VCAT out of reach of locals
By Shane Scanlan
CBD locals are despondent that serious financial risk has prevented them from challenging a controversial City of Melbourne planning decision late last year.
Maureen Capp and other Regency Towers residents wanted to challenge the council’s decision on November 22 to grant a permit to Brady Jones Pty Ltd for a 60 metre hotel in Little Lonsdale St.
Specialist planning barrister Tom Pikusa assessed the residents’ chances at 50:50 to win at the Victorian Civil and Administrative Tribunal (VCAT) but warned they could be up for more than $70,000 if they lost.
Mr Pikusa said the developer would likely spend that amount on a legal team and the residents would pay if they lost.
He said parties generally funded their own cases at VCAT but, in the Capital City Zone and in cases where council decisions are challenged, it was usual to award costs against the losers.
Ms Capp said: “Residents in the Capital City Zone are held to ransom by developers who can bluff their way through with their expensive legal teams, because VCAT can direct residents to pay the legal costs of the developer should they lose the case.”
“Has the world gone mad? VCAT was never intended to be a costly legal option, rather a low cost judicial option for ordinary citizens to have an avenue for dispute resolution.”
The VCAT website says: “VCAT is less formal than a court. In most cases, you do not need a lawyer or professional representative.”
Ms Capp said: “As long as developers with unlimited funds employ their expensive QCs and legal teams, they will win every time against residents who are not risk takers, who are not equipped to meet such a financial challenge, and who are not prepared to loose sleepless nights knowing that, firstly this could be a costly bluff on the part of the developer, and secondly that the very clear message from VCAT’s history is that the decision usually comes down on the side of the developer.”
The residents believe council planners were wrong to grant the developer a “secondary consent” amendment after an earlier permit for an adjoining site had expired.
At the November 22 Future Melbourne Committee meeting the council’s planning practice leader Jane Birmingham agreed that it was not possible to approve such an amendment after a permit had expired.
But, she said, the permit was considered active because work had started on the site.
Residents are furious that council officers did not actually inspect the extent of the work on the site and allege that the removal of three brick window sills was the extent of the demolition work.
Ms Birmingham said: “The question is not one of whether substantial progress has been made, it is a question of whether works have commenced under the planning permit and the bar is not set particularly high.”
“The works, in terms of removing the window sills and the internal works, although it’s not a substantial amount of works, is considered to constitute commencement under that planning permit.”
“There are a number of VCAT cases on this matter and most conclude that you don’t have to have done a substantial amount of work for the permit to be considered acted upon,” she said.
Adding insult to injury for the residents was that councillors did not debate the issue because five of the 10 present declared a conflict and left the chamber causing a loss of quorum.
The Lord Mayor Robert Doyle, Deputy Lord Mayor Arron Wood and Cr Kevin Louey excused themselves because they received campaign donations from a “partner of the owner” in 2012.
Cr Philip Le Liu declared a “residential amenity” conflict and Cr Jackie Watts left the room because she received $500 from election running mate Michael Kennedy who lives opposite the site.
Acting director city operations Linda Weatherson announced to the meeting that she would decide the matter under delegation in accordance with the planning officers’ recommendations.
Ms Capp called the situation a farce and questioned on who’s behalf council officers were working. She said the developer would not have been granted such a big development had the council officers not granted the secondary consent.
She said this was because a new application would have to have been considered until stricter new planning controls.