Although the store is built (but trading poorly) this campaign has had some significant wins proving that an effective campaign will result in longer term gains. Today the community turned out for another big win, a campaign announcement by Local MP James Merlino and Shadow Planning Minister Brian Tee that if elected planning and VCAT legislation will be reformed. At a gathering near the site in front of a huge crowd Brian Tee remarked “These changes to VCAT will be Tecoma’s legacy.

This news has also been picked up by the mainstream media of which you can read about here:
and here:

Thanks to all those who lobbied long and hard to make this happen, and of course thanks to Local MP James Merlino for his on-going support and Brian Tee who took the time to meet with our community, listen and ultimately act.

The press release can be found below:

!f we win in November, Labor will amend the Planning and Environment Act 1987 so that where appropriate, VCAT must have regard to the extent of community opposition to planning proposals.

This commitment would give effect to Labor’s planning policy – as expressed in its 2014 platform – to give locals a ‘fair say in the future of their communities’ and ‘promote the principle of third party rights in all processes’.

It would also:

- provide VCAT and councils the opportunity to take into account the extent of community opposition into account when making decisions about proposals, and

restore confidence in third party participation in planning decisions.

The recent Orrong Road Towers and Tecoma McDonalds cases are two high profile cases in which VCAT approved developments against strong community opposition. Each of the communities involved in those cases were frustrated by the fact that the extent of community opposition to the proposal was treated as irrelevant in the decision making process by VCAT. VCAT was following the law, but Labor believes that the law should change to reflect that in some cases the nature and extent of community opposition to a planning proposal should be taken into account in reaching a decision.

Orrong Road Towers

The Orrong Road proposal involves 19 buildings of up to 12 storeys, housing 448 dwellings on a large parcel of land in residential Armadale. There were 600 objections to the permit application, which Council refused.

In 2012 the developers, Lendlease, appealed successfully to VCAT, despite 450 formal objections. The Council and many residents submitted that the proposal failed to respond to neighbourhood character in that it did not “reinforce special characteristics of the local environment and place” because it did not “emphasise . . . the built form that reflects the community identity and the values, needs and aspirations of the community”. They also relied on the broad resident opposition to the proposal and the Council’s unanimous refusal. However, in overruling Council’s decision, VCAT held that “the number of objections to the proposed development was an irrelevant consideration.”

Council and the residents appealed to the Supreme Court against VCAT’s decision, arguing that VCAT failed to give due regard to significant community input in making a decision that was not supported by the local community or Council. In September 2013, the Court upheld VCAT’s decision, saying that VCAT was right to disregard the number of objections to the proposal in making its decision.

The Court also considered that Section 84B(2)(f) of the Planning and Environment Act “does not expressly require the number of objections to be taken into account [by VCAT] as it could have done. It would have been a simple matter for the legislature to so provide”.

Tecoma McDonalds

In 2011, McDonald’s lodged a planning application for a 24-hour outlet with drive thru in Tecoma – a small village in the Dandenong Ranges. Locals lodged 1,170 objections to the proposal, raising concerns about local amenity and neighborhood character impacts, impacts on existing businesses, locality opposite a primary and pre School, proximity to the National Park, the demolition of the Hazel Vale Dairy building, and the fact that there are no 24 hour fast food outlets with drive-thrus in the entire Dandenong Ranges.

The Shire of Yarra Ranges Council unanimously rejected the proposal. A reception centre had to be hired to stage this meeting as a record number of 650 local residents attended to hear the decision and again voice their objections.

McDonalds appealed to VCAT and, in October 2012, VCAT overruled Council’s decision and granted a permit for McDonald’s. In reaching its decision the Tribunal said: “We acknowledge there is considerable opposition to this proposal. We read all the statement of grounds submitted to the Tribunal. We heard the submissions from the community advocates. All were articulate, heartfelt and sincere. All were carefully prepared and well presented . . . However, the Tribunal has consistently found that planning decisions are not to be based on the numbers of objections. Our decision must be based on the planning merits . . . We must be guided by the policies and requirements of the Scheme. A large number of submissions opposing a development do not constitute evidence of adverse social or economic impacts.”

Within four days of the decision, 600 residents united to ‘Reclaim Tecoma’ and planted a community garden at the proposed site in protest. A petition tabled in parliament had more than 3,700 signatures, a rally attracted 3,000, and the group staged a ‘gnome stunt’ on the steps of parliament while sitting in the gallery dressed as McDonald’s clowns. The ‘Burger Off’ campaign has now been running for three years, and has attracted ongoing local and international attention, despite McDonalds now operating on the site.

Labor’s position

Labor supported the Tecoma residents in their fight against the McDonald’s proposal. In Parliament James Merlino called on Minister Guy to intervene to “ensure that the number of objections to a proposal are given appropriate weight at VCAT hearings.” He described VCAT’s decision as “disgraceful” and “in no way reflects the views of the community or Yarra Ranges Shire Council.”

Government’s position

In parliament, Minister O’Brien and Member Newton-Brown called on Minister Guy to intervene in the Orrong Road matter, which affected their electorates. They expressed sentiments to the effect that the VCAT decision was out of line with community expectations and that the Minister should lend his weight to the Council and residents.

In an interview with Jon Faine following the October 2012 Orrong Road VCAT decision Minister Guy said: “I would have thought as general principle that if you have a large number of objections that are from different people . . . that is giving you an indication of a weight of public opinion and I would have thought that that would be taken into account.”

Jon Faine asked:“So public opinion should be a factor VCAT takes into account?”

The minister said: “Well, in my view, yes, it should be.”

He indicated that he was prepared to work with the Attorney-General to deal with the issue.

The interview was reported in The Age on October 15 2012 (

A subsequent amendment to the Planning and Environment Act [section 60(1)(f)] requires social effects to be taken into account when assessing all proposals. Unfortunately, the consideration of social effects has been held by the Supreme Court to exclude consideration of the number of objections.

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