save dimmeys. yarra council special council meeting. minutes

Minutes

Yarra City Council – Special Meeting of Council Minutes – Tuesday 29 November 2011

Special Meeting of Council

Minutes

held on Tuesday 29 November 2011 at 5.15 pm at the Richmond Town Hall

www.yarracity.vic.gov.au

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Yarra City Council – Special Confidential Meeting of Council Minutes – Tuesday 29 November 2011

1. Statement of Recognition of Wurundjeri Land

“Welcome to the City of Yarra. Council acknowledges the Wurundjeri community as the first owners of this country. Today, they are still the custodians of the cultural heritage of this land. Further to this, Council acknowledges there are other Aboriginal and Torres Strait Islander people who have lived, worked and contributed to the cultural heritage of Yarra.”

2. Attendance, apologies and requests for leave of absence

Attendance Councillors

• Cr Alison Clarke (Mayor) • Cr Geoff Barbour • Cr Jackie Fristacky • Cr Josh Funder • Cr Sam Gaylard • Cr Stephen Jolly • Cr Anthony Main • Cr Dale Smedley • Cr Amanda Stone

Council officers

• Andi Diamond (Chief Executive Officer) • Ivan Gilbert (Executive Manager Governance) • Bruce Phillips (Director City Development)

3. Declarations of conflict of interest (Councillors and staff)

Nil 4. Confidential business reports

Ordinary Council Item Page Rec.

Page14.1 Dimmey's Development VCAT Decision - Proposed Supreme Court

Appeal

Note – Council resolved to make this report and resolution public

4 7

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Yarra City Council – Special Confidential Meeting of Council Minutes – Tuesday 29 November 2011

COUNCIL RESOLUTION Moved: Councillor Funder Seconded: Councillor Gaylard 1. That the meeting be closed to members of the public, in accordance with section 89 (2)

of the Local Government Act 1989, to allow consideration of:

(a) matters relating to legal advice. 2. That all information contained within the Confidential Business Reports section of this

agenda and reproduced as Council Minutes be treated as being and remaining strictly confidential in accordance with the provisions of sections 77 and 89 of the Local Government Act 1989 until Council resolves otherwise.

CARRIED

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4.1 Dimmey's Development VCAT Decision - Proposed Supreme Court Appeal

This item is to be considered in closed session in accordance with Section 89 (2) (f) of the Local Government Act 1989, to allow consideration of:

(f) Matters relating to legal advice. Trim Record Number: D11/88351 Responsible Officer: Chief Executive Officer

Purpose 1. To consider and determine on the possibility of appealing the decision of the Victorian

Civil and Administrative Tribunal (VCAT) decision P623/2011, concerning the Dimmey’s site development at 140 – 160 Swan Street, Richmond, to the Supreme Court.

Background 2. This matter has arisen from a Notice of Motion from Cr Main which was to be

considered at the December 20 Council Meeting and stating: “That Council officers deliver an urgent report to Councillors about the possibility of appealing the VCAT decision P623/2001, for the Dimmey’s site, to the Supreme Court.”

3. However, having regard to the statutory time frame available to Council to lodge an appeal at the Supreme Court, the Mayor has in accordance with the Local Government Act 1989 (The Act), called an Urgent Meeting of the Council to determine on the matter.

4. Council following consideration of planning application No. PLN10/0734 on 22 February 2011, resolved to refuse the application on the following grounds:

*The development fails to provide a high quality, architectural response that recognises the landmark status of the site; and does not respond to relevant State Planning Policy Framework objectives at clause 15.01-1 of the Yarra Planning Scheme in relation to urban design principles including height and bulk. *The development fails to respond to Local Planning Policy Framework, particularly clause 22.03 (Landmarks and Tall Structures), and clause 21.05-2 (urban design) of the Yarra Planning Scheme as it will detract from the visual prominence of the Ball Tower of Dimmeys. *The proposed vehicle access will create an unreasonable impact on traffic, car parking and safety within surrounding streets, particularly along Swan Street, Green Street and Byron Street.

5. The permit applicant lodged an appeal to VCAT for reviewing of Council’s determination to refuse the planning permit.

6. On 8 November 2011 VCAT advised Council of its determination to grant a permit. Refer attachment 1 for details.

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Consultation 7. The development proposal and the subsequent planning permit application have been

subject of significant public consultation with community members and groups. There has been notable communication to Council against the development proceeding.

Financial Implications 8. In the event that the Council determines to proceed with a Supreme Court appeal, the

following advice has been provided: (a) it is important to note that should Council win any appeal on a point of law at the

Supreme Court, the matter would simply be remitted back to VCAT for a rehearing. The outcome could be the same determination regarding building form;

(b) estimated legal costs would range between $70,000 and $100,000 based upon a

two day appeal and costs associated with preparation of required documentation, the initiating motion and other research actions and preparation of necessary material for submission to the Supreme Court;

(c) it is a Court requirement to have Barristers presenting at a Supreme Court

appeal; and (d) Supreme Court rulings require that a losing party shall meet the legal costs of

both parties (percentage of costs approximately 60 – 75%).

9. Other financial implications will arise from any substantial legal costs lessening Council’s flexibility in providing financial support to other projects or programs.

Economic Implications 10. There are no specific economic implications.

Sustainability Implications 11. There are no specific sustainability implications relating to this determination.

Social Implications 12. There are no specific social implications with this decision. Human Rights Implications 13. There are no Human Rights or Disability Access and Inclusion implications associated

with this determination.

Council Plan, Strategy and Policy Implications 14. The Council via its determination in February, 2011determined that the proposed

development would not be consistent with its preferred policies relating to the development height and density and the mix of residential and commercial uses. It must be noted that these issues were the crux of Council’s case at VCAT, and which were nonetheless rejected in the VCAT decision.

Legal Implications 15. Key points for Council’s consideration in this matter include:

(a) Council has a 28 day period in which to lodge an appeal to the Supreme Court on

a VCAT determination on a point of law (i.e. by 5 December 2011);

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(b) there would be several days of research and preparation required to complete application material for submission to the Supreme Court;

(c) Council may only pursue a Supreme Court appeal on a point of law. In this regard

it is vitally important that the Council satisfies itself that there is considered ground on which to pursue an appeal process. It is not the planning merits that the Supreme Court would consider but only the point/s of law challenged (refer legal advice attachment No. 2) and in particular paragraphs 6 and 7 on page 3 thereof; and

(d) the Supreme Court process would take two parts: (i) an initial Hearing ‘seeking leave to the Supreme Court, to enable a

determination if there is sufficient substance for a substantive Hearing; and

(ii) if such a position is determined, the formal substantive Hearing will be able to proceed.

Other Issues

16. Having regard to the very restrictive time frame for Council to make a determination on this matter, Council’s legal advisers will be attendance at the meeting to provide any advice and respond to questions from Councillors.

Options

17. Council needs to consider the proposed action together with legal and other relevant advice on the matter: (a) Option 1 – Proceed with a Supreme Court Appeal on a point of law To pursue a Supreme Court appeal as proposed. (b) Option 2 – To Take no further Action To not take any further action.

Conclusion 18. Council needs to carefully consider the information presented at the meeting and

determine its preferred direction.

19. It is the advice of both Council officers and Council’s legal advisors that there are few, if any, grounds for an appeal and that it is highly unlikely that Council would be successful in this matter. Pursuing such action could set a precedent and community expectation of further intervention in this way.

20. In this regard, it is noted that Council has not previously taken action at Supreme Court level in other significant planning matters. Officers advise Council against such action in this matter as there are no meaningful grounds to lodge this appeal.

21. Furthermore, if Council did appeal at the Supreme Court and won the substantive case on a point of law, the case is only remitted back to VCAT for a rehearing. In that scenario, the VCAT decision could be the same regarding the planning merits of the case, including building height and built form.

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RECOMMENDATION That Council, having considered: (a) the notice of motion as presented; and (b) detailed legal advice on the subject; determine its preferred action. COUNCIL RESOLUTION 1 Moved: Councillor Main Seconded: Councillor Jolly 1. That in the matter of a proposal to appeal the Victorian Civil Administration Tribunal

(VCAT) determination on the Dimmey’s Swan Street site development to the Supreme Court, Council:

(a) notes the report and legal advice provided to this meeting; (b) notes the legal advice that there are few if any grounds for an appeal and Council

is highly unlikely to be successful in a Supreme Court appeal; (c) notes that if Council did appeal to the Supreme Court and won the substantive

case on a point of law, the case is then only remitted back to VCAT for a rehearing, in which scenario, the VCAT decision could be the same regarding the planning merits of the case, including building height and form;

(d) sets aside, the sum of up to $20,000 to offer support and assistance in kind, to

the Save Dimmey’s campaign, and in overall support to the running of a community campaign;

(e). advise all parties of its previous unanimous determination to oppose the issue of

a planning permit for this development and to support the Save Dimmey’s campaign;

(f) notes the advice on highly unlikely success of an appeal in this matter; (g) determine not to pursue a Supreme Court challenge to the VCAT determination; (h) provide appropriate access to the legal advice to the Save Dimmey’s campaign

parties; and (i) re-launch the proper consultation process on the Swan Street Structure Plan.

CARRIED

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COUNCIL RESOLUTION 2 Moved: Councillor Main Seconded: Councillor Funder That Council determine to make public, the resolution as carried, together with the Officer’s Report on Agenda Item No 4.1.

CARRIED

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Conclusion The meeting concluded at 6.33pm.

Confirmed this 20th day of December 2011

Mayor

.

save dimmeys. yarra council special council meeting. minutes

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