COUNCIL MUST BACK CEO PROMISE ON COVENANTS
“Support for covenant removal ONLY within the Doncaster Hill precinct”
Council pledge to ninety beneficiaries Advice On Restrictive Covenants
“This latter piece of the advice is totally consistent with previous officer advic relating to properties ‘within’ the Doncaster Hill precinct where it would be beneficial for the property owners by consent or agreement to meet the objectives of the Doncaster Hill Strategy and under these circumstances *only*, Council is likely to support removal of a restrictive covenant”. ..*Authors bold emphasis*
Glen Towers Estate
(Author in conclusion) “I can advise that Council has never discussed any intent; holds no plan or desire; and, has not foreshadowed any intention or interest at any time to take any action that would interfere with the protection that beneficiaries enjoy with Restrictive Covenants. A related question seems to be -is anyone else likely to do so? Council is not able to speak for the Minister or his Government but again, it makes no sense legally, practically or politically for any Government to contemplate such action (unless it relates to an Order under section 2010 of the Planning and Environment Act 1987” ..CEO
Officer’s report in minutes below, item 3.27 “It is considered that the intent of the CEO’s assurance letter (when he used the word support) was really to convey that Council would not initiate any process to remove a covenant from land outside the Doncaster Hill precinct”. Council minutes 26th Sept
Walker Street (Click)
There are still growing concerns among the ninety beneficiaries of the Glen Towers Estate’s restrictive covenants that the Manningham Executive may dishonor the above pledge by recommending that it’s councillors support this application for removal of restrictive covenant, be put before a special government panel for decision, the last place you would want to go for an impartial decision, instead of honoring its promise and advising that it be abandoned and thus setting a precedent for refusal of any similar application outside the perimeter of the Doncaster Hill precinct. Various previous attempts by landowners to remove or vary covenants in the heart of the estate by way of a planning permit have been thwarted due to the vigilance of beneficiaries and other neighbours.
The landowner of 42 Walker Street, Doncaster whose previous two planning permit attempts were unsuccessful has now gone down a different path. He is now attempting to remove the covenant by way of a planning scheme amendment enabling the owner to build in accordance with the current high density zoning of sub-Precinct A. (up to 3 storeys) A planning scheme amendment gives the Council as planning authority very wide powers to remove the covenant as long as it can be demonstrated that the removal of the covenant results in a “net community benefit” after the interests of beneficiaries have been considered. The test of “net community benefit” is far less strict than the detriment tests under the planning permit regime. The definition of community is much wider than the Glen Towers Estate and extends to the citizens of Manningham and Victoria. Hence, under the guise of improving housing choices and increasing housing supply in Victoria Councils are able to remove covenants through a planning scheme amendment.
What you must do if you wish to object to this amendment
Being a planning scheme amendment anyone can lodge a submission, not just covenant beneficiaries. The Council will receive objections at least 10 days before the 26 of September 2017 after which time the councillors will vote on whether to pursue or abandon this proposal..
YOU DO NOT NEED TO BE A COVENANT BENEFICIARY TO SEND IN AN OBJECTION.
If you want the character of our area to be maintained it is very important to send in an objection before Friday. A clear message must be sent to Council and Councillors that the character of our area must not be destroyed and that we want them to uphold the covenant that is in place and abandon the application. The number of objections has never been more important!
You can be certain that if the covenant is removed from this particular block (which invariably means 3 storey development and multiple townhouses), it will invariably encourage others in the area to follow so this is not just an isolated concern. We know there have been multiple unsuccessful applications in the past at various addresses and if this is passed by councillors, it will certainly have others referring to this as a precedence and seeking to do the same.
The wording of the covenant applicable to the Glen Towers Estate
The said lot on the said plan of subdivision is sold subject to the express condition that the purchaser his/hers administrators or transferees will not erect nor allow to permit to be erected on the said lot any building other than a single dwelling house together with usual outbuildings and such dwelling house shall have external walls of brick and roof of slate or tile and this condition will be inserted in the transfer to the purchaser (in a form a form to be prescribed by the vendors or their solicitors) as a restrictive covenant by the purchaser to be run with the land and to be noted as such on any certificate of title to be issued.
Email a copy of you objection to councillors because your submissions are not included in the minutes that are put before them..
Councillor Emails and Phone numbers
dot.haynes@manningham.vic.gov.au …………0425718937
anna.chen@manningham.vic.gov.au…………..0429470051
mike.zafiropoulos@manningham.vic.gov.au 0412260709
geoff.gough@manningham.vic.gov.au…………0412345081
michelle.kleinert@manningham.vic.gov.au….0400902822
paula.piccinini@manningham.vic.gov.au…….0411483176
andrew.conlan@manningham.vic.gov.au 0425732238
sophy.galbally@manningham.vic.gov.au…….0409417369
paul.mcleish@manningham.vic.gov.au………0435806684
Your objection doesn’t have to be long. State your name and address and say that you’re objecting to the proposed Amendment C114 of the Manningham Planning Scheme. You might say something like the covenant exists to protect the amenity and neighbourhood character of our area and prohibit overdevelopment and you are asking Council to uphold the present conditions and uphold the rights of the 90+ beneficiaries by abandoning amendment C114. You may also want to say that there is no net benefit to the community of pursuing the amendment and that Council has no way of anticipating the detrimental effect of the amendment on the area burdened by the covenant nor indeed the ramifications for the City of Manningham and beyond
Drop it in at the front desk or..
Send your objection by mail by Friday 28 July , there is some leeway for late submissions:
Ring Manningham Council 98409333 if you have any problems with lodging your submission
Manager City Strategy
PO Box 1
Doncaster
VIC 3108
Or you can submit instantly via http://www.yoursaymanningham.com.au/amendment-c114/survey_tools/amendment-C114-submission-form
45 Comments
If this is what Council wanted to happen, and it seems that they had by recommending that the processing and exhibition of this amendment begin, why had they promised the community that the integrity of the covenants would remain. Why have they allowed the people of Glen Towers to extend their homes or demolish their existing homes as has been the case in several instances? For example there are two in Arthur Street alone at lots 93 and 84 that have recently rebuilt and people we know that live at 78 who have completed extensive renovations. There are also a number of homes in Walker Street that have been renovated. Neither would have proceeded had council revealed its true intention.
The area of Glen Towers Estate may not be ideal for redevelopment because of its steep streets and poor access but it is not much different to most of the lead up streets to the shopping centre and bus interchange.
I feel sorry for the beneficiaries who received assurances but you can’t allow one area so close to the main road to remain in a one block one house category while areas further away are open slather for development…besides the letter from the CEO was written several years ago.
There is no point in banking on the CEO’s undertaking that the covenants would not be removed because he is no longer head of Manningham….that is what some people will be saying. Its the same thing as when you complain to a company about a misrepresentation by one of their salespeople and they respond by saying Joe Smith is no longer with this company etc. etc.
It so happens that CEO who wrote the letter has arguably been the most sought after executive on the local government landscape since he left Manningham. His contract has been extended after having already served 11 years as the head of a council that had been a basket case before he took office.
It is up to the councillors to visit the area and see or themselves. They can knock this on the head if they want to by moving a motion that this application be abandoned. It would clear the air and restore some confidence in the the administration. Councillors should not be treated like stooges.
I could not agree more..they are just poorly paid stooges. Councillors are a buffer zone for the heads of the planning who are never named directly as the authors when these dodgy amendments are up for decision. The bureaucrats sit back and allow the councillors to take all the flack. In this case I can guarantee you that they were never provided with the letter of assurance from the CEO nor the full text of the previous panels decision, from which they have cherry picked, where it was found that the area was unsuitable for the high density development of precinct A that council want to impose on the area.
They may have been stooges in the past but our latest group of Councillors are not just wood ducks. Anyone who believes this should think again. The pro-development mindset of our Manningham planners have had it their own way for far too long. As far as this application for a planning scheme amendment is concerned it is certainly not a hot favorite to be approved by councillors.
It is ridiculous and unfair to suggest that, after 50 years since the restrictive covenants were implemented, the residents who have demolished their homes and built another in accordance with the terms and conditions of the restrictive covenant, are now told that one of the beneficiaries now wants to alter the planning scheme so as he can build a high density development. One new home on the Glen Towers Estate that my brother worked on cost just over $500,000.00, would not have been built had there not been assurances from council on the integrity of the covenants. I think everyone is aware that if this application is approved for a panel hearing it will set a precedent and create open slather for others to to the same .
This covenant was registered on 11 October 1963. The covenant states that the transferees “will not erect or allow or permit to be erected on the said lot any building other than one dwelling house together with usual outbuildings and that such dwelling house shall have external walls of brick and roof of slate or tile.” Could it have been made any plainer than that?? If you join a club you play by the rules. If the applicant wants to build a multi unit development there are plenty of areas in Doncaster unencumbered.
Most families who have multi-dwelling developments approved next door will usually sell and move away if they don’t like it but they never seem to be able to duplicate what they had in regard to the nearness to services and education for their children etc. This is why people bought in the Glen Towers estate in the first place, because the covenant guarantees them that they won’t have apartments built next door or close by. The covenant is a binding contract and council officers should not be trying to break that agreement by recommending a government panel be appointed to do their dirty work. I would urge councillors not to be complicit in this action and vote to have this proposal abandoned.
When an area is classified as a high density development zone the size of the land alone will determine its true value irrespective of the size and the quality of the home that is built upon it.
If there are people who have demolished and rebuilt larger single dwellings at a cost of say $500,000.00 then they are locked into remaining in the area because their only buyers will be developers who would bulldoze the house irrespective of how much it cost to build.
The top price for a single block of land in the sub-precinct A high density zone is somewhere between $1,800 to $2,000 per m2 depending on site conditions and position. What exists on the land has no bearing whatsoever on price. If the Glen Towers covenants were removed the average price for a single block could fetch around $1.4 Million which is not much more than what you would pay for an established home in the lower scale zones. By the time you take into account the usual out of pocket expenses of approximately $100, 000 in purchasing another property you could wind up having to borrow to duplicate your present situation.
If you happened to have demolished and rebuilt then you will never redeem the cost unless you are able to add it to land value ..so if someone has spent half a Million dollars rebuilding a single dwelling you would need to sell for upwards of at least $2 Million Dollars
Council would not have issued permits for demolition and reconstruction of single dwellings in the Glen Towers Estate without a warning to the applicant of the likelihood of the restrictive covenants being removed. At least that is what I was told which is commonsense.. It is hard to imagine a beneficiary spending such a large amount of money on rebuilding without assurances.
Why are our planners imposing these dog box apartments upon us? Why can’t they be made more affordable and attractive for families? Why aren’t there more apartments with three or four bedrooms, with large balconies and of a comparable size to “traditional” detached homes? What would need to change for that to happen? Why aren’t their nurseries set aside in these giant buildings for working parents to leave their children instead of having to hack their way through heavy AM and PM traffic to a far off child minding facility? The community is fed up with the bias attitude our council planners have towards developers. We need areas like Glen Towers to remain as they are and not be used to create opportunities for high density living which is ruining the Doncaster area.
I can understand the need to remove a restrictive covenant from a handful of allotments, such as when they are outnumbered in an area surrounded by allotments unencumbered in an overlay, such was the case with amendment C112 that removed the covenants on three blocks in Doncaster Road. But this planning scheme amendment, to remove a covenant on just one block surrounded by a network of approximately 90, with exactly the same covenant, is unfair. If Manningham council recommend this application go before an “independent government panel” they would expect it to be approved … so what is the value of written assurances from the Manningham council???
Let us not jump to conclusions yet. Manningham executive have done what they had to do in so far as they have not gone back on their undertaking up to date. However if they don’t recommend that this amendment proposal be abandoned instead of going on to a bias government panel, then it is clearly a breach of trust.
The previous C 50 panel, had stopped short of suggesting that the Glen Towers estate covenants be removed, had instead recommended that the area be rezoned to a much lower scale than what Manningham had intended, in keeping with the C 50 panel’s final conclusions. Ref 7.1.4 of C50 panel report
It will be stressful period for those beneficiaries who have rebuilt or extended their homes because there is now a risk of a high density flow on into the area if council officers recommend approval of this amendment. None of the beneficiaries were informed of the application until after the officers had recommended councillors approve that it proceed to exhibition . Even if it was not a procedural requirement they should have notified the beneficiaries out of respect.
The start of the process of exhibiting this application was approved three months ago at an ordinary council meeting on the 28th of March this year but none of the beneficiaries knew about it until 30 days ago, one month before the deadline they were given to submit objections. Councillors will never see these objections except when they are bundled into a summary and presented at a council meeting to decide whether the matter goes before Panels Victoria which would be tantamount to approving the covenant removal given their over zealous mind set for development at any cost OR that the application should be withdrawn and the covenants remain in place as they have for the last 50 years.
The land within the Glen Towers Estate is probably worth as much, if not more, with the covenants intact than if they were removed to enable development, (they are not large blocks) so from a financial viewpoint it is not surprising that the majority of the beneficiaries, especially those who have rebuilt, would want to rely on council’s assurances.
The fact that the CEO did not include the the planning scheme amendment method in his enduring “pledge” because he was not aware or had neglected to mention it, is a legal problem for Manningham, not for the beneficiaries.
There is no point in banking on the CEO’s undertaking that the covenants would not be removed because he is no longer head of Manningham….that is what some people will be saying. Its the same thing as when you complain to a company about a misrepresentation by one of their salespeople and they respond by saying Joe Smith is no longer with this company etc. etc.
It so happens that CEO who wrote the letter has arguably been the most sought after executive on the local government landscape since he left Manningham. His contract has been extended after having already served 11 years as the head of a council that had been a basket case before he took office.
There might not have been the same enthusiasm to have these two covenants removed, by way of a planning scheme amendment, if council had followed the previous panel’s recommendation, on page 30 of the C50 panel report, from which the council March 28 minutes had quoted only the first part of the full text leaving out the second part of the panels comments in the same item which went on to say;
“Having said this the Panel is of the view that this area south of Doncaster Road is not an area that should or needs to support substantial change (Precinct A) as proposed by the Residential Guidelines”. “This is due to of the topography, existing and proposed access arrangements and physical impediments to easily walking to the core of the activity centre, being Westfield Shoppingtown”.
This omission might have been more acceptable had council attached C50 panel report to the minutes, the usual practice when quoting from a document.
The panel then recommended; “The areas deleted from Precinct A (Glen Towers South of Doncaster Road) be retained in Precinct B as areas that may provide some incremental change over time”
It should be noted that the panel had given serious consideration to the issues regarding the Glen Towers by agreeing to receive further submissions at a second meeting, separate to the main hearing, where, Teresa Dominik, a second officer and myself as ward councillor were among those in attendance.
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The Manningham officers who we pay so handsomely to protect our amenity are giving priority to the building industry heavy weights that the government is relying on to keep the economy afloat.
The majority of permit applications never get to councillors because under a certain value they are delegated to planning officers for decision. Many of them do not conform to the planning schedules which they are supposed adhere to particularly the heights/storeys, 60% maximum site coverage and minimum site area regulations. So if you see a notice board on a block of land under 1,800 giving notice there is a application pending for a three storey building, which does not conform, you are entitled to have that application decided by councillors. A friend of ours who, lives in East Doncaster, had objected to a development just around the corner from Jackson Court that did not conform so he asked the ward coucillor to have it decided in conjunction with fellow councillors which they were to refuse. So if you think that councillors have no power you are very mistaken.
This application if approved will be a detrimental to the future of 90 families whose properties on the Glen Towers Estate are protected against high density development, but the Manningham council officers did not think it appropriate to inform them until after the amendment went on display leaving the residents to have to fight against a government panel beyond which there is no avenue of appeal.
An approval of one planning scheme amendment to remove a restrictive covenant on one block of land would set a precedent providing open slather for developers to remove covenants at will. Like a lot of other dodgy applications, where they are clearly favoring developers, they wait for a new lot of councillors who would not be aware of the detriment, to be assured it would not be rejected.
They are under so much pressure that if there are ways to streamline their planning approvals they will take them and this unfortunately does not always favor the members of the community. This is also happening in other councils across Melbourne as record number of applications are being processed. It is not ideal but that is the way things are.
The pledge from the Manningham CEO implies that there are only two methods of their removal when he writes … “A related question seems to be -is anyone else likely to do so? (other than the council itself) “Council is not able to speak for the Minister or his Government but again, it makes no sense legally, practically or politically for any Government to contemplate such action (unless it relates to an Order under section 2010 of the Planning and Environment Act 1987”
It should also be noted that Manningham Council he headed had already designated the area as part of a sector for high density apartment buildings even though the restrictive covenats had been put in place since 1963?? How could he have given that assurance?
If this planning scheme amendment application is approved for one single land owner it will be a formality that the remainder of covenants on the Glen Towers Estate would also be removed. The applicants property is one of nearly 90 other homes on the estate. The applicants house at 42 Walker Street does not appear to have been improved to the same extent as other homes on the Estate. From a financial aspect the applicant would have a significant benefit if the restrictive covenants were removed compared to other beneficiaries whose families have renovated or rebuilt larger homes over the years, on the strength of the covenant. Those who had paid the hefty price for the protection of the covenant, could find themselves unable to move away from the high density, unless they are prepared to take a loss, because they would be dependent on the price paid by a developer and not the open market and that would be based on land area only.
Council could quite rightly argue that the value of Glen Towers resident’s land would not have increased so much in value had it not been for the apartment overlay that council had designated for the area.Unfortunately properties on the fringe of the DDO8 have increased in value as well, some to a greater extent. The reason for this is the loss of amenity that goes hand in hand with this type of development.
Hope this is more acceptable.
When you read through the C50 Panel report it appears to have hinted at a compromise regarding the Glen Towers restrictive covenants, though indirectly, when it concluded that the area should be be rezoned at a lower scale due to the limited access arrangements and topography of the area.
Instead council rejected the recommendation and maintained it as a high density apartment area with heights of at least 11 metres or more, (they were discretionary), which was among the main concerns of the beneficiaries. Whether his would have been acceptable by the affected residents was never investigated. Instead, in the meantime, in a decade since, Manningham have let the matter fester, by issuing permits for demolition, rebuilding and renovations re single dwellings, which had been applied for on the basis of promises and assurances from the head of council.
Why would they want another panel hearing when the previous panel decision had already addressed the Glen Towers issue. They will only accept panel decisions if it suits them…apparently! They will make a recommendation to the Councillors, four of whom have just been elected, they approve the Walker Street application be decided by a government planning panel who will approve it. Which will pave the way for developers to move into the area….dirty work done!
Maybe they should accept two dwellings on a block like what had been approved throughout East Doncaster. This is something the owners should seriously consider. If there can’t be an agreement between the beneficiaries then the minister for planning would then be asked to exercise his power and remove the covenants.
The purpose of the letter from the CEO was to assure the beneficiaries of the Glen Towers restrictive covenants that council would not be supporting any application to have them removed. This letter was written in response to resident concerns 90 days after Council had approved the C 50 amendment which had prescribed a development overlay in the area south of Doncaster Road which included most of the Glen Towers Estate.
There were exceptions where council would support the removal of restrictive covenants but only if they were located on land within the Doncaster Hill periphery.
In this letter on page 3 in response to questions from the community regarding Council’s motivation to remove or vary covenants the Council provided the following assurances:
“Save for the specific sites and examples ‘within’ the Doncaster Hill precinct covered previously by Mr Molan and addressed by Maddocks above, I can advise that Council has never discussed any intent, holds no plan or desire; and has not foreshadowed any intention or interest at any time to take any action that would interfere with the protection that beneficiaries enjoy with the Restrictive Covenants”
Also on page 2 of this letter Council states “This latter piece of advice is totally consistent with previous officer advice relating to properties ‘within’ the Doncaster Hill precinct where it would be beneficial for the property owners by consent or agreement to meet the Doncaster Hill Strategy and under these circumstances only, Council is likely to support removal of a restrictive covenant.”
This letter clearly indicates that Council before making its assurances sought extensive legal advice from its solicitors Maddocks. Furthermore, then Councillors Mr Welsh and Mr Larkin were copied on this letter as was Mr Molan the Director Environmental Authority . In other words the Council undertook a very considered and detailed approach to this matter. This letter is legally binding on the Council and the Council is now estopped from going back on its assurances to the beneficiaries of the covenant, particularly as the subject land is not situated ‘within’ the Doncaster Hill precinct. It would be unconscionable conduct on the part of the Council to now proceed with this planning scheme amendment. Accordingly, it is imperative that Council immediately abandon the subject planning scheme amendment.
There is a code of conduct applicable to councillors because they have to sign an oath of office before they take their positions in council.
I am not an legal eagle but I would think council could be liable for the applicants costs at the very least. The residents who have rebuilt or renovated might also be justified in seeking compensation for the stress caused by council’s incompetence. There are other avenues the applicant can use such as Vcat.
I think it is the cost of the panel hearing that has to be paid by the person making the application so as long as it goes no further costs incurred to date would be borne by the Manningham Council. It does look like council intend to support this application but the 30 day delay in writing their final report is interesting.
It maybe that council are only now aware their own assurances and they are looking for a soft landing rather than ending the process abruptly. My gut feeling however is they will continue with the process regardless of the damage they are doing to besmirch the credibility of those involved and the council itself.
While the surrounding areas are becoming a poverty ridden jungle of concrete boxes with all the crime, mental problems and domestic violence that go with it, the beneficiaries of the Glen Towers, thanks to the one dwelling per block covenant, are being allowed to become a little bit special, a sort of Toorak-East Malvern type of upper class area mindset, aided and abetted by the Manningham council who have issued permits for larger single family homes (up 280sqm) to replace existing buildings. Property values in the area will eventually soar because of the much sought after amenity and eventually have price tags well above development sites.
Council will not support the removal of restrictive covenants unless they are within the boundary of the Doncaster Hill Precinct….that, in a nut shell, is what council have promised.
There are other ways they can be removed where support from council is not required.
It would appear that the owner is wasting time and money applying for the covenant removal through council if it can’t be supported…but why he was not informed is a mystery to me.
The advice on restrictive covenants appears to be a statement on policy that can change from time to time rather than any previous councillor decisions. Manningham officers have not made any statement in regard to whether they will continue to support this application.
These site owners with the covenants have to move with the times and share the land. They have had the benefit of these single dwelling covenants for more than 50 years and it is time they let go. Either develop the land themselves or sell and move away. Whether council can or can’t support a covenant removal does not matter. No one can prevent any of the owners, who have had a planning permit refused, from going straight to VCAT.
Doncaster Hill and the surrounding residential strategy, which includes the Glen Towers estate, had run its course by about 2010 . Greedy site owners who were sitting on permits were getting anxious because local demand for apartments had dried up and “the jewel in the crown” was in trouble and starting to look more like a bomb site. Enter the Federal Investment Review Board to allow overseas investors to buy new or off the plan properties. Today ALL the developers and All the apartment purchasers are from Asia…Well done Manningham planning department….. I don’t think.!
Good letter Ray, but it’s happening the country over. No wonder that mob of wallies were allowed to cancel Australia Day. Regards, Jon
The timing of this current application, lodged in March this year, was unfortunate for the beneficiaries because the four newly elected councillors had been in place for a very short period and would have been dependent on Manningham council for “advice” on how to vote on an issue they knew nothing about except from the material that was put in front of them. The applicant was well known to council after having made several unsuccessful attempts to remove the covenant by way of planning permit applications.
Council’s bias towards developers is so obvious in planning decisions that I would much rather they be given a free hand than have a minority believing that the process is not a sham and all above board. Woe betide any councillor who votes against their recommendations or becomes a whistle blower, they would better watch out if they are seeking re-election and be hoping for a high position on the ballot paper.
I have read the “Advice on Restrictive Covenants” and as far I am aware council have adhered to the CEO’s undertaking in regard to restrictive covenants.
While Council have made it plain that they would only support their removal within the Doncaster Hill precinct they must still process all applications.
Previous requests for the removal of a restrictive covenants by means of a planning permit application have all been processed by council even though it was known that one or more objectors would be all it would take to have them denied.
Although the current application is different in that it is by means of a planning scheme amendment the principle remains the same. Council are still obliged to put the proposed amendment on display which should not be taken as an indication that it would be supported by Council.
I have just been informed that the Manningham Officers, to whom we pay such high salaries, have reneged on the CEO’s promise and recommended that councillors vote to have a government panel decide the matter which is bad news for our residents who have fought so hard to retain their covenants. It is up to the councillors now to reject their recommendation and vote to have the application withdrawn.