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SmithStreet.org « CAG « Letters « CAG CALLS FOR PLANNING MINISTER HULLS TO CALL IN BANCO'S PLANS

CAG writes to Planning Minister Hulls asking him to call in Banco's plans - VCAT hearing starts on 19/9/05 - also the unanimous view of Yarra Council, and residents groups 3068, South Fitzroy Residents, and Save our Suburbs.

Thursday 28 July 2005

Hon Rob Hulls MP
Minister for Planning
Level 17, 8 Nicholson Street
East Melbourne VIC 3002

Dear Minister Hulls

RE: PL03/1407 (BANCO'S APPLICATION FOR 132-172 SMITH STREET AND 63-71
LITTLE OXFORD STREET) AND SMITH STREET INTERIM STRUCTURE PLAN

We are writing in order to ask you to call in the above-mentioned
planning application, which is listed for a VCAT hearing on Monday
September 19 2005. This is the unanimous view of the Yarra Council, and
residents groups the Collingwood Action Group, 3068, South Fitzroy
Residents, and Save our Suburbs.

As you know, the initial application last year by Banco for this
development attracted a record 1500 objections, and was correctly
rejected by Yarra Council in February 2005. Banco appealed Yarra’s
decision to VCAT in March 2005 and at a directions hearing in June was
permitted to substitute plans.

This occurred prior to the development and adoption on 12th July 2005 by
Yarra Council of the Smith Street Interim Structure Plan. This plan
clearly rules out a development of the Banco type on a number of
grounds, including height limits, heritage controls and car parking.

We therefore request that a Priority Panel be established to jointly
consider the Smith Street Interim Structure Plan and the Banco
application on the following grounds:
• VCAT is under no obligation to consider the Smith Street Interim
Structure Plan in its deliberation on the Banco application. Section 84B
of the Planning and Environment Act 1987 says VCAT ‘must (where
appropriate) have regard to' amendments that have been adopted by
Councils but not finalized. In Glen Eira City Council v Gory (2001),
Justice Balmford of the Supreme Court held that s.84B is a ‘very
flexible requirement’ which is satisfied if VCAT ‘considers’ an
amendment but rejects it because it does not agree with it. The decision
was not appealed and is therefore binding on VCAT.
• VCAT will narrowly apply Melbourne 2030 to its consideration of the
development which, and with the additional absence of a local structure
plan, will predispose it to incorrectly approving the Banco plan. This
is shown by the decision in Golden Ridge v Whitehorse (2004), the
‘Mitcham Towers’ case, in which a 14-storey tower was approved for a
Neighbourhood Activity Centre (Smith Street is a MAJOR Activity Centre),
because it was in a major development site, close to an activity centre
and well-served by public transport. This decision was made by a 3
member panel including VCAT President, Justice Morris, and so carries
enormous weight with other Tribunal members.
• Separate consideration of the Banco plan (by VCAT) and the Interim
Structure Plan (by a Ministerially-appointed Panel) will have the effect
of bypassing explicit community wishes about the development of Smith
Street, as enacted by Yarra Council and supported by the community.
• Banco’s substituted plans are still an ambit claim and make no serious
effort to address community and expert concerns. Fifteen hundred
objections already made clear that this sort of development is against
the community’s wishes and completely inappropriate.
• This is a public interest test case for Melbourne 2030’s
implementation in Activity Centres – Banco’s application should not be
considered without a Structure Plan.
• Smith Street is of State heritage significance and the determination
of this application will have an important effect on Melbourne 2030’s
protection of heritage objectives.
• Consideration by VCAT will remove the application from the Minister’s
powers. It is possible that we will end up with a ratified Interim
Structure Plan and an approved development contrary to both its spirit
and explicit controls.
• Precedent exists for Ministerial intervention in circumstances similar
to those in Smith Street. You rejected the Wheelers Hill proposal on the
grounds it was ‘premature’ as the structure plan was not complete. Smith
Street should not be treated differently.

At a recent meeting (6 June 2005) with your advisers (Fiona Hayes and
Mark Woodland) and Parliamentary Secretary (Elaine Carbines), and
representatives of residents groups (Collingwood Action Group, South
Fitzroy Residents and 3068), we were encouraged by assurances that you
will give any interim controls prompt attention. However, there was less
certainty around gazetting them swiftly, and we noted an instance
involving interim controls from Yarra waiting up to 6 months for your
approval.

In providing you with a copy of its Smith Street Interim Structure Plan,
Yarra Council sought your urgent consideration of the plan, reiterated
its resolution that if you refer the plan to a Panel, it be considered
concurrently with PL03/1407, and requested you use your powers to call
in Banco’s plans (letter dated 15 July 2005). We reiterate our support
for Yarra’s position. Our local MP, Richard Wynne, also supports a call
in, and is on the public record describing as an ‘ambit claim’ Banco’s
original application and their substituted plans and saying if the
developer does not amend them he will ask the Minister to intervene.

Yarra Council and the community met your request to develop interim
controls by July. We have done all that you asked within tight timelines
and with limited resources. By contrast, the developer was given ample
opportunity and an extension of time to submit revised plans yet chose
to bypass Council and appeal to VCAT. And unlike the developer, neither
the community nor Council has the resources to respond to two separate
processes.

You can appreciate our concerns given the tight timelines. Banco’s VCAT
hearing starts on Monday 19th September. Under legislation the Planning
Minister can only call in an application up to 7 days prior to the
commencement of a hearing, in this case, no later than Monday 12th
September. We would be grateful if you can advise us by 5th August 2005
of your response to our request. We are available to meet with you if
you wish to clarify or discuss this matter further.

Yours sincerely

Sivy Orr, Spokesperson
Collingwood Action Group

cc State Member for Richmond, Richard Wynne; Yarra Councillors Kay
Meadows, Stephen Jolly, Jenny Farrar, Annabel Barbara; President, Save
our Suburbs, Ian Quick.