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Grebe $m defeats community 0

14/5/2020

10 Comments

 
PictureGrebe Investments development site off Reed Crescent
By Peter McKenzie

AFTER several years of fighting the development of 83 new house blocks next to a wetland reserve in Reed Crescent, Wonthaggi, we finally have a result. The developers have won.

The thousands of hours and dollars put in by numerous objectors – individuals and the South Gippsland Conservation Society – came to nought.  Not a total surprise because we were fighting in the Victorian Civil and Administrative Tribunal (VCAT), the jurisdiction orchestrated from the start by the developer Grebe Investments Pty Litd.

The reason we were there was that the developer lodged a claim that Bass Coast Shire Council had taken longer than the prescribed 60 days to decide on the development application.  Damn the council, you might think.

Well, the council couldn’t decide on the application because, despite repeated requests, the developer wouldn’t provide the information required to evaluate the plans.  Voila, they are out of time and the developer bolts off to VCAT where they always wanted to be. And remember now it is the developer bringing the case against the council!

Attending VCAT for the total 14 days was educational and depressing.  The main arguments were between the lawyer for the council, arguing that with the information available to them they opposed the application, and the developer’s team of senior lawyer, assisting clerk and planner working together.  I was disappointed that the council didn’t send any support to their legal counsel but I imagine that was due to budget constraints.

We were then presented with six expert witnesses for the developer and three for the council.  It did seem quite procedurally fair, which I guess is no surprise given it is a formal court process.  We were given many opportunities to ask questions and eventually make our own presentations.

If my memory was up to it, I could mention some of the arguments given over the 14 days covering the layout and local amenity; storm water; traffic; acoustics; bushfire; weeds and risk to the Rifle Range Wetland Reserve but my memory isn’t that good and you would stop reading long before I had finished.

The key point is that much of the information requested by the council was available at VCAT, some reports being a year or more old.  Somehow they couldn’t be presented to the council even though they had been prepared.  Does that sound like an oversight or a deliberate strategy?

We came away exhausted but at least mildly optimistic as we felt our input was taken on board and some of our arguments, often similar to that from the council’s experts, would influence the outcome.

The decision arrived late last week. The application was granted.

Over 50 odd pages of analysis and reasons, the VCAT members referred to our submissions and those of the council occasionally but seemingly more as token mentions as our arguments, along with those of the council, were dismissed. Some minor changes were made in response to our objections but it seems these were areas where the developer had nominally over-reached and tactically conceded to appear to be open to negotiations.  They basically got what they wanted.

One of the most surprising things I learned was that a development application is a broad brush summary, not a detailed plan.  When problems were identified it was acceptable for the proponent to say these would be remedied in subsequent detailed work.  No mechanism is in place to guarantee that will actually happen as the land is sliced and diced, according to a detailed plan, which we will not see, is inflicted on the site and our community.

A glaring example of this approval without detail is in stormwater control to protect the Rifle Range Wetlands Reserve.  On their “indicative plan” there is a water retention wetland to slow down (and clean?) this water, to be constructed on Department of Environment, Land, Water and Planning/Victoria Parks land, not the development site.  There is no indication that DWELP will approve this, indeed suggestions that they won’t.  The developer merely submitted that if approval was not obtained they could modify their design.  Their statement was accepted as a minor change. To me that would be a major change involve moving roads and block dimension/position, changing contours and water flows, drainage layout and discharge to the Rifle Range. I would have thought it would at least require seeking DELWP opinion. 

I could haggle about many other points but, again, you don’t want to read all that.

Overall it was very educational and we take some joy that we caused the developer to spend big money on their experts who were of course paid seriously for their input.  But they won.
When a similar situation arises next time I will certainly put effort into initial objections at council level and write an objection.  It can be detailed or short and simple.  Address the overall or some part(s) of the proposal, but stand up and represent the community and yourself.

I don’t know whether I would go to VCAT again. Remember, I am talking personally not for the objectors as a group.  If the development was a serious problem I would probably try to generate sufficient community engagement to get a serious fighting fund.  We need to engage recognised legal and expert witnesses as we, the people, don’t really get much consideration as amateurs in the eyes of the court.

If action on planning issues stirs your interest, you can support the South Gippsland Conservation Society in its campaign against a proposed 1000-lot marina development at Mahers Landing or lobby for inclusion of the Holden Proving Ground into what could become a great coastal reserve for Bass Coast.

The full decision on the Reed Crescent development is available at http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT//2020/551.html
 
July 4, 2019 - VCAT, your bias is showing
April 19, 2018 – Developer’s tactics under fire
​
10 Comments
Nalin
15/5/2020 10:26:05 am

Thank you, Pater, for attending, and for reporting, however depressing.

Reply
Graeme Charles
15/5/2020 10:56:15 am

Reading Peter's account of his involvement in the VCAT process certainly struck.a chord with me. I was President of a group called Friends of Skeleton Hill (North East Victoria) some years ago that opposed an application from a mining giant to turn said hill into a quarry. I have to say that from the moment the VCAT hearing began, which ran for something like two weeks, I knew in my heart that ours was a lost cause. The Shire in question had rejected the planning application, but as was apparently the case here, just didn't have the financial resources to match those of the applicant. They were paying a senior counsel $14,000 each day, plus whatever his bevy of underlings and expert witnesses were costing them. It was very obvious that the VCAT panel and the applicants senior counsel were on very good terms with each other, which certainly didn't fill me with any great sense of hope. Needless to say, the developer won the battle, and like Peter, I doubt if I would ever bother to front VCAT again, no matter how passionate I felt about the issue at hand. My estimate is that the quarry company probably spent over $500,000 arguing their case at VCAT, we managed to raise $20,000 from our tiny community to help put our case to VCAT, and that was probably the difference in the end.

Reply
Yvonne McRae
15/5/2020 11:42:22 am

HUGE thank you to Peter and his stalwart band who attended VCAT. Little people who live next to or near a proposed development and objected (30+) are pushing the proverbial uphill, compared to the $m's available to Planning Mafia, consultants, 'expert' witnesses, blah blah. Council are in a bind also - how much ratepayer monies do they spend on legal eagles and others. It has cost the developer huge money to fight for 4 years. There is still the million for infrastructure before the 83 lots can be paced out. Then will people want to live next to the Transfer Station and Dog Pound, and the cemetery. Over the many years I have lived here I have planted thousands of trees, shrubbery etc. for massive shelter belts and wind breaks. The developers want to make sure they show prospective buyers around on calm, sunny days, otherwise the Southerly blusters will push them over to North Wonthaggi! Cheers, Yvonne

Reply
Joy Button
15/5/2020 12:44:59 pm

Thank you Peter, and your band of committed community members, who tried to oppose this development. Disappointing result, particularly when we are always told, particularly lately, that we live in a democracy. Sometimes, you cannot help but wonder .....

Reply
Felicia Di Stefano
15/5/2020 05:37:52 pm

Thank you Peter and supporters for trying and for telling us about the process. At least you managed to delay the development so that's something. I heard a zoom discussion among several lawyers recently. There was Julian Burnside, Jess Taylor and a couple more. Among other issues, the group decided that the law and justice are not connected.

Reply
Peter Bogg
15/5/2020 06:43:19 pm

Thanks Peter for the report. There is no justice when a developer can withhold documentation to stop the council from making a decision, thus forcing a hearing at VCAT.

In my experience, VCAT favours development but in the 5 times I have attended hearings, I have been successful if my objections are within the ResCode. Other objections are not considered.

The continual increase in Australia's population means more of the areas you tried to preserve will be sacrificed on the alter of 'Big Australia'.

Reply
Beth Banks
16/5/2020 02:18:26 pm

Thank you Peter Mckenzie for writing up the VCAT response. It is
discourging for people who put in hours of volunteer work weekly on the
Rifle Range site.The loop holes developers have in process is disturbing
in our democracy. We were all so tired as three and a half years was a long battle. I want to give up but the new issues as outlined by Peter are important so we go again.
It is important to read the VCAT documents on cases as I have noted in the other press lately their account differs from the fact.

Reply
Leticia
16/5/2020 02:23:36 pm

Thanks Peter for this insightful analysis and also, very useful advice for how the Cape Paterson development proceeds. The lack of detail in developers' plans is something that is clear in the Cape Pat scenario too.

Reply
Nerida Melsmith
17/5/2020 07:49:43 am

i have to agree with Peter - The VCAT process is arduous and defeating. The fight to stop the 250 caravan site behind Forest Caves is entering its 4th year at VCAT.
As a local resident VCAT now asks me to pay to attend and receive information, it starts at $20.00 and I wonder where it will stop.
Building on a swamp, one sandhill from an unpatroled beach, a new entrance onto Phillip Isalnd Road, no amenities at all, scary stuff will it join the airport development at cape woolamai ? That makes makes a bit more sense as it abuts housing development already.

Reply
Alison Brewster
18/5/2020 09:49:25 am

Thanks Peter for your article, and especially to you, Dave, Beth (and anyone else?) for putting up a good fight in VCAT. We appreciate all the hard work that went into it, and hope the community can be active and vocal about opposing the Maher's Landing development proposal, and saving the GMH Proving Ground as a public reserve.

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