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Those who make the rules can break the rules - Nov 2012.
At great cost, a developer went through a long process with Manningham council to ensure his building proposal conformed to all council regulations. The council actually said, in writing, that his final plans conformed to all council requirements and then .... they refused him planning approval!
 
Below is a full transcript of the discussions surrounding this issue at the Ordinary Meeting of Manningham City Council of Nov 20, 2012. Please note that this is a word-for-word transcript as best as I can determine from recordings.
 
The first part of the transcript is where some of our elected Councillors argue that the building proposal should be passed by council. It is rather long to read but it shows that a few of our Councillors believe that rules are for all people and should be applied fairly. 
 
Mayor: Item 8.2 Planning application PL 12/022641. 50 Carbine Street, Donvale. Construction of 23 two story dwellings. Do I have a mover? Moved, Councillor Gough. Seconded, Councillor Downie. Councillor Gough. 
 
Councillor Gough: Thank you madame mayor and I stand here to move this application and yes, just to address the council. Yes, it is a big change for what happens in that area. In fact I think there have been a couple of other in-fill developments to this stage. But Councillors when you look at the map - and I know it looks small and everything is crowded up - it's over 5600 square meters. 
 
And the blocks of land we have around are about 600 square meters. We usually fit two dwellings on those. One to 300 is the number. If I divide this to 300 I do get 18 dwellings. When I get to a size that is really large like this, and anything over 2000 square meters .... and Councillors, when we are dealing with issues, when we look at Doncaster Hill area and the DDO areas we are going to 50 units on something like 1600 square meters. Where you get over 2000 square meters basically the sky is the limit in a residential one area. 
 
In making this decision and in approving this tonight and speaking in favor of it I really do have to pay tribute to what the planning scheme is and what it says. And that has rights and expectations in all parts. It has rights and expectations of the people that live around there and it has inherent rights and expectations of whoever owns the property and it has inherent rights and expectations of anyone that wishes to develop the property. 
 
And if you look through the report, the officers report, you will see that each and every one of the areas in which we need to make this decision on to this planning application is actually met. And I think that is very very important. We are not actually making a decision here on something that isn't met. And in the system that we have, if things are met and met at 100% then if that's where our policies have put us and that is what can go here, then I think we are beholden to have transparency in our planning scheme so everybody can look at this
 
It is a large number of dwellings on this particular site and it may not be the style of development that I perhaps might want as a person. But in making this decision I really have to look at what our rules and regulations are. And if I look at it and the officers have looked at it and they have gone through and it does meet the requirements. In fact there has been a number of changes and I know that this came to us .... These people have actually done what we have asked them to do. They have come to us with a pre-application, they have come and sat down with their proposal, they have come and worked through the proposal with the council officers, they have had feed back, there are changes that we are enforcing in the conditions tonight. And the conditions tonight then conform with our policies and Manningham's policies on development here. 
 
It is a hard decision for people to make. It is very hard when you have to stand up and make decisions on what it is and people will be making, I am sure, will be making decisions on this tonight on how they feel. However, if you were a developer or anyone here and you see a report that actually says my property actually complies with the rules and regulations of this area then I think I have got a very strong case and I don't think that this council decision will be the end of what happens here. If it goes in favor  perhaps the people that don't like it will go to VCAT and perhaps if it gets defeated the people that are putting the application in will, quite rightly, go to VCAT and ask that their rights, as enshrined in the legislation, as enshrining what the zoning is and what the development is, and if it does comply and fits with all the setback, as you see, all the heights, all the (...inaudible...), then when something does fit with everything, it will go to VCAT and a decision will be made in another place on the outcome of this and I think that is probably what will occur in this particular application.
 
Yes, it is a change, it is a change for the area but it does fit, Councillors, what we are looking at here and with the amendments we have put in, it does fit and comply 100% with our planning scheme. 
 
Mayor: Thank you. Councillor Downie. 
 
Councillor Downie: When this came to Sustainable Design I was quite surprised because it was a bit different and something different for Mullum Mullum. But I have looked at the site. I went out and around it we have quite substantial homes on fairly small the blocks that are fairly full. This is to build slightly smaller homes on slightly smaller blocks. But we are making the area, which is a desirable area to live where there are good schools and whatever a bus out the front, attractive for people and affordable so people can come and live there. 
 
It does, as Councillor Gough said, it does fit within our planning scheme and I think that it is a good thing for this area and I urge my fellow Councillors to support it because it fits with the planning scheme and that's what we've got to follow. 
 
The second part of the transcript follows immediately on from the above. Nothing has been left out.
 
However, I wanted to break it here to highlight a basic difference in approach. There are some elected Councillors who apply rules selectively. Even though they can find no fault in the building proposal, they deny planning approval because of personal opinions and beliefs.
 
This selective application of the design rules also puts Manningham Council in a difficult situation. The Council then needs to find some plausible and defensible reason for rejecting the building proposal should the matter end up at VCAT.
 
Towards the end of this transcript, a Council officer explains how they intend to argue their case should it come before VCAT. You will see that the council's case stands on very thin ice.
 
Basically Manningham Council is going to put aside all the work done with the developer and take the developer's ORIGINAL plans to VCAT and argue that these ORIGINAL plans do not fit the design rules.
 
However we all know these original plans fall short. The developer knows this and the council knows this. This is why the builder spent so much time and money working with the council to ensure that the building proposal was amended so that it did comply.
 
What puzzles me is just how far does Manningham Council think it will get with it's line of argument? The builder has, in writing, a letter from the Council saying that his REVISED plans fit the council design rules 100%. All he has to do is to present that letter at VCAT and Manningham Council will look rather silly.
 
Now let me ask you a question. If you were treated this way by our council and won a case against them at VCAT, what request would you make to VCAT regarding costs?
 
Let's continue with the transcript of the remaining discussions at this meeting:
 
Mayor: Anyone to speak against? 
 
Councillor O'Brien: I do madame mayor. 
 
Mayor: Councillor O'Brien. 
 
Councillor O'Brien: Thank you madame mayor. I hear the speeches tonight and they are quite passionate and whilst it may fit with the planning scheme, one size doesn't fit all. 
 
Now this development itself and I have seen the site and I do ... not been to that part of the area much ... one can establish the character quite quickly. It is a low density, quiet neighborhood character. And this development does not ... is no way compatible with that character. 
 
First of all, it is vastly over developed. It is an overdeveloped site by virtue of the narrow access way which hinders the site and vehicular access. Councillors I do have an issue with vehicular access internal with this particular development. If you turn to page 81 of your agendas you will see access is quite thoroughly addressed by the council planners. But I think fundamentally, fundamentally the problem is that if two cars are passing one another, those two cars have to go onto the footpath. That is not an outcome that we want councillors. If you have elderly people in the street, if two cars are parked down side by side and an ambulance has to go down there at break neck speed, a fire engine has to go down there, we have an issue. This circulation, this internal road circulation, is very, very difficult for a car, a Honda Jazz, let alone for a fire engine. So I do have problems with the over development. 
 
I believe councillors, I believe the community in that area do accept that there is going to be development. That is a fundamental given. I believe that they accept that - but not to this size and not to this nature. 
 
Secondly, the development fails in open space. I believe that we pride ourselves, madame mayor, on open space. People come to Manningham for that reason. What we have here is a tiny little estate that lacks public open space and lacks circulation and you combine that with the access problems that we have, I think it won't be a very safe and enjoyable community. 
 
If I can just get back, madame mayor, to the issue of over development. Again if we can .. and I don't know what the magic number would be, whether it would be 23, whether it be 19, whether it be 15 but I believe that we can go down a number of dwellings ... all these issues: in terms of over development, in terms of access, vehicular access, circulation can in fact be addressed.
 
Madame mayor, I would urge my fellow Councillors to refuse this application and I will then put up a motion of refusal which I will then be advocating five points in detail of why this proposal should be refused. Thank you madame mayor. 
 
Mayor: Anyone speak in favour? No. If not I put the motion out for ... oh sorry ... Councillor Gough would like to sum up? 
 
Councillor Gough: Thank you madame mayor and look I do understand the feelings of people here with this particular change. There is quite a substantial area of open space in and around that area. You don't have to walk far to two parks and to areas that are quite open. It is a change and it is a tight development I do say that ... but indeed if the other thing comes up, it won't rest here. 
 
The issues that will come up, as to why it doesn't fit, are addressed in our report. So all the issues in the refusal we have addressed in the conditions of our report. They are taken out for debate because we have to try and find a reason to refuse it. Now in this report, the officers report, that will also be going off to VCAT, is outlined ... our report and the conditions we put in there to make sure that this did comply with all of our things. We are now removing them, if we do vote against for a reason ... to try to come up with a reason that may be defensible at VCAT. I don't believe that this will be the end of it. 
 
But I urge you to support this in that we spend thousands of dollars ... hundreds of thousands of dollars ... defending some things that VCAT thinks do fit 100% within our policy. And when we have got something that fits within our policy I do believe that we need to support our policy, or do the right thing and change our policy, change it so it does not fit. And that is a challenge for council. I don't believe the challenge is for council to pick out the winner, to see who's going to get it lucky this week. The challenge is to change our policy so that it doesn't happen. So we can always vote 'yes' if it fits our policies. 
 
I think we need to abide by those and until we change them we really are we are morally here to support it. 
 
Mayor: I will now put the motion for a vote. For all those in favour? Against? which is lost. Do I have a mover for the alternative motion? Moved Councillor O'Brien. Seconded by Councillor Galbally. 
 
Councillor O'Brien: Thank you Madame Mayor. This is quite a long statement I will be making but one that is necessary for you to understand the reasons for the refusal. 
 
Madame Mayor, this application should be refused and, having considered all objections, a notice of refusal be issued in relation to planning application number PL 12/022641 for the development at 50 Carbine Street, Donvale, lot ALP20806AW. For the purpose of the construction of 23 two story dwellings on the following grounds. 
 
There are five grounds, madame mayor, which I will read. 
 
1) The proposed development is considered an over development of the site by virtue of a narrow access way which hinders safe vehicular movements; the inability for service vehicles to safely egress the site; an over reliance on tandem parking which will result in parking congestion within the site thus resulting in poor internal amenity for future occupants. 
 
2) The proposed development fails to respond and contribute to the existing sense of place and neighbourhood character, which is characterised by large open spaces and detached dwellings in a landscaped garden setting. The proposed development does not constitute an incremental level of change as envisioned in clause 21.05 of the Manningham planning scheme. 
 
3) The proposed development does not satisfy the requirements of clause 52.6-8 of the Manningham planning scheme as it does not provide for two way vehicular access at the entry with a minimum width of 5.5 for a length of 7 meters. 
 
4) The minimum front set back for dwelling 63 and 75 fails to comply with standard B6 of clause 55.03-1 of the Manningham planning scheme. 
 
5) And lastly the garages of dwellings 63 and 73 will have a dominating impact on the Valepark Drive street scape and will be visually intrusive due to high finished floor areas which is exacerbated by the curved frontage. 
 
Thank you madame mayor. As I mentioned in those five points, councillors, that this is simply an over development of the site. I again reiterate that we don't have ... and I believe, as councillors ... we don't have an issue with this particular development per se. It is just the density of development. And I would encourage that the applicant ... to resubmit the application with a lower density and better internal circulation of traffic flow. 
 
Now I understand and I take councillor Gough's point there are park lands nearby. Let's use and connect those park lands to this development and make it appeasing and appealing for anyone who wants to come to this area and to enjoy living here. 
 
I urge my fellow councillors given that the first motion has now been defeated that we now support this motion for refusal. Thank you. 
 
Mayor: Thank you. Councillor Galbally? 
 
Councillor Galbally: I'll second that motion, thank you. 
 
Mayor: Anyone to speak against? Questions? 
 
Councillor Gough now asks a very reasonable question which exposes just how weak the council's argument is. His question is this, how is it that the proposed plan contradicts so many areas of the planning scheme, yet was put up for approval by council? The council officers then explain what they have done. Be warned that our council officers are notorious for their lack of clarity and obfuscation, so I have provided a translation into everyday English of what they are saying.
 
Councillor Gough: My question is to the Director. Can the Director please explain to me how this application for refusal is contrary to the Manningham planning scheme in all of those areas and yet the motion was put up for approval by the officers? Can I have an explanation why it was put up for approval and now it's got all of these things that it contravenes? Can I have an explanation, please? 
 
Director Planning and Environment: Through you, Madame Mayor. When the officers are directed to do an alternate recommendation - which is a refusal - what happens is all of the conditions - and you will see there are nine pages of conditions that go with supporting it - fall away. So we have to act as if they don't exist
 
So what we then do is we make sure that in the refusal we have picked up on items that, even though we have conditioned them in the planning permit, that become part of the refusal. So they are captured in that. Its a technicality of when a refusal is replaced with a conditioned application. 
 
[Translation into English: "Some of the elected councilors told us to prepare a refusal after we spent all that time and money with the developer getting him to change his plans. All we could do is throw all that work out. We then went back to the developers original plans and picked up on all the points we did not like in the first place (which he subsequently changed). Then we pretend that he never addressed these problems because we need to find things to complain about. We plan to berate him and refuse to give him a planning permit because he didn't address these issues ... (but wait  a minute, he did)."]
 
Councillor Gough: My second question is then the ..., if I get it right, the actual one that was moved with those conditions did fit with our policy. 
 
Director Planning and Environment: That is correct. The conditions now make it fit with our policy. 
 
Councillor Gough: ... because, because it is now going for refusal we are not putting those conditions in. 
 
Director Planning and Environment: Well, we have reversed it by putting some in as grounds for refusal so they are captured through that process. It is a different way of approaching it
 
[How the Director of Planning and Environment can say such a silly thing is beyond me. "It is a different way of approaching it". Really? You can almost hear the disbelief of the Councillor below.]
 
Councillor Gough: Thank you. Mayor: Thank you. Any more questions? 
 
Councillor Downie: Can I ask a question? If this is refused ... even though the recommendations were already met by the requirement for the application to be approved ... now that all those things have been reversed, if this is refused and goes to VCAT and then they meet those requirements that have been put in the original application ... why can't he just get an application granted anyway based on the fact that he has already met those requirements ... conditions ... through the officers recommendations previously. 
 
Director Planning and Environment: As the planning authority, one of the steps in the planning process is to have ... the council is delegated to look at planning applications. So as a group of councillors who are able to ask for a separate recommendation, the officers have to do a technical assessment against the planning scheme. That is what they have done. They can then be directed by councillors, as was last night, to put in an alternate. So it is only the councillors then who can put in an alternate that is against the assessment. And that is what has been done in this case. So it is part of the technical process. Thank you madame mayor. 
 
[Translation into English: We did our job and worked with the Developer to ensure his plans fitted our design rules. Then some elected Councillors came along and said they did not like it and told us to prepare a different assessment that would give reasons to refuse his plans. We had to do what we were told. We were told to prepare a refusal for something that had been amended to be perfectly all right. All we can do is go back to the original proposal and pretend none of the discussions and amendments took place.]
 
Mayor: Any more questions? No. I will now put the motion for a vote. All those in favour for this alternative motion. Against. Which is carried.
 
Councilor Gough said above that Manningham Council sometimes spends tens of thousands, even sometimes hundreds of thousands of dollars, defending it's decisions at VCAT. 
 
Manningham Council now finds itself in a desperate situation and should this go to VCAT, this case will probably also cost the Council (and us ratepayers) tens, if not hundreds of thousands of dollars.
 
This would be a wanton waste of money that simply should never be allowed to happen. And it would not happen if our elected councilors applied their own rules even handedly. However, some of our elected councilors have a fanatical and activist streak and see their own design scheme not as a fair and level playing field, but as a means of achieving what they want. So when the rules do not give them what they want, they set them aside and and wager many thousands of ratepayers dollars on a desperate bid to get their own way.
 
And why should anyone in Manningham Council worry about this? After all, it is not their money they are risking and squandering. There is always more money where the last lot came from - that is, from you and me.
 
 
12 Feb 2013.
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