCAT ORDER 5TH FEBRUARY 2008 AND PLAINTIFFS’ REASON FOR APPEAL
1. Overview of VCAT Order
The VCAT hearing relevant to an appeal by FKP Lifestyle Pty Ltd, against a decision to refuse a permit for a development of the Henly site on the south west corner of the
Camberwell Junction six ways, took place from 3-7 December 2007 at a Hearing chaired by Senior Member Liston. The Boroondara Council took the lead against the proposal, being the Responsible Authority. There is a long history of attempts to develop this site and no one at the hearing in December suggested that development was inappropriate, it was the scale of the development that was the main contention – three buildings in a curve with the main of 14 stories.
It was recognised by all that such a development is of a far bigger scale than anything previously contemplated for this area.
2. Overview of Reasoning for Forthcoming Draft Notice of Appeal
The Plaintiff is very clear on VCAT s148, part 5 requirements, ie no appeal to the Supreme Court of Appeal will be entertained unless the appeal is clearly a point of law, ie VCAT should be judged on whether it made an error of law. So, residents recognise the VCAT order of February 2008 is in place and, despite its strong opposition to a development of this bulk and height, the Council has had to issue a permit.
· In Originating Motion 5965/2008 Relief or remedy sought was stated as:
“Plaintiffs seek to have the VCAT order (Ref 2163/2006) of 5th February 2008 set aside, relating to the Henly site at Camberwell Junction, 472-480 Riversdale Road and 705 Burke Road Hawthorn East, on the grounds that VCAT made an error in law. Plaintiffs contend that the decision was not reasonable in that it was unduly weighted towards Melbourne 2030 policy. In Plaintiffs’ view there was too little consideration of other key factors that could be reasonably expected to be rigorously examined by VCAT under existing planning and development legislation and regulation.
In the Plaintiffs’ view, there was not a full and thorough consideration of all local infrastructure capacity, road and public transport impacts, ( including road safety), heritage impact and overall neighbourhood amenity.
Motion is being made with reference to Section 148, Part 5 of the VCAT Act 1998 , the Boroondara Planning Scheme under the Planning and Environment Act 1987 and its regulations and the 1993 Camberwell Junction Strategy Plan.
· Plaintiffs contend that VCAT has not perfomed its statutory role of independent and objective assessment of an appeal by a developer against a Council decision. The order and reasons place undue emphasis on a Government Policy (Melbourne 2030) which is referred to in legislation and planning schemes but not prescribed in the sense of its operational effect. This will be demonstrated by reference to case law pertinent to s 148 of the VCAT Act 1998, Planning and Environment Act 1987 and its regulations/planning schemes.
· Plaintiffs also contend that Ministerial intervention at the beginning of the VCAT Hearing in December 2007 prejudiced the likelihood of a fair and reasonable outcome
· The area of the VCAT Act considered most relevant, apart from s 148, Part 5 is s 97 and 98, part 4 relating to fairness and natural justice and procedure
· Areas of the Planning and Environment Act that are relevant are :
- Part 2 – Planning Schemes and in particular s 16 relating to “Application of Planning Scheme”
- Part 4 – Permits and in particular s 84B which deals with “Matters for Tribunal to take into account”. There are thirteen matters to be taken into account under s 84B(2) and the first listed is “any relevant planning scheme”. No words are there to suggest higher weighting be adopted for Melbourne 2030 compared to any other “matter”. In fact, Melbourne 2030 is not a listed matter to be considered and the Boroondara Planning Scheme under the Act has only one specific reference to Melbourne 2030, in Clause 12.09, which requires regulators to “have regard to ---- (as relevant)” and shows a list of incorporated documents including Melbourne 2030, which we argue is a policy and not legislation with operative effect.
· The supplementary affidavit and draft Notice of Appeal will focus on demonstration of the above overview points