Grebe 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.
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
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