Today we sent a letter to VCAT requesting direction on a few matters:
- Despite being ordered by VCAT, the developer has not explained the cost estimates to justify the matter being eligible for the VCAT Major Case List. We have requested the matter be decided upon.
- Despite during the Direction heading the applicant informing VCAT/Council/Residents they would not be submitting amended plans, the developer has now requested Council and Residents accept an adjournment to submit amended plans to consider the ‘Council’s feedback’ (the permit refusal report). We explain that residents are not in a position to properly consider an adjournment until the Major Case List eligibility criteria situation is decided upon.
- And because the developer did not take the path of responding to the Councils permit refusal report with another more amenable Planning Application to Council, and instead defaulted directly to VCAT, only later to request an adjournment to consider the Councils feedback; we request of VCAT the developers case be dismissed entirely as the developer is using an inappropriate forum to achieve planning permission.
A copy of the letter below…
VCAT
Registrar, Administrative Division
GPO Box 5408
Melbourne, VlC 3001
By e-mail: vcat-admin@justice.vic.gov.au
Dear Sirs,
VCAT: P27/2012 – 6 PAlNE STREET, NEWPORT, 3015
I confirm that I am one off our Resident Objector representatives and Deputy President Dwyer made a representative order at the Directions Hearing on 6 February 2012 that I be included.
We refer to the above matter and, in particular to the Applicant’s adjournment request dated February 2012.
The Applicant has requested an adjournment of the Hearing scheduled for 11 April 2012 in order, as we understand it, to provide amended plans which address all of the matters raised by the Council in their response to the Applicant’s Permit application.
The Residents are extremely concerned about this apparent breach of the Guidelines governing the Major Cases List and outline our specific concerns below;
- The Applicant lodged the permit application with the Council on 7 September 2011.
- On 8 December 2011, the Council rejected the Applicant’s permit application and at the same time provided a comprehensive response outlining the various amendments that the Council required.
- Notwithstanding the fact that the Applicant was aware of Council’s requirements, the Applicant waited until the reintroduction of the VCAT Major Cases List and then immediately lodged this Application with VCAT with the same plans as lodged with Council.
- A Directions Hearing took place before Deputy President Gibson on 6 February 2012. Amongst the orders made by the Deputy President on that day were, inter alia, an order dispensing with Mediation and an order that the Applicant provide VCAT and the parties with evidence supporting the estimated value of the development and explaining why the cost of the development had increased in the period between the lodging of the permit application with the Council on 7 September 2011 and the lodging of the application with VCAT on 3 January 2012. As can be seen from the e-mail sent by the residents on 1 March 2012, to date, the Applicant has not provided such evidence. The Major Cases List clearly outlines the quantum parameters for inclusion in the list. In the case of this particular development, the construction costs, excluding holding costs, professional fees and contingencies must be $10 million or more. The estimated cost of the development at permit application stage was $9.5 Million. This increased to $12.1 Million some three weeks later (between 8 December 2011 and 3 January 2012). The Applicant provided a letter from Cost Control (Victoria) Pty Ltd (“CC”) dated the 15 February 2012 which states that CC generally agrees with the Developer’s costs assessment of $11,352,055. It should be noted that this is yet another version of the cost of the construction and not sworn evidence of the cost as directed by VCAT. The Residents consider that unless, or until, the Applicant complies with the guidelines and can demonstrate that the Application was properly commenced in the Major Cases List, it is premature to even be considering an adjournment request.
- Further, at the Directions Hearing held on 6 February 2012, in response to a question from the Deputy President about amended plans, the Applicant’s lawyer advised that the Applicant had no plans at that time to serve amended plans. Considering that the Applicant had been in possession of Council’s detailed response for over 8 weeks at that time, then what has changed now to cause the Applicant to want to provide amended plans?
The Residents submit that, rather than considering the Applicant’s application, VCAT should, instead, order that the Application be dismissed and referred to council as a new planning application (Section 77 More Appropriate Forum, VCAT Act).
Should you wish to discuss any of the above please contact myself or any other of the Resident Objector representatives, Darren Williams, Anthony Simmons or Alison Terry.
Yours Faithfully
Melissa Gojak