Posted 20/11/10 

 

A Perfect Example Of Why Victoria's Planning System Puts Justice Out Of Reach

 

 

Why PPL VIC and YRAA Decided NOT to Appeal to the Supreme Court Re Honeywell Site, Abbotsford

 

Joint Statement by Julianne Bell Secretary Protectors of Public Lands Victoria Inc. and Catherine Santo President Yarra River Action Alliance Inc.17 November 2010

 

 

The Protectors of Public Lands Victoria Inc. [PPL] and the Yarra River Action Alliance Inc. [YRAA] have been considering appealing to the Supreme Court about the Victorian Civil and Administrative Tribunal (VCAT) decision to approve the Honeywell Site development.  We have consulted a leading barrister, a QC, for his advice plus our barrister.

 

We were already placed at a great disadvantage by VCAT where we appealed the decision made by Yarra Council to issue a planning permit for the development of the Honeywell site.  VCAT did not advise us for 2 weeks after making the decision to disallow our appeal and we found out by accident. The decision was made on the 21 October 2010 but we did not receive VCAT’s formal advice until 3 November 2010.   The clock started ticking on 21 October 2010 and we have had 28 days in which to appeal to the Supreme Court. We had until tomorrow 18 November 2010 to decide i.e. we ended up having under 2 weeks to decide.

 

Also we already have been placed at a disadvantage as it cost us $90,000 to appeal to VCAT. This is normally out of reach of community groups and only in the league of big business. It is absurd that the motto of VCAT is “modern, low cost, accessible civil justice”.  We are of the opinion that VCAT favours big business and the development industry; it is not the Peoples’ Tribunal.

 

The appeal to the Supreme Court needs to be on an error in law. To embark on an appeal is to take on a long and complex process through the courts for which we do not have the stamina (especially following an appeal to VCAT.)   We would have to engage a barrister and solicitor to work on the case for possibly a succession of court hearings. The appeal is heard in the Supreme Court.  To initiate the appeal, you have to prepare a summons, notice of motion, affidavit and draft grounds of appeal.  The first step in an appeal is obtaining leave of the court that there are errors in the decision.  After that, the Court will hear the substantive appeal and then, if successful, the Court will refer the matter back to VCAT.  VCAT will list a further hearing after which it will make a further decision based on the Court's ruling.  The Tribunal's practice is that any hearing listed as a result of an appeal to the Supreme Court will be heard by different Tribunal members.  So, in conclusion, the case ends up in VCAT but the Tribunal – even with different members - might make the same decision.

 

Our barristers thought that we had justifiable grounds for an appeal to the Supreme Court – there were however several problems.

  1. The Design Development Overlay 4 for the Victoria Street East Precinct drawn up by the Yarra Council limits height of any development on the site to 6 storeys and setback river to a minimum 10 ideally 20 metres. BUT The VCAT Tribunal decided that the height limit was not binding, just a guideline.  It was considered “discretionary” not “mandatory”.  
  2.  We argued that neighbourhood character was important BUT the Tribunal considered the impact of the State Government’s population and planning blueprint “Melbourne @ 5 million”  which means that the site is in a Major Activity Centre [MAC] and therefore it was not necessary for the Tribunal (its members said) to consider neighbourhood character.
  3.  The Aboriginal Cultural Heritage Management Plan.  Our expert witness Dr Nigel Lewis said that the original surface of the site under the land fill had NOT been disturbed and therefore a CHMP was required. (This is a requirement of Aboriginal heritage legislation.)  The Tribunal accepted the developer’s evidence to say that the land had been disturbed and therefore a CHMP was NOT required. We are appalled that the possibility of finding important Aboriginal heritage was rejected in a peremptory manner.  There was a small exception. An area of Crown Land in the area on the river bank near the pontoon and steps will be required to have CHMP drawn up.

 

It was clear from the VCAT decision that anything goes if the site is in or near a MAC. Everything important for Melbourne’s liveability has been discarded in relation to this development - neighbourhood character, heritage, residential amenity and environmental protection of the Yarra.

 

Our groups cannot afford to appeal to the Supreme Court as the costs are prohibitive. The Supreme Court is a “cost jurisdiction” - if you lose you pay other parties’ costs. The Respondents to the appeal would be the developer and the Council.  Based on an estimate of four days of preparation and a one to two day hearing, our costs would be $50,000 to $100,000. We would incur costs of disbursements of approximately $20,000 related largely to the preparation of transcript and court fees. If we lose the case, the costs “exposure” of an appeal mean that the other parties’ costs could be in the order of $200,000 in total (about $100,000 each for the developer and the Yarra Council).  The amount of total costs if we lose is around $320,000.

 

If one adds this expense to our original VCAT appeal costs the total comes to over $400,000. 

 

Hence a decision was made by PPL VIC and YRAA NOT to appeal to the Supreme Court. 

 

This note might be might be useful to those groups considering appealing a VCAT decision in the Supreme Court.

 

 

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