victorian / planningrevue / environmental / law / association / volume 107 June 2019 Contents

President 3 The Business Editorial Licence 4 Planning for complete and affordable communities 9 The Minister for Planning 6 A new government delivery model Shadow Minister for Planning 7 for social infrastructure 16 Futures thinking with Jennifer Keesmaat 20 People Richard J Evans Award 26 Fellowship Awards 27

Environmental news and views 33 Expert Evidence 24 Tribunal Talk 35 Places Melbourne airport rail link: applying the Hong Kong model 18

Legal World 37 Car Stackers – do they comply? 39

The Melton ‘front’ 11

YPG 43

Ideas for our metropolis 13 Seminars Local Government’s 5 minutes Commercial 3 Zone: changing the way our city works 40 with the Minister for Planning 15 Climate change litigation and director’s duties 42 Fishermans Bend, from plan to place 29

Cover: Kensington Neighbourhood Healthcare facility UK, delivered in a new government model for social infrastructure.

Newsletter editor: VPELA Bernard McNamara PO Box 1291 Camberwell 3124 M: 0418 326 447 www.vpela.org.au E: [email protected] E: [email protected] T: 9699 7025 T: 9813 2801

2 / VPELA Revue June 2019 The President Who, and what, don’t you trust?

Tamara Brezzi President, VPELA

At a time of elections, we are called upon by the parties and schemes and permits should say nothing, but I do wonder candidates to focus on their campaigns that are usually centred sometimes whether the content needs to be quite so worried around the idea of trust – a plea to the population for a vote in about attempting to predict, rather than guide, the future. the comfort zone. The recent Federal election was no exception: “Vote for me and you’ll get me; vote for Bill Shorten and you’ll The system and its participants could benefit from a step back get Bill Shorten” was a catch phrase for our Prime Minister and a critical analysis about why it is that that permit condition and, (in essence) tells the population that his opponent cannot has been included or what it is that that planning control is really be trusted. trying to say? In the case of planning schemes, the current Smart Planning processes being undertaken by Councils to revise the This need for trust also permeates policy frameworks of the planning schemes throughout the work that we do in planning will present a perfect opportunity to tightly and in the decisions that we make about This need for trust also and clearly express what is sought to be our cities and planning for and within them. achieved without needing to write a ‘crystal permeates throughout ball’ version of the planning scheme. For an industry that is primarily concerned the work that we do with making decisions about the future, in planning and in The theme for VPELA’s conference this it’s necessary for us to place some trust the decisions that we year is “If I could, I would change this….”. I’m in participants to convince ourselves or make about our cities really excited about the theme because it’s facilitative of some big sky thinking – work a decision-maker that ‘It’ll be fine”, or to and planning for and make the necessary leap of faith required to out what you would change, then open within them. implement an ambitious policy or approve a the door to consider the ‘how’. I would put robust development proposal. complexity of the system in the top 5 of my “I would change this” list. There was a It’s often said that it is third party rights that helps ensure Victoria’s time when it was possible to ask and answer a quick question planning system against dreadful planning outcomes. Coupled about planning; but in today’s multi-layered, often duplicitous with the important consultation and mediation processes (built and unclear planning system, there’s no such thing as a quick in now as standard) to the local government and VCAT decision question and quick answer. making processes; it’s easy to see that planning processes and the design of the system work better when there’s a level of trust A re-visiting of the early VPP reports is a timely reminder of why between the participants – a trust by objectors that the system the planning schemes were re-vamped in the 1990’s to streamline will provide an opportunity for their voices to be heard and for controls; to standardise approaches across municipalities, and their amenity to be protected; a trust by decision makers that to make it easy to, at the very least, work out what needs a permit permit holders will build what they’ve been given permission to and what does not. The conference will run on 29 & 30 August do; a trust that applicants will apply for proposals that don’t push 2019 in Lorne. I encourage you to think about what you would boundaries, and a trust by applicants that decision makers will change if you could and to get in touch with us about what’s on make well-reasoned, sound decisions. your list; or better still, attend the conference and participate in the debate in person. Despite this knowledge that an element of trust should make for better decisions, insufficient trust appears to be manifesting Postscript to the March 2019 Revue edition: Thank you to all in a more complex planning system that is increasingly difficult of those members who contacted me after my column about and costly to navigate. It seems to me that there’s a direct mental health in the last edition of the Revue. It was wonderful relationship between the trust afforded between participants to hear that the column had sparked so many workplace and the complexity of planning schemes and permits. The day discussions about the real personal impacts of the multi-layered on which the pendulum of trust swings past neutral into negative and sometimes very difficult and challenging industry within which we work. I look forward to hearing that those discussions territory, there is a loss of a common goal to deliver what the planning scheme calls for and it’s the day on which the complexity are continuing. of planning schemes and permits spirals out of control. Tamara Brezzi is President of VPELA and a Partner at Norton Rose Fulbright Increasingly we could be losing sight of the role of the planning schemes as policy led decision making tools as the participants in planning scheme amendment processes are forced to attempt to predict every possible design scenario that might arise in an area. Similarly, it’s not uncommon to find planning permits with over 100 conditions. It’s certainly not the case that planning

VPELA Revue June 2019 / 3 Editorial licence

Bernard McNamara, Editor VPELA Revue Director BMDA Advisory The ‘New’ Federal Role in City health services and schools. In some peri-urban regions, the big and Regional development threat is insufficient water supply?? It’s over. A new Federal Government in place for 2, or 2 and a IV’s research pushes the ‘bleedingly obvious’ importance of bit or 3 years (?). But when federal party announcements land use and infrastructure integration. But what have we were getting down to matters such as funding additional car seen? Airport Rail Link? IV says ‘long term’. State Government: parking at selected suburban railway stations, I think that we committed. East-West Link? IV says ‘retain option’ State are missing the things that will matter, long term. So, what Government: No. Suburban Rail Loop? IV: no mention: State major infrastructure can Victoria expect to see being assisted by Government (facing re-election) major announcement and federal funds? commenced planning.

Funds towards the North-East Link, Geelong fast rail, promise of So, one must ask if IV is serving a real purpose if the Government funds for the (abandoned) East-West link, major road upgrades in appears to take only limited notice? But wait….. IV has recently Melbourne’s east and south-east, rail upgrade to the Frankston- been asked to investigate solutions for Victoria’s waste stream Baxter line, extra car parking at railway stations, and funds problems. So, maybe IV is useful, when the problems can’t be towards the Melbourne Airport rail link (and Monash rail?) solved by ribbon cutting.

Good on a number of items, but not a comprehensive approach, IV asks us to ‘join the conversation’ on the 2020 Infrastructure given the acknowledged key international economic role played Strategy. So, who (besides the State Government), should join by our cities. Will we see (again) a national cities-infrastructure the conversation with its many entrenched groups from industry, building approach from the Feds? In the meantime, the State green groups and ‘save our suburbs’ types? Government is continuing its infrastructure spend. Good to see that bodies (including the RACV) are raising the ‘forgotten’ Metro A friend of mine has an interesting position on who should have 2 project; which is the one that will deliver bigger benefits but a say on long term planning strategies/plans. For his golf club’s relies on the capacity built through Metro 1. 20-year plan, he argues that members over 60 (including himself) should not be permitted to vote, given that it will be the younger Infrastructure Victoria; the curious case of… members who will bear the consequences of the outcome. Recently Infrastructure Victoria released a paper ‘Growing Should we apply this ‘rule’ to IV 2020 and to Plan Melbourne Victoria’s Potential’ - the opportunities and challenges of 2050? What weight of answers would we hear in contrast to the Victoria’s population growth’. The paper foreshadows that IV will friction we encounter presently? release an updated infrastructure strategy in 2020. But one does Infrastructure Development Contributions, … wonder if it is being taken seriously by the State Government. our ‘tangled web’ What does the paper say? The GVP paper is to be the first in a I was pleased to read contributions from Stuart Moseley and series of releases to ensure that the updated strategy is develop- Noelene Duff on the need to broaden the application of infra- ed in a transparent way. structure development contributions. These are a missing piece The paper draws attention to the differing social and economic in Victoria’s development system. Despite the learned recom- profiles of the regions across the State, arguing that tailored mendations of an Advisory Committee in 2015, we continue to plans are required for each region. Depressingly, the outlook for excuse general development across the wider metropolitan area Victoria’s regional economies is forecast to depend on service- and instead apply specific development levies to some urban based industries such as health care, and social assistance with renewal areas and to the growth areas. a decline in manufacturing and primary industry jobs. The trend points to a widening gap between ‘world-city Melbourne’ and the This absurdity is magnified where development in an area such regions with areas classified as ‘severely disadvantaged’ in the as Central Dandenong is subject to a significant ‘Infrastructure regional hubs of Geelong, Bendigo, Ballarat and Shepparton. Recovery Charge’ that in effect makes development projects in a tough location far less attractive. The Charge encourages IV also draws attention to the trade-offs around residential development to be located elsewhere. As an example, the density. (See also in this edition: Moseley, Noall (Keesmaaat), approved Kaufland supermarket, 1 km west of Central Danden- Sussex). IV is promoting the benefits of denser development with ong faces no infrastructure charges. Were it to be located in savings in infrastructure, more job creation, increased access to Central Dandenong, it would be required to pay about $2m more services etc. We have a way to go. To date, the densification of our to the State. Go figure?(Note: the writer represents a party seeking city has produced mixed outcomes with over-taxed transport, to develop within Central Dandenong.)

4 / VPELA Revue June 2019 While we continue to ‘load up’ urban renewal areas with specific the creation of places that peoples choose to live in. The current levies and charges and leave the general areas untouched, partnership with South-East Water that will deliver the most we will continue to distort market outcomes. There was clear water-efficient residential neighbourhood in Victoria is a prime evidence presented in the Altona North urban renewal project example; as are the amazing playgrounds and club facilities in its hearing. Time for action on this. estates. One can but admire the company culture that continues to deliver at this quality. This leadership and innovation translate Cutting Red Tape in Victoria’ Planning Process. into a ‘raising of the bar’ across the industry. Congratulations Villawood. The State Government has directed the ‘Red Tape Commissioner’ (Anna Cronin) to undertake a review, aimed at removing delays in Helen Gibson AO the planning and building approvals processes that are affecting the delivery of housing and infrastructure. I note that the terms The industry should all stand and herald the retirement of one of reference have ruled out any changes to the third-party of the great contributors to planning policy and administration. notification/objection process. Helen has been the ‘go to’ person for successive Planning Ministers from her role on Planning Panels, to the new format The Minister’s article identifies that a Committee has been formed Planning Scheme introduction, to Planning Appeals and VCAT to assist. Has anyone in the industry been engaged on this? Any leadership. Helen has also been a great contributor in debates, submissions? I requested an article from the Commissioner for seminars and as a participant in VPELA and other organisational this edition but no response. Watch this space. events. Many have witnessed/experienced the incisive Recognising leadership and innovation questioning and watched the chunky Mont Blanc pen recording the proceedings. Thankyou Helen, and hope you keep asking the I was fortunate to be invited to attend Villawood Properties 30-year key questions, along with new interests. celebration recently. The journey by Rory Costelloe and joined As always, comments, suggestions, criticisms to by Tony Johnson has been a remarkable one. The company’s [email protected] residential projects have consistently been recognised and awarded for innovation and recognised for their risk-taking, in

Sandra Rigo

Hansen Partnership Director

Congratulations to Hansen Partnership Director, Sandra Rigo, who was the recipient of a Planning Institute of Australia Fellowship, in March 2019. Sandra is a Town Planner with over 25 years of experience in statutory and strategic planning. Sandra is highly sought as an expert witness in: coastal & regional issues residential infill developments recreational & tourism projects land use in green wedge zones

Contact Sandra at [email protected]

urban planning I urban design I landscape architecture I www.hansenpartnership.com.au I 03 9654 8844

VPELA Revue June 2019 / 5 Minister VEPLA – 30 years of delivering for Victoria The Hon. Richard Wynne MP Victorian Minister for Planning

What a wonderful achievement! In anyone’s books, 30 years is The Commissioner’s review will also: a long time and a testament to the dedication of the Board and members of VEPLA over the years. • consult with key industry experts to consider ways to improve internal and external referral processes; 30 years ago, Melbourne’s population was approximately 1.4 • consider previous reviews, including work done by the million – growing slower and less than half of where we are today. Essential Services Commission, to identify immediate and Over that time, VEPLA has offered a strong voice in the planning medium-term opportunities to smooth out current processes. sector as Victoria deals with the opportunities and challenges For example, there is a need to reduce the delays incurred presented by such significant growth. when establishing utilities connections to developed sites; and • map several council planning permit approval processes While unfortunately I was unable to make the VEPLA 30th to assess impacts on the development and construction of Birthday Gala dinner, this is a great opportunity to reflect on houses, townhouses, apartments and commercial buildings what you have achieved and how you have helped shape the including offices, factories and warehouses. debate around the better management of our cities, towns and the environment. More than 54,000 planning applications were lodged in Victoria in 2017/18. The combined estimated development value of I would like to congratulate James Dear, Onemilegrid, on applications was more than $34 billion – up more than 15 per receiving the Young Professional Award and Roz Hansen on cent from the previous year. The value of construction work done receiving the prestigious Richard J Evans Award for excellence. in Victoria grew by a further 15 per cent in 2018 – which is the I also congratulate Chris McNeill, Ethos Urban, Natasha Swan, highest rate of growth in the nation – and the value of residential City of Monash and Jason Walsh, Traffix Group on their award of and non-residential building work increased by 9.1 per cent in Fellowship to the Association. These are great achievements to recognise your contributions to planning in Victoria. this period. This is big business, and we only expect these trends to continue as Victoria continues to grow. Moving forward, there are some great initiatives underway I want to take this opportunity to outline. To ensure that this significant growth in construction continues into the future, we must ensure that our current approval system As you know, in March the Treasurer and I requested the Red is streamlined so that delays and duplication are reduced and Tape Commissioner, Anna Cronin, conduct a full review into multiple referral processes are rationalised. State and local government processes for building and planning approvals and early building works infrastructure. To ensure the We all know the continued growth of Victoria’s development ongoing success of Victoria’s building industry, we recognise we industry is a significant driver of our state’s economic success. It have a responsibility to cut the red tape blocking planning and is important we get these changes right to support our building building processes. and development industry.

Building and development activity in Victoria is continuing to drive But the review is not the only way we’re looking to improve. national economic growth. Our building industry alone is worth We’ve also invested $25 million in the Smart Planning reform more than $38 billion. Delays in approval processes contribute program, which has delivered a raft of common-sense changes, to costs and ultimately these are passed on to home owners and consumers. Action is required to ensure these systems are more including a reduction in the number of small projects requiring efficient. permits.

The Commissioner will be supported by an Advisory Board These changes mean more than 25,000 permits for new or comprising: renovated dwellings are now being issued faster each year and the number of permits assessed under the VicSmart 10-day • Bill Kusznirczuk, Deputy Chairman of the Victorian Planning planning tool has risen from 7 per cent to 16 per cent – leading to Authority; more home and business owners making simple improvements • Kate Roffey, Director at the City of Wyndham and a former CEO to their properties without undue delay and red tape. of the Committee of Melbourne, and • Radley de Silva, former CEO of the Master Builders Association All this is helping us work towards a more effective and common- of Victoria. sense system.

This review will identify the ways in which approvals processes in The Commissioner’s findings will inform the actions we take responsible and referral authorities can be improved by reducing to deliver a stronger, faster and more streamlined building and the red tape burden and duplication. planning approvals system to help us keep growing Victoria.

6 / VPELA Revue June 2019 Shadow Minister for Planning The battle to save Melbourne’s heritage continues Tim Smith Victorian Shadow Minister for Planning

As the newly appointed Shadow Minister for Planning & Heritage, As the Federation Square debacle showed us, Heritage Victoria Housing, Local Government and Population, I have a long- moved with uncharacteristic speed in defending the twenty years standing passion for Melbourne and Victoria’s built environment, of heritage at Federation Square. I do not dispute the cultural and but particularly in protecting the heritage of our suburbs and architectural significance of Federation Square, but like many the amenity of our homes. It is no coincidence that new Liberal Melbournians, I have often found Heritage Victoria to be missing leader Michael O’Brien has given me the title of Shadow Minister in action when asked to protect heritage homes built in the late for Heritage. In December 2014, in my maiden parliamentary 19th century in established and middle-ring suburbs. These speech, I made it clear where I stood regarding the conservation properties may not be as high profile as Federation Square, but of Melbourne’s heritage. they are of significant heritage value. Melbournians want their heritage to be protected in our suburbs. I will do my best to uphold the legacy of one of my predecessors in Kew, former Premier Sir Rupert Hamer, who did more than This is just another example of why heritage protections are so any other post-war leader to conserve marvellous Melbourne important in allowing us to enjoy and protect places and objects of and our built-form heritage. His planning reforms were far special interest to our communities all over Victoria. Demolishing sighted and have contributed greatly to the quality of life we now these types of established properties not only reduces the enjoy in this wonderful city of ours. amenity of established suburbs; replacing them with medium to Victoria became the first Australian state or territory to enact high density developments changes the character of suburbs, heritage legislation in 1974 with the Historic Buildings Act. In overloads infrastructure, and puts pressures on services already his second reading speech Bob Dunstan, the then Minister of feeling the squeeze of unprecedented population growth. Public Works, said; “the government and this Parliament can, Recently I wrote again to Heritage Victoria asking to preserve and I believe, anticipate the gratitude of future generations for the protect the historical property “Currajong House” in Hawthorn preservation of the national heritage in this state which this bill East. This home is integral to the character of the local area … will go a long way towards making a reality.” and would be lost under a current demolition permit that has The destruction of ‘Marvellous Melbourne” in the post-war years been granted. Built in 1885, Currajong House still has its original was a cardinal sin that should never, ever have happened. It was Victorian façade and is a prime example of our built-form a great shame for my generation and for generations to come heritage. The land at 337 Auburn Rd is also home to numerous that literally hundreds of Victorian and Federation era properties significant trees that have stood for hundreds of years, which across Melbourne were systematically destroyed. This cultural similarly form part of our heritage. vandalism is recounted in Remembering Melbourne 1850-1960. Indeed, the former British Labour politician, and now director of The brazen and unlawful demolition of the Corkman Irish Pub the Victoria and Albert Museum, Tristam Hunt, in his fine work, (the former Carlton Inn) in 2016 by cowboy developers should Ten Cities that made an Empire said of Melbourne; “the suburbs never have happened. In 2016, the Planning Minister told autonomy was underscored by the individuality of the domestic Parliament; “I reiterate today that the clear determination of the architecture. The feverish creativity of nineteenth century British design was brought to bear on the mansions, semis and villas of suburban Melbourne – Scots Baronial, Venetian Gothic, Indo- Saracenic, Moorish, Spanish and, most favoured of all Italian Would you like to advertise Renaissance in rendered stucco.” your business in the Yet we are still failing as a community to preserve our wonderful VPELA Newsletter? built form heritage. The demolitions of historic properties such as Frogmore in Carnegie, and Ngara and Forres in Kew, following Do you have a job rejection for inclusion on the Victorian Heritage Register, were a disgrace that rightfully provoked consternation from locals. you need to fill? These properties are culturally and architecturally reminders of If you are interested in placing an advertisement ‘Marvellous Melbourne’, and greatly enhance our streetscapes. in the VPELA newsletter or advertising a The 2016 demolition of Forres at 9-11 Edward Street, Kew, a position on our website employment section, beautiful Federation-era home, was of particular disappointment please contact the VPELA office on 9813 2801 to me. The home was demolished despite the submission I wrote A full schedule of advertising costs is available to Heritage Victoria demanding the demolition be halted and the on our website www.vpela.org.au property saved.

VPELA Revue June 2019 / 7 government is that the Corkman hotel will be replaced as a hotel. set to go before VCAT in June, where I hope the developers are We want to ensure that all of the remnant historic parts of the hotel compelled to rebuild it. that can be retained will be retained in the redevelopment of this building.” Over the next four years I will be formulating a strong response to genuine community concerns about the destruction of historic Yet when I asked the Minister recently about rebuilding the buildings and what can be done to balance the legitimate Corkman, the Minister offered this in reply; “In relation to the property rights of individual land owners and the increasing future land use opportunities at the Corkman hotel in Carlton, we will interest, through the planning scheme, of the preservation of our be continuing to work with our colleagues at the City of Melbourne cultural and architectural history. on a planning scheme amendment that will resolve the future use of the Corkman hotel.” Despite this equivocal answer, this case is e: [email protected]

STATE PLANNING CONFERENCE 29 & 30 August 2019 at Mantra Lorne

The program for the 2019 conference is exciting, informative and thought provoking. Keynote speakers include: • Dr. Adrian Medhurst, Organisational Psychologist & Mindfulness Expert • Justice Bernard Teague, Royal Commission into Victorian Bushfires • Gillian Triggs, Australian Human Rights Commission • Katerina Gaita, Founder & CEO of Climate for Change • Sophie Cunningham, Author of City of Trees & Adjunct Professor, RMIT • Cathy Wilkinson, The conference brochure will be posted shortly. Environment Protection Authority Book early to avoid disappointment. • Dr. Stephen Rowley, Lecturer Sustainability & Urban Planning, RMIT Sponsorship opportunities are still available, • Ron Iddles – OAM, contact Jane Power on 9813 2801 to discuss Former homicide detective.

PLUS Panel Discussion: Mark this event in Are design controls stifling good architecture? PLUS much, much more …. your diaries NOW! including our Op Shop Chic Gala Dinner.

8 / VPELA Revue June 2019 The Business Planning for complete and affordable communities Stuart Moseley, Chief Executive Officer, Victorian Planning Authority

Newspaper headline writers aren’t getting their creativity Here, Jennifer explained her key philosophy of planning for stretched much these days. Every second day the headlines are ‘complete communities’, which not only have affordable homes about the downturn in Victoria’s housing market. These stories but also contain ample infrastructure, services, transport, shops focus generally on house prices in traditionally blue-chip suburbs and entertainment – and deliver a tangible “community dividend” softening by as much as 15%, with the threat of more to come. so that growth pays off.

But this isn’t necessarily a bad thing. After all, we’ve had six As Jennifer reiterated, creating affordable communities involves years of rapid growth, with the average house costing 9.2 times wide-ranging approaches, thinking outside the box and “planning the median wage at the 2017 peak, compared with 2.7 in the land differently”. So below are just some ideas the VPA will be 1970s. Even with the drop, finding a suitable place to buy or rent working to explore with our government partners over coming is still far too difficult for many Victorians. months.

Obviously when it comes to housing prices, planning isn’t the Working with industry only answer – but it’s certainly a big part of the answer. Victoria has a good record of managing land supply to minimise pressure At our Futures Thinking event, Jennifer explained that Toronto has on housing prices – but housing affordability is about more than enjoyed much success in boosting its stock of affordable housing just the ticket price of the house. by making use of Ontario’s inclusionary zoning regulation, which came into effect in April last year. In Victoria, the Department of Health and Human Services will play a key role in providing new homes to Victorians through its The regulation allows planning authorities to require developers $2.6 billion public housing program, a critical initiative. to contribute a component of below-market housing in all new developments. However, while providing homes to our most vulnerable residents While inclusionary zoning is certainly one effective way of tackling is essential, we also need to broaden our scope to examine ways the issue, collaborating with industry and negotiating on a case- we can support people who do not qualify for public housing. by-case basis is another. Over recent years Victoria has assembled a stronger planning The VPA has enjoyed some success in this regard in our plan for toolkit to support affordable housing. It is now time to turn our a 67-hectare precinct in Altona North, previously a base for the attention to how best to deploy that toolkit to deliver better Don Smallgoods factory. In this instance, the developers agreed results for more Victorians. for 5% of all housing within the precinct to be sold to council or a So, to learn more about we can better plan for affordable homes, registered housing authority for an affordable price. the VPA recently hosted Jennifer Keesmaat, Toronto’s former What we mean by ‘affordable’, in the terms of this agreement, is Chief City Planner, as the keynote speaker at our second Futures that the property “must not exceed an amount that is 25% less Thinking event. than the current 12-month median unit price for a two-bedroom unit in Altona North”. Not bad for a brand new, high quality apartment.

The agreement was formalised under a Section 173 agreement of the Planning and Environment Act 1987.

We are now very close to replicating this success in another urban renewal precinct in Bentleigh East. This model – endorsed by Glen Eira City Council on 18 December 2018 – requires land- owners to transfer land at no cost to a registered housing association, which will then own and manage the properties.

It is anticipated the housing association will then build 50 to 75 affordable homes over two or three sites within the precinct, which will deliver a total of 3,000 dwellings.

These models illustrate how, in planning for urban renewal, affordable housing can be part of the benefit package for the Jennifer Keesmaat pictured here at the 2014 VPELA Conference local community.

VPELA Revue June 2019 / 9 Cutting red tape This will involve a shift in perception for many Melburnians. But if we get a precinct approach right, the vast majority of In June last year the Victorian Government appointed Victoria’s our character suburbs will remain unchanged. We need to get first Commissioner for Better Regulation, Anna Cronin, who better at explaining to people that with greater density comes has been tasked with reviewing Victoria’s planning and building more housing, better local services, improved infrastructure approval processes. economies, and the potential for true, 20-minute neighbourhoods.

The VPA, working with our council and agency partners, has When boosting densities of suburbs in Toronto, for instance, worked hard to improve post-precinct structure plan approval Jennifer Keesmaat went to great lengths to take the public on a processes through the government’s successful Streamlining journey to see the benefits, including by initiating a ‘youth forum’ for Growth Program. to seek young people’s views on how they wanted to live in the future. The VPA is keen to explore ways of better engaging young Through this program, we have allocated $3.8 million towards people in planning decisions – we need to give the communities speeding up post-PSP approvals. This has resulted in councils of the future a voice in our planning processes, not just the having greater capacity to process subdivision and utility communities of today. connection applications and innovating their methods to ultimately ensure houses are brought to market faster. The development industry has an important role to play in this space. For instance, industry should boost engagement with While much of this work is not directly visible to the public, costs communities around key development sites and strive for more saved by industry by speeding up processing times will ultimately innovative and better designed apartments and townhouses, be passed on to consumers. In addition, boosting supply will help including those catering for families and larger households. ensure prices are competitive: a win for homebuyers. This means including features such as adequate storage, ample Increasing housing choice in our middle-ring natural light, communal gardens and facilities and attractive ground-floor shops/commercial spaces that enhance the street. It goes without saying that maintaining a steady supply of zoned More three-bedroom apartments are also needed. land in our greenfields is an essential way of providing affordable housing within Victoria. After all, our outer Melbourne suburbs Acknowledging the complexities are still the places of choice for many. This is why the VPA is Boosting supplies of affordable, well-designed housing is creating plans for an additional 50,000 homes and 50,000 jobs in a complex issue that requires nuanced and multi-faceted outer Melbourne, to be completed by February 2023. approaches to address. For instance, it is essential that housing While we are currently meeting our targets for greenfields land designated ‘affordable’ is set aside for people who need it, supply, there is much more that could be done to increase and that we prevent such properties being on-sold at highly zoned capacity for better-designed housing in targeted areas of inflated rates. Melbourne’s middle suburbs. In particular, there is a significant While there are no easy answers,we shouldn’t let that from stop opportunity to increase residential and mixed-use development us from trying. The VPA will continue to collaborate with our around key public transport corridors and nodes. government partners over coming months to explore the myriad of ways we can create more complete, affordable communities The government’s exciting agenda of major transport infra- across our state. structure projects – including the Suburban Rail Loop, the Western Rail Plan and the Melbourne Airport Rail Link – offers Stuart Moseley is the CEO of the VPA, the Victorian a once-in-a-generation opportunity in this regard. It is an Government’s lead agency for planning growth and opportunity that the VPA is very keen to maximise. renewal of key sites and precincts across urban Victoria.

10 / VPELA Revue June 2019 Places The Melton ‘front’: Why we need to keep having the ‘lagging Laura Jo Mellan and Georgina Borg, infrastructure’ conversation Melton City Council

We have all had our own experiences of growth, be it personal or that non-residential uses and key transport infrastructure professional, and whilst it can be painful – and often arduous - it is lagging behind residential development. is definitely necessary. To date, the Melton City Council has approved approximately In Melbourne’s outer west, the City of Melton’s growth story is 75 residential estates within its growth area (through approved focussed around our ever-increasing population and the lack precinct structure plans), although the municipality is just of infrastructure to support residents who call our municipality beginning to witness the delivery of new and upgraded home. infrastructure - in the way of Cobblebank Railway Station, the upgrade of Rockbank Railway Station and the duplication of A population growing much the Melbourne-Ballarat Railway Line. Sadly, the result of this faster than our facilities ‘infrastructure lag’ are pockets of residential areas which have limited access to basic services and employment opportunities. The City of Melton is estimated to grow to a community of over 450,000 by 2051 from the current population of 162,118 (.id forecast City of Melton, January 2019). We are also a very young community, with 44 babies born in the City each week. (That’s the equivalent of two Prep classes being born every single week!) We are in no way equipped to handle that kind of influx into our education system, the result of which can only be classrooms that are bursting at the seams and an entire generation of children who don’t have equitable access to quality education.

The same could be said of our health system (along with aged and specialist care) which is already overburdened, and will only continue to buckle under the strain as our population increases. With lifestyle illnesses such as heart disease and type 2 diabetes increasing in the City of Melton, without improved health and wellbeing services such as a public hospital, our residents face lengthy waits for treatment, and risk reduced quality of life. Planning for growth Creating liveable neighbourhoods and jobs In spite of these challenges or perhaps because of them, It is true that there are jobs being created in the growth areas, working in a growth area can be highly rewarding – how many of but in the City of Melton context many of these are related to us can actually say we’ve helped shape our future communities the construction of residential developments, rather than the on such a scale? That the decisions we make will have an effect creation of long-term or diverse employment opportunities. not only on the lives of our current residents, but on generations The question is, what is the strategy for investment attraction to come? It’s both an exciting and daunting prospect. and job creation across Melbourne to create 20 minute neigh- bourhoods and how do we work across all levels of government The challenge of managing increases in population and the to achieve it? growth of our communities is not new. What is new, however, is the unprecedented pace and scale by which growth is occurring. As implied above, the provision of essential infrastructure such as public transport, education, healthcare, open spaces and Plan Melbourne 2017-2051 has introduced policy objectives recreational facilities are critical to creating vibrant and healthy such as the ‘20 Minute Neighbourhoods’ that seek to manage communities. It is unfortunate, however, that basic services such this growth and promote vibrant, healthy communities. as access to healthcare and frequent and reliable public transport The challenge is putting this policy into practice. appear to be treated as bargaining chips in election campaigns. What’s worse is that communities in the west, including those You would think that achieving Plan Melbourne objectives in the City of Melton, don’t even have a ‘bargaining chip’ to begin would be relatively easy in greenfield areas where you are with, given our position as a Labor stronghold, at both a State essentially working with a blank canvas; but the reality is and Federal level, for decades.

VPELA Revue June 2019 / 11 Long term infrastructure delivery enough to provide infrastructure projects). Currently GAIC funds are allocated on a year by year basis, creating uncertainty for The time has come to remove party politics from decision- growth area councils and their communities. A long term funding making around planning for the future of all our communities, pipeline for strategic infrastructure projects that are assessed but particularly in growth areas. A bipartisan approach that sets on urgency and long term strategy would provide that certainty, out a long term comprehensive strategy to deliver infrastructure and enable policies such as the ’20 minute neighbourhood’ to across Victoria, and building on the work of independent bodies flourish. such as Infrastructure Victoria, is desperately needed. This way crucial infrastructure would be delivered where it is necessary Our collective achievement will be defined by the quality of life and more importantly, in a timely manner. we create for emerging communities in our growth areas and across the state. Perhaps in order to advance, this should be Many may consider this an overly simplistic view, but bipartisan- at the heart of decision making and not short-term economic ship in the realm of planning and infrastructure is an approach or political gains. This is not an original opinion, but rather a that is employed in other parts of the world, with great success. If concept that requires a more robust debate across all levels of you examine the promises of the major parties, there is often very government and the development industry if our story is to be little difference between the policies of different governments in one of success. regards to land use planning and managing growth – the two most recent versions of Plan Melbourne being an example. Note: The views expressed in this article are the view of the authors and not Melton City Council A solution that is achievable for the growth areas is that of a bipartisan, long term, strategic list of infrastructure projects that Laura Jo Mellan, is Manager City, Design, Strategy and could be partly funded through the Growth Areas Infrastructure Environment and Georgina Borg, is Senior Strategic Planner, Contribution (GAIC) (noting that in no way will GAIC funds be Melton City Council. E: [email protected]

Victoria’s Property, Planning & Land Development Advisory Law Firm

P (03) 9670 8951 W www.besthooper.com.au E [email protected]

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12 / VPELA Revue June 2019 Places Ideas for our metropolis

Catherine Heggen, Message Consultants, and Fellow

As our metropolis rapidly heads towards a population of 8 same topographic condition. However, Elm Grove has the benefit million, the planning principle of making more efficient use of wide verges and regularly spaced mature street trees with of our urban land has, until now, primarily focused on private spreading canopies. In contrast, Charlotte Street is characterised property. Publically owned land in the form of roads has largely by relatively narrow verges and irregular spaced low height trees. been overlooked along with the opportunities they present to Elm Grove offers an improved aesthetic enjoyment and a more improve where we live and work. pleasing pedestrian experience as a consequence of its canopy trees. As well, there is a quantifiable reduction in summertime Rather than merely function as utilitarian motor vehicle conduits air temperature. and parking lots, many local streets can readily allow widened verges for improved landscaping or simply just accommodate Research conducted by the Faculty of Science, Melbourne more trees in existing verge widths. Similarly, the use of our University and published in 20161 measured and compared the streets for kerbside car parking can be more creatively organised microclimate of Elm Grove versus Charlotte Street. The results to liberate space for street parks that can transform public of these investigations, amongst other things, confirmed that the spaces. The benefits are many; micro-climate cooling, more high percentage tree canopy cover in Elm Grove reduced midday pleasant places to walk, sit and relax with friends and family air temperatures by up to 2.1°C. When other human factors and in the case of a new street park, the potential to deliver were taken into account such as metabolic rate and clothing as local government an ongoing income stream that far outstrips well as micro climate parameters including relative humidity, existing revenue derived from parking meters and other fees. wind speed and solar radiation, a physiological equivalent temperature reduction of up to 4.6°C was achieved compared As Melbourne densifies, land acquisition costs escalate and with that experienced in Charlotte Street. the pressure on the public purse increases, local roads are just waiting to be reimagined. Two ideas present themselves, the This simple initiative implemented with the tools we already have benefits of each are illustrated by way of the following examples. such as a Development Contribution Overlay is one way to deliver greener more pleasant streets and an improved micro climate. 1. Greening Street Edges 2. Creating Street Parks Two parallel streets in Richmond present very differently to the pedestrian, motorist, resident and visitor. One street being Elm Oxford Street in Collingwood presents a significant potential Grove and the other being Charlotte Street as shown in Figure to create a new street park. The former Foy and Gibson ware- 1. These two streets were created by the same subdivision in houses that extend along both sides of the street have been the mid 1800’s, have the same road reserve width and have the converted to apartments and offices. Whilst the angled street

Figure 1

VPELA Revue June 2019 / 13 Figure 2 car parking is well used by office visitors during the day, most of A demonstration project such as the one gaining traction for these car spaces are unused after hours. In Barcelona, Spain a Oxford Street would yield significant benefits in an area with an local government development authority, supported by the state, under provision of open space. You can join the conversation in has harnessed the potential of streets to deliver urban parks by support of the initiative on constructing car parks under them. These under road car parks www.ourstreetsarenotgarages.com.au . are owned by the local authority and car spaces are available for long term or short stay leases. This arrangement provides Catherine Heggen is a Director at Message Consultants. an ongoing income stream. Other car parking management Her professional capabilities and experience lie at the options include above ground storage or even just removing the intersection of urban planning, statutory control and place car parking from the street. making. [email protected]

In Collingwood, a local community initiative to promote the idea 1 “Street Orientation and side of the Street Greatly Influences the Microclimate Benefits Street Trees Can Provide in Summer”. of creating a street park in Oxford Street is mobilising under Journal of Environmental Quality, January 2016, R. Sanusi, the banner “Our Streets Are Not Garages”. This potential is D. Johnstone, P. May, and SJ Liversley. illustrated in the before and after images at Figure 2. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. THE RIGHT DEVELOPMENT ATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABOR IN THE RIGHT PLACE NDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE. COMPELLING. CANDID. CONSTRUCTIVE. COLLABORATIVE.

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14 / VPELA Revue June 2019 Places Local government’s ‘five minutes’ with Planning Minister Wynne Noelene Duff, Chief Executive Officer, Whitehorse City Council

(This article sets out the substance of Noelene’s presentation at the People at the centre of design Minister for Planning’s seminar in March this year.) Start from people as the centre of community, rather than the Presenting headline issues as an agenda for the next 4 years for planning scheme being primary. a “new” Minister for Planning is a challenge, particularly with five minutes delivery time in an audience of experts. I gave it a A real focus on the environment try with my list outlined below, and not in any particular order or priority. The planning system can be an enabler with respect to managing our impact on the environment. There is significant effort to Development contributions include environmentally sustainable development principles into local planning schemes. Strong leadership at the state level is Contributions from developers, remains a challenge for estab- needed to ensure that every council does not reinvent the wheel lished metropolitan areas where growth is significant as opposed on this topic. Vegetation protection also needs to be high on the to incremental. The greatest myth of more properties meaning agenda as development pervades areas traditionally valued for more revenue for councils is a big hurdle. A fair, but more their “green” qualities. straightforward infrastructure contributions plan is required.

Areas this could apply to would include intensive, high density Red tape sites where significant population growth leads to increased The clunky relationship between the building and planning demands on infrastructure and community facilities that are system needs to be improved, particularly where the building needed to manage the growth. system manages many complex matters that interface with ever changing planning systems. Higher certainty for consumers of Affordable housing the system is required to lessen the burden on regulation as a Implementation of a framework that mandates the inclusion control mechanism. of affordable housing in high density growth areas is required. Effort to achieve voluntary outcomes is significant and has been The role of councils subject to successful appeal. Mandated minimum requirements Community expectations of councillors are unreasonable in light are needed to ensure sufficient inclusion of affordable housing of their limited influence over planning decisions. Whilst this is a in developments. The option of inclusion of social housing units perennial issue, it is one that places councillors in an unenviable should also be considered. position that can contribute to an overall view that councils are not listening to their communities, when actually, the State Keeping pace with growth system is the constraint on their potential to influence.

Local communities are increasingly reacting to densification of Noelene Duff concludes her 19 years as a Chief Executive their local areas. If they are able to see associated benefits such Officer in Victorian local government in August of this year. as investment in local infrastructure, transport improvements As CEO of the City of Whitehorse, she has observed a period of and greater support to achieve goals such as the 20-minute city, intensive growth and change in her municipality in the east of Editor’s the inclusion of more density may be more palatable. ( Melbourne, particularly in Box Hill. [email protected] note: See also the article on Jennifer Keesmaat’s presentation in this edition.)

Ian Pitt, Nick Sissons, Michael Deidun and Ella Clements. Bridget Phelan, Victoria Costa and Michael Ashforth.

VPELA Revue June 2019 / 15 The Business A new government delivery model for social infrastructure Mark Richards, Special Counsel, Hall and Wilcox

The challenge We all want to live in affordable, walkable communities with Scotland replicated the model and called it the “Hub Initiative”, readily accessible neighbourhood facilities. Social infrastructure delivering schools, health care facilities, community facilities - schools, health facilities, community facilities, affordable (including leisure facilities, libraries and museums) and housing, specialist aged care facilities etc - are all essential affordable housing. It supports the Scottish Government strategy ingredients to the formation of long-term sustainable community to deliver 50,000 affordable homes. hubs that will make up the smarter cities of tomorrow. The benefits There has been much talk recently of the need to deliver more affordable housing. Labor proposes to deliver 250,000 over With increased road and rail infrastructure projects being 10 years. Anglicare Australia Rental Affordability Snapshot delivered in the Australian market, it is becoming increasingly proposes the Federal Government invest in delivering 300,000 challenging for stand-alone social infrastructure projects to be social homes and 200,000 low cost rentals to fix a ‘broken’ delivered. housing market. The formation of a social infrastructure joint venture company There is a shortfall in the number of social and affordable housing enables the public sector to benefit from having a dedicated available in Australia and there are a number of initiatives private sector partner focused on delivering “whole of life” nibbling away at the size of the problem. To deliver housing at benchmarked solutions, tailored for the local community, at the scale - coupled with all the additional social infrastructure scale and value for money. The joint venture partnership seeks amenities - requires a low cost, replicable procurement strategy. to leverage each shareholder’s individual strengths. The inspiration For example, the private sector partner is tasked with bringing design, construction, operation and maintenance expertise to the Fifteen years ago, as legal advisor to Community Health partnership and responds by delivering a wide range of premises Partnerships (a joint venture between the UK National Health requirements in terms of size, use and geographical location. It Service and Partnerships UK), I worked on the development of will also have established relationships with financial providers the Local Improvement Finance Trust (LIFT) initiative. The aim of and supply chain contractors and in some cases will come to this initiative was to move healthcare away from acute hospitals the party with existing available land in attractive community and into the local community, through upgrading existing health locations to contribute to future delivery requirements. facilities and developing new premises and estates, in some of the most impoverished parts of England. The public sector will have extensive relationships across govern- ment and bring planning and service expertise, additional land This PPP-like model was specifically created to deliver simpler, and a wealth of experience engaging with local councils and repeatable asset classes and over 10 years has resulted in the communities. creation of more than 300 integrated health hubs, co-locating the provision of healthcare services within walking distance of The joint venture will complement existing joint working local communities. relationships and offer an opportunity for private sector skills

Public sector Private sector State (Local government)

Joint Local community venture stakeholders

Funding Housing School Health project project project

16 / VPELA Revue June 2019 and experience to be brought into the joint community planning arrangements and to challenge the provision of existing service Health facilities Specialist aged delivery. These improvements are monitored through the care facilities setting of performance targets, KPIs and the periodic use of market testing. It offers an opportunity for skills and knowledge transfer between the private and public sector, offering a greater incentive to develop and retain personnel. The joint venture Social Schools infrastructure Child care offers the public sector organisations an opportunity to innovate, hub facilities act flexibly and respond quickly to changing user-demands.

While the private sector partner will have control over the day to day decisions given their skill and expertise that is being sought Police, fire and Social and as part of the procurement, substantial minority shareholder ambulance services affordable housing protections are built into the documentation to ensure issues such as the business plan, remuneration, share structure and future projects do not occur without public sector consent.

The joint venture will also be tasked with delivering partnering sector stakeholder board to determine whether a joint venture services to public sector participants to support the planning, proposal is value for money. procurement and delivery of infrastructure projects within the Scalable and repeatable: Once the joint venture is formed under operating area. a standardised contractual framework, there is greater speed Partnering services require the formation of professional panels and delivery of projects through the formation of standardised with the requisite skills and expertise to support the delivery project documentation reducing procurement delivery times. requirements of the public sector participants. Appreciating assets: The model enables the adoption of ‘value Partnering services enable, for example, local council partici- capture’. Consequently, the benefits from the uplift in the value pants to be supported in the formation of strategic service of the land following a change to inclusionary zoning is shared development plans to determine the requisite needs of their between the joint venture parties local community in terms of housing mix, be it social, affordable, Regulation of equity returns: The joint venture shareholders specialist disability or key worker accommodation. agree in advance on the level of equity returns, with the public Partnering services may also result in a health authority partici- sector having the option to roll over equity returns into future pant requiring the joint venture to become increasingly involved projects. in service planning meetings, given the strategic development Government Land: The model provides alternate options for the health plan makes an excellent case for the development of out- use of government land. The public sector can either retain its patient and diagnostic services through an integrated community existing land and utilise alternate private land or sell its own land healthcare hub. by way of an equity contribution into the joint venture or transfer In addition to delivering new projects and supporting public to the joint venture by way of a long lease arrangement. sector participants with the provision of partnering services, Attractive to Institutional Investors: Australian superannuation there are several other benefits to this model. companies are investing in social infrastructure in alternate Partnership approach: The joint venture would be made up jurisdictions, due to the absence of a recognisable national of a private sector entity, public sector stakeholders including model it can invest in. Offering a competitive national model will State Government and will have delivery exclusivity for social increase funding competition and improved delivery out-comes infrastructure over a specific region. Given each party to the for taxpayers. joint venture has an equity stake in the delivery of the social The future infrastructure project, there is greater accountability. Given State Government sits across several joint venture companies, it can With the population of Australia set to further expand, and cities determine whether each joint venture is delivering value for such as Melbourne forecast to double in size by 2050, delivering money for taxpayers. sustainable communities will be an increasing challenge to all tiers of government. Stretched budgets servicing the health Faster and more cost-effective procurement: Contractors price needs of ageing baby boomers and declining stamp duty revenue tenders in the hope of winning one in every three projects. As will test established paradigms. such, the tender losses associated with the two failed tenders are wrapped into the winning tender. This increases overall project States are waking up to the need for greater partnership with the delivery costs being borne by the taxpayer. The proposed model private sector and with it we will see the trialling of new social does away with this inefficiency, with Government running one infrastructure models alongside established methods. tender process to select a private sector joint venture partner to deliver the initial tranche schemes. Once the joint venture Mark has more than 18 years’ experience advising on is formed, construction and maintenance panel providers are construction and infrastructure projects. He has acted created to support the delivery of the initial tranche schemes for public and private organisations on a range of social and future tranches. Future schemes are evaluated by a public infrastructure projects. [email protected]

VPELA Revue June 2019 / 17 Places Melbourne Airport Rail Link: Applying the Hong Kong model Will Riley, Weston Williams and Partners

MEL open all day too, allowing a staggering of passengers for bag- drop and shorter queues at departures. The Victorian government has given the green light to progress- ing the business case for the much-needed Melbourne Airport HKG Rail Link (MARL). Eight billion passengers will be using Melb- ourne Airport by 2038 and currently there is no reliable, fast and The original HKG airport was located on a former military frequent service to the CBD and surrounding suburbs. airbase before being repurposed for civilian travel. Increased flight demand and higher aviation safety standards eventually The proposed airport link, via Sunshine, will provide Melbourne rendered the site unsustainable and sparked the early 90’s move with this critical airport connection, serving both the Melbourne to Lantau island. CBD and Geelong. Transport Orientated Development needs to be elevated in the list of state priorities when making such The Hong Kong Airport Express is over 20 years old now but significant investment in infrastructure. Our Melbourne Metro provides a fantastic passenger experience; completely seamless experience tells us there are lessons to be learnt from existing access between the airport and the city. The rail connection international models. was considered as an integral part of the Airport development, facilitated by major TOD sites on Hong Kong Island and Kowloon. As part of this new infrastructure, Melbourne should consider The multi-billion dollar real estate developments conceived as a Hong Kong style, in-town check-in service to provide the best part of the original deal provided the mechanism for MTR to possible passenger experience and see the greatest economic capture the value from the infrastructure investment, providing return on this investment. By incorporating airport bag-drop capital to reinvest in the system and keeping fares low – ultimately into the Hong Kong Central Station MTR Concourse, passengers driving the success of the project. simply head to metro station on the morning of departure and check-in all baggage, freeing them for the rest of the day to enjoy the city without having to lug bags around behind them. After dropping your bags, you don’t see them again until they are looping around the carrousel at your destination airport.

Being freed of luggage encourages you to make the absolute most of your last day of any city visit. In Melbourne, this service would be particularly useful for young families and long distance travellers, both of whom make significant contributions to the Victorian economy. Bringing the check-in into the CBD also frees up space and reduces visual clutter in the airport and improves the landside passenger experience. CBD check-in desks can be

Hong Kong airport rail Operations One of the key operational successes is the removal of the fare gates at the airport – there is no need to purchase a ticket in order to board the train. A single porous barrier in the system at the point of exit makes the system ‘truly innovative’, reducing journey times, queuing and check points. In reverse, when one arrives at Central Station to head to the airport, the check- in desks are behind the gates, meaning people need to buy a metro ticket in order to access the service. Passengers are then free to leave for a period of up to 24hrs before returning with the same ticket and boarding a train to the airport. This prevents people using the check in desks without paying and providing the Transport and Phasing Development Strategy – WW+P sketch aforementioned experiential benefits.

18 / VPELA Revue June 2019 Design statement. At MEL airport a more holistic development policy, a robust transport strategy and a commitment to a sustainable The MTR in Hong Kong is a colourful system (Andrew was key future could provide the genesis for similar aspirations and allow promoter of the Art in Transit programme on the MTR), but the airport to compete on the world stage. this is deliberately different at check in. The more simplistic expression of the airport architecture is used to bring the airport It’s worth noting that airport rail does not work everywhere; experience into the CBD and marks the gateway to the airport Airport Express was abandoned in Singapore due to location and in stark contrast to the rest of the MTR stations. This isn’t seen user groups. The distance between the airport and the city does in many other places – Taipei in-town check-in has its own not justify the investment in a new rail link. The airport also has character, Gatwick and Heathrow express are extensions of the lots of employees so lots of train passengers are going to work, train service, not the airport. This could be an interesting cue not carrying bags, and so a metro connection is better suited to for Melbourne and provides a significant design opportunity at the demand. Singapore is well connected to the existing metro Southern Cross Station. and lots of taxis provide comparatively short journeys at low cost. In Melbourne, issues could be similar, dependent on journey If the in-town check in was done today, security would be a much times and user groups, both of which are still to be understood. greater priority and bags would be screened much earlier in Will business commuters get out of taxis if the time saving the journey. Currently this is done at the airport by the airlines, isn’t significant? Will tourists use it if Skybus is cheaper? The rather than at the in-town check-in. This would have an impact business case analysis will flush this out and have significant on the spatial performance and would need considering as part impacts on the type of rail system chosen, journey times and of any proposal. infrastructure locations. Another issue for HK Airport Express is the sharing of the track with the domestic rail line. Train headways are limited to 10 MEL – HKG minutes (as proposed for MARL) which works with the current The HK Airport Express had the combination of geography, HKG airport demand but as the airport typology shifts more passenger demand and political will to provide the opportunity. City towards retail and tourism, and becomes a destination in its own developments centred around transport, at IFC and Kowloon, and right, passenger demand on the railway will increase. Teamed value capture mechanisms rendered the opportunity a success. with population increases at satellite destinations – similar to what will happen with MARL through improved connectivity at MARL already has the political backing, now an understanding the Sunshine Regional Super Hub and the airport connection to of the economic strategy, infrastructure design and transport Suburban Rail Loop – capacity on the line will likely become an led development opportunities are key. More holistic strategies issue in the future. around future transport solutions and development need to be facilitated by government. Return on investment is key – MTR The Jewel @ Changi Airport, Singapore, one of the largest air- is granted development rights by government with the land to conditioned buildings in the world, is the most recent example of build the stations. Private developers tender for the construction an airport making significant investment in placemaking. Changi and MTR shares in the profit from rental or sale. A similarly is a product of extensive market research, teamed with a clear bold approach for infrastructure investment through low density domestic development plan and a strong will to make a political areas of Victoria should be reviewed for MARL.

Advances in technology also need to be considered as part of this plan. Future stations will have much less physical interface – check in online and bag drop only. As the world’s ‘most liveable city’ Melbourne should be considering future passenger experience at a strategic level, through both service and space planning; from city scale transport orientated development, down to in-town check-in.

Will Riley is Senior Associate at WW+P and a UK registered architect and urban designer. Will specialises in transport led development and heads the master planning team in Melbourne. E: will.riley@ westonwilliamson.com.au MARL In-town check-in strategy

VPELA Revue June 2019 / 19 Places Jennifer Keesmaat: Changing the conversation around density Harriett Noall, Ethos Urban

In early April 2019, Ethos Urban sponsored a visit and series of talks achieve once there are less cars on the road and critical mass by Jennifer Keesmaat, a world-renowned urban planner, current has been achieved to support an array of shops, businesses and head of The Keesmaat Group and previous Chief Planner at the City services at the street level. of Toronto. During her visit to Melbourne Ms Keesmaat spoke at a VPA Futures Thinking event at the Melbourne Museum where she Higher densities also lead to increased spending on public engaged in a Q&A session with Stuart Mosely, which was facilitated transport and community facilities which, in Jennifer’s by Greg Vann of Ethos Urban. experience, negates most of the need for personal vehicles. The term ‘Complete Communities’ has been coined to describe this Typically, a dirty word in Victoria, ‘density’ has been an ongoing high-density planning utopia which allows people to live, work battle for planners between the need to house more people and play in their own neighbourhood without the need for a car. close to services and ongoing resistance to change in our While still in office, Ms Keesmaat was able to set and realise the neighbourhoods. This resistance to change may be sheeted home target that 75% of residents living in downtown Toronto are able to many poorly delivered outcomes, or through a fundamental to walk, cycle or take a short public transport trip to get to work. misunderstanding of the benefits of higher density living. In Toronto, Canada’s largest city, the challenge has followed a Density, if done well, also provides the opportunity for affordable similar narrative, although significant progress has been made housing through inclusionary zoning, which ensures a healthy largely due to the efforts of Jennifer Keesmaat. mix of people get to live in the space. During the Q&A session with Ms Keesmaat and Stuart Mosely (VPA), audience members got the chance to ask about the mechanisms that were used to realise Toronto’s affordable housing targets. One of the many mechanisms was inclusionary housing, although Ms Keesmaat explained that it was important to get the mix right, ‘otherwise you risk the financial viability’ of residential development. The importance of capitalising on value uplift was also examined as something that we could be doing better in Victoria to ensure that all new developments, whether infill or greenfield, have the services and amenity to support its residents.

The main challenge for Victoria is to change the stigma that exists around higher density living. This stigma exists for a reason, and we in the industry need to work toward better higher density living outcomes to change it.

This event was part of the VPA’s ongoing ‘Futures Thinking’ Greg Vann, Stuart Mosely and Jennifer Keesmaat program, which aims to promote discussion about big-picture ideas in planning. Ethos Urban was proud to sponsor this event During her time as Toronto’s Chief Planner, Ms Keesmaat and would like to thank Jennifer Keesmaat and the VPA for their managed to flip the conversation about density on its head involvement. through teaching people about the positive ways that increased residential densities impact their lives. The idea is simple, if you Harriett Noall is an Urbanist in strategic planning and land- show people that having higher densities will make their lives use economics at Ethos Urban, and a member of the VPELA better through access to excellent public transport, jobs and a YPG Committee. range of services in walking distance that they would otherwise be without, then there are fewer reasons to resist the change.

Ms Keesmaat emphasised in her talk at the VPA Futures Thinking Membership Subscriptions event, that we need to show people that planners and politicians aren’t just creating ‘density for the sake of density’, but density Now Due! for the sake of liveability and a better quality of life. One of the Your membership subscription invoice for 2019/2020 critical aspects of this change is getting the framework right. was emailed to you recently. If you did not received Ensuring that density is created above so that the street level it please check your Junk/Spam folder. If you still can be returned to citizens is a major aspect, this ensures that can’t locate it please email [email protected] for a copy. we have great public spaces instead of a street interface with underutilised lobbies etc. Walkable cities are also easier to

20 / VPELA Revue June 2019 Venetian Masked Ball

Happy birthday to VPELA! Our Venetian Masked Ball saw (Currie & Brown) Amanda Roberts (SJB Urban) and VPELA enter into it’s 30th year with style and grace. We Caroline Cody (Planning & Property Partners) all impressed celebrated with a record breaking 971 VPELA members and as renaissance nobles. New comer to the award gallery industry colleagues attending our annual dinner at Crown Mitch Connelly (City of Melbourne) embraced the theme Palladium on 3rd May. We dined on fine venetian delicacies coming as a gondolier. A big thank you goes to all who in the ambience of Venice’s famous canals and amidst the embraced the theme. sounds of Opera singers. I look forward to seeing more of you next year, as we strive to Lots of our guests payed homage to Carnivale in their finest break the 1000 barrier. dress and intricate masks. It was truly a night of elegance, Jane Power – Executive Officer, VPELA. mystique, and intrigue! As always there were some real standouts. Best dressed Venetians Gerard Gilfedder Thanks to all our wonderful sponsors

L>R: Mitch Connelly, Gerard Gilfedder, Caroline Cody, Amanda Roberts

We would like to thank our major sponsor, Rory Costelloe and the Villawood Property Group for their continued support. Villawood have been the major sponsor for many years and without this sponsorship and our table sponsors it would not be possible to stage this event.

VPELA Revue June 2019 / 21 Venetian Masked Ball Venetian Masked Ball

22 / VPELA Revue June 2019 Venetian Masked Ball Venetian Masked Ball

VPELA Revue June 2019 / 23 The Business Expert evidence in planning: ‘Reasons’ or ‘conclusions’? Sean McArdle, Barrister

In evidence law, witnesses are only allowed to give evidence Now, a ‘reasons’ focus: about things they perceived directly – “I saw the accused walking down Smith Street at 4pm holding a ‘keep cup’”. They “Buildings which are taller than adjoining buildings can disrupt can’t give evidence of opinion – “She must have been going to the rhythm of the street, reducing legibility of an existing get a coffee”. precinct’s character and identity. It has long been recognised in urban design discourse that consistency of built form features Expert witnesses are afforded an exception to the ‘opinion – such as materiality, massing, colours and form – contribute rule’ and can give evidence about their opinions, but only to to sense of place, which in turn, promote economic and social the extent that their opinions are based “wholly or substantially well-being of local areas. This is recognised in the Urban on specialised knowledge”. Design Guidelines for Victoria and an extensive body of urban design literature (see, e.g., Gehl, J 2010, Cities for People). The Opinions are conclusions drawn from facts. proposed building is 2x taller than all other buildings on this street, which may disrupt the existing built form character of the • Step 1 – You start with a bundle of facts. “I surveyed precinct and thereby undermine sense of place.” 3 existing supermarkets and they generated parking 2 demands of 3.3, 2.5, and 4.1 spaces per 100m This example is a bit wordy, but it’s transparent and explains respectively.” the basis for the opinion that the building is too tall. The basis • Step 2 – Apply reasons to those facts. “This proposed for the opinion is not hidden behind a veil of ‘expertise’; it is supermarket has similar transport characteristics to my 3 brought clearly into light to be given the weight it deserves. other supermarkets.” If the opinion sounds a bit subjective and ‘airy fairy’, so be it. • Step 3 – To produce an opinion. “Therefore, this We shouldn’t hide from that. supermarket proposal is likely to generate a parking need for, at most, 4.1 spaces per 100m2”. Which approach is required in evidence law?

In this article, I will argue that the relevant component of To be admissible under the Evidence Act 2008 (Vic), expert expert evidence is step 2, reasoning. I will argue that an evidence must pass two hurdles: expert’s conclusions are, of themselves, of limited relevance. • the relevance test at s55; and I will make my argument by referencing the rules of • the ‘specialised knowledge’ exception to the opinion rule admissibility of expert evidence that apply in the courts under at s79. the Evidence Act 2008 (Vic). Whilst those rules don’t apply in VCAT or planning panels, I believe they represent a sound Relevance body of theory to draw from for comparative purposes. ‘Relevant evidence’ is defined as evidence that could rationally Conclusions vs reasons ‘focus’ affect the assessment of the probability of a fact in issue.

A ‘conclusions focus’ in expert evidence provides minimal The key is the ability to ‘rationally affect’ the decision maker’s explanation of the basis for the opinion, and/or minimal reasoning. explanation of how the opinion is based on the expert’s specialised knowledge. “The building is too tall. I’m an To rationally affect a decision, you need to add information. urban design expert. That’s my opinion.” This is an extreme You need to provide a piece of information that the decision ‘conclusions’ focus. maker doesn’t already have.

“The building is too tall. I’m an urban design expert. It’s much This is illustrated by the High Court’s decision in Smith taller than the building next door. It’s out of character. That’s v The Queen [2001] HCA 50; 206 CLR 650. This was a bank my opinion.” This incorporates reasons, but still has a robbery case where the robbers were captured on blurry conclusions focus. The conclusion is treated as the ‘product’, CCTV footage. The issue was whether the accused was one or ‘main goal’, even though it’s backed up by some reasons. the men seen in the CCTV. Two police officers gave opinion It’s presented in a way where you either accept the conclusion, evidence saying it was the accused. The Court held these or you don’t. You’re not able to use the reasoning component opinions weren’t relevant, saying: separately from the conclusions. “It’s out of character”. Why? “It’s much taller than the building next door.” So what? “The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted,

24 / VPELA Revue June 2019 nor hindered, by knowing that some other person has, or The rationale for this rule is as follows. In an adversarial has not, arrived at that conclusion. Indeed, if the assessment system, we entrust the task of making findings (conclusions) of probability is affected by that knowledge, it is not by any to an impartial decision maker. Because an opinion is a process of reasoning, but by the decision‑maker permitting conclusion, it overlaps with the role of the decision maker. substitution of the view of another, for the decision‑maker’s That’s an uneasy tension. But evidence law allows an own conclusion.” (My underlining). exception to the ‘opinion rule’ for practical reasons. We can’t expect every decision maker to go and get a physics This ‘substitution of judgement’ question is particularly degree to decide factual disputes about physics. So, we allow relevant in the context of planning evidence regarding overall expert witnesses to express opinions about what the laws of ‘acceptability’ / ‘net community benefit’. Once the factual physics are (noting that they aren’t actually fixed, but involve and legal building blocks of a decision are on the table for a synthesis of a body of, sometimes, competing theories) and decision maker to assemble, isn’t the decision maker, after how they apply to the issues in dispute. hearing all the evidence and submissions, then in an equal or better position to gauge overall acceptability than the The key here is that ‘ordinary’ and ‘common sense’ reason- witnesses? What additional information (relevant evidence) ing processes are not wholly or substantially based on can the witness then add? ‘specialised’ knowledge. The expert may have clever reasons why facts should combine in a particular way. But if the This shows why reasons matter. To use the introductory reasons are based on ordinary knowledge, not specialised example, the decision maker knows the building in question knowledge, then they are in the nature of a submission, not is 2x taller than other buildings on the street. That’s not admissible expert evidence. new information. If all the witness does is assert that this alone means the building is out of character and therefore Conclusions unacceptable, then they haven’t added any relevant evidence. But if the witness brings forward their specialised knowledge Think of the ‘evidence’ (a noun) that an expert witness – and I mean actually articulates it, such as explaining the provides as ‘specialised knowledge’ – it’s the information link based on urban design theory between height and about physics, town planning, urban design etc. that the relevant planning considerations (character, sense of place witness puts on the table so the decision maker doesn’t have etc.) – then they add relevant evidence to the equation. to go off and get a degree to decide the issues in the case. Wholly or substantially based Because (I say) the ‘product’ of expert evidence is ‘specialised on ‘specialised knowledge’ knowledge’, it is necessary for the witness to explain how their specialised knowledge applies to the facts to produce The second hurdle to admissibility is that opinion evidence their opinion. In the courts this is called the ‘statement of must be “wholly or substantially based on specialised reasoning rule’. knowledge”. ‘Specialised knowledge’ is defined as knowledge acquired through “training, study or experience”. So, when you are giving, testing or using expert evidence, focus on the reasoning processes, not the conclusions. So, in evidence law, it’s not enough for an expert witness to have reasons. Advocates have reasons why facts and law Sean recently joined the Bar, bringing over 8 years’ planning should combine in a particular way. The reasoning provided and environment experience working as an engineer by expert witnesses – to be treated as evidence, rather than (specialising acoustics), planning lawyer and, most recently, submission – must both ‘add something’ (relevance) and be town planner. e: [email protected] based on specialised knowledge.

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VPELA Revue June 2019 / 25 VPELA Awards A number of awards were presented at our Masked Venetian Ball on 3 May 2019 Richard J Evans Award 2019 Congratulations to Professor Roz Hansen

Professor Roz Hansen was awarded the VPELA’s highest award the Richard J. Evans Award. Pictured here with Peter Barber and Tamara Brezzi.

Roz Hansen has been a leader in the planning industry for her assisted by her growing team of planners, urban designers and entire 40+ year career. landscape architects at Hansen Partnership.

Having studied a Bachelor of Arts majoring in Geography and Since her so-called retirement in 2011, she has chaired the Politics at the University of Melbourne, Roz dabbled with the idea Ministerial Advisory Committee on Plan Melbourne in 2012- of teaching but realised quickly that it wasn’t a career for her in 2014 and Plan Melbourne Refresh in 2015-16 plus the Geelong the long term. Authority, which is responsible for the planning and development opportunities arising in the CBD of Geelong. Roz spent 5 years working in government planning roles, first at the Town and Country Planning Board and then at the former Roz has sat on many Boards, including the Y Housing Victoria City of Fitzroy. She had found her passion in planning in the (YWCA), Melbourne Social Equity Institute Advisory Board and 1970’s working on heritage protection, social planning issues, Salvation Army Housing Victoria, has a particular interest in public place improvement programs and broad planning policy affordable and social housing and was a key contributor to and strategy. countless women in planning mentoring programs over the many decades of her career. In 1981, Roz moved to the private sector and worked as a planner at Wilson Sayer Core. Roz was ambitious, strong and independent Roz has been prepared to lead, to be out spoken, to stand by what and in 1986 she established her own consultancy with urban she believes in, and to mentor and sponsor junior professionals, economist, John Henshall. In 1998, Roz was appointed as Chair particularly women. Throughout her career, she has shaped and of the Heritage Council. influenced what it is to be a planner today. Roz continues to do so in her roles as Adjunct Professor at Deakin University and a In the period from 1999 to 2011, Roz worked locally and inter- Professorial Fellow in the Faculty of Architecture, Building and nationally; doing planning projects for the World Bank in Vietnam, Planning at the University of Melbourne.

26 / VPELA Revue June 2019 Fellowship Awards

Chris McNeill, her time on the VPELA board and through countless events Ethos Urban and seminars. In an era where Local Government officers are often reluctant to speak publicly, Natasha has been a fearless Chris McNeil is a highly respect- voice and advocate for local government, defending against ed urban economist who, over unwarranted attacks but accepting of reasonable criticism. She his 25-year career, has contrib- is open about the pressures that young planners face in dealing uted much to VPELA and the with an increasingly controversial, and complicated, planning planning and environment fields. system; mentoring dozens of young planners along the way. He has played a major role in She has been generous through countless VPELA seminars many State Conferences and is a and presentations, including recent seminars on car parking regular supporter and attendee and smart planning. Her views are fresh and insightful, at VPELA events and seminars. usually mixed with humor and occasional irreverence. These VPELA’s ‘answer to Bernard Salt’, Chris is valued for his traits have made Natasha a respected and well liked VPELA demographic knowledge, insightful commentary and friendly member and leader. and welcoming character. Natasha was an active member of the VPELA board from 2014 True to his unassuming nature, his contributions to the VPELA to 2018. Over that time, she organized a number of seminars, State Conference are often behind the scenes, but no less spoke at many others, and ably participated in a wide range of significant. He has played a major role in many conference discussions. Often the lone local government ‘voice’ at the table, committees, offering fresh suggestions for speakers and topics, she offered a refreshing perspective on matters important to the and regularly organizing a breakout session tailored to his planning system in Victoria. passion – demographics and urban economics. His command of population statistics, and ability to see a spatial pattern in Natasha started her career at Baw Baw Council, before moving complex data, is as impressive as it is fascinating. to the City of Manningham rising to become Manager Statutory Planning; holding that position for 10 years. More recently she Chris started his career at Ernst and Young, before moving to has moved to Monash City Council, where she is Manager City a policy position at the UDIA. It was here he made a name for Planning. Natasha has innovated in these roles, reforming himself for his practical, evidence-based thinking on the issues processes, whilst fostering and mentoring the next generation of of the day. His next move was to join his long-term friend and planners. Her logical approach, practical ideas and professional, colleague Geoff Underwood to form Spade Consultants. With his collegiate manner has earned her the respect of applicants, the deep knowledge of Victoria’s urban and regional landscapes, he community, her colleagues, and authorities alike. worked across a wide range of urban economic matters including demand and supply analysis, highest and best use assessments, conceptual feasibility assessments and urban policy analysis. Jason Walsh, Chris has been a sessional Planning Panels member valued Traffix Group for his solid grasp of urban economics and how demographics shapes our cities. His knowledge of the economics of Jason Walsh has worked in Vic- development – a field often not represented in planning debates toria’s planning environment for – brings a dose of realism to abstract arguments. In 2017, he over 20 years. After graduating joined Essential Economics, before it was absorbed into Ethos as an engineer, Jason worked in Urban, where he now a Director. local government before moving to the private sector, working first at Turnbull Fenner (1995-2000), Natasha Swan, before moving to Grogan Richards Monash City Council (2000-2011), before returning to Traffix Group as a director in 2011. Natasha has made a lasting contribution to VPELA, and the He is extremely well regarded in the industry as an expert in planning profession, for more his field, measured by his continued engagement as a traffic than 20 years. She is highly expert at VCAT, Planning Panels and the Supreme Court. Since regarded for her knowledge, prag- joining VPELA in 1998, Jason has contributed significantly to the matism, and industry leadership; Association on a number of fronts: capably representing the views of • He was one of the earliest members of the Young Professionals local government both through Group. continues over page

VPELA Revue June 2019 / 27 • He is a strong advocate for the Association in the work place as a sounding board to many VPELA related ideas, queries, and for his staff, not only actively supporting Traffix Group’s thoughts and proposals. continued sponsorship of VPELA (being yearly sponsors of the YPG and the “Casual Dinner’ at the VPELA Conference) but Jason is extremely knowledgeable, approachable, respectful, funding and encouraging staff to regularly attend seminars thoughtful, and measured in both his personal and work lives. and build relationships through the Association. Jason is held in high regard by the leading traffic engineers in • He has also been a staunch supporter of junior members the industry, who have great respect for Jason’s approach to of Traffix to play active roles in the YPG and continues to act traffic engineering and business.

Young Professional Award

Congratulations to James Dear, onemilegrid who was awarded the 2019 Young Professional Award to support research to understand how countries and cities outside Victoria successfully plan and deliver public transport infrastructure, such that we can apply those principles to the Victorian scene to better deliver high quality and timely public transport to the outer growths areas of our city.

Thanks to our sponsor Beveridge Williams and Grant Hailes who presented the award.

Grant Hailes, Beveridge Williams and James Dear, onemilegrid

28 / VPELA Revue June 2019 Places Fishermans Bend

From plan to place Meredith Sussex AM, Chair, Fishermans Bend Development Board The challenge At the same time, the challenge to realise the vision of an attractive mixed use area with 80,000 residents and 80,000 jobs Fishermans Bend comprises 485 hectares of flat, underutilised within 30 years is also unique. land adjacent to the Central Business District of Melbourne. Its renewal is a unique opportunity for Victoria and Australia. Unlike almost all broad-acre urban renewal areas around the world which have mostly been on publicly owned land (Docklands, The redevelopment provides the opportunity to develop a thriving Barangaroo, Canary Wharf, Boston Waterfront, New York Naval new workplace location for the high-end service industries which Yards, Malmo etc), Fishermans Bend is privately owned by 320 have been driving Melbourne’s growth, to build on the strong different owners. manufacturing history of the area and to grow the significant creative industries presence already clustered in the area. On publicly owned land, Government owners have control over master planning, land release, the use of the land(employment/ It provides the opportunity to develop another area of highly residential), contamination remediation, utility construction, desirable inner city residential living, near infrastructure, new order of development, public realm and even building design jobs and services. and standards. All of these issues require a completely different approach in an urban renewal area which is privately owned with It provides the opportunity to showcase best practice in the multiple owners. development of high and medium rise, high density, liveable communities. And Government owners can and do surrender value in order to achieve wider objectives seen as essential by the community, And it provides the opportunity to develop a hub for 21st century like sustainability and affordable housing. While these and other knowledge and innovation economy jobs. objectives can be met by a range of policy approaches, the

Fishermans Bend comprises five linked precincts: Montague, Lorimer, Sandridge, Wirraway and the Employment Precinct.

VPELA Revue June 2019 / 29 underlying question of development economics and consequent Much has been achieved to date in Fishermans Bend but clearly, development viability is fundamental in the renewal of privately- much still has to be delivered. There are 57 infrastructure projects owned land. identified in the Strategic Plan with timelines proposing the delivery of these projects over the short, medium and long term. The story to date In parallel with the planning for the area, residential and commer- There are few national or international precedents for the cial development activity continues apace across Fishermans Fishermans Bend ambition. Bend. The Montague precinct is leading the rest of the area in terms of development activity given its attractive location within Fishermans Bend already punches above its weight. It currently walking distance of the CBD, public transport access by two includes 3.5 million square metres of Gross Floor Area. It existing tram routes and proximity to nearby amenities such as accounts for 10 per cent of the Gross Value Added generated in South Melbourne market. inner Melbourne. Since 2014, it has benefited from $272 million of government investment and approximately $2.6 billion in Major investments by the State Government and Port Phillip residential and commercial development value approved by the City Council have added to the attractiveness of the precinct and state and local councils. demonstrated to local residents and developers that governments are committed to implementing the Strategic Plan. Last year the By 2051, the precinct will see over $30 billion in public and private Montague community welcomed the opening of two significant total construction value. community assets for the precinct – the South Melbourne Primary School and a new community park, Kirrip Park. Encompassing parts of Port Melbourne and South Melbourne, Fishermans Bend today is largely industrial with a few hundred The primary school is the first vertical government school residents. Integral to the planning and delivery of the ‘future in Victoria, and will accommodate more than 525 students. city’ is respecting and celebrating its rich social history and Architects have created space and facilities that the community built heritage and recognising the continuing significance of the can share so that the school is fully embedded in neighbourhood traditional owners and their cultural heritage. life. The Strategic Plan indicates that Fishermans Bend will be home to another three primary schools and a site has been It is also home to a myriad of existing small, medium and large secured and detailed design planning is underway for a public businesses including successful, highly innovative global com- secondary school adjacent to JL Murphy Reserve. panies such as Boeing, Blackmagic, General Motors Holden, Also in the Montague precinct, the Gravity and Nightfall resi- Siemens, Bega (Vegemite is made there) and Toyota and less well dential developments have recently been completed and a sod known but important companies. turning event was held to mark the start of construction of Lilix, As the area evolves it will play a vital role in delivering jobs for a $61 million, eight storey development, which will include 95 Victoria, building on its legacy of technology and innovation. apartments, a rooftop terrace and communal spaces. Lilix is more than 80 per cent sold. Attracting thought leaders, nurturing talent, forging international networks and partnerships will be critical to the new economy. In the Sandridge precinct, the major townhouse development on the former Symex site has welcomed new residents. Three The plan additional residential and commercial projects have commenced, A Strategic Plan for Fishermans Bend and accompanying plan- multiple other developments are being marketed and selling off- the-plan, and another major ‘sod turning’ is anticipated very soon. ning controls were finalised in October last year after an extensive two years of community, business and landowner consultation. Community services and facilities such as supermarkets and This Plan provides the direction and framework to deliver the childcare centres feature in a number of the exciting development schools, parks, housing choices, transport connections, services proposals across Fishermans Bend which are currently under and facilities that the area will need. consideration.

The University of Melbourne is moving its engineering campus to Fishermans Bend.

30 / VPELA Revue June 2019 Dianna Snape Photography, Hayball Dianna Snape Photography, A new community park, Kirrip Park opened last year adjacent to the new South Melbourne Primary School is Victoria’s first vertical government school. primary school.

Infrastructure The Fishermans Bend Employment Precinct is zoned for commercial and industrial uses and is designated as a National As development ramps up in the medium term, new tram routes Employment and Innovation Cluster (NEIC). The intention is that will be required to extend into the area via a new link across the it will be an innovation precinct focused on design, engineering Yarra River providing fast and direct links between Fishermans and advanced manufacturing. Bend, Docklands and the Melbourne CBD for public transport, walking and cycling. Government stewardship of the 32-hectare former GMH site presents the opportunity to develop a thriving innovation precinct Fishermans Bend has also been selected as the strategic leveraging off world-leading research institutions. Notably, the location for a community hospital to service the local and sur- site is significantly larger than Canary Wharf in London and rounding neighbourhood, connected to the emergency network. Barangaroo in Sydney. The State Government recently held an Expression of Interest A masterplan for a Precinct of Excellence on the former GMH process seeking locals to join a Community Consultation site is being developed in consultation with the public sector, Committee to help decide the services for the Fishermans Bend industry partners and the investment community. It will community hospital. see students and researchers working alongside business and industry leaders sharing skills, knowledge, research, A key component in the development of Fishermans Bend is the connections and supporting investment. delivery of infrastructure at the right time to align with commun- ity needs, population and employment growth. Essential Work continues with the University of Melbourne on their billion- infrastructure will be delivered through funding mechanisms dollar custom built engineering campus opening in 2023. This to be identified in an Infrastructure Contributions Plan (ICP) for will bring more than 1,000 new engineering and IT students the four Capital City Zoned mixed use precincts – Montague, and academics collaborating with industry and supporting a Wirraway, Sandridge and Lorimer. The ICP is part of a wider developing start up community. Discussions are also being Funding and Finance Plan for Fishermans Bend which will held with another major university to move their Engineering support the infrastructure delivery requirements of the precinct. Faculty to Fishermans Bend. Together, this would represent around 20,000 students, researchers and academics – a pool of Following the release of the Strategic Plan in 2018, precinct engineering talent which is internationally significant. implementation plans are in preparation for the four mixed use precincts. These plans will further detail how the Strategic In this context, a number of important institutions and companies Plan will be applied to each of the precincts. The Fishermans have expressed a keen interest in being part of the Precinct of Bend Taskforce is engaging with the community, landowners, Excellence, and a process is in development to ensure that only those organisations which will make the most significant businesses, developers and other stakeholders to develop and contribution to the vision for the precinct are invited to participate. finalise these plans. More broadly, Fishermans Bend sets new benchmarks for inner A plan for business and employment city urban renewal which will bring not only Melbourne-wide Melbourne has always been a city which makes things and benefits but very significant gains to the Australian economy. Fishermans Bend has played a big role in our manufacturing Sustainability history. Our job now is to ensure that manufacturing will continue to create wealth and full time jobs in the area, but we know that World leading integrated water management and a water manufacturing has changed dramatically in the last 20 years and recycling facility is being planned that will supply Class A will look even more different in the future. recycled water across the precinct and reduce potable demand

VPELA Revue June 2019 / 31 Partnerships The City of Port Phillip and City of Melbourne are crucial partners in the delivery of the Fishermans Bend vision, providing local expertise and insight into planning, economic development and infrastructure provision.

The Fishermans Bend Development Board looks forward to continue working closely with our Council partners, the local community, businesses and landowners, the Fishermans Bend Taskforce and the new Minister for Priority Precincts to deliver on the plans for Fishermans Bend and to ensure that the interests of the community continue to be at the forefront of development.

Momentum is now building on the transformation of Fishermans Construction activity continues apace in Fishermans Bend. Bend to become a dynamic, connected, high density, mixed use district, built on the best characteristics of Australian cities – for Melbourne. New developments are already incorporating liveable and lively, prosperous and diverse, urban and green. smart rainwater tanks and third pipe infrastructure, and Meredith Sussex AM is an expert on city planning and chair buildings over 5,000 square metres are now required to be built of the Fishermans Bend Development Board. Ms Sussex to a 5 Star Green Star standard. has extensive experience at a local, state and national level, The delivery of these leading initiatives and infrastructure relies including as a former Victorian Coordinator General of on collaborative partnerships. It is important to balance certainty Infrastructure and Deputy Secretary of the Department of of delivery with flexibility enabling the private sector to innovate Premier and Cabinet. and respond to site or market conditions in ways that deliver the agreed vision.

Congratulations VPELA! From We thank you for providing a valuable forum for the planning and the team at environmental law industry in Victoria. May the last 30 years Ecology and of outstanding events, advocacy, networking, news and views Heritage continue for many years to come. Partners

Adelaide • Brisbane • Canberra • Geelong • Melbourne • Sydney www.ehpartners.com.au l 1300 839 325 l

32 / VPELA Revue June 2019 The Business Environmental news and views

Shannon LeBel, Senior Ecologist, Ecology and Heritage Partners Pty Ltd

Native Vegetation Matters: McDonald v • The scattered trees comprising a component of an Ecological West Wimmera SC (Red Dot) [2019] VCAT 70 Vegetation Class (EVC) classified as ‘endangered’ in Victoria; (16 January 2019) and, The proposed offset not adequately compensating for the On 16 January 2019, VCAT published its decision for McDonald v • proposed loss of Large Trees in an endangered EVC. West Wimmera SC (Red Dot) [2019] VCAT 70. This case involved the review of a decision to grant a permit by West Wimmera Shire Council for the removal of 23 scattered Grey Box Eucalyptus microcarpa trees from a 257 hectare farming property west of Kaniva. The property is currently farmed under crops, with the purpose of removing the trees to allow for easier, more efficient and safer access for agricultural machinery for cropping activities.

The key issue in this case was whether the removal of native vegetation was acceptable having regard to recent (December 2017) changes to policy and regulations governing the removal, destruction or lopping of native vegetation, which included a shift towards greater recognition of the biodiversity value of large scattered trees and endangered vegetation types.

This case exhibited many similarities to McDonald v West Wimmera SC [2017] VCAT 1298, with both involving the removal of a similar number of scattered native trees associated with improving cropping efficiency. However, the 2017 case was assessed under the 2013 version of Victoria’s native vegetation Implications of the decision policy, and with several key changes made to the amended 2017 The shift in the 2017 native vegetation policy has resulted in the policy, the decision in the 2019 case was set aside. application of the avoidance principle to all native vegetation Reasons for the decision proposals, rather than only those where the native vegetation made a significant contribution to Victoria’s biodiversity (2013 The decision of Member Harty was reinforced by the ‘subtle, yet policy). significant shift in the following relevant policies of the Planning Policy Framework (PPF)’: The proponent’s ‘avoid and minimise statement’ did not clearly establish whether trees of greater ecological value (i.e. hollow • The broader objectives of Clause 12 which refer to the bearing, ‘stepping stones’) were prioritised for retention, nor protection and conservation of all of Victoria’s biodiversity, consider how or whether the endangered EVC (to which the trees and the wider application of the three-step approach of are attributed to), was considered in the design of the proposal. avoiding the removal of native vegetation, minimising Further, although the land has been cropped and it is anticipated impacts where avoidance cannot be achieved, and providing that it will continue to be cropped, the Tribunal found, on the basis a compensatory offset for native vegetation removal; of the proponent’s submissions and proportionate area occupied by the trees at issue, that the area at issue was not critical in • The local policy at Clause 21.07 – Environment, which reflects terms of economic outcomes (thereby not undermining the land the reduction in the extent of native vegetation on private use and the proponent’s enterprise). land within the West Wimmera Shire, and recognises the need to control the loss of native vegetation and associated The assessment placed an over reliance on the modelled value habitat, whereby it is estimated that only 3% of the original of the scattered trees, resulting in an assessment that did not vegetation remains intact within the Shire; recognise the greater value of large trees in a cleared landscape associated with an endangered EVC. • The greater value that scattered trees, and particularly, Large Trees play in a cleared, rural landscape not being This decision emphasises the importance of accurately adequately reflected in the default condition score (0.2/1) incorporating local-scale on-site information in addition to the attributed to these values under Victoria’s native vegetation state-wide modelled data when determining the intrinsic value policy; of ecological features, particularly in a rural landscape.

VPELA Revue June 2019 / 33 While this decision is particularly relevant to future applications However, it is clear that all future applications proposing to in cleared landscapes throughout rural Victoria, it may be less remove, destroy or lop native vegetation must adequately assess relevant to applications in urban landscapes where although the biodiversity value of native vegetation, and provide compelling highly fragmented and often cleared, the presence of other justification if impact avoidance and/or minimisation cannot be features (planted and non-native vegetation, artificial roosting demonstrated on those features that are assessed of being of habitat) means that the importance of scattered trees, and the highest ecological value. their role as ‘stepping stones’ in the urban mosaic is somewhat diminished. e:[email protected]

Welcome to our new members…

Nicholas Andrews AECOM Emily Mignot City of Monash Michael Ashforth King & Wood Mallesons Ashley Millard Urban Planning Student Tracey Birt Jacobs Alison Milner Planning and Property Partners Jessica Buck Soho Lawyers Briony Oddey Hall & Wilcox Zoe Cochrane Planning and Property Partners Erica Orfanos Message Consultants Amaya De Silva Mornington Peninsula Shire Lewis Page Corrs Chambers Westgarth Scott Edwards Planning and Property Partners Claire Pepin Hannah Eggleston Planning and Property Partners Joshua Perring Planning and Property Partners Michael Goddard Biosis Michael Prior Melbourne Water Corporation Harry Green Hall & Wilcox Bianca Pyers MinterEllison Gemma Hallett Hall & Wilcox Chris Sandiford Senversa Stephanie Holland WestWind Energy Edwina Smith Owen Dixon Chambers West Eli Kaya Rigby Cooke Lachlan Stephenson DELWP Kate Kennedy Planology Natalie Taggert AECOM Beth Lamb proUrban Sarah Varney Foley’s List George Le Traffic Works Felicity Watson National Trust of Australia (Victoria) Mathieu Maugueret PLC Consulting Sophie White Message Consultants Geordie McMillan Environmental Earth Sciences Rachel Yard Gadens Sandra McPhee Rural Ecology

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34 / VPELA Revue June 2019 The Business Tribunal Talk Leadership change for VCAT’s Planning and Environment list

VCAT President Justice Quigley has appointed Senior Member A farewell event has been organised to celebrate Helen’s contrib- Teresa Bisucci to lead the tribunal’s Planning and Environment ution on 27 June at the State of Grace, Basement Bar, 27 King List from 1 July 2019. Street, Melbourne. Bookings are required.

Teresa will commence in this role following the retirement of Informed by experience: face-to-face Deputy President Helen Gibson AM. with development outcomes VCAT members and staff congratulate Teresa on her appointment The value of site inspections in planning decision-making should and extend our gratitude to Helen, who will continue to lead the not be underestimated. The Tribunal regularly undertakes List until the end of June. inspections of review sites to inform its findings.

Introducing Teresa Bisucci Less well known are our regular inspections of larger areas as part of ongoing professional development to understand Teresa joined VCAT in 2018 as a senior member and was formerly the context in which individual decisions are made. We do this a principal at Best Hooper Lawyers. Her legal career has focused from time to time, to assist members to consider and better on planning law and encompassed regular appearances at understand development outcomes on the ground. VCAT, Planning Panels Victoria, Heritage Council, Magistrates’ Court, and the Victorian Commission for Gaming and Liquor This year we walked the streets of Brunswick. A tram or train Regulation. to our starting point then a stroll around this vibrant activity centre. We considered completed developments approved by the Teresa is an experienced and highly skilled professional with responsible authority, Planning Panels and the Tribunal in the a longstanding commitment to community service. Her wide past 5-15 years. Discussion centred on what worked well, what experience will stand her in good stead in this important role. not so well and what has stood the test of time.

Members find the sessions enable better visualisation of built form considerations and enable discussions with colleagues. It is also interesting to view completed materials and finishes and landscaping (often dealt with by secondary consent), and the impact these elements made on the final outcome.

Teresa Bisucci

Thanking Deputy President Gibson We celebrate the enormous contribution of Deputy President Gibson, who has led the Planning and Environment List from 2004 to present.

Helen was the inaugural Chief Panel Member of Planning Panels Victoria from 1996 until her appointment at VCAT. She Tribunal members in the field, participated on many planning reviews and advisory committees, including as an Expert Group Member on the Review of the State In previous excursions we have: Planning Policy Framework from 2008 to 2010. • walked the streets of Williamstown looking at heritage infill In 2016, Helen was named a Member of the Order of Australia for developments, extensions and additions significant service to planning and environment law in Victoria, • considered the form and extent of the change occurring in the and as a role model for women in the profession. Altona Pier Street Activity Centre

VPELA Revue June 2019 / 35 • travelled the western suburbs to view new growth areas, McDonald v West Wimmera SC (Red Dot) [2019] VCAT 70 (16 the Point Cook Town Centre and new rail infrastructure January 2019) development Removal of native vegetation; scattered large trees; Ecological • traversed Doncaster Hill to consider the impact of structure Vegetation Class (EVC) bioregional conservation status; biodiver- planning and to consider small and larger apartment develop- sity value, safe and sustainable agriculture ments, particularly focussing on internal amenity • toured the Forrest Hill Activity Centre and surrounds 285 Lennox Pty Ltd v Yarra CC (Red Dot) [2018] VCAT 2029 (18 • looked at the rate of change in the Caulfield area December 2018) • explored developments in Fitzroy, and Time limit for objectors to lodge section 82 application for review • inspected developments with car stackers, car lifts and associ- under Regulation 35 of the Planning and Environment Regu- ated infrastructure to see them in action in the inner city. lations 2015

Apart from seeing the results of individual decisions in context, 631 Plenty Road Preston Pty Ltd v Darebin CC (Red Dot) [2018] these tours can highlight extent of change across Melbourne in VCAT 1849 (22 November 2018) recent years and provide broader contextual understanding for Interpretation of Standard D24 of clause 58.07-1 which relates to good decision making. functional layout objectives. Red dot decisions October 2018 to May 2019 Makhmalbaf v Monash CC (Red Dot) [2018] VCAT 1641 (19 Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2019] October 2018) VCAT 445 (29 March 2019) Identifies inconsistencies with three preferred character state- Whether the Tribunal may remit a matter for re-consideration by ments applicable to the same property, and consideration of the the decision-maker if the Tribunal does not have jurisdiction to weight to be given to each. determine the matter Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2018] Department of Environment, Land, Water and Planning v Yarra VCAT 1570 (16 October 2018) Ranges SC (Red Dot) [2019] VCAT 323 (6 March 2019) Need for an approved cultural heritage management plan before Use and development of a dwelling in Rural Conservation Zone application under s 79 of the Planning and Environment Act 1987 is lodged Fivex Pty Ltd v Melbourne CC (Red Dot) [2019] VCAT 138 (31 January 2019) O’Kane v Macedon Ranges SC (Red Dot) [2018] VCAT 1562 (9 October 2018) Characterisation of signs; expiry of permit for signs; role of esto- ppel in planning cases Application to construct eight dwellings on a lot in a Neighbour- hood Residential Zone and the meaning and effect of the T C Rice Pty Ltd v Cardinia SC (Red Dot) [2019] VCAT 74 (18 transitional provision at clause 32.09-6 January 2019) Planning application and gaming application seeking approval for new venue containing gaming room with 80 electronic gam- ing machines

36 / VPELA Revue June 2019 The Business Legal world

Tess Kerridge, Senior Associate, Holding Redlich

1. McDonald v West Wimmera SC (Red Dot) [2019] VCAT 70 jurisdiction to determine the matter. The Tribunal answered (16 January 2019) this in the negative.

In a decision by Member Christopher Harty published on 16 In 2018, in Grebe Investments Pty Ltd v Bass Coast SC (Red January 2019, the Tribunal considered whether the removal Dot) [2018] VCAT 1570, Grebe Investments applied for a of 23 scattered Grey Box Trees to allow for easier, more permit to subdivide land. Bass Coast Shire Council failed to efficient and safer access by agricultural machinery for decide the permit application and the Applicant then applied cropping purposes should be allowed. The West Wimmera to the Tribunal to review that failure under section 79 of Shire Council (the Responsible Authority) had resolved to the Planning and Environment Act 1987 (Vic). The Applicant’s issue a Notice of Decision allowing the removal of the trees, review application was dismissed as misconceived as there which was challenged by objectors and formed the subject of had been a failure to submit a Cultural Heritage Management this application for review. Plan (CHMP) and that, consequently, the Tribunal did not have jurisdiction to determine the application. In reaching its decision, the Tribunal considered the detailed assessment pathway for removing native vegetation under A CHMP was thereafter submitted and approved, however clause 52.17 of the West Wimmera planning scheme, the Council refused to re-consider the original permit application Guidelines for the Removal, Destruction or Lopping of Native in the absence of a Tribunal order remitting the matter to Vegetation 2017, and the Assessor’s Handbook- Applications to Council for reconsideration. Without such an order, Council remove, destroy or lop native vegetation, October 2018. required the Applicant to submit a fresh permit application. The Applicant applied to the Tribunal for a correction order The Tribunal found that under Victoria’s current biodiversity that would result in a remittal order being added to the policy, the removal, destruction, or lopping of native vegetation original order so that Council would be required to reconsider is to be avoided where possible. If it is unavoidable, it should their permit application. The Tribunal ultimately refused to be allowed in such a way as to minimise the impact upon make that remittal order under s 51(2)(d) of the Victorian biodiversity and offsetting should be encouraged. Further, Civil and Administrative Tribunal Act 1988 (Vic) (VCAT Act). the Tribunal found that Site Assessment Reports require The Tribunal held that it may only remit a decision if it was more than a tick the box approach. The Tribunal gave greater determining a review application and was setting aside the weight to policy, the decision guidelines under clauses responsible authority’s decision. The Tribunal found that as it 52.17-4 and 65 of the planning scheme, the 2017 Guidelines did not have jurisdiction to determine the original application, and Assessor’s Handbook rather than the scoring system it could not set aside the decision on review nor could it remit generated from the native vegetation modelling provided by the application for re-consideration. The Tribunal considered the permit applicant. whether the ‘slip rule’ under s 119 of the VCAT Act could allow it to ‘correct’ the original order by including a remittal The Tribunal noted that the removal of the trees would result order, however the Tribunal found that it could not as there in further habitat fragmentation due to the geographical was nothing express or implied in the Tribunal’s reasons that positioning of the trees and their role as ‘stepping stones’ of indicated that the Tribunal intended to include a remittal habitat connectivity by their ability to provide stopping point order in the original order. There was accordingly no proper for avifauna movement. In essence, the Tribunal found that basis for a correct order. the removal of the trees would significantly and negatively impact on biodiversity and, due to the consequential effects The Tribunal noted that remittal was unnecessary as the on the surrounding area, be impossible to offset. On that original 2018 permit application remained on foot throughout basis, the removal of the trees was found to lack a strong this proceeding. The Tribunal’s determination that it had net community benefit and was rejected as an unacceptable no jurisdiction did not change this. A fresh failure review outcome. The Tribunal set aside the decision of the application could be lodged after the prescribed period with responsible authority to grant a permit and ruled in favour of time starting to run from the date the approved CHMP was the objector applicants. filed with Council.

2. Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) 3. Department of Environment, Land, Water and Planning v [2019] VCAT 445 (29 March 2019) Yarra Ranges SC (Red Dot) [2019] VCAT 323 (6 March 2019)

Grebe considered whether the Tribunal can remit a matter In DELWP, the Tribunal refused to grant a permit for the use to the responsible authority for re-consideration in circum- and development of land for a dwelling on a site in Healesville stances where the Tribunal has found that it does not have within the Rural Conservation Zone (RCZ) and Bushfire

VPELA Revue June 2019 / 37 Management Overlay (BMO). The refusal was predominately pleasure, the track was not open to the public and thus not a based on the lack of access to the subject land and the permit public road or highway under the Local Government Act 1989 applicant’s insufficient response to the land’s bushfire risk. (Vic). Accordingly, the proposed use was prohibited.

Under Clause 35.06-2, land within the RCZ must be access- The subject land was exposed to significant bushfire risk. ible via at least one all-weather road with dimensions The Tribunal found that attempts to offset the extreme risk, adequate to accommodate emergency vehicles (the access including the construction of a bushfire shelter and evacuating requirement). In this case, the permit applicant sought to the site on Code Red days, were insufficient – particularly in satisfy the access requirement by relying on an access track light of the lack of access and the land’s previous fire history. located on abutting unreserved Crown Land. The applicant The Tribunal noted that the determination of whether or not therefore needed to show that he had legal rights of access a permit application successfully addresses a bushfire risk over the track and that it was adequate to accommodate does not involve a mere ‘tick the box’ approach. Rather, the emergency vehicles. The Tribunal found that he had no right Tribunal is required to apply an integrated decision approach of access to the track. Furthermore, they found the access by turning its mind to BMO policy and whether or not the track was not a ‘road’ and was incapable of satisfying the permit application satisfies the overall policy framework— access requirement under cl. 35.06-2. As the Crown retained particularly with regard to the protection of human life. the right to issue licences over the access track at its

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38 / VPELA Revue June 2019 Places

Des Grogan, Car stackers – do they comply? Fellow VPELA

I was very interested to read the article by Henry Turnbull, in the March 2019 edition of the VPELA Revue referring to the increasing use of car stackers; particularly picking up Henry’s statement which was “some stacker spaces are very narrow and do not meet current parking standards”. How can this occur?

Clause 52.06-9 of the Victorian Planning Provisions specifies that for 90-degree angle parking the minimum dimensions of accessways (aisles) must be 6.4 metres, with a car space width of 2.6 metres. These dimensions “are to be used in preference to the Australian Standard AS 2890.1-2004”.

Design Standard 4 of the same Clause refers to ‘Mechanical parking’, details of which are not provided, nor is there any reference to ’car stackers’.

I am aware of at least one residential development, approved by VCAT, where car stackers were proposed for 90-degree angle parking with a 6.4 metre aisle and a 2.4 metre “useable stacker width”. Based upon the article by Henry Turnbull, this is not the only sub-standard development. How could VCAT approve a parking layout where the width of the parking bay is narrower than the minimum width specified in the Planning Scheme?

Furthermore, at the same site the “usable” stacker width was I understand that the maximum vehicle weight able to be measured, post construction, as 2.2 metres. Who is responsible accommodated on a car stacker is 2.000kg. The majority of “full to check that the end product complies with the Planning size”, SUV’s weigh more than 2,000kg. and therefore, cannot Scheme requirements or the approved plan dimensions? use a car stacker. Most apartment developments are marketed “off the plan”, with lending institutions only providing funding when at least 80 percent of apartments are pre-sold. Very few, if any, contracts of sale for apartments would specify that the car stackers proposed in the development could not accommodate vehicles weighing more than 2,000kg. Where would the purchaser park his/her vehicle if it exceeds this weight, or is the purchaser required to sell the vehicle?

Car stackers may be a great idea on a tight site and many more developments are likely to include stackers. However, why are they allowed to contravene the current minimum parking bay dimensions, when there appears to be there no follow- up occurring to ensure that the end-product complies with the approved dimensions; and who then is accountable to the purchaser?

This issue is nowhere near as concerning as the current issue regarding highly flammable cladding on apartment buildings, however, it goes to the matter of accountability of State Government Authorities.

Des Grogan is a retired consulting engineer, specializing in major road design and traffic & transportation issues.

VPELA Revue June 2019 / 39 Seminar Commercial 3 Zone: Changing the way our city works Julia Abbinga and Mark Woodland, Echelon Planning

“Andrew lives in Glenroy and he wants to change the way our Commercial 3 (C3) Zone provides for a wide diversity as “as city works… of right” uses. This includes arts and craft centres, education centres, home based business, certain types of industry, manu- … It’s 5.15pm on a particularly cold, wet and miserable night facturing sales, markets, offices, and research centres. in the Melbourne CBD. The client meeting has run over time and now Andrew is trying to work out how he can pick up his Bryn noted that the C3 Zone is just one of the ‘tools’ in the tool daughters from the aftercare program in Glenroy before they box that can help facilitate business growth and employment shut at 6pm. It is over an hour by public transport to get to the opportunities. school and at this time of day catching a taxi or an Uber wouldn’t be much quicker, not to mention expensive. Kimberley Paterson from CBRE Advisory observed that co- work spaces are part of a wider and rapidly growing ‘flexible This is becoming a regular problem for Andrew and his family. workspace’ sector which is geared toward making it easy for It seems like every time he needs to pick up his kids he gets large and small companies alike to scale up and down, and for caught in the ‘work-travel-family’ Bermuda triangle. individuals to move across locations as needed.

Andrew works for one of the big banks and a large part of his work could easily be done remotely. He has tried working from home before but it is isolating and hard to stay motivated. If only there was a shared workspace close to home that he could work from 2 or 3 days a week…”

This is just one example of the many situations facing Melbourn- ians who are looking for flexible places to work closer to where they live. In a world where working for yourself or working remotely is becoming a normal part of the work future, how should our cities cater for places to work in this new economy?

This was the subject of the VPELA forum in April, where a panel of industry experts convened to share their insights. Figure 1 – Tonlsey Innovation Precinct in Adelaide is being created on the site of the former Mitsubishi Motors Plant. Land use zoning in Australia is largely used to separate activities, often based on the notion that residential, commercial and Kimberley noted that operators were increasingly recognising manufacturing activities are inherently incompatible. the importance to providing services like child care, gymnasiums, Bryn Davies from the Department of Jobs Precincts and Regions health and wellbeing services in or close to flexible work spaces highlighted that in the new economy, this no longer holds true. to enable employees to achieve a better work/life balance. In fact, it’s the opposite – new economy jobs thrive on mixed use, Whilst most the new flexible workspace has been created in the diversity and amenity. Today the lines between where people central city, some are beginning to be established in Melbourne’s work and where people want to live are becoming increasingly middle ring suburbs and outer suburbs. These facilities enable blurred and therefore more flexibility is needed. employees to work closer to home whilst still maintaining He noted how our planning system is inherently slow to respond contact with ‘head office’ in the central city. They also enable to changes, whereas the economy and the way people work is self-employed workers to create business connections and high dynamic and fast moving. support networks within their neighbourhood.

The Commercial 3 Zone is intended to support these changing Owen Smith from Salta Property Group has dealt with the chall- dynamics – it is a true mixed use zone, which is intended to enges of creating business-friendly precincts in our suburbs facilitate the establishment and growth of creative industries, for well over a decade. Attracting businesses to locate in our small manufacturers and startup businesses. It prioritises suburbs requires high quality amenity and facilities to be on particular uses that form part of the emerging economy hand – without them, employees and workers alike will continue (including new models of industrial, commercial/office and to seek out better serviced locations in the central city. certain other employment-generating uses). Salta’s Nexus Corporate in Mulgrave is a case in point. The 7 The nature of businesses operating within the emerging econ- hectare site was formerly a traditional warehouse and industrial omy is much more diverse than in the past, which is why the precinct and it forms part of the Monash National Employment

40 / VPELA Revue June 2019 Figure 2 –What makes up an ‘enterprise ecology’. Source: MGS Architects, 2019 (with reference to David Birch and Marco Broekman) and Innovation Cluster (NEIC). Salta are midway through renew- What Andrew wants is a new type of suburb, where it is possible ing it as a contemporary employment precinct, which will offer to live, work and socialise in the one neighbourhood. cafes, childcare, parkland, sporting facilities, a hotel, restaurants and convenience retailing. The challenge for all of us is to create these new types of neighbourhoods. The solution won’t be as simple as ‘zone land The Nexus development is beginning to tick off a number of for mixed use and they will come’ and it will need government, the ‘nine success factors’ referred to by Davies. Katherine landowners, businesses, developers and the community to work Sundermann from MGS architects sees the task ahead as being together to create something innovative and something great – a to ‘curate complexity’ so that our future employment precincts new typology of the city. can thrive. She spoke to the idea of precincts that allow for an ‘enterprise ecology’, where there are opportunities and afford- Echelon Planning convened the VPELA Forum. able workspaces for business of various sizes to work in close Echelon also runs a shared-work studio space in Brunswick proximity. Providing workspace for business ranging from ‘start- (www.prenticestudio.com.au) and have prepared a report up’ and ‘scale-up’ businesses right through to industry giants, which addresses these themes in more detail – Google enables the sharing of ideas of businesses and creates pathways ‘Melbourne’s enterprise areas the new work order’ for businesses to grow and scale up their operations. for a link to this report. Mark Woodland is a Director at Echelon and The affordability of workspaces as well as housing near or Julia Abbinga is a Senior Planner at Echelon. within these precincts is essential. It is often the case that early career researchers and – key workers aren’t able to live close by to the precincts where they work. Locations which allow for agglomeration of uses and which are close to major anchor uses such as universities/hospitals are also more likely to attract business investment.

Andrew from Glenroy couldn’t make the VPELA seminar – he was in a rush again to beat the after-care deadline. Buthe looks forward to the day where every suburb in Melbourne has places where people can work close to home, drop by their kids’ school on sports days, get to the gym, have a quick drink after work with their new co-work friends and deal with the usual ‘life admin’ without having to spend so much time commuting and feeling under constant time pressure. Shantanu Joshi, Alex Gelber, Jamie Truong, Karmen Markis and Disha Kamal.

VPELA Revue June 2019 / 41 Seminar What’s the current climate? An update on climate change Kate Kirby, litigation and directors’ duties Senior Associate Gadens Lawyers

While the development and implementation of climate policy in Australia has been slow, key developments in the area of climate change have be forged in the legal sphere. Elisa provided examples of the existing duties and obligations in the Corporations Act requiring the consideration and disclosure Gadens Lawyers hosted a VPELA seminar on 23 May, where of climate risks including the requirement to execute powers we heard from Elisa de Wit, Head of Climate Change and and carry out duties with care and diligence and in good faith Sustainability at Norton Rose, David Barnden, Principal in the best interests of the company inherently require the Lawyer and Director of Equity Generation Lawyers and the Hon consideration of climate change risk and impacts.2 Elisa also Simon Molesworth QC AO, former judge of the NSW Land and provided the example that the ASX has stated that listed entities Environment Court, on recent developments in climate change should disclose material exposure to environmental and social law. The following article provides an overview of the seminar. risks, and details of how it manages those risks.3 Non-disclosure may amount to misleading and deceptive conduct.

Elisa also highlighted the work of the Task Force on Climate- related Financial Disclosures (TCFD) to develop and identify climate change financial risk disclosures for use by companies in their reporting. Elisa reported that many large companies in Australia (and overseas) have shown their support for this approach and overtime, it is likely that the TCFD will become either mandatory or standard practice in Australia. In February 2019, the Governor of the Reserve Bank of Australia backed the TCFD guidelines and stated that it was ‘exactly the right direction to be heading’. Recent climate change litigation – development approval decisions Simon provided an insight into the 2019 decision of Chief Eliza de Wit, Meg Lee, the Hon Simon Molesworth QC AO and David Barnden. Justice Brian Preston of the NSW Land and Environment Court in Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7.

Directors’ duties and reporting The case was brought by Gloucester Resources Limited (GRL) Elisa provided a thought-provoking overview of directors’ duties against the Minister for Planning’s refusal to grant planning and reporting requirements for companies on climate risk. consent for a new coal mine project in the Gloucester Valley. The Elisa identified that key business risks posed by climate change case is groundbreaking because the climate change (including broadly comprise: scope 3 emissions), while not the only reason for refusal, was a significant consideration of the court in determining that the coal • Physical impacts (e.g. increases in temperatures, changes mine should not proceed. Preston CJ stated: in precipitation patterns, increased incidence of extreme weather events etc.); and ‘In short, an open cut coal mine in this part of the Gloucester • Transitional impacts (e.g. changes to policy, law, markets, valley would be in the wrong place at the wrong time. Wrong technology, and attitudes towards business activities) place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will Associated with these risks is an increasing litigation risk relating cause significant planning, amenity, visual and social impacts. to issues such as discharge of directors’ duties, disclosure in Wrong time because the GHG emissions of the coal mine and its Annual Reports and common law actions (e.g. nuisance or coal product will increase global total concentrations of GHGs negligence). at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease Two legal opinions which were written by Noel Hutley SC and in GHG emissions. These dire consequences should be avoided. Sebastian Hartford-Davis (the first in 2016, and the second The Project should be refused.’4 updated opinion in 2019) for the Centre for Policy Development and Future Business Council, have elevated the issue of climate Following Preston CJ’s subsequent landmark decision, Simon change risk and have put into focus the requirement to consider noted that there was significant criticism and vitriol towards climate change risk at board level.1 the judgment, court and personal attacks on the Chief Justice

42 / VPELA Revue June 2019 himself, due to its focus on climate issues. It was considered by the claim, David informed us that CBA changed its behaviour some to be a judicial overreach. including referencing climate change in subsequent annual reports and confirming that it was not asked to consider financing Despite the fact that climate change was clearly a key issue in the Adani coal mine. The litigation was discontinued, so there the judgment, the Preston CJ in fact found that the project should is no judgment or precedent, but David informed us that CBA be also rejected on the basis of a variety of amenity impacts on has made further significant changes towards transparency of the merits such as Visual Impact; Noise; Dust; Social Impacts; climate risk since that time. and Aboriginal Cultural Significance. Importantly, although the McVeigh v REST Superannuation project met the relevant standards in respect of both noise and dust, Preston CJ concluded that the noise and dust impacts Mark McVeigh filed a claim against REST Superannuation in nevertheless do contribute to and form part of the adverse social July 2018 alleging failures of the trustee to discharge its duties impacts that in turn are a ground for refusal. Simon noted in and seeking TCFD compliance on process and disclosure of response to questions on this point that standards merely provide information from the Investment Managers. David informed us a baseline rather than setting the benchmark with respect to that given that McVeigh’s benefits and entitlements would not be amenity impacts. payable until 2055, it was a long-term investment which requires the consideration and disclosure of long-term risks including Following the judgment, GRL lodged a notice of intention to climate risks. The case is continuing but brings into focus the appeal, but the week before our seminar, that notice was with- importance of directors and trustees considering and disclosing drawn. Accordingly, the decision continues to stand as binding climate risks to investors. on lessor courts and tribunals in NSW and persuasive in all other jurisdictions. Where to from here? Recent climate change litigation Climate risk will increasingly need to be considered by directors, – investor actions investors, project proponents and consultants in their work to ensure compliance with legal and ethical obligations. Climate The final speaker David informed us about two recent investor change litigation is likely to be an area of increasing activity, actions relating to climate change involving the Commonwealth particularly while express regulatory frameworks and policy lag Bank of Australia (CBA) and Rest Superannuation. behind community and investor expectations of climate action. Abrahams v CBA 1 Hutley SC, N and Hartford-Davis, S (2016) ‘Climate Change and Directors’ The Abrahams were long-term shareholders in CBA. Relying Duties’, Memorandum of Opinion. on duties in the Corporations Act requiring the disclosure of 2 Sections 180(1) and 181(1) of the Corporations Act 2001 (Cth). information, the Abrahams claimed against CBA. Following 3 ASX Guidance Note 9, recommendation 7.4. 4 [2019] NSWLEC 7 at [699].

YPG Speed Networking VPELA’s Young Professional Group held their annual Speed Networking event on Thursday 28 February 2019. Fast becoming the must-attend event on the young professional social calendar, the event had 85 attendees across a range of industries and sectors, including the private sector, Local and State government. In fact, we are reliably told that it was the most well attended speed networking in the short history of the event!

The evening was a great success with many new acquaintances and re-acquaintances made, creating further links and networks within the industry that will no doubt be of benefit for years to come. Special thanks to our YPG sponsors and our hosts for the night, Cardno, whose outdoor terrace really enabled some great networking to take place.

We look forward to seeing you at our next event!

VPELA Revue June 2019 / 43 VPELA Annual Dinner

VPELA – A MULTI-DISCIPLINARY PROFESSIONAL ASSOCIATION Established in 1989, the Association holds regular seminars, social events and a conference annually. It also reviews legislation, provides high level advice to PO Box 1291 Government and makes submissions to all aspects of land use planning. If you Camberwell 3124, 9813 2801 have any questions or are interested in joining the Association, contact Jane www.vpela.org au Power, Executive Officer.