Hansard debates

                                   Responses

  Mr  MACLELLAN (Minister for  Planning) -- The  honourable  member for  Malvern
raised the matter of a property at 423 Punt Road, South Yarra. The facts which I
bring to the house's attention and to his attention are that on 16 February this
year,  the Melbourne City Council at the urging of a builder,  DGB  Developments
Pty Ltd,  asked me  as minister  to approve an amendment to the planning  height
controls applying to that site -- they sought my agreement  to do it without any
exhibition  -- to accommodate a 46-unit development which  was 1.29 metres above
the permitted planning height limit of 9 metres.
On 28 February the Director of Planning, at my  request, approached and notified
the owners of the abutting property, Park Lane Manor, its  residents  being  the
most obvious people who would be affected by any change to the height of the new
building.

I was not prepared to agree it without  exhibition or  at least contacting those
most likely to be affected.
On 29 March  I  looked at the amendment that had  been  suggested  to me and the
submissions made by various owners of the properties  next  door  who  would  be
affected.  I  asked  that  there be a meeting between myself, the developer, the
council and those who  had responded to the notice of intention to consider such
an  amendment.  I arranged that such  a meeting would take place  on 13 April at
Parliament House where all parties could come and discuss the matter with me.
A director of the company  building the project, a Mr  Bryan Roberts, asked if I
would arrange for  an urgent meeting earlier than 13 April. Therefore, I met him
on the morning of  6 April. Although the meeting  had been arranged for 13 April
when everybody was going to come, the builder asked for an urgent meeting.

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On the  morning  of 6 April I  was  advised that unless an  amendment  was made,
approved  and  gazetted  by midnight on 6 April, contracts  that  were  due  for
settlement on 7 April would be cancelled, deposits would have to be refunded and
the whole development would be brought to a shambles.
I was left in the difficult position where, although a  meeting was arranged for
13 April, it was going  to be a  disaster as of  midnight of the  6th. I was not
prepared to pursue the matter with the builder, Mr Roberts, in the absence of at
least somebody representing the other side of the argument.  I  arranged that he
should return later that  day after contacting  Mr Harland, who was  objectively
the most seriously affected resident of the next-door property.

I want to express my gratitude  to Mr  Harland for  making himself  available at
short notice, coming  in and seeing me and  giving me the benefit of  his advice
and, I might add, for the way he  conducted himself as a person  who had, as the
honourable member said, lost a  considerable amenity in his property because the
wall  right opposite  his windows  was  now to  be 1.29  metres higher  than the
planning scheme allowed.
I  explained  the dilemma: that if I did  the  amendment  I could be seen to  be
countenancing an  improper building action. However,  if I refused  an amendment
there would be chaos next door, contracts rescinded, deposits returned, 46 units
potentially unoccupied and  the  obvious possibility of  a serious legal  action
being taken between various parties associated with the development.
After some agonising and  careful consideration, at about 6.30 p.m. on 6 April I
agreed to amend the planning scheme to accommodate the extra height.

But, I  made the approval  conditional  on the proprietor,  DGB Developments Pty
Ltd,  undertaking to pay $150 000 to the department. At that hour of night I had
nobody  other than  departmental officers  to assist me in trying  to come  to a
decision  about  whether  $150  000  was the appropriate figure. I  was  in  the
position of being prosecutor, judge, jury and appeal court all in one!
  Honourable members interjecting.

  Mr  MACLELLAN -- I  imagine  that honourable members  interjecting would fight
tooth  and nail to be in  a similar position, although  when they got there they
might realise how difficult it is!
  Mr Finn -- They wouldn't know what to do for a start!


  Mr MACLELLAN  - The  director of the  company, Mr  Roberts, agreed  to put  in
writing  on behalf  of the  company its willingness to make the payment. I might
add the loaded gun  was at their head; if they  had not done so there  would not
have been an amendment.
They did so under protest, and I acknowledged that. An undertaking was signed by
the  director,  with  the  approval  of  a fellow director, Mr Donald Brown. The
arrangement was that for cash flow purposes  payment  would  be  made within 120
days. They  were told by officers that in the event that payment was not made it
would be my intention as minister to consider the cancellation of the  amendment
I had agreed to under those  circumstances and that I would  give 14 days notice
of doing so.
I approved  amendment L175  on 6 April. It was gazetted in a special  Government
Gazette before midnight on that day.

I  therefore presume the purchasers of  the  units  have  gone  ahead  with  the
settlements and are probably  in occupation.  It is  my intention -- I choose my
words carefully, and I note  that  in  raising  the matter the honourable member
used the same word -- that the $150 000  be used to ameliorate the impact of the
additional height on the neighbouring properties.
The word 'ameliorate' is carefully  chosen because this is not intended to be an
enrichment of either the development or the public purse. What can be done  is a
matter for careful consideration and negotiation. We cannot put back the sky. We
cannot  restore the outlook that was taken away by the increased height,  but it
may be  possible to  help  those  people  cope  with  the  loss  caused by  this
unfortunate  height increase through  some  treatment of the  wall or by  direct
assistance.

I have advised the honourable  member  that  either  house of Parliament has the
right under the Planning and Environment Act to disallow a planning amendment. I
will notify the houses of planning amendment  L175 on  the last  possible day on
which it is proper for me to do so. That will then give either house 10  sitting
days during which it will be possible to move  to disallow the amendment. If the
$150 000  were  not  paid and some  member  of this or  another  place  moved to
disallow the amendment, I for one would not oppose the disallowance.
It is outrageous that the construction has gone beyond  the height  limit. It is
outrageous  that  the  council, being aware of it, did not take action  earlier,
leaving me with a 1-minute-to-midnight crisis on 6 April.
We must examine the act to see  whether we can better define the datum lines for
heights.

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There are arguments on sloping sites  - whether  the height is measured from the
high point  or the low point, whether  it is measured from the  mid-point of the
official  address and whether the address is Punt Road or Commercial  Road.  All
these arguments come into play  when a difficulty like this arises. They are the
sorts of arguments  that  could  be  the  subject  of thousands and thousands of
dollars of legal costs and argument.
The legislation  must  be looked at.  It  must be improved so  that  we are more
definitive about where the points of  measurement are. There were  some elements
to this that I had  to deal with as  prosecutor, judge and jury --  allegations,
for instance, that  a  signature on a plan  to vary the balconies, which  was an
agreed variation,  was  used to indicate  support  for the  height  increase.  I
perhaps will never know whether that occurred. I hope the matter will not get to
a court -- and  possibly  no-one will ever know  whether it was misused in  that
way.

My  decision  on 6 April, when I considered arranging for a  special  Government
Gazette to print an amendment made under those circumstances, was most difficult
and unwelcome.
I thank the parties who assisted me in the matter, and especially Mr Harland for
the way he advised me of  the circumstances he faced and of the  situation as he
understood it. I hope we never  again have a situation like  this and believe we
have to do better.