VCAT, we have a problem
Justin Passaportis | 19 October 2017
“Fair, efficient justice for all Victorians”.
These noble words are emblazoned over the door as you enter the Victorian Civil and Administrative Tribunal (VCAT) building in downtown Melbourne.
Its website gives added encouragement, speaking of “fair and just mediation” and “a low-cost, accessible and independent dispute resolution service, which is deliberately informal and encourages self-representation … with the participation of lawyers or other legal representation not being encouraged.”
Reassuring words indeed when the layman steps in to bat against a multimillion dollar developer, its legal firm specialising in planning matters and expert witnesses well-practised at their game.
We’ve often heard of overprotective “NIMBYs”, notionally supportive of development as long as it happens elsewhere, clashing with profit-driven developers seeking to exploit the system as best as they can for financial gain.
Nothing new there, but let us try to set aside those labels and use the example below as an insight into the planning system and the institution that VCAT purports to be.
Our case was strong. After all, it had gone to VCAT once before in 2012 on fundamentally the same facts, and, as disappointing as that decision was for local residents at the time, its finality had been accepted, so when the matter was re-heard by the Tribunal this year, we were essentially only asking VCAT to uphold its own decision.
However, the best laid plans of mice and men often go awry.
The proposed development at 161-195 High Street in Preston (the former Windsor Smith factory and warehouse) had been contentious when first raised in 2011, with over 70 residents uniting to support Darebin City Council in rejecting the initial plans for an eight-storey building in a heritage area of predominantly single-storey dwellings, asserting that it represented an overdevelopment of the land.
On appeal by the developer, VCAT ultimately allowed six storeys, ruling that the (approved) building would be a “very imposing structure … even at a reduced height of six storeys”; six storeys being an “outcome supported by planning policy”. The deadline for completion was five years – that is, 2017.
Skip ahead to 2015 and the site is flipped from one developer to another – a bigger fish in the pond; a confident outfit and a frequent, successful litigant before VCAT. So why not have a second bite at the cherry?
A permit “amendment” is duly lodged, with carefully crafted new plans probing and pushing the boundaries (pun intended) to see what might stick. The developer raises again the original arguments and seeks approval for eight storeys, allowing it to squeeze in almost 20 per cent more units than the original VCAT permit granted (while reducing the floor to ceiling height of each level to a height below the recommendation by the Better Apartment Design Standards), further encroachment on site boundaries and a reduction in the quality of some of the materials used for construction.
An interesting bid, to apparently, “improve amenity”.
Inevitably, the permit amendment is opposed by Darebin (for the second time around), and a group of concerned residents (most of whom were original objectors) band together again to get VCAT to uphold its original decision. All recognise again the need for increased housing density in the area but stress that this must be achieved in a fair and sustainable way – this, of course, being an important point deliberated on by the Tribunal in 2012.
At about this time, residents learn of pending “Amendment C137” to Darebin’s planning scheme; an amendment years in the making following an exhaustive process of community and expert consultation, ultimately adopted unanimously by the council and forwarded to planning minister Richard Wynne for sign-off – an amendment designed to give more clarity and certainty around the planning process for this particular area; an amendment setting a “mandatory” (emphasis added) height limit of six storeys for this very site which “cannot be varied with a permit”.
Unfortunately, this amendment has sat on Mr Wynne’s desk for almost two years.
So the residents campaign, supported by Darebin, whose mayor, Kim Le Cerf, writes an urgent letter to the planning minister, imploring him to approve the amendment “given the rising number of applications implicated by (Amendment C137) which have, and continue to be heard, by VCAT”, and that in the absence of this amendment, “there is a high degree of uncertainty which may result in inappropriate outcomes that are contrary to the broader vision of the amendment.”
Lo and behold the minister signs and Amendment C137 is gazetted into the planning scheme as Design and Development Overlay Three (DDO3) on 1 June 2017, ironically coinciding with a preliminary hearing of case P441/2017 – our case at VCAT. Finally, the planning scheme has become law and there is certainty about development of the site!
The developer’s lawyers are prepared, asserting that the new DDO3 is a “sloppy document,” without “transitional provisions” and that their client has in fact “accrued rights” effectively allowing it not only to ignore this new planning law, but also to demand an even bigger building!
A very precise, esoteric legal argument ensues and numerous instances of case law are presented to back this, despite the fact that VCAT claims that it is not a court bound by precedent. The ordinary citizens of Darebin begin to realise that self-acting, and relying on VCAT’s “no lawyers needed” ethos and lofty ideals, could well count against them.
The inevitable comes to pass.
In a final order, which completely dismisses the new planning law and flies in the face of Darebin City’s vision for development in its own community and the vocal concerns of numerous local residents, VCAT approves all requested amendments to the permit.
Let’s be clear about what has happened here: VCAT has allowed the development of an eight-storey building (including the level described as the upper basement) to be built in a zone of six storey “mandatory height limits” which specifically “cannot be changed with a permit” – a height limit that Darebin City Council has applied consistently to all buildings in this zone. We are patronisingly informed that the residents’ perception of the bulk of the building will “diminish over time”.
It has ruled that it is acceptable to bring the floor-to-ceiling height of each level to a height that falls below that recommended by the Better Apartment Design Standards. How does this “improve amenity” for new residents?
And spare a thought for purchasers of these seemingly attractive off-the-plan apartments as well, none of whose voices have been heard through the whole saga: theoretically, they could have put down deposits on the original units when they were first offered. Now the design has changed completely and they are still waiting years later for the project to break ground. Is that fair?
This is for a site labelled “strategic” – a term that, one would have thought, should place an even greater onus on a developer in terms of building excellence, especially since the site is part of the Bell Station Heritage Overlay and that DD03 has made specific allowance for much higher buildings in nearby streets without heritage and residential interface.
So what are we left with after five years and two replicated applications to VCAT?
A great deal less than the original court order gave us – a clear slap in the face for the professional town planners at Darebin City Council, a dispirited community and deep cynicism about the ideals of VCAT. We are not the first Victorians to be completely betrayed by the system and clearly we will not be the last.
Anecdotally, there are far too many shock and horror decisions coming out of VCAT, where the clear spirit of the law and the rights of councils and residents are summarily dismissed in favour of powerful developers. The case in point becomes just another of these disappointing statistics.
The planning, design and building standards for Victorian cities have been carefully and professionally crafted at great expense to tax payers. BADS and DD03 are testimony to this and, while they are not perfect, they are all we have to try to ensure our communities are developed in a sustainable, fair way.
There is something inherently wrong with our system if VCAT can, at the stroke of a pen, overturn years of effort and thorough consideration. Should a narrow legal argument be permitted to obstruct and negate clear, consistent and carefully contrived planning policies for our state – policies drawn up after community and expert consultation and signed into law by democratically elected officials?
Should the letter of the law be allowed to trump the spirit of the law?
As “fast” as planning minister Wynne signs new laws around the sustainability of development, VCAT undermines them. The maxim “community need, not developer greed” is simply ignored.
Premier Daniel Andrews is quick to point out how all of his administration’s policies and initiatives are aimed at making things “fair” for all Victorians. The policies are only as good as their enforceability and, in that regard, VCAT continues to fail us miserably.
Is this “fair and efficient justice for all Victorians”?
Justin Passaportis is a resident of Preston and member of a local resident action group.