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SmithStreet.org « CAG « Letters « CALL FOR MEETING WITH PLANNING MINISTER - PANEL PROCESS UNFAIR, ADHOC, PRO-DEVELOPER

CAG and resident parties call on Planning Minister Hulls to meet and hear concerns that the Panel inquiry into Banco's plans and Yarra's interim controls was unfair, adhoc and pro-developer.

Letter from CAG and resident parties to the Minister for Planning, Rob Hulls, seeking a meeting:

WITHOUT PREJUDICE

Thursday 10 November 2005

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

Dear Minister Hulls

Re: Priority Development Panel (PDP) Inquiry re City of Yarra's Smith Street Interim Structure Plan (C76 Amendment) and Planning Application for 132-172 Smith St & 63-71 Little Oxford St Collingwood

We would like to briefly reiterate our concerns regarding this particular PDP, and further participation in its process.

1 - At the conclusion of the official panel hearings, Ms Monk convened a series of meetings between the applicant's architect and urban design experts for the applicant, council and residents. One of these experts was Professor Kim Dovey, whose written evidence on urban design matters had been submitted by resident parties. Ms Monk announced that the purpose of these meetings was to 'tweak' the applicant's design. No mention was made of any consideration of the C76 amendment, Yarra Council's interim structure plan.

2 - Professor Dovey declined the chair's invitation to participate, arguing that he was not in a relationship of representation of the residents - he was simply one expert amongst several. Nor was he willing to undertake free consultancy work for either the panel or the property developer.

3 - It was extremely unlikely that Professor Dovey would be able to represent the residents. The developer's representatives (the architect Mr Manton and urban design witness Ms Roz Hansen) and the council's representative (Mr McGauran, urban design witness) were both hired and paid by the parties they were asked to represent and were in a clear and ongoing client-consultant relationship with them. Professor Dovey was one expert witness, who gave a pro bono written report for residents.

4 - Having suggested this asymmetrical relationship for ongoing discussion of the applicant's plans, Ms Monk gave no indication as to what the process would be, should one of the invited parties decline to represent their purported party. Ms Monk did not consult the residents' barrister, Mr David O' Brien, as to whether residents would be willing or able to nominate a representative prior to making her announcement.

5 - At the beginning of these proceedings, the panel heard, and acceded to, a prepared legal brief from the applicant's QC arguing that full legal representation and the rules of natural justice should apply to the panel. In failing to set a process for representation in place, or to halt proceedings once it was clear that residents were unrepresented, Ms Monk fell short of a commitment to the natural justice principles that her own panel had established at the beginning of proceedings. Once it was clear that residents were unrepresented, the onus was clearly on Ms Monk to halt the proceedings and invite the residents - who, being 25 in number, required some reasonable time to meet and come to a shared course of action - to supply an alternative candidate. In fact the decision to allow cross-examination denied residents natural justice by preventing us from using a key interstate expert and extending proceedings thus increasing our barrister time from two days to four.

6 - Ms Monk gave no indication as to whether a substitute representative for the ad-hoc discussions would be automatically agreed to by herself or the panel. She therefore set the residents up in a situation in which they might both petition for inclusion in such discussions - thereby granting them legitimacy - while also leaving open the possibility that any alternative candidate might be rejected.

7 - Any participation by a representative of resident objectors in ongoing discussions would have been, and would be, under protest, as Ms Monk's statements at the end of the hearings appears to have predisposed the PDP to certain outcomes and by its actions appeared to have prejudged its decision. The argument put forward by the residents' barrister was that amendment C76 - the Yarra Council's Smith Street interim controls - should be considered by the panel as an equal part of its brief from the Minister.

8 - We accept that C76 was up for consideration by the panel, and was not in a position of superiority to the application itself. However it has been a position of the resident parties and the Collingwood Action Group that the interim controls were developed in accordance with the relevant government practice note and should be adopted (with a minor revision of the maximum height). Indeed a representative of your department formally participated in their development. The gap between height, bulk and other limits prescribed by C76, and the existing height and bulk of Banco's application are such that any ratification of C76 would effectively demand that Banco's application be rejected in its current form. In such a circumstance, the comments by Ms Monk that the Banco application required no more than a 'tweak' is a clear indication that no serious consideration was being given by the panel to the interim controls, and that the facilitation of the Banco development with minimal changes was the clear aim of post-panel discussions. By no conceivable definition of the term 'tweak' can it be reasonably said that the panel could come back with a recommendation that reconciled a revised Banco development plan with what is proposed under C76.

9 - Now that the revised plans have been delivered in the wake of the ad-hoc redesign process convened by Ms Monk, it is clear that our fears have been borne out. The plans make no more than minimal and cosmetic changes to the existing Banco plans. Given that this course of action was decided upon and announced by the PDP a mere half hour after the hearings had concluded on 5th October 2005, it is therefore clear that the panel had given no serious consideration to the possibility that C76 might be ratified and that it would therefore dictate planning controls that would render the Banco proposal unacceptable in its current form. This announcement reflected the panel's apparent pre-occupation throughout proceedings with arguments about whether interim controls were a good thing and should be allowed at all - the fact that the government introduced provisions for councils to apply for them seemed of no consequence. Similarly, the panel seemed to dismiss the role of interim controls in guiding development while full structure planning is completed.

10 - Given the combination of a) a process which has been contradictory and ad-hoc at root, which has b) denied resident objectors the natural justice established as governing the panel, and c) evidence of pre-disposal to an approval of the Banco application with minimal changes, we have no confidence in this particular panel to deliver fair or reasonable advice regarding Yarra's interim controls and the Banco application.

11 - We have clearly communicated our position with regards to C76 and the Banco application, as part of the PDP process proper. We are willing to recommunicate this position to Ms Monk. Such action should not be taken as any agreement on our part that this process has been fair or reasonable. Further, we would not accept any argument by the Panel that the lack of resident representation in the 'tweaking' process implies either consent to the process or acceptance of the views of others' experts involved in that process.

May we reiterate that the community was genuinely pleased with your decision to call in Banco's planning application and remove it from VCAT. We were prepared to participate in the PDP process in good faith. However we are extremely disappointed and disillusioned by this experience.

Minister, prior to any ruling on the Banco decision, we would request a meeting with you to outline our position regarding the development of this important site. We believe that the public concern around this warrants such a meeting. There were a record 1500 objections to the Banco proposal at council level. In meeting with the public during our Saturday morning leafleting, street rally and community picket training we find a level of community concern and anger about this development that is unparalleled. Given your public statements about the need for community representation in this process and the importance of giving full consideration to Yarra's interim controls, and the fact that the panel has fallen short of this standard, we would strongly hope that you can find time to meet with us directly.

Once again, we thank you for the opportunity to meet with you advisor, and for your public statements highlighting the importance of genuine community consultation and of council structure plans in the management of development.

Yours sincerely
Earl Sakareassen, CAG spokesperson

On behalf of resident parties to PDP represented by David O'Brien, Barrister:
Andrew Brain & Jane Winter, Jenny & Kevin Cato, Andrew Garton, Cliodhna Rae, Laurence Billiet, Julie & David Harris , Dr Pearly Khaw & Dr Trevor Leong , Judy Watson, Ashley Manners, Robyn Zwar , Katarina Blomer, Rachel Antony, Grant McHerron, Desmond Files, Richard Girvan, Caitlin Nicholas, Earl Sakareassen, Warren Giesbers, Janine Baird, Anni Davey, Andrew Plummer, Vicki Evans, Carol Conroy.

cc Richard Wynne, Kay Meadows, Steve Jolly, Jane Monk