unChain St Kilda - timeline


	Timeline - from consultation to confrontation... 2000-2002 Developing the vision 2002-2004 Getting read 2005-2007 Veil of secrecy 2007-2008 The winning bid 2008-2009 The fall out The Triangle Story started sometime in 2000 or maybe even a year earlier, as ideas for a revitalised foreshore - from West Beach to Shakespeare Grove - were floated and debated. Of the nine areas considered for re-development, the Triangle site has proven the most controversial. The Esplanade Alliance, a group triggered by the proposed development of the Espy Hotel in 1997, had, by then, taken on a watching brief for the whole Esplanade and its immediate environs. It oversaw the re-design of the Sea Baths saga, the rejection of a 38-storey proposal for the Espy, and became a key participant in the consultation forums about the St Kilda Foreshore development, albeit with a dose of scepticism. At the time, the Esplanade Alliance, said: "The current consultation process minimises the role of the community. It puts the community in a reactive position, as a commentator on ideas generated behind closed doors. For an important project such as this we should be allowed a proactive role - as generators of ideas." Nonetheless, the group continued to contribute, challenge and critique the process, which is outlined below. 2000-2002 DEVELOPING THE VISION Street think tents, meetings and stakeholder forums culminated in a document called the St Kilda Foreshore Urban Design Framework (UDF), which embodied the guiding principles for the development of the Foreshore, including the Triangle Site. One of the key areas of debate was how prescriptive it should be. The argument to leave it broad, so as to allow a creative and innovative response, won the day, amidst reassurances of trust and goodwill in Council processes and commitments. 2002-2004 GETTING READY Over the next couple of years, a series of amendments to State laws and local planning schemes were implemented and a new governance structure established to give Council control over the development of the foreshore. Amongst these changes was the reassuringly overriding status granted to the community developed UDF; but also the unfortunate removal of third party rights. 1. Packet of changes to the Port Phillip Planning Scheme The UDF was incorporated into planning scheme, with the following words: "The adoption of the St Kilda Foreshore Urban Design Framework as an incorporated document in the Port Phillip Planning Scheme will provide this document with considerable statutory weight to achieve objectives" (UDF p. 51) A Special Use Zone (SUZ3) was introduced over the triangle site that would outline permitted and prohibited uses. A Development Plan Overlay (DPO1) was introduced, which would require an applicant to lodge a development plan for the use and development of the land, before any specific permits could be issued. 2. St Kilda Triangle Act An Act of Parliament was needed to confirm and resolve issues of land title, leases and reservation over the Triangle site, a key component of the St Kilda Foreshore development, and grant the Council control over the site. The Preamble to the Act states: "In order for the development (on the St Kilda Foreshore) to proceed it is necessary for that land, which consists of reserved land and other Crown land, to be reserved for public purposes and for the land to be capable of being leased for longer periods than those set out in the Crown Land (Reserves) Act 1978. It is also proposed that the Port Phillip City Council be the committee of management of the reserved land." 3. Third Party Rights Removed To give developers commercial certainty, the State Government insisted third party rights to appeal to VCAT (on an approved development plan for the site) be removed before it would hand over management rights of the site to the Council. Council complied. It was the first time the Council had ever removed the right of appeal from residents on a project in the area. At the time, Cr Dick Gross reassured the public in the local paper (EHT 12 May 2004) that: "The scrutiny that people feel they may have lost through the VCAT is nothing compared to local, state government and community scrutiny that will be applied to this project." However, the Esplanade Alliance was not convinced and told the local paper, 24 May 2004, that: Fast-tracking developments by removing the community's appeal rights for the St Kilda triangle is an unprecedented step. . . . The Esplanade Alliance said council was asking for the community's trust, but did not have a good development record, citing the St Kilda Sea Baths and Metropol (St Kilda Station) developments. The Age was also sceptical, writing in its editorial on 17 July, 2004: The next St Kilda battleground looks set to be the triangle next to Luna Park that houses the Palais Theatre, the Palace nightclub and a car park. . . Mayor Dick Gross . . . hopes that a developer will "make enough from a boutique hotel and other investments to pay for fixing up the open space". But this approach has alarmed residents, who fear that a commercial investor will place private profit over public interest. Given the grandiose schemes developers have had for St Kilda . . . . their scepticism is understandable. Fast forwarding to 2007, the Age's musings proved correct, despite Mayor Gross's letter to the editor at the time promising that: "St Kilda's heart isn't being ripped out. Nor is there likely to be 'a prolonged battle' over its future development. . . the new planning rules . . . . won't allow a monstrosity." 4. St Kilda Edge Committee Next, it was necessary to establish a governance structure for facilitating and managing the Expression of Interest and Tender Process and to oversee the redevelopment of Triangle site. The St Kilda Edge Committee was created by Section 86 of the Local Government Act - recognising that this type of Committee, where Council is both the proponent and planning authority, would not be seen as an 'independent body' and may be perceived to lack robustness. But it was thought this perceived conflict of interest could be handled through clear communication to the community. 5. Reassuring the public Finally, a series of public forums was held to reassure the community that the vision for the triangle site was for: A reinvigorated public entertainment and cultural space, including a reinvigorated Palais Theatre and a new neighbouring public plaza ('piazza'). Potential uses include a dance and music venue, cinema, galleries, a bar or nightclub, hotel, reception and conference facilities, cafes and some retail. and We (Council) have defined the word "plaza" as being more like a "piazza" - i.e. think open space and people walking and enjoying the sunshine and great views - definitely not wall-to-wall retail. 2005-2007 VEIL OF SECRECY However, as expressions of interest were called for in 2005, a veil of secrecy descended and the vision promised to the community changed to include a strong economic focus, hitherto not raised as a primary goal. Culturally, in addition to a reinvigorated Palais Theatre, the Triangle should offer residents and visitors a variety of entertainment options in keeping with the site's traditional use. Commercially, the Triangle should create jobs, attract visitors and bring business to St Kilda for years to come. Aesthetically, the Triangle's architecture should complement and enhance our unique foreshore, upper esplanade and heritage-listed Palais. This shift to job creation and bringing business to St Kilda rang alarm bells in the community. Such imperatives were considered more suited to an industrial estate or commercial business park than a beach playground on Crown land. Sixteen applications were received - their proposals for the site have never been shown to the public. Legal challenge from the outgoing Palais and Palace lessees delayed announcement of a short list until late 2006, by which time rumours were running rife that the outcome for the site would be a giant shopping mall. Three bidders were finally chosen to go to Tender, while Council repeatedly assured the community, including the Esplanade Alliance and a new group initiated by local traders, Save St Kilda, that these tenders would not be retail intensive, as rumoured. The Request for Proposal or tender document was not made public, despite repeated requests from community groups and individual residents, until January 2008. 2007-2008 THE WINNING BID Amidst growing discontent, the winner, a consortium of financier Babcock and Brown and property developer Citta, was finally announced in May 2007. It was accompanied by an artist's impression of the shopping and entertainment complex - with some 180 shops and multiple nightclubs. A Development Agreement was signed in May 2007 between the Council, the State Government and BBC. This Agreement - which outlines the legal and financial terms and conditions of the development, and the obligations on each of the parties - has not been made public to date, despite numerous requests and a Freedom of Information application. The public was invited, in small groups, to information sessions that devoted most of the time to developer presentations. Many concerns were raised, yet none were ever acknowledged by Council, which continued to promote the Triangle development proposal as a huge success, on its website, in the media and in its newsletter. The response in the community - residents, traders and visitors - was a mix of shock, frustrations and disillusionment as Council's PR machine waxed lyrical about the design, whilst glossing over growing concerns and indicating that little would or could be changed. Out of this discontent over Council's attitude and the mounting outrage over the size and focus of the proposed commercial development on the St Kilda Triangle Crown land, a new group was born to take up the fight along side the Esplanade Alliance. The membership of unChain St Kilda reflects new voices and a changing demographic of St Kilda. However, its passion for the eclectic suburb and its commitment to an open and responsive local government remain the same. When the winning bid was translated into a Development Plan for the 28-day public exhibition at the end of October 2007, ripples of dissatisfaction within the community exploded as the true scale of the proposal became apparent. Inspired by unChain St Kilda, more than 5,500 individually written submissions objected to the plan, arguing that the UDF, the document drafted in good faith in the early days of the process, had been ignored on many levels. Council's own independent review of submissions found opponents' submissions had merit on several points: Submissions which state that the development plan is inconsistent with the outcomes and vision sought by the St Kilda Foreshore Urban Design Framework, DPO1 and SUZ3 have considerable merit. Submissions made with respect to the extent of retail and commercial development being excessive appear to us to have significant merit. Submissions relating to a loss of iconic landmarks have merit, particularly in relation to the lost aspect to the western side of the Palais Theatre. Submissions relating to losses of views from the public domain have considerable merit. Yet, Council argued against these findings and downgraded the status of the UDF. The guidelines that were once hailed by Council as safeguards were now dismissed as merely 'aspirational'. The key objectives of the UDF, once promised as achievable and desirable, were now deemed to be in conflict, requiring the preservation of important views to be sacrificed for multiple new structures. The decision to approve, approve with modifications or reject, was deferred by Council on 13 December in front of more than 900 people. Two months later, on 7 February 2008, more than 2,000 people called for the resignation of councillors and officers when, despite escalating community opposition, Council approved the BBC proposal. 2008-2009 THE FALL OUT The fall out from this decision, ratified by delegation in August 2008, was immense. It culminated in the termination of the Triangle Site Development Agreement by December 2009; but also overthrew a Council, unveiled a culture of fear and exposed conflicts of interest. 1. The Purge of Council In the November 2008 local government elections all but one of the Councillors who had supported the Triangle were either defeated or resigned. Amongst the defeated was Dick Gross, long standing Councillor and past Mayor, Triangle advocate, and supporter for removing planning appeal rights. It was Dick Gross who, as Mayor in 2004, reassured the public about the Triangle process. In the local paper (EHT 12 May 2004) he said: "The scrutiny that people feel they may have lost through the VCAT is nothing compared to local, state government and community scrutiny that will be applied to this project." In the Age (17 July 2004) he wrote: "St Kilda's heart isn't being ripped out. Nor is there likely to be 'a prolonged battle' over its future development... the new planning rules... won't allow a monstrosity." unChain St Kilda's entry into the Council election, under the banner of unChain Port Phillip, changed the political landscape dramatically. It challenged established loyalties and formed strategic alliances resulting in a new Council, including two unChain St Kilda endorsed candidates. 2. Lifting the veil of secrecy After signing the secret Triangle Site Development Agreement in May 2007, Council adamantly refused to make public even its non commercial-in-confidence clauses. Finally, on 7 November 2008, in response to unChain St Kilda's Freedom of Information application VCAT ordered the City of Port Phillip to release a redacted Triangle Site Development Agreement by 17 November 2008. The 10-month long action had cost the group over $30,000 in legal fees and lodgment costs, yet the document should have been freely available! The Ombudsman's report of June 2010, points to the Premier's Disclosure of Contracts >$1M policy, which should have seen the St Kilda Triangle Development Agreement published within 60 days of awarding the contract. That would have meant by 25 July 2007. The Ombudsman wrote, "it is also concerning that community members had to pay to access a document that should have been freely available, albeit with some exemptions" (s 553, p124) 3. Dismantling of the Triangle regime By January 2009 Port Phillip's CEO, a key driver of the St Kilda Triangle development, had resigned. As Chairman of the St Kilda Edge Committee, he had steered a secretive tender process for the St Kilda Triangle that resulted in an outcome, which bore little resemblance to the community's expressed vision and expectations. As CEO he oversaw a Development Plan approval process for the Triangle that failed to reflect the advice of independent consultants, the submissions of thousands of citizens, and the key objectives of the planning guidelines. At the time of his resignation, his administration's handling of the St Kilda Triangle development was the subject of a parliamentary committee inquiry (which referred the matter of the Triangle tender to the Ombudsman) and his administration's handling of other tender contracts, the subject of several Ombudsman inquiries. By June 2009, the new CEO's organisational restructure led to the resignation of other key Triangle proponents. By August 2009 a new Senior Management team had been appointed, the secretive Triangle decision-making vehicle, the St Kilda Edge Committee, disbanded and the officer driven Triangle Project Control Group overhauled. 4. Ombudsman's Inquiries found bad governance Four separate Ombudsman's inquiries were launched into probity of the City's tender processes, including the Triangle site. In October 2008 the Ombudsman started three separate investigations into issues at the former Port Phillip Council, covering the period 2003 to 2008. Two of the inquiries arose from public interest disclosures made under the Whistleblowers Protection Act 2001. The allegations leading to these two inquiries surfaced, no doubt, because the publicity generated by unChain St Kilda around the Triangle process focused the spotlight on the workings of Council, giving 'whistleblowers' courage to disclose questionable practices to the press, in the first instance. The article Costly magical spell cast on Port Phillip Council (The Age, 19 May 2008) revealed a culture of fear, low staff morale, break down of communications at the most senior levels, and lack of due process in tendering for consultants, following a $600,000 organisational restructure by a self-styled 'white witch'. The articles Council worker on payroll (The Age, 25 July 2008) and Council manager's fraud conviction (The Age, 26 July 2008) alleged that a CoPP contractor was alerting favoured suppliers to quotes submitted by competitors and had a conflict of interest. The third investigation was initiated by the Ombudsman, on his own motion under section 14 of the Ombudsman Act 1973. He wrote, "during the course of my investigations into the disclosures outlined above, I identified a number of areas of concern relating to various contract and tender processes at City of Port Phillip. I made the decision to conduct a separate investigation into procurement at City of Port Phillip." The findings, released in August 2009, revealed poor procurement and contract management processes, failure to demonstrate transparency, honesty and probity in decision-making, conflict of interest and staff misconduct. Respondents provide insight into an organization more interested in outcome than process and a culture of secrecy and intimidation. In April 2009, the Ombudsman commenced a fourth inquiry. Referred by the Legislative Council, this inquiry investigated the probity of the decision processes followed in the proposed St Kilda Triangle development. The final report of the Select Committee on Public Land Development, released 11 September 2008, outlines government mismanagement of a number of key sites where public land is being developed in the face of community opposition. In relation to the St Kilda Triangle development, the committee found there is considerable basis for community concerns with respect to inappropriate use of valuable public land and has recommended the Victorian Ombudsman investigate the probity of the development processes that were followed in the St Kilda Triangle development by the State Government and Port Phillip Council. The Ombudsman findings were released in June 2010, long after the people responsible for the Triangle's mismanagement had either left the bureaucracy or had been voted out of office, and six months after the Triangle Development Agreement had been terminated. The findings, nonetheless, vindicate the concerns raised by the community, in particular by unChain St Kilda, regarding lack of transparency. In particular, the report points to Conflicts of Interest: Councillor Darren Ray was working for the winning bidder's (BBC) PR consultancy (CPR) during the tender process, as Planning and Development Adviser. Councillor Dick Gross had a friendship and business relationship with the winning bidder's (BBC) PR consultant, whilst a member of the St Kilda Edge Committee, and made quite a few calls to the consultant before the bidders presented to the SKE evaluation committee. Geoff Oulton a senior City of Port Phillip (CoPP) manager and Executive Director of the St Kilda Triangle project, had a close relative who was a senior employee of the architecture firm (ARM) involved in BBC bid. He was designing Mr Oulton's house at the time of the tender, at a huge discount. Minter Ellison lawyers acted for both the City of Port Phillip and the developer (BBC) Holding Redlich lawyers acted for both the City of Port Phillip and the developer (BBC) Triangle Project manager's uncle was employed by the City of Port Phillip as an independent planner Company engaged by St Kilda's Edge Committee worked with competing bidder (RV) for St Kilda Triangle project The Ombudsman also found undeclared gifts and hospitality accepted by St Kilda Edge (SKE) committee members, CoPP staff and councillors from BBC (p 149); and Mr Elsum's (independent SKE member) unfortunate email seeking ideas on "any direct (non community) $ benefit (short or long term) we can offer Mr Thwaites and the Victorian Government... " (p 152) 5. Challenging Council's process In February 2009 unChain St Kilda sought a declaration at VCAT that the Council's approval of the Triangle Development Plan was invalid because it did not comply with the council's own planning scheme and the project's urban design framework. The action was brought under section 149B of the Planning and Environment Act, which deals with administrative processes, not merits of the planning decision. In May 2009, VCAT found against unChain St Kilda; but noted the concerns raised by the community should be considered by the Council at the next stage - that of issuing planning permits. 6. The termination of the Triangle Agreement In December 2009 following vigorous negotiations with the developer, the new Port Phillip Council moved to terminate the Triangle Development Agreement. The City of Port Phillip agreed to pay the developer $5million over three financial years to walk away from the St Kilda Triangle Project. The deal also secured the immediate future and maintenance of the heritage Palais Theatre, with the granting of a five-year lease to Palais Theatre Management Pty Ltd. Six of seven Port Phillip Councillors voted to accept the termination. Port Melbourne's Janet Bolitho, who as Mayor of the previous Council oversaw the selection of the winning bid, was the only Councillor to maintain her commitment to the dinosaur proposal. The commercial settlement returned the foreshore crown land to the people, giving them a fresh opportunity to imagine and deliver a visionary seaside fun precinct for the St Kilda foreshore.