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Thursday, October 8, 2015

DCSCA and the Caltex service station: a summary

On 6th August 2015, the Victorian Civil and Administrative Appeals Tribunal (VCAT) issued the following order:
" The Drysdale Clifton Springs Community Association (DCSCA) Inc. is ordered to pay the costs of Milemaker Petroleum Pty Ltd fixed in the sum of $5,500. The costs must be paid by 7 December 2015 or such later date as may be agreed by Milemaker Petroleum Pty Ltd."

DCSCA accepts VCAT’s ruling, acknowledges that its application to VCAT to overturn the planning permit was misconceived and no longer opposes the service station.

DCSCA’s application was submitted under section 89 of the Planning and Environment Act 1987, because it was lodged more than 21 days after the City of Greater Geelong (CoGG) gave Milemaker planning permission for its service station.
DCSCA acknowledges that a Section 89 application faces significant hurdles as it argues that a VCAT Tribunal could or, indeed, should cancel a permit that has already been issued. DCSCA also acknowledges that it failed to satisfy these hurdles.

A new development
DCSCA lodged its application after the due date because of an extraordinary new development. Just eight weeks after CoGG gave Milemaker planning permission to build its service station, the council refused to give Planning Permission for a proposed child care centre in the same Rural Living Zone. The council judged that the proposed child care centre would be inconsistent with seven State Planning Policy Planning Framework clauses and inconsistent with the Drysdale Clifton Springs Structure Plan.

The development gave DCSCA a precedent to add to its arguments against a service station at that location. The publicity arising from CoGG’s inconsistent decisions led to community members providing additional information about the potential environmental dangers of locating hazardous materials (e.g. fuel products) close to the nearby watercourse.

The association came to believe that planning permission for the service station could be challenged on two grounds:

  • the council’s inconsistent planning decisions
  • the new information about potential environmental hazards.
These two new factors added weight to DCSCA’s arguments against a service station at that location, namely:
  • it contradicted parts of the council’s own Structure Plan for Drysdale and Clifton Springs
  • it increased the risk of  traffic accidents, especially to cyclists
  • it increased the chances of traffic congestion at a junction that is already very busy
  • it destroyed the rural ambience that marks-out the entrance to Drysdale.

Meanwhile, evidence of community opposition to a service station at that location was growing. The council had received 47 written objections from residents; and subsequently, more that 400 people signed a petition opposing it. There was growing expectation that the association would, on behalf of the community, ask VCAT to overturn the planning permit for the service station.
Note! Neither the community nor DCSCA opposed a service station as such. Instead they opposed siting a service station at that particular location.

The DCSCA committee decided to lodge an application to VCAT as soon as possible. It did so in good faith, considering that such an action was in line with its Statement of Purposes and not vexatious. While its application was late, it didn’t hinder the progress of the service station. The council gave Milemaker planning permission subject to 27 conditions and DCSCA lodged its application to VCAT a full six months before those 27 conditions were met and the plans finally approved.

 DCSCA goes to VCAT
DCSCA prepared a Statement of Grounds to present to VCAT, detailing the community concerns with a service station at this location.
At the VCAT Directions Hearing, Milemaker Petroleum was represented by senior counsel Mr. Tweedie. The following is an extract from VCAT’s ruling:
The essence of the submission on behalf of the permit holder was that an incorporated association could almost never demonstrate substantial disadvantage in a planning proceeding such as this, for example, it didn’t own any land could be impacted and the association (as distinct from its members) would not be personally affected. Mr Tweedie depicted the interest of this association as akin to an ‘intellectual’ one.

A subsequent article in The Age implies that DCSCA had prior knowledge of this argument: “The group had also been warned in an earlier ruling on the project that its case was extremely weak.” In fact, there was no earlier ruling. The first that the association’s representatives knew of this legal argument was when they were given documents detailing it inside the hearing room. Prior to the hearing, Milemaker’s lawyers had submitted a 127-page document that contained only evidence that DCSCA did not dispute – it did not contain Mr. Tweedie’s argument.

Had DCSCA been presented with this legal argument prior to the hearing, the committee would have had the opportunity to withdraw and would almost certainly have done so. The association’s representatives had come to the hearing prepared to express the community’s concerns about a service station at that location, whereas the Directions Hearing was concerned mainly with DCSCA’s legal position – a situation for which the Association’s representatives were totally unprepared and the committee as a whole was not aware of until after the hearing.

When VCAT invited Milemaker to apply for its legal costs, several prominent people wrote to VCAT asking it not to award costs against DCSCA: local federal MPs Richard Marles and Sarah Henderson, local state MP Lisa Neville and local councilor Rod Macdonald. They were joined by several individuals and groups in the community, including Bike Safe and the Bellarine Catchment Network.

After the VCAT hearing
Martin Pakula (Victorian Attorney-General) has suggested that while Milemaker Petroleum now had the right to recover costs from the Drysdale and Clifton Springs Community Association, "it could decide not to. I would encourage the respondent to consider its relationship with the local community in making that decision."
Lisa Neville (Victorian Minister for Environment, Climate Change and Water; Member for Bellarine) expressed a similar view in a statement in the State Parliament and has sent a letter to Milemaker Petroleum asking them to waive the legal costs of $5,500 as a show of goodwill to the community of Drysdale and Clifton Springs.

Finally ...
DCSCA welcomes the news that the State Government is changing the planning legislation to require VCAT to take account not just of the views of people who would be ‘immediately affected’ by a planning decision, but also of the views of the local community. This will not change DCSCA’s case as the proposal will become law at some time in the future. However, it will enable community groups to object to a planning decision without having to demonstrate how they will be ‘materially affected’.

The DCSCA Committee         6/9/2015

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