NEWS DESK
Hope for Somers appeal from court ruling David Harrison david@mpnews.com.au SHIRE officers are examining a Supreme Court decision that effectively excluded a third of properties from a footpath special charge scheme in Jan Juc because they would not get the required special benefit from the proposed path network. The case could be relevant if the controversial Somers path scheme – which proposes charging properties up to two kilometres from the proposed $1.5 million concrete path – is taken to VCAT, as some Somers residents have threatened. VCAT’s decision-making history could mean the Somers appellants could face a huge legal bill whether they won or lost at the tribunal. They could face an appeal to the Supreme Court if the shire won. Such an appeal can only be made on a point of law. In the Jan Juc case, the Victorian Civil and Administrative Tribunal had originally decided in favour of Jan Juc residents. The Surf Coast Shire then appealed to the Supreme Court.
In a complex technical ruling the higher court found the shire had exceeded its jurisdiction and directed VCAT to revise its original decision. That resulted in 23 of 67 properties not having to pay for the path network. Mornington Peninsula Shire’s chief operating officer Alison Leighton said the shire had for years maintained a watching brief on VCAT decisions concerning special charge schemes. In the Jan Juc case, the initial VCAT decision “was set aside by the Supreme Court and the scheme was then modified by consent – by agreement between the applicants and council,” Ms Leighton said. “The final outcome was not a decision of VCAT per se but rather a negotiated outcome between the parties.” She said it should be noted that VCAT is not a court that follows precedent. “We do review tribunal decisions and assess applicability to Mornington Peninsula Shire schemes,” she said. Surf Coast Shire had in 2009 proposed a “walkability and bike-ability” path network for Jan Juc village, near Torquay. Of 974 submissions
the shire received, 892 eligible property owners objected. A further 54 late opposing submissions were lodged. That left 28 property owners apparently favouring the scheme. The following year an amended path scheme proposing a 40 per cent cut in the original plan was approved. The shire claimed all within the scheme got a special benefit, either direct or indirect. The shire argued in VCAT in 2011 that community safety was a key issue in the path plan, which it said was a benefit to all it encompassed. Tribunal Member Nicholas Hadjigeorgiou said it was incumbent on objectors to establish “that they receive no benefit at all from the proposed scheme” to avoid paying for it. “This is distinct from showing a lesser or marginal benefit. Thus, the bar for this test, to show no benefit, is set relatively high,” he said. Mr Hadjigeorgiou found that a number of objectors did receive no benefit. “While I can understand the council’s wish to include as many properties as possible within the
scheme to minimise the cost per property, the test must be that these properties will receive a ‘special benefit’,” he said. He ruled that the scheme “must fail” because of the number who received no benefit. In the Supreme Court’s Court of Appeal, Justice Emilios Kyrou ordered that VCAT re-hear the case. His main finding was that the VCAT decision could not authorise setting aside the entire special charge scheme. Back at VCAT, responding to the Supreme Court direction, Member Hadjigeorgiou heard further submissions on who should be excluded from the scheme on the ground of no special benefit. He said the parties had consulted during the hearing “and by consent identified a number of applicant properties that would receive no special benefit,” he stated. He ordered that the special charge scheme be “varied accordingly” and dismissed the residents’ appeal. The 23 excluded properties and their owners were specified in his decision.
Objectors ‘no’ to fairway carve-up Stephen Taylor steve@mpnews.com.au NEIGHBOURS of the former Carrington Park Club, Rosebud, met last week to consider their objections to development plans for the site. They believe a proposed subdivision, of greater scale than originally planned, will have a serious impact on the character of their area. Deb and Howard Vorwerk said 29 neighbours met to discuss their concerns before the shire’s deadline for objections expires on 4 March. The 3.27 hectare site in Elizabeth Drive includes the former 75-yearold clubhouse – the once-private residence of the Moran family of Moran and Cato grocery store fame – bought by developer Storemaker Pty Ltd in 2013 for about $2.2 million. The purchase reportedly saved the club from financial ruin but “marked the end of an era” (The News, 22/10/13), and prompted many members to transfer to Eagle Ridge golf course, Rye. It was reported at the time that the developer planned to build “seven or eight houses on the land, which is high up on the Arthurs Seat escarpment overlooking the southern peninsula, Port Phillip, Bass Strait and even the towers of Melbourne on a clear day – a million dollar view”. But new plans for the site have objectors up in arms. Objector Roger
House plans: The former Carrington Park golf course clubhouse could be divided into six dwellings. Picture: Yanni
Vella says the developers want to double the number of blocks to 14, remove vegetation and reduce lot sizes from 1500 square metres to 707 square metres. The plans also seek to have the clubhouse divided into six dwellings and not the original four. “This could lead to 21 blocks being developed which is not in keeping with the original plans and is certainly not in keeping with the character of the area,” Mr Vella said. “We are seeking to protect the integrity and the character of the neighbourhood, including the existing vegetation and habitat corridors.”
The developer’s intentions are spelled out in a notice on display at the club advising of plans to delete the environmental significance overlay, apply a development plan overlay and apply a heritage overlay “to enable the integrated redevelopment and subdivision of the site without further notice to affected persons”. Mr Vella: “If they are successful with this proposal, it means the existing club house will be subdivided into six separate dwellings with an additional third-floor extension creating a threestorey building. “It would mean they could subdivide
THE RYE HOTEL
the remaining land area into 14 separate lots of between 707-999 square metres. This would be 11 more blocks than are possible under the current zoning.” Mr Vorwerk said the original plans for four units in the renovated clubhouse and three blocks of 1500 square metres surrounding it satisfied Green Wedge requirements “and we were OK with that”. “But creating blocks of 707-999 square metres does not recognise the significance of the site or its interaction with the environment.” The club house building is on the
shire’s Heritage Watch list. However, it is not yet recognised under a Heritage Overlay and a review is a couple of months away. The developers want to voluntarily apply a Heritage Overlay. They say the hipped roof and chimneys do not form a significant part of the building and want them demolished. The objectors say the shire’s heritage advisor identifies the hipped roof as greatly contributing to the building’s significance – “as does Dr Tronn Overend, son of the architect, Best Overend”. Mr Vorwerk said blocks on nearby McLaren Ct and Danina Crt were all sub-divided at 2000 metres on average “so they would blend in with the environment”. He said: “We would like development that is appropriate to the site but now they [the developers] just seem to be going for whatever is possible. “While we have serious concerns about the current proposal we would like to encourage development that retains the Carrington Hall original building form, with development being within the current wall and roof lines. “[The new building] should respect the neighbourhood character of the area; have regard for the established landscape and streetscape, and maintain the natural skyline of the ridge and escarpment without adding obtrusive building silhouettes.”
2415 Point Nepean Road, Rye Beach www.ryehotel.com.au | 5985 2277 Southern Peninsula News 23 February 2016
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