Archive:   Development Plan Overlays

Last Updated  6/9/07

Terrible Report Card For Macedon Ranges Council As VCAT Awards $4,500 Costs Against It

(9/4/07 - P)  A reasonable Council wouldn't have done it, says VCAT.  Council comes a cropper and cops a caning - fundamental errors become yet another cost to this community.

Sloppy, stupid, stubborn - those are the messages between the lines of the VCAT decisions (P2263/06 & P2434/06) that ultimately saw Council have costs awarded against it earlier this year.  It happened this way...  Someone at Council made the extraordinary decision to say the Gisborne Outline Development Plan, a piece of purely STRATEGIC planning work, satisfied the STATUTORY requirements of the Development Plan Overlay (which stipulates that there must be an approved development plan before permits can be approved for land affected by the DPO).  Council was warned it was making a monumental mistake but pushed on regardless, saying the ODP was good enough for it to issue a permit for a 12 lot subdivision at 147 - 159 Aitken Street Gisborne.  VCAT said, not on your nelly, and took the permit away.  It's rare for VCAT to award costs, but VCAT member Philip Martin's exasperation with Council is unambiguous (and the language unusually blunt) in these extracts from the 20th February 2007 VCAT order for costs.  No doubt many Macedon Ranges' resident will mutter 'been there, done that' as they empathise with the member's frustration...

"19    In these circumstances, I consider that "clear warning bells" should have been ringing with Council, and I would have expected a reasonable Council to have obtained legal advice from its specialist lawyers on this whole issue.

22    In summary, I consider that Council took a reckless and cavalier approach in failing to come to terms with the clear and repeated warnings from Mr and Mrs Woolley that there was a major due process problem with Council’s support for the subdivision process vis-a-viz the procedural requirements of the DPO.  I also consider that it does not make the Tribunal’s task any easier when Council fails to meet a very sensible request by the Woolleys that the relevant Council minutes be tabled at the hearing before me.  In my view, if Council had properly investigated the situation in the period after the lodging of the Application for Review (and had properly responded to the abovementioned correspondence from the Woolleys), the correct status of the Gisborne Outline Development Plan would have been clarified at an earlier stage and the 23 November hearing could have been avoided.

23    Relying on my findings above that the Council acted in a reckless and cavalier manner, and that the 23 November 2006 hearing might otherwise have been avoided, these findings weigh very heavily against Council in relation to:

• the “relative strengths of the claims made by each of the parties” under Section 109(3)(c) of the VCAT Act 1998; and

• the factor under Clause 109(3)(b) of whether a party has been responsible for prolonging the proceeding unreasonably and I am satisfied that this conduct by Council accordingly justifies some form of costs order being made against Council. 

24     This conclusion is reinforced by the fact that when Maddocks solicitors on behalf of Council did provide me with its 8 December 2006 opinion on the status of the document endorsed by Council on 13 September 2006, Maddocks (quite properly) did not even attempt to justify this situation as meeting the requirements of the ODP [sic].  Could the correct position have been any clearer?"

MRRA Says:

NB  We are told The Telegraph was provided with information but didn't take up the opportunity to publish a story on this case.  We hope the Tele changes its mind...

Residents Lose Rights To Notice, Object and Appeal As Minister for Planning Today Signs Off On Amendment C39:  Rights to Know Now Squashed For All Development Applications In Residential Zones Where Development Plan Overlays Apply

(23/11/06 - P)  According to VCAT, Development Plan Overlays extinguish all residents' rights, and now, thanks to C39, DPOs are over 5 of 6 of our main towns: Gisborne, Kyneton, Riddells Creek, Romsey, Woodend.  Council alone will make decisions - and with Macedon Ranges Council, that could mean developers can basically do what they want, and we can't have any say in it.

We were expecting this to happen, and it finally has.  This Amendment has been sitting with the Department of Sustainability and Environment for over a year; it was approved today (23/11/06).

The alarm bells really started ringing on C39 after VCAT's emphatic decision on the Gisborne Call Centre earlier this month.  VCAT pronounced that, once a Development Plan Overlay is applied to land, nobody has any right to be notified of any development applications, or to object, or take any application to VCAT.

With Minister Rob Hulls' approval today of Amendment C39, from now on no resident has any rights to know, comment or contest any development application in a residential zone, where the Development Plan Overlay is applied, in Gisborne, Kyneton, Riddells Creek, Romsey or Woodend.  Note: The DPO has been in place in Gisborne for 2 years, but Council has interpreted the DPO provisions as not always excluding residents from the process.  Everything has changed with VCAT's decision that no-one has rights.  This means residents have no rights on any further applications for 1000 (or even 2) lots on land where a DPO applies.

MRRA Says:

Macedon Ranges just got a lot closer to oblivion. Immediate action - IMMEDIATE ACTION - must be taken by the Minister for Planning to change the State-level DPO provisions so that residents retain their rights to notice, objection and appeal (a) when there is no development plan (as is required by the Development Plan Overlay), and (b) where applications aren't in accord with approved development plans.

Send an email, demanding immediate action, to Planning Minister Rob Hulls NOW! 

Click rob.hulls@parliament.vic.gov.au