September 28th, 2023

Lake Knox case returns to VCAT and waterway decision

We are soon to return to VCAT hearings on the future of Lake Knox. The Tribunal members have ruled that Lake Knox is not a waterway under the water act. The reasons given were mainly about whether the term ‘natural’ accurately describes the source of the water which collects in the suburbs to the south east and then drains to an outfall behind Fairhills High School and from there into the Lake.

There was also the question of the effect that this ruling may have on other cases going forward, and responsibility that would fall on Melbourne Water to maintain other waterbodies currently managed by local councils.

On the 9th we return to the ongoing case, with the Council resuming where they left off. After a short summary of ‘the story so far’ they will call their next witness, Dr Graeme Lorimer. It will be interesting to see what Graeme has to say, and how Development Victoria will respond to his evidence.

After the Council has finished its submissions, it will be the turn of the KES. We will start with an outline of our case and then we will have four expert witnesses: Mr Brown (storm water), Dr McCulloch (fresh water ecologist), Dr Richlings (Reproductive Biologist), and John Cull (Blue Billed Duck expert). We expect that Development Victoria will be pretty exacting in their questions to try to nullify our experts.

Then it will be the turn of individual objectors, including myself and Jo Selleck, and two others. We can say what we like, (to a point), and cannot be cross examined (phew!).

Finally, it will be the turn of Development Victoria and their expert witnesses, who can be cross examined by the Council, KES, and the individual objectors.

Then there will be a chance for some quick rebuttals. There are 12 days allocated up till the end of October, and if it is not finished by then, we will be back next year—something nobody wants.

Sadly, because the case is dragging on, we are still up against it financially. The prospective costs (in addition to their work so far) going forward are:

- Barrister’s Fee for 14 days = $41,200

- Expert Witnesses, 10 hours each by two experts = $8,600

Total = $49,800

We are yet to pay our lawyer anything even though he has done a power of work so far, but he realises our financial situation and we will have to pay him going forward—hopefully over time. What we need is a kind financial supporter or philanthropic company or organisation, so if you know anyone who fits this description it would be great to hear from them.

- Richard Faragher, President

September 7th, 2023

Lake Knox VCAT case - second week

Greetings All,

As you may remember from my last VCAT update we had been sent away to write a submission as to whether Lake Knox was a waterway under the water act.

The outlined plan was then to argue our submissions last Monday, have Tuesday off and then on Wednesday get a ruling and then continue with our submissions on the permit applications. I am sitting here this morning (Thursday 31/08) still listening to the submissions that we started on Monday.

🩵Monday saw the Council kick off with their submission which was well done and supported Lake Knox being a waterway. This was followed by Melbourne Water and they did not support that Lake Knox was a waterbody. After lunch it was then the KES' turn and they called 2 expert witnesses. The first, Dr Brown, took all of Monday afternoon.

🩵Tuesday saw us resume and hear from our second witness, Dr McCulloch, who joined us via video from WA. She was only available for a limited amount of time. Then KES began some of their submission and went through some legal argument.

🩵Wednesday we started earlier at 9.30am so as we could finish off hearing from Dr McCulloch. The KES finished off their submission and after it was time to hear from all the individual submissions - Jo Selleck, myself and 2 others. Following this, we heard from the Development Victoria expert witness who did not support Lake Knox as a waterway.

🩵Today (Thursday) we are hearing the DV submission. The DV lawyers are relentless in their questioning of the expert witnesses and they went on and on and on. At times it became quite uncomfortable as they tried to get some predetermined admission or mistake from the witness.

Some observations;

- It was interesting to see Melbourne Water reps and DV reps deep in discussion on Monday morning before the hearing started. They sit next to each other and have made comments to each other when certain points come up. Maybe I am just too cynical!!!

- The worst thing is to have lawyers and expert witnesses as it just really prolongs and complicates the whole process.

- The community is not really able to participate fully, For example Jo Selleck has been here every day but can't be here today as she MUST attend her place of work. She has been madly reorganizing her work for the last 2 weeks but there comes a point where you can't do that.

- You would think that in this day and age the access to technology would be seamless but there has been real trouble accessing computers onto screens and it is dominated by the main parties.

- It was interesting that DV complained about covering this question as to whether it is a waterway and how it was costing them and causing concerns. Shame that they didn't do a proper job of public consultation before we even got here to VCAT.

What’s next;

After DV's submission it will then be a matter of trying to find dates to continue the hearing where we will be go back to the original case. It looks like being mid to late October and maybe into November.

Which way will VCAT go in terms of the waterway question? So difficult to say. A real problem is not having the support of Melbourne Water who are the 'experts' in this field. Just have to wait and see. If VCAT do decide that it is not a waterway, that does not mean that we have lost, there are still many more submissions to come.

I am now full bottle about the definition of what makes a waterway!

Cheers

Richard Faragher

(KES President)

September 1st 2023

Lake Knox VCAT case - first week

Monday 28.08

Morning - this was taken up by 'housekeeping' and preliminary matters. The main point of contention was the push from Development Victoria to prevent us from being able to argue for Lake Knox in our submissions. According to them this was decided at the Government Land Standing Authority hearing back in 2018. Luckily we managed to persuade the VCAT members that we need to include that as part of the discussion. Also, the question whether the Lake was a waterway under the water act and the fact that Melbourne Water had been asked to rule on this a number of times. The members said they would consider whether they would ask MW to rule on this.

Afternoon - The Council began their submission and their lawyer ran us through all parts of the planning scheme relating to this - sounds simple but was very, very involved. Mind you I learnt A LOT about planning. This took all afternoon and we finished at 4.30pm.

Tuesday 29.08

Morning - The VCAT members told us that they would contact MW and ask for a ruling on the waterways issue as it had relevance and needs to be decided. They would require MW to reply and appear by Thursday. The Council then continued on with their submission. More legal and planning stuff. Interesting but very convoluted and complex.

Afternoon - Heard from the Council arborist. Discussion was mainly about; a) Trees along Scoresby Rd and the North boundary with Fairhills Secondary College and b) the remnant trees in and around the lake and the effect the new wetlands would have on the trees. Then there was questions from the others - KES, DV and the individual objectors.

Wednesday 30.08

Morning - the VCAT members had an unaccompanied site visit so the rest of us had the morning off - Woohoo (went to the nursery)

Afternoon - Reassembled in the city and heard from the DV arborist. Went over the same topics but of course with a different perspective. Then a chance for others to ask questions.

Thursday 31.08

Morning - gathered and there was at first a lot of chat between all parties as we thought that MW had not turned up. Then suddenly they found him, but he was unprepared - said he was only told that morning. Then we had another discussion about what should be done. It was decided that we would all go home and write submissions on whether the lake is a waterway under the water act. They are due by 4pm Friday. We were then dismissed for the day.

Next Week:

Monday - we are back in to talk to our submissions

Tuesday - we have off as VCAT deliberate

Wednesday - we reassemble and if they have made a decision we continue - if not we go back home until they do.

As soon as they decide we will have the Council continuing with their expert witnesses - which will be Dr Graeme Lorimer and that, with the questioning, will probably take all day. However, it will be extremely interesting to hear what he has to say and how DV question him.

Following that it will be the KES who will deliver our submission and then our expert witnesses.

It is a public hearing so if anyone wants to make their way in to hear what happens then please do so. Probably best to ring me first to check where we are up to.

Thanks to Jo Selleck for all her work on this as well.

Cheers

Richard Faragher

(President)

August 28th, 2023

The case has begun at VCAT but funds are still needed to cover the expenses that are rapidly growing now that we are underway.

An important decision affecting the outcome is whether the lake is considered a waterway under the Water Act. If it is there is a much better chance of it being protected. The barrister's argument and the water expert's report, as this fundraising has supported, has already seen this is an open discussion. We need to fund this expert to present their findings so VCAT make their decision well-informed as to the qualities of Lake Knox.

The other aspect of our case is the ecology of the lake and its surrounds. This is where we are looking to bring in another expert for a report and to act as an expert witness. Of course, Knox Environment Society will also present our own submission based on our in-depth understanding of local vegetation, habitat and ecology. This does not need fundraising; our volunteers are keen to share what they have learned, through their own passion for local plants and years of working in Knox bushlands, to protect this important home to vegetation and wildlife.

Richard Faragher

President, Knox Environment Society

August 2020

Development Victoria’s Community Reference Group for Lake Knox

The President of the Knox Environment Society along with 7 other community members attended a Zoom meeting for the first meeting of the above group. The 8 community members were very keen to take an active role in the form, structure and development of this area to make it world’s best practice but their hopes were quickly dashed when we found out that our only role was in doing things like having input into street names.

The KES president was so angry about the whole process that he sent the following email to our local politicians – Nick Wakeling MP and Jackson Taylor MP:

Dear Mr Wakeling,

Firstly I hope that you, your family, your staff and your colleagues are all well and standing up to what must be a really difficult time for you. I know that you would be very busy at this time, however I do have something I would like to share with you.

I am writing to you to let you know just how disappointed I am with the so called ‘community consultation’ process being offered by Development Victoria for their Knoxfield site on Burwood Highway. Last night I was sadly involved in the farce, the sham and the con that was their Community Reference Group.

The DV websites uses wonderful platitudes such as:

“Development Victoria is committed to and values community engagement on our projects.”

“Development Victoria is committed to engaging with the local community, and stakeholders to ensure they're given opportunities to provide valuable feedback.”

So 8 community representatives gathered via zoom hoping to really have a major input into this project with the two statements above to make us feel good and wanting to ensure that Knox would finally get a community driven, top quality, environmentally sensitive and community focused development that was world’s best practice and that we could be proud of what was built and be a beacon for future projects.

We were confronted by 7 DV ‘heavies’ who were more interested in talking to us rather than actually listening to us. Peter Hood the Senior Director Property Group for DV soon put us in our place by telling us they have their ‘experts’ produce their reports and designs and we were not qualified to make any input.

So for our community group

The wetlands design and form was set – no discussion

The Masterplan was already done – no discussion

The Builders for the site were close to being finalised – they would decide on housing form and design – no discussion.

So what were we to talk about?? Well we had the REALLY big issues

1)      Elements of a wetland

2)      Landscaping

3)      Public open space

4)      Street naming

5)      Wayfinding, signage, public art, historical references

6)      Linkages to Blind Creek

7)      The Commercial Zone

8)      Establishing and integrating with the new community

Well to say I was disappointed is an understatement. But then why should I be surprised?? We have been trying to talk to DV for a couple of years now but they have always been the ones talking to us and we are expected to just listen and accept what they say. Not once have they taken our wants, needs and requirements for a development in OUR community that WE have to live with and effects OUR way of life.

For example our initial discussions with then 2 years ago was on their initial design for the Lake and wetlands. After all our campaigning, letters, posters and not to mention a petition with thousands of signatures their master plan showed exactly the same design in exactly the same place.

Their simple response is that the lake is not safe and that may well be true, in its current form, we have had advice from a company who does work for South East Water and their desktop review of DV’s report is that the lake could be fixed and probably for under $1 million dollars. It’s just that they are not interested / willing to do anything except what they want NO MATTER what the community think. Maybe they could have saved the money from these meetings and used it to fix the Lake.

Right from the outset the KES has spent a lot of time on this development  including a number of meetings, we also put in a submission (attached to this email) about the development (which were being asked for on line) and now with their community group. As someone who is happy to freely give of their time this is OK but what I asked of them all the way along was how will how feedback be taken and fed back into the development and design phase in a meaningful way that respects the time, effort and expertise of those contributing. Well I now know the answer!!!

I find this lack of respect toward the community and its representatives disgraceful and disgusting but so typical of the way we are treated by all levels of Government.

I know that there may be little that you can do but one does tire of it!!

Richard Faragher

President of the Knox Environment Society