Investigation into allegations of collusion with property developers at Kingston City Council

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Letter to the Legislative Council and the Legislative Assembly

To

The Honourable the President of the Legislative Council

and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973 (Vic), I present to Parliament my Investigation into allegations of collusion with property developers at Kingston City Council.

Deborah Glass OBE

Ombudsman

12 October 2021

Foreword

It sounded off alarm bells that essentially, a single senior planner has had a twenty-five year relationship with a single developer within one Zone and we’ve ended up with something very, very different than what the panel had in mind when it was first committed to be zoned in that way.

Local resident in interview with Ombudsman

This investigation has its origins in public concerns about the development of land within their community. This is an issue that affects many, if not all, councils and communities, where there will be bitterly divided views, often changing over time, about whether the advantages of development outweigh its disadvantages.
This report is the story of one development in south-east Melbourne, within what is now Kingston City Council. It began simply enough – a new vision for the Patterson Lakes marina area. What the community ended up with was very different from the original plan – bigger, higher, less accessible.

Planning started in 1988, and the published plan was to encourage ‘a marina-based mixed-use area’, to be used for boating, as well as residential, tourism, entertainment and greater public access along the riverbank. A later iteration of the plan shows a marina, restaurants, offices and residences with heights of two to four storeys, car parking and open space.

This report makes no value judgement about the reality in 2021, but it is undoubtedly different. Alongside the marina are multiple residential buildings, with two of ten storeys planned. A six-storey residential development stands where a car park was shown on the 1999 plan. The Patterson Lakes riverbank is largely inaccessible to non-residents outside business hours.

Little wonder then that some locals were suspicious, even to allege corruption by Councillors and Council staff, particularly in the aftermath of IBAC’s public hearings in 2019 examining an allegedly corrupt relationship between local councillors and developers.

Witnesses told us bribes and kickbacks were ‘common knowledge’, ‘coffee talk’ around the Marina, but acknowledged they had no evidence. Two reviews commissioned by Kingston Council did not find evidence of corruption. Nor did my investigation find any deliberate impropriety beyond undeclared Christmas lunches at expensive restaurants.

But corruption is not always the explanation for changing development or over-development, depending on your perspective. Several factors contributed to what, for many in the community, was an unsatisfactory outcome.

Some of these were individual failings, some more systemic or structural.

Incompetence or negligence by the Council’s senior planner or lack of rigour in decision-making; combined with such poor record-keeping, it was difficult to form a view on whether decisions were improper, non-compliant or simply deficient. The perception of conflict of interest was aggravated by the planner accepting, without declaring, the developer’s hospitality.

In just one example, a planning report to Council misdescribed a five-storey building as a three-storey building. This was acknowledged to be ‘a mistake that no one had picked up’ – ‘planning officers had relied on the report of the traffic consultant … without having proper regard or referencing back to the plans’.

Mistakes have consequences: as a result of approvals being given on incorrect information, later approvals were given to increased height levels. In other instances, the impact on visitor parking and traffic flow and the ambiguity of height controls, were not considered in reports to Council meetings.

The consequences were all the greater because the area is a Comprehensive Development Zone. A key aspect of this form of planning control is that planning permits are not required and consent is exempt from public notice provisions. Locals raised concerns about this back in 1989 – but a Ministerial panel, acknowledging the difficulty, felt the detailed nature of the Concept Plan meant that actual development would be ‘unlikely to differ materially’.

While such development zones no doubt have a useful place in planning schemes, in the end the community appears to have had the worst of both worlds: neither the adherence to the original plan nor the chance to object.

Another aspect that will no doubt surprise many locals is that Council’s original contract with the developer – a standard provision in such contracts - allowed the developer to satisfy the open space requirement by making a monetary contribution based on the value of the land. So, land identified as public open space on the original plan was in effect sold to the original developer in 1990.

The overall impact of concessions and agreements on such matters as height controls, parking spaces and public space was gradual, uncoordinated erosion of an earlier vision. Council’s lack of strategic oversight effectively allowed the area to develop in line with the developer’s objectives rather than the original plan.

While Councillors, too, came into the frame, the evidence was of discord and dysfunctionality, rather than corruption. The philosophical and political differences within Council on development in the ‘Green Wedge’ were and remain highly contentious but should be resolved around the Council table as far as possible, in the public interest.

Once again, poor record-keeping, combined with loose application of ‘call in’ powers for when Councillors become involved in planning decisions, can give rise to perceptions of corruption.

This investigation makes no findings about the legality of Council’s decisions, some of which are subject to review by VCAT; or criticism of the developer, who will inevitably seek to maximise its return to shareholders. It falls to public officers to ensure this does not happen to the detriment of the public interest.
I am tabling this report not to expose any serious misconduct but because the community deserves answers, where possible, about what has happened in their neighbourhood and why.

The senior planner is no longer employed at the Council. Kingston Council has committed to implementing the recommendations of its two reviews, which should address the systemic issues identified in my investigation.

Whether they address the perceptions of corruption and conflict will ultimately depend on the behaviour of individuals, and on strong, ethical leadership. Development may always be a contentious issue for councils and their communities, but with transparency and good governance it should not be seen to undermine public trust. Councils everywhere would do well to take note.

Deborah Glass
Ombudsman

Report summary

Why we investigated

In July 2020, the Ombudsman commenced
an investigation into allegations about
planning processes and approvals at
the Kingston City Council that had been
referred from the Independent Broad-based
Anti-corruption Commission
(‘IBAC’). It was alleged that a Senior
Planner and two former Councillors at
the Council had ‘corrupt’ and improper
dealings with property developers.

Early evidence indicated that residents
of Patterson Lakes were troubled by
what they considered to be inappropriate
concessions given by the Senior Planner
to the developer of the Patterson Lakes
Marina.

In addition, residents had expressed
concerns to Council that the alleged
planning corruption being investigated in
IBAC’s Operation Sandon at Casey Council
could be occurring in developments in the
Kingston Council.

The investigation

The investigation examined the history
of developments in the Patterson Lakes
Marina and obtained expert advice from
an independent planning consultant who
examined nine planning decisions made by
the Council in the Marina precinct.

The Patterson Lakes Marina was first
imagined in the late 1980s as a retail
and commercial space accessible to all
Patterson Lakes residents. There were
several restaurants, retail and office spaces
proposed in the original development
concept.

This development proposal was formalised
as a Comprehensive Development Zone
(‘CDZ’) in 1990. This is a special type of
planning zone that allows more complex
developments to progress in accordance
with a Comprehensive Development Plan
(‘CDP’) incorporated in the Council’s
Planning Scheme.

A CDZ removes the usual requirements
on a developer to apply for a permit for
buildings and works, to advertise plans
and respond to objections. Instead,
the developer is required to submit
development plans that are ‘generally in
accordance’ with the CDP and the Council
then decides whether to consent.

Witnesses said they were concerned that
the Senior Planner, who had made all
planning decisions in the Marina over a
twenty-five-year period, had an improper
relationship with the Marina developer. He
was also said to have colluded with former
Councillors to influence planning decisions
that favoured entities investigated by
Operation Sandon.

Extensive enquiries by the investigation did
not identify evidence of collusion between
the Councillors and the Senior Planner or
with developers. Nor were there alarming
‘red flags’ of improper interactions
between identified parties.

However, the investigation identified
deficiencies in the robustness and
recording of decisions made by the
Senior Planner for some developments
in the Marina precinct, which created
the impression for some that he was
deliberately making decisions that were
not compliant with the CDP.

By failing to evidence critical analysis of his
decisions and recognise connections with
earlier decisions, the Senior Planner failed
to properly strategically oversee the CDZ.

These deficiencies created, at least in
some quarters, the perception that the
Developer was obtaining favourable
planning permissions from the Senior
Planner that were not reasonably open to
him to grant.

This also had the effect of minimising the
residents’ ability to object to matters such
as traffic conditions and amenities; and
undermining the community’s trust in local
government decision-making.

Of additional concern, the Senior Planner’s
failure to declare Christmas lunches
with the Developer may have further
contributed to the perceptions that his
decision-making was improper.

Observations

The investigation also identified
weaknesses in the relationship between
Councillors and the planning department,
as well as deficiencies in Council guidelines
on ‘call in’ powers and recording meetings
with developers.

These matters contributed to the
perception that Council decision-makers
were acting in the interest of political
or ideological positions rather than the
community’s interest.

Findings

The allegations about improper dealings
between Council officers and developers
at Kingston City Council were not
substantiated.

However, this report is critical of the
decision-making of the Senior Planner
and the failure by Council to give clear
guidance and to respond to concerns
raised by residents.

As Council has committed to implementing
the recommendations of two probity
reviews that address these issues, this
report makes no formal recommendations
to Council.

Background

The public interest complaints

This report examines allegations that one
of Kingston City Council’s senior planning
manager (‘Senior Planner’) engaged in
improper conduct when making planning
decisions. It also examines allegations
that two former Kingston City Councillors,
Geoff Gledhill and John Ronke, colluded
with planning staff and developers for
personal gain.

On 20 December 2019, the Ombudsman
received a ‘referred’ complaint from the
Independent Broad-based Anti-corruption
Commission (‘IBAC’) raising concerns
about planning processes and approvals at
Kingston City Council (‘Council’).

The complaint was principally concerned
with approvals granted to the developer
of the Patterson Lakes Marina, Cavendish
Developments Pty Ltd (‘Developer’), and
an alleged improper association between
the Senior Planner and the Developer’s
director (‘Director’).

On 23 and 24 December 2019, the
IBAC referred two ‘protected disclosure
complaints’ under the Protected Disclosure
Act 2012
(Vic) to the Ombudsman for
investigation, pursuant to section 73 of the
Independent Broad-based Anti-corruption
Commission Act 2011
(Vic). One of these
complaints was from an anonymous
discloser.

Following legislative amendments effective
from 1 January 2020, protected disclosure
complaints are now known as ‘public
interest complaints’ under the Public
Interest Disclosures Act 2012
(Vic).

The Ombudsman investigated the
following complaints:

• The Senior Planner knowingly
approved planning applications for
the Developer of the Patterson Lakes
Marina, which did not comply with the
Council Planning Scheme.

• The Senior Planner failed to properly
advertise planning applications
involving the Developer.

• The Senior Planner colluded with
property developers and current and
former Councillors to improperly issue
planning permits.

• Former Kingston Councillor John
Ronke colluded with property
developers to obtain personal benefits.

• Former Kingston Councillor Geoff
Gledhill colluded with other Councillors
and property developers to obtain
personal benefits.

Jurisdiction

The Ombudsman’s jurisdiction to
investigate public interest complaints
derives from section 13(1)(d) of the
Ombudsman Act 1973
(Vic). This provides
that the Ombudsman has the function
to investigate public interest complaints
about conduct by or in an authority or
public interest disclosure entity.

Members of staff of a Council are an
‘authority’ for the purposes of the
Ombudsman Act by virtue of section 2
and Schedule 1, Item 15. The Senior Planner
was employed as Council’s Manager City
Development at the time of the alleged
conduct.

Former Councillors Ronke and Gledhill
are both a ‘public interest disclosure
entity’, as defined at paragraph (b) of the
definition of that term at section 2(1) of the
Ombudsman Act.

This investigation was conducted under
section 15C of the Ombudsman Act,
which provides that the Ombudsman
must investigate a public interest
complaint, subject to certain exceptions.
The Ombudsman investigated the initial
referred complaint from IBAC pursuant to
section 15B of the Ombudsman Act.

How we investigated

The investigation was initially placed
on hold while two investigations
commissioned by the Council, described
below, were carried out.

On 23 July 2020, the Ombudsman
notified the following of her intention to
investigate:
• the Minister for Local Government
• the Chief Executive Officer (‘CEO’) of
the Council
• the Mayor of the Council.

The investigation involved:

• Examining relevant legislation
including:
o Local Government Act 1989 (Vic)
o Local Government Act 2020 (Vic)
o Planning and Environment Act 1987
(Vic)
• Examining relevant Council policies
and procedures including:
o Staff Code of Conduct Policies
o Councillor Code of Conduct Policies
o Planning Delegation Policies
o Instrument of Delegation Policies
o Gifts, Benefits and Hospitality
Policies
• Examining planning instruments and
plans including:
o Kingston NFPS Panel Report
June 1998
o Schedule 1 to clause 37.02 of the
Kingston Planning Scheme
o Whalers Cove Comprehensive
Development Plan 1994
o Endeavour Cove Comprehensive
Development Plans 1999 and
2002
o Kingston Planning Scheme
Ordinance gazetted
22 December 1999
o Statutory Guidance: Using Victoria’s
Planning System (Department
of Environment, Land, Water and
Planning) 2015
o Planning Practice Note 60: Height
and setback controls
(Department of Environment,
Land, Water and Planning) 2018
• Examining internal probity reports for
Council including:
o three reports prepared by Hall &
Willcox about planning decisions
made in the Comprehensive
Development Zone (‘Hall & Willcox
Reports’):
• Stage 1 Preliminary Report dated
25 November 2019 (‘first report’)
• Stage 2 Report- Interviews
with Council officers/
Recommendations for next steps
dated 10 January 2020 (‘second
report’)
• Final Report Endeavour Cove
Planning Investigation dated 19
February 2020 (‘final report’)
o a report prepared by Holding
Redlich dated 28 January
2021 examining Council planning
applications made by parties named
in IBAC’s Operation Sandon
(‘Holding Redlich Report’)
o a summary of the Holding Redlich
Report was made public by Council
on 10 May 2021
• Summonsing and reviewing:
o primary and ordinary returns and
conflict of interest records from
the Council
o emails between the Senior Planner,
Council planning officers and
Councillor Ronke
o planning files for developments in
the Endeavour Cove Comprehensive
Zone and other ‘red flagged’
developments
• Obtaining planning advice from an
independent planning consultant
who examined nine Council planning
files and provided a report detailing
his assessment of decision-making
compliance with the Council’s Planning
Scheme and associated provisions
• Summonsing and reviewing relevant
bank account records
• Obtaining relevant current and
historical ASIC extracts
• Obtaining relevant land title records
• Issuing three confidentiality notices
pursuant to the Ombudsman Act
• Conducting a site visit of the Patterson
Lakes Marina on 19 November 2020

Five people were interviewed under oath
or affirmation:
• a local resident
• a Councillor
• a Marina resident
• a local developer
• a local businessperson

All witnesses made a voluntary appearance
before the investigation.

The investigation was guided by the civil
standard of proof in determining the
facts of the investigation - taking into
consideration the nature and seriousness
of the allegations made, the quality of
the evidence, and the gravity of the
consequences that may result from any
adverse opinion.

Procedural fairness

The investigation did not substantiate that
the Senior Planner, Councillor Ronke or
Councillor Gledhill engaged in improper
conduct.

All three parties, together with the Council
and the Developer’s Director who was
invited to comment on factual accuracy,
were provided with a copy of a draft
version of this report for comment prior to
the investigation being finalised.

The findings of this report are critical of
the judgement exercised by the Senior
Planner and the deficient oversight by
Council.

The Senior Planner was invited to
attend an interview with Ombudsman
investigators but declined. He was
provided with a copy of a draft of this
report; and in accordance with section
25(2) of the Ombudsman Act, was given a
reasonable opportunity to respond to the
material in the report. His responses are
fairly set out in this report.

In accordance with section 25A(3) of
the Ombudsman Act, any other persons
who are or may be identifiable from
the information in this report are not
the subject of any adverse comment or
opinion and:

• the Ombudsman is satisfied that
it is necessary or desirable in the
public interest that the information
that identifies or may identify those
persons be included in this report and
• the Ombudsman is satisfied that this
will not cause unreasonable damage
to those persons’ reputation, safety or
well-being.

The Council and integrity obligations

In December 1994, the former cities of
Moorabbin, Mordialloc, Chelsea, Springvale
and Oakleigh amalgamated to become
Kingston City Council.

The Council spans a total land area of
91 kilometres with an estimated resident
population of 162,000. It is divided into 11
wards, with each of the wards represented
by a single Councillor.

The Senior Planner was employed by the
Council in senior roles in the planning
and development branch from the
amalgamation in 1994 until 2020, a tenure
of over 25 years. He took long service leave
from 18 July 2020, after which time his
employment with the Council ended.

John Ronke was elected as a Councillor of
Kingston City Council in 1997, 2000, 2003,
2005, 2008 and 2012 serving a total of
17 years at the Council. He retired in 2016
without contesting the elections that were
held in October of that year.

Figure 1: Distance Kingston City Council to the CBD

Source: Victorian Ombudsman

Geoff Gledhill was elected as a Councillor
in November 2012. He was Mayor in 2015
and served for eight years until October
2020 when he was not re-elected.

Integrity obligations

At the relevant time, the Senior Planner
and Councillors Ronke and Gledhill were
subject to the integrity obligations under
the Local Government Act 1989 (Vic) as it
then was, and associated Council policies
and procedures.

Local Government Act

All legislative provisions referred to in
this report are from this Act. The Local
Government Act 2020
(Vic), which
replaced the 1989 Act, was proclaimed
on 6 April 2020 and was implemented in
stages, with the integrity sections in force
from 24 September 2020.

As the alleged conduct pre-dates the
implementation of the 2020 Act, the
conduct obligations applicable in this
investigation were those in the 1989 Act
(referred to as ‘the Local Government Act’
at varying times in this report).

Conduct obligations of Council staff

Section 95 of the Local Government Act
sets out conduct standards for Council
staff. It states that Council staff must ‘act
impartially’ and ‘act with integrity including
avoiding conflicts of interest’.

In accordance with section 95AA, the CEO
must develop and implement a code of
conduct for staff.

The Council’s Code of Conduct dated 15
October 2019 requires Council employees
to ‘act in a professional manner that will
foster trust, respect, confidence and
goodwill in the community’. Employees
are expected to act with good judgement
which ‘requires knowledge of the
regulations and legislations that affects the
Council’s activities’.

The Code of Conduct also defines
‘conflicts of interest’ and states all
employees are responsible for identifying
personal circumstances that may give rise
to potential, actual or perceived conflicts
of interest. An annual declaration of private
interest is required of Senior Officers.

For the first time on 21 August 2019, a
separate Council Conflict of Interest Policy
was approved by Council that provided
further guidance to officers who had a
conflict of interest when providing advice
to Council. Prior to this, the requirements
of the Local Government Act and Code of
Conduct applied.

The conflict of interest approach since 21
August 2019 includes the following steps:

• An officer should disclose the conflict
of interest by recording its existence
in the report itself or verbally prior to
providing advice.
• The disclosure should outline the
type of conflict of interest. The exact
nature of the conflict of interest is only
required to be disclosed if requested.
• The type of interest disclosed should
be recorded in the agenda of the
meeting.

Under the Code of Conduct, employees of
the Council are also prohibited from:

• using their position to influence other
Council officers to obtain a personal
benefit or a benefit for someone else
• being involved in an act or acts of
bribery by providing or promising to
provide a benefit.

Council also has ‘Behavioural Guidelines’
(‘Guidelines’) that accompany the Code of
Conduct. Relevant to this investigation, the
Guidelines say:

You are required to be accountable
for your personal conduct by avoiding
conflicts of interest and disclosing any
actual or potential conflicts of interest,
including by avoiding obtaining a private
benefit for yourself or someone else.

The Guidelines advise Council staff to
speak to their Supervisor or Manager if they
consider they have a conflict of interest.

Breaches of the Code of Conduct are
dealt with by the Council’s Disciplinary
Policy; and in the case of fraudulent
or corrupt behaviour, the Fraud and
Corruption Policy.

Conduct obligations of Councillors

Section 76B of the Local Government Act
1989 stated:

It is a primary principle of Councillor conduct
that, in performing the role of a Councillor, a
Councillor must –
(a) act with integrity; and
(b) impartially exercise his or her responsibilities
in the interests of the local community; and
(c) not improperly seek to confer an
advantage or disadvantage on any
person.

It is an offence under section 76D for a
Councillor to misuse their position ‘to
gain or attempt to gain an advantage
for themselves or cause detriment to the
Council’.

A Councillor must also not ‘direct or seek
to direct a member of Council staff in the
exercise of a power or the performance of
a duty’.

In addition to the Local Government Act
obligations, all Councillors must make a
declaration stating they will abide by the
Council’s Councillor Code of Conduct.

The Code of Conduct agreed to by
Councillors Ronke and Gledhill obliged
them to, amongst other things:

• avoid conflicts between their public
duties as a Councillor and personal
interests and obligations
• endeavour to ensure that public
resources are used prudently and
solely in the public interest
• act lawfully and in accordance with the
trust placed in him or her as an elected
representative.

Council advised the investigation that
if a conflict of interest was disclosed to
the CEO prior to a Council meeting, the
nature of the conflict was not required to
be disclosed in the chamber and declaring
the existence of a conflict was satisfactory.
On making a declaration, Councillors then
excluded themselves from the decisionmaking
process, usually by leaving the
meeting before the item was discussed
and the decision was made.

Council decision-making policies

This section summarises the key
decision-making policies relevant to this
investigation.

Instrument of delegation

Section 98(2) of the Local Government
Act allows the Chief Executive Officer to
delegate by an instrument of delegation
any power, duty or function of their office.

The Council’s Instrument of Delegation
in place prior to the Senior Planner’s
departure delegated the following
functions to the Senior Planner position:
• the power under the Planning and
Environment Act 1987 to ‘carry out
studies and do things to ensure proper
use of land and consult with other
persons to ensure co-ordination of
Planning Schemes with these persons’
• the power to ‘decide that an
application for a planning permit does
not comply with the Act’
• the duty to ‘consider the number of
objectors in considering whether use
or development may have significant
social effect’.

Planning and Environment Act

Section 60 of the Planning and
Environment Act sets out the matters
decision-makers must consider when
assessing a planning application.

It states:

60 (1) Before deciding on an
application, the responsible
authority must consider –
(a) the relevant Planning Scheme; and
(b) the objectives of planning in
Victoria; and
(c) all objections and other submissions
which it has received, and which
have not been withdrawn; and
(d) any decision and comments of
a referral authority which it has
received; and
(e) any significant effects which the
responsible authority considers
the use or development may have
on the environment or which the
responsible authority considers the
environment may have on the use
or development; and
(f) any significant social effects
and economic effects which the
responsible authority considers the
use or development may have.

Planning Delegation Policy and ‘Call ins’

Reference to the ‘responsible authority’ in
the Planning and Environment Act does
not distinguish between Council officers
and Councillors, and both are subject to
this legislation when making decisions.

The Council’s Planning Delegation Policy
articulates which planning applications
should go to Council for decision by the
Councillors (‘call ins’) and which can be
dealt with by Council officers exercising
delegated powers.

The Council has had four versions of the
Planning Delegation Policy from 2003 to
the current 25 May 2020 version.

The 2003 version of the Policy stated:
The following town planning applications
are to be brought to Council for decision:

• Applications of major significance;
• Applications which are particularly
controversial in nature; and
• Applications which depart significantly
from Council’s policy.

The terms ‘major significance’ and
‘particularly controversial’ were not
defined. Triggers for referring a matter
to Council for decision were open to
interpretation by planning officers and
Councillors.

The 2003 Policy remained in operation
until 19 September 2014. At this time, it
was amended to include more specific
guidance for when Council must decide
the outcome of a planning application.
All versions of the Policy since 2014 have
stated that ‘one or more Councillors can
‘call in’ the application by requesting
this in writing to the City Development
Department.

The current Planning Delegation Policy
provides more detailed guidance to
planning decision-makers, stating:

The following types of planning
permit applications (where officers
are recommending approval) must be
decided by the Council:

• applications for five (5) or more
dwellings that incorporates one or more
double storey dwelling(s) to the rear of
the site, with 3 or more objections
• applications of major significance
• one or more Councillor(s) ‘call in’
the application, by requesting this in
writing (email accepted) to the City
Development Department
• applications located in the Green Wedge
and the cost of the development exceeds
$20,000
• any application for a planning permit
seeking approval to remove ten or
more trees as required by the Kingston
Planning Scheme
• any application for a planning permit
for the use and/or development of
land, where the removal of ten or more
trees forms part of the application
(where not specifically required by the
Kingston Planning Scheme) in [specified]
circumstances.
• All other applications can be determined
by the CEO, or their nominated delegate(s).
• All applications for 2-storeys in the
backyard with at least one objection in
the General Residential 3 Zone to be
listed and provided to Councillors prior
to the Planning CIS agenda.

The current Planning Delegation Policy
does not require a Councillor to provide a
reason when they ‘call in’ an application.

Kingston Planning Scheme

A key aspect of the allegations against the
Senior Planner and two Councillors was
that they made decisions, or encouraged
Council officers to make decisions, that
were contrary to the Kingston Planning
Scheme.

This section explains what a Planning
Scheme is, how it is used by Councils
to guide decision-making, and how the
Kingston Planning Scheme operates.

Planning Schemes in Victoria

Each municipality in Victoria is covered
by a Planning Scheme which sets out
objectives, policies and provisions on
the use, development, protection and
conservation of land.

A council draws on the Victorian Planning
Provisions (‘VPP’). The VPP contains a
comprehensive set of planning provisions
for Victoria. It ensures that consistent
provisions are maintained across the state.

In the simplest terms, a Planning Scheme
takes the VPP as a template. Into this, a
council inserts the local vision and policy
framework through Municipal Strategic
Statements and Local Planning Policies.
The council then selects the zones and
overlays needed to implement these
strategies and appropriate local provisions
are written to support the zones and
overlays.

How Planning Schemes are used

The council, as the responsible authority
under the Planning and Environment
Act, must take into account ‘the relevant
Planning Scheme’ when deciding on a
planning application.

Planning Schemes zone land for particular
uses, for example, residential, industrial or
business use. A zone will set out the land
use as well as any requirements for making
changes to the land.

A zone will set out land use controls in one
of three ways:

• land uses that do not require a
planning permit
• land uses that require a planning
permit
• prohibited uses not allowed on the
land in a zone because they may
conflict with other uses.

When a planning permit is required,
the applicant or developer will lodge a
completed application form accompanied
by a description of the proposal and a
prescribed fee.

With many proposals, views of other
agencies will be required before the
council makes a decision. These agencies
will be prescribed in the Planning Scheme
based on the proposal, the location and
other factors.

In some cases, the council will give notice
or require notice to be given to adjoining
owners and occupiers, unless it concludes
that ‘material detriment will not be caused
to any person’, or the Planning Scheme
specifically provides for an exemption from
the notice requirements.

The council will then issue a permit, a
notice of decision to grant a permit or a
notice to refuse to grant a permit. If they
disagree, an applicant or an objector can
request a review of the decision by the
Victorian Civil and Administrative Tribunal
(‘VCAT’).

A zone may not require a planning permit
to be issued for an identified land use.
The council can give ‘Planning Consent’
if it is satisfied that it complies with the
overall objectives of the zone and specified
provisions. Planning Consent does not
require the council to follow the same
statutory requirements a planning permit
would, such as giving public notice.

How Planning Schemes are amended

Changes to the Planning Scheme are
another means through which council
officers and councillors can exercise their
decision-making powers. There are many
reasons why a Planning Scheme may
need to be amended. Some of the more
common reasons are:

• to update the scheme
• to correct mistakes
• to allow some use or development
currently prohibited to take place
• to restrict use or development in a
sensitive location

Any person can ask a council to prepare
an amendment to the Planning Scheme.
This can be done simultaneously by an
applicant when applying for a permit. For
example, by an applicant seeking to rezone
land from one type of zone to another to
support a development application.

An amendment requires the council to
begin a process to change the scheme
itself, which is more complicated than
making a decision on a permit application
in accordance with the existing planning
scheme.

In recognition of this, the Planning and
Environment Act requires a council to
consider certain matters in preparing
an amendment, including whether the
amendment aligns with the Municipal
Strategic Statement and what the public
benefits are.

Amendments require the approval of
the Minister for Planning. The Minister
will appoint an independent Planning
Panel to hear submissions about the
Planning Scheme amendment and make
recommendations or provide advice about
whether the amendment should proceed.

The Planning Panel’s report must then be
considered by the council before it decides
whether or not to adopt the amendment.

The Kingston Planning Scheme

The Kingston Planning Scheme was
created via Planning Scheme Amendment
NPS1 in 1999 and included the introduction
of the Victorian Planning Provisions,
consistent with the introduction of new
format Planning Schemes for every
municipality.

Like other Planning Schemes, the Kingston
Planning Scheme includes a variety of
zones and overlays. Relevant to this
investigation, Kingston Planning Scheme
has provision for a Comprehensive
Development Zone.

A Comprehensive Development Zone
(‘CDZ’) allows for detailed land use
requirements to be prescribed for a
particular site. A CDZ is designed to
allow more complex developments
in accordance with a Comprehensive
Development Plan (‘CDP’) incorporated in
the Planning Scheme. Generally, only large
or complex developments would warrant
the use of this zone.

The only CDZ in the Kingston Planning
Scheme applies to the land ‘on the north
side of McLeod Road, Patterson Lakes,
generally known as the Endeavour Cove
Marina’. The requirements for land use in
the CDZ are articulated in the CDP 1999
attached as Schedule 1 to Clause 37.02 of
the Planning Scheme.

Both the CDZ and CDP are incorporated
in the Planning Scheme, which means they
must be adhered to by Council officers
when making decisions about land use in
the identified area. They also cannot be
amended without an amendment being
made to the Planning Scheme.

Figure 2: The Kingston Planning Scheme

Source: The Kingston Planning Scheme Source: Kington City Council

Figure 3: Timeline of decisions considered by this investigation

The investigation

Allegations of collusion between the Senior Planner and the Developer of Patterson Lakes Marina

Complaints alleged that the Council’s
Senior Planner knowingly approved
development applications inconsistent
with the Planning Scheme to favour the
Developer of the Patterson Lakes Marina
and its Director.

The subject land is the Endeavour Cove
Comprehensive Development Zone, which
was developed over the last twentyfive
years to become what is now the
Patterson Lakes Marina.

To understand whether the Senior
Planner made decisions inconsistent with
relevant planning provisions to benefit the
Developer, the investigation examined the
history of development in the Patterson
Lakes Marina.

The Patterson Lakes Marina

The Whalers Cove Development Concept

The development of the Patterson
Lakes Marina commenced in 1988 with
the developer, Capital Resorts Group
Ltd (‘CRG’) putting forward to Council
a proposal to rezone the land (21.7 ha)
from four zones, being General Industrial,
Residential C, Reserved Living and Special
Use 5 (boat building) to a Comprehensive
Development Zone (‘CDZ’).

Media reports at the time suggest that
CRG anticipated what was then called
Runaway Bay/Whalers Cove would cost
$50 million to develop. It was intended
to include an eight-storey apartment
complex, a riverside carpark and hotel/
motel.

The Whalers Cove Marina Concept Plan,
at Figure 4 shows the extent to which
the Marina was first imagined as a retail
and commercial space, accessible to all
Patterson Lakes residents. There were
several restaurants, retail and office spaces
proposed in the concept.

CRG’s proposal for the Marina was on
public exhibition, had a submission process
and a Ministerial Panel hearing during 1988
and 1989. In their proposal, CRG described
the proposed Marina as being an ‘attractive
centre for leisure and tourism’.

The report prepared by the Ministerial
Panel dated 23 August 1989 noted
there were 55 submissions received
from interested parties. One of the main
concerns was there was no justification
for the retail and office component of the
proposed development and that these
businesses would directly compete with
existing retail.

The Panel disagreed, finding the
planned retail businesses would be a net
community benefit ‘because it creates a
facility, a service and an environment which
does not exist elsewhere in Melbourne’.

There were a number of submissions
from members of the public concerned
about ‘the nature of Comprehensive
Development zoning’.

These submissions identified:

an amendment for a CDZ requires only
a broad concept plan, the development
and the management prescriptions which
would enable the public to understand
the proposal more fully are prepared only
subsequent to the last stage at which
the public has a direct input. Thereafter,
judgemental decisions are made by the
Responsible Authority.

The Panel recognised that while ‘this
difficulty can never be overcome fully … the
detailed nature of the Concept Plan means
that actual development would be unlikely
to differ materially from the proposals put
to the Panel’.

On 24 January 1990, approval of the
Amendment was published in the
Government Gazette, resulting in the CDZ
provisions being included in the Chelsea
and Springvale Planning Schemes.

However, soon after approval, CRG began
experiencing financial problems and in
1994, the Developer purchased the site.

Figure 4: Whalers Cover Marina Concept Plan



Source: Kingston City Council

The Endeavour Cove Development Concept

The Developer called the new development
concept the Endeavour Cove. News articles
from 1994 described the proposal as a
‘$100-million residential and commercial
precinct’ that would include 119 townhouses,
124 apartments and 10 penthouses to
accommodate 250 residences.

The Endeavour Cove Development
Concept also included plans for a
‘commercial centre that will include shops,
offices, café, restaurant and a small hotel’.

In 1994, the City of Chelsea considered and
adopted a report approving the new CDP
Site Precinct Plan.

The investigation understands that the
Developer commenced development on
the Marina based on the 1994 Plans, with
rows of terrace houses being constructed
at the south-east end and east side of the
land. Residential development continued
on the land in following years.

Some planning permits for subdivision
were also issued by the Council, including
the 40-lot subdivision for townhouses that
became the Settlers Cove area, marked on
the 1994 plans as commercial precinct and
car parking.

In 1999, the Developer proposed a
new variation of the Endeavour Cove
Development Concept to be incorporated
into the Kingston Planning Scheme.

The new plan differed from the 1994 Plans,
including greater residential development
across the site.

In the early 2000s, several further
residential developments were completed,
including four and five storey homes on
North Shore Drive. The largest building in
the Marina, ‘Pier One’ was completed in
2018.

Figure 5: A newspaper article from 13 July 1994 depicting the Endeavour Cove development proposal for the Marina

Source: Supplied by witness

The Marina now

Council advised the investigation that
there are 396 residences in the Marina
and the number of residents about 1000.
This is significantly more than the 250
residences proposed in the Endeavour
Cove Development Concept in 1994.

At interview, a Marina resident said he
understood the original vision for the
Patterson Lakes Marina was ‘something
like Port Douglas with hotels, restaurants,
boats, busy with 25% open public space
and commercial businesses’. Instead, he
says, it has been developed as an ‘almost
entirely residential gated community.

In response to the draft report, lawyers
for the Developer said ‘the site has been
developed and does contain a number
of residential allotments, part of which
are a gated community, but also contains
a commercial marina … a hotel … fuel
and sewerage facilities, a number of
commercial enterprises ... a swim school
and open public space’.

In 2019, VCAT described the current
Marina as ‘largely developed with a mix of
townhouses and apartments encircling the
Marina, interspersed with boat storage and
marina operations’.

What was approved

The development changed over the years, from the original vision in the 1990s to 2018.More buildings and higher buildings were approved by the council.

In 2019, VCAT described the final marina as largely developed with a mix of townhouses
and apartments encircling the marina. One resident said it had been developed ‘almost
entirely as a residential gated community.’

Figure 6: How a development changed
Source: Victorian Ombudsman

The Comprehensive Development Plan

When the Kingston Planning Scheme was
created in 1999, the CDZ for the land ‘on
the north side of McLeod Road, Patterson
Lakes, generally known as the Endeavour
Cove Marina’ was incorporated into the
Planning Scheme. The Scheme references
the Endeavour Cove Comprehensive
Development Plan (‘1999 CDP’) as an
Incorporated Document (clause 72.04).

The investigation also identified a further
CDP signed by the Senior Planner on 19
February 2002. The status and standing
of the 2002 CDP is unclear. The 2002 CDP
is not considered to have the status of
an incorporated document, because an
updated incorporated CDP would have
required a Planning Scheme amendment
- and there is no evidence of this action
having been taken.

As the 1999 CDP is the most recent version
of the CDP incorporated into the Planning
Scheme, the investigation is satisfied
that it is the instrument that informed
the decisions made by the Council in the
Endeavour Cove Comprehensive Zone that
are the subject of the allegations.

The 1999 CDP

The 1999 CDP, illustrated in Figure 7, is the
single sheet planning map of the precinct
identifying the areas to be used for
residential, commercial and mixed-uses as
well as areas designated for public access
and car park provisions.

The CDP is roughly divided into precincts
that have different height restrictions
noted on them, some noted in storeys and
others in RL (Relative Level) as noted in
Figure 8 (a magnified section of the CDP).

In addition to the notations made on
the plans, Council planning officers are
required to take into account Schedule 1
to Clause 37.02 of the Kingston Planning
Scheme (‘Schedule 1’) when making
decisions on the CDP.

Schedule 1 details the purpose of the CDP;
the uses that can be made of land in the
CDP; and the conditions that trigger the
need for a permit.

Schedule 1 lists the purposes of the CDP
as, in part:

• To encourage the development of land
south of the Patterson River and north
of McLeod Road, Patterson Lakes as a
marina-based mixed-use area.
• To assist the coordinated development
of the land for marina facilities, boat
storage, boat servicing and residential,
tourism, office, entertainment, retailing
and associated uses.
• To provide greater public access for
pedestrians and cyclists, to and along
the Patterson Riverbank.
• To ensure the land is developed in an
orderly manner.
• To encourage a high standard of urban
design.

One of the unusual aspects of these
planning controls is that no planning
permit is required for any type of
development or buildings and works.

Instead, Schedule 1 requires the developer
to submit ‘development plans’ that are
‘generally in accordance’ with the 1999 CDP.

Some of the requirements a development
plan must comply with include the height
provisions marked on the plans for each
precinct. Schedule 1 states that ‘A building
or works must not exceed the height
above the Australian Height Datum (‘AHD’)
for any particular area as shown on [the
1999 CDP]’.

Figure 7: The 1999 CDP

Source: Kingston Planning Scheme

Figure 8: A section of the CDP showing height restrictions

Source: Kingston Planning Scheme

There are no AHD references on the 1999
CDP. As noted, the heights are referred
to as storeys or Relative Levels (‘RLs’).
According to advice provided by Russell
Kennedy lawyers on 8 May 2014 and in the
Hall & Willcox Final Report, while the 1999
CDP refers to another datum description
(RLs) ‘the height controls roughly match
AHD levels’. This means that when a
development proposal identifies the height
of a building in AHD, this number must not
exceed the RL number noted on the 1999
CDP.

A planning permit is not required for
many of the uses envisaged within the
precinct, including dwelling uses. However,
this is conditional on the provision of a
specified number of car parking spaces
for the dwelling (two covered spaces and
one visitor space per dwelling). If this car
parking condition is not met, then the
use and car parking reduction require a
planning permit. This permit would follow
the standard advertising and consultation
processes.

The legislative and policy framework
required for decisions made about
development proposals in the CDZ is
illustrated in Figure 9.

Of the planning controls, Hall & Willcox
said:

It is not uncommon for a CDZ schedule to
exempt specific uses from a building and
works permit requirement, however it is
unusual to provide a blanket exemption
for all buildings and works. It means that
for all residential use proposals that meet
the parking provision, there is no permit
trigger, and the developer just needs to
submit a set of development plans for
endorsement that generally accords with
the CDP. This means that a development
plan submitted for a proposal does not
need to be exactly the same as the CDP.
There is some flexibility and discretion to
be applied.

The question of whether the Senior
Planner improperly exercised this
discretion when making decisions that
benefited the Developer is the central
point of contention in the allegations made
about him.

Figure 9: Legislative and policy framework for planning decisions made in the Patterson Lakes Marina Precinct

The Senior Planner at Council

Figure 10: The Senior Planner
Source: Victorian Ombudsman

The relationship between the Senior Planner and the Developer

From 2018 onwards, some residents and
concerned third parties formed the view
that the Senior Planner had intentionally
provided non-compliant Planning Consents
and approvals to the Developer in the
Marina precinct.

Witnesses said that the Senior Planner
had an improper relationship with the
Developer and was being influenced by
bribes or kickbacks to make his decisions.

A Marina resident told the investigation
that he and other residents became
suspicious about the relationship between
the Senior Planner and the Developer
when preparing for the VCAT matter in
2019. He said:

It sounded off alarm bells that essentially,
a single senior planner has had a twentyfive
year relationship with a single
developer within one Zone and we’ve
ended up with something very, very
different than what the panel had in mind
when it was first committed to be zoned
in that way.

Another local resident said the Senior
Planner and the Developer’s Director
looked ‘quite chummy’ at a Community
Meeting in January 2019. He also said the
Senior Planner ‘continually obstructed the
process’ when he requested information
about KP2018/459.

Several witnesses also said they emailed
and called the Senior Planner and other
senior officers with concerns about the
CDZ for up to a year before receiving
responses, and that the responses, when
received, were deficient.

A Councillor described a meeting they had
with the Senior Planner when the Director
called the Senior Planner’s mobile, then
sent a text that said, ‘Call me back, urgent’.
The Councillor said they thought this
indicated an overly familiar relationship.
The Councillor also described a community
meeting held in February 2019 in which
they formed the view that the Senior
Planner ‘spoke on behalf of’ the Developer
with respect to the car parking reduction
application, which they said was ‘unusual’.

In response to the draft report, lawyers for
the Developer rejected the suggestion that
the Senior Planner spoke on behalf of the
Developer:
he provided a short summary about the
CDZ and its operation. [The Director] and
his traffic engineer spoke to the merits
of the permit application and answered
questions from local residents.

In their second report, Hall & Willcox note
they asked the Senior Planner about his
relationship with the Developer. He is
recorded as saying he might meet with
them ‘once or twice a year and maybe
more if they had things going on’. He
acknowledged a ‘cordial relationship’ but
said that ‘it was always challenging in
getting them to do anything’.

He reportedly clarified this comment
later in his meeting with the CEO in
which he said it was a reference to the
Developer ‘being reluctant to update
the CDP’. The investigation notes that
updating the CDP, which would require
a planning scheme amendment, would
have been a decision for the Council and
the Minister for Planning to make, not the
Developer. The Developer would be an
interested stakeholder in the amendment
consideration process, but not responsible
for initiating or financing it.

The investigation’s searches showed that
between 2013-20:


• The Director left phone messages for
the Senior Planner two or three times a
year at most via his work number.
• The Director emailed the Senior
Planner regularly when a development
was being considered by the Council,
to request an update or to follow up
on documents and the like. The tone
of these emails was professional and
brief.
• The Senior Planner and the Director
had an annual ‘Christmas lunch’ most
years from 2014 to 2018 at restaurants.
Outlook calendar invites indicate
the venues for these lunches were
‘Rockpool’ and ‘Bacash’ restaurants.
• It appeared that the Senior Planner
and the Director corresponded with
each other using work emails, rather
than personal email accounts.
• The Senior Planner appeared to
rarely use his work email for personal
reasons, except for some personal
administration.
• The Senior Planner also corresponded
with the Developer’s architect by
email. All appeared professional in
tone and nature.

In his meeting with the former Council
CEO in February 2020, the Senior Planner
admitted to having lunch with the Director
and architect. He told the CEO ‘it was
about 5 years or so ago and the location
was potentially the Cove Hotel’. He also
told the CEO he ‘wasn’t sure’ if he was
dealing with any application for the
Developer, on those lunch occasions.

These statements do not correspond with
the frequency and location of meetings
reflected in email records, which show
at least four ‘Christmas lunch’ meetings.
The investigation did not sight evidence
that the Senior Planner paid for his own
meals on these occasions or whether they
were paid for by the Director. Planning
file KP645/13 records the Senior Planner
as working actively on the Pier One
development from 2013 to 2015, the period
of time in which he admits he met with the
Director for lunch.

In response to the draft report, lawyers for
the Developer and Director stated:

Much has been made of the four lunches
between [the Director] and [the Senior
Planner] between 2014 and 2018. We note
that these lunches were also attended
by our client’s architect … and lasted
for approximately between one to one
and half hours. There was minimal or
no alcohol consumed with all parties
heading back to work at the conclusion.
The lunches were in the nature of a
professional meeting.

The Senior Planner does not appear to have
recorded these meetings on the planning
files reviewed, nor did he declare a conflict
of interest. When the CEO asked him
whether he had declared the lunches he
had with the Director, he said ‘probably not’.

The investigation did not identify other
evidence suggestive of an improper
relationship between the Senior Planner
and the Director or Developer.

However, the Senior Planner’s conduct
shows a concerning lack of judgement
in failing to properly record meetings
with the Developer and declare his
conflict of interest in lunching with the
Director. Further, the Senior Planner does
not appear to have been truthful when
describing to the CEO how often he met
with the Director.

Council has advised the investigation
that while senior officers are required
to make an annual declaration of their
Ordinary Returns, conflicts of interest
are not recorded in the same manner.
Instead, senior officers and Councillors are
expected to declare and manage conflicts
of interest as they arise. The way in which
the Council manages conflicts of interest is
discussed further below.

Investigation of collusion, bribes or kickbacks

Extensive enquiries, including using the
Ombudsman’s coercive powers, were
made to assess whether the Senior Planner
received kickbacks or bribes in exchange
for favourable treatment of planning
applications made by the Developer, as
alleged. (The Ombudsman’s powers do not
extend to covert surveillance methods.)

The investigation reviewed:

• Information provided in the initial
complaints and by witnesses
interviewed
• Bank account statements obtained
under summons
• Relevant emails between parties
obtained under summons
• Publicly available records.

Information provided to the investigation

Several witnesses alleged an improper
relationship between the Director and
the Senior Planner. They said the basis
of their views were conversations they
had overheard or that had formed part of
the ‘coffee talk’ around the Marina. They
acknowledged they did not have any
evidence to support their suspicions that
the Senior Planner had been offered or
received any bribes or kickbacks from the
Developer.

Further investigative steps, including
reviewing email exchanges and bank
records, provided no evidence to support
the witnesses’ views.

Bank accounts, emails, open source intelligence

The parties’ banks statements spanning
seven years did not contain transactions
that appeared to be associated with
improper payments.

Council planning emails around decisionmaking
in the Patterson Lakes precinct did
not reveal evidence of financial or other
incentives having been offered or provided.

Extensive open source searches also did
not identify links between the Senior
Planner and the Director or Developer.

The relationship between the Senior Planner and other planning staff

It was also alleged that the Senior Planner
attempted to improperly influence
planning staff to make decisions favourable
to the Developer and other developers.
This allegation forms part of the
anonymous disclosure. The investigation
was limited in seeking further details about
this alleged conduct.

The investigation noted that a Team
Leader who reported to the Senior
Planner at the time told Hall & Willcox
that the Senior Planner had ‘referred the
KP2018/459 application to him, and said
that plans had already been approved, and
asked for a Band 5 planner to assess it’.

The investigation understands that a Band
5 planner is a planning officer with up to
four years’ experience. The Team Leader’s
comment appeared to imply the Senior
Planner asked for a less experienced
planner to deal with the development
application, so he could influence the
planning officer to come to a particular
outcome.

The Senior Planner refuted this suggestion
in his meeting with the CEO, where he
reportedly said, ‘he did not hand select a
planner to deal with the application’.

However, the planning files for KP2018/459
show that both Planning Officer A, who
completed the early assessment of the
application and Planning Officer B, who
authored the report for Council, were
recent graduates when they completed
this work.

Email searches showed:

• The planning officers were allocated
the file to work on by their Team
Leader, not the Senior Planner directly.
• There were very few interactions
between the planning officers and the
Senior Planner about the impugned
decisions.
• The emails where the Senior Planner
did interact with planning staff about
Council reports did not suggest
pressure or influence being applied by
the Senior Planner.
• There were also examples of the
Director contacting the Senior Planner
for an update on a decision and the
Senior Planner referring them to the
planning officer working on the file
directly, rather than getting involved.
This suggested he was not involving
himself unduly in the Developer’s
matters.
• When news of the Senior Planner’s
retirement from the Council was
announced on 30 April 2020 (his last
day was in July 2020), he received
numerous messages of appreciation
and support from planning officers
who reported to him. While positive
relationships with some staff do not
negate the possibility of improper
influence in his relationships, it forms
part of the evidentiary picture of how
he was regarded internally.

The investigation found no evidence
suggestive of the Senior Planner
improperly influencing planning staff to
make decisions that were favourable to the
Developer.

Poor decision-making by Senior Planner regarding the CDP

The investigation did not find evidence
that the Senior Planner gave the Developer
favourable treatment in exchange
for bribes or kickbacks. However, the
investigation identified several deficiencies
in the Senior Planner’s recording and
reasoning of his decisions for some
developments in the Marina precinct. This
likely created the impression that he was
deliberately making decisions that were
not compliant with the CDP.

The investigation completed a detailed
review of nine impugned planning
decisions, identified in pink and blue
(Figure 3: Timeline of decisions considered
by this investigation on page 22) as to
their compliance with the requirement of
the CDP. Expert planning advice to the
investigation identified problems with the
earlier six decisions where there was no
evidence of officer assessment and key
documents were missing.

The investigation focussed, however, on
the three most recent decisions made by
the Senior Planner as Council delegate
in the Marina Quay development, and
the first and second iteration of the ‘Pier
One’ development. These decisions are
identified in blue in Figure 3: Timeline of
decisions considered by this investigation
on page 22.

These three decisions became the focus
of public attention from 2018 onwards.
They gave rise to suspicions by some
community members of collusion between
the Developer and Council officers,
because decisions were viewed as not
being made in strict accordance with the
applicable Scheme. Neither were they
explained or recorded with sufficient detail
to satisfy Councillors or residents of the
robustness, transparency and legitimacy of
the planning assessment process.

Of note, although more junior planning
officers conducted assessments and
prepared reports, the investigation was
satisfied that the Senior Planner was the
delegated decision-maker pursuant to the
Council’s Instrument of Delegation.

The Senior Planner should have been
cognisant of three forms of planning
‘enablers’ for the site.

Each of these ‘enablers’ are intended to
achieve an orderly planned development
outcome:

• the Planning Scheme and any
amendments
• the Planning Consents certifying that
the proposed development satisfied
the conditions of the relevant Planning
Scheme
• the Planning Permit Applications
submitted, when required.

There were flaws in the use and application
of each of these ‘enablers’ by the Senior
Planner, that over time diluted their
effectiveness in achieving an integrated,
planned development outcome.

The Mayor advised, in response to the
draft report, that Council was preparing
a Planning Scheme amendment for the
Endeavour Cove precinct to update
the overall layouts on the site. He also
explained that Council instigated a
declaratory proceeding at VCAT to review
the decision the Senior Planner made in
2018, set for trial in March 2022.

In their response to the draft report, the
Developer’s lawyers also advised that the
question of whether the 2018 Development
Plans endorsed by Council in March 2018
were compliant with the CDP is subject to
VCAT review.

None of the observations made by the
investigation about the conduct of the
Senior Planner constitute any conclusions
about the legality or otherwise of decisions
being considered by VCAT or the Council.
Instead, the investigation reviewed the
extent to which, as a delegated decisionmaker,
the Senior Planner acted with the
good judgement expected of a senior
officer. This included having sound
knowledge of the laws and regulations
intended to guide his decisions.

KP2018/459: The Marina Quay development

At interview, a Councillor said they first
became aware of potential issues with
the Senior Planner’s decisions when
residents began complaining to them
and other Councillors about a decision to
approve the construction of two ten-storey
buildings and one five-storey building in
the Marina precinct.

The three buildings of the Marina Quay
development would comprise 236 new
dwellings. The two ten-storey buildings
would surround and adjoin the existing
boat storage shed and the five-storey
building would be next to the Cove Hotel,
as illustrated in Figure 11.

In the Council meeting on 22 May 2019,
another Councillor summarised the
community’s concerns:

Loudly and clearly the community has
rejected the proposal … it is not what
was planned many years ago when this
Comprehensive Development Plan was
put into place and [the developer] cannot
have a double-dipping situation where
[he] takes what’s advantageous to [him]
but all the other rules that restrict what
[he] does should be forgotten about,
that’s not how it works … the developer
knew what he was getting into with
this zone. Now is not the time to cherry
pick through and remove what is very
important to the community.

A review of the planning file KP2018/459
shows that the decision to support (via
the Planning Consent process) this Marina
Quay development was made by the
Senior Planner as delegate on 8 March
2018. He endorsed the development plans
provided by the Developer ‘pursuant to
[the Schedule]’, as being compliant with
the CDP. He confirmed this in writing to
the Director on 20 March 2018. This is
called a Planning Consent as it required
only that the Council, in this case the
Senior Planner as the authorised delegate,
endorse the plans as CDP compliant.

The investigation noted the 1999 CDP
did not appear to provide for buildings of
these heights in the locations identified on
the endorsed plans. As shown in Figure 12,
a magnified section of the CDP, the site for
the ten-storey building that was planned
to surround the boat storage, has an RL
of 20.35, being the height of the existing
boat storage. The endorsed plans for this
building showed a proposed height of
31.60 AHD.

The ten-storey building in front of the boat
storage was not depicted in the position
proposed. But there were two different
notations for proposed apartments on the
1999 CDP, one with an RL of 18.85 and one
with an RL of 31.80 in different positions.
The ten-storey building proposed for this
site had a height of 33.60 AHD.

In response to the draft report, the Senior
Planner said he did not agree that the 1999
CDP made no provision for these buildings
in the locations identified. He said the
proposed ten-storey building in front of
the boat storage had an RL of 31.80 and
was therefore consistent with the 1999
CDP - noting that it was difficult to see the
height on the plan itself.

However, he agreed that the other tenstorey
building, depicted where the
existing boat storage shed was situated,
was too high for the 1999 CDP. He said:

the proposed building on this footprint
should have been no higher than RL20.35.
In hindsight, this was clearly an accidental
oversight on my behalf.

The five-storey building that makes up
the balance of the development was to
be located in an area designated as selfcontained
apartments in the 1999 CDP,
next to the Cove Hotel. An RL of 9.35 was
nominated for the Cove Hotel and the site
nominated for the five-storey building was
being used as part of the Cove Hotel’s
parking requirements at the time the
development received Council consent.

Figure 11: KP2018/459: The Marina Quay development

Figure 12: A Section of the CDP showing heights for Marina Quay development

The investigation could not locate
documentary evidence of any critical
assessment by the Senior Planner of
the proposed development plans. Hall &
Willcox similarly observed:
The Council file does not appear to
contain any documents which explain the
background or rationale for the decision
to endorse the plans for this proposal.

Significantly, the investigation noted that
similar prior decisions appear not to have
been considered by the Senior Planner
when approving these plans. As the same
parking and height provisions had been
applied in previous decisions, it would be
expected that he would have referred to
them, if only to explain why they didn’t
apply to this proposal.

In his interview with Hall & Willcox, the
Senior Planner acknowledged he had
initially assessed the Marina Quay proposal
as being ‘generally in accordance with the
CDP’. But he now accepted he overlooked
the 20.35RL nominated height for the boat
storage site. Hall & Willcox noted that ‘the
only rational explanation he could offer
was that he had assessed the 31.80RL
nominated for the site immediately to the
south as being the applicable height for
that broader location.’

No permit was required to be issued for
the building and dwelling use aspect of
the Marina Quay development. Notably,
if the Developer had not subsequently
applied for a car parking reduction permit,
this development would have been
constructed on the basis of the Senior
Planner’s assessment alone.

The planning files show that the Marina
Quay development was designed to
include 236 new dwellings, requiring 708
new car parks to be compliant with the
Schedule (three car parks per dwelling).

However, the Developer proposed providing
317 fewer car parks than was required by
the planning controls. Effectively, most sites
within the precinct had been developed
by this time, and land contemplated as
providing car parking in the original 1999
CDP had been built on - prompting the
Developer to request a reduction.

As the development plans submitted
did not provide the required number of
car parks, the Developer was required to
apply for a planning permit to reduce the
number of car parks from 708 to the 391
car parks he wanted to provide.

After meeting with the Senior Planner
on 16 May 2018, the Director applied for
the car parking reduction permit on 17
May 2018. A report was then prepared by
Planning Officer B in which the application
was considered with respect to the
requirements in the CDP and the Schedule
(‘report’). A recommendation was made
to issue a Notice of Decision to Grant a
Permit (reflecting the receipt of objections
to the application) for the parking
reduction.

The report, dated 22 May 2019, gave the
following reasons for supporting the
issuing of the permit:

• The CDZ parking requirements are
considered to be onerous and unnecessary
in this instance and it is considered that car
parking provision in excess of the minimum
requirements of Clause 52.06 – Car Parking
(which operates outside of the CDZ in
other Council zones) would be acceptable.
• The Traffic Report provided to Council
supported a reduction in car parking,
noting that a previous development had
been approved which also fell below the
CDP car parking requirements.
• The proposal would not result in a
detrimental outcome on traffic movements
within the surrounding areas nor is it likely
to lead increased car parking demand.

The investigation identified several issues
with the report prepared for KP2018/459.

Impact on traffic flow and amenity

The planning files showed that VicRoads
provided a report to Council on 14
November 2018 in which VicRoads raised
concerns about:
• the impact of the development on the
arterial road network
• line of sight issues for increased traffic
exiting Pier One Drive onto McLeod
Road (‘the intersection’).

VicRoads ultimately recommended the
intersection be restricted to provide for left
in/left out movements only.

While the planning officer report
recommended the left in/left out access
arrangements be included as conditions
on the permit, it provided no detail about
how the impact on the arterial road would
be addressed nor subsequent impacts on
resident safety.

In his response to the draft report, the
Senior Planner disagreed there was no
detail provided about traffic concerns
in the report. He says that normally
traffic matters are referred to Council’s
Traffic and Transport Department; and
for this proposal, the officer’s report did
reference VicRoads, the Developer’s Traffic
Assessment and comments of Council’s
traffic engineer.

However, the planning officer’s report
failed to provide a critical and reasoned
assessment to detail how the references to
other comments informed his conclusion
and the subsequent conditions included in
the recommendation.

The impact on visitor car parking for Cove Hotel patrons

In recommending that Council adopt the
less onerous car parking requirements,
the report stated that ‘the (proposed)
car parking is considered sufficient for
the demand of future residents and their
visitors’.

There is no information provided in the
report to explain how the planning officer
came to the conclusions about future
demands in the precinct. No reference
was made to visitor generation surveys,
for example, which the investigation
understands would normally form the basis
of such an assessment.

Significantly, the report also failed to
mention an objection that had been raised
by the tenant of the Cove Hotel about
where parking for the Hotel would be
located on the newly developed site. In his
response to the draft report, the Senior
Planner said he could not comment on the
objection which may have been raised, as
he did not recall the specifics of the matter.

Figure 11 shows that the construction of
the five-storey building to the east of
the Cove Hotel would have reduced the
availability of car parks in the vicinity of
the Hotel. Melbourne Racing Club, the
manager of the Cove Hotel, strongly
objected to Council’s decision to permit
the car parking reduction for KP2018/459.
The Club said it ‘had fundamental concerns
in relation to the proposed number of car
parking spaces which will be lost’ as a
result of the Marina Quay developments.

The investigation understands that the
Hotel is required, by an amended permit
dated 31 May 2001, to have at least 152
parking spaces. In a recent County Court
matter, the Director explained that he
had since come to an agreement with the
Melbourne Racing Club to use car parks in
a riverside carpark to make up for the loss
of proximate parking to the Hotel.

The Director said, ‘under the new lease
we've entered into with the Cove Hotel, we
provide 125 car parks around the perimeter
of the hotel and 27 on the riverbank for a
total of 152 car parks’.

The practical implication of moving some
of the Cove Hotel’s required parking to the
riverside car park is that these car parks
are located outside the Marina’s security
gates, accessible only by a ‘fob’ pass
outside of business hours and over 100
metres away from the Hotel itself.

In response to the draft report, lawyers
for the Developer stated, ‘it is materially
wrong to conclude that the grant of permit
KP2018/459 would have reduced the
number of car parks allocated to the Cove
Hotel’. They also said that the Cove Hotel
has never commenced or threatened legal
proceedings with the Developer about
the provision of car parks and expressly
withdrew their objection to KP2018/459
before the permit application was referred
to VCAT for determination.

Figure 13: Riverside Car park- Patterson Lakes Marina

The investigation understands that the
Director and the Melbourne Racing Club
eventually came to an agreement on this
matter in 2019. However, when the report
recommending the car-park reduction
was made to Council on 22 May 2019, the
potential impact of this change on the
amenity of residents and visitors and the
nature of the objection by the Racing Club
was not brought to the attention of the
Councillor group. This was a significant
deficiency in the report.

The ambiguity of height controls in the CDP

The investigation understands that by the
time the Permit was being considered
in 2018, extensive debate had occurred
within the planning department about
the operation of height provisions in the
precinct.

As noted, the CDP contains a mandatory
height control that provides that buildings
and works must not exceed the height
above the Australian Height Datum for
any particular area where a Relative Level
is identified on the CDP. However, there
was a debate in the planning department
about whether height controls are only
mandatory where a proposal otherwise
triggers a planning permit, and if not, some
discretion can be applied to height.

In the report for the Marina Quay
development, the officer did not reference
this debate or explain the basis on which
the Senior Planner had endorsed two tenstorey
and one five-storey building in the
identified precincts as being compliant
with the CDP. While it could be argued that
the report was only concerned with the
application for the car parking reduction, it
provided commentary on the building and
works:

The final built form outcome would
positively contribute to a unique,
contemporary design of the highest
urban design quality on one of the key
gateway sites within the Patterson Lakes
Marina. This results in a building that
positively contributes to the skyline when
viewed from both the Patterson River and
McLeod Road.

By providing this commentary on the final
form of the buildings without reference to
height assessments, the report provided
one-sided and arguably incomplete
information to Council.

Finally, the report misdescribed the fivestorey
building as a three-storey building.
In his interview with Hall & Willcox, the
Senior Planner said ‘this was a mistake
that no one had picked up’ and that
‘planning officers had relied on the report
of the traffic consultant who called it
a three-storey building without having
proper regard or referencing back to the
plans’. The investigation noted this as a
further example of poor or incomplete
record keeping by the Council’s planning
department.

In response to the draft report, the Senior
Planner submitted there were alternative
interpretations in considering and
assessing the proposals within the CDZ.
He said, ‘although the Schedule states that
building or heights must not exceed the
height above Australian Height Datum, the
only levels shown on the CDP are Relative
Levels (RL)’.

After receiving what one Councillor
described as ‘hundreds’ of written
objections from residents, Councillors
unanimously rejected the proposal to allow
for the car parking reduction at Marina
Quay in a Council Meeting on 23 May 2019.

When the Developer sought a review
of this decision by VCAT, the tribunal
affirmed the Council’s decision. The VCAT
members noted the following:

• They agreed with the Developer
that clause 52.06 (applicable car
parking rates outside of the CDZ)
is widely accepted as appropriately
representing the car parking demand
of the residential land use.
• However, it was the scheme itself
which treated this Marina area
differently to other parts of Melbourne
via the unique planning controls
applying to it. Therefore, compliance
with clause 52.06 was not sufficient
to ensure compliance with the unique
controls of the CDZ.
• Clause 52.06 and the CDZ are two
distinct planning controls, each with
their own permit triggers. Had it been
enough that compliance with clause
52.06 would be sufficient to justify
a reduction in car parking under the
CDZ, the CDZ would have said so.
• It may be that this different rate was
simply outdated and that the car
parking demand of residents of the
Marina and their visitors was not
substantively different to residents of
other areas.

As previously noted, the investigation
understands that a further VCAT hearing
about the Marina Quay development plans
and applications is scheduled for hearing
in March 2022.

Community concerns about Council planning decisions

The VCAT outcome was received as
a victory for resident objectors. But it
also brought into the public domain
concerns that the Council’s planning
department had been complicit in the
‘overdevelopment’ of the precinct over a
number of years - triggering a number of
reviews of previous decisions, including
this investigation.

The two previous decisions of relevance to
the allegations referred to the investigation
were KP645/2013 and KP547/2011, both
versions of the Pier One development.

KP645/2013: The as-built version of the Pier One development

A Marina resident gave evidence to the
investigation about the impact of continual
residential development on the traffic and
parking issues in the area. He submitted
that the Pier One development (KP645/13)
should not have been given a permit to be
built. This was because, at six storeys in
height, it was not ‘generally in accordance’
with the 1999 CDP, which clearly shows a
car park on the site.

Figure 15 is the magnified precinct of
the 1999 CDP, the site on which Pier One
was later built, confirming a car park was
intended for that area of the Marina.

Figure 14: KP645/2013: The as-built version of the Pier One development

Figure 15: A section of the CDP showing a car park

The investigation reviewed this file and
noted that a submission was received on
behalf of the Developer justifying why the
plans should be endorsed, even though
they exceeded the height mandated by the
CDP. The investigation found:
• The Developer’s representatives
openly acknowledged and accepted
that the proposed building height
would be above the height levels
stipulated.
• Legal advice was provided to Council
on 8 May 2014 expressing concern
about Council’s capacity to vary the
height provisions and possible noncompliance
of any approval with the
CDP.
• Lawyers representing the Developer
argued on 29 April 2014 a commonsense
approach should be adopted
based on the purpose of the
provisions.
• The principal debate centred on
whether consideration could be
given to a building height above
those stipulated on the CDP at all; or
whether it could still be approved but
would need to go through a standard
statutory approval process, including
the giving of public notice.
• Ultimately officers relied on legal
advice and negotiations with
representatives of the Developer to
take a view that a height above the
CDP level could be supported.

In his response to the draft report, the
Senior Planner’s lawyer said:
The Senior Planner agrees the 1999 CDP
shows a car park where the Pier One
building was later constructed, however,
around the same time Council Officers
had commissioned and received legal
advice … that a planning permit can be
granted … for a proposal which is not
generally in accordance with the CDP.

Whilst acknowledging the reliance on
legal advice, the investigation notes that
the height controls expressed in the CDP
provided no discretion for exceeding the
height referenced. The Schedule clearly
stated that ‘building or works must not
exceed (emphasis added) the height
above the Australian Height Datum for any
particular area as shown on the Endeavour
Cove Comprehensive Development Plan
(December 1999).

There is no evidence to explain the Senior
Planner’s decision-making recorded on the
planning files reviewed for KP645/2013.
Hall & Willcox reported that the Senior
Planner told them:
in approving this proposal as being
generally in accordance with the CDP, he
had relied, to a degree, on his previous
assessment and approval for the
[previous iteration of Pier One].

He acknowledged he had made that
statement to Hall & Willcox when
responding to the draft report. He went
on to explain that the land identified on
the CDP as a car park does not have
an RL nominated, and therefore it was
considered that a height control did not
apply. However, as the Developer sought a
six-storey building (only one storey higher
than the previous iteration), he considered
it more in keeping with the height levels in
the nearby area - therefore reducing the
possibility of an even taller building in this
location.

The investigation notes that the Senior
Planner said he relied on the prior decision
when approving these plans; however, the
investigation found no evidence of this
recorded on the file for KP645/2013.

Council minutes show that the officer
report on the application for a car parking
reduction for KP645/2013 went to Council
for decision on 25 May 2015. The Senior
Planner told the investigation he recalled
that the application for KP645/2013 was
put to Council at his direction at a Council
Meeting in accordance with the Council
Delegation Policy.

The report for Council, written by Planning
Officer C, recommended a Notice of
Decision to Grant a Permit be approved
to allow the Developer to develop and use
the land for a six-storey building with a
reduction of the car parking requirement
required by the Schedule.

The motion to approve the planning
officer’s recommendation was moved
by Councillor Bearsley and seconded by
Councillor Ronke with the car parking
reduction permit being issued shortly
thereafter, on 29 July 2015.

The investigation identified some
concerning aspects of the planning
officer’s report.

Notably, the report did not reference any
of the issues of the height interpretation,
the subsequent debate and referral to
Russell Kennedy lawyers for legal advice.
Instead, the report states that ‘the
proposal is not considered to generally be
in accordance with the development plan’
and ‘the plan identifies this parcel of land
to be for the use of car parking’. The report
further concludes that ‘there are no height
control limits applicable to this portion
of land’ despite there being significant
ambiguity about this interpretation within
the planning department.

It is likely that such matters would have
been of relevance to the Councillor group
when voting on the matter. In fact, in
the later Council meeting in May 2019
in which the application for car parking
was rejected for KP2018/459, Councillor
Bearsley stated:

In the past we have listened to our
planners when they have provided us with
reports in relation to this development
and unfortunately, we did give a reduction
on a previous development in this area
and we now know how this has ended.

The investigation notes that this comment
suggests a breakdown in trust between the
Councillor group and the planning officers.

KP547/2011: The first iteration of the Pier One development

Before it was approved as a single six
storey building, Pier One had previously
received Planning Consent by the Senior
Planner as two five-storey buildings in
planning file KP547/2011 as represented in
Figure 16.

Consistent with KP645/2013, the first
iteration of the Pier One development was
proposed for a parcel of land identified on
the CDP as a car park.

The Planning Consent for this development
was issued by the Senior Planner on 8
March 2011.

With respect to parking requirements, the
planning files show:

• The original Consent relied on the
Developer constructing a five-level
basement car stacker robotic parking
system; however, no supporting officer
assessment relating to this Consent
was identified in the records Council
provided to the investigation
• Subsequent updated planning
applications submitted by the Developer
continued to rely on a car stacker system
but with a reduced number of spaces
• It appears the Developer relied on
Site A, where Pier One sits now, to
provide part of the parking to serve
the Cove Hotel on an earlier planning
file KP90143 - so it may not have
been reasonably open to the planning
officer to rely on it again
• The planning officer’s assessment
made no reference to possible impacts
of this development on the availability
of car parks or that the original CDP
plans show this area being designated
for car parking.

With respect to height control, the
planning files show:

• the height of the buildings was 225 mm
above the 1999 CDP nominated height
• the Developer’s consultant asserted it
was ‘generally within the heights’ and
‘meeting the intent of this provision’
• the Senior Planner accepted the height
variation based on compliance with
the CDP’s intent.

When asked by Hall & Willcox how he
could support the proposal as being
‘generally in accordance’ with the CDP
when the CDP appeared to show a car
park on this site, the Senior Planner
reportedly responded, ‘upon review and
in hindsight, he probably would not have
gone down the line of supporting it’.

He reportedly said he had ‘relied on the
assessment of the Developer’s planner’.
He also said he had used RL17.00 for the
purpose of assessing an allowable building
height on the site.

Figure 16: The first plans for Pier One

When asked how, in forming the view that
maximum height applied, he had exercised
his discretion to allow the Developer to
exceed the height, the Senior Planner
reportedly noted that the amount over
the height limit was not significant. He
had applied a ‘purposive approach’,
encouraged by the applicant’s report, and
considered it was ‘generally in accordance’
with the height control. He reportedly told
Hall & Willcox that ‘he now accepts that
the control works as a strict maximum,
and that, in hindsight, he overstepped the
mark’.

It is unclear from the planning files why the
first iteration of the Pier One development
was not built. However, the Senior Planner
relied on his initial approval when giving
subsequent approval to KP645/2013,
which he confirmed when interviewed by
Hall & Willcox.

This is another example of a previously
unclear or ambiguous planning decision
being relied upon in subsequent decisions
made by Senior Planner and other
planning officers.

Other concerns about decisions made by the Senior Planner

In addition to allegations that the Senior
Planner deliberately made decisions that
appeared to be non-compliant with the
CDP, a number of other concerns were
raised by witnesses.

Failure to advertise

Residents and Councillors expressed
concerns about lack of public notification
and the opportunity for residents to object
to development in the precinct.

At interview, a local businessperson said:

If you see a building development, you
always expect to see the little yellow signs
showing details of how to comment, etc.
In all my years there I never saw one, [the
Developer] appeared to do pretty much
whatever they wanted.

The investigation is satisfied that the CDP
is structured in a manner that it allows for
Planning Consent (confirming compliance
with zone provisions), which enables
development to occur without the need for
a planning permit. The exercise of assessing
and giving Planning Consent is therefore
exempt from public notice provisions.

The CDZ was given consent as a specific
purpose zone with prescribed site
uses from the onset. This negated the
requirement for the Developer to apply
for each development and for them to be
advertised - provided Council consented to
the plans as being ‘generally in accordance’
with the Scheme.

The investigation concluded that where
planning applications were submitted
by the Developer, the test of material
detriment (as required by the Planning and
Environment Act 1987) was applied and
public notice was given appropriately. The
investigation observed that advertising
was provided when required, as evidenced
by the advertising of the car park
reduction application for KP2018/459
which was publicly advertised and
received ‘hundreds’ of objections.

Residents understandably observed the
notice provisions were not consistent
with standard planning applications, as
the Schedule did not require notice be
given for the vast majority of activities
undertaken by the Developer. But
the investigation found no evidence
of incorrect exercise of public notice
provisions by the Council.

Public open space

One of the reasons Marina residents
objected to KP2018/459 was their view
that the Director had been allowed over
time to build on land they believed was
reserved as public open space.

A Marina resident submitted:

The original plan was very different in terms
of community amenity. It provided 25% of the
CDZ land area around the marina as public
open space excluding roads and parking. The
landscaping of the 3ha Public Open Space
outside and to the north of the zone (at the
riverbank) was supposed to be a community
contribution by the developers with a
playground and barbeques. It is now an open
grassed plain with a gated private carpark
which is only beneficial to the leaseholder.

The photograph in Figure 17 shows the
common space with barbeque area that
residents believed should be open to
public and other residents of the Marina
but is accessible only by residents with the
gated access to Northshore Drive.

At interview, a local businessman also said:

if you look at photos of the Marina in 1994
and look at it now, it’s an absolute joke,
it’s the slum of the future, it was intended
to be a marina and every square bit of dirt
has a building on it.

Figure 17: Open space in the Marina

In response to the draft report, lawyers
for the Developer said it is absurd to
suggest that the Marina is a ‘slum’. They
said ‘Patterson Lakes Marina is regarded
by the local community as a very desirable
place to live’ and ‘property prices have
continually increased at Patterson Lakes
Marina year on year, the most recent sale
of a property located in North Shore Drive,
was a record of $2,600,000’.

The original CDZ provisions required
the owner of the land to enter a legal
agreement with the City of Chelsea
providing for ‘a recreation contribution
which has been calculated on the
basis of 1/20th of the site value … the
contribution will be considered to satisfy
any contribution for land or money
required for “resort and recreation” under
the Local Government Act, Planning and
Environment Act and Subdivision Act’.

The investigation confirmed that the
signed and sealed legal agreements with
the City of Chelsea are on Council’s files.
These agreements required the landowner
to pay the sum of 1/20th of the land
value in satisfaction of the recreation
contribution.

The above provisions essentially ‘front
end’ the open space contribution (in
this case via a monetary contribution).
Once satisfied, it is not possible to seek
further open space contributions (either
monetary or in land). The investigation
understands that, whereas in undeveloped
areas, it is more common to see an open
space contribution take the form of a land
contribution by a developer, in developed
areas this will often take the form of a
financial payment. The money is then
consolidated with other contributions by
Council to purchase or upgrade existing
open space assets in the area.

The investigation is satisfied that land
in the CDZ seen as public open space
could be either common property or land
available to the public but is not formally
zoned as reserved public open space in a
statutory sense.

Subject to satisfying the zoning and
application processes, it is therefore
possible for alternative uses or changes to
the status of the land to be considered and
approved.

While it appeared to some that the
Developer was being given dispensation
by Council to build on public open space,
this was not the case as a monetary
contribution had satisfied the open space
requirement.

Deceleration lane and other permit conditions

A Councillor told the investigation they had
come to understand that a deceleration
lane ‘required to be built under the permit’
for the Pier One building had not been
constructed. They said the planning
officers didn’t enforce this requirement
despite another Councillor putting in a
‘councillor request’ for it to be done.

The Councillor said that after six months
of being told by the planning department
that they would look into it, a motorcyclist
died in a fatal accident. They wondered if
the absence of the deceleration lane may
have been a contributing factor in the
accident.

A local resident and a Marina resident
also raised the issue of a deceleration
lane not being constructed as required.
Both suggested the failure by the Council
to enforce what they understood to be
a permit requirement implied that the
Developer had been given favourable
treatment.

Figure 18: Photo of site of proposed deceleration lane near Pier One

The Senior Planner said it was not his
responsibility to enforce permit planning
requirements. He said this responsibility sat
with Council’s Compliance and Amenity
Department. He said that if the Councillor
had spoken to him, he would have advised
them that this issue didn’t fall within his
department.

The investigation reviewed the documents
in the planning files about the deceleration
lane. The Ombudsman’s planning
consultant advised the investigation:

This matter was raised and assessed as
part of Planning Permit KP547/11. Two
factors make it highly unlikely Council
would be able to enforce compliance with
this expectation.

The most critical impediment is that this
permit has not been acted on and was
superseded by Permit KP 645/13 that
enabled and sanctioned the as built Pier
One development.

Furthermore, it is considered that
the structure and actual obligation
requirement of the condition is poorly
framed and would not have achieved
delivery of the slip lane.

The condition only required a Functional
Layout Plan to show the capacity to
provide the slip lane. It did not actually
require construction of a slip lane and
provided no time frame for when such
action must be undertaken.