"Alienation of Main Drive Public Land": The 2nd Addendum to Kew Cottages Coalition Objection to Planning Permit Application 20070638

Kew Cottages Coalition <admin@kew.org.au> 31 March 2008 10:38
To: genevieve.overell@dpcd.vic.gov.au, justin.madden@parliament.vic.gov.au

Attn: Genevieve Overell
General Manager
Office of Planning, Heritage and Urban Design
Department of Planning and Community Development

Dear Genevieve,

Further to our objection to Walker Corporation's Permit Application 20070638 lodged on 18th January 2008,  we now wish to make a further submission to the Minister..

On the basis of new evidence made available to us by Boroondara Council and Wills Street, Kew residents, including the 1990 Section 173 Agreement between Kew Council and residents (attached) it is now clear that both the Southern Boundary of the proposed Stage 2 Private Subdivision of Public Land, and the boundaries of Lot numbers 76,77, 83,84,85,86,87,88,89,90, and 91 are totally misplaced, and must be redrawn, so that no private allotments intrude into the protected Historic Avenue of trees and Main Drive Public Open Space.

We respectfully submit, therefore, that the Minister request Walker Corporation to withdraw and redraw their application accordingly.

Yours sincerely,

Brian Walsh


Kew Cottages Coalition
M. 0414 979 300


 "Alienation of Main Drive Public Land": The 2nd Addendum to Kew Cottages Coalition Objection to Planning Permit Application 20070638


Walker Corporation's  'New Stage 2"  Applications seeks a Private Subdivision of Public Land that is burdened by a number of restrictions and controls previously outlined to the Planning Authority in our 18-January 2008 Objection.

Kew Cottages Coalition has also made submission to the current Upper House Inquiry into Public Land Development on our serious concerns regarding the nature and extent of the Walker Corporation development.

The Main Drive Objection.

The focus of this Second Addendum is our objection to how Walker Corporation now propose to subdivide that part of the public land occupied for over a century by the double Avenue of trees that historically define "Main Drive" itself.

The Avenue is in the order of forty to fifty metres wide, comprise Oaks, Elms, Pines, and Moreton Bay Figs, and extends the whole length of the southern boundary of the new Stage 2 of the proposed development.

The tree lined Avenue as a whole is currently protected by a range of planning controls including the State Heritage Register , Heritage Permits, The Walker Development Plan, and other the provisions of the Boroondara Planning Scheme, including the VPO2 Vegetation Protection Overlay.

Those Avenue trees on the border of private properties in Wills Street have the added protection afforded by a Section 173 Agreement (1990)  and covenant with Boroondara Council. We understand the latter covenant was established at the request of Major Projects Victoria, on behalf of the State when the State subdivided the land on the Wills Street Border of the Cottages in 1988. ( see copy attached).

In our submission any new subdivision effecting the Avenue must be consistent with the latter covenant, and

  1. Any new subdivision should only occurr outside of the Historic Avenue of trees:
  2. None of the Stage 2 Private lots should be allowed to intrude into the Main Drive Public Open Space:
  3. All of the "boundary trees" on the northern side of the avenue  must be properly protected by way of a permit condition that extends the current Boroondara Council Section 173 Wills Street Border Agreement (copy attached) to include any and all new Stage 2 lots bordering Main Drive.

The Main Drive Problem.

A. Border Errors

A1. The Walker Corporation Application drawings depicting the Main Drive Public Open Space boundaries and Heritage listed trees fail to comply with the the Heritage Permit drawings endorsed by Heritage Victoria on 9-Sep 2005 as part of Permit P9639 (see endorsed drawing HVS3B which clearly shows all avenue trees located in public open space, and none within private lots);

A2. The Main Drive Public Open Space described in the Walker Application fails to comply with the requirements detailed in Clause 4.3.2 of the Walker Development Plan Kew Dec-2005;

The Application now seeks approval for  many significant trees within the VPO that have been an integral part of the Avenue for over a century to be annexed into  private lots.

However, Clause 4.3.2 as approved in March 2006 (ie: some 6 months after Heritage Victoria issued Permit P9639 (see above) states inter alia:

"In terms of the open space provided along Main Drive it is noted that combined with the road reserve, the area is significantly wider than a normal road reserve, to cater for the retention of trees along Main Drive. The width of the public open space at this location will cater for a range of recreation opportunities... "

It is clear therefore that the intention within the Development Plan is for the Historic Avenue trees along Main Drive  to be retained and supported in Public Open Space, rather than being annexed and threatened by subdivision into private lots.

A3. The Revised Staging and Stage 2 Boundary described in the Application fail to comply with the Staging requirements of Clause 5.1 of the Walker Development Plan Kew Dec-2005, and the Minister's 6-Feb 2008 Addendum to the Plan.

Clause 5.1 states that:

The staging will not "prejudice the future use or development of land in an integrated manner " (WDP Kew)

However, the proposed annexation of Avenue trees will, in our submission, destroy the integrity of the Historic Avenue forever, and thereby totally prejudice the future public use, and development of the public land on which those trees are currently located.

B. Tree protection Errors.

B1. The Main Drive Historic Avenue trees that Walkers seek approval to annex into private lots are inadequately protected.

The drawings provided by Collie Pty Ltd in support of the application are not fully dimensioned, and appear vague and imprecise in many respects (eg: one is labelled "Not for Construction"). However, it appears clear that over 25 avenue trees ( including trees 39,38, 51a, 51, 52a, 52, 53, 61,63, 65,66, 69,70,71,73,74, 75,76,78,79,80,128, 127, 134b, 134, 134c, 136)  are all proposed to be annexed from public open space, and the land on which they are located to be subdivided into private lots 76,77, 83,84,85,86,87,88,89,90, and 91.

Despite this extraordinary proposal, no form of covenant or other form of long term protection has been proposed for  the individual avenue trees to be annexed in this manner.

B2. The Main Drive Historic Avenue trees that Walkers seek approval to subdivide, and  locate immediately abutting new private lots are inadequately protected.

No form of additional covenant protection has been proposed for trees shown on the drawings as being outside but close to the southern boundaries of the above subdivision  lots (eg: trees 35, 37, 40, 49, 55, 82, and 103 .)

No account has been taken in the Application of the precedent set by the Boroondara Council Section 173 Agreement which sets out by way of covenant the nature and extent of protection that has been specifically afforded the Avenue trees immediately abutting the Wills Street subdivision for the last 18 years !

As a consequence, the level of Vegetation Protection in the proposed subdivision for the historic Oaks, Elms, Pines, and Moreton Bay Figs on the northern side of the Avenue is significantly less than that that currently applies to the trees to the southern side of the Avenue, and in our submission totally inadequate.

The Main Drive Solution.

The long term nature and form of protection of the Avenue trees has already been seriously compromised in our submission by Walker's erection of its 'temporary" Sales and Information Office at its current location within the Avenue of trees.

Stage 1, therefore, started with what appears at face value to a 'temporary breach'  of the Main Drive 'public land 'exclusion zone'.

Now this "temporary breech" appears to be being followed up in Stage 2 with a proposal for a permanent breech, and the permanent annexation of trees 39,38, 51a, 51, 52a, 52, 53, 61,63, 65,66, 69,70,71,73,74, 75,76,78,79,80,128, 127, 134b, 134, 134c, and 136 from public land into private land Lot numbers 76,77, 83,84,85,86,87,88,89,90, and 91.

In our submission this form of insidious alienation of Public Land needs to be rigorously resisted.

In our submission the Planning Authority needs to  adopt a 3 stage solution.

Subject to delays due to current legal action against Walker Corporation, request that Walker Corporation

1. Withdraw their Stage 2 Subdivision and Permit application, and redraw the application so that it complies with, and is consistent with, all planning controls and agreements related to the Historic Main Drive Avenue of trees, including all Heritage Permits, endorsed Heritage Drawings, the Boroondara Council Wills Street S.173  Agreement, and the Boroondara Planning Scheme.

2.Provide further  information to the Responsible Authority detailing:

  • The potential benefits associated with completely removing the Historic Avenue of trees from the proposed subdivision by moving the southern boundary of the subdivision from the current line south of the Avenue to a line north of the Avenue;
  • The need to redesign lots 76,77, 83,84,85,86,87,88,89,90, and 91 to properly take account of Public Open Space, Heritage issues, and long term Tree Protection requirements;
  • The need to suggest new Permit Conditions for lots 76,77, 83,84,85,86,87,88,89,90, and 91 that are consistent with the conditions currently specified in the Boroondara Council S173 Agreement (1990) and Covenant that applies to Wills Street properties abutting the Avenue;
  • To need to present fully dimensioned drawings for each proposed lot, and to ensure that any drawing or plan presented for lots abutting the Avenue with a lot size less than that specified in the S173 Wills Street Agreement (ie: 700 sq metres)  is supported by a Heritage impact statement and/or Arboricultural Plan endorsed by Heritage Victoria;
  • The need to ensure  trees 39,38, 51a, 51, 52a, 52, 53, 61,63, 65,66, 69,70,71,73,74, 75,76,78,79,80,128, 127, 134b, 134, 134c, and 136 are properly retained in Public Open Space;
  • What other measures the Applicant proposes to help ensure that their application will not prejudices the public's future use, and development of the the historic Main Drive landscape and Public Open Space in an integrated manner ?

3.  Suggest Walker Corporation consider the benefits of relocating their current "temporary sales and information office" to a more appropriate location ie: one that is:

Not in breach of  the Walker Development Plan Kew (Clause 4.2.2. Building Heights and Setbacks"  Plan which specifies:

a minimum of 26 metres building setback from the south boundary (common with the rear of properties fronting Wills Street) of the land

=== bw ===

---------- Forwarded message ----------
From: Kew Cottages Coalition <admin@kew.org.au>
Date: 27 Mar 2008 09:54
Subject: "At Risk": An Addendum to Kew Cottages Coalition Objection to Planning Permit Application 20070638
To: genevieve.overell@dpcd.vic.gov.au, justin.madden@parliament.vic.gov.au
Cc: Matthew.Guy@parliament.vic.gov.au, "Richard.Willis@parliament.vic.gov.au" <richard.willis@parliament.vic.gov.au>, "Ray.Tonkin@dse.vic.gov.au" <ray.tonkin@dse.vic.gov.au>, "ray.osborne@dse.vic.gov.au" <ray.osborne@dse.vic.gov.au>, "kewcottages.redevelopment@mpv.vic.gov.au" <kewcottages.redevelopment@mpv.vic.gov.au>, Celestina Sagazio <celestina.sagazio@nattrust.com.au>, "Phillip.Healey@boroondara.vic.gov.au" <phillip.healey@boroondara.vic.gov.au>

Attn: Genevieve Overell
General Manager
Office of Planning, Heritage and Urban Design
Department of Planning and Community Development

Dear Genevieve,

Further to our objection lodged on 18th January 2008, I understand from the State Planning Register today that the status of Walker Corporation's  Permit Application No. 20070638 (Kew Cottages Stage 2 Subdivision and Vegetation Removal) as received on 29th November 2007 is as follows:

Status: Preliminary Check
Amendments: No Amendments Found

However, I am advised by Heritage Victoria:
  1. That on 5th December 2007 summonses were served on the Company Headquarters of Walker Corporation in Sydney in relation to unauthorised works undertaken at the State Heritage Registered Kew Cottages site between 10th January and 5th February 2007, and
  2. That the latter matter involving Walker Corporation is still before the court.

I write, therefore, to seek an assurance from the Minister as the Responsible Planning Authority that he will now exercise his powers under S.54 of the Act and require Walker Corporation to provide him with full details of the final outcome of the legal action against the Company under the Heritage Act, before he deals with Application 20070638.

To do otherwise, would in our submission be irresponsible, and not in the public interest.

Despite the damage to VPO trees incurred in Stage 1, the form of subdivision and vegetation removal proposed by Walkers in Stage 2 is still very similar to that adopted in Stage 1 eg:
  1. A large number of small lots, associated with the complete removal of large amounts of established vegetation, and
  2. Those VPO "protected trees" remaining, still unreasonably at risk due to their closeness to building envelopes.

We say the risk of further damage to significant VPO  "protected vegetation" and Heritage listed assets such as the historic avenue of oaks on  Main Drive is, therefore,  simply too high.

In our submission Walker's application for further subdivision at Kew Cottages should, therefore, not be dealt with until the court has had the opportunity to complete its work, and Walker's have been given the opportunity to amend their Stage 2 application in the light of the court's findings.

Yours sincerely,

Brian Walsh


Kew Cottages Coalition
22A Fellows Street
Vic 3101

M. 0414 979 300