News Article, March 2012
By Jemimah Clegg
Boroondara City Council were powerless to carry out enforcement action against Corbett and Yueji Lyon, who opened their Kew home to the public in September 2009 and began using it as museum without a permit to do so.
Senior Planner from the Boroondara Council Anna Barclay said the Lyons applied for a planning permit for the existing ‘housemuseum’ as a result of enforcement action brought against them by the council.
Ms Barclay said the Victorian Civil and Administrative Tribunal (VCAT) would not approve enforcement action if there was an application for a permit in progress.
The Lyon’s permit was retrospectively approved at an Urban Planning Special Commission earlier this month, allowing the Lyons to continue to use the house as both a residential dwelling and a ‘housemuseum’; open to the public by appointment only.
The Special Commission also amended the planning scheme to allow the development of the property next door to the Lyon’s existing house on Cotham Road, and to combine the two properties to form a fully functioning public museum.
“We’re required to consider all planning applications on their merits”, Ms Barclay said when asked why the council approved the permit, “we’re not allowed to consider whether they’ve started or not.”
Council’s decision to allow the amendment to the planning scheme and to retrospectively issue the permit for the ‘housemuseum’ was due to the net community benefit of a cultural facility in the area, which the majority of councillors felt outweighed the potential impact on amenities, particularly traffic and parking.
Boroondara Councillor Coral Ross said it was very common for people to begin to use buildings for unpermitted purposes, and only seek the correct permits once the council notifies them of proposed enforcement action. In most cases the permits were approved and the enforcement action does not take place.
Cr Ross agreed that this severely limits council’s authority to act against those who have neglected to obtain correct permits.
“There was a sense of frustration for the residents here, that council was not coming down and enforcing…but council couldn’t,” Cr Ross said.
Residents in the area were frustrated further by the decision to amend the planning scheme, allowing a commercial building in a residential area.
Kew resident John Kaminski said the Lyons were aware of the restrictions on both properties when they purchased them.
“They used a very non-conventional process – they did not go through VCAT which is the typical process for these planning scheme issues,” Mr Kaminski said.
Focus Fire and Safety director Nicolas Cox has seen this happen commonly in his 30 years as a building compliance auditor. He said the council uses enforcement action as a tool to get the building in question to meet compliance.
“There’s no value in taking someone to court and fining them, that’s not the goal. The goal is appropriate and responsible planning to meet all the guidelines,” Mr Cox said.
Mr Lyon described the decision to invite people into their home to view the art collection as “a very natural thing”. When asked why he did not seek the appropriate permit prior to opening the existing ‘housemuseum’, he said it was opened on a limited basis, to small pre-booked groups.
“We were particularly keen to make it available to school students studying art, to art lovers and others in the local community”, Mr Lyon said.
The Lyon Museum will be set up as a public museum and run by a board of directors. The family will ‘gift’ the finished buildings and the artworks within them to the public over a period of 8 to 10 years.
Jemimah Clegg 