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Developer Gurner™ lodges Supreme Court proceedings against Victorian Planning Minister, Richard Wynne after 2ND last minute intervention in minister's own marginal seat

People & Companies / Latest News


May 18 2018

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Lawyers on behalf of developer GURNER™ have lodged Supreme Court proceedings against the Victorian Planning Minister Richard Wynne.

The proceedings state that the Minister “acted unreasonably” and “for an ulterior purpose” when he intervened at the 11th hour to place site-specific height and setback restrictions on the developer’s 23 – 33 Johnston Street, Collingwood site in March this year.

In Court documents submitted this week, the developer’s legal team is seeking a declaration that the Planning Minister’s decision to approve Amendment C237 was affected by legal error, and was invalid or alternatively unlawful, and of no force or effect.

The filed documents claim the Minister acted “beyond power”, and “misapplied his discretion” when he stepped in just 5 business hours before the developer’s scheduled VCAT hearing.

It is alleged that the Minister acted unreasonably and did not bring an impartial and unprejudiced mind to his decision-making, noting that GURNER™ has now been subjected to not one but two specific last minute, site-specific planning controls, under the current Planning Minister, in additional to another intervention at Fishermans Bend.

In the claim, GURNER™ suggest the Minister deliberately manipulated the timings of two of the three cases, which occurred just one day before their respective scheduled VCAT hearings, in order to ensure that the specific planning applications would fail to receive a permit at VCAT.

The developer is also requesting a reversal of the decision to allow a fair and due process to take place, and costs.

In addition to the Johnston Street site, the Minister has also intervened on the developer’s 26 – 56 Queens Parade site in North Fitzroy one day before VCAT, where the Minister implemented ‘draconian’ site-specific objectives and height restrictions to ensure the Koichi Takada-designed scheme could not proceed, forcing the developer to commission a total redesign.

Most recently GURNER™ has been caught up in the Fishermans Bend changes, leaving the developer’s $1.5b three-tower project in limbo, along with 25 other projects affecting multiple other developers.
Two of these three interventions have been made within the Planning Minister’s own electorate, the City of Yarra, which he holds by a slim margin of 1.8 per cent, only months away from the State election.
GURNER™ General Counsel, Kate Cookes said:

“Over the past 18 months the Minister has intervened on no less than three of our planning applications, two of which imposed site-specific limitations that were enforced in a time and
manner that we believe were strategic, to ensure our projects could not proceed at VCAT."

“These interventions within the Minister’s own electorate have resulted in a systematic breakdown of due process which has serious ramifications not just for us but for the wider development industry."

“We will be seeking costs as well as a reversal of the decision to approve the C237 Amendment, and an order that this amendment was unlawful and a misuse of power,” Cookes said.

GURNER™ founder and director, Tim Gurner said:

“We received the details of the new Johnston Street Design Development Overlay (DDO) just five business hours before our VCAT case was set to start, over 16 months after Council had requested the Minister to intervene."

“For the Planning Minister to intervene in such a way - without following any correct consultative process and without any transparency - is very concerning for the industry and the planning system."

“The council’s request to the Minister regarding the formal DDO, did not include any mandatory controls on our site."

“The Planning Minister went significantly further, creating a new sub-precinct for our site only and imposed very serious mandatory controls to ensure our proposal could not succeed, a measure which he did not take for any other site in the entire precinct."

“The Planning Minister will tell the public that he intervened to protect the amenity of CAP, however if that is the case why did he not consult with CAP, council and the surrounding stakeholders to reach the best outcome for the area when we were going through this process two years ago?"

“We have formally issued Freedom of Information requests to the Planning Minister, the Premier’s office, the Department and Council, to ensure that we can discover the true motivations behind this radical action, that was site specific to our proposals without any fair or reasonable consultation process."

“The planning process must be about community consultation; that includes land owners and developers who play a critical role in creating our cities. “ The intent of these proceedings is to ensure that planning outcomes are not held to ransom for political outcomes, and to restore confidence in the industry that is one of the key drivers of the Victorian economy,” he said.

A brief synopsis of the events at 23 – 33 Johnston Street that led to this action are as follows:

? In May 2016, City of Yarra Council wrote to the Planning Minister requesting to apply mandatory height restrictions over Johnston Street and the surrounding precinct
? Critically, their proposed DDO, excluded 23-33 Johnston Street from any mandatory controls
? In September 2016, GURNER™ first submitted its proposed scheme to council, after 12 months of negotiations with City of Yarra Council officers and Collingwood Arts Precinct (CAP)
? In March 2017, the Planning Minister wrote to Council, granting them conditional approval to enforce mandatory restrictions, but only in “exceptional circumstances”
? Council did not deem GURNER™’s 23 – 33 Johnston Street site as necessary to exercise this mandatory authority, and did not propose mandatory maximum height controls or setbacks when reviewing the developer’s permit
? Despite Council planning officer support for the proposal, City of Yarra Councillors refuse the application in August 2017
? GURNER™ immediately lodges a VCAT appeal and is pre-set a hearing date for 5 March 2018. GURNER™ commences building a case based on the current planning conditions and overlays, spending hundreds of thousands of dollars to prepare the necessary documentation
? With no further outcomes or advice from the Minister at that time, GURNER™ continues to build a case based on the current planning conditions
? In late 2017/early 2018, council and the Minister agree to convene a formal panel hearing to commence in June 2018, to conduct an independent consultation process and create a new DDO in a timely, considered manner
? In January 2018, GURNER™ circulates amended plans consistent with the agreements reached with objectors, and responding to Councillor concerns
? On 28 February 2018, the Minister informs Council – not GURNER™ - that he is going to intervene with new site-specific planning controls. He was first requested by Council to do so in late 2017, but did not respond.
? On Friday 2 March, 2018, just 5 business hours before the VCAT hearing is set to commence, the Minister intervenes, imposing mandatory height controls specifically across the developer’s 23 – 33 Johnston Street site, creating a new precinct solely around GURNER™’s site, with no prior warning to the developer
? Proper planning process would have seen a planning panel convened in late June to provide independent consideration of the Council’s proposed new controls.



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