UPDATE: Helen Van Den Berg took the Council’s decision to VCAT and, with the assistance of Melbourne Water, won the case. The Council decision has been set aside.
Post from 2018 below …
Most items on last week’s Council agenda passed unanimously, and without controversy, but there was one issue that caused quite a stir.
You may recall that on 18 September, the applicant for 47 Fisher Parade spoke at Council’s public forum about his proposal for a property on the Maribyrnong River.
Council officers recommended that his planning application be refused because a previous permit for the design had expired, and new policies protecting the river have increased. The design now encroaches into a Public Acquisition Overlay in a way that is unacceptable under planning policies.
The PAO was in place at the time the current owners purchased the land.
However, rather than accepting the officers’ refusal, councillors requested the motion be brought to Council for a decision.
Cr Marshall moved a long motion in support of the permit that included a condition for the ground level to be removed and shifted out of the PAO. Cr Cusack seconded.
The motion included:
“a) All sections of Dwelling 3 at the lower level, including the pool and the open deck, are to be set back outside of the Public Acquisition Overlay (PAO2), with associated internal changes;”.
Cr Marshall said she was glad to see the greater appreciation of the river, but that the permit has been approved previously and she was comfortable with the conditions in the permit to require a set back and ongoing conversations with Melbourne Water.
“At least by having the ground floor set back – we have that option.”
Cr Marshall said that the permit was approved twice previously, and that she spent time contemplating developments on Fisher Pde – “always losing in VCAT – in relation to developments Council has tried to say no to.”
“VCAT has said very clearly that the existing built form that is down at Fisher Pde is OK. No one can dispute that,” Cr Marshall said at the Council meeting.
The image below shows the extent of the proposal extending beyond the PAO (the right hand line on the diagram).
Cr Cusack supported Cr Marshall’s motion on the basis that the permit had previously been given an OK. He said there are new provisions regarding the river and from Melbourne Water. “These are important considerations in the whole life of the river.” But that previous developments have not complied with these new requirements.
Cr Byrne, however, was not happy about the way the matter was being decided. She queried the assertion that the application been approved twice. Officers said the permit was approved once at council, the applicant sought an extension and this was granted. Officers don’t consider that a second approval.
Cr Byrne also asked about the loss at VCAT. The answer given was that the application was determined, the first time in 2012, under delegation at Council. The application was challenged at VCAT by Melbourne Water and a mediated outcome was resolved between Melbourne Water and the applicant in 2013.
Cr Byrne said the applicant had been advised that the permit applicant had been told a new permit would need to comply with the changes to the PAO and other requirements. She said there are plans for a path along the river and that the development will impact on the creation of a new path. (Other councillors muttered “there’s no path”.)
Cr Byrne said decisions must be made on current planning controls, and that she cannot support the alternative motion due to the impact on the river. She said the changes in planning policy have been the result of significant advocacy efforts from Council.
Cr Byrne then referred to a decision in October 2017 for 7 Fisher Parade which was refused (moved by Crs Marshall and Cusack) based on …
And at that point, she was interrupted by Cr Marshall … “We did lose,” Cr Marshall said.
Cr Byrne asked for clarification. The officer said there was a mediated outcome and Council did not lose.
Cr Marshall said “Did we win? No.”
The Mayor asked “Did we win?” as a point of clarification. The officer repeated that it was a mediated outcome.
There seemed to be some confusion here. It wasn’t entirely clear whether the councillors and the officers were all talking about the same VCAT decisions. Councillors were talking about 7 Fisher Parade, and it’s possible the officers were talking about the previous decision for 47 Fisher Parade.
In any case, in a report to Council for 7 Fisher Pde on 10 October 2017, officers recommended approval, Councillor refused, and new plans were approved at VCAT with the development keeping clear of the PAO as outlined above. The decision is here. The Council report is here.
Council’s refusal for 7 Fisher Parade was overturned, but VCAT ruled that: “The substituted plans show the development keeping clear of the Public Acquisition Overlay by reducing the footprint of the ground floor …” “The amended design shows the next floor up (ground floor footprint and balcony) pulled away from the overlay so that no new structure will encroach on this overlay.”
“It also makes sense that there is a band of public parkland along the river as intended by the overlay. On this basis, I take the conservative approach that the land affected by PAO should remain as undeveloped as possible. There will be a permit condition requiring the proposed replacement of windows within the PAO to be deleted and the existing windows to remain.”
So it’s fairly clear that VCAT has taken the view that “land affected by PAO should remain as undeveloped as possible”.
Back to the debate in the chamber, where Cr Byrne said there was a unanimous decision 12 months ago, for 7 Fisher Parade, contrary to the motion now before council.
She said the current application will lead to an overhang of 6m into the PAO. “I don’t think it is unreasonable to ask the applicant to develop a smaller dwelling.”
She said she will be doing her best to protect the river – in line with the rejection by officers and Melbourne Water. She was applauded by some of the audience members.
Cr Sharpe says said rejecting this application would not support the health of the river and that the amendment to the motion reflects the intention of the PAO.
Cr Gauci Maurici said the permit was previously approved and that other properties encroach on the PAO. She said she didn’t understand the way the line of the PAO works and valued a compromise solution.
Cr Lawrence then suggested an amendment to reduce the 5.76m cantilever encroaching into the PAO to three metres of cantilever.
Cr Byrne said she was confused about the cantilever – can someone have a picnic on the land beneath it (if it were acquired per the PAO)?
Cr Cusack says he would prefer to see any cantilever being properly designed rather than a distance in a motion. “It is not ever going to be a pristine return to the Maribyrnong River type of environment”.
With the amendment passed, it looked like the motion had clear passage through Council, but not before some unbecoming banter on the floor of the chamber where meeting procedures were (yet again) disregarded.
The meeting procedures are very clear that if an “amendment is carried and becomes the substantive motion, the mover of the original motion has no right of reply”.
However, in this meeting,Cr Marshall asked for the Mayor to exercise discretion to give her a right of reply. Cr Byrne questioned whether Cr Marshall had a right of reply given it was an amended motion.
I cannot see any rule in the meeting procedures that give the Chairperson discretion to disregard the rule about right of reply. The Chairperson has discretion with respect to some aspects of meeting procedures, but not this.
The Mayor explained he didn’t want to be seen to be gagging anyone. Cr Byrne asked for the meeting procedures to be complied with.
“So you want me to gag Cr Marshall? Is that what you want me to do,” asked the Mayor.
“No I just want you to go with what is in the meeting procedures,” said Cr Byrne.
“I’m happy to let her talk,” said the Mayor.
“Thank you for exercising your discretion,” said Cr Marshall.
“Sorry, the Director is trying to speak,” said Cr Byrne.
“I’m chairing the meeting, not the Director,” countered the Mayor. “So I’m giving Cr Marshall discretion to close the meeting … everyone has a right … to talk.”
“Even though it’s against the meeting procedures. That’s fine,” said Cr Byrne.
“Who’s chairing the meeting,” whispered Cr Marshall.
“I’m chairing the meeting,” said the Mayor.
“You are indeed,” affirmed Cr Marshall. “And it is appreciated because … um … I acknowledge we are all trying to do our best.”
“We are trying to look at what is an appropriate outcome. It feels like people are looking at this as one property … ignoring what has gone on north and south… the ship has long sailed down the Maribyrnong.”
“How is it going to be detrimental to the health of the river?” she asked. “To try and pretend that this is something other than what is it … you’re justing kidding yourselves. Some of the comments tonight have shown a lack of understanding about how the PAO will work…” “We are not going to have a path that goes along and then all of a sudden veers up…”
“For years nothing has been done about the PAO. I’m sick of talking about it … ”
And with that – that decision was made: to allow a permit for a dwelling with balconies that overhang a Public Acquisition Overlay against the advice of Council officers, Melbourne Water and a previous VCAT decision.
Hopefully Melbourne Water will contest this at VCAT so there can be ongoing clarity around the priority of Public Acquisition Overlays along the waterways in Moonee Valley.
The VCAT member says:
“I find the proposal to be unacceptable. The Maribyrnong River is a waterway and open space corridor of strategic importance and I consider the siting and design of the proposed development to this sensitive river interface to be unsatisfactory. For the reasons that are outlined below, no permit is to issue.”
“The critical failing of the development is the interface to the Maribyrnong River and the setback from land in the PAO that is reserved for future public open space.
“Albeit poorly worded, condition 1(b) in the Notice of Decision would essentially allow the two upper levels of the development to project 3 metres beyond the boundary of the PAO.
“Whilst I acknowledge that the increased setback of the two upper levels from the River, from around 14.5 metres to 17.5 metres, improves the interface of the development to the River, I do not consider such a significant and substantial projection across an area of land that is reserved for future public open space is acceptable. It is a poor response to the Maribyrnong River and contrary to the positive interface sought by the planning scheme as part of protecting and enhancing the waterway corridor. This is especially so given that the enlargement of the open space corridor along the Maribyrnong River is identified as a critical issue in both the planning scheme, the Concept Plan and the Guidelines.
“The projection of the upper storeys will affect the planting and growth of trees and represents an inappropriate interface to an area that is reserved for future public open space.
“The two upper levels extend approximately 9.7 metres across the site and with an overall height of approximately 9.5 metres above natural ground level, will present as a significant projection over the future public open space area. The upper levels will overwhelm the area reserved for future public open space.
“This is an especially unsatisfactory design response given the subject land is large enough to achieve deeper setbacks to protect and enhance the visual character of this future public open space corridor along the River, rather than compromising it.
“Finally, the purpose of reserving this land is not simply the creation of a narrow path. As stated in the Schedule to the PAO, it is for ‘public park and recreation’ which broadly covers parklands, landscaping, walking paths and cycling trails. The planning scheme explicitly encourages public open spaces along the River to be maximised, not minimised.
Thanks so much Helen Van Den Berg for fighting this!