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The Story so farOn 29 May 2002 Mr Arch Carswell, the proponent of Amendment C14, lodged planning application YR 2002/806. This application sought planning permission a medical centre, a pharmacy., residential apartments and car parking on the site. Council wrote to submitters to inform them of this application. The correspondence clearly links the permit application and Amendment C14, indeed, submitters were invited to attend a meeting considering how the two applications related. From this time on the following events occurred which is responsible for why Mount Evelyn is now fighting this inappropriate development. On 15 August 2002 notice of planning application YR 2002/806 was given On 28 August 2002, a public information meeting on the proposed amendment and planning application YR 2002/806 was held, presenting a revised Outline Development Plan for the area to be rezoned and the relationship between the rezoning and the permit application; On the 13 September 2002 the Council requested confirmation from the submitters that submissions were maintained; On the 21 October 2002 Con Clavant on behalf of The Ratepayers responded to Council's request and indicated that the submissions were maintained . On 19 November 2002 the Council wrote to Arch Carswell confirming that planning application YR 2002/806 had been withdrawn On 4 December 2002 the Council invited submitters to attend the Planning Committee meeting which would consider Amendment C14. On 10 December 2002 the Planning Committee recommended adopting the amendment without the Design and Development Overlay (DDO 1) on the basis that all objections had been withdrawn and adequate controls existed within the provisions of the Business 1 Zone. The objections were withdrawn only on the condition that if the development changed then the objectors would reserve their rights of objection. On 10 December 2002 the Council passed a resolution to adopt the amendment with changes to delete the Design and Development Overlay On 5 August 2003 a letter was sent to the Minister requesting the adoption of the amendment. On 16 September 2003 the Department of Sustainability and Environment send a letter approving the amendment. 18 September 2003 amendment C14 was published in the Government Gazette and came into force. There are two prominent matters of concern with the process relating to amendment C14: The process prior to the withdrawal of submissions to the amendment; and the basis on which the submissions were withdrawn. The amendment was originally exhibited to include a Design and Development Overlay (DDO 1) to ensure the consistency of any proposed development with the form of development in the 'Outline Development Plan' in the applicant's submission to Council. The removal of the DDO significantly changed the amendment. This allowed any use in accordance with a Business 1 Zone, without any particular control over the form of that development, other than the fact that a permit would be required for building and works. The decision to remove the DDO was not re-exhibited and the submitters or any other person entitled to notice were not given the opportunity to respond to this change. Therefore in accordance with the advice given to Council on 10 December 2002 (see above) the Original Objections were NEVER withdrawn because the Application had changed. As a consequence all parties who had objected originally had their third party rights of appeal extinguished through an ‘administrative error’. 10 December 2002 (Amendment C14) was passed by the Shire of Yarra Ranges(SYR) Council which changed land in Snowball Avenue and Station Street from Residential to Business Zoning with the understanding that a Medical Centre and Pharmacy was to be built on the land. But by the time it was approved by the Minister for Planning on -: 18 September 2003 the nature of the development had ‘changed’ to a new supermarket . MEEPPA along with 7 individuals had agreed to the original development on the understanding and point of law, that if the proposal changed in any way, shape or manner then they would retain their …’third party rights of appeal’..to object to any different or new development. This never happened and is central to the ‘mess’ that has now occurred! The original objections were never withdrawn and this community including MEEPPA will still strive to have the rights of the objectors upheld. March of 2005 MEEPPA calls the First Public Meeting .From a crowd of 400 people only 4 were in favour. It was from this meeting that MEEPPA felt justified in using this as a mandate to further community action against this present and any future Supermarket Development! At the conclusion of the meeting threats of violence are made in public, with many witness’ present, against members of MEEPPA for organising this event.
27 September 2005 SYR Council, after accepting a submission from Mr. Colin Gillam threatening legal action as well as objections from MEEPPA and other individuals, resolved not to reverse (?) the original re-zoning thus not correcting the original ‘mistake’ but to exacerbate it by initiating a DDO (Amendment C 56) that at the time it was thought …’would respond to the urban design and built environment issues and outcomes in the Mt. Evelyn Township Plan..’ 11 March of 2006 through to August 2006 MEEPPA worked closely with the SYR along with other groups and individuals in bringing a Draft DDO to fruition which was subsequently exhibited for public comment and then having it formally adopted by The Minister for Planning. Council had promised the original objectors a Time Line of 6 to 7 months to have the DDO in place to stop this type of inappropriate development. Once again MEEPPA representatives received threats over their involvement in this process. 10 November 2006 – New Application from developer for a Safeway Super Market twice the size was received by Shire Yarra Ranges... 25 November 2006 State Election.MEEPPA had already made this an Election issue but the Liberal aspirant Christine Fyffe said it was a ..’Council Matter’. It wasn’t ! – It had been a STATE Planning matter since late July when it had been authorised by the STATE planning Minister to be put on ‘Public Exhibition’. She appeared to reaffirm this herself on the ‘Jon Faine’ radio show from Lilydale Lake That is why she was invited to be part of the Panel at the Public Meeting on Wednesday 28th. March 2007. 28 November 2006 The But then also on the 28th November 2006 Council resolved that the DDO be referred to an ‘Independent Panel’ to assess it’s justification (?) when it could just as easily been referred straight back to the Minister for Planning for approval? If it wasn’t justified why was it originally initiated? Colin Gillam, at that meeting, was publicly reprimanded by the CEO (SYR) for making the suggestion that our…’local community had been duped and manipulated by Safeway, a greedy Developer …and the local Council…’ MEEPPA had worked assiduously within the Community and with the SYR in good faith to bring this to an acceptable conclusion when in this same week it was announced a new and much larger Safeway Development Application had been lodged with the SYR by the same developer. Of course Council had no choice in accepting this ‘Application’ but at a time when the DDO has been ‘slowed’ down this whole approach now smacked of…” opportunism and contempt for the expressed wishes of the Mount Evelyn Community…”
16 March 2007 Notices are received from Ministry of Planning giving 13 days notice of ‘Independent Panels’ at ‘amended times’ without 21 days clear notice and without the ‘General Order of Hearing’ mentioning MEEPPA or any other community Groups? Instead it is noted that the ‘City of Whittlesea’ takes precedence over any of us?? The DDO is now 12 months ‘old’ and is subject to change or worse still it can be... ‘thrown out’! 28th March 2007 The 31 March 2007 Developer places ‘Development Notices’ on the land to be affected but places wrong dates on Notices for close of objections. Instead of 17/04/07 they state ‘17/03/07’ which led to great confusion in the community. MEEPPA have this changed and an extra week is granted. 24 April 07 A period of only 14 days was initially granted to Objectors to the new Supermarket but because of the ‘error’ on the development notices this was extended. MEEPPA in conjunction with the Mount Evelyn Community Website and some of the Traders manage to help over 100 people write and lodge objections by way of a ‘Crash Community Education’ program. 30 April 1-3 May 2007 The DDO ‘Independent Panels’ convene in Mount Evelyn with many Local Witnesses making submissions. MEEPPA’s concerns that the DDO will be confused with the Latest Application for a new Supermarket are sadly realised. Also the DDO has now been ‘delayed’ for so long that a new Application has slipped in front of it – which is extremely unfair. The DDO is now far behind the new Development Application when it should have already been in place. . The new Development Application does address the DDO and attempts to ..’achieve’.. some of it’s outcomes. But in a twist of irony the Chief Consultants readily state on Page 19 of the Urbis/JHD Report that …’We consider that on the basis of the development proposed, being a large scale supermarket …it would be impossible…to achieve all the design outcomes’ (If the DDO was formalised) …to construct this building! The Application also states that the …’proposed DDO has no formal status’.. But then it does! If the Application is denied by the Council and goes to VCAT then the DDO will be regarded as a ..’Seriously Entertained Proposal’.. for the purposes of their deliberations. In other words this DDO could have stopped it! Why then, we all should fairly ask, was the DDO slowed down in 2006 and why was it then later referred to an Independent Panel when it was already ‘strategically justified’ and approved of at full Council on the 27 September 2005 ? 8 May 2007 The Council unanimously denies the Permit Application after receiving in excess of 145 ‘substantial community objections’…’at the time of writing’ (Council Officer’s report) It should be remembered that at the time the council Report was being prepared for Council that the statutory time for objections was still open and another 37 objections were received. A total of 182 objections in addition to a ‘co-signed’ letter (not a petition) was received by Council. Franc Smith , (President MEEPPA) stated that night …’we stand at Historic Crossroads in the survival of our town as we have known and come to love her. And until tonight some of those signposts have been blurred by a ‘Fog’ of deception. (This way, That Way or in fact ‘No Way) 22 June 2007 The Independent Panel reports back to Council in favour of DDO but changes and amends it by removing or changing approx. 80% of it after some different 29 drafts? How unfair was this after all the time expended on it? MEEPPA insist on 4 ‘re-inclusions’ before it is presented to Council. 17 July 2007 Initial Notification that Urbis are Representing the Developer who has appealed to VCAT Re: Supermarket Application. The Notification process appears deliberately wrong and deceptive showing only one address and does not even mention Mt.Evelyn? There is no ‘Statement of Grounds’ contained in the ‘Notification for Appeal’. The notices are only served on approximately 61 people out of 182 original objectors. From this day all notices served on one party must by law be served on all parties to the Proceedings who have standing. 23 July 2007 MEEPPA’s first formal letter of Complaint to VCAT is ignored and has never been answered. 24 July 2007 The DDO is finally accepted by Council (After Nearly 5 Years of Work) and sent to Ministry of Planning for Approval. It is from this date officially 12 MONTHS BEHIND SCHEDULE for being gazetted and incorporated into the SYR Planning Scheme ? 26 July 2007 VCAT announces an investigation into the ‘Initial Notification Process’. 30 July 2007 Second Letter from Urbis containing their Statement of Grounds ( 6 August 2007 MEEPPA make Formal request under Section 78 of the VCAT ‘Act’ to have the …’matter struck out’… for ‘failing to comply with the rules’ , ‘Attempting to deceive another party’, ‘vexatious conduct’. 14 August 2007 First VCAT Notice of Hearing scheduled for 24 August (dated 10 August) arrives in ‘Express Envelopes’. The letters are now only sent to 39 people? The Hearing is to consider the Notification Process and Service of Documents. It is also a ‘Directions Hearing’. 24 August 2007 First VCAT Hearing . Deputy President Helen Gibson does not consider that any of the unsatisfactory processes are worth considering as points of law and the Community of Mount Evelyn are summarily dismissed! She then proceeded to ask the Developer’s Representatives how long they would require for a ‘Notification Period’ for the…’Amended Plans’ which will now include all of Station Street and 25 to 29 Wray Crt. Clare Worsnop is allowed to make a statement but President of MEEPPA Franc Smith is told repeatedly that …’I have already made an Order’. The only concessions gained by MEEPPA are that an extra 28 days is set aside for objectors to be included who were initially ‘missed out’ and that ..’30 business days be allowed before the Final Hearing’…for the service of the amended plans’… The Final Hearing Date is set as November 12th. and lasting 6 days.
6 September 2007 Confidential Message between Peter Harris (METIC- Mount Evelyn Township Improvement Committee) ) and Franc Smith (MEEPPA) is discussed in the METIC minutes. METIC are unable to take a position on this development and will not commit themselves to assisting the Community in fighting the Proposed Supermarket. 12 September 2007 The Developer  A letter is now served on only 31 people from ‘Mallesons’ representing ‘Woolworths Ltd’ who …’proposes buying the site from Mr. Carswell’.. It is an application to join the proceedings but also asks for an adjournment for a ..’minimum of 12 weeks’.
The letter is designed to confuse, is very misleading and is later described by senior lawyers as ..’disingenuous’.. An application for a Hearing is made for 12 October. 5 October 2007 Notification is received from VCAT for a ‘Hearing’ on 19 October. 19 October 2007 The Hearing is a farce as the Developer sends a ‘secret letter’ of consent which was not served on the other parties to the Proceedings and which substitutes the name Woolworths from the developers. Deputy President Dwyer presides and once again the Community are ‘dismissed’. Woolworths are granted ‘Standing’, the adjournment is agreed to and he then states that he will Reserve his Order for ..’a few days’.. as to whether it should be treated as a new application. This was only designed to ‘clear’ the room of Community people. Franc Smith, President of MEEPPA asks why he was not served a Copy of this ‘Letter of Consent’. There has been NO answer to date ? 24 October 2007 The Community have now been totally disenfranchised by VCAT. 1 November 2007 MEEPPA begin seeking a ‘Judicial Review’ based on unfair process and lack of procedural fairness. The ‘Rally Against Woolworths’ (RAW) begins and preparations are made for a Massive Public Rally on November 24th which will then become ‘Rise Against Woolworths’ and then will enter the new year as ‘Rage Against Woolworths’. 4 November 2007 METIC (Mt. Evelyn Town Improvement Committee) state publicly in the ‘M2’ Newspaper that they ..’cannot take sides’ … and wish to remain neutral in the issue which is strange since their ‘Mission Statement’ says …’We will respond to Community concerns’.. 24 November 2007 28 November 2007 A letter dated ‘November 23rd” from the Minister for Planning Justin Madden is received stating that Amendment C 56 (the ‘DDO’) is imminent and that ..’..”Should the amendment be approved prior to the VCAT Hearing, then it will be considered as part of the planning scheme and must be taken into account in determining the matter”… Intensive lobbying continues. 18 December 2007 Amendment C 56 (‘The DDO’) is finally approved and received by the Council on December 20th. The DDO retains some of it’s most important provisions that has survived approx. 29 drafts and passage through an Independent Panel – most importantly the provision of a maximum height of 8 metres with ..”account to be taken of the visual balance of (Snowball Ave.) through consideration of landscaping, setbacks, and building articulation…” 31 December 2007 The DDO is made public but will not have full authority until it is advertised in the Government Gazette. A new round of intensive lobbying begins immediately to get the DDO Gazetted at the quietest time of the year. 17 January 2008 The DDO is finally Gazetted nearly 6 years after it was ‘dropped off’ the notorious Amendment C 14. and has ..”immediacy in authority”.. which at first is not given a great deal of significance. It is suspected at first that the ‘Amended Plans’ due from Woolworths by February 13th. will be viewed under the Planning Scheme as it was at the time of the Original Application and will still be a ‘Seriously Entertained Proposal’. 28 January 2008 It is now confirmed and realised that the DDO has had ..’full IMMEDIATE authority within the Planning Scheme since it was Gazetted’. …which Woolworths do not take notice of in preparation of their ‘Amended Plans’. This is well and truly confirmed just over a week later when-: 5-8 February 2008 Woolworths serve the ‘Amended Plans’ which are nearly as one third as large again and which exhibits heights of nearly 20 metres! The Plans appear ‘rushed’ and appear unsatisfactory with virtually no detail or clarity that was the subject of the ‘Gibson VCAT Order’ back in August of 2007. Also the same ‘Order’ stated that this Community were to be given ..’30 business days”.. to consider the amended Plans but the VCAT notice states 10 business days only. There is no clarification or explanation. 13-18 February 2008 Legal Counsel for the Council (Maddocks) and IGA (Philips Fox) along with MEEPPA and the Community objectors conclude that the plans are insufficient, unsatisfactory and do not constitute a ..’coherent application before VCAT’.. In addition to that Philips Fox give Woolworths 5 Days to provide the rest of the VCAT Ordered Plans such as Traffic Assessments and Economic Impact Statements etc. otherwise an application will be made for an adjournment at VCAT. In the event that this does not happen Philips Fox now foreshadow Court Action. 18 February 2008 MEEPPA demand Woolworths respond to the provisions of the DDO in their Objections to the Amended Plans. 19 - 20 February 2008 Lists from VCAT naming all objectors are changed within this 24 hour period with the result that MEEPPA '…has been omitted'.. Several other individuals also suffer the same fate but are never reinstated! MEEPPA is ordered not to advertise these names due to Privacy Provisions. This has never been satisfactorily explained to this day and formed part of the complaint to the Ombudsman & the Attorney General? 20 February 2008 The Attorney General announces a overhaul and ‘Audit’ of VCAT. The MEEPPA letter of complaint will finally end up as part of this ‘Audit’ and is referred to Justice Bell …’who will not necessarily answer personally…’ 23 February 2008 MEEPPA confirm that a Fourth Public Meeting will be held on March 12. 25 February 2008 MEEPPA make a formal Submission to the Victorian Ombudsman Re: VCAT citing their lack of ‘Procedural Fairness’ and their lack of ‘Due Process’. 26 February 2008 The Victorian Ombudsman changes his mind and advises MEEPPA ..”his office precludes the Ombudsman from investigating the administrative actions of the VCAT. You may wish to raise your concerns about the operation of the Tribunal with the Attorney General…” MEEPPA now send their complaint back to the Attorney General. 27 February 2008 A Fourth Public Meeting is called by MEEPPA and written invitations are sent to the Premier, the Attorney General, Christine Fyffe (Local MLA) as well as Mr. Michael Luscombe CEO Woolworths Australia. Channel 7 Today Tonight and later Channel 9 film and cover the whole event. They all decline due to parliamentary duties BUT Woolworths after a ‘barrage’ of phone calls, emails ad a personal phone call from the Mayor of the Shire Yarra Ranges – Cr.Tim Heenan decide to send 4 of their National Marketing Strategy Team. 12 March 2008 The Public Meeting is attended by over 350 people with Major representation from the National Marketing Team of Woolworths headed by Clare Buchanan – Woolworth’s Spokesperson who fly from Sydney as well as Council Planning Staff and Cr.Tim Heenan, Mayor of the Shire of Yarra Ranges who sets the tone of the night by tearing strips off the Woolworths Reps. and by asking them who invited them into the town? Franc Smith MEEPPA warns Woolworths …’that this time you’ve chosen the wrong people in the wrong town …’We’re not ‘Johnny-come-lately’s’ to this and when the dozers start rolling over that hill we will be in the Trenches waiting with a Secret Weapon you will have no conception of”..(In Reference to the DDO) A Petitionary Letter is signed by all attendees asking for the ..’abandonment or at very least an adjournment’. …”due to the lack of procedural fairness and denial of Natural Justice in NOT adhering to the ‘Gibson 30 Day Notice’ Order (See 24 August 2007) demanding service of all Notices and Documents – which had been grossly unsatisfactory. 17 March 2008 MEEPPA attempts to have the VCAT Hearing adjourned by direct delegation to the Attorney General to no avail as the complaints that are in front of him will jeopardize and prejudice any fair hearing at VCAT 24 March 2008 MEEPPA enlists the assistance Mr. Johan Scheffer (MLC) Upper House Member Vic. Government who in turn writes a letter to the Attorney General in support of this Community. No local people feel confident enough to ask Ms. Christine Fyffe (MLA) for support. 25 March 2008 The VCAT Hearing begins with quite a Team of Community Representatives Pooling Cars on a daily Basis. The Panel is headed by Deputy President VCAT Mark Dwyer (See Dwyer Order October 2007) with assistance from Mr. C. Harty. Contrary to any other reports MEEPPA represented themselves on the Front Bench and all members had their own personal ‘Standing’. They were NOT given a Mini Bus, paid for their own petrol and where NOT given legal advice. Before the Final Hearing actually begins Franc Smith President of MEEPPA presented the Petitionary Letter from the Public Meeting calling for the abandonment of this Hearing on 15 points of Natural Justice and Procedural Fairness, which was in line with the complaints that were still in front of the Attorney General. He is challenged repeatedly and interrupted. At Law a VCAT hearing should not proceed whilst there are still matters of Law outstanding. After 1hour and 20 minutes a short Recess was called to consider the Petition along with the letter of complaint. MEEPPA are over ruled on every count and the Formal Hearing starts immediately. They are however granted one ‘indulgence’ – One Expert Witness – Angus Witherby (Wakefield Planning). MEEPPA & Community Team Leaders were Franc Smith, Clare Worsnop and Jean Edwards. 27 March 2008 MEEPPA’s First Town Statement regarding inappropriate Planning and Contraventions to the DDO is made by President Franc Smith (‘We do not want an Aircraft Carrier in our Fishing Village’) MEEPPA also request that the DDO be viewed as a ‘Social Impact Planning Document’ as ..’it also contains in form the aspirations and wishes of this community’.. after which he calls Mr. Angus Witherby as an Expert Witness. 28 March 2008 MEEPPAS Second Statement on Environment is made by Clare Worsnop Vice president. 4 April 2008 On the Final Day of the hearing it is generally assumed that the odds against ever ‘winning’ may have improved slightly from 80% Against - 20% for, to 75% against – to 25% for due to two main factors (1) The DDO (2) The efficiency and the ability for this community to work together and present relevant material in their Submissions very rarely repeating what each other said. The Panel retire and it is announced that the decision will take 6 to 8 weeks. 7 May 2008 ‘VICTORY DAY FOR MOUNT EVELYN’ VCAT announce their ‘Historic’ Decision to the Council over 2 weeks before the due date. The decision is NOT to grant a Permit..’The decision of the Responsible Authority (Council) is affirmed’(upheld) and that a ..’Permit application is (not) granted’…WE HAVE WON the so called impossible fight. David slays Goliath. The decision is a ‘shock’ and ‘Today Tonight’ Channel 7 lead their program with it. Mount Evelyn have won the ‘Impossible’ fight on the ‘back’ of the DDO and a Community Fight for empowerment that knows no equal. Franc Smith (MEEPPA) warns though that with …”Great Victories come even greater Responsibilities”.. in reference to what the eventual fate of the undeveloped land will be? 8 May 2008 All Formal Objectors and MEEPPA are officially notified of the decision one year to the date exactly AFTER it was defeated at Council by unanimous vote on May 8 2007. Woolworths are given 28 days to appeal the decision before the Supreme Court. It was expected that they would but most observers believe that the DDO(2) is restrictive enough not to allow for such larger developments. There is general agreement that the DDO has saved the village from this particular development. It is also generally realized that until the land is developed in an appropriate manner (according to DDO Provisions) that the village can never again be lulled into a false sense of security and that vigilance must be maintained. In the following week help is sought in fighting Woolworths developments from Conungra and Mullumbibby, as well as a congratulatory message from Maleny all in Queensland. Thornleigh (NSW) ring foreshadowing a request for help. |
The Reserved Order
