No doubt today there will be a knees-up or three with some decent vintage French champagne flowing in one of Melbourne’s most well heeled areas, East Melbourne. The cause for celebration? A 2 to 1 victory in the Victorian Court of Appeal for East Melbourne residents against a Bracks/Brumby government plan to allow a redevelopment of the Hilton Hotel, the historic MCG Hotel and a historic house, Mosspennoch House.
One East Melbourne resident in particular, pollster Gary Morgan, who is running for Melbourne’s Lord Mayor, is delighted with the win because his East Melbourne residence lies within the vicinity of the proposed development.
The Hilton Hotel redevelopment case is, unfortunately, another exemplar of the fact that the full suite of planning law processes are only available to the rich and powerful. You need the deepest of deep pockets to challenge developers and if you and your neighbours don’t have such pockets then you can forget about preserving your area from over sized developments.
The first application by the developer to redevelop the Hilton Hotel and adjoining properties was made way back in 2001 and the fight has been raging ever since. When, in late 2004, former Bracks government Planning Minister Mary Delahunty allowed the development which included a 15 storey block of apartments, partly on the basis that it would provide increased accommodation and amenities for the 2006 Commonwealth Games, East Melbourne residents swung into action.
A four day trial in the Supreme Court of Victoria, involving no less than six silks and their junior barristers and instructing solicitors, took place in May 2005 and Justice Stuart Morris handed down his decision two months later, which the East Melbourne residents lost. They then went to the Victorian Court of Appeal which has handed down its decision this morning blocking the development. While it is a complex legal argument, the bottom line the Court of Appeal found was that Ms Delahunty made an irrational decision because there was no way the proposed development could be finished in time for the Commonwealth Games.
The expense to the residents of East Melbourne must surely run into the millions of dollars in legal fees and experts. Planning appeals are a rich person’s sport.
As the East Melbourne residents quaff their champagne today perhaps they might care to think of those low income earners in suburban Australia who will never have any chance of playing the planning appeals game because the expense is way out of their league.
Appealing against developments and government decisions to radically alter the amenity of a neighbourhood is a fundamental right that each citizen in our community should be able to exercise. But today’s Hilton Hotel decision shows just how unreal the exercise of that right is for all but those who live in wealthy enclaves.
NSW is similarly a game of big bucks. Highly defensive security for costs orders can be sought by a developer, sometimes using the profits from an illegal development – especially in the precincts of an apathetic or brown council – to fund their legal defense demanding say $90K up front from a public interest litigant in one case I know of.
In that case not only was the prohibitve order for security bond made before the substantive issues could be heard, but then the costs of losing the argument over whether to pay the bond led to an appeal and another costs order and then 2 years later bankruptcy of public interest litigant. And the substantive issues of illegality were never looked at by the LEC in NSW.
Is this what was intended by the framers of the 1979 legislation in the wake of the green bans in NSW and election of an ALP Wran Govt, after the corrupt Askin? After echoes of corruption of Bjelke Peterson up North bulldozing heritage?
You have a look at the tenor of s.39 (informality of proceedings) and s.63 (agent instead of a lawyer permitted) of the Land & Environment Court Act 1979 in NSW, and open standing provisions of s.123 of the principal EP&A Act in NSW. These are virtually a dead letter now due to costs orders. I submit that wasn’t the intent of the legislators but it’s a cosy business and all but a closed shop in my view.
I was at the registry in Sydney 2 weeks back and a developer’s lawyer asked me how I could be filing for my client at risk of costs. I said well – he’s already bankrupt, and I’m just his agent. And a pensioner who can avoid filing fees at the discretion of the Registrar.
But that’s not how it’s supposed to be and bankruptcy brings its own Olympic hurdles to vault. Then perhaps the most corrosive thing in the whole situation is that when by some miracle there is a public interest victor more often than not the ALP govt up until recently at least was very willing and ready to repeal the decision by legislation. Nasty.
To assume ‘big money’ is necessary to win any points could smother anyone’s spirit. I admit that a mega-site like the Hilton proposal would be daunting, but for people who feel the system is greater than ‘the people’ please don’t despair. As a particularly bloody-minded, and battle-hardened agitator I can say all is not lost.
It’s just that few people bother to read the ‘Yellow Planning Notice’ that goes up on a proposed development site. This is the battle call, but few seem to hear it-whether it be the Hilton, or a proposal to construct eight four-story units in the place where one home stood in a small back street of Prahran, this is the time to get busy. This is the stage to get in early and get in often. Try to get the Council in on your side. Wear out a couple of pairs of shoes in order to get all those signatures. Go into any nightclubs in the area to get signatures on petitions. I even used to trawl the knocking shops. The greater the number of people living in the area, the more signatures there are. A friend of mine volunteered to baby sit two kids in order to get eight signatures. Please understand nothing is impossible. Yeah, it’s hard work. So is everything these days.
If people like Genghiz Khan and Napoleon and Simon Bolivar can buck the system, so can the individual resident.
PS: I think I can find my way to VCAT wearing a blindfold.