BRUSH FENCE v. HERITAGE AND HISTORY

The house being built at 3080 Point Nepean Rd is nameless, so far as Bandicoot knows, but for the purposes of this story it needs a name. We hereby name this house Strode Sands for brevity, on the logical ground that it is the Sorrento holiday hacienda of city developer Martin Strode, on the Sullivan Bay headland known as the Eastern Sister.

SHELMER - SULLIVAN BAYIt is on land with a commanding view to the Western Sister, 500 metres or so along the stretch of sand behind which in 1803 Victoria’s first white settlement – convicts, guards, the commissary, a hospital, a mineralogist, the Lieutenant Governor, David Collins, and a chaplain – shared the land which Strode Sands overlooks. Pictured – the Eastern Sister, across Sullivan Bay, pictured from the Western Sister. 

wm buckley d-eIt is a site highly significant in Victoria’s history. While short-lived, it existed long enough for the escape of convict William Buckley, the “Wild White Man”, well over 190 cm tall, who lived on the Bellarine Peninsula with the Aborigines and several tribal wives until 1835. He’s pictured here after his return to the infant colony.

But enough of the grandeur and romance of this ill-fated settlement, soon abandoned in favour of the Yarra. Something far more prosaic is at hand – the matter of a fence bordering Strode Sands.

The fate of the fence was to be decided by councillors last Monday, 30 January. But on the Wednesday before, Mr Strode, apparently impatient for a result, withdrew his application for a brush fence and reapplied for the same fence under a speedy new planning method for straightforward matters, such as fences.

shelm - map-aerialThe method is called VicSmart, “a streamlined assessment process for straightforward planning permit applications”, which has a 10-day turnaround time and – better still – requires no advertising, brooks no objections from neighbours or others and bans any appeals to VCAT by anyone other than the shire.

The 10 days are up this week, Bandicoot calculates, unless something occurs to stop the clock.  Pictured – the Strode land.

Applications made under VicSmart go directly to a council CEO, who can presumably handle them personally or, more likely, delegate them to a planning officer. Councillors do not get a look-in at VicSmart applications and have no power to bring them to a meeting. They may never know about them – as is the case with many planning applications dealt with under delegation by council planning staff. That has been the norm for years. Below – Mr Martin Strode.

Shelmer - Strode-2But this is no ordinary fence on an ordinary property that will be dealt with by Mornington Peninsula Shire chief executive Carl Cowie. It borders land described at a 2010 VCAT hearing as containing “heritage issues [that] are of paramount importance for the development of this site as a whole, and in fact are a fairly onerous constraint upon the development potential…”

The tribunal members emphasised this. The site “has a special quality, integrity and sensitivity that is derived from its geographic influences,” they said, adding:

“[S]ubsequent planning and heritage approvals will be required for any development on [the five-lots] … we agree with [an expert witness] that the significance of this site warrants a regime of management (over and above the proposed building envelopes and planning controls that apply) to ensure the resultant development is sensitive to the site’s significance.”

3080 Pt Nep Rd coneNo ordinary fence, as Bandicoot has already stated. In fact, VCAT made this point itself, imposing conditions on all the site fencing as follows:

Any other fencing [on the five newly subdivided lots] shall be designed primarily as visually permeable elements, eg. post and wire except where there is a need to create privacy to open space and courtyards.” (Bandicoot’s emphasis.)

To ensure the area is treated with the respect its heritage value and history demands, VCAT required, for all future buildings and works, a Master Architect whose role “is to undertake an assessment of each development component within each allotment against [site planning, housing design, landscape and fencing] guidelines. This assessment is to be provided to the Responsible Authority.”  

Pictured – a collage showing the proposed fence and the “view cone” from the viewing platform.

Then it specified that “The building envelope of lot 5 [Strode Sands] is to have an upper height of RL15.0 so it is below the horizontal view line from the lookout associated with the Eastern Sister.” (Bandicoot cannot enlighten readers what height is allowed by RL15.0, but it has to be pretty low.)

And, the tribunal added: “Any dwelling on lot 5 is encouraged to be a split level or cantilevered design”, possibly to get to RL15.0 or less.

The application Mr Strode seeks is for a brush fence, which is far from “visually permeable”. Not only that, but the fence is described in the officers report to councillors – withdrawn after Mr Strode opted for the VicSmart express track – as being between two metres and 2.6 metres tall. Only someone as tall as William Buckley would be able to see over that.

3080 Pt Nep Rd cone diagramBeyond the Strode Sands fence is public land with a viewing platform that enables sightseers to admire the view to the Western Sister via a “viewing cone”, a cleared sight line through the property. Bandicoot can sympathise with the Strodes and their friends not wanting the Great Unwashed ogling their private activities on what was probably an extremely (for the Great Unwashed) expensive piece of real estate.

But a VCAT ruling is, Bandicoot assumes, a VCAT ruling, and a very transparent one at that.

All these matters will be taken into account by shire CEO Carl Cowie or whomever he deputes to decide on the fence, councillors were assured by Mr David Bergin, shire executive manager of planning services, at the 30 January council meeting.

Cr Hugh Fraser (Nepean ward) had asked Mr Bergin: “There were a number of very stringent conditions for this heritage site requiring documentation and a report from the Master Architect, and requiring the very close supervision of this council over this sensitive heritage site that would require a degree of collaboration.”

How, Cr Fraser went on, “will those conditions now be incorporated in this process, which does oust the jurisdiction of this council to decide these matters?”

shelmer shire report mapResponding, Mr Bergin said: “We do need to take consideration of the previous permits but ultimately it comes back to the planning scheme provisions of the day and we will ensure that we will look at the historical permit permissions.”

He went on: “In saying that, the officers have worked with the applicant in the lead-up to this evening’s report and ensured that the view cone is protected within the site and ensured that the height of the fence has been reduced.” Pictured – an aerial view of the Strode holiday house under construction. The viewing platform is the hammer-shaped object at right. 

Bandicoot noted several parts of the question, including the Master Architect, whizzed through to the keeper. 

Cr Fraser suggested to Mr Bergin that, in any appeal to VCAT, “the council would really represent the public interest”?

Mr Bergin’s reply was bureaucratically adroit, Bandicoot thought. Choosing his words with care, he said: “[Council] would represent the grounds of refusal that have been put, yes.” 

That is, the council would represent the council interest, which might also align with the public interest.

As Jean-Baptiste Alphonse Karr (1808-1890), who was for a time editor of the satirical French journal Figaro, once wrote: “Plus ça change, plus c’est la même chose”, usually translated as “The more things change, the more they stay the same.” Schoolboy French to the fore!

shel grave-3BANDICOOT’S VIEW

CEOs are authorised to consider applications brought to their council via VicSmart. Whether they are then obliged to act on them, or can reject them as not being legitimate VicSmart applications, Bandicoot has so far been unable to discover.

You can be sure developers will probe for the limits of this power, which effectively allows them largely to avoid public scrutiny; the Sullivan Bay application may well be such an exploration of what can be done to achieve a result, possibly without the public knowing until the cement trucks turn up.

VicSmart is an example, in Bandicoot’s view, of the casual contempt in which local government is held by the state government. A search of the VicSmart legislation did not reveal to Bandicoot anything that protects the public from abuse of the process. It all rests on CEOs, apparently.

It introduces an odorous secrecy into a very sensitive planning system that should be as transparent as a post and wire fence. It robs councillors of their duty, and right, to represent and protect the public interest. 

VicSmart is thus not democratic. Speed has trumped the community’s rights.  The shire got 130 applications under VicSmart last year. What were they? Where were they? How were they decided? We will probably never know.

shelmerdine - settle-sullivan

This scheme applies all over the state. There is no guarantee that a CEO somewhere will not misuse his or her power to let a few line-ball applications through, for whatever reason.

While VicSmart’s intent was probably honourable – to fast-track minor planning matters – human nature has rather a long history of being dishonourable.

Bandicoot contends that the Sullivan Bay application is not a minor planning matter, considering its location and the area’s place in Victoria’s history, as strongly emphasised and elaborated on by VCAT.‬ 

The legislation should be reviewed urgently.

3 Comments on "BRUSH FENCE v. HERITAGE AND HISTORY"

  1. Patty Martin | 06/02/2017 at 5:41 am | Reply

    I wonder how much and where the money goes for a Vicsmart deliberation ?

  2. This site is subject to a thoroughly assessed VCAT order, so how can the CEO determine outside of the tribunal’s conditions? Typical that in order to get a 5 lot subdivision approved the tribunal makes a ruling and now the owner wants to “move the fence posts”. Time to have the Planning Minister “call in” the application. A Shire Officer report which was later withdrawn exists and should be treated as a benchmark – along with the VCAT assessment. Thanks for bringing this to our attention, Mr Bandicoot.
    Bandicoot: We do not know if the CEO will make a decision that is in conflict with the VCAT-imposed conditions. The problem is with VicSmart and the powers – and restrictions – it contains.

  3. This is a joke, find some real news. Stop making such a big deal over a fence. It’s just a stupid fence, you idiots.
    Bandicoot – Sturdily expressed, John! Let’s put advertising hoardings around Captain Cook’s Cottage and convert Government House into a casino! They’re just buildings. Defying a VCAT order is real news, which does not seem to fit your outlook on the importance of obeying the law.

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