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A Number 72 October 2007

PPrreessThiieddpreoeofnnis ttin the pudding

The strength of an Association and the nature of its achievements can be meas - ured through its membership and the success or failure of its events. What a fabulous endorsement then, was the recent VPELA conference. Over 250 members and industry colleagues par - ticipated in a stimulating two days of program and social events in the rolling hills of the Yarra Valley. In all, there were 39 presenters who came to share their experiences and expertise over a range of planning and related issues, as well as to take us outside our comfort zone. We became for a time scientists battling with climate change, refugees traveling by boat to a promising new country and human rights advocates Kathy Mitchell, President chats with special guest speaker Julian Burnside grappling with inhumanity issues. and Susan Brennan, Barrister Thought provoking stuff! particular interest that at this point in Simply put it is the people. VPELA is time we have already received more than blessed with interesting, intelligent, Sincere congratulations must go to all the usual number of nominations for outgoing, generous people from all involved in the organisation, particu - Board membership and there is still a larly Lester Townsend who led his team disciplines involved in the planning with skill and enthusiasm, but I think week to go until nominations close. and environmental law industry, but the success of the conference is also in Where other organisations flounder and more than that, they are all passionate part due to that which makes VPELA struggle to find those who will step for - about what they do. ward and take up the challenge, VPELA so strong. The diverse nature of I was recently approached by a planner has countless individuals who wish to VPELA’s membership and the passion in his mid 30s who commented that become further involved with the of its members who give so freely of he had been to many different organi - Association on a variety of levels. Our their time and energy are the source of sational offerings over the years that membership has grown to 867, each VPELA’s strength, and an indication of were topical, educational, thought year it increases significantly on the last. its health. provoking and useful - but that As I write, we are fast approaching our What is it that makes VPELA so attrac - VPELA was the only organisation that 17th Annual General Meeting which tive in a world where so much is com - will be held on 10th October. It is of peting for our time and commitment? (Continued on page 2 VPELA Board Members Contents President The proof is in the pudding 1 Executive Phone Fax Voluntourism: Voluntourism on the Andaman Coast, Thailand 3 President Award : Paul Jerome Award 5 Kathryn Mitchell 9655 8736 9655 8740 Minister : Planning for strong vibrant Vice Presidents communities 6 Lewis Sayer 9650 4155 9650 7344 Shadow Minister: Planning for population growth 8 Chris Wren 9225 7260 9602 2897 Demographics : Australia needs migrants, but where are they going to live? 11 Secretary Housing: Rory’s Ramblings 15 Tamara Brezzi 8686 6226 8686 6505 Conference: Solutions for now 16 Treasurer Good design 19 Bernard McNamara 9205 1222 9205 1333 New members 23 Conference: 24 Executive Members Demographics : The Republic of Bernardistan 32 David Hodge 0413 137 179 Planning : Response to Bernard Salt 34 Lester Townsend 9637 9696 9637 7900 In the Know 35 Planning : “A Structure Plan to go with your Members Activity Centre, sir?”.... “No Thanks!” 36 Planning : Do we need a Metropolitan John Carey 8608 2687 8608 1336 planning authority 38 Adrian Finanzio 9225 8745 9225 8740 Planning : Do we need a Metropolitan Chris Goss 9620 5200 9620 5800 planning authority 40 Jamie Govenlock 8663 4888 8663 4999 Seminar : Where there’s smoke there’s fire 42 Planning Planning and building permits: John Henshall 9347 5255 9347 5355 some practical issues 43 Paul Kearsley 9262 6306 9262 6379 Planning : A Better Mousetrap 44 Jane Sharp 9643 4526 9643 5999 Climate : ?? 44 Geoff Underwood 9822 3155 9822 5450 Design: Waste management meets modern art(2) 46 Allan Wyatt 9696 8011 9696 8022 Transport: The Fast lane 48 Case Notes: News from the legal world 49 Immediate Past President Ian Lonie 9286 6124 9629 8488

(continued from page 1)

managed to achieve all of this and have fun at the same time. I believe it is our people, their enthusiasm for life and their passion and commitment to achieving the best outcomes Members are invited to submit articles they can, that make VPELA the pre-eminent and the most for publication. enjoyable of professional associations. The fact that we have fun along the way in no sense undermines our credibility or Please contact: the serious aspect of our role, but it is fundamental to who Newsletter Editor: Jane Nathan we are. 0419 542 492 I am thrilled that we have so many nominees for this year’s email: [email protected] Board and look forward to a great many of you attending Secretariat: Jane Power our AGM. I have great confidence that while the caliber of 9813 2801 our people remains so strong, so will the Association, after PO Box 1291, Camberwell, 3124 all, the proof of the pudding is in the eating. v email: [email protected] Kathy Mitchell President

Page 2 VPELA Newsletter – October 2007 AwTahe rPadul Jerome Award 2007 Proudly sponsored by MacroPlan Australia

• Towns in Time, Suburbs in Time, • Victoria in Future; and • From Donut City to Cafe Society. Jeremy’s publications have furthered the boundaries of knowledge and have changed how we view our cities and regions. Jeremy’s work has been the main influence in the decision making and policy direction for government’s of all sides of politics and he is respected throughout the pubic pol - icy and private sector for his insight and professional skills. Geoff Underwood (L) and Kathy Mitchell present Jeremy Reynolds (C) with his trophy at the ‘Going Green Dinner’ The nomination for this award stated that “Overall it is Jeremy’s understated selfless dedication to his role as the In 2005, VPELA instituted the Paul Jerome Award to recog - State’s principal demographer and researcher that sets him nise excellence in public administration in state and local apart from the pack.” The judges agreed. It was their unani - government. mous decision that Jeremy Reynolds be the 2007 recipient of The recipient of the Award in 2007 is Mr Jeremy Reynolds. the Paul Jerome Award for public administration as he so Jeremy, probably knows more about your life than your parents closely resembles the principles and approaches of the person do. For the last 13 years, Jeremy has made your life his life. after whom the award is named. Over that period he has been the manager of research with - At the time of the nomination for this award, Jeremy was in the planning department. In that role he has been respon - Manager Spatial Analysis and Research in the Department of sible for the production of numerous State Government Sustainability and Environment. Fortunately, Jeremy con - research reports including tinues to hold the position within the now Department of • Time Series-Victoria in Time, Planning and Community Development.

VPELA Newsletter – October 2007 Page 3 YPG AVwolunatourrid sm on the Andaman Coast, Thailand

Adam Terrill, Tract Consultants was the recipient of the VPELA/Peet Ltd Young Professional Award 2006. This award enabled Adam to travel to Thailand to assist with part of the rebuilding. Ban Talae Nok lies in the middle of the Andaman Coast on Thailand’s western border, directly facing the Indian Ocean. As a small fishing village three hours from Phuket but a mil - lion miles off the tourist map, it is, by western standards, an unremarkable place. But on Boxing Day 2005, it was cata - pulted into the world’s spotlight in the most tragic of cir - cumstances courtesy of the Indian Ocean Tsunami. Sparked by a large earthquake just off the east coast of the Indonesian island of Sumatra, the tsunami killed approxi - mately 240,000 people, quickly earning the label as the deadliest tsunami ever recorded. The wave catapulted into the village of Ban Talae Nok, washing away buildings, cars, livestock and livelihoods. The local school - positioned immediately adjacent to the beach - was completely washed away. In a town with a population just over 228, approxi - mately 47 people were killed, most of them children attend - ing an irregular Sunday school. Almost half the village’s buildings were flattened. As part of the VPELA Young Professionals Award for 2006, I was fortunate enough to travel to Ban Talae Nok and assist in the tsunami rebuilding. Organized through a UK travel agency specializing in ‘voluntourism’, I joined a group of young volunteers from around the world. The National Geographic Magazine has recognized the success of the pro - gram by naming it amongst their ‘top 50 trips of a lifetime’. and emergency assistance, NATR took a longer term view, The program was organized through an aid agency called recognizing that the most effective manner in which they North Andaman Tsunami Relief (NATR), who have a very could assist was through working with the local communities different story to that of most aid agencies that descended to encourage self-reliance, establish sustainable industries upon Indian Ocean coastal communities following the and improve education and healthcare services. Such assis - tsunami. Whilst the focus of most agencies was immediate tance was particularly needed in Ban Talae Nok, whose

Page 4 VPELA Newsletter – October 2007 economy was almost entirely dependent on the fishing industry. The tsunami not only devastated the region’s fish stocks, but also the resources used to catch them. Through a network of friends, dedicated volunteers, and donations, NATR has implemented over 120 projects in 12 villages, by listening to and working with the villagers themselves. Our volunteering program assisted Ban Talae Nok in two major ways. The first was a range of tangible projects where hands-on assistance was provided. These included planning, designing and building a new amenities block for the local school which, following large donations from US Rotary, was rebuilt back from the beach. It also included teaching English, soap making, mangrove planting and the creation The program settled upon was one where specially selected and installation of interpretative signage for a new jungle tourists were billeted to a Thai family, sleeping in a room walk recently constructed through the foothills surrounding vacated by the children, and eating, drinking and living with the village. The soap making exercise was particularly bene - the family. We were amongst the first guests to trial this new ficial, as NATR had organized buyers amongst Phuket’s industry. During the day we relaxed, played with the chil - resorts, whose ongoing payments supported the village’s dren or undertook community projects around the town. economy post tsunami. Unlike most tourism destinations, only a handful of the res - idents spoke English and so it was our responsibility to learn The tsunami focused the attention of regional scientists on the basics of Thai to communicate with our family. The the benefit of natural defenses, especially the humble man - families were fascinated with our photos of Australia, and grove. Commonly cleared in Thailand for agriculture and our broken Thai stories of Australian culture, taking good development, the tsunami highlighted the mangroves sea natured delight at our attempts to pronounce difficult Thai retarding properties and unique way it dispersed the wave words. force. Towns surrounded by mangroves survived with fewer casualties and less damage than those surrounded by cleared Remnants of the tsunami were not easily eradicated. farmland. The Thai government has recognized the value of Abandoned fishing boats still sit proudly in the hinterland, the mangrove and has, as part of the disaster relief, provided kilometers from the water. Trees lean uniformly away from funds to local communities to reforest along estuaries and the coast. Litter adorns the Palm Trees, meters from sea coastlines. Our role was to assist in site selection and the level. The Thai Government has installed a comprehensive staged planting. Since the tsunami, thousands of mangroves tsunami monitoring and warning system along its coast, plants have been planted and early crops are already well manifesting itself in the traditional village through the established. incongruous sight of a gleaming white concrete tower. Psychologically, the mere mention of the ‘wave’ brings a glis - The second major component of our assistance to the village tening shine to the villager’s eyes. Sadly, many have turned was the testing of a new ‘homestay’ type tourism industry, their backs on the beach, and families who once played on increasingly known as ‘volunteerism’. For many years the the sand in the evenings, now choosing their playgrounds community of Ban Talae Nok watched with interest the elsewhere. development of the Phuket tourism industry to the south The resolve of the Ban Talae Nok community and determi - through the march of the ubiquitous western resort. nation to use the tsunami as the basis for a better life is Following the tsunami, after immediate needs were met, the inspiring. Lesser people, when faced with such a terrible discussion turned to their ongoing livelihoods. With the tragedy, could become despondent and helpless. But with guidance of NATR, the community decided to embrace the the help of the dedicated volunteers at NATR , Ban Talae tourism industry, but in a different manner to their friends Nok moves into the second decade of the 21st century with in the south. They made this decision recognizing that they all the tools to carry on as a self-reliant prosperous commu - could not compete with Phuket and also acknowledging that nity in a way that has preserved their culture and way of life. as a community they preferred a different style of tourism. Those who like their holidays served on a silver platter are Ban Talae Nok felt that if they could offer a unique experi - not well suited to homestay tourism, and NATR are careful ence of the ‘real’ Thailand, deliberately avoiding the luxuries to advise prospective guests to ensure their expectations of the Western resort, they could tap a growing segment of match the reality of life at Ban Talae Nok. But despite the the international market and offer the village the hope of difficulties, and frequent excursions outside your comfort long term economic sustainability. Across the world, zone, the experience is extremely rewarding. At the end of tourists were increasingly looking at ‘meaningful’ travel and our program we felt that we had made a real difference and wanting a chance to give something back to the destination brought about positive change to the lives of the villagers. they visit. Villagers decided that community-based tourism would allow them to generate additional income and sup - I would like to thank PEET for their generous donation and port the continuity of their traditions, culture, and lifestyle. VPELA for their continuing support of the young profes - Community-based tourism could fit into their lives, and not sionals of the planning and environmental industry. I would force them to sacrifice their traditional lifestyles for the sake encourage all young professionals to apply for next years of tourists. award. v

VPELA Newsletter – October 2007 Page 5 MinistePlanr ning for strong vibrant communities Justin Madden, Minister for Planning, Member for Western Metropolitan Region These places provide a range of housing options, shops and services around central public transport services. Soon after John Brumby became Premier of Victoria, he announced At the same time, great effort will go into making sure every planning as one of his priority com - Victorian has equal access to education, and equal access to mitments and created the new job opportunities in a workforce that is being shaped by a Department of Planning and new ‘smart economy’. Community Development. Some of the excellent initiatives as part of our Transit Cities This is a very exciting and positive Program are becoming more evident in Dandenong, development. Bringing the Footscray and Ringwood. Ballarat, Geelong and Bendigo Planning Portfolio together with are also leading examples of some of our greatest achieve - the former Department for ments where the State Government is actively revitalising Victorian Communities makes sense because the heart of regional centres. planning is all about people and building strong, vibrant The population of each of these towns is booming, and the communities. region of Greater Geelong’s population is growing at a faster The work of the new Department will be informed by two rate than Melbourne. of the Victorian Government’s most important policy docu - With a growing population, our regional centres and growth ments: A Fairer Victoria and Melbourne 2030. These poli - areas will become more popular as people seek out ‘quality’ cies will continue to guide the Victorian Government’s over - places to live. Faced with this growth, it is critical that we arching vision of Growing Victoria Together in order to are focussed on building communities, not just subdivisions. make a real difference in Victorian communities. It is also why housing affordability and liveability remain Within this strong policy context, the Department will con - high on the Brumby Government’s priority list. tinue to assist our growing communities plan for the servic - VicUrban has joined the new Department and will be vital es and infrastructure they need for the future both in region - in continuing to implement our planning policies, which al areas as well as in the outer suburbs. include affordable housing. The Brumby Government values social cohesion and social Our Sustainable and Affordable Home project, led by capital. We will continue to find an appropriate balance VicUrban, is already delivering on this with four architec - between continuity and change, building on our existing tural teams designing high quality homes that meet a six star policies and processes by creating strong communities that rating and cost less than $150,000 to build. are well-planned and well-designed. The home designs will be licensed by VicUrban to volume Victoria has come along way over the last seven years. You builders, who we hope will take them on in their standard don’t get to be one of the world’s most liveable cities and states by accident. We are committed to planning by choice, product range. not chance. This is just one way the Victorian Government is looking to Our first five yearly audit for Melbourne 2030 is underway manage sustainable growth in the state, while helping more and the public submissions process closed on 24th Victorians get their foot into the housing market door. September 2007. Another priority of the Victorian Government is to contin - An audit expert group, appointed in June and headed up by ue to streamline the planning process. So far we have Professor Rob Moodie, will review submissions as part of the removed approximately 4000 permits each year through our second phase of the audit. “Cutting Red Tape in Planning” initiative. I look forward to receiving the advice of the expert group so We have also streamlined planning scheme amendment that we can continue to facilitate and manage change in the processes by fast tracking amendments that remove redun - most appropriate manner, while protecting and enhancing dant provisions in planning schemes. We’ve also set per - Victoria’s reputation as a great place to live and work. formance targets for amendment processes and developed protocols for pre-setting panel hearing dates. Our focus will continue to be on the development of activi - ty centres and transit cities. We will continue to implement the “Cutting Red Tape in Planning” initiatives and will foster a culture of continuous improvement in the planning system.

Page 6 VPELA Newsletter – October 2007 Planning for sustainable communities and a smart economy I want people in 30 years time to look back and feel thank - will become more and more important as we strive to meet ful that the planners and the leaders of today made the right the Victorian Government’s renewable energy target, that decisions, because they were planning by choice, not by by 2016, 10 per cent of electricity used in Victoria will chance. come from renewable energy. It is up to all of us to make the right planning decisions and The Victorian Government is also committed to helping all I am committed to working closely with local councils, Victorians reduce their environmental impact by saving industry and the community to make this happen. v water and energy and the 5 Star standard has been and will continue to be tremendously important in helping Victorian communities grow in a way that is more sensitive to our natural environment. For example, between 2005 and 2010, Victoria’s 5 Star VPELA congratulates homes are predicted to reduce annual greenhouse gas emis - sions by more than 600,000 tonnes of carbon dioxide, the Susan Brennan , equivalent to taking 150,000 cars off the road. In its cur - Barrister, on her rent form, 5 Star is set to save 20 billion litres of water across Victoria by 2030. election as World Given the impacts of climate change, it is now more impor - President, YWCA tant than ever to strengthen the current 5 Star standards to help Victorians reduce greenhouse gas emissions and con - tribute to sustainable water security. Well done and good luck with your Work on the second generation of the 5 Star standard is underway and are looking to introduce these flexible, per - new role! formance based standards by 2009. There is clearly a great shift in the way we’re responding to our changing climate and natural environment, we’re all doing our bit, but we do need to do more.

VPELA Newsletter – October 2007 Page 7 ShaPldannoingwfor Mpopiulnatiiosn gtreowrth

Matthew Guy, Shadow Minister for Planning try will know the pressures of trying to house, service and Member for Northern Metropolitan employ an unaccounted 400,000 people ñ almost the popu - lation of Tasmania. Readers will be aware of recent ABS figures indicating that Further, we must be aware that while Victoriaís population Melbourneís population appears is currently growing at 1.5 per cent per annum; we are build - to be on a ten year unstoppable ing 20 per cent less dwelling units than in 2002, when the growth spurt which has exceeded population was growing at 1.2 per cent. all expectations. The Liberal Party believes that we need to use the Indeed the Australian Bureau of Melbourne 2030 Audit phase to re-examine many of the Statistics commented way back in fundamentals of the document. the late 1990s that Victoriaís then If the high end growth plans contained in 2030 are inade - population growth spurt was a quate the land release and transport needs contained within ëspikeí that was not expected to last. Ten years later, that document become redundant. Victoriaís population is continuing to grow strongly and Melbourne is growing at numerical levels unparalleled any - Further, with proposals to construct new suburbs in land where in Australia. that is currently zoned Green Wedge being considered by the state government, the current Urban Growth Boundary in Strong population growth is important to the Victorian its current form appears to be under question. economy and sustains strong demand in the building and construction markets which are underpinning economic It is clear that Melbourne will find it exceptionally difficult growth. to absorb a million people within the current urban foot - print. Thus if we are to continue along the path of rapid However it is essential that strong population growth is well population growth we must have a metropolitan planning planned for. strategy that accounts for growth along corridors with exist - Pressures on transport, health, education, water and housing ing infrastructure as well as population consolidation in are all starting to emerge as Melbourne starts to burst at the existing suburbs. seems as we approach the 4 million mark. Moreover, at the Planning and population policy must be mutually exclusive current rate of growth, Melbourne may well exceed Sydney and it will be a challenge to grow the city by 30 per cent over to become the largest city in Australia by 2032. the next 25 years without major social upheaval. Noting this, the Liberal Party remains concerned at the con - But if we don’t start to plan ahead in a coordinated and real - fused relationship between planning and population policy istic manner now, we may well find that we are faced with that currently exists. much greater problems in ten years time. v The state government is pushing a rapid growth mantra, but have a corresponding planning policy that seeks to limit growth and contain the city in defined boundaries. At pres - ent, planning policy does not account for the scale of current VPELA population growth. The Melbourne 2030 document was CHRISTMAS PARTY based on population predictions of a 1.0 per cent annual growth, then declining to 0.5 per cent growth closer to the 2007 year 2030. Tuesday 4th December The actuality is that for the life of the document, Melbourneís population has been growing at 1.2 per cent or ERM, LEVEL 3, greater, peaking at 1.5 per cent in the last two quarters YARRA TOWER, (December 2006 and March 2007). These figures are far WORLD TRADE CENTRE higher than the high end of the 2030 predictions. 18-38 SIDDELEY ST, If population growth figures are inaccurate by just 0.1 per - DOCKLANDS centage point for the life of the 2030 document, this would Mark this date in your diary now! equate to 150,000 people. Thus, on current ABS predic - tions, the 2030 estimates may be inaccurate to the tune of 400,000 people While many may look at this figure as a raw number that can be accounted for, planners and those in the planning indus -

Page 8 VPELA Newsletter – October 2007 DAuestrmaliaonegedsrmaigprahntsi, cbust where are they going to live?

Bert Dennis, OAM Monday 9 July, speech to the next 40 years real GDP growth is expected to fall to 2.4 per - Geelong Business Club cent. 1 In the mid 90s I became very concerned about Australia’s This will have an effect on our ability to look after our eld - demographic future, so muchso that in 1998 Doug Coomes, erly, improve the environment and defend ourselves. a consulting engineer, myself and a couple of others started Apop identified four ways to correct the demographic imbal - up an organisation called the Australian Population Institute ance and its effects: -Apop. I was President of that organisation for 8 years and • Increase fertility am still an active Committee member. • Increase productivity The problem Australia faced was: • Increase the working age • The percentage of people over the age of 65 was project - ed to increase from around 13 percent to 25 percent by • Increase immigration. the year 2047; The Federal Government has picked up on the issue and is • The ratio of people of working age to those over the age now pushing a triple P line: of 65 was projected to reduce from 5 to 1 to 2.4 to 1 by • Participation the year 2047. • Productivity These concerns are being reflected in the highest levels of • Population power with a recent Federal Government report, ‘The Participation -getting more people in jobs and encouraging Intergenerational Report 2007’ stating; them to work longer. This is where Work Choices “Demographic change is projected to have the decline in the fits in. major effects on the future size and compo - sition of the Australian population. The percentage of Productivity -increasing education, training, investment and infrastructure. composition of the population will change population of considerably as a result of a decline in fer - Population -increasing permanent immigration, traditional working tility which commenced in the 1960s. particularly skilled immigrants, increasing tempo - This, and increasing life expectancy, will age . . . will also rary migration through the temporary visa system lead to a marked ageing of the population, impact upon the and encouraging an increase in fertility. although a continuation of significant level Fertility will have the greatest effect of all. real economic out - of net migration will reduce the rate of age - Regrettably though, any increase in fertility will take ing to some extent.” 1 put . . . of the years to have an effect on the workforce, which You don’t have to be a genius to work out economy . means that immigration will have to increase con - that without commensurate change in siderably over the coming years to fill the gap. other areas of the economy, this will cause a drop in our stan - Also if our population growth ceases and then starts a slow dard of living, or an increase in taxation, or a combination decline and we progressively become an aged society, as pre - of both. dicted under our present settings, we will find it increasingly These problems were being caused by a combination of a more difficult to retain our best and brightest young people. lower fertility rate and the imminent retirement of the baby The strain that Australia will be under will be similar to that boomers. The crisis is now upon us. Currently the Australian workforce is expanding by around an additional 170,000 jobs per annum. By the year 2020 it will only expand by a fraction of that figure. Already, a shortage of workers, not just skilled workers, is occurring in most segments of the economy and in most regions. The competition for workers can only escalate. According to The Intergenerational Report, the decline in the percentage of population of traditional working age (15 to 64) will also impact upon the real economic output or real GDP of the economy. Over the past 40 years when the pop - ulation grew at an average annual rate of 1.4 percent real GDP per person increased by 3.5 per cent. Given that pop - ulation growth is expected to slow to 0.8 percent over the

VPELA Newsletter – October 2007 Page 9 experienced by a lot of our country towns that are ageing ulation is obviously going to wane. and have no growth, where the young are leaving for the big - There are six main factors that impact upon housing afford - ger cities and the supermarkets and the banks are closing. ability, two on the demand side and four on the supply side. Already Australia has around 900,000 people working over - These are: seas. This figure will balloon out if we head down the low 1 Fluctuating demand due to international and state-to- growth, aged path. state migration and the inability to properly forecast and Unfortunately nearly all developed countries are in the same therefore plan to be able to accommodate these extra predicament as ours, which means that competition for people migrants, particularly skilled migrants will be fierce. The 2 Increased money supply Intergenerational Report says, “The demographic trends are 3 Powerful lobby groups representing the interests of manifesting in rising old age population figures which are established suburbs projected to at least double in Australia, Europe, India, and Japan and triple in China from now until 2050.” 1 4 Complex and protracted planning systems To continue to obtain our current share of 5 Restrictions on the supply of land for res - immigrants, let alone substantially increase our Figures from the idential development 6 The rising cost of development due to share, Australia will have to be competitive Housing Industry globally in all areas, but especially taxation and high fees and charges. housing. Association show It is a basic economic fundamental that when Our housing must be affordable, otherwise we that housing afford - the supply of a product is limited demand will will miss out. ability fell by more grow and therefore prices will increase. The I can’t emphasis enough the benefits of immi - supply of land is just the same as any other than 10 percent in gration in growing our country and strength - commodity, but today’s system of planning ening our economy. The direct benefits of the year to March procedures is so extraordinarily complex it severely slows down the ability to bring land to immigration are obvious. Our standard of liv - 2007. ing and the size of our economy have increased market, with time frames of 5-6 years the enormously since the 2nd World War, when norm from an extension of a growth boundary we have maintained a large immigration policy. to the occupation of a house. Other examples are when Victoria was going backwards in Because of this long term process we need to be good at fore - the early 90s and we lost a lot of population to Queensland, casting what growth is expected to avoid delays in supplying Queensland boomed. Sydney is currently struggling eco - land and causing prices to inflate. The Federal Government nomically with low population growth, while Victoria is is increasing the level of overseas immigration, a move I prospering with a much higher population growth. In fact, agree with. However increases are announced in the annual figures from the Department of Sustainability and budget with the new residents starting to arrive within Environment 2006 Annual Report reveal that over the next months, which provide no time to build infrastructure etc. 15 years 347,689 new dwellings will be needed across the which takes years. Metropolitan Melbourne region. Temporary migrants, such as students and New Zealand If Australia is to be able to attract the best immigrants, and nationals, are not included in official population projections, to ensure our own young people stay in the country rather but from the perspective of those in the accommodation than seeking their fortune overseas, we need to offer a com - industry they are the same. Each person is going to need petitive living environment. Critical to this is offering a high somewhere to live and the authorities need to be able to standard of living with affordable, high quality living ensure that there is the supply to meet the demand. options available in locations where people want to live. Because our nation’s demographics are changing so quick - Within Australia, just as states vie for population, individual ly and our immigration levels will have to further increase regions also need to be competitive. To ensure a competitive over the coming years, a bigger picture view needs to be edge, the issue of housing affordability needs to be addressed taken so that the authorities can act accordingly and in a now, for to allow prices to inflate too high will mean that timely fashion. once affordability becomes as intolerable as in Sydney, every - The type of immigrants is also going to effect where these thing goes into reverse and those people who purchased at new residents want to live. With a skilled labour force come the top of the cycle will experience a negative equity posi - more wealth and a desire to live in the established suburbs. tion. The state government has made moves to encourage higher Figures from the Housing Industry Association show that density development in our established suburbs, but pressure housing affordability fell by more than 10 percent in the year from existing residents on their local municipalities and the to March 2007. These statistics are backed up by results higher costs of multi-storey construction has stymied these from the 2006 Census which shows that more than 700,000 plans to a great extent. Australian households are under housing stress, paying more Domestic migration is another influence on the demand for than 30 percent of income to keep a roof over their heads. housing. The current slowing of growth in the Sydney mar - With a housing climate such as this our attractiveness as a ket has benefited Melbourne and its surrounds which are destination for the much-needed international migrant pop - experiencing an increase in growth in population.

Page 10 VPELA Newsletter – October 2007 The combined effect of these factors is having a huge impact On the supply side, as already mentioned, residents in estab - on growth suburbs. A restriction on the supply in any area lished suburbs are proving to be very powerful in having an does not mean that demand just evaporates; rather it bal - input into the planning of the city. This is having the effect loons and appears elsewhere; in Melbourne’s case, it is as of pitting neighbour against neighbour as people object to rapid growth in the outer suburbs. higher density living in their suburb. To use an example, the City of Wyndham, which includes The Melbourne 2030 document states that the “main thrust Werribee and its surrounds, had its predicted growth is to continue to protect the liveability of established areas between the years 2000 to 2006 exceeded by an extra 27,000 and to increasingly concentrate on major change in strategic people due to the established suburbs of Melbourne not redevelopment sites such as activity centres and underdevel - growing as predicted. Based on three people per house and oped land. While a good supply of land for development will 10 houses per hectare, this meant there was an extra nine be maintained in growth areas, over time there will be a shift square kilometres of housing built over a six year period than away from growth on the fringe of the city.”ii had originally been forecast. The consequence of this growth Key to the success of this plan is the ability to successfully was a shortage of available land at the same time as there was redevelop sites in the inner, established suburbs. However, rapid increase in demand, with the end result being higher lobby groups such as ‘Save our Suburbs’ are proving to be prices to the consumers. Is it any wonder that councils, plan - powerful opponents to such moves, forcing more people to ners, utility providers and the house and land industry are look to buy property in the growth fringes, which by the struggling to cope? very nature of 2030 are going to be constrained. As a result, We all need more accurate predictions of future demand. prices will rise and affordability will be reduced. The second demand factor is increased money supply. The We need to get this situation under control so that we can ongoing deregulation of the financial sector combined with meet the demand for all types of housing, not just develop the stabilisation of interest rates at a relatively low level our urban fringes, for a city needs to grow both upwards and increased overall money supply from around the year 2000 outwards. Today, with demand for housing still not at its onwards, resulting in a change in what people regarded as a peak, prices in the established suburbs continue to strongly safe borrowing capacity. This in turn fuelled the demand for increase due to the lack of supply and the inability to meet new houses and also for the upgrading of existing housing the demand to the extent that is required to stabilise prices. stock through either renovations or purchasing a higher If we can’t bring this under control, and increased numbers quality of house. of people are continually being forced into the outer areas, then perhaps a general levy would be appropriate to ensure

VPELA Newsletter – October 2007 Page 11 the burden of paying for new infrastructure is shared ning process by carrying out a number of the planning func - throughout the broader community. tions concurrently rather than sequentially. This could bring With reference to a protracted planning system, I have forward development and the availability of lots which already briefly touched on the impact the planning system would help to reduce affordability pressures. has on the supply of land and the time taken to bring new In capital a city such as Melbourne, choice in housing comes blocks to market. As recently as three decades ago a housing down to a series of trade offs. Some people value proximity subdivision could be completed with two people, an engi - to the city and are prepared to forego space for “closeness” to neer and a surveyor. Planning regulations as they stand now certain established facilities. In contrast, others value space mean that the same subdivision in today’s market would over location. House prices react according to the ebb and need to employ an army of consultants and specialists all flow of the power of demand for the things people place a adding to the overall cost of the subdivision and the time higher or lesser value on. The rise of what some have dubbed taken to bring land to market. a two speed housing market in capital cities such as The most frustrating thing about our protracted planning Melbourne reflects the high importance many place on system is that we are still fundamentally producing the same proximity to the city, with inner city house prices growing at product that was produced before planning became such an ridiculously high rates. While for many people moving to issue; ironically today’s planning regulations in the inner the outer suburbs is not considered an option, for others it municipalities are trying to preserve or replicate what was is. As such, broad hectare land supply can be considered an produced before we had planners. important safety valve to rising median house prices. Those who openly dismiss land supply as an issue fail Added to this is the relative volatility of to understand the way it relieves pressure on demand, for the reasons already mentioned, the established area market. which on a year-to-year basis can increase con - In comparison with siderably. In Victoria, only a few years ago the many overseas In regional areas however the trade-off Government was making every effort to ensure between proximity to the city and space is not cities, Australian growth sat around 1.2 percent per annum, as apparent as distances are not as great. Hence today it is more likely to be around 1.4 percent cities do not really an ample supply of broad hectare residential land represents a genuine source of affordabil - which is a substantial increase in the number have a poor ghetto of people choosing to call Victoria home. ity. In fact, an affordable land advantage problem. should be the primary economic advantage On the stock of zoned land situation, our regional cities such as Geelong have over capi - authorities seem intent on running a “just in tal cities such as Melbourne. If they don’t you time” supply system of residential land whilst at the same have to question their long term planning and must wonder time having an unresponsive planning system that takes at their genuine desire to be a growth centre. years to implement, even after a change in the Urban Growth Boundary has been identified. This once again leads The sixth reason for a reduction in housing affordability is us into a situation of restricted supply whilst demand is on the number and level of charges imposed by government, the rise with higher prices being the end result. semi government and authorities. To overcome this issue, we need to increase the supply of Over the past ten years, just as planning was made more zoned land for residential development so that we are better complex, government fees and charges have far out stripped able to meet the growing demands of our population as the inflation rates, rising by as much as 300 percent. These current system is just not equipped to be able to change charges have a similar impact on development as over-plan - boundaries, obtain rezoning, develop the land and build ning adds costs to the overall development and subsequent - homes in a time that is comparable to the rate at which our ly delays the supply of land to the market. population is growing. Add to these charges and fees the fact that the way infra - If our authorities insist on maintaining a limited supply of structure is now managed has also significantly changed and land then our planning system must change to be become this is adding costs to the home buyers, which is in turn more responsive to market trends. There is little disadvan - impacting on housing affordability. Why are new home tage in having too much stock in zoned broad hectare land owners forced to pay cash up-front for GST, community available to development, but the consequences of having centres, capital costs of infrastructure, retardation of too little, as we are seeing today, can be quite dire with prices drainage flows, treatment of drainage waters and 5 star ener - rising to a level that makes home ownership more difficult gy rating, while purchasers of existing homes don’t? and reduces the overall attractiveness of the nation as a loca - In years past, the cost of infrastructure for roads and public tion for immigrants. transport was borne by the public purse rather than the cur - The land supply issue is not limited to areas surrounding the rent, inefficient, system of development contributions and capital cities. In the Geelong area the supply of broad hectare so-called user pays system to pay for infrastructure to service residential land has, for many varied reasons, been allowed to these essential growth areas. It seems incongruous that the run down to low levels which is resulting in higher prices as only user paying is the new home buyer, when the infra - demand outstrips supply. Based on our figures, even if all the structure provided invariably benefits and is used by the land within the Armstrong Creek area is rezoned residential, entire community. there would only be a 15 year supply. To the developer, development contributions, charges and There is an opportunity in Geelong to streamline the plan - fees are simply a cost of development, just as the costs asso -

Page 12 VPELA Newsletter – October 2007 ciated with building internal roads, lakes, and parks are a development cost. Developers will rarely bear any of the cost except on odd occasions when a contribution or cost is introduced or increased after land has been purchased and therefore cannot be passed onto the consumers. Regrettably, the only time any cost is passed back to the land vendor in the form of a lower land price is when there is a plentiful supply of zoned broad hectares on the market, combined with a prolonged economic downturn. For the past fourteen years there hasn’t been a recession and there has been a real or perceived shortage of supply of broad hectares, with the result that cost increases have been passed on to the end purchaser. This has contributed greatly to a loss of affordability in all our cities. profit and other extras such as GST, selling, marketing and finance costs are added, this $5,000 cost could actually The original intention of development contributions was increase the price of the average house and land package by not to fund ultimate infrastructure, but to be used to con - $7,500. tribute to start-up infrastructure that a community needs for the initial residents. That is, if in the long run a dual car - The impact that this extra charge has over the life of the riageway was needed then development contributions would mortgage is quite significant and can result in tens of thou - fund the first carriageway with the second being provided sands of dollars extra being paid: size of the loan would be when required by the municipality and funded via rates or increased to $200,000 and the length of the loan would need borrowings. • If a new home buyer can only afford $1,477.30 per A further objective of development contributions was to month in repayments then this would support a mort - equitably apportion the cost between all parties; other devel - gage of $192,500 at 8.07% interest, and the total repay - opers, the municipality, VicRoads etc. ments Since then, the initial intent of development contributions over 26 years would be around $461,000. has been forgotten and municipalities have gone down the • However, if a cost increase of $5,000 lifted the purchase path of using development contributions to pay for the ulti - price by $7,500 and the purchaser could not afford an mate form of infrastructure, even though the ultimate may increase in either deposit or repayment amount, then the not be needed for 30 - 40 years, as well as paying for region - to be extended to 30 years at the aforementioned inter - al enlargements that should be funded by the general com - est rate. The total repayments would then be $532,000. munity. • This means that the purchaser, quite often a first home It is ironic that in the mining areas, when workers are need - buyer, would end up making additional payments of ed the employer invariably provides all infrastructure, sew - around $71,000 because of an additional up-front ers, drains, water, electricity and roads to get the workers to impost of $5,000, i.e. a 14 to 1 ratio. and from work and shopping centres. However, in our cap - In comparison with many overseas cities, Australian cities do ital cities and regional centres, it is the opposite and workers not really have a poor ghetto problem. If however we persist are increasingly expected to pay for all infrastructure, includ - with our present settings which are causing a loss of afford - ing roads, to get people to and from work and to shops. ability, which in turn is contributing to an under-provision In the future we are going to need workers just as much as of houses being purchased, a shortage of rental accommoda - the mining companies need them today. If we are going to tion and rising rents, then we could produce our own home- be able to attract them then the system of user pays is going made ghettoes. to have to change. With all of these factors in mind I also have my own set of In the Armstrong Creek area there are sub-areas earmarked considerations that I apply and it is my philosophy to imple - for shops and medium density living. It is proposed that ment a triple bottom line to my company’s developments. these will be developed in the first stage, but experience dic - What I would like to see in the Armstrong Creek area is a tates that in fact the demand for this infrastructure won’t be financial, social and environmentally sustainable develop - finalised until later in the development - who wants to open ment that also strives to ensure that the great Australian a supermarket when there is no one to use it? dream of owning your own home can be realised by the To ensure that the development is appropriate it is of pri - broader population and not just a select few. mary importance that there is the provision of suitable infra - Financial - is the property a good, long term investment for structure to meet the needs of the growing community, but buyers? As already mentioned, it would be disastrous for this should be funded by means other than burdening the prices to go so high that when the inevitable property down - new home buyer. turn arrives and prices decline homebuyers are in a position To illustrate the effect additional costs have on a new home of negative equity and great stress. Of course, we also need buyer, if an increase in cost such as a development contribu - to consider if a development is financially viable for us to tion, treatment of drainage waters, 5 star energy rating etc. develop to enable us to continue our business of providing of $5000 is passed onto the new home buyer, then once sustainable living solutions.

VPELA Newsletter – October 2007 Page 13 Social - Is the proposed development where people want to By the year 2047 natural increase will have declined to less live with infrastructure either on the ground or planned? All than 10 percent so that around 90 percent of the growth in the financial modelling will come to nought if the bigger pic - your business will be reliant on immigration. ture is not considered and rows of houses rather than a com - You might not have understood before, but you all have a munity is developed. Our communities are master planned, vital interest in keeping housing affordable in Australia to taking into account the needs of residents in terms of educa - attract an increasing number of immigrants to this country. tional facilities, open spaces and natural areas to enjoy as a To keep Victoria competitive with the other states, to keep family, sporting facilities, shops and medical facilities, child - Geelong competitive with Melbourne and the surrounding care and aged care as well as public transport, so that when towns, we must lead the way. we build an estate it becomes a destination for the people Your part will be to assist in ensuring that there is attractive, who not only live in it, but for the surrounding community. affordable housing in Geelong by supporting a reduction in Environmental - Look at what environmentally sustainable planning complexities, reducing costs and increasing supply practices could be put into place. Our three major develop - substantially to mitigate price rises. ments in Melbourne, The Hunt Club in Cranbourne, Rose Keep asking yourselves two questions: Grange in Tarneit, and Manor Lakes in Wyndham Vale have all been built to the highest environmental standards and • Will Australia be able to attract the immigrants it will these efforts have been recognised by the HIA awarding each desperately need in the future? of these estates GreenSmart status. At Manor Lakes and The • Will they settle in Geelong? Hunt Club we have been instrumental in working with the References local water authorities to introduce a dual pipe reticulation 1. Costello, P., “Intergenerational Report 2007”, system which returns treated wastewater to residents’ homes Commonwealth of Australia, April 2007 for use in a variety of non-potable applications such as flush - 2 “Melbourne 2030 Planning for sustainable growth”, ing the toilet. In fact, the Hunt Club was the first estate in Department of Infrastructure, October 2002. Victoria to have a dual water system. At Armstrong Creek there is potential for a similar system to Bio: Albert George Dennis, OAM be developed which would involve tapping into the sewer and mining waste water which is then treated to high levels One of Bert’s passions is housing affordability, which is quite and distributed back to the consumers. Such a system would appropriate as he came from a very poor background where reduce water consumption by approximately 40 percent. any sort of housing was a luxury. His father committed sui - cide when Bert was 2 years old and his mother struggled to By taking into consideration all the issues I have raised we bring up five children under the age of 10, without govern - have an ideal opportunity in the Armstrong Creek area to ment assistance, during the Depression, drought and war work together and get the streamlining processes right wher - years. ever possible, not to affect the final quality of the develop - ment in the area, but to ensure that blocks can come to mar - The family’s first permanent home was a Housing ket as quickly as possible and alleviate the housing afford - Commission house when Bert was 13. By that stage the ability issue caused by a high level of demand and the con - family had lived in 15 different homes, one of which was a straint on supply. tent on the bank of the Murray for 12 month. In summary, to address the issue of housing affordability we Today, the Dennis Family Corporation is a thriving family need to have better forecasting about the demand for new business that develops 600 to 800 blocks a year and builds homes, increase the supply of land on which to build these 900 to 1,100 houses per year. They also own commercial homes, decrease the costs to the home buyers and ensure that real estate and have an office in Shanghai in China. the planning processes to bring all this to life are simplified. The Corporation was awarded the Australian Family In the Geelong area, I am particularly keen to see that there Business of the Year, Second Generation, in 2001. is an adequate supply of land now and into the future so that In January 2005 Bert was awarded the Medal of the Order the region may remain competitive and that these develop - of Australia in the General Division (OAM) for service to the ments are established using a commitment to the triple bot - land and housing industry, to the community through con - tom line, with a particular focus on using dual reticulation tributing to debate on urban planning and to support for systems. charitable organisations. v Now I would like to finish up on a personal note. Where do you, the business people of Geelong, fit in all of this? At present around 50 percent of our population growth comes from immigration, with the remaining 50 percent coming internally from natural increase. So for any of you operating businesses in the domestic mar - ket, 50 percent of the future increase in the size of your busi - ness, whether you are a shop keeper, hairdresser or local man - ufacturer, will come from immigration. You can of course increase market share, however the competition will be fierce.

Page 14 VPELA Newsletter – October 2007 Housing Rory’s ramblings Rory Costelloe, Executive Director, Villawood Properties Affordability is the hot topic of the The policy of no mortgage insurance for apartments sized industry at the moment and every - less than 50sqm comes from the mortgage insurers. There one is working feverishly towards are two main insurance companies which have the lion’s new ideas to combat the problem share of the market. There has been no move to change this and get people into their first policy as the banks are happy to stay clear of low equity home. mortgages of small apartments. On the first day of Spring this Banks argue that there is a small re-sale market for small month, an auction in Rathdowne apartments but as a developer, I argue that it is actually a Street, Carlton, featuring a small growing market. For example student’s, new immigrants, two bedroom, one bathroom professional workers and family breakdown figures are all on apartment with new kitchen and polished floorboards, sold the rise and all require housing on a smaller more conven - for an incredible $600,000. ient and affordable level. Inner city living is becoming a popular choice again and also If buyers could purchase these apartments with minimal interstate investors are flooding the Victorian market as prop - deposits there would be a far greater market with more buy - erty prices soar in Western Australia, Brisbane and Sydney ers and therefore the bank’s argument would be negated. which is only adding pressure to Victorian affordability. If more buyers had access to the mortgage insurance avail - One step towards creating the opportunity for individuals able for homes greater than 50sqm, more people would be who would be quite happy in a small apartment (under able to start paying off their own asset rather then wasting 50sqm) is for the government and banks to pressure the their earnings on rent. mortgage insurance brokers to provide insurance for apart - Some ideas to help affordability are quite innovative and some ments less than 50sqm. will only add inflation pressure to housing prices, my topic, Many small homes and apartments under 50sqm are not eli - although may only suiting a small portion of buyers, should gible for mortgage insurance; therefore buyers with minimal help many people afford their first property invest ment. v deposits are unable to buy their first home. This is unfair considering the typical Victorian home loan requires mortgage insurance for all loans over 80 percent of the value of the property. With the average cost of small apartments ranging from $160,000 to $300,000 or more (depending on location), deposit amounts required, without having mortgage insurance, would be about $32,000 - $60,000. transform Urbis is Banks receive a 50 percent capital concession from the focused on Australian Prudential Regulatory Authority (APRA) if the solving the issues generated by our loan is a maximum of 80 percent Loan to Value Ratio increasingly complex (LRV), for example on a loan of $300,000 the bank would urban environments. normally have to hold 10 percent or $30,000 on capital. When the LVR is less than 80 percent the banks get a 50 A professional services firm percent concession, so in this example would only have to with a range of expertise focused on the process of urbanisation – the needs hold five percent or $15,000 in capital which is a very large and opportunities that arise as people incentive to banks not to issue loans where 20 percent is and cities change over time. covered either by cash deposit or mortgage insurance. www.urbis.com.au A 40sqm to 50sqm apartment is a modest size but is more than adequate for many people, particularly inner suburban Melbournians, and is their stepping stone in the quest for home ownership. Most families struggle to save that sort of deposit and rely on mortgage insurance to lower their home deposit ranging from zero to 10 percent. Consequently how can we expect our young first home buyers to save a 20 percent deposit in PROPERTY | PLANNING | ECONOMICS | DESIGN | ADVISORY | RESEARCH order to buy a small apartment?

VPELA Newsletter – October 2007 Page 15 SocHuimaanl Rights & Planning Law Simon McGregor, Barrister

Most practitioners will be aware negotiable”, the inspector refused to admit the additional that Charter of Human Rights and drainage evidence without assessing the forensic value of the Responsibilities Act 2006 1 has grant - evidence or the reason for its lateness. He did however allow ed Victorian citizens a formal ‘Right the developer to cross examine on the drainage issue. This to Property’ for the first time. It had the effect of extending the inquiry from one days dura - also grants other rights which will tion to four days, the last of which was six weeks later than the affect planning decisions across the first day of the inquiry. Despite this additional time, the State. With similar parliamentary Inspector did not relent and admit the expert evidence itself. inquiries also under way in Western The planning decision ultimately went against the developer, Australia and Tasmania, and a who appealed seeking to quash the planning decision on the Human Rights Act also in force in the ACT, it may not be ground that the Council acted contrary to the rules of natural long before we see a model similar to the Victorian Charter justice and the UK equivalent of section 24 of our Charter 4, introduced at the Federal level. which grants the right to a fair civil hearing. The Charter creates a system of checks and balances address - His Honour Judge Hickinbottom found at [33] that: ing the protection of human rights in Victoria. Although the Charter’s ambit is wide, the mechanisms are not internation - (i) At the time of lodging their evidence for the hearing, the ally novel and the rights have been the subject of considerable developer understood that there was no issue in relation international jurisprudence 2, to which all Victorian Courts are to drainage. now expressly permitted to refer to by s.32(s) of the Charter. (ii) That was a misunderstanding . It is unclear how the devel - Of particular interest to VPELA members is the “hot off the opers misunderstanding arose. presses” UK High Court decision of FH Cummings v (iii) From wherever the developer’s misunderstanding [2007] EWHC 1601, Weymouth & Portland Borough Council derived, the Council did nothing to give rise to it. The handed down on 3 July 2007. That Court held that a local misunderstanding was not in any way the fault of the planning inquiry into re-zoning land breached a developer’s Council . human rights , by denying the developer adequate opportuni - ty to put forward it’s case and respond to the local authority. 3 Nonetheless, in failing to give the developer an adequate opportunity to put their case in respect of their objections to The decision is of interest because the UK planning scheme the planning decision, in so far as poignant expert evidence operates in a broadly similar way to our domestic scheme, and concerning drainage issues was arbitrarily excluded , His their is quite analogous to our Charter. Human Rights Act 1998 Honour found that the Independent Inspector had violated The offending conduct of the local council planners was to their human right to a fair trial. The review proceeding lacked decide that an area of land was not available for residential “equality of arms” between the parties, which requires striking development, despite acknowledging from the outset that cer - a fair procedural balance between the parties. 5 tain ‘green field’ sites would need to be released for housing His Honour continued at [52]: “Therefore, the Inspector failed due to insufficient ‘brown field’ sites existing. A developer properly to exercise his discretion as to whether to admit Mr who owned green field land therein sought to object to this Dilke’s evidence and in so doing he denied the Claimants the decision, so that residential development could occur on his opportunity of relying upon important evidence in relation to a land. The Council was concerned about two issues in con - crucial issue. He denied the Claimants a fair crack of the proce - nection with the land, namely landscaping and drainage. At dural whip (see Fairmount at page 1266A, per Lord Russell of a preliminary stage, the independent planning inspector con - Killowen). In so doing he substantially prejudiced the Claimants’ ducting the inquiry hearing ordered that : ability to present their case on the objections so far as a vital issue [24] “ Objector’s Proofs of Evidence must be submitted 6 was concerned. Without the evidence of Mr Dilke, they could not weeks before the date of the inquiry session dealing with that have satisfied the Inspector with regard to the in principle matter. These deadlines are not negotiable.” drainage issues: because they had understood there was no such issue, they had no evidential basis upon which to do so. Nor could At the inquiry, the developer only led evidence on landscap - they have persuaded him that the objection site was preferable to ing, the effect of which was to favourably differentiate his site the Louviers Road site, as they sought to do. ” from the alternative green field site known as the ‘Louviers Road ’ site. Once the Council led unfavourable evidence on The planning decision was quashed and remitted to the drainage as well as landscaping, the developer apprehended its Council with a direction to admit the developer’s evidence. oversight and sought to lead expert evidence on drainage . The decision is relevant in Victoria, as all local government Referring to his earlier order that “These deadlines are not decisions about planning must comply with our Charter by (continued on page 35)

Page 16 VPELA Newsletter – October 2007 ConfereSonlutcione s for now

Lester Townsend, Executive Director VPELA & dead of night as a child. The boat broke down in open Conference Convenor waters, and adrift at sea was attacked twice by pirates before The 2007 Conference being rescued by a German freighter. From Indonesia his was a great success, family was granted refugee status and settled in one of the and according to rougher parts of Sydney. He studied law and moved into some participants film making eventually creating an award winning feature ‘was the best of its sort film working with some of the most disadvantaged in our that I have attended community. His compelling, moving and often funny story for years’. This is due underlined his belief that our goal should be to help others to the hard work of to realise their true potential. Perhaps, not a bad sort of phi - the conference organising team. So what did you miss? or losophy for the way we manage our cities. what will you choose to remember? The conference also provided an opportunity for more inter - The venue was superb. Set in the picturesque Yarra Valley active discussions. The workshops provided a range of oppor - countryside the Sebel Heritage created a relaxed atmosphere, tunities for more detailed presentations and discussions. and some of the conference attendees took advantage of the One explored the opportunities and constraints of deliver - setting with a game of golf on the Wednesday afternoon ing projects in regional Victoria. Another discussed various before the conference. That’s planning. aspects of ‘green design’, ranging from water tanks, water The title of the conference was ‘Solutions for now’, and the efficient products and solar hot water systems, to the con - theme was about people making a positive change. In a time struction of a ‘green building’ with sustainable technology when planning seems to be dominated by negativity and incorporated into every aspect of its design. objections it was good to hear from people who were achiev - Two workshops took on the theme of o people making a ing things on the ground. positive difference from opposite ends of the development We were welcomed with an address from Minister Madden. spectrum. One explored what grassroots organisations have There was a clear understanding of the issues in planning created, another looked at ‘Sexy Suburbs’ with a virtual fly- and a level of engagement that not all previous Ministers by through three large activity centre based development have displayed. proposals for Metropolitan Melbourne. The conference began with three strong speakers. An ever While the issue of transport and integrated planning was timely presentation on climate change and its solutions by being discussed in the comfort of the Golf Clubhouse, the Rob Gell hit the mark. Though Rob stressed that it is more more intrepid were exploring the countryside on foot with accurate (and maybe a little more worrying) to refer to it as a 75 minute interactive extravaganza organised by the ‘global warming’ not climate change. According to Rob a per - Young Professionals. The ‘great race’ challenged participants son can no longer be a global warming ‘sceptic’ - there is more knowledge of planning, transport, environmental sustain - than enough evidence to overcome any reasonable level of ability, legislation, their ability to consume alcohol and the scepticism. Some us might, however, be in denial. Here’s a tip: waterproofing of their clothes. It was a hit. one simple action that we can all do right away is to replace Jimmy Stynes, our after dinner speaker spoke entertaining - the light globes in our homes with compact fluorescents. ly of his move to Australia as the first Irish footballer, and While Rob Gell concentrated on our effect on the environ - ment Mardi Townsend presented research on the effects of the environment on us. In particular the health benefits that come from a connection with nature. Here’s another tip: if you must go to hospital, get a room with a view of a garden - you will recover faster. It is worth reflecting that in our push to reduce our impact on the environment by higher density development we must ensure that nature keeps a place in our lives. Anthony Manning described what can be achieved by way of an environmentally sustainable building when environmental concerns are factored into the process from the beginning. A feature of the conference was hearing from people outside of the planning field. Khao Do a film maker and Young Australian in 2005, left Vietnam on a fishing boat in the Winning Ambrose team Andrew Kelly, Gerard Gilfedder, Jane Power and Tim Kelly

VPELA Newsletter – October 2007 Page 17 passionately of his work with young people. Again, the per - spective of people outside planning was refreshing. But plan - ning touches everything and Jimmy was able to make some progress on a matter he has before VCAT in the foyer after his talk. Of course networking was (as always) an important feature of the conference. For many people it is a chance to catch up on old friends, and the good food helped with the pleasant atmosphere. Many ‘networked’ into the small hours. After a successful first day there is always a little nervousness about the second. John Denton and Howard Raggatt gave interesting insights into the creative process of design and how architects begin to think about creating a building. Hearing from these archi - Conference Organising Committee, L-R Julie Davis, Gerard tects on some of their leading edge designs was, well, mind Gilfedder, John Carey, Chris Goss, Michael Deidun, Simon expanding. Next time you are confronted with a building Martyn, Jodi Kennedy, Meagan Merritt & Jessica Cutting that has be ‘inflated’, stretched’ or ‘dropped’ you will have a better idea of what to expect. some details of positive achievements. Next year these spots will be open to sponsorship. Graeme Holdsworth provided insights into the use of using Public Private Partnerships to secure civic buildings and how We worked hard, but not too hard, with a program that was different procurement processes might affect the design qual - not over crowded. It is always nice to get feedback. Here is ity of the outcome. It seems that it is harder to secure an a sample: excellent design outcome when the design is part of the ten - Before too many days pass, I want to commend you and the der package for civic buildings (along with all the financial conference organising team on one of the very best confer - and management considerations) and it might be better to ences I have ever attended. Why? develop the design in consultation with end users first, and then seek a private partner for its delivery. • Superb venue • Great food / refreshments Susan Brennan arranged and presented a fireside chat with Julian Burnside QC. The plight of the modern day refugees • Outstanding selection of speakers had echoes of Khao Do’s story, but seemed to take place • Good format (. interactive, audio visual, speakers) against a less welcoming Australia. Though sometimes pre - • The fireside chat with Julian Burnside was captivating sented as a ‘leftwing’ critic, Julian made it clear that it was the focus on social justice was refreshing simple social justice and legal principles that drove his • Good mix of subject matter (not just straight planning / involvement with refugee cases, and that he had never seen it planning law) as a ‘leftwing’ cause. Hearing the cases that had sparked Julian’s concerns it was hard not to wonder at the state of • Ever timely climate change presentation Rob Gell hit compassion in Australia. Perhaps most interesting was his the mark analysis of how notions of ‘border protection’ conflate the • Leading edge architecture / urban design examples abrogation of our duties to help refugees with some vague • Ample time for networking notion of stopping terrorists. As if terrorists would choose to • Not too crowded a program arrive in a leaky fishing boat than with a false passport in a business class seat. • Great Panel session chaired by Stuart Morris (lots of can - did and courageous conversation along the way). The conference finished with a panel discussion chaired by Thanks to our sponsors and everyone who contributed. See Stuart Morris with David Whitney, Dimity Reid and Alan you next year. Hunt. v When challenged on what planning had achieved Alan Hunt listed, among other things, the protection of the Yarra Valley. We were able to enjoy that protection in a great venue, one that someone observed would now be prohibited. Who said planning wasn’t complicated. There were a number of innovations in the program. The conference was carbon neutral with most participants paying the extra $2.75. This shows that moving to a carbon neutral future won’t be a big impost (well certainly not as far as con - ferences go!) Matthew Lee, Essential Economics with special We also featured a number of short (1 to 2 minute) videos in guest speaker Khoa Do. amongst the conference program. This allowed us to show

Page 18 VPELA Newsletter – October 2007 ConferencGoeod design

John Denton, Victorian State Architect

I have two working jobs, one as a prin - example, the brief called for one basement carspace for each cipal in a private Architecture and Judge but the four High Court Judges spaces had to be over - Urban Design Practice (Denton sized to allow for Rolls Royces! The disposition of courts Corker Marshall), and the other as the required that the more senior the court the higher up the Victorian State Government building. Architect. My talk today is drawn In our design, we moved all the Justices’ Retiring Suites to from experience in both those arenas. the top of the building together with their library, lounge I would to talk to you about a building my firm has recent - and dining areas. Michael Black had felt this collegiate sys - ly completed. tem worked well in the Melbourne Courts. We won the competition with this arrangement but when presented to However, I will use it as a case study to focus on three partic - the judges it became evident that this was unacceptable to ular issues that I think are of interest to this VPELA gathering. the Senior Justices and the Retiring Suites were redesigned to They are: be spread throughout the building on the different court • good design and Public Private Partnerships floors. Senior didn’t want to mix with junior! • good design and Ecologically Sustainable Design So what Courts were in the basic brief? There were: • good design and Local Government • Technical Court I guess a number of you are lawyers or involved in the law, • Family Courts so the building itself is also [2] probably of interest. It is the • Civil and High Courts Manchester Civil Justice Centre in the UK, which we hand - • County Courts ed over to the HM Court Service 3 or 4 weeks ago. • Tribunals and Hearing Rooms Major government projects in the European Union are required to be advertised in the Official Journal of the plus court support areas ranging from Consultation Rooms European Community which allows any company within to Offices creating a 15 storey building above ground plus 2 the EU to register interest. The Lord Chancellor’s basements. Department of the UK Government advertised for We therefore had a building with an overall area of around Expressions of Interest in participating in a competition to 30,000m 2 costing around $250 million. design the new Civil Justice Centre in Manchester - a sub - stantial project with 55 courts and the headquarters of the A main aspect of the brief was a requirement for a high stan - Ministry of Justice for the north of England. It is the largest dard of Environmentally Sustainable Design including the courts to be built in the UK since the Royal Courts of Justice desire for the whole building, including the courts, to be in London in the 19 Century. naturally ventilated. This was a major challenge for a build - ing of this size and type. Also there was a desire for the courts There were around 100 registrations which were shortlisted to all have natural light. to about 14 for interview. Eventually 3 firms were invited to compete in a paid competition. As a Melbourne practice we I will return to these and other aspects after a discussion of registered through a fully owned subsidiary company in the our concepts for the courts. UK - Denton Corker Marshall Limited. The Court Design We felt like the veritable wild card entry when we found we The new Courts are situated in the centre of Manchester adja - were in the final three but up against, on the one hand, cent to the Crown Courts and Magistrates Courts in the Richard Rogers and Partners - Lord Rogers designed the Spinningfield’s Redevelopment Zone. The site was the pre - European Court of Civil Rights in Strasbourg and sits in the ferred one, but the government chose it and the developer via House of Lords with the Lord Chancellor and, on the other a form of Private Financed Initiative, or PPP as we call them hand, against a well known Manchester based firm. here, unrelated to the design of the building. The brief asked However, we gave it our best and we won. of Potential Developers was for a site and a rental per m 2 for A We researched extensively in preparing for the competition Grade commercial offices on a 25 year lease. The Government and Chief Justice Michael Black of the Federal Court was then paid directly for the enhancements required to create generous in his advice and sharing of his knowledge gained courts. This has meant the Government and the Developer from the Commonwealth Law Courts project in Melbourne. each contributed around half the costs of the building. The underlying conservatism and hierarchical character of So having chosen the site, the competition for the courts the judicial system in the UK quickly became evident. For design took place and the architects and their winning design

VPELA Newsletter – October 2007 Page 19 were handed to the Developer. The developer asked us to go will constantly vary depending on sun angle and weather to detailed design, negotiated a Guaranteed Maximum Price conditions. from a Building Contractor and then simultaneously novated This veil presents a legible image that symbolises the com - us to the Contractors and signed up the Contractor based on plexity and intricacy of the Law, yet reinforces a sense of the GMP and signed an agreement with the Government to completeness and consistency. The hope is for a building meet their Landlord’s Requirement Document (effectively our which will become a Manchester landmark; a city scale Detailed Design). The Government in turn agreed to lease the urban artwork. building for 25 years at the base building rental and pay for the enhancements! To our amazement that actually happened. The internal planning concept for the Civil Justice Centre comprises three primary functional elements, set out linear - Expression ly side by side and stacked vertically. This is a building formed of layers of transparency. Each They are: layer explains the building; the public domain, the working Courts and offices, the judicial interface. • Public circulation concourse The pubic domain is a glazed multi-level atrium with con - • Public/Courts interface and services spine courses serving all Court levels and publicly accessed office • Courtroom and office fingers areas. It is punctuated by meeting rooms and waiting areas, The concourse is within an atrium, which also contains a forming a complex of spaces within the void. series of consultation and waiting pods. It provides public From the exterior, both at close proximity and from a dis - access to all Courts, consultation rooms and offices requiring tance, it signals and literally displays the accessibility of the a public interface. Civil Justice Centre. Within this space, the public are not The spine contains vertical access for public and staff, con - only able to clearly comprehend the arrangement of the sultation rooms, toilets, and mechanical plant. building, but also to relate outwards to the life of Manchester itself: a sense of expansiveness and connection, rather than The fingers contain all Courts, Advocates’ suites and pub - enclosure and containment. The building is part of the city, licly accessible offices; restricted office areas and Judicial uses and the city part of the building. are above atrium level. The working Courts and offices establish the substantive The building has been designed to be ‘understood’ even form of the building. before entry. The stacking of the Courts, and the vertical layering of concourses and consultation/waiting pods within In side elevation, these elements collectively establish a dynamic and distinctive building profile; in end elevation, the glazed atrium, enable a sense of comprehension of the they form a powerful sculptural interplay of light and shade, functional arrangement of the building. depth and complexity. Once inside the building, the transition from entry ante - These elements allow a reading or sense of individual Courts, space gives ‘pause’ time before entering the atrium void, without explicitly defining them. They are double skinned. where the layering and vertical arrangement of Courts is The outer layer of clear glass defines a singular, simple vol - immediately made clear. The linear form of the atrium ume. The inner layer defines the interior volume, softened establishes a clear direction of travel towards the lifts, which by the overlay of glass, but allowing a more complex and whilst deliberately not ‘on display’, are set midway along the detailed reading of material, colour, pattern, glazing and sur - atrium, facing into it. face, whilst retaining an overall sense of clarity of form. The simple orthogonal concourse is unambiguous and pro - Again the architectural implication is that the Courts are not vides at all times an immediate and intuitive sense of loca - forbidding and concealed, but open and accessible. tion within the atrium. The judicial interface is seen as the principal city scale signal [10] Public lifts at all levels open directly into the centre of of the Civil Justice Centre. each atrium concourse, enabling immediate comprehension of the building at every level. Whilst from all viewpoints the Civil Justice Centre will cre - ate a powerful sculptural form and visual impact, the eastern To return my three issues: facade will become the memorable ‘sign’ that clearly estab - Good Design and PPP’s lishes this as the Courts Building and unlike any other build - ing in the city. The Civil Justice Centre is now held up as a model of the new Smart PFI (or PPP) in which the design is procured sep - A filtering screen partially overlays the long rectangular arately from the site and private development consortium forms of the Courts. The screen is a veil, revealing and con - resulting in a higher quality building. cealing the functions behind which are principally the Judges’ Retiring Suites. It variously provides degrees of visu - This is the first point I wanted to make. al privacy, security, solar screening, contained views, ventila - To ensure the best quality design outcome in buildings there tion and daylight penetration into the building. must be a direct relationship and engagement between the From a distance, the veil will read simultaneously as a single Client / User and the Architects. planar, unifying element, and a complex and varied compo - With a clear brief seeking good design, with excellent design sition of pattern, colour, texture and light and shade which consultants, and with a commitment to high quality out -

Page 20 VPELA Newsletter – October 2007 comes throughout the entire procurement and delivery allegiances are squarely with the Consortium and a range of process, good design will be achieved. problems arise: Borne out by research I am currently doing as Government • Client / users feel disenfranchised from the design and Architect, I believe there are three crystal clear primary fac - don’t get the best design value and outcome (innovation tors affecting design quality that emerge: is not maximises). • the quality of the architect selected; • Assessment of consortium bids is extremely difficult due • the fee for the service; and to diversity of offerings and complexity of design / price / time variabilities in the bid. • the extent to which the design is completed on a project before it is put to the market. • Post Contract level of protection to client / user is low as bids are generally only to loose general arrangement To repeat: drawings at 1:500 which with the output specification • there is a direct relationship between design outcome becomes the contract documentation. Degradation of and the quality of the architect selected that’s easy to design and reduction in ‘value for money’ are key com - understand; and ponents of the consortia’s way forward. The designer has • there is a straight line graph relating quality of the design virtually no voice. outcome directly to how far down the design process you The form of PPP used for these Courts are, I believe, a sig - go before shaking hands with the party who will deliver nificant improvement. the project, at a price and in a certain time. The second point is about Good Design and Ecologically Governments recognise this, at least in part, and currently Sustainable Design might use a simple output specification for a water treatment The principal features of this project were natural light and the plant, through to a range of contracts from Traditional difficult issue of natural ventilation in such a large building. Lump Sum Contracts, Design and Construct through to Public Private Partnerships (PPP) depending on the pur - Natural ventilation was built into the brief. The HM Court pose, scale and complexity of the project. Service had found naturally ventilated courtrooms to be much more popular with users. As the client, it was also With Lump Sum Contracts the architect completes full doc - quite specific about the need for daylight and a sense of the umentation before seeking a fixed price and time from a view of the sky. building contractor. This is the most likely way to get good design providing risks are understood and managed. The system we developed is basically a grand form of cross- ventilation using the prevailing west wind to push air With PPP’s the process is still evolving to create project through the building. The air passes through wind scoops delivery systems that minimise risks to Governments and (essentially louvred openings) on the west side of the spine still achieve the appropriate quality. wall, through a large plenum and is fed into the courtrooms Currently, the results, from a considered design perspective, at head height, then taken out on the east facade. can be hit and miss because the development and construc - So the plenum has a dual function - bringing both light and tion industry is a tough environment and if design is consid - air into the courtrooms. There are north and south plenums ered a risk and put out to the market then the architect’s on each floor and each one is about a metre high. Not many client becomes the consortia, rather than Government / User. buildings could afford this sort of space but we were able to I believe this is not ideal. The beneficial engagement take advantage of the traditional high ceilings of the courts, between user and designer is lost. I would not underrate the which determined generous floor to floor heights. With a significance of this. clever use of section, we were able to accommodate the plenum in the ceiling void above the consultation rooms As I said with PPP’s design is currently put out to the mar - adjacent to the courts. ket as part of the bid package. Here the designer is working for the bidding consortium not the client / user and their Of course there are problems with having air flowing through the building: where air flows, sound follows. Glazed courts are for transparency, so justice can be seen to be done, but acoustic leakage from courts into the concourse or Consultation Rooms or, even worse, between courts, had to be carefully guarded against. Equally, noise from busy streets outside could be disruptive. So the acoustic demands were strin - gent. The Court Service required a massive 60 decibel reduction Manchester Civil between public spaces and the Justice Centre courtrooms. The result we devel -

VPELA Newsletter – October 2007 Page 21 oped is not a radical solution but the application of mechan - If these developers ask for suggestions the Planners don’t ical ventilation technologies to natural ventilation on an hesitate to produce a list of architects appropriate for the unprecedented scale. The grand sectional gesture of the scale of the project. plenums survived the delicate balancing act between the airflow and acoustic integrity. One of the problems with local government, at a planning level, is that today the planner fronting the desk in a lot of A weather ‘station on the roof, plus room sensors in each Councils has not had training in design or even design court, will tell the building management system how to operate the natural ventilation, opening and closing awareness. They can tick boxes, but not understand, pro - dampers on individual ducts. If the weather gets too mote or be able to negotiate for a better design outcome. extreme - the west wind blowing a gale or the sun beating You cannot legislate for good design. You can only set up down - the back-up displacement air mechanical ventila - controls to lift the worst design up to average standards. tion kicks in. But architecturally this is all but invisible: Beyond that you need to be able to cajole, encourage, the ducts feeding air into each courtroom are simply seen as a single long slot above head height. negotiate and ultimately bonus for good outcomes. The building will operate on natural ventilation for most A level of expertise is required for any of this to occur and of the year. For example, Courtrooms are expected to be the need for Councils to take expert advice it critical. operating on natural ventilation alone for 64% of days in Planners need support. The advent of the Priority the year and 100% of days from May to October. Development Panels is an attempt to meet the problem Having said all that, the system is still essentially a mixed head on. Local self interest versus the greater good. mode system. A key issue with all ESD systems is that the As Government Architect I will happily help anyone in users, here especially the Judges, have to be trained to Local Government create good panels for advice or assess - understand the nature of how the system works. But at the ment or suggest a list of appropriate architects for projects. end of the day, however, the Judge is all powerful in his or her Court and a button under the desk will turn on the air - The RAIA Awards systems creates peer assessment that conditioning and close off the natural ventilation. identifies the best people around. We need to be more assertive in pushing for good design. Other Environmental and Energy Conservation responses that were used to achieve a BREEM Excellent Rating The UK Government through the Commission for ranged from: Architecture and the Built Environment has been at the • water pumped from an aquifer below the ground at forefront of promoting the importance of design and 12ºC through heat exchangers before being returned to CABE notes Governments responsibility to ensure that the the ground to allow for heat rejection from the build - buildings it creates stand the test of time as tangible, good ing to be made using the most energy efficient system quality, physical memories of that Government. • all the way through to extensive bicycle parking in the Government commissions most of the important and long- building lasting fabric of cities and those buildings stand and repre - I note that currently we are still in the transitional phase sent them. where groups like the RAIA give out awards for ESD. Professor Graham Brawn in writing recently about why When disability discrimination legislation came in we gave out awards for things like a ramp. We don’t anymore and architecture matters says good architecture gives, shape, I think it is short term thinking and doesn’t work when the form, structure and expression to an idea about a better good ESD projects are bad design in all other aspects. The future. sooner we get to the point where you cannot be considered Through its making, architecture becomes the means for for a design award unless it incorporates an excellent stan - individuals, organisations and communities to define and dard of ESD the better. create the futures they desire. The third and perhaps the most relevant point is about Good Design and Local Government In his book The Edifice Complex, Deyan Sudjic notes that irrespective of style, architecture, as well as being about Since submitting the Manchester Civil Justice Centre to things like power, glory, and spectacle, is also about mem - the Manchester City Council for planning approval and as a result engaging in detailed urban design discussions with ory and identity. the Planners, we have received a number of invitations It is the new bits of architecture that get progressively from developers considering projects in Manchester and added that qualitatively improve our cities.And the most that has turned into several substantial commissions. Why important ‘bits’ are the social and cultural infrastructure have they suddenly come to us? built, by and large by Government. And the private sector Developers wanting to maximise the development opportuni - goes through a Government filter that is planning. ties in Manchester talk to the Planners and their advice is sim - ple - if you want to get through planning efficiently and be, in This is the tangible legacy a Government leaves behind. It effect, bonused for good design then get good architects. is our memory.?? v

Page 22 VPELA Newsletter – October 2007 Welcome... to our new members

Peter Antippa Antippa Lawyers Elizabeth Lewis Ratio Consultants Heidi Asten Freehills Sarah Madafferi Harwood Andrews Lawyers Megan Aulich Ratio Consultants Geoff Manolitsa Macpherson + Kelley Kim Belfield Kim Belfield Planning David Mayes City of Melbourne Claire Buckley MKA Legal P/L Dermot McGeown Projects & Development Gary Cocks Certified Valuations Andrea Meagher Consultant Nicola Collingwood Maddocks Michael Nelthorpe Planisphere Victor Di Felice Harwood Andrews Lawyers Dasha Roubailo State Revenue Office Picha Djohan Home Wilkinson Lowry Hilary Rutledge Ratio Consultants Heath Downie ERM Peter Seamer Growth Areas Authority Rachel Ducker Sinclair Knight Merz Anne Sorensen Wyndham City Council Annie Edgley MacroPlan Rachael Spokes Goulburn Broken CMA Marcelle Ganly Major Projects Victoria Holly Stansfield-Smith Rigby Cooke Lawyers Tim Gavan Austcorp Group Ltd Fergus Stewart Ratio Consultants Katie Herriman Ratio Consultants P/L Nick Sutton Hansen Partnership Leigh Hogarty- Langston DLA Phillips Fox Jacqui Taylor DLA Phillips Fox Alan Hunter HLA ENSR Andrew West Beveridge Williams & Co David Hunter Habitat Planning Kris Wilson Urbis Paul Jemmeson Connell Wagner Mark Woodland Lendlease Olga Koskie Macpherson & Kelley

VPELA Newsletter – October 2007 Page 23 Conference ?? Graeme Holdsworth, Major Projects Victoria Project Director, Melbourne Convention Centre • Allow for future expansion of the existing Exhibition Centre; Development • Design and construct a bridge from the Yarra River’s north bank to the Precinct; As I look around the room I see a lot of familiar faces, including some I • Deliver the Project on time and on budget that provides work with. value for money and minimise the net funding require - ments of the State; So I should start with some house keeping matters (really disclaimers • Deliver commercial development that is complementary and credit taking). to the Convention Centre and does not put at risk the delivery of the core Project; For the sake of the record, the com - ments I will make in relation to PPPs do not relate, in any way, • Maximise the financial benefits from the Commercial to the new Convention Centre. We have more than ade - Development and therefore lower the overall cost to the State. quately met and resolved all the issues raised in this paper with hard work, cooperation, good management and a bit of luck. Key Parties You could not have wished for a better team. The State has Major Projects Victoria (MPV) been lucky and Melbourne will be as proud of the end result. • Engaged to deliver the Melbourne Convention Centre Also any comments and views expressed are my own and not Development those of Major Projects Victoria. In fact, I think when it comes to PPPs I am probably a minority view at MPV. That Department of Innovation, Industry and Regional could be a good thing or a bad thing. Development (DIIRD) - CLIENT First let me whip through the New Melbourne Convention • Sponsoring Department responsible for the project Centre’s structure and the proposal to put it into context and • Responsible for contract management during the opera - give you a sense of scale. tions phase after completion Melbourne Convention Exhibition Trust (MCET) - Project Rationale OPERATOR This Project was seen as essential to maintain and build on • Responsible for operations and business Melbourne’s position as a leading international convention and exhibition venue. Melbourne City Council (MCC) The Project result was to be a world-class integrated exhibi - • Contributing capital to the development for new Bridge tion and convention precinct providing increased capacity and the Public Realm and greater flexibility. Proponent - Plenary Group The Project should generate the following benefits for the The Plenary Group were the bid winner and as the propo - State: nent are responsible for: • Strengthen Melbourne and Victoria’s profile as a leading • design, construct and finance of the New Convention events and business destination; Centre and the Bridge “Core Development” • Support Victorian industry by showcasing products and • functional integration of the Existing Exhibition Centre investment opportunities; with New Convention Centre • Grow Victoria’s tourism industry as more convention • provision of contracted services delegates visit Victoria’s tourist attractions; Cleaning, Maintenance, Security • Support regional Victoria by promoting regional pro - • provision of infrastructure services for the facilities duce, investment potential and tourism; and Roads, power etc • Increase economic activity by significant delegate spend - • provision for expansion of Exhibition Centre (Stage 2) ing that will contribute to GSP and new jobs. • potential commercial development of available land The State’s preference was that the selected Proponent deliv - ers all Project Elements to provide a fully integrated and Procurement Time Table vibrant convention and exhibition precinct. The key dates are Project Objectives • Partnership Victoria approval April 2004 The specific objectives of the project are: • Construction commence May 2006 • Design, construct and finance a new convention centre, (2 Years from concept approval to start on site) including the provision of supporting infrastructure services, • Operations commence, January 2009 (just over 2.5 years maintenance, car parking, security and cleaning provision; to build)

Page 24 VPELA Newsletter – October 2007 continued from page 24 Brief Heritage Sheds The States requirement was for a Convention centre with a The heritage sheds were not originally part of the site but 5,000 seat plenary hall plus the appropriate number of meet - because of the comprehensive nature of the adopted scheme ing rooms, exhibition areas and banquet halls. they have now been included. The revitalized sheds will be There is a requirement for F&B facilities to be available in used for F&B and part of a new Marine Precinct centered on every space, total flexibility for subdivision of the spaces, the Pollywoodside. connection to the existing exhibition centre and room to THREE FLOOR PLANS expand the existing exhibition centre. Additional Commercial Development Add to this back of house facilities, kitchens, audio visual Lifestyle Retail provisions, administration and loading requirement to oper - (10,000 sq m) In a podium building above ground. ate the whole development. Top End Homemakers Complex There are also some very complicated rules about how people can get from A to B with out bumping into anyone else from (50,000 sq m) This is all under one roof in the basement another convention and for the delegates to never know area. where the back of house is so that all sorts of goodies appear Office and Residential and disappear in all public spaces with out interference. (18,000 sq m) In a single tower and above the podium retail. Additional Features Carparking Even after all of this there is a lot of the site left over Total of 3,100 including existing under exhibition centre. In The additional site is to be used for carparking, future a basement, ground level and under the freeway. expansion of the exhibition centre and other things that the The Commercial component creates a true mixed use consortiums could bring to the party to defray the cost of precinct. This concept and combination of uses gives the the Convention Centre for the State. critical mass of visitors, residents and worker to drive the life There was also a requirement to make the area active, not style retail and keep the precinct 7/52. (Or so we are told). just when there is a convention in town but 24/7 for the Current Status whole year. The project is currently on time and budget and will be The scheme should also relate to the river and promote link - ready to open in early 2009 ages. With the time available I think that is all you get on the size Site - River frontage and scale of the new Convention Centre. This site is the final connecting link between the south bank Private Public Partnerships (PPPs) and the docklands. I would now like to make some brief comment on the Public Realm and Linkages process under which this project is being procured. Bridge and public realm are funded and developed in part - Civic Buildings as PPPs nership with MCC The use of the PPP process for the procurement of major Existing Exhibition Centre and carparking civic buildings is a recent concept and there are not too many of them. Civic Buildings are one off projects (at any Hotel one time you only need one) unlike Hospitals and Schools. There is an integrated hotel with the Convention Centre. This was not part of our brief, although described in the So what are PPPs ? brief as a useful inclusion, but an added commercial innova - • Typically a PPP involves infrastructure facilities that pro - tion. The hotel will be a Hilton 5 Star product with 400 odd vide a public service; rooms. • The private sector builds, finances and operates the facil - ity;

The YPG Committee threw themselves into organising The Amazing Race

VPELA Newsletter – October 2007 Page 25 • There’s a consortium of some sought who split out the the product. It is all about outputs and their own involve - various roles; ment. • Typically, but not always, there is a transfer back to the One of the most controversial reports is the Peter Fitzgerald state; and report to the government on PPPs • The entity that carries them out is a special purpose vehi - Peter gives six reasons for the growth in PPPs, which I think cle that has no other business. carry some weight and are unlikely appear in the manuals. Partnerships Victoria Framework 1. There’s a crisis of confidence with “traditional procure - ment methods e.g. look at Fed Square and the Regional In this State the Partnerships Victoria policy, provides the framework for the provision of public infrastructure and Transit links; related ancillary services through public-private partnerships 2. There’s the industrial relations issue - the placement of projects one step away from Spring Street decision mak - Partnerships Victoria seeks to draw upon the best available skills, knowledge and resources, whether they are in the pub - ing reduces the risk of the site becoming a showcase site lic or the private sector for any IR campaign; 3. There is the issue of “debt avoidance “ i.e. large projects The Partnerships Victoria approach is to to deliver strong value for money results for Victorians. not funded by State debt; This is driven by: 4. There is doing business with the big end of town moti - vation i.e. that it must count for something; • risk transfer 5. There’s the Value for Money motivation; and • whole-of-life costing 6. There’s the track record of success for PPPs. • innovation Again, none of the reasons relate to a better design of the • asset utilisation product. – and can also deliver: Design and Quality • focus on service delivery I believe that the real challenge in using PPPs for one off • predictability of costs major public buildings, relates to the design and quality of Major infrastructure the buildings and their spaces. PPP’s were originally developed around major infrastructure. Current Process That is, large scale civil work- e.g. roads, water treatment, For public projects there is always a comparison as to etc. where the brief was generic and the final requirement whether a PPP is better value for money than the tradition - was clear - get form A to B or provide and deliver a reliable al approach. This is called a Public Sector Comparator and is supply of clean water etc. completed prior to the adoption of the PPPs process or going The output out for Expression of Interest. The thing about PPPs is they are not about the physical To get to the position of being able to produce the PSC you product, in our case a building; they are all about the prod - have to have substantially advanced the design of the build - uct’s outputs. ing. The State does not pay for PPP infrastructures, it pays for You have to have written a detailed brief (some times too the product or service the PPP produces - The output detailed), developed a reasonable level of conceptual design That is, if the PPP stops producing or supplying the output and resolved structure and services so the whole shooting the State stops paying. For example, with a water treatment match can be measured and priced. plant - no clean water, no payment. To get the building design to this stage there has been a lot of interaction with the user groups by quality consultants Civic Buildings as PPPs who have experience with the building type. There are a number of unanswered questions regarding Unfortunately the reason that you put this expert team Civic Buildings as PPPs. together is lost to the project after this stage, because after How do you define the quality of the product and what is this they will be excluded from taking any part in the final the output that you are paying for in a Civic Building? I will scheme. leave you to ponder that. After the PSC, the initial design work and concepts get com - Why is it better to use PPPs than the traditional way of pletely scrambled into detailed briefs, performance criteria financing and delivering civic buildings? This is the current and legal contracts for the Expression of Interest submission. debate and unfortunately design does not rate highly, if at At this stage another group of consultants, employed by the all, in the debate. bidders, then try and replicate what you have already done but with out proper or detailed discussion with the user There are numerous reports on PPPs covering such areas as groups or any other decision makers. how to make biding less expensive - no mention of the design of the product. There is also very little room for MPV guidance during the bid stage because of probity requirements and alternatives or inno - Most of the major accounting firms have reported on the vation are avoided because of the rules of the competition. financial benefits of PPPs but again nothing on the design of (continued on page 31)

Page 26 VPELA Newsletter – October 2007 VPELA CONFERENCE GOING GREEN GALA DINNER GOING GREEN GALA DINNER GOING GREEN GALA DINNER Innovation development process. Innovation, now this is an interesting topic as it is one of the They treat preliminary concept plans like working drawings strong arguments for the PPP process. That is, competition and are focused on the building process not the product creates innovation. However in reality most innovation in They are now also asking subcontractors to take on design bids is rejected as non conforming submissions. Innovation and construct packages for the project, usually performance also makes assessment too difficult, as it does not allow the based on limited information. This creates a real risk to comparison of like with like proper coordination of the project. Evaluation Risk Transfer The evaluation process can therefore be frustrating and long - The real problem, however, is the transfer of risk, which is winded because of these restrictions. As you will recall, the fundamental to PPPs. The proponent usually hands the Convention Centre took two years from approval to finan - design risk down the line, by back to back arrangements, cial close. We could have designed and documented the until it ends up with a contractor who knows the least about scheme in that time. the overall design and has limited capability to control it. The level of presentation at the Request for Proposal sub - It is a bit like design risk musical chairs. mission stage are usually overly elaborate and expensive and well beyond the true level of resolution of the schemes - Planning Considerations models and computer fly through etc. Most PPPs with additional commercial development will But all you have to do is scratch the surface a little and it usually require a Planning Scheme Amendment to allow for becomes abundantly clear that there is little or no real reso - the commercial component. In our case 60 odd thousand lution to the schemes. square meters of retail, a hotel, residential and additional The submitter’s money should be spent on design resolution cars - not a small amendment. not presentation but it isn’t and want be under the current As previously stated, here is little time between the system. announcement of preferred proponent and financial close. The State’s contractual obligation is to facilitate the PSA for Selection Criteria the additional development and the amendment has to be The selection criteria weighting of design quality can also be finalized and in place by Financial close. This timing restricts totally compromised by the complexity and multitude of the type of process and form of assessment that the PSA can other criteria in the selection process mix e.g. the level and be subjected to. I will leave it to the planners to ponder that cost of future servicing, funding packages and arrangements, one. facility management, cleaning and security. In Conclusion The clear emphasis is on perceived value for money that can I believe there is an urgent need to rethink and rework the be unrelated to the design quality or standard of the end process and structure of project delivery under PPPs for product. major Civic buildings. There is not the ability to choose part of one proposal If the quality of our built environment is to be maintained, (design) and part of another (facility management). Or as it has been in the past, with innovative and quality civic change the consortium membership by selecting the best architecture then a reexamination of the current process from each group. should happen sooner rather than later. v It is one in, all in. The consortiums are put together independent of the State. The unusual part of this is, amazingly, the design consultants are more than likely chosen by the bankers and builders who lead the consortium. The consortium also controls the role and responsibilities and the extent of the consultants com - mission. Project Commencement Once a decision is made on the winning consortium here is almost no time between the announcement of preferred pro - ponent, financial close and start on site. This can critically truncate or delete the schematic design and design development stage of the process and skip the proper resolution that should happen during this period. The construction price for the project is fixed by the builder at an early stage on limited information and the Builder is now involved in a non traditional role - Concept Design management and design development. Some of the major builders understand and are geared for The DPCD sponsored five local government planners to attend this but most of them aren’t. Builders have limited training the conference. Pictured L-R Genevieve Overell, Justin Madden and understanding in design formulation or the design

VPELA Newsletter – October 2007 Page 31 DemoThge Rerpuablipc ofh Berincardis stan

Bernard Salt, Partner KPMG

LET me begin by welcoming you house on a separate block of land. to the People’s Republic of Wayward families also spoke fondly, but quietly, of their for - Bernardistan. bidden affection for the motor car. As you know, this country was for - Other dissidents declared their unabashed love of suburbia merly known as Australia prior to by the sea. All of this was not big news to the planners. They the glorious revolution of 2009. were aware of what the suburban market wanted. It’s just The rebellion of course was caused that the planners believed that they knew what was best for not by the starvation of millions or the community and for the God of the environment. by the persecution of religious They believed that, if their God were not appeased then at minorities. some later date, this world would be subjected to an No, the “people’s revolution” was in fact precipitated by the almighty flood where sinners and space-squanderers alike increasingly bizarre planning practices imposed by the ruling would be washed away by the cleaning waters of an almighty elite, otherwise known as the master town-planning race. flood caused by global warming. Eventually, the revolution Soon after the turn of the century a band of renegade town came, of course, and the master-planning race was uncere - planners dressed head-to-toe in regulation black took con - moniously ousted. They are now whiling away the hours in trol of this nation’s capital cities and ruthlessly imposed their re-education camps amid the outer reaches of suburbia far will upon the people. Driven by a missionary zeal planners from what they regard as the civilising influences of the and their bureaucratic comrades set about pursuing their inner city. very own vision of an urban utopia. And in pursuit of this And in place of the master-planning race came a new regime dream the planners developed their very own planning man - with kinder, gentler, more popular planning policies, insti - ifesto. In Victoria it was known as Melbourne 2030. In gated by myself as leader. Sydney it went by the name of the Sydney Metropolitan You may refer to me as “El Presidente” or, less formally, as Strategy. In Queensland it surfaced under the guise of the “Dear Leader”. South East Queensland Regional Plan. My early days in office were busy doing the sort of things Here were plans to limit the unchecked expansion of evil that the previous regime would not or could not do. I imme - urban sprawl. Here were plans to inject God-fearing “densi - diately moved the seat of government from Sydney’s ty” into the urban form. And to redirect growth away from Kirribilli to The Lodge in Canberra. Then I got to work on harm’s way and off the coast. Here were plans designed sole - each of Bernardistan’s capital cities. ly to appease the vengeful deity of the environment and to constrain what the master-planning race regarded as the Near each city I built a dam. A big dam. In places where it errant and immoral behaviour of the suburban people. rains a lot. Especially singled out for exclusion and isolation in the plan - And, yes, it did result in cuddly wombats losing their habi - ner’ vision of their urban utopia was what they regarded as tat. But I issued a decree: “We need more dams. Get over it.” the “wickedly wasteful” quarter-acre block. And while the people initially grumbled, I take great com - As a consequence, traditional nuclear families were squeezed fort in the knowledge that I have secured the long-term wherever possible into ever-diminishing parcels of land and water supply of the residents of Bernardistan. preferably into townhouses and apartments even on the I extended motorway links throughout suburbia. I consider city’s edge in places like Mitcham and Beenleigh. that congestion and pollution is actually diminished by an The motor vehicle was particularly reviled by the planners. efficient transportation network. According to their vision, outer suburban estates were be I completed a series of European-styled interstate motorways serviced entirely by —please don’t laugh — public transport! linking all capital cities. In Bernardistan the speed limit on Apparently there was no need for freeways in this most per - these super highways is open, as it is on similar roads in fect world of star-struck planners. Western Europe. But there was a problem with the planner’s vision: it did not I added an extra runway to our largest airports. Not because align with the fundamentally “suburbanist” values of the they were needed right now but because I was on a roll and Australian population. they were going to be needed at some point in the future. Households comprised of mum, dad and the kids simply I commissioned new power stations, all nuclear, to provide refused to accept the high-density indoctrination. certainty of power supplies for the next 20 years. No more Some bravely spoke out about their preference for a separate power blackouts during Northern Bernardistan’s summer

Page 32 VPELA Newsletter – October 2007 storms. This step also ensured that we Bernardistanis were at the urban footprint: the sky will not fall in; and global the forefront of the technology that would ultimately replace warming will not ratchet up an extra notch just because we dirty coal-based power generation. have added a few extra square kilometres to the urban edge. Once the People’s Republic of Bernardistan declared its A responsible and measured expansion of the urban foot - independence and sovereignty over this land, I immediately print delivers high-quality low-density accommodation to nullified all metropolitan planning strategies and instigated average Australian families. We have the land; we can man - a bold new dual-city planning policy. age the resources; we can deliver the infrastructure. Increased urban densities were to be pursued in the inner I sometimes think that the architects of metropolitan plan - suburbs of capital cities (up to, say, 10km from the city cen - ning strategies have little or no appreciation of the real needs tre) and in selected coastal locations where single- and cou - of average Australians. ple-households naturally congregate. Families need the sort of space and independence that only However, in the middle and outer suburbs of Bernardistan’s a separate house on separate blocks of land can deliver. largest cities, and off the coastal strip in places like the Gold I sometimes wonder whether in fact this conflict between and Sunshine Coasts and in Mandurah, low-density subur - what the market wants and what the planning system impos - bia is permitted to flourish. But this is not wasteful urban es is in reality a clash of cultures. Planning can be used, and sprawl. Housing lots are limited to a maximum of 600 I think is being used, as a tool of control and of punishment. square metres. After all, anything more would be environ - According to this ideology “the suburbanites must be chas - mentally irresponsible. tised for their wickedly wasteful sins of the past”. And, as the good people of Bernardistan rejoiced in their Indeed, only through the penance of corralled and sanc - new-found freedom from planning oppression, the people tioned behaviour can suburbanites and other non-believers were happy. find redemption: “May the God of the Environment have The fact is that Australia is a vast nation capable of support - mercy on their souls.” ing a far greater population. Our cities can and should grow Adapted from a speech to the UDIA Queensland June outwards as well as upwards. 2007; [email protected] v There is nothing wrong with the responsible expansion of Response to Bernard Salt Michael Deidun has extensive planning experience in local government at the municipalities of Yarra Ranges, Maroondah, Baw Baw and Boroondara, the latest of which was at the City of Boroondara in the role of Planning Appeals Co-ordinator. He has recently joined Coomes Consulting Group, where he is a Senior Consultant.

Welcome to the planning profes - written with references to Brisbane and Sydney also in mind, sion, Bernard. I have varied them to reflect purely on Melbourne: Bernard Salt, Demographer, wrote a. Build a big dam; an article in The Australian dated b. Extend freeways throughout suburbia; 18 August 2007 headed ‘Revolution c. Build an extra runway onto Tullamarine (even though he against evil planners.’ This is not acknowledges that it is not needed right now); the first such article that Bernard Salt has written which has had, as its d. Build new nuclear power stations; primary role, to criticise planners, e. Encourage increased densities in inner suburbs (within particularly those from government, be it state or local. 10 km of the CBD) and in selected coastal locations; I have been a critical observer of these articles over the past f. Allow urban sprawl to flourish in middle and outer sub - few years and so heard, with interest, that another had been urbs, with a limited lot size of 600 square metres. published. My concerns with past articles was that Bernard, The first four issues raised, while being fairly complex issues, although being highly critical, had never actually put any can be fairly and quickly addressed in the following manner positive contributions forward as to how he would solve the given the context of this discussion, that is, assessing ‘crisis’ (as he sees it) that is planning, or indeed cut red tape, Bernard’s alternative thesis to Melbourne 2030. which is the usual target for his criticism. Firstly, it’s all very well to construct a new dam, but its no good This is why Mr Salt’s latest instalment is so interesting, to you if it doesn’t rain. However I agree that something needs because it puts, for the first time, Bernard’s solutions to one of to be done to secure future water supply for our cities, and at the key planning issues of our time: How to address (or even least the Victorian State Government has taken some belated do we address?) urban sprawl and urban consolidation. In steps in this regard, even if we don’t all agree with what those short, Bernard puts his alternative thesis to Melbourne 2030. steps actually involve. But if this point is intended to be an Looking past the plethora of sarcasm that comes comple - attack on rainwater tanks and water re-use strategies that are mentary with such articles, it is clear that the following are being encouraged by planners and others, then I can’t under - Bernard’s alternatives to Melbourne 2030. While they were stand why one would actively argue for inefficient water use.

VPELA Newsletter – October 2007 Page 33 Secondly, in case you hadn’t noticed, Bernard, the construc - On the basis of this alternative thesis I think it is time that tion of freeways throughout suburbia is already happening in Bernard stood up and acknowledged that, deep inside, he is Melbourne (except here we call them tollways, but that’s actually a planner. At least his ideas on urban consolidation another story). It’s the improved public transport that peo - and urban sprawl seem very similar to those of a number of ple in outer suburbs (and indeed right throughout planners going around. Which makes me wonder what the Melbourne) are screaming out for, not just planners. And point of this article is, anyway? Surely it is not to advocate furthermore, I don’t think that I am the only one that is the addition of another runway onto Tullamarine airport more than a little concerned with the global warming that is when it is not really needed? resulting from the emission of greenhouse gases, to which Bernard, can I encourage you to use your position as a colum - motor cars is a significant contributor. nist for The Australian to further some intellectual debate on Thirdly, I am not sure what an extra runway on Tullamarine these issues, not just to whip up frenzied and ill-informed Airport will do for urban sprawl, or for that matter urban anger against planners, only to then market a solution which consolidation. for all intents and purposes mirrors Melbourne 2030 and which planners are currently advancing in our cities. And Fourthly, regardless of whether it is nuclear or another form furthermore, can I invite you again to debate these issues in of energy, new dwellings constructed in either inner suburbs an appropriate public forum, as you have previously been or on the suburban fringe will require additional power. But invited to do so at a past state planning conference? in relation to your thoughts that our future energy sources v should be clean, as opposed to coal, I agree. Which brings us to the real issues, those being the last two on the earlier list. Here Bernard sets out his solution to the current public debate concerning Melbourne 2030 . And he puts these solutions in the context that, “Our cities can and should grow outwards as well as upwards,” and that, “A responsible and measured expansion of the urban footprint ITK delivers high-quality low-density accommodation to average Australian families.” Well I presume that at this stage I am not the only one thor - In The Know oughly underwhelmed by Bernard Salt’s alternative thesis to Melbourne 2030. Indeed, upon reading it, it appears that Bradley Evans has left Maunsell Australia and is now at Bernard has indeed used Melbourne 2030 as a reference Walker Corporation. Bradley can be contacted at Walker point for his own ideas. Does any of the following sound Corporation, Level 7, 60 Collins Street, Melbourne familiar: Increased densities in the inner suburbs; 9661 0100, Fax: 9639 7466, Email: brad.evans@walker - Responsible and measured expansion of the urban boundary; corp.com.au Limitation on the size of new lots. Glenn Kell , formally of SKM has taken up a position with It would appear at this stage that Bernard Salt is indeed the Beverdige William as Planning Manager. Glenn Kell can greatest supporter of Melbourne 2030 and what a number of be reached at Beveridge William at Ste 6/ 115 Hawthorn planners are arguing for. Which really makes me wonder Rd Caulfield North 3161, Phone: 9528 4444. why he needs to be so unashamedly critical of planners in a Angela Meinke has left the Frankston Council and moved national newspaper. to Bayside City Council as Manager, Planning. Angela’s The key points of difference between Melbourne 2030 and new contact details are: 76 Royal Avenue, Sandringham the Salt thesis seem to lie in Bernard’s expectations that Vic 3191, Phone: 9599 4324, Fax: 9598 4474. increased densities will not be achieved in middle suburbs, New member, Sarah Miller , who has had three fantastic and that new lots will not exceed 600 square metres in size. three years at Austcorp has resigned and taken on a new Even then Bernard’s ideas are not far removed from what we challenge with the Stockland development team on their are seeing today within the planning profession. Mernda Village project. Sarah can be contacted by email We are indeed seeing in the middle suburbs a number of at [email protected]. Councils instigating ‘minimal change areas’ where the Judy Nicholson , Associate Director at Arup has relocated achievement of increased densities are discouraged in favour to London. Her new address is 13 Fitzroy Street, London of more appropriate locations. Though surely we must all W1T 4BQ. Email: [email protected] recognise, Bernard, that some increased housing in middle suburbs must be achieved to counter the reduction in house - After almost 11 years with Tomkinson, Steve Pole has hold sizes and the need to support existing facilities in these accepted a position with Coomes Consulting. Steve will locations including schools, yes? begin work at Coomes on 1st October 2007 and can still be contacted on his Mobile: 0418 123 129 And most fringe suburbs I have reviewed seem to have an average lot size of 600 square metres, though Bernard is Darren Wong has left Moreland City Council and is now being even more oppressive here than most planners by set - with Maddocks. He can be contacted at 140 William ting that out as a maximum lot size. Street, Melbourne, Vic, 3000. Phone: 9240 0824, Fax: 9288 0666

Page 34 VPELA Newsletter – October 2007 (continued from page 16) virtue of section 38, so a similar argument is available here . cants’ arguments that an act or decision under law was dis - Whilst many planning decisions are already made within a proportionate under s.7 of the Charter given the human framework which requires natural justice to be accorded, the rights considerations. Charter alters this legal environment by introducing a duty on Advocates should remember that these remedies are them - a Court to interpret planning schemes so as to be compatible selves subject to the judicial duty of interpretation consistent with the protected rights. The Court does not need to first with protected human rights. 8 find an ambiguity in the legislation before it can alter the plain meaning. It further makes international jurisprudence It is worth noting that the courts will give local government on these issues relevant when assessing what the actual con - planning decisions a “margin of appreciation” or “degree of tent of the right should be at our domestic level. deference” 9 when under review, in recognition of the fact that many of these processes are designed to resolve difficult social A more novel development is that under section 6 of the or political issues which may not translate cleanly into the Charter, Ministers will also be bound by the Charter when legal sphere . they are making decisions or acting on behalf of the Crown, and this is an area where there was not a pre-existing common It is also worth noting that whilst only real people have law right to procedural fairness or natural justice. human rights 10 under our Charter, I expect our Charter to have a “horizontal effect” 11 in that the rights must be respect - Under s 38 will be unlawful for public authorities to (a) act ed in proceedings between private parties as well as proceed - incompatibly with protected rights and (b) when making a ings involving the arms of the state. decision, to fail to give proper consideration to a human right . Under s .3, an “act” includes a positive act, a failure to act and The Charter of Rights will bring international jurisprudence a proposal to act. It is a substantive and procedural obligation more readily into our courts. In many cases the issues we debate on public authorities to take action and make decisions in a have received careful international consideration already. Our certain manner. society will benefit from this sharing of wisdom. v Sub-section 38 (2) provides an exception to the unlawfulness Simon McGregor, Barrister restriction where the public authority could not reasonably have acted differently or made a different decision given the 1 The Charter partially commenced operation on 1 January state of the law, including a Commonwealth law. This gives 2007, and becomes fully operative on 1 January 2008. See public authorities a “Nuremberg” defence. The solution in this Minister’s second reading speech, Legislative Assembly: 4 May scenario is to seek s.32 judicial interpretation. Through s.32 2006. interpretation, advocates may be able to change the statutory 2 In the UK system, the right to property is protected by Human obligation to a rights-compatible obligation. The rights-com - Rights Act 1998 (UK) adoption of Article 1 of the First Protocol patible interpretation, in effect, becomes your remedy. That is, to the European Convention for the Protection of Human Rights the law is re-interpreted to be rights compatible, and the pub - and Fundamental Freedoms . For a summary of ICCPR jurispru - dence, see: Sarah Joseph, Jenny Schultz, and Melissa Castan, The lic authority then has obligations under s.38(1), and the International Covenant on Civil and Political Rights: Cases, s.38(2) exceptions to unlawfulness do not apply . Materials and Commentary , (2 nd edition, Oxford University Press, Public authorities are defined in s.4 of the Act. In effect, there 2004) are three categories of body. Wholly public or “core public 3 Full text at authorities” will be bound in their internal and public func - http://www.bailii.org/ew/cases/EWHC/Admin/2007/1601.html tions. Subsection 38(3) requires hybrid public-private or 4 At [7] Under the Human Rights Act 1998 (UK), Article 6 of “functional public authorities” 6 to comply when exercising the European Convention for the Protection of Human Rights their public functions, but exempts hybrid bodies when act - and Fundamental Freedoms grants the right to a fair civil or ing in their private capacity and exempts entirely the wholly criminal trial. 5 At [49]. See also at private bodies. The current leading case from the UK on pub - Neumeister v Austria (1968) 1 EHRR 91 [22], and Fairmount Investments Ltd v The Secretary of State for lic authorities is YL v Birmingham City Council 7. the Environment [1976] 1 WLR 1255. As far as remedies go, the general rule in s 39(1) is that no new 6 See ss . 3, 4(1)(c) and (2). cause of action is created by the Charter, but decisions can be 7 [2007] UKHL 27. The case involved accommodation in a reviewed using the traditional administrative law avenues of nursing home. The dissents of Bingham LJ and Hale reflect our internal and external review in light of failure to make deci - own statutorily prescribed features of public authorities, where - sions compatible with human rights. Section 39(2) then sets as the majority have opted for a much narrower definition. out two specific examples of the general rule. The first exam - 8 For an example of a creative remedy, see Vishaka v The State ple is that of judicial review of an administrative decision of Rajasthan (1997) Butterworth’s Human Rights Cases, p.261. (s .39(2)(a)) . Applicants may seek judicial review for unlawful - 9 See R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and ness , probably on the grounds of ultra vires , failure to consid - the Regions (Alconbury) [2001] UKHL 23; [2003] 2 AC 295. er relevant considerations (namely , protected human rights ), This case dealt with the UK ‘right to property’ as set out in or an improper exercise of power, and substantiate it by refer - Article 1 of the First Protocol to the European Convention . ence to the Charter . The second example is that a person may 10 Sub-section 6 (1). seek a declaration that the public authority acted unlawfully 11 As it has been held to have in the UK. See Campbellv MGN and claim “associated relief”, such as an injunction to stop the [22004] UKHL 22. unlawful conduct, a stay of proceedings or an exclusion of evi - dence (s.39(2)(b)). Judicial review can also consider appli -

VPELA Newsletter – October 2007 Page 35 P“lAa Stnrucnturien Plag n to go with your Activity Centre, sir?”.... “No thanks!”

Bernard McNamara, other locations. Bernard McNamara Development Advisory In many cases. Structure Plan, while ostensibly being a plan for the future, was in reality a “clinging to the past”. In other Uses and Abuses cases, they simply were not competent documents. Over the last decade and more, I So if I could have a choice, based on what I have seen, I have managed the development would prefer to have no structure plan, but have a policy of approvals and strategic planning and supporting investment at centres. This would provide the authority interface for about 35 investor support and a basis for negotiation over a specific retail centres across Australia. These planned investment. centres ranged from CBD centres to Who or what are we planning for? free standing shopping centres to Local Government has the difficult job of being responsible suburban downtown centres to for activity centre planning. While the regional and metro - greenfield sites. politan context is identified, the balance in the end falls the Planning controls, strategies and are plans are facts of life way of local priorities. and are important in providing support for investment in And investing into established activity centres is challenging locations. Over recent times, the more difficult situation and can be risky. This is especially the case when there are were those centres where the Council had elected to prepare multiple ownerships and where the plan is reliant on local a “structure plan”. government or a state government agency delivering on cer - Why was this? tain outcomes. While the reasons varied, these were common aspects: And there won’t be too many other “Dandenongs” where • The plan was being prepared as a control mechanism the State Government tips in over $90m to make things con - over the retail centre to prevent any encroachment nect. • The plan was seeking to prevent expansion for the reason In the 2007-08 budgets, funds were allocated t Footscray, that the authority was opposed to this. Geelong, Greensborough and Ringwood. It occurs to me • Expansion of retail commercial floor space might be that that those centres could well have been in a nominated allowed but not at a commercially viable scale or config - list in 1980. So, not much has been achieved in policy out - uration. comes or unfinished actions. • The development requirements and conditions made it Who’s driving the bus? unfeasible My key concern is that if the activity centres are to play an • A flawed research base, once produced was fiercely expanded role, then this will not happen without a con - adopted certed and sustained effort that produces community - • The Council often had commissioned an urban design endorsed outcomes over time. plan which was unachievable by investors This concern was at the heart of the work of the Melbourne • Substantial barriers existed to investment and there was 2030 Implementation Reference Group .In 2005; it pro - no realistic prospect of these being overcome duced a report, called “Challenges of Implementation in Activity Centres”. What were its findings? (Note the • Local political considerations can often distort recom - speaker was a member of the sub-group which authored mendations the report). • The time frame and the steps needed to achieve desires The sub-group identified eleven key issues to be addressed if outcomes were wrong activity centres policy was to be successfully implement - • The plan would be aiming to achieve additions or ed. changes that were out of step with market realities 1. Community attitudes and expectations: engage the com - • The plan had social or environmental goals that could munity and identify the benefits and show how livabili - not be related to the investment market ty can be incorporated • There was simply no land available to achieve the out - 2. Partnerships and governance arrangements: Successful comes redevelopment of centres will require concerted and • The plan called for substantial developer contributions coordinated action from state and local government. that made investment less attractive compared with There must be commitment to fund and work in part -

Page 36 VPELA Newsletter – October 2007 nership to turn plans into reality economic conditions been undertaken? 3. Resources: infrastructure, planning, training, incentives to • Does the plan contain quantitative targets for develop - facilitate development in centres ment, population growth, and investment? 4. Planning System reforms: Introduce a retail and commer - • Does the structure plan identify and have solutions for cial development policy, utilise PDZs, statutory plan - infrastructure necessary for the changes? ning reforms • Is there evidence of investor/developer input in the plan? 5. Infrastructure planning and provision: consistency check • Does the plan show priority locations for investment? for State government infrastructure plans with metropol - • Does the plan identify areas beyond the traditional town itan policy, audit of capacity of essential infrastructure at activity centres centre boundary that will be part of the growth strategy? 6. Accessibility and public transport: a key to the policy: You will notice that the criteria do not cover issues of ameni - make available development incentives around/above ty, social planning and urban design. This is not to say railway stations that these are not important, but it was a certainty that these will be covered and; if these are satisfactory, then 7. Economic constraints and drivers: overcome the industri - the market interest will be a fair surrogate. al and institutional barriers that affect building costs in or around activity centres compared with building in Achieving a Development Framework fringe locations The Property Council has since held workshops with DSE, 8. Land Availability plans must identify areas for change. Councils and investors to work up what should be a Without large sites in activity centres, these centres will framework for bringing together the market, the local become less relevant. A major opportunity for state gov - and the future community objectives to bring about a ernment land to be leveraged into the outcomes visionary but engaging plan for the location. In my view, 9. Implementing sustainability principles: introduce water such a plan is better characterized as a “development sensitive design, a consistent approach to sustainability prospectus” for the locality. Within such a framework there is scope for areas or buildings to be protected from 10. Incorporate housing into activity centres change 11. Demonstration Projects: DSE to carry out projects so The Property Council with urbis is recommending a new that the community can see the benefits of what is being approach; one more to do with setting a strategic frame - proposed, long term work with more emphasis on the players rather than on Sadly, I can report that there has been no consistent progress the plan. It is about “engagement” with the investment nor even a rejection of these findings by DSE. Just ether! and future community. How can we achieve a Development Framework So what are the essential elements of a Development for Activity Centres Framework? Roll forward 2007.... Purpose I chair the Planning Committee of the Victorian Property • Must provide a vision covering the local, regional and Council. In 2006, Council put out a document which iden - metropolitan context. This must be balanced and not be tifies that support for the metropolitan policy was waning internalised. and that implementation was critical to achieve community • The “framework” should be s loose ,to be filled in as the support. The issues of energy policy, water, and infrastruc - forces and opportunities emerge, with channeling of ture were changing attitudes to those in 2002. opportunities to achieve broader outcomes This year the Property Council commissioned urbis to inves - • Understand the market dynamics that will affect invest - tigate how development in and around our principal and ment. Or risk having the plan seen as irrelevant major activity centres was tracking against the policy set - tings. The findings are pointing to a reversal of what was • Don’t waste time and money on creating plans for cen - planned. The proportion of development on the fringe is tres where change is unlikely or where investment is growing while the proportion of additional residential devel - unlikely. opment in and around the middle ring suburbs is declining. • Provide as much certainty for the community within the Thus, on economic grounds, the investment that was to vision. bring about change was going elsewhere. If the “structure Knowledge plan” process is the key tool then something is wrong. • Analysis of market economics, demographics, social con - So were structure plans based on engagement with the mar - ditions ket place? • Engage all stakeholders early in the process, including Urbis examined ten middle ring activity centre structure the group often ignored... the investment community plans and assessed these against a checklist that tested for the “economic reality” or the extent to which directions for • What sites or site characteristics will be important to the investors and preferred location for investment were given. future market? • Existing and forecast environmental conditions and The key tests for structure plans that were founded on an capacity for expansion economic approach were considered to be: • Focus on amenity, public spaces, and design themes; • Has a competent economic analysis of the market and (continued on page 39)

VPELA Newsletter – October 2007 Page 37 PlanDno wine ngeed a Metropolitan Planning Authority?

The middle of winter is always a great time for a fireside chat Sarah Opperman, who is a Director of Urbis, started off by and what better occasion than a VPELA seminar in the mid - asking whether or not the right question had actually been dle of July at Federation Hall. The question being put to the asked. She was of the view that part of the question might usual large number of enthusiastic attendees was: “Do we be “why are government structures failing?”, and that its not need a metropolitan planning authority?”. a case of what vehicle to adopt at this point in time but to Ably led by charismatic chairman David Hodge the speakers ask what vehicle do we want? She felt that a metropolitan attacked the issues with the usual gusto that one would planning authority was not a panacea for all ills and at the expect from their high ranking positions in consultancy and crux of the matter is leadership - she felt that no-one is various areas of government. implementing it at the current stage. Sarah noted that we obviously have DSE in place at present and that the Growth David set the scene with an opening statement that posed Areas Authority is handling the growth areas quite well as a the question of whether we need such an authority so as to facilitator, but she was of the view that the activity centres, ensure that we get high quality long term outcomes and an which were largely of the domain of the local authorities, authority who was prepared to make the difficult decisions. who were a treating them, in some instances, as some form This was something that the evening’s sponsors, Spade of “museum piece”, were sometimes well removed from Consultants, felt right at home with. Chris McNeil who market realities. along with Geoff Underwood makes up Spade Consultants, addressed the crowd, noting their wide ranging economic, Meredith Sussex took the stage next. She is the Co-ordina - planning and facilitation skills. Skills that would be right at tor General of Infrastructure at DOI. She felt that what was home dealing with a Metro Authority! need was a clear direction on the outcomes that we want to achieve. Meredith felt that we needed a series of strategic Hadley Sides who is the CEO at the City of Stonnington, approaches but we also need the will to make things happen. kicked things off on behalf of the speakers by posing the We are currently in the middle of the biggest boom since the question: “Do bigger authorities actually make better deci - Gold Rush which was clearly fuelling a great deal of the sions?” He was of the view that it was really the same people angst in the planning system. She concluded by saying we at the administrative level who would still be involved and need greater housing options and a large supply available. that the same processes would still apply. He felt that the That rapid and clear decision making is required and that process was the key rather than just having a dedicated met - we need to be open to whatever it is that achieves these out - ropolitan planning authority. He was also of the view that comes. major developments could be decided regionally rather than just at the local government level. He concluded by saying Peter Seamer who is the CEO of the aforementioned that a metropolitan authority is needed for strategic not Growth Areas Authority felt that the question was getting a statutory planning as most statutory planning is administra - little close to home and therefore wasn’t really in a position tion not actual ‘planning’. to answer it. He was not fussed as to who does the work but

Jane Monk, Catherine Navarro, Meredith Sussex Graeme Dickson, David Hodge and Kellie Burns and Peter Seamer

Page 38 VPELA Newsletter – October 2007 (continued from page 37)

what are the local factors that can provide that point of difference? • Set quantitative targets for development and popula - tion and for investment type/locations. • What are the infrastructure barriers to expansion/development? “The Physical Plan” • The physical layout • Priority locations for investment • Hard and soft boundaries; and how proposals within these adjacent areas will be treated • Infrastructure planning Alana MacWhirter, Fergus Stewart, Meagan Aulich, Hillary • Place management controls Rutledge and Liz Mackevicius - The gang from Ratio • Design about getting the outcomes themselves. He felt that part of Implementation the problem lay with the culture of town planning which is • Management: economic development role within the getting more and more convoluted and complicated and place manager sequential. He was all in favour of the work that Liz Beatty • Process to engage investors the Parliamentary Secretary was doing to try and streamline • State Government engagement the processes and looked forward to some of the outcomes • Statutory authority engagement to be put to the Minister for Planning. • Marketing functions The evening concluded with the usual questions followed by • Prescriptive controls to be inserted in Planning a few convivials and the usual good company. In my view scheme (if necessary) the key element isn’t necessarily which authority or which Conclusion department of government is in charge of a certain issue but more importantly it is the attitude that the people who are These comments may appear self-evident but too often, this is not the case. If we are serious about activity cen - part of that authority or department actually bring to the tres then they must be supported, not weighed down by table in trying to solve any given matter. If the people additional layers of policy, referrals and criteria such as involved have a ‘can-do’ attitude and are looking for positive Integrated Transport Plans while down the road, a solutions rather than being process driven then there is a far 40,000m2 bulky goods centre is approved without even a greater chance of not only a speedier outcome but a higher bus stop. When it is harder and slower to develop in an quality outcome. This will require a fundamental shift in the activity centre, then something is wrong. mind of some people and in my view it is what we should be If activity centres aren’t part of the answer, then we striving towards. v shouldn’t worry. If the policy settings, to do more within Nick Hooper the low density city than we do presently, are to be fol - Taylors Development Strategists lowed, then something must change. If we are serious, then think beyond “the plan” and think about investment attraction .The challenge is how to bring about change in ways that benefit existing and future communities; to ensure that local and metropolitan priorities play out To advertise in the within the locality. Finally, an apology where appropriate. There are a num - VPELA newsletter ber of local governments who have got the right approach and are engaging with investors and working out how they can leverage investment and gain state of federal If you are interested in money to overcome deficiencies. writing an article or placing an To date the level of support from Stet Government has been lacking. The new “Expert Assistance Program just advertisement in the VPELA announced is well overdue and needs to be backed by real money to implement some good plans that are waiting newsletter, please contact for support.

Jane Power on Bernard McNamara 9813 2801. [email protected]

VPELA Newsletter – October 2007 Page 39 PlanDon wien neged a Metropolitan Planning Authority?

Hadley Sides, CEO City of Stonnington As a one time regional planner I can’t help but feel that most Whenever this matter is raised I almost always hear it of our so called strategic planning is really just tactical doc - expressed in terms of a metropolitan planning authority uments that are essentially guidelines for planning adminis - would allow us to remove decision making from Councils tration. I don’t really see any home for large scale strategy and thereby allow planning decisions to be made faster. except in State Government departments. The problem with the only home for strategy being a government department I have always thought this is a strange notion because usual - is that strategy can all too easily become a political doctrine. ly significant administrative reforms in Australia have come Not only will strategies be tempted to reflect ideology or from deregulation or pushing decision making lower, not what is popular, they are also difficult to abandon or alter if creating a new higher order decision making body. I also they are inappropriate. think the reality is that two important things won’t change by creating a new decision making body: The analogy of governments going to war is an interesting one. The war strategy is so closely tied to the fortunes of the * The people who make the recommendations will still be government that often the only way to change the strategy planners reflecting the current value sets of planning staff, to be in a war is to change the government. Remember and Vietnam, and watch the space on Iraq. * The same Victorian process of third party appeals, referrals On the other hand when independent authorities adopt etc will still apply strategies a government can always choose to over rule In short there is no guarantee that a new body will change authorities or even disband them if strategies prove inappro - anything in planning approval times. Real reform requires a priate or unpopular. Governments have given themselves shift in our paradigm thinking about how our planning sys - more room to move on altering a strategy. tem works. For example, in the nineties local government In this context, let us look at the 2030 plan. I have given a reform did not primarily come from having bigger and fewer number of talks that show that the rapid aging of our met - Councils. The real change came from Compulsory ropolitan population, together with the hard economic real - Competitive Tendering which changed the whole psycholo - ities of income and net wealth for retired households means gy and ground rules of service provision. If we really want to that 2030 as a strategy is in my mine unworkable. The mar - reform planning I suspect we have to find the paradigm shift ket, demographic and wealth distribution realities of metro that politicians will live with. Melbourne are almost certainly going to produce a future Anyhow, all of this type of talk is only about planning more related to the old Corridor Plan for Melbourne rather administration. Lets face it permit punching is not planning, than the future predicted in 2030. its planning administration. The really important question I The last census results confirm this trend is happening and think is whether a metropolitan planning authority would it will be interesting to see how the review of 2030 unwinds. improve our strategic planning capability. Will it be a tinkering at the edges exercise, an exercise in gov - ernment speak that use continuity of language to give the impression of a continuity of planning logic while changing direction. Or a review of administrative reforms needed to make sure the planned result happens rather than a review which suggests we need a new plan. I think the potential to create realistic metro strategy plans is higher in the first place when strategy is not so directly housed in a government department. A metro strategy has to be more than a mantra and creed based on what is today’s popularism. It needs to be based on both realities and enhanced futures. This means it needs a home where some independent thinking can give rise to good strategic out - comes and talented strategic thinkers from all over the world can be attracted to work. v

Dermot McGeown, Hadley Sides and Kathy Mitchell

Page 40 VPELA Newsletter – October 2007 EnvSiurstoainning mthe eunsnustt ainable

Rob Gell,

What we do with our available Research from Dr Mike Raupach at CSIRO Marine and water resources, how we use our Atmospheric Research and published in Ecos mid year, and available energy and what we do contrary to the Parliamentary Secretary for Foreign Affairs with our waste will in fact ultimate - Greg Hunt who believes we are meeting our ‘pseudo’ and ly determine the human population ‘aspirational’ Kyoto emissions target: of this continent and indeed other CSIRO currently says: Globally, the average growth rate of civilisations around the world. The CO2 emissions has accelerated from 1.1% pa in the 1990s reality is that our current consumer- to a 3% pa in the 2000s. (70% since 1970. IPCC) capitalist economy does not work; Over the last 25 years, the average growth rate of Australian not for most of the world’s population anyway. “How long can emissions was: we sustain an unsustainable economy?” • roughly twice the growth rate for the world, The answer is not to continue ride the ‘China Boom’ through the export of iron-ore, coal and now uranium and • twice the growth rate for the USA and Japan, and in turn use the money to buy Plasma TVs, but rather to • five times the growth rate for Europe. invest in science and technology to manage the impact of Australia’s carbon intensity of energy (amount of carbon that sort of ‘old’ economic thinking. burned as fossil fuel per unit of energy) is: We are currently using the resources of the planet to an • 20% higher than the world average, and extent that it takes the planet a year and three months to • 25 30% higher than the USA, Europe and Japan. replace what we use in a single year. We are no longer living from “nature’s interest” we are eating away at “nature’s capi - ‘In the last few years, the global usage of fossil fuels has actu - tal” reserves. ally become less efficient.’ Liz Minchin in the “The Age” writing about The British We have a 2% Mandatory Renewable Energy Target which Conservative Party’s recent document produced by their has now been reached. China’s target is 20% by the way. Quality of Life Policy Group and titled, “Blueprint for a They have a target for 20,000MW of wind power by 2015, Green Economy”, repeated the quote from that document three times their target for electricity from nuclear. They’re “Economic growth, like all human activities, operates with - forging ahead in the design and manufacture of photo - in environmental limits.” voltaics and double glazing. “business as usual” is no longer an option for Australia, nor Sea-levels are now rising alarmingly, extreme weather events for most of the developed world. Our traditional, and cur - are becoming more frequent and more intense and our con - rent, resource fixation is not the panacea we are lead to tinent is drying out at 1:100,000 year scale in a decadal believe it is. We could for example, be working towards a timeframe. The entire continent is dessicating at geological ‘service economy’ like the British Government is doing. rates but over decades. Partly because of way we have utilised Setting up scientific outposts around the world to recruit the our limited water resources. We all learned that “water is a best brains back to the UK to develop highly valuable intel - critical limiting factor in Australia” in Year 10 Geography. lectual property for licensing to the rest of the world. We are being let down badly by the people who are manag - ing our water resources. The OECD has announced today that Australia is way behind the rest of the developed world on education spend - We use 30% more per capita than citizens in the EU and ing. That the cost of our degrees is high and that we’re about to extract more from our northern rivers to water urban gardens and build a desalination plant that will support for the Tertiary sector is limited and reducing. exacerbate the climate crisis. But this 150ML/day plant We were world leaders on climate in the early nineties, work - wont be available until 2011 - that’s four summers away and ing within the United Nations Framework Convention on today, after a one in two hundred year rainfall event that Climate Change. We then had a period from 1998 to 2005 flooded Gippsland and brought heavy falls to our catch - of denial, lip-service and obstruction through Kyoto to what ments, our water storages are at only 39% of capacity; we have today: self-described, reluctant “Climate Realists”, almost 10% lower than the same time last year. spinning out the ‘China Boom’ and blaming China for The answer is not in centralized infrastructure. As is the case wanting what we’re arguing for; growth based on low-cost with our energy collection and distribution system, water infra - energy. structure should be decentralised. But that’s not the answer the Let’s think about the climate situation for a moment. We’re big engineering consultancies will ever come up with. ‘gold medallist’ per capita energy users in this country - right They afford their St Kilda Road offices by recommending up there with the best in the world, the USA. concrete and steel infrastructure on which they are paid their (continued on page 55) VPELA Newsletter – October 2007 Page 41 SeWmherei tnherae’s r smoke there’s fire

Amendments to the Tobacco Act 1987 came into force on • one of a hotelier that 1 July 2007 prohibiting people from smoking in licensed had gone from selling premises. 15 barrels of beer a week down to 3 because the In anticipation of these changes, a number of applications hotelier had done little for licensed premises were refused in the planning list of or nothing to retain VCAT largely because of a perceived failure to adequately smoking patrons on site; control the impacts of people smoking on the street. and in another case These impacts include: • a member had rung the • noise; AHA distressed at his • obstruction for pedestrians; and patrons’ refusal to take • cigarette litter. their smoking outside. These decisions by VCAT prompted the Minister for Health This occurred in the to issue a statement of government policy on 27 June 2007 country, some consider - that: able distance from the nearest police station ... the Act does not require any workplace to provide an out - and council office. door smoking area either on-site or off-site. In both cases, the AHA was working with its members in an Clearly, a tension had arisen between: attempt to address these issues. • the government that wanted to discourage people from During questions from the audience, however, the over - smoking, even if this means moving smokers onto the whelming view was that VCAT has been placed in an invid - street; and ious position by the government. • the planning system that is obliged to prevent unreason - For instance, the seminar was told by Mr Burke that one able amenity impacts from migrating off-site, even if this intention of the legislation is to “decrease normalisation of means making it easier to smoke on-site. smoking in social settings”. So the seminar was organised to explore this tension and to However, the laws do not go so far as to state that the ameni - review the first ten weeks of the new regime’s operation. ty impacts arising from the implementation of the new laws Mr Andrew Walker, from DLA Phillips Fox, explained that will need to be borne by the broader community as a “cost” early indications were that the feared amenity impacts of of reducing the overall health impacts of smoking. smokers on the street had not materialised, but that this In other words, VCAT has had to bear the brunt of this well- could not be confirmed until the warmer weather arrives. meaning, but in some ways inadequate legislation as it Mr Tim Burke, Manager of Tobacco Policy in the attempts to bridge the gap between the smoking laws and Department of Human Services, confirmed that “anecdotal the operation of the Planning and Environment Act 1987. evidence suggests that there are limited amenity issues No better example was given than the plight of a snowfields around licensed premises since 1 July”. manager who explained that the new laws are forcing people However, he explained that the impacts on amenity are from a warm environment to one that is as low as minus being monitored by a working group including representa - seven, in circumstances where patrons are less aware of vari - tives from: ations in temperature by reason of their alcohol consump - • DHS; tion. This, he suggested, is a recipe for disaster. • Victoria Police; So it proved to be quite a fascinating seminar. • Sustainability Victoria; In summary, although early indications are that the imple - • Dept of Justice; mentation of the new tobacco laws has been relatively smooth and effective, it perhaps will not be until the Spring • MAV; and Carnival that the amenity impacts of the new laws can be • inner city local councils. properly assessed. Finally, Mr Brian Kearney, the CEO of the Australian Hotels Until then, VCAT will continue to be placed in the position Association, explained that his members had by and large of having to manage the introduction of the new smoking embraced the new regime and that his feedback was also that laws despite a well-intentioned, but ultimately unhelpful, the foreshadowed amenity impacts had not yet materialised. direction from the Minister for Health. v Brian gave two interesting examples of the impacts of the Matthew Townsend is a member of the Victorian Bar. new laws:

Page 42 VPELA Newsletter – October 2007 PlaPnlanningn anidn bug ilding permits: some practical issues Tom Pikusa, Victorian Bar Once a planning permit is granted need to be moved up to half a metre into the tree protection and plans endorsed, a developer zone to allow enough clearance for a 15 metre high rig to dig engages a private building surveyor the holes. This potentially would affect some of the tree’s to obtain a building permit for the roots in the tree protection zone. works. The third issue was that the building permit allowed the Often, before a builder can start the developer to put scaffolding in the tree protection zone area building work, he or she has to to build the three storeys of apartments and further, that the obtain a building permit for the tree protection fence could be moved at the site manager’s development. When granting the building permit, the pri - discretion. vate building surveyor may authorise works that conflict The potential effect of the building permit was to largely with a planning permit’s conditions. negate the conditions in the planning permit protecting the In one case, a planning permit imposed numerous condi - tree. tions to protect a neighbour’s tree from a proposed develop - The legal resolution of the problem could have required ment. The tree was 120 years old with a large canopy that action in two jurisdictions - one in the Building Appeals overhung from the neighbour’s property. The canopy was Board to stay the building works and the other in VCAT for about 8-10 metres high. enforcement proceedings for potential breaches of the plan - Amongst other things, the planning permit provided for a 3 ning permit. metre wide x 10 metre long tree protection zone on part of The Council’s involvement in the issue required the consid - the land nearest to the neighbour’s tree and for the zone to erable time and resources of a statutory planner, a planning be fenced off during construction. Also, it provided for a enforcement officer, a building enforcement officer and the tree management plan that identified which limbs of the tree Council’s arborist. In addition, each party had engineering, were to be trimmed. building and arboricultural advice. While the tree protection zone was not as large as the canopy This case highlights the difficulties in resolving conflicting of the tree, the development immediately abutted the tree conditions in planning and building permits. Some of the protection zone. The development included a basement conflict may have been avoided if the construction issues carpark and then three levels of apartments. were considered more closely at the time the planning per - The for construction plans attached to the building permit mit conditions were determined. For example, building a advised that the footings were going to be up to 15 metres relatively large building directly adjacent to a tree protection deep and that the developer was going to build the footings zone is in practice very difficult to do. using the soldier pile method of construction. Some consultation between the Council’s planning and To construct soldier piles, the builder uses a truck or rig that building officers at the time the permit was granted may has an auger that can dig holes immediately next to each have avoided the problems. Alternately, given the extensive other to the depth required. The auger can look like a great conditions in the permit about the tree, the private building big corkscrew. Once dug, the holes are filled with concrete surveyor could have sent the for construction plans into the and steel reinforcing to form, in this case, a solid wall for the Council to confirm their compliance against the endorsed basement and the footing for the building beneath. Some plans. rigs dig the holes using an auger that is as high as the foot - Planners should be aware that private building surveyors, ings are deep. Different rigs need a different amount of despite recent changes to the Building Regulations, primari - clearance around the auger to allow them to dig the holes. ly concern themselves with building rather than planning The first issue that arose was that the building permit and issues. Often planning conditions, such as those here about plans did not say what sort of rig was going to be used. If tree protection, are not incorporated into building permits. the developer used a 15 metre high rig, it would hit about a The main thing this case shows is that when drafting plan - third to a half of the tree’s canopy. That canopy would have ning permit conditions, planners should have some regard to to be removed. This contrasted with the tree management the practical effect of those conditions when it comes to the plan that provided for about 1% of the canopy to be building stage. removed. v The second issue was that the tree protection fence would

VPELA Newsletter – October 2007 Page 43 PlAa bnettner imnoug setrap

Jeff Akehurst, City of Glen Eira

Having just returned from Sydney the application quickly. The first commitment to this end where a two day conference took is that advertising of the application will be done within five place on Development Approvals days. (D.A’s) it is difficult not to feel a Over 200 applications have been lodged under this pre degree of pessimism. lodgement certification process and the results are nothing Across Australia it would seem that short of outstanding. The average time for a decision has D.A’s are characterised by a degree been 41 processing days. In D.A’s time this represents the of disillusionment on behalf of all speed of light. This result is even more exceptional when it participants. is realised more complicated applications tend to be the pre In Glen Eira we have found a better way. It is called Pre certified ones. Lodgement Certification of Planning Applications. Other outcomes have been positive too. More informed It enlists the help of planning consultants (certifiers) in the residents leads to less objections or at least more focussed formulation of the planning application. Quality at the objections. Less appeals to VCAT by residents has been the front end of the process is the aim. The private certifier cer - norm. tifies three things prior to the application being lodged. The “trick” that enables this to happen is that the applica - 1. Consultation has occurred with neighbours. tions are fit to decide when they are lodged. 2. All information necessary to decide the application has Council planners are able to concentrate on the actual deci - been submitted sion (more town planning time) and less on chasing up lack of information (less administrative time). This leads to 3. The application is compliant with state and local plan - improved professional development and improved staff ning policies. development. Once certification has occurred the application is lodged Pre Certified applications represent a “win ,win, win” for with Council for a decision. residents, applicants and Council as the planning The process then shifts to Council. The certifier has no role authority alike. In the often grim and bruising world of in the decision making process. DA’s pre certification of panning applications is a ray of The only commitment Council gives is that it will decide light and hope. v

Climate title?? Gavin Jennings, Minister for Environment, Climate Change and Innovation.

Commonwealth law threatens to by ‘realism’ and ‘urgency’. undo work done by States on climate Equally dramatic, but less publicised was the legislation change. introduced into the Federal parliament in August which The threat posed by unmitigated cli - marked another important transition - first the mate change has come to be a defining Commonwealth didn’t want to act at all, and now if this political issue in Australia. The transi - bill becomes law, the Commonwealth will become the only tion from the fringes of public policy jurisdiction that is allowed to regulate and monitor emis - to the centre has been dramatic. sions in the future. As we all know, it was only a matter The National Greenhouse and Energy Reporting Bill 2007 of months ago that Howard Government members, from is an extraordinary piece of legislation. It simultaneously the Prime Minister down, regularly doubted the science of weakens the emissions reporting standards agreed to by the global warming. By and large those days are over, with States and Territories, whilst over-riding all State laws that Prime Minister Howard’s ‘scepticism’ now being replaced facilitate emissions reductions. So in short, we will all be

Page 44 VPELA Newsletter – October 2007 less aware of the level of Australia’s emissions, as well as businesses $34m through more efficient use of energy. being prevented from attempting to reduce them. Policy leadership and competition by the States and Australians are becoming accustomed to the Territories has been a good thing, but these innovative pro - Commonwealth attempting hostile takeovers of State’s posals could be snuffed out if the Commonwealth’s bill rights, but this case is a little more complicated than some becomes a law in its current form. At the time of writing the of the recent examples. bill had just been introduced into the House of State and Territory governments understand that Australia Representatives. Let us all hope that the Commonwealth needs consistent and accurate reporting mechanisms for sees reason and amends the legislation to allow the contin - greenhouse gas emissions if initiatives such as emissions uation of important state-based initiatives. trading are to operate effectively. That’s why at the last Because the States welcome the Commonwealth Council of Australian Governments (COAG) meeting the Government being an integral part of the solution, but they States and Territories issued an ultimatum to Canberra - should make sure their intervention doesn’t actually undo either institute uniform reporting rules immediately, or the much of the good work that has already occurred. v States would, by amending the National Pollutant Inventory (NPI) to require high emitters to report their contributions. In one respect this recent legislation is welcomed - it’s fur - ther evidence that the Howard Government can be forced to enact reasonable measures when pressed by the States (a How to have your say! similar ultimatum resulted in the Commonwealth finally If you feel passionately about an issue accepting the need for a national emissions trading scheme earlier this year). and would like to stimulate debate The first problem with the proposed Commonwealth bill is please forward your article to: that while it partly fulfils the letter of the COAG commu - [email protected] niqué, it violates its spirit. Under the standards in the NPI around 1400 sites across the country would have been required to disclose their emissions. However, under the more lax rules proposed in the federal law, only about 700 sites would need to report in. How can any emissions reduc - tion program - whether its emissions trading or anything else - function effectively if we don’t have a detailed picture of who our major emitters are? So while the Victorian government would be happy to see the NPI replaced by a national scheme, it doesn’t make any sense to have that replacement be inferior. Yet that issue could be overcome if it wasn’t for the second problem with the bill - it explicitly over-rides all State and Territory legislation dealing with energy and emissions reporting, and would require the States to obtain Commonwealth permission to collect data beyond the scope of the bill. This is most certainly not what COAG agreed to, and would be disastrous for Australia’s efforts to tackle climate change. States have been developing legislative and policy mecha - nisms that have set benchmarks which national schemes can emulate or expand on. For example, Victoria’s 10% mandatory renewable energy target (VRET) has been copied by most other States. Meanwhile South Australia has led the nation on the use of solar power - especially small scale residential solar. SA has begun public consultation on the nation’s first solar feed-in tariff law, which is being watched closely by other States. There are some who would say that all these differing schemes create additional cost and complications for indus - try, but it is very hard to find any evidence that these over - weigh the benefits. VRET for example has stimulated over $2bn in investments, and generated around 2000 jobs. EPA Victoria’s Industry Greenhouse Program () has reduced car - bon emissions by around 1 million tonnes and has saved

VPELA Newsletter – October 2007 Page 45 Stacking the parking in!

Henry Turnbull is Managing ing by mechanical systems and notes requirements for:- Director of the Traffix Group • Headroom clearance, and a former President of VPELA. • Queuing space without blocking access aisles, and • Allocation of spaces to users familiar with the operation of the equipment. The use of mechanical parking (stackers) is becoming more popular Common parking systems are shown below (sketches down - as the availability and variety of sys - loaded from the Klaus Car Parking Systems website). The tems increases. In the past, there most basic is the “piggy-back” or tandem style where the was statutory support for the use of bottom car must be driven out before the top space can be mechanical parking with a reference to it in the Planning accessed. These installations are useful when there is suffi - Scheme. More recently however, when the Planning cient room to allow for the tandem manoeuvring and where Schemes were rewritten for each municipality, the parking the users have a connection, i.e. same family or office. clause 52.06 did not contain a reference to mechanical park - Independent parking systems require a pit so that the top ing. car can be lowered to ground level for access. There are two The Ministerial Advisory Committee report on the review of main types, the elevator type and the “puzzle” type installa - clause 52.06 does include reference to the provision of park - tion. In the puzzle system, the middle (ground level) cars can be Fulcrum approaches all moved horizontally with one space not being available for parking. Access to the top or bottom vehicle is achieved by projects from the basis of moving the vacant ground level space to the required bay and then lifting or lowering the car. a careful defi nition of The cost of these installations is not insignificant and will issues and the integration vary depending on the site arrangement, but can be worth - of skills to resolve problems while where there are other restrictions. As a rough guide, a puzzle installation would be in the order of $16,000 per space, an elevator system $14,000 per space and the piggy- back module $5,000 per space. • Urban planning • Land use and development • Master planning • Site selection and project approvals • Environment, heritage and urban design

Fulcrum Town Planners Pty Ltd Level 3, 534 Church Street Richmond, Victoria 3121 PO Box 4557 Richmond East, Victoria 3121 Telephone: 03 9429 1249 Facsimile: 03 9429 1103 Email: [email protected] www.fulcrumtp.com.au

Page 46 VPELA Newsletter – October 2007 CaNsewse fro mN theo legtale wos rld

Yvonne Maglitto (YM), Maddocks brothel’ in section 74(1)(d), any such duct of prostitution), Osborn AJA Stefan Fiedler (SF) ambiguity should be resolved by prefer - (with whom the CJ and Neave JA ring to promote the “...legislative & Ragu Appudurai (RA), Russell agreed) held that: imperative...” found in section 4(b) of Kennedy • the phrase “for the purposes of the the Act “to lessen the impact on the operation of a brothel” is not “...an community and community amenities Court of Appeal odd expression and difficult of of the carrying on of prostitution-relat - application” (at [64]); ed activities” (at [4] - [5]). Popular Pastimes Pty Ltd v • the ‘real and substantial purpose’ Melbourne City Council & Following upon a comprehensive of the activity or development Anor [2007] VSCA 188 analysis of the legislative regimes under consideration is required to (affecting both planning and the con - [11 September 2007, Warren CJ, be identified in accordance with Neave JA & Osborn AJA] Section 74(1) Prostitution Control Act Whitehorse Council demonstrates a 1994 - whether building and works to existing brothel prohibited strong commitment to sustainability Section 74 of the Prostitution Control Act 1994 required the responsible Council incorporates sustainable practices and principles into all areas authority to refuse a permit for a use or of its operations. Below is a snapshot demonstrating Council’s commit - development of land for the purposes ment to making Whitehorse a more sustainable community. of the operation of a brothel if the sub - ROADS AND TREES BUILDINGS ject land is, relevantly, within 100m of a dwelling other than a caretaker’s house [s 74(1)(b)]. The permit applicant had sought per - mission to construct buildings and carry out works “...to upgrade and refurbish the existing building in order • Use recycled material in road con - to continue the successful brothel oper - struction • Solar hot water heating units and ation.” • Retaining bluestone paving in rainwater harvesting tanks A legal member of the tribunal had older areas • Energy efficient fluorescent lighting determined that the proposed develop - •Seeking permanent planning protec - • Achieved milestones 1, 2 and 3 of ment was not prohibited. The tion for significant trees ICLEI Water Campaign Supreme Court (Gillard J) had allowed the appeal against the tribunal’s deci - PARKS AND RESERVES COMMUNITY PROGRAMS sion and determined that the prohibi - tion did apply. On appeal to the Court of Appeal, the appellant maintained its contention that the prohibitions in s 74(1) did not apply to pre-existing brothels; ie that “...land is not developed for a purpose • Plant warm season grasses • Sustainable Living Week, which it already fulfils”. (at [3]). • Use recycled water for trees in Sustainability Street Program and Warren CJ considered to this proposi - parks and streets Travel Smart Program, to help tion to be a “...dubious assertion...” • Plant drought tolerant plants people become more sustainable given that “..land is often ‘developed’ in order to augment the level of activity already being lawfully carried out...” on Whitehorse City Council land (at [3]). Address: 379-397 Whitehorse Road, Nunawading Her Honour held that, insofar as there Phone: 9262 6333 is any element of ambiguity introduced Website: www.whitehorse.vic.gov.au by the use of the phrase ‘the proposed

VPELA Newsletter – October 2007 Page 47 the observations of Kitto J in Shire of Perth v O’Keefe bunal had anticipated that “...further development on adja - (1964) 110 CLR 529 at 535 (at [66]); cent land would take account of that permitted on Vasiliou’s • sections 74(1)(a), (b) and (c) gave effect to the object in land (at least if development on Mr Vasiliou’s land proceed - section 4(d) of the Act (ie to avoid the location of broth - ed)” (at [16]). els in residential areas or those frequented by children), The tribunal had, however, proceeded upon the view (in while section 74(1)(d) is concerned with the control of accordance with submissions made on behalf of the permit the scale of use of the brothel operation (at [70]); applicant) that: • nevertheless, section 74(1)(d) (when properly construed) “...the northern side of [Vasiliou’s] building can be is not limited in its reach to only the establishment of redesigned so as to provide light courts and windows to new brothels (at [71]); rooms on boundaries and balconies for those floors from • the “...introductory words of s. 74(1) cannot mean one one to three that will be affected by the podium height thing with respect to s.74(1)(a), (b) and (c), which fol - of the proposal. It is an unfortunate consequence of low, and another thing with respect to s.74(1)(d) which building on boundaries people have no rights to retain also follows” (at [72]) The introductory words of section windows on boundaries” (at [27] in [2007] VCAT 870]). 74(1) must be given a consistent meaning with respect In the circumstances, His Honour considered that Mr to each of the paragraphs of that section: Project Blue Vasiliou had at least, prima facie , “...an argument with Sky (1998) 194 CLR.355 at 381-382 and s 35(a) of the respect to the terms in which the Tribunal dismissed his sub - Interpretation of Legislation Act 1984; and missions relating to the podium of the proposed building,...” • the interpretation of section 74(1) favoured by the court (at [32]); “...the point raised does give rise to sufficient would not result in the interference with existing prop - doubt to mean that he would ordinarily be entitled to agi - erty rights; it is fundamentally no different to the con - tate it further on appeal before this court” (at [17]) . trols on the use and development of land effected by Nevertheless, the court was bound by Sweetvale to not facil - planning controls (at [79]). itate an appeal by a person who had not had the right to agi - RA tate before the tribunal the issues which might underpin the question before the court on appeal. Supreme Court The court simply had no choice but to dismiss the applica - tion for leave. Andrew Vasiliou v Claremont Street Pty Ltd [2007] VSC 333 Could it be said, however, that it is consistent with the objectives of planning identified in the Planning and [7 September 2007, Osborn J] Environment Act 1987 (the PE Act) that decisions of the tri - Leave to appeal - prima facie case - consequence of removal of bunal be insulated from review by the Supreme Court in this third party rights - no standing - application dismissed way? After all, even if a party fails to raise a relevant matter, Mr Vasiliou had sought leave to appeal against the decision the tribunal is bound to properly take into account an issue of the tribunal to grant a permit for a multi-storey develop - as central to its determination as the point identified by ment in Claremont Street, South Yarra. By reason of the Osborn J in arriving at the correct or preferable decision: exemption from notice and review in clause 34.02-4 of the TAC v Bausch [1998] 4 VR 249 at 263. Stonnington Planning Scheme , Mr Vasiliou did not have the RA right to seek review in the tribunal of the decision of the council insofar as that decision related to permission under Casey City Council v Dennis Family that clause: Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal [2003] 2003 VSCA 83. Corporation [2007] VSC 238 Casey City Council v Carson Simpson Pty Ltd Nevertheless, the tribunal had afforded Mr Vasiliou “...a fuller hearing than that to which he was strictly speaking [2007] VSC 25 entitled...” (at [10]). [5 July 2007, Osborn J] The tribunal had directed that a permit be granted for a Development Contributions Plan levy - variation of terms of podium/tower building (12 storeys) on land adjacent to Mr levy imposed by planning scheme - no discretion in responsible Vasiliou’s property on which the construction of a multi- authority or tribunal - discretion in council as “collecting storey building (serviced apartments) had previously been agency” to accept works in lieu of payment of levy - s 149 of allowed by other divisions of the tribunal. Planning and Environment Act 1987 not a “general provision” for review As His Honour observed, “...the fact of the matter is that the current situation gives rise to two fundamentally incompat - These two cases were appeals to the Supreme Court brought ible forms of permitted development” (at [12]) such that, by Casey City Council against separate decisions of the were the 12-storey development to proceed, the first floor of Tribunal which concerned the operation of Part 3B of PE Mr Vasiliou’s proposed development would potentially be Act, sections 62(5) and (6) of the Act and the Cranbourne closed off creating “...entirely enclosed boxes...” for some of East Development Contributions Plan (DCP) . the serviced apartments (at [13]). In both cases, Council had granted permits for staged sub - Other divisions of the tribunal had granted, and twice divisions, which required that a portion of Linsell Boulevard amended, Mr Vasiliou’s permit. Those divisions of the tri - abutting the land to be subdivided must have been con -

Page 48 VPELA Newsletter – October 2007 structed prior to the issue of a statement of compliance for • Sub-section 62(5)(c) provides Council with a general the first stage of the subdivision. Both respondents accept - power to include a permit condition requiring the ed the necessity for the physical construction of the road respondent to provide specified works necessary as a works but objected to bearing the cost of such construction result of the grant of the permit. Council may include whilst also being independently required by another permit such a permit in addition to other conditions permitted condition to make a contribution towards the cost of Linsell under section 62. Boulevard; ie to pay the levy under the DCP. The respon - • Section 46P allows Council (acting as the “collecting dents argued that this constituted ‘double-dipping’. agency”) to accept road works in part or full satisfaction Osborn J set aside the Tribunal’s decisions and held that in in lieu of contributions required under the DCP. so acting the Tribunal had acted beyond power. • Council is bound to apply any levy for the purpose for Carson Simpson which the levy was imposed pursuant to section 46Q. In Carson Simpson , Council granted a permit to the respon - Osborn J held that the Tribunal had erred in amending con - dent containing the following relevant conditions (in sum - dition 25 and purporting to allow a set off with respect to mary): the amount of levy payable and set aside the decision of the Tribunal. • Condition 7 provided that before any road works associ - ated with the subdivision were started, detailed plans His Honour noted that, alternatively, the Tribunal could relating to the partial construction of Linsell Boulevard have required an agreement to be made between the respon - (amongst other things) must be submitted to the satis - dent and Council (acting as the collecting agency) pursuant faction of Council. to section 46N(1)(d) of the PE Act. Such an agreement could provide for the set off of the cost of the road works • Condition 25 provided the practical manner of con - against the levy payable under the DCP. The discretion with struction of the required portion of Linsell Boulevard to respect to the terms of such an agreement was reserved to the be completed before a Statement of Compliance would Council (as “collecting agency”), not to the responsible be issued for stage one of the subdivision. authority and, consequently, beyond the power of the tribu - • Condition 40 required the Respondent to pay a levy to nal (at [53]. [74] & [83]). Council in accordance with the DCP. Significantly, Osborn J confirmed that the paragraphs of sec - The Tribunal directed that condition 25 be amended to tions 62(5) and (6) were not mutually exclusive alternatives. allow the total cost of the road works incurred by the respon - Section 62(5) sets out “...cumulative alternatives...”, while dent to be set off against the levy payable under the DCP. section 62(6) “...comprises alternatives giving rise to a set of Council appealed this decision on the basis that the Tribunal sequential prohibitions” (at [124] and [131]). was not empowered to make such a direction having regard to the relevant provisions of the planning scheme and the The statutory scheme did not “...preclude the imposition of PE Act. both a condition required by s. 46N and a condition requir - ing that specified works necessary as a result of the grant of Osborn J set aside the Tribunal’s decision on the ground that the permit be provided...” (at [138] - [139]). the amended condition 25 conflicted with a condition required to be included in the permit by section 46N of the Dennis Family PE Act and that that amendment had resulted in non-com - In Dennis Family, Council had imposed the following permit pliance with the PE Act. conditions: His Honour also considered the relevant provisions of the [26] Roads must be provided and constructed, includ - PE Act relating to the payment of levies under the DCP and ing the provision of traffic management devices, to the noted (at [58] and [59]) that: satisfaction of the Responsible Authority. • Section 46N requires Council (acting as the responsible [27] Prior to the issue of a Statement of Compliance for authority) to implement the DCP upon the grant of a Stages 33 to 36 as shown on the endorsed plan under permit to subdivide by including a permit condition this permit, Broad Oak Drive must be fully constructed either requiring payment of a levy in accordance with the to provide sealed road access to Linsell Boulevard and DCP or requiring an agreement for the fulfilment of the construction of the first stage (part 2) of Linsell contribution. These requirements are mandatory and Boulevard to provide road access to Narre Warren- must be complied with. Further, the specific require - Cranbourne Road must have commenced [as amended ments of section 46N prevail over the general provisions prior to the hearing of the Tribunal]. of section 62. The permit holder applied to the Tribunal, under section • Sub-section 62(1)(a) requires Council to include any 149 of the PE Act, for review of the position adopted by the permit condition required by the planning scheme. Council (as the “collecting agency”) in negotiations with Council may not, however, include additional condi - respect to the level of set off against the levy otherwise tions which are inconsistent with any condition required payable under the DCP. The permit holder had contended by the planning scheme. that that position was reviewable by the tribunal as a ‘deci - • Sub-section 62(5)(a) allows Council to include a permit sion’ made under conditions 26 and/or 27. condition necessary to implement the DCP. This pro - Council appealed on the basis that: vides for other conditions not already required by section 46N. • the Tribunal erred in law in that it exceeded its powers of

VPELA Newsletter – October 2007 Page 49 review under section 149 of the PE Act; and outside the 3 months ‘grace period’. • the Tribunal could not purport to vary the terms of con - The tribunal disagreed, stating (at [13]) that: ditions 26 and 27 so as to derogate from the terms of “if a request is made to it, it should consider that request conditions which required the respondent to pay contri - and then refuse it. The council is not precluded from butions under the DCP. receiving a request made out of time and I consider it to Osborn J held that the section 149 of the PE Act did not be an abrogation of its responsibilities to refuse to enable the Tribunal to go behind condition 26 and direct receive such a request”. Council with regard to funding of the roads. Condition 26 The tribunal accepted that the council did not have the was directed towards the manner of physical provision of the power to grant the extension but held that it did have the roads, not the financial provision. power to accept and refuse the request on the grounds that Whilst his Honour acknowledged that the PE Act allows the request for an extension had been made more than three collecting agencies discretion to accept works in lieu of a months after the expiry of the permit (at [16]). payment under a DCP, this did not change the plain mean - The tribunal accepted that, Mr Burleigh’s application for ing of condition 26. review in the tribunal had been made in circumstances in Further, Council acted as a responsible authority in assessing which “...there was nothing for the tribunal to review - nei - the respondent’s compliance with condition 26, not as a col - ther refusal nor a failure” (at [14]; see also at [4]). lecting agency. In its capacity as the responsible authority, To rectify this lack of jurisdiction, the tribunal wrote to the the Council could not exercise the discretion under section parties suggesting that: 46P of the PE Act. • the application before the tribunal be withdrawn; Ultimately, Obsorn J held that the Tribunal had acted • a fresh request for extension of the permit be made beyond its power under section 149 of the PE Act for the to the council; and following reasons: • following a decision on that application, a new applica - • Condition 27 did not give rise to a dispute as to whether tion for review be made to the Tribunal (at [6]). works to be provided or constructed were to the satisfac - The applicant did not withdraw his application. He, tion of the Council. instead, wrote to the council and requested an extension of • Condition 26 could only apply to road works in issue if time. The submission of a second request for an extension those works were required by condition 27, which was of time did not, however, rectify the problem faced by the limited to the commencement of works. tribunal because it did not alter the fact that the application • The phrase, ‘roads must be provided and constructed’ in for review remained premature (at [7]). condition 26 was directed to the physical provision and To establish the tribunal’s power to disregard a failure to construction of roads, not financial provision. comply with a provision of the PE Act, the tribunal relied 1 • The Tribunal had not varied Council’s decision under a upon Schneider v Boroondara City Council . Justice Morris 2 condition. Rather, it had purported to vary the sub - had followed Rumpf v Mornington Peninsula Shire Council stance of the condition itself (at [23]). and held in Schneider (at [15]) that: • Section 149 of the PE Act was not a ‘general provision’ “...[I]f an owner or occupier makes an application for an for review but was “...relevantly directed to adjudication extension of a permit, but does so out of time, this can with respect to compliance with the terms of permit con - be characterised as a “failure to comply” with that pro - ditions where these conditions require performance to vision...in this case it is in the interests of justice to dis - the satisfaction of the responsible authority” (at [27]). regard the failure of the permit holder [utilising clause 62 of schedule 1 of the Victorian Civil Administrative In Carson Simpson , the court had already dealt with the sub - Tribunal Act 1998 (the “VCAT Act”)] to apply to the stantive bases of the Tribunal’s decision in Dennis Family . responsible authority for an extension of time within the Osborn J allowed the appeal and dismissed the respondent’s time specified in section 69(1).” application for review. The tribunal referred to section 98(1)(d) of the VCAT Act YM and exercised its discretion to amend the date of the appli - cation for review before it to a date subsequent to the writ - Garry Burleigh v Frankston City Council ten request to council for extension of time. It then pro - [2007] VCAT 1414 ceeded to act under clause 62 of schedule 1 of the VCAT Act [2 August 2007, Gibson DP] to disregard the applicant’s failure to comply with section 69(1) of the PE Act and determined to extend the time for Power of responsible authority to accept and determine completion of the development allowed under the permit to application for extension of time (planning permit) - appli - 21 November 2008. cation made more than 3 months after expiry of the permit The permit had been first issued on 21 November 2001 and The applicant had attended the council’s offices and verbally had been extended on several occasions. The tribunal held requested an extension of time for a permit outside the 3 months that “...seven years is a long enough period within which ‘grace period’ allowed under section 69(1) of the PE Act. complete a relatively modest development of three single Council refused to accept the request on the premise that it storey dwellings”(at [16]). had no authority to accept and determine a request made SF

Page 50 VPELA Newsletter – October 2007 To recap: extension of time made more than 3 months after the expiry • the tribunal determined that it did not have a valid appli - of a permit. It is likewise doubtful that there is any author - cation for review before it; ity in the tribunal to direct a council so to do. • the tribunal then asked the applicant for review to with - RA draw that application, lodge a written request for exten - sion of time with the council and then make a new appli - Jacra Nominees Pty Ltd & Ors v Surf Coast cation to review the council’s refusal of that request; Shire Council [2007] VCAT 119 • the tribunal made it known to the council that it must [29 June 2007, Dwyer DP and Sharkey SM] consider any new request and refuse it on the ground Special Charge Scheme -whether street ‘previously constructed’- that the request had been made out of time; ‘onus of proof’? • the applicant made a written request to the council but This case concerned an application made by a group of declined to follow the advice of the tribunal to withdraw objectors seeking a declaration of invalidity under section the invalid application for review; 185AA of the Local Government Act 1989 (LG Act) relating • the council maintained its position that it had no legal to a Special Charge Scheme (Scheme) for the construction, authority to entertain the new request; sealing and drainage of gravel roads at Fairhaven. The esti - • the tribunal properly acknowledged that it could only mated cost of the works was over $2M - 90.7% of which was exercise the discretion in clause 62 of Schedule 1 of the to be apportioned to landowners and the remainder to VCAT Act if it had a valid application before it because Council. it could not “...assume a jurisdiction it does not have” (at [A separate application, brought under section 185 of the [12]); LG Act, was also before the Tribunal. In the event, the five • this problem was, however, easily fixed by the exercise of days allocated to hear both applications were consumed by certain (including some unspecified) discretions: the hearing of the section 185AA application. The section - to alter the date of the invalid application for review 185 application has been listed for hearing commencing in to a date after the applicant’s written request to the October 2007.] council; The Scheme affected 312 properties and attracted 77 objec - - to deem as “...a question of fact...” (at [16]) that the tions. A Council sub-committee considered oral submis - council had indeed refused to extend the time sions and recommended that the Scheme be adopted. because the request had been made out of time; and Council accepted this recommendation and formally - to disregard, via clause 62 of Schedule 1, the failure declared the Scheme. of the applicant to make his request within time; and The objectors’ application comprised 12 grounds, including • the tribunal extended the time for completion of the that: development to 21 November 2008 in circumstances in • the roads had been previously constructed and were pro - which : tected from a further special charge pursuant to section - the permit had been granted in 2001; 163(7) of the LG Act or section 12(1) of the Local - there had been several previous extensions of time; Government (Consequential Provisions) Act 1989 ( ); - the permit allowed a “...relatively modest develop - Consequential Act ment...”; and • the Council sub-committee had: - “time limits for completion are intended to... [avoid - not been properly appointed or empowered to hear the imposition of a]...burden of the partly completed objections; and work on the community for a substantial or indefi - - failed to consider relevant written objections and/or nite period of time” (at [17]). did consider irrelevant considerations; and The tribunal having properly adopted the position that it • the Scheme did not comply with sections 163(2A), (2B) could not simply assume jurisdiction, appears to then have and (2C) of the LG Act and the Special Rates and Charges proceeded to do just that by altering the date upon which Ministerial Guidelines (September 2004) in that: the application for review had been made. - the apportionment of 90.7% of costs to landowners If there was no proceeding on foot, what power (if any) was excessive, unreasonable and unfair; and could the tribunal have had to do what it did? - the apportionment of 9.3% of costs to Council was The reasons of the tribunal do not reveal any consideration inadequate. of the criteria required to be addressed prior to the grant of Whether roads previously constructed an extension of time to allow completion of the develop - The objectors submitted that 163(7) of the LG Act prevent - ment: Kantor v Murrundindi Shire Council & Anor (1997) ed Council from recovering any further costs by way of spe - 18 AATR 285. cial charge if the road had been previously constructed to the The issues raised by this decision, including the true scope satisfaction of Council (whether or not such previous con - of s 69(1) and clause 62, are not likely to be authoritatively struction had been funded by way of a special charge under determined until such time that a similar dispute finds its a statutory scheme). . The Tribunal rejected this argument way into the Supreme Court or Court of Appeal. on the basis that: In the interim, it is at best extremely doubtful that a council • the proposed interpretation is not reflected in the statu - is empowered under s 69(1) to entertain an application for tory construction of section 163(7) of the LG Act; (continued on page 54) VPELA Newsletter – October 2007 Page 51 DWaeste smainaggemn ent meets modern art(2)

Julie Rivers Davis, Barrister steam (350 - 450 degrees C), then crushed to powdery par - Almost four years ago (October 2003) I wrote about an ticles. The fine powdery dried sludge is blown into a melt - extraordinary building in Osaka, Japan, which houses the ing furnace where it is combusted at 1300 - 1500 degrees C Maishima Incineration Plant operated by the Osaka City and melted instantly into approximately 1/25 volume. Environmental Management Bureau. Externally, the When the sludge is combusted at those temperatures, it appearance of the building, designed by Viennese artist becomes a thick melted fluid (slag). The slag is cooled rap - Friedensreich Hundertwaser, would cause a passer by to idly with water, which causes it to become finely granulated. expect the interior to house the museum of modern art or The resultant fine black granules are used in road construc - some other equally interesting, artistic, contents. Not so. tion and building materials, thus avoiding final disposal to reclamation areas. I can now report that the incineration plant has been joined by another equally amazing, big, exotic, colourful, unusual, Those associated with the incinerator and sludge centres are building designed by the same artist, which proudly houses justifiably proud of the contribution those processes make to the Maishima Sludge Centre. I have never experienced such the environment. I am not so sure of their opinion of the a contrast between form and function. buildings, which must have cost a substantial amount of money to construct, compared with adopting a more utili - Both buildings are a profusion of colour featuring thousands tarian approach. I congratulate the City of Osaka - these of hand made ceramic tiles, turrets, gold spheres, curves, buildings may not be to everyone’s taste, but I found the strong (crooked) lines, and plants. Trees and shrubs are lively, colourful, unconventional building form housing the planted and incorporated into the building wherever the most basic of a city’s functions just wonderful. opportunity presents. Hundertwaser was an ecologist who sought to include nature into the buildings he designed. (Julie has practised in the area of Planning and Environmental Law for 20 years. Her visits to Osaka happily coincide with the Maishima Island is man made and was constructed for celebrations associated with the finish of the Melbourne to sporting activities in the expectation of winning the 2008 Osaka two handed yacht race). Olympic Games. It is approximately 45 minutes from the city centre, and not easily accessible. It is however highly VIENNA - FRIEDENSREICH HUNDERTWASER visible from the Osaka Hokko Yacht Club which hosts the Hundertwasser, the man who changed the face of Vienna finish of the Melbourne to Osaka two handed yacht race. with his daringly multicolour buildings, was also a disciple Unfortunately, Osaka didn’t get the games - a pity that many of Gaudí’s nature philosophy. More than a simple architect, thousands of international visitors will not have the oppor - he regarded himself an architect physician whose task it was tunity to experience these two amazing buildings. to cure “sick” houses. He threw himself into the protection of the environment with gusto and intended to guide man To the more pedestrian workings of the Sludge Centre which back to Nature and its forms. “There are no evils in Nature,” has been completed since my last visit to Osaka: The he once said. “There are only evils of Man. When Man Maishima Sludge Centre is a plant to efficiently treat sewage thinks he has to correct Nature, it is an irreparable mistake sludge. The Centre was built to replace existing old sludge every time.” incineration facilities and also to promote the recycling of sewage sludge. Sludge generated at eight sewage treatment He elaborated his concept in the late fifties, which he pub - plants around Osaka is transported through underground lished in the form of a manifesto, taking a stand against the pipes to the Maishima centre. type of cold, inhuman, functional architecture that was based on mere practicality. “If we allow Nature to paint the walls of Previously in Osaka City, sludge generated in sewage treat - our houses, the walls will be natural and human - and then ment plants was dewatered to a substance like clay (sludge we can begin a new life,” he said. When designing the house cake) and incinerated at 800 - 900 degrees C into ash with that was later named after him, he fought against all straight approximately 1/8 volume. This was then disposed of at lines and applied the gamut of dark and lively colours when reclamation areas. Sludge melting facilities such as the it came to embellishment. The building regarded as the major Maishima Sludge Centre reduce the amount of sludge that work of his life is a witty mixture of irregular forms inspired has to be disposed of to landfill, and facilitates recycling of by nature, twisting column, turrets and domes. Having elab - sludge instead. orated the finest principles of Viennese Art Nouveau, he In sludge melting facilities, pre-treated sewage (sludge) is enriched his land with his heart-warming buildings. He transported through a network of pipes from 12 sewage proved to one and all that even a building that houses a treatment plants around central Osaka to the Maishima garbage dump is worth constructing in a humorous way. Centre. Centrifuges reduce the moisture content of the Hundertwasser’s composition, reminiscent of a fairy-tale city, sludge from 97% to 80%. The substance is now called never fails to bring a smile to the faces of passers-by. It cer - sludge cake. The sludge cake is dried with superheated tainly adds a touch of colour to their lives.

Page 52 VPELA Newsletter – October 2007 VPELA Newsletter – October 2007 Page 53 (continued from page 51) • the proposed interpretation could not be applied to the • whether Council properly investigated the evidence pro - corresponding section 12(1) of the Consequential Act as vided by an objecting landowner; and provisions referred to in that sub-section had since been • if the matter comes before the Tribunal for determina - repealed; and tion, the issue will be decided on the balance of proba - • the proposed interpretation of section 163(7) of the LG bilities, weighing up the evidence and the reasonableness Act would render section 12(1) of the Consequential Act of investigations, rather than on the basis of a formal redundant and unnecessary as section 163(7) of the LG onus of proof being met by one side or the other. Act would suffice alone. Section 12(1) of the The Tribunal considered each element in turn and, on the Consequential Act provision, however, was one of the balance of probabilities, determined that Council had under - few provisions to survive repeal and is deliberately still in taken an appropriate level of investigation to satisfy itself that force. The statutory intent behind this inclusion must be the Fairhaven roads had not been previously constructed given some weight. under a statutory scheme. The Tribunal held that the better, and “...more commonly Failure to properly consider submissions accepted...” interpretation of section 163(7) of the LG Act is that it protects landowners from having to pay twice for The objectors submitted that the Council sub-committee roads previously constructed under a relevant statutory was not properly appointed nor empowered to consider sub - charge scheme. The combined effect of section 163(7) of the missions on behalf of Council and that it had failed to prop - LG Act and section 12(1) of the Consequential Act is to (at erly consider the submissions. [23] - [25]): The Tribunal rejected the first argument, finding that the provide a continuing protection from double-dipping sub-committee was validly appointed and able to hear the by a council in relation to both the present and corre - objections under section 223(1) of the LG Act. No instru - sponding former statutory charge scheme for private ment of delegation was necessary. The Tribunal also held street construction ... The two provisions ... therefore that the Council and Council sub-committee properly con - do not provide a general protection for any prior con - sidered relevant submissions. struction that may have included a landowner contri - Unfair or unreasonable apportionment of cost bution to costs - only a protection arising from a prior The objectors argued that the apportionment of 90.7% of statutory charge scheme. the cost of the works to the landowners was excessive and The objectors’ submitted that the Scheme was invalid unreasonable whilst the apportionment of 9.3% to Council because Council had failed to prove that the roads had not was inadequate and contrary to sections 163(2A) - (2C) of been previously constructed within the meaning of section the LG Act and the Special Rates and Charges Ministerial 163(7) of the LG Act. This was argued on the basis of com - Guidelines. mon law principles and statutory ‘revival’ of section 575(1) The Tribunal noted the nature of guidelines as not being of the now repealed LG Act 1958 (Repealed Act). Section concrete rules and noted that a departure from guidelines 600B of the Repealed Act had expressly provided for does not ordinarily justify the making of a declaration of Council to bear the onus of proof. The Tribunal rejected invalidity. Further, the Tribunal considered that the issue of both arguments, opting for a ‘shifting burden’ comprised of apportionment of cost went to the merits of the Scheme, the following elements (at [39]): rather than to its validity. • whether Council undertook a ‘reasonable level of investi - YM gation’ to satisfy itself that it had met the statutory pre- conditions to the exercise of that power. What consti - The outcome of this application was clearly limited to the tutes a ‘reasonable level of investigation’ will depend on facts as accepted by the tribunal. the facts of each case, including: Importantly, the tribunal accepted evidence from the coun - - availability of Council records; cil’s engineer to the effect that (based upon an engineering - whether a presumption of regularity is appropriate; assessment) there had not been any ‘formal construction’ of and the street and that any prior work had been of a private nature (ie not under a statutory scheme): at [43], [48], [56] - whether the matter may be proved by ‘negative ascer - & [57]. tainment’, engineering assessment or other surround - ing circumstances. ‘Negative ascertainment’ may Accordingly, whether or not there is an ‘onus of proof’ upon arise if there is evidence of statutory charge schemes the council under s 163(7) of the LG Act, the council had for other roads in the area but not for the roads in satisfied the tribunal that the special charge scheme under question. This assumes that, had the roads in ques - consideration did not offend that section. tion been previously constructed under a statutory That said, with respect, the ‘shifting burden’ analysis adopt - charge scheme, this would have been documented, as ed by the tribunal is not entirely without difficulty; the tri - for other roads in the area; bunal appears not too have been assisted by the way in which • whether an objecting landowner can provide at least a the hearing unfolded before it. v reasonable level of evidence that the road has been previ - RA ously constructed under a statutory charge scheme. It is not enough for the landowner to merely assert that the 1 [2004] VCAT 642 road has been previously constructed. As with the first 2 [2000] 2 VR 69 element, a ‘reasonable level of evidence’ will depend on the facts of each case;

Page 54 VPELA Newsletter – October 2006 (continued from page 41) 15% margin. They dont take 15% on residential rainwater The excellent book on this matter, Factor 4, describes the tanks, greywater systems and other decentralizing technolo - target - a “factor 4 improvement”, to do twice as much with gies like residential blackwater systems. half as much stuff. The complexity of the issue and the link Similarly with the energy security/climate change response to climate change comes from bottled water manufacture. discussion, which conveniently • Global consumption: +12% pa - US$35b avoids any understanding of ‘Peak Oil’, the proposals we • PET sales doubled in 1990s - 738 Kg sold in 1999 hear from government are for • 1Kg of PET (17 x 1.5 litre bottles) releases: 40g hydro - centralized, “supply-side” technologies like nuclear energy carbons, 29g NOX, 25g SOX, 18g CO, 2.3 Kg CO2 plants which are big enough for • PET bottles are recyclable ... politicians to cut ribbons on opening but which are 15 years • ... of 14 billion bottles sold in US (2002) - 90% go to away. waste! The answer is on the “demand side”: energy efficiency and • Maybe we should drink water from the tap? local renewable energy systems. Allow me to illustrate this Between 1990 and 2000 Americans threw away 7 million point. tons of aluminum cans, enough to rebuild the world’s entire • UK: 5 Compact fluorescent globes per household = 2 commercial airfleet 25 times over. Recycling of this discard - nuclear reactors of energy saving ed aluminum would use 95% less energy than smelting vir - • California: Pacific Gas & Electric is giving away CFLs gin aluminum. because it’s cheaper than building a new power station. Five additional areas of concern that must be included in our This is ‘green’ energy-saving technology that is available energy, water and waste discussion: today. • Biodiversity: we humans are lethal to other species; we Perhaps an even better illustration that I should use is the kill them directly, wreck their habitats, and introduce Federal Government’s move to replace all incandescent light alien species that outcompete them. globes here over three years. Minister Turnbull then took the • Disruption: The global carbon, nitrogen, and hydrolog - idea to Governor Schwarzenegger who adopted it. The ical cycles have been radically altered, as much as half Canadians did the same as did the EU and India. Even the Earth’s land is transformed or degraded. (Three- Walmart decided to remove incandescents from their shelves quarters of the world’s fisheries are at capacity, overex - and stock CFLs exclusively. ploited, or depleted.) Lester Brown at the Worldwatch Institute in Washington • Ecosystem services: The list of the “goods” and “services” did the calculations. If this was adopted it would be the other species of plants, animals, and microorganisms equivalent of taking 270 coal-fired power stations offline! It provide merely begins with oxygen, food, and fresh would be profitable too. water. (Includes fuel, fiber, building materials, drugs The Climate Group talks about energy efficiency being the and medicines, adornments and decorations, nutrient unrealized frontier of profitability. It publishes regularly the recycling, soil formation, erosion control, water control efforts of it’s member companies in this regard. Since 2002, and recycling, pollination, waste absorption and recy - British Telecom has saved ..1.5 million in energy costs cling, and a number of others.) through energy efficiency programs. • Equity: In the United States, for example, the richest 20 Waste. The issue here is that despite our best efforts at recy - percent of the population earns 46% of the country’s cling, our waste volumes are income, while the poorest fifth earns 5%. (In Brazil, the increasing. In Victoria by 60% in the decade to the year richest fifth earns 64 percent of the country’s income 2000. Now we do have a “Zero Waste” target in Victoria but and the poorest fifth earns 2% .) of course we’re a long way from achieving it because our eco - • And of course the stupid measure we use to convince nomic system doesn’t support it. We desperately need ourselves that all is well with the world and that we are Extended Producer responsibility legislation to generate still in “growth” - GDP is blind to the social value of “cradle to grave” or preferably “cradle to cradle” responsibil - economic activity and simply adds up all the recorded ity in production. Indeed the United States government is expenditures. The more we spend on cleaning up toxic worried about a consumer-led recession if consumers stop waste, housing prison inmates, or burning fuel while spending! This in a country where 90% of their massive trapped in traffic, the better. GDP also ignores the waste volume goes to landfill or is otherwise disposed of. amount of unproductive salinised land in our state, the Challenge is described in Paul Hawkins, Amory Lovins and loss of soil through erosion and the degradation of our Hunter Lovins book “Natural river ecosystems as well all the beneficial activities not captured in the market, such as volunteer work, unpaid Capitalism”: a radical improvement in resource productivity childcare, and housework. • using nature 10-100 times more productively • closed loops with no waste and no toxicity This presentation was made at the Celebration of Research • “doing more and better with less for longer” Activities and Achievements Seminar, Faculty of Science, • more profits to reinvest in natural capital Monash University. v … not continued consumer demand for things we dont need.

VPELA Newsletter – October 2007 Page 55 More Going Green Gala...