1. VCAT refuse to grant permit for a 99-lot subdivision in Tootgarook Swamp

On 14 November 2016 VCAT affirmed the Council’s decision not to grant a permit for a 99-lot subdivision in the Tootgarook Wetland (Tootgarook is adjacent to Rosebud West, or Capel Sound, as it is now known). Save Tootgarook Swamp Inc and the Mornington Peninsula Ratepayers’ & Residents’ Association Inc supported the Mornington Peninsula Shire at the eight-day hearing held in June and July 2016.

The preservation of the Tootgarook Wetland is arguably one of the most important current environmental issues for the State of Victoria and the Mornington Peninsula. The Wetland comprises approximately 650 hectares and has significant biodiversity values, supporting native vegetation communities in aquatic and terrestrial environments – mammals, reptiles, amphibians and birds that are variously listed under international conservation agreements, Commonwealth and State legislation, as well as an independent non-Government organisation.

Much credit must be given to Cameron Brown and his partner Jessica Durrant for bringing the Wetlands to the attention of the community, Council and our local Federal and State politicians. Over a 10-year period they have gained an incredible knowledge of the Wetland and the country’s environmental legislation and policies. A few years ago Jessica took two weeks’ leave from her employer and undertook a 10-day, 100-hour continuous walk around the Wetland to raise funds to continue the fight to save the Wetland and to get a RAMSAR listing.

They also previously challenged a decision by the Shire and a developer to subdivide another section of the Wetland. Surprisingly, at what was their first experience with VCAT, they won the case. However the Shire and the developer appealed against the decision to the Supreme Court on a highly technical point of law. Although VCAT made the error in law it cannot be sued, so the developer and Shire served the Supreme Court notice on Cameron, naming him as a respondent for costs. Cameron had no option but to defend himself.

His legal representative, a local solicitor and barrister, was no match for the four or five barristers together with a similar number of solicitors preparing the case for the barristers representing the Shire and developer, who included former VCAT President, Stuart Morris QC, so Cameron lost the case. Cameron and Jessica stood to lose their house, with costs probably heading towards $100,000. Fortunately the Shire and developer decided not to pursue costs. Also Justice Karin Emerton allowed Tootgarook Swamp Inc to be substituted for Cameron Brown.

Nevertheless there is a lesson for all who appear at VCAT. If VCAT makes an error of law because the chairperson is deficient in the rules of law (and some chairpersons are only planners) then you may cop the consequences by being served a Supreme Court notice by an angry developer if it can find an error of law.

2. Knockback for five-storey aged care plan

Southern Cross care recently proposed a five-storey aged care facility in a residential area designated in the Rosebud Activity Centre as three-storey. The Shire had not taken the next step of rezoning the area. Contrary to the Council Plan the officers recommended approval of the five storeys despite there not being a single five-storey development on the whole of the Peninsula. However, following heavy lobbying by residents and our Ratepayers’ Association, a majority of Councillors overruled the officers.

Southern Cross Care appealed to VCAT but then decided to reduce the height to two storeys and refurbish an existing building on the site, resulting in only a small loss of beds, and to consult with the local community. This was considered by ourselves and the community to be an excellent alternative facility, although we cannot claim to be experts in the area of aged care facilities. Subsequently the revised two-storey plans were submitted to VCAT and we withdrew our objection. Credit must go to Southern Cross Care: we wish there were more developers like them.

Mornington Peninsula Residents’ and Ratepayers’ Association

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