Council releases confidential minutes after ERD Court’s decision on OTR
The City of Burnside today released the confidential minutes of the Council meeting of 16 March 2021 that was held to discuss its position on an alternative proposal for a development at 285-287 Kensington Road, Kensington Park, as part of an Environment, Resources and Development (ERD) Court process.
This meeting was held in confidence to protect its legal position however Council resolved to release the minutes of the meeting as soon as possible.
The ERD Court has now granted Development Plan consent for 285-287 Kensington Road, Kensington Park to become a new single storey integrated service station complex.
In releasing the minutes, City of Burnside CEO, Chris Cowley, said that Council has brokered the best outcome it could for this site.
“It was unrealistic to believe that there would be no commercial development at this site, so this decision has achieved an outcome with the least impact to the community’s amenity,” Mr Cowley said.
“The Council Assessment Panel and Council must assess what is put before it, and in line with current state planning legislation and the Development Plan,” Mr Cowley said.
This decision of the CAP and the Council is a pragmatic decision having regard to the Development Plan which provides the best outcome for the community.
The proposal for the site located adjacent The Regal Theatre, is an alternative and considerably scaled-down development, in comparison to previously lodged plans, that makes use of the site’s existing building.
The full minutes can be found on the City of Burnside’s website. The final resolution of this meeting includes:
1. That the council accept the compromise proposal and settle the appeal in the matter of PC Infrastructure Pty Ltd v City of Burnside ( ERD 19- 189 ) on the basis of the amended scheme and conditions generally in accordance with the draft Minute of Order prepared by Norman Waterhouse Lawyers having considered the following:
1.1 The significant level of improvements to the proposal addressing in particular traffic, resident amenity, landscaping, bulk and scale that have occurred since the original 2017 proposal;
1.2 The high likelihood of defeat should the matter progress to a hearing based on the amended scheme;
1.3 The advice of independent traffic and town planning experts engaged by the Council;
1.4 The high likelihood of being unable to secure appropriate and credible expert witnesses that could support the refusal of the amended scheme;
1.5 The potential for the Council’s experts being subpoenaed to give evidence in support of the appellant’s case (in addition to the range of the appellant’s own experts);
1.6 The potential for the appellant to pursue the previous development proposal refused by CAP on appeal and the Court approving that development;
1.7 The potential for the appellant to pursue an even lesser desired development, shaped by the policies of the incoming Planning and Design Code;
1.8 The cost of proceeding to a hearing may be as high as $50,000;
1.9 The CAP has unanimously endorsed the compromise proposal; and
2. That Council:
2.1 Notes that it is legally constrained from publicly releasing its decision in this matter until the matter is determined by the ERD Court.
2.2 Resolves to release the minutes of this meeting as soon as legally permitted to do so.