victorian / planningrevue / environmental / law / association / volume 105 October 2018 Contents

President 3 The housing problem 18 Editorial Licence 4 YPG 2017 Award: Affordable housing study 20 The Minister for Planning 5 Automated vehicles: another inconvenient truth 12 Shadow Minister for Planning 10 Paul Jerome Awards 6

Car congestion in Melbourne: VCAT decisions 41 Heritage fabricated 46 VEPLA Conference Justice Michelle Quigley QC 28 Peter Mares 33 Rosy Batty 36 Gideon Haigh 39

Places Box Hill: ‘don’t box me in!’ 15 Rory’s ramble 53 Covenants continued 49 Unlocking significant social effects 55 Planning Xchange 52 Sound bites 44

Stonnington; managing a city in two parts 22

The Business Tribunal Talk 17 Creating a city of 20 minute neighbourhoods 8 The Fast Lane – Parking changes VC148 48 Seminars Commercial 3 – a new zone for EPA Act changes 50 mixed use and creative industries 24 David Davis breakfast 58 YPG: ideas for the future 59

Cover photo: The VPELA conference witnessed some amazing sessions and speakers. The cover depicts L-R Tamara Brezzi, President VPELA, Michael Deidun, Conference Convenor with Rosie Batty, Peter Mares, Author “No Place Like Home – Repairing Australia’s Housing crisis”, Devo aka the Ratio Gang, costume winners of the Gala and Gideon Haigh, Journalist & sporting commentator.

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 October 2018 The President Dorothy’s dream

Tamara Brezzi President, VPELA

At the conclusion of the Hollywood classic, The Wizard of Oz, It would not be in his nature to simply identify and then moan Dorothy famously slips in to her sparkly shoes, clicks her heels, about a problem without offering an intelligent, comprehensive, and whispers repeatedly “There’s no place like home” in an well thought through solution. In “No Place Like Home”, Peter attempt to call upon the housing angels, and the Wizard himself, argues that our housing crisis will only get worse in the decades to exercise their powerful discretion and teleport Dorothy and to come if we don’t drastically re-structure our housing system. her little dog Toto back to her home in Kansas where her doting family awaits her return from her homelessness adventure. We must, Peter argues, attack the problem from numerous angles. For example, he makes a compelling case for the Having spent 2 hours of Hollywood time on a dangerous yellow abolition of stamp duty and replacement of it with a broad based path encountering other characters lacking a base – a wild land tax. This shift in source for government revenue will drive animal, a big crazy dude in a strange tin suit, and a guy who’s many benefits including a greater propensity for people to move taken up a tenuous tenancy on a pole in a field – it’s little wonder house when their house becomes too big for their needs, freeing that Dorothy and Toto were readily convinced to place their faith up supply of suitably sized houses for the next generation of and trust in a magical, albeit uncertain, fairyland system to have households needing access to existing larger housing stock and the opportunity to once again rest in their own beds, at home. reducing the land tax burden on those who no longer need to live on a larger property. We need to drastically increase the supply Peter Mares’ recently released book, “No Place Like Home”, of a mixture of housing types in existing suburbs and to establish explores the paths experienced, and in some cases, endured, more attractive build to rent and rent to buy models. We need to by home owners and non-home owners over his lifetime in bring the idea of renting into the modern age by allowing long Australia to shine a light on the gross inequity that has evolved term leases, minimum liveability standards, transfer of leases as a direct consequence of the ‘great Australian dream’. At first with an ownership change and predictable structure to rent the path is a common one – share housing, renting, university increases to give certainty to tenants about their housing future. life and first jobs; but his path takes a sharp turn away from those of his former share housing mates when he purchases a “No Place Like Home” is a cracking read, examining the heart house and they don’t. The paths are not even parallel for long. of a problem that so many of us in the planning industry make Even over the early part of his lifetime, the great bonus of wealth decisions about each and every day. It forces questions about held in the equity of a house delivers a dramatic difference in what happens if we don’t do something, right now. I commend it the opportunities, and housing options, available. His non-home to you, particularly as we find ourselves on the doormat of State owning friends move premises regularly – shifting from rental and Federal elections in the coming 8 months. This is a policy to rental more times than there are years, and the quality of conversation which Australia must have, and act upon. Dorothy’s the housing is ever decreasing, not increasing. He, on the other shoes and a click of the heels are simply insufficient to bring hand, remarks that his comparatively enormous wealth has about the multiple housing solutions required to address the been bestowed upon him, through no work or effort of his own, multiple housing problems that we face. but through the simple decision of deciding to buy rather than Tamara Brezzi is President of VPELA rent at an early stage in his life. and a Partner at Norton Rose Fulbright

Peter Mares is an author and researcher and was an ABC Broadcaster for 25 years. He is the author of “Not Quite Australian: How Temporary Migration is Changing the Nation” STOP PRESS (2016) and is a facilitator at The Cranlana Programme Executive 2019 BOARD VACANCIES ELECTED Colloquium which is an independent, non-aligned, not-for-profit organisation dedicated to cultivating wisdom in leadership VPELA would like to congratulate sitting Board members Frank Butera, Arup, Colleen Peterson, “No Place Like Home” is a thoroughly researched examination Ratio & Jane Sharp, Victorian Bar, who were all of the housing crisis being suffered in Australia. Peter explores successfully returned in our recent election. how it is that the haves and the have nots have found themselves on paths which such divergent characteristics – one sparkly and Warm congratulations to Jodi Kennedy, Bass growing without effort; one dark with a matt finish and without Coast Shire who was also elected and will join prospect of cause for optimism; a dusty chalkboard surface in the Board next month. comparison to the yellow brick road. A full profile of Jodi will be included in the March 2019 Revue. I’ve had cause to meet Peter on a few occasions this year, including at the VPELA Conference in Lorne in August 2018.

VPELA Revue October 2018 / 3 Editorial licence

Bernard McNamara, Editor VPELA Revue Director BMDA Advisory Greetings all, as we rocket towards the close of 2018. The northerly) property by going BIG on roof top solar (part paid for heightening frenzy of a State Government election can be felt in by the State Government) and in so doing prevent that pesky the air as the rival parties seek to smear each other by disclosing redevelopment next door? Could this play out all the way down murky relationship on the other side, by announcing new big the streets; across many suburbs, reducing the level of change spending initiatives, with city building promises, decentralisation that might otherwise be expected as part of metropolitan promises, population debates, crime and safety fears, and solar growth? We shall see. or coal energy solutions. Recent published polling suggest it will be a tight contest. And my compliments and commiserations to DELWP for releasing the major planning scheme update in VC148, and then The Premier as leader of the incumbent government is seeking having much of the drum roll reduced by the office fire which to cut as many ribbons as possible along removed rail crossings, stalled the seamless transfer. While we found ways to deal with through Melbourne Metro and by thinking big with the round it, the immediate loss of the mapping component was frustrating metropolitan rail proposal. The last item, as imaginative as it and indicated how ‘online’ we have become. might be, I consider as bit odd, in that a project of such scale was note evaluated by Infrastructure Victoria. Must be the vibe! My compliments also to Michael Deidun, the organising Committee and VPELA staff for the highly successful Conference Not to be outdone, the leader of the LNP is proposing a ’population held at the end of August. In this issue we include contributions commission’ that will assess growth options and recommend from some of the main speakers, being Clay Lucas, Peter Mares how this can be managed so that the infrastructure is provided and Rosy Batty. Peter Mares proposal; on how to solve the in advance. I am yet to reconcile this with the promised release of housing crisis is given a companion piece in this issue by Robert 290,000 lots within the Urban Growth Boundary promised in July Pradolin’s article on how the private sector is increasing its role and the proposed rollback of the changes to the Neighbourhood in this area. It is also (increasingly) not surprising that Robert Residential Zone, promised in June. But the matter of how identifies that the general public have now a low level of trust Melbourne remains a quality city as it grows is a real issue. in public bodies. The challenge of affordable housing continues with Liam Wilkinson’s article summarising his study into various Unintended consequences? I also found the planning scheme models as the 2017 VPELA Young Professional Award. (And policy initiative on the solar panels interesting. According to VPELA has some high-quality young professionals in its ranks.) the media release, the Minister for Planning has amended planning schemes so that proposals that would overshadow The couplets continue with two articles dealing with the car. existing solar panels and solar hot water systems must be Brian Haratsis has published a book (‘Autopia’) which sees the considered in a planning decision. The media release states widespread adoption of this autonomous vehicle technology that ‘Home-owners… will have their systems protected from as city changing. VCAT member Phillip Martin approaches the overshadowing by neighbouring development under new planning topic of car ownership and car parking as it is playing out in provisions’. At the time of writing I could not find the detail, but VCAT decisions; with the question of how autonomous vehicle it did set me wondering…Could this be the best yet subsidised adoption will play out as being less resolved. NIMBY tactic? Will this be the tactic to control/prevent higher Before closing, may I commend two contributions we have scale redevelopment of one’s next door neighbour’s (more from local government. Noelene Duff, CEO of Whitehorse City Council, writes about the challenges of managing an area on steroids, being the Box Hill Central area. What is occurring Apology there is transformational and reflective of Melbourne of 2018. The evidence is that density done well and in highly serviced VPELA inadvertently left a number of organisations locations can deliver wide community benefits. Austin Cramm, off the list of Galactic Gala Dinner sponsors in the last a planner with Stonnington City Council almost uses the Charles issue of the Revue. We apologise for this mistake and Dickens line when describing the adaptive urban planning thank these organisations for their ongoing support. approaches that are needed across the inner areas of Prahran and on the other hand, east in the garden suburbs areas closer to Chadstone.

I hope that among the quality contributions from VPELA’s wide family that you find articles of interest. And as always, ... comments, criticisms, ideas for articles.

E: [email protected]

4 / VPELA Revue October 2018 Minister Unlocking enterprise in our changing economy

The Hon. Richard Wynne MP Victorian Minister for Planning

In early September I was delighted to launchUnlocking Enterprise driven by globalisation, advances in technology, disruption of in a Changing Economy, the Victorian government’s new policy to existing business models, and shifting social attitudes and ways support Enterprise Precincts as hubs for the emerging economy. of working.

To support this policy a new zoning tool – the Commercial 3 The workforce that is emerging seeks an environment where Zone – has been developed, giving planners an additional tool to ideas and different ways of problem solving converge, where realise Enterprise Precincts. This zone allows for a wider range collaborations are easily formed, and where change can be more of employment uses ‘as of right’, giving aspiring entrepreneurs rapid, labour more mobile, and businesses more dynamic. the freedom to get on with what they’re best at – turning great ideas into new products or processes destined for markets To accommodate this new workforce, we need locations where around the corner or around the world. co-working spaces, start-ups, micro-manufacturers and other entrepreneurs can flourish. In an ever evolving global economy these are timely and necess- ary reforms to our local planning system. Termed ‘Enterprise Precincts’, areas such as (but certainly not limited to) Cremorne, South Melbourne, Collingwood and Presented with the challenge of creating the 1.5 million additional Brunswick have enormous potential to provide that fertile jobs forecast for Melbourne to 2050, it’s important we ask ground for business formation and idea development, offering what the jobs of the future might be and what type of city they something different but complementary to the more traditional might demand. employment role played by the CBD.

Creating the jobs of tomorrow comes at a time when industries As the local member for Richmond for close to 20 years I’ve seen across the economic spectrum are going through major changes firsthand the extraordinary economic and land use change that

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VPELA Revue October 2018 / 5 has occurred in Enterprise Precincts such as Cremorne. Twenty innovators and entrepreneurs who inhabit them that will spur years ago you just couldn’t have imagined what was to come as enterprise and innovation within our economy. Cremorne transitioned to become Australia’s global magnet for tech talent. As a pilot to guide future Enterprise Precinct partnerships, the Victorian Planning Authority and the City of Yarra will work Perhaps we should hardly have been surprised, as Victoria, with together with the local residential and business community its rich tradition of nurturing creative endeavours has so many of Cremorne to address key structural issues raised by many of the necessary ingredients to take advantage of the exciting local stakeholders, including liveability, safety and accessibility, opportunities presented by a changing economy. transport and parking, open space and public realm amenity.

But in a globally competitive world for ideas and talent we cannot More partnerships like this will be critical, and with clear policy rest on our laurels. Now is the time to learn from the success of on Enterprise Precincts and an additional zoning tool, Unlocking places like Cremorne, from places like San Francisco and New Enterprise in a Changing Economy is another step towards our York, Berlin and Barcelona and together boldly plan for our own commitment to support an economy that will be able to adapt, economic evolution. grow and meet the demands of a changing workforce.

Partnerships are a central pillar in realising Enterprise Precincts More information on the Unlocking Enterprise in a Changing as ultimately it is the development sector, the research institu- Economy policy and the Commercial 3 Zone can be found at tions, and expanding local businesses that create the physical www.planning.vic.gov.au/policy-and-strategy/unlocking-the- urban environments; and the energy and ingenuity of the urban economy manufacturers, markers, start-ups, co-working operators,

Paul Jerome Award 2018

Proudly sponsored by

This year saw the Paul Jerome Award bestowed upon two individuals who have made a significant and long term contrib- ution to public service in Victoria. It was a particularly sweet moment as both were instrumental in establishing the award in 2005, have been colleagues and friends for many years and were also friends of Paul Jerome. They also uphold and exemplify the virtues for which Paul is so fondly remembered.

VPELA congratulates Kathy Mitchell, Chief Panel Member, Planning Panels Victoria and Geoff Underwood, Underwood and Hume. The presentation of the award was made at the Gala Dinner at VPELA’s recent conference, by Tim McBride-Burgess, Contour Consultants, the sponsor of the award and VPELA President, Tamara Brezzi. The following citations were prepared Kathy Mitchell and Geoff Underwood with their awards. by Meg Lee, Gadens & Michael Deidun, VCAT. introduction of pre-set Panel dates, the requirement for the Kathy Mitchell Council Part A submission in advance, electronic Request to be Heard lodgement; and electronic submissions. Kathy has made and continues to make an outstanding contribution to the administration of the planning system in her Kathy is regularly appointed to Chair the more complex panels, 14 years as Chief Panel Member. committee and EES hearings such as Public Housing Renewal, Logical Inclusions, Melbourne Metro Rail, Standard Development She continues to lead the Planning Panels team of over 80 Contributions, East West Link and Fishermen’s Bend. sessional and full time members, with her renowned commit- ment to independence, efficiency and fairness. She seeks to Kathy is renowned for her ability to manage and give fair hearing continually improve the running of planning panel and advisory equally to the most assertive QC, the most vulnerable local committee hearings. She seeks to not just work within the resident and the most passionate interest group. system but to improve and drive change in the system. Kathy develops strong professional relationships, contributes to Under her leadership PPV have implemented regular round the profession regularly through presenting at industry forums table reviews and prepared annual reports on mechanisms to and has a sound ability to understand and manage the political improve panel process and communication. Kathy has intro- setting in which Panels operates. Her contribution to public duced significant improvements in the system including the administration within the planning realm has been enormous.

6 / VPELA Revue October 2018 Geoff Underwood • Chair, Victorian Government Urban Development Programme; Geoffrey Lyle Underwood has significantly contributed throughout • Chair, Victorian Planning System Ministerial Advisory his career to public service within the planning profession, even Committee 2011 (which lead to the release of the though most of that contribution has been made as a consultant. Underwood Report); • Chair, of the Zone Review Advisory Committee in 2012/13; Geoff was Private Secretary to Ministers for Local Government • Chair, of the SPPF Advisory Committee in 2013/14. and Planning in the Victorian Government for more than 10 years when he made the decision in 1981 to establish his own Geoff was appointed a Senior Sessional Panel Member for Plan- planning consultancy, Underwood & Hume Pty Ltd in 1981. In ning Panels Victoria in 2016, and has sat on various Panels, 2004 he became Director of Development Facilitation with the notably including the Melbourne Metro Rail EES, for which he Victorian Department of Sustainability and Environment. This was the Deputy Chair. was followed by a senior role in helping to establish Victoria’s Growth Areas Authority in 2006. Geoff then established Spade Another major element of Geoff’s contribution to our industry Consultants with his business partner, Chris McNeill in January has come from his participation on various professional and 2007. More recently, Geoff has returned to his ‘consulting roots’ industry associations. From 1990, Geoff served for 14 years and re-established his original consultancy. Executive Director of the Urban Development Institute of Australia (Victoria). Geoff served on the VPELA Board from 2004 Geoff has made a significant contribution to public service and until 2014, during which he was Secretary of the Association administration through his involvement on a number of Govern- from 2009 until 2014. Since his retirement from the VPELA ment departmental committees, many of which have addressed Board, Geoff continues to serve on the organising committee various reforms to the planning system. These include: of the VPELA Conference each year. More recently Geoff served for a time on the Victorian Regional Executive Committee of the • The Federal Government Green Street housing policy Housing Industry Association. committee (also known as the Joint Venture for More Affordable Housing); Geoff’s contribution to the public administration of the planning • Two editions of the Victorian Code for Residential system over many decades is exemplary, and multi-faceted. For Development for housing and for land subdivision; this he is a worthy winner of the Paul Jerome award. • The Victorian Government Land Compensation Inquiry 1979;

VPELA Revue October 2018 / 7 The Business Creating a city of 20-minute neighbourhoods James Mant, Department of Environment, Land, Water and Planning

Working for the Victorian Government in planning, I was lucky most of their day-to-day needs within a 20-minute walk. This is enough to be involved in the refresh of Plan Melbourne 2017- also how those that created the concept at the City of Portland, 2050 (Plan Melbourne) released last year. During this process it Oregon framed it. became clear to practitioners that, while there was widespread support for 20-minute neighbourhoods, the refresh of the plan This important distinction means that there is a focus is on presented an opportunity to strengthen and clarify the concept walkable urbanism, or simply, having more people within walkable access to the things they need. More people are to enable more effective implementation. therefore given the choice to live locally and the choice not 20-minute neighbourhoods are important for many reasons, to drive. This essentially translates to a maximum walkable such as reducing the need for motor vehicle travel, therefore distance of around 800 metres. Research confirms that if you reducing emissions, accommodating growth, improving health are within an 800-metre walkable catchment, the prospect and social cohesion, building communities and improving place- of residents walking to local services and facilities, including 1 based design. supermarkets, cafes and small food stores increases . It also encourages cycling (without extending the area) and the use of The concept of 20-minute neighbourhoods was consulted on local public/community transport for those who are unable to widely during the refresh of the plan. It included listening to the walk or find it difficult. experts on the Plan Melbourne Ministerial Advisory Committee, The 20-minute neighbourhood concept was developed as a chaired by Roz Hansen, as well as other experts around the world, principle, direction and policies in Plan Melbourne. Now included such as Brent Toderian, the former Chief Planner of Vancouver in the plan is a definition and a list of ‘hallmarks’ that underpin and renowned urbanist. It was a concept that received many 20-minute neighbourhoods. The Plan Melbourne team worked valuable comments. Comments such as having a good brand closely with the Department of Health and Human Services that can survive political cycles, which has endured since the and the Heart Foundation to foster and reinforce the associated concept was introduced under a previous government in 2014. health benefits of walking. This link to health being an important Moreover, feedback confirmed that having a 20-minute metric policy driver. As Brent pointed out ‘people listen to doctors, not was sound, as it meant people thought about distance and time planners!’ In progressing 20-minute neighbourhoods, the health to access places when talking about the concept. This point was driver is important and useful, however it is important not to important, although it also has caused some confusion. lose focus around the key issues relating to population growth, density and diversity of development, opportunities to work more There is a risk of over-defining this concept, but there are a locally and strong transport links. couple of important points that should be stressed to clarify the essence of the concept to enable it to become a reality. One Following the release of Plan Melbourne, the department is that there is no longer a reference to the ‘20-minute city’ in engaged metropolitan councils, and requests were made to Plan Melbourne. It is a point to highlight as the ‘20-minute city’ help deliver the concept. Councils also outlined that the focus is more about access to everything by all modes of transport, should be in middle ring neighbourhoods, where we can work similar to Sydney’s 30-minute cities, whereas ‘a city of 20-minute with existing communities as many of the inner suburbs already neighbourhoods’ is about people having the ability to access enjoy many of the qualities of 20-minute neighbourhoods.

8 / VPELA Revue October 2018 This led the Minister for Planning to announce a pilot program in March this year. Brimbank, Maroondah and Moonee Valley City Councils were awarded grants to test and learn about implementation of 20-minute neighbourhoods on the ground in partnership with the department. In addition, the Heart Foundation and Victoria Walks are also partners, and they bring considerable expertise in this area.

It is too early at this stage to report on the findings of the pilots, but what we are seeing early on is the importance of governance (involving all areas of councils) and place-based co-ordination in delivering 20-minute neighbourhoods. We are seeing it as a uniting concept, where it rallies health, transport, business, planning and other areas to deliver a wide range of initiatives across councils and State Government. Further information on the pilots and 20-minute neighbourhoods is available on the Plan Melbourne web site: https://www.planmelbourne.vic.gov. au/current-projects. Finally, I am really encouraged by the interest and support for Pursuing this concept across metropolitan Melbourne is a this work across government, the development industry and challenge. Some areas have specific issues, such as retrofitting importantly the community. There is a great opportunity to car-based middle ring suburbs while there are other challenges leverage this enthusiasm, to build on Plan Melbourne and the associated with creating new neighbourhoods in greenfield pilots to focus on the opportunities growth brings to deliver more growth areas, including some of the fastest growing areas in the liveable 20-minute neighbourhoods. country. James Mant is the Manager of Planning Projects in Planning The pilots will be complete by March next year, with all the Implementation at the Department of Environment, Land, information and lessons shared publicly. It is anticipated that Water and Planning. the results will be presented at the Victoria Walks Smart Urban 1 Gunn LD, King TL, Mavoa S, Lamb K, Giles-Corti B, Kavanagh A. Future’s conference next year. The Plan Melbourne site will also Identifying destination distances that support walking trips in local be periodically updated. neighbourhoods. J Trans Health. 2017.

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VPELA Revue October 2018 / 9 Shadow Minster Daniel Andrews’ unprecedented document dump and what it The Hon David Davis MP Shadow Minister for Planning means for Victorians and Local Government

I’m moved to write this regular VPELA column at the end of an Terribly, this unconscionable lack of vetting resulted in personal unprecedented week in State Parliament. This is the week Daniel details of Victorians being uploaded into the most public of Andrews, fresh from the “Red Shirts Rorts” fiasco tore up the domains, the world wide web. One barrister’s medical record rule book on fundamental Westminster conventions. Andrews detail, banking details including financial statements, psychiatric and his Labor government for the first time used a government reports, home address, contact phone numbers and full details majority to undertake a special documents motion using ancient of children were released exposing this barrister and her children powers of each House of Parliament to demand and seize to extraordinary risk. Given the sensitive nature of her work, she documents. These powers go back to the Bill of Rights and before is rightly appalled at the release of a financial advice document but have been balanced by equally ancient rights to protect the marked “private and confidential”. deliberations of cabinet and to allow ministers and senior officials to seek and receive fearless and unfettered advice. VPELA members will be equally concerned at the serious privacy breaches. The personal data of Victorians should be protected, These powers have never until this week been used by a and the integrity of government data holdings should not be government party with a house majority to seize and open the available for raiding for partisan political purposes. documents of a former government. Labor sought to open documents of my leader during his time as former Planning The attack on privacy should have all Victorians worried about Minister relating to planning decisions on Phillip Island. Whatever the security of their personal information within government your view about these planning decisions, for or against, and holdings. Daniel Andrews has already been forced to concede the subsequent legal settlement, what cannot be denied is that that data collected on level crossing removal projects in Glen this unprecedented dump of 32 boxes, 80,000 pages blew up in Eira was misused and improperly handed to a government back Daniel Andrews’ face and the face of Victorians. bencher. Now the government is collecting data under the Pick a Project scheme and also the Energy Saver Program. Who will Daniel Andrews was advised by officials, including the Secretary have access to these email and mobile phone contact lists? of the Department of Premier and Cabinet, that there were legiti- I suspect if you have participated in these programs you can mate grounds through longstanding Westminster conventions expect politically motivated communications to arrive from the that documents of a previous government, particularly cabinet Labor Party prior to November 24. documents, were not accessible. Andrews chose to ignore this advice, instead directing the Secretary of DPC, under his As Chair of the Planning and Environment Committee of the employment contract, to retrieve all of the documents and Victorian Legislative Council, I was present throughout the provide them to the Premier’s private office many months before Committee’s inquiry into the commercialisation of the Victorian they were ultimately tabled in the Legislative Assembly. It is Titles Office. There are clear deficiencies in Victorian privacy law, clear Andrews did not vet these documents. His sole purpose enumerated by the Committee. The report, submissions and in obtaining the documents of the previous government was a hearing evidence of this inquiry can be found at: https://www. partisan attack on the Leader of the Opposition. parliament.vic.gov.au/epc/inquiries/inquiry/944. One central aspect of the inquiry was how the privacy of Victorians’ title information could be protected in a model with private sector involvement in the administration of the titles office. The Committee made recommendations around privacy rules to constrain the private operator of the $2.86 billion privatisation deal. And yet, how can Victorian have confidence DRIVING THE NEXT WAVE OF JOBS FOR MELBOURNE: that their personal information and details of their land holdings EMPLOYMENT AND INNOVATION will be safely protected and kept private when the Premier of the CLUSTERS WILL BE KEY TO state will tip out 80,000 unvetted pages. FOSTERING A SUCCESSFUL, The Victorian Bar Association said the following of Daniel GROWING ECONOMY FOUNDED Andrews’ extraordinary and unprecedented document dump: ON INNOVATION. Victorians have a right to expect that their privacy will be protected. The Victorian Bar calls on the State Government to DISCOVER MORE investigate how this serious breach of privacy occurred, and to AECOM.COM/AU/BRILLIANTCITYINSIGHTS/MELBOURNE provide Victorians with an assurance that steps have been taken to ensure that it cannot happen again.

10 / VPELA Revue October 2018 The former Victorian Privacy Commissioner, David Watts, went without fear or favour but which are not available for public or a bit further: other scrutiny. Daniel Andrews’ 800,000-page dump included a range of private legal opinions provided in good faith by senior There’s certainly a breach of privacy so if you collect financial lawyers. It strikes at the heart of our legal system and the details, psychologists’ reports etc, you can only use them and separation of powers if such legal opinions are splayed across disclose for the purpose for which you collected them or a the internet at the whim of executive government. The risk is that related purpose and publishing them in this sort of manner is such legal opinions will become clipped in their frankness and not a related purpose. necessarily more defensive. But I’ve actually just been making a few notes about what other areas of legal liability might be involved in all of this and just Nothing. Not common sense. Not the advice of his colleagues. a quick, my quick scan of it indicates that it goes a long way Not the advice of his officials, including his own departmental beyond breach of privacy. secretary. Not the constitutional conventions of Victoria and You’ve got questions of negligence, you’ve got questions of before her the United Kingdom. Nothing would stand in the way breach of confidence. of Daniel Andrews pursuing what he perceived to be political You’ve got questions about breaches of the Charter of Human advantage over the opposition. Rights, you’ve got questions about breach of legal professional We have seen Labor throw away the rule book for political privilege in cases that were unrelated to this particular planning advantage in the lead up to the 2014 election with their conscious, case and possible issues of contempt of court. deliberate, planned and potentially fraudulent misappropriation You’ve got questions about misconduct and misuse of public of parliamentary salaries to fund ALP campaign organisers. Now office and you’ve got questions about breaches of the Victoria in 2018, Daniel Andrews is so desperate to cling on to power he protective data security framework … (the) security standards has trashed Victoria’s democratic institutions and conventions in the Victorian Government (is) obliged to implement. a thoroughly unprecedented, clearly misguided, self-serving yet VPELA members will immediately understand the importance ultimately self-defeating attempt to besmirch the good character of professional legal privilege, legal opinions provided to clients of the Leader of the Opposition.

Congratulating our very own Teresa Bisucci on her appointment as a Senior Legal Member at VCAT.

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VPELA Revue October 2018 / 11 The Business Automated vehicles Another inconvenient truth Brian Haratsis, Executive Chairman Macroplan

Automated Vehicles (AVs), ride share and car share will change diverse mobility transport network including mandating EVs for the spatial structure of Australian cities on a scale equivalent to major capital cities (Sydney / Melbourne) by 2030 and Level 5 i.e. the introduction of the motor vehicle within 10 years. The reasons taxibots (back to base AVs) by 2035 as a key element of a Mobility for this outcome can be summarised as follows: as a Service platform matters because it could significantly:

• More frequent / cheaper vehicle travel • Reduce travel costs. Estimates vary from 50% to 80% • Willingness to remain in vehicles longer reduction in travel costs per kilometre per household • Potential accelerating / compounding impacts of the • Reduce infrastructure requirements because the number of co-introduction of EVs as vehicle operating costs reduce cars on the road would reduce significantly. • Overall vehicle hours travelled due to the introduction of AVs • Improve the efficiency, usage and viability of public transport between 2011 and 2031 up to 24% higher with AV and 43% if AVs are integrated with PT rather than compete with PT. higher with EV / AV. Public transport share of travel in this Estimates of negative impacts on PT vary from -30% to scenario drops 14% -15% ridership with no integration Reduce pollution, noise and Greenhouse Gas Emissions • More long-distance commuting trips and substitution of • because a diverse mobility transport network requires local trips for longer trips to more desirable locations low operating cost vehicles which can perform 24 • Significant increases in congestion adding to already hours per day, 7 days per week. This will make Electric significant baseline increases in traffic congestion assessed Vehicles significantly more financially attractive because by Infrastructure Australia (2015, 2016) EV operating costs are around 80% lower than Internal i.e. 20-25% over the baseline forecast Combustion Engines over long operating distances • Significantly increased travel times due to a mixed vehicle e.g. 1 million kilometres fleet • Reduce traffic deaths and traffic accidents. Estimates vary • Significant reduction in vehicle fleet (30-50%), improve- between 50% and 90% reduction. BITRE estimated the cost ments in safety (600 less road deaths annually) and carbon of road crashes (fatalities and accidents) at $17.85 billion reduction when over 60% of the car sleet is AV/EV or 1.7% of GDP in 2006. Estimates vary between 50% and 90% reduction in 1200 deaths and 36,000 hospitalisations The strong business case is therefore the accelerated take up of annually AVs to minimise the mixed vehicle fleet impacts, to achieve social, • Reduce traffic congestion. Costs were reported by environmental and economic outcomes. Therefore requires Infrastructure Australia to be around $53.6 billion in 2015. At diverse mobility (ride sharing, vehicle sharing, cycling, walking, least 50% ($18.5 billion) of the increase in cost of congestion public transport) outcomes rather than merely promoting early could be avoided. introduction of relatively expensive Level 4 vehicles (driverless • Increase productivity levels in urban areas. This will vehicles in designated areas) which ease congestion impacts increase significantly with improved access to be education only for relatively wealthy market segments but increase overall and better jobs traffic congestion, reduce active transport and reduce the • Reduce inequality by creating access to higher paid jobs effectiveness of the importance of accelerated introduction of a

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12 / VPELA Revue October 2018 • Reduce Infrastructure costs. Road Infrastructure The freeway era efficiency will increase dramatically reducing expenditure requirements. Estimates suggest that freeway capacity is improved by 22% with a 50% market penetration of AVs and 80% with a 100% market penetration (Pinjar et al 2013). Public transport efficiency can also be significantly improved • Improve social inclusion for persons unable to drive including the elderly, ill and persons with a disability • Improve connectivity of regional towns and many remote areas

The introduction of AVs can be the foundation for mandating road pricing / congestion pricing as part of shift in Australia towards broader taxation strategies in relation to mobility. For example all level 4 AVs can be mandated with sensors and software and be Figure 1: Passenger Transport Share (per cent), Personal Vehicle Travel and subject initially to a small cost per kilometre (potentially offset by Public Transport Travel, all Capital Cities, 1945-2010 a theoretical fuel excise contribution for ICE vehicles). As Electric Source: BITRE Estimates, ‘Public Transport use in Australia’s capital cities: Vehicle numbers increase, a revenue stream will be required to modelling and forecasting’ Page 27 replace the fuel excise levy and the suggested process would At a local city building level not only can streets and car parks be result in a seamless transition. repatriated to the community, but the efficiency of land use can The broader debate in relation to mobility and taxation needs improve dramatically. With the advent of EVs, noise levels also reduce significantly. to include not just congestion pricing and revenue streams to fund infrastructure but also to promote social inclusion, health Diverse mobility requires rethinking of travel speeds and (active transport) and amenity in urban areas. Given the lack of connectivity. For example local streets can be reduced to 20kmh political support for congestion charges, (which do have negative to 30kmh to harmonise the moving speed of all vehicle types. social effects) the concept of an annual mobility ‘allowance’ Further, shared parking solutions (as well as shared vehicles) could be considered. This concept would direct (say) $2000 to can reduce housing costs and vehicle / human interaction to $3000 annually per household (around 25% of annual household improve safety. expenditure on transport) to be utilised for any form of transport Connectivity implications at a whole of city level have been including PT, tolls, congestion charges etc. At the end of each considered comprehensively in Singapore, where the year the remaining balance in the allowance would be taxed at introduction of AVs is considered part of the ‘Singapore Urban the marginal rate and repatriated to households as a ‘bonus’ for Mobility Challenge’. This contrasts sharply with Australia where responsible travel choices. This type of approach would not only the focus for the introduction of AVs has been to accelerate the improve social inclusion it would reward households utilising introduction of personal AVs. The Singapore approach has four active transport, PT and ridesharing. This broader approach to thrusts – make personal vehicle usage unnecessary, optimise congestion charging could usefully be combined with the use of peak hour travel, improve resource efficiency and to devise a new GPS systems and time based (peak hour) congestion pricing. paradigm for urban logistics. Comprehensive thinking in this way has led to new concepts for building future town centres as The bottom line is that the nascent mobility revolution can be shown in Figure 2 and 3. With long lead times in planning town managed to meet significant social, economic and environ- centres in Australia (circa 10-15 years) new thinking is required mental outcomes. This is why harnessing the AV platform is to harness the potential of diverse mobility outcomes. important. The road to autropolis

The best way to understand the importance of managing the introduction of AVs is to consider the Freeway Building era (which is still persisting). As personal vehicle travel disrupted public transport, the public sector response was ‘demand accommodation’. This meant endlessly building more freeways to ‘fix’ traffic congestion. Cities around the world (with some notable exceptions) have been decimated by freeway building and traffic congestion. In Singapore for example 12% of land is used for roads and 14% is used for housing. In the USA it is estimated that car parking which could be released with the introduction of Level 5 AVs could increase available land areas for open space or community uses in urban areas by 10%. In the Figure 2: Pedestrian Only Zones, New York City US there are 6 spaces for every car. Source: Pedestrian-only zones in Herald Square, New York City – Flickr/NYCDOT

VPELA Revue October 2018 / 13 Figure 4: The Likely AV Rollout

a sunroof! As the timeline indicates city planning needs to begin now to secure diverse mobility outcomes. Figure 3: Concept of a Future Town Centre in Singapore with Self-Driving Vehicles (Day Time) The case for understanding the impending revolution is compell- Source: Asia 2017 Automated Vehicles Conference in Singapore – Nanyang ing. Figure 4 outlines the initial AV roll out, with the National Technological University, ‘Towards Autonomous Transport & 2020 Smart Transport Commission confident it can amend 700 pieces of Mobility – Singapore Autonomous Vehicle Initiative (SAVI) By Niels De Doer legislation by 2020 to facilitate this outcome. We have a second chance to create an inclusive, socially and environmentally The likely AV rollout responsible mobility outcome. Let’s harness the opportunity.

Over 20 car manufacturers and software companies are planning Brian Haratsis is Executive Chairman, Macroplan and National to sell Level 4 Vehicles by 2020 (i.e. fully automated driving in Co-Chair of Australian Driverless Vehicle Initiative (Policy + designated areas e.g. freeways with a driver behind the wheel). Research Group). Brian launched his latest book Autropolis – Initially Automated Driving Systems will add $8,000 to $12,000 The Diverse Mobility Revolution in May 2018. per vehicle but over time around $3,000 to $5,000 – the cost of E [email protected]

Growth @ Tract.

We are pleased to announce that Cristen Sullivan has joined Tract as our newest Associate Town Planner. Cristen’s experience in Local and State Government is extensive and she will be a great asset to the planning team. We would also like to congratulate Andrew Thornton and Ben Cooke for promotion to Senior Town Planner, and Ciara Cancian and Caroline Graham to Town Planner.

www.tract.com.au

14 / VPELA Revue October 2018 Places Managing Melbourne’s growth – the Box Hill experience Noelene Duff, Chief Executive Officer, Whitehorse City Council

“Don’t box me in”. Managing growth in a developed urban context It is true to say that the regulatory environment has not kept brings with it many challenges. Package that with a city centre pace with a rapid investment climate. In 2007 Whitehorse that has the very best of health, education and transport and the Council adopted the first structure plan for the centre following recipe for growth is enormous, and so is the need to manage the the mandatory planning scheme amendment process. At that change process. time, no urban planner could have anticipated Melbourne’s subsequent fascination with high rise residential development. History repeats itself. Once the centre of a land boom in St Kilda Road and parts of Melbourne’s inner city had seen the mid 1800’s, Box Hill has again become a key centre for height, but nothing to mirror what was to come with this new redevelopment and investment today. Concerns about the need height climate. It would be another decade before unimaginable for infrastructure investment ahead of development was a key heights up to 55 storeys would be evident in development feature of development two centuries ago, as it is today, but in applications. the context of higher community expectations. How can communities engage and respond to such rapid change The growth of Box Hill is unprecedented in urban Melbourne, and influence the outcomes? as are the property prices with higher per m2 prices than most business centres including central Melbourne. Frequent media Early on, objections to developments in the centre of Box Hill coverage cites the focus on Chinese sourced investment as a focussed on accessibility and infrastructure, rather than height key influencing factor in the success of the centre which has and density. Objectors asked when their community would see benefitted from overseas investment in the shopping precinct government investment in an outdated, dysfunctional transport since the 1980’s. hub. State governments responded with minimal grants and few promises. Investment in health and education services What challenges does this bring to Melbourne’s east and how is by the State and not for profit sectors further enhanced the this managed on the ground? attractiveness of the centre without investment in other basic infrastructure. The weight of reports and studies into Box Hill grew and the capacity to implement planning controls through a traditional planning scheme amendment process offered little solace to those who lamented the changes that were occurring.

The population demographic of Box Hill by the time of the last census, was also rapidly changing. With a higher proportion of overseas born than downtown Footscray and nearly 30% of new arrivals to Box Hill coming from China, Box Hill faced the most rapid change it would experience in decades. A new face of Box Hill was emerging, more comfortable with population density, a new community wanting to establish themselves in an emerging centre with great service access and good prospects, which would further challenge the adaptive capacity of the established residential community.

The focus on Asian, and in particular Chinese investment drew some negative and frequently anonymous attention from objectors whose notations in “chinglish” with references to “high lies” and “fengsweet”, offered an unwelcome and divisive racist commentary about the changes that were occurring in the area.

Successive state government decision making in the context of significant property price increases and rapid change was also slow to respond. The regulatory environment of planning controls, a long and slow process, is not designed to address an emerging centre, let alone meet current demands. Attempts to manage the change and limit height and penetration into nearby housing were not welcome approaches within the system that

VPELA Revue October 2018 / 15 struggles with balancing established residents opinions and a fair to investors. In truth, they have been too slow in coming and broader desire for economic investment. will be too late for centres such as Box Hill.

What additional roles can councils and the development com- Where to next? Ultimately Council’s mandate is to represent its munity undertake to assist communities to deal with change? community. Communities have an expectation that councils will represent their interests, but council’s duties in the planning Together with a funding stream to councils not designed to finance system as a regulator present many dilemmas, particularly when the vast investment needed to cater to a community undergoing faced with a rapidly changing urban centre. Systemic changes are rapid change , local government can be left “holding the baby”. needed to ensure new agencies such as Infrastructure Victoria Opportunities to participate in “place making” to assist emerging and the Victorian Planning Authority are poised to anticipate the communities can be a useful framework to assist this process. rapid changes that demand agile and well resourced responses Whitehorse has participated in the Neighbourhood Project ( a and a planning regime able to respond to growth and investment pilot of the Resilient Melbourne Project). The Neighbourhood that can protect the quality elements of the local area that was Project aims to support communities to deliver practical place the attractor for investment in the first place. Federal programs based projects that breathe new life in to local spaces and such as the National Employment and Innovation Cluster encourage neighbours to connect. This is an example of the program can also add benefits if significant established areas community development activities, additional to the strategic such as Box Hill are considered for inclusion, an outcome that planning processes that are required and needed to ensure the Whitehorse Council has lobbied for. these new spaces form part of an overall community. Noelene Duff is an experienced senior leader having spent Lobbying for funding mechanisms better able to assist councils over 25 years engaged with the governance and management beyond public space contributions and minimal increases in of large and complex organisations. She is currently the Chief rate revenue has occurred to ensure that councils can at least Executive Officer of the City of Whitehorse. keep pace with the impact of population growth in established communities with regard to infrastructure needs, increased Editor’s Note: This article is from a presentation Noelene gave at a maintenance costs and growing service demands. These funding VPELA seminar in May 2018, ‘The Future Growth of Melbourne: East or mechanisms to cater to future service needs in a changing and West?’. My thanks to Noelene for agreeing to convert this story on how growing urban centre need to be readily accessible, whilst being Whitehorse is managing growth into an article for wider dissemination.

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16 / VPELA Revue October 2018 The Business Tribunal Talk

Michelle Quigley QC, President of VCAT

What a pleasure it was to meet so many VPELA members at the you to view VCAT’s 20-year anniversary video, from the homepage recent conference in Lorne and to have the honour of presenting. of our website. It takes a behind-the-scenes look at some of the Little did I know when I accepted the invitation that the program amazing work shaping our future, and I make my film debut. would have ‘VCAT President’ beside my name! That’s a torch I’m proud to take up this year, in VCAT’s 20th year of operation. Thanks to all the VPELA members who have been part of the VCAT’s rich history over 20 years. I look forward to sharing this Let me share with you a little of what we’re working on here at next stage with you. VCAT. Red Dot decisions First up, our Strategic Plan: VCAT for the future 2018-22 and newly- Alkero Development Pty Ltd v Stonnington CC (Red Dot) [2018] released VCAT Business Plan 2018-19 have set the priorities for an VCAT 1120 (16 July 2018): exciting year. In the Planning and Environment List, this includes Section 87A amendment of permit where development is now a project to fully digitise land valuation matters, which means prohibited. digital case files, forms and documents. Tika v Yarra CC (Red Dot) [2018] VCAT 894 (29 June 2018): If successful, this model will eventually be rolled out to all types Proposal for multi-dwellings highlighting importance of of planning and environment applications, creating a better accurate information to properly assess off-site impacts customer experience and reducing paper use for everyone. We including overshadowing of neighbouring secluded private are also working on improved orders and communications with open space parties in the Planning and Environment List, due for release in 2018-19, as part of VCAT’s correspondence review. Icon Co (Jessamine Avenue) Land Pty Ltd v Stonnington CC (Red Dot) [2018] VCAT 1134 (30 July 2018) Across VCAT, we’re striving to meet the contemporary needs of Demolition of C graded contributory building in a our customers and in 2018-19 plan to enhance technology in Heritage Overlay. our hearing rooms, introduce Wi-Fi at 55 King Street, enhance our website and online forms and establish a new VCAT venue 2426 Grenville Pty Ltd v Bayside CC (Red Dot) [2018] VCAT 1338 in Moorabbin. We will also establish an Office for Digital (3 September 2018) Transformation to further drive digital capability and innovation. Application to develop an apartment building on the subject land Part of this innovation is a Government-funded project to develop an online dispute resolution pilot for small civil claims. Although Aquadonis Pty Ltd v Kingston CC (Red Dot) [2018] VCAT 1407 (12 the concept is in its early days, (and not being considered for any September 2018) list other than Civil Claims), the human-centred design approach Application under section 79 of the Planning and Environment we are taking and what we’re learning about our customers and Act 1987; Whether CHMP required; Whether application should their ‘pain points’ is providing valuable insights for all of VCAT. be dismissed in accordance with the reasoning in Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36. Meanwhile, our day-to-day operations in the Planning and Environment List have seen projects worth more than $11 billion come to VCAT for a decision in 2017-18 – another record year of major case applications and a serious reminder of the responsibility VCAT has in determining outcomes that will affect sometimes hundreds or even thousands of Victorians.

This important work; the opportunity to champion access to justice reforms and to make real progress on customer service improvements make VCAT a dynamic place to work. I acknow- ledge the extraordinary leadership of Justice Greg Garde AO RFD, VCAT’s longest-serving president, and thank the VCAT members and staff who have welcomed me so warmly to King Street.

Those who know me are aware that I’m a mad Cats supporter, to the point where I attended my brother-in-law’s themed birthday party dressed as my favourite sporting hero – Cameron Ling! If that’s a terrible mental image to leave you with then I encourage

VPELA Revue October 2018 / 17 Places The housing problem

We are leaving an intergenerational time bomb Robert Pradolin

There is a growing concern in the broader community about the extreme social disadvantage, with its consequential negative life increasing number of homeless people we see on our streets. effects. While some individuals are homeless due to substance Whether directly affected or not, people intuitively know the abuse, mental illness or perhaps their recent release from intrinsic Australian values of equality and fairness are being correctional institutions, there are many other Australians now challenged. Probably not consciously. But they know something also finding themselves homeless or close to homelessness. is wrong. Increasingly, more women and children are becoming part of the The problems of homelessness are largely systemic and cannot mix especially older women following marriage and relationship be solved by community goodwill alone. Effective resolution of breakdowns. Women over 55 years are now the fastest growing homelessness, and its impacts, requires a bi-partisan mind-set. cohort of homeless people in Australia. More frighteningly, of the total number of homeless people, 17% are children under The provision of housing for all Australians not only satisfies the 12 years of age, and another 10% are aged between 12 and 18 fundamental human need of shelter but forms the backbone of years of age. the essential infrastructure needed for a prosperous country and economy. Long term impacts Homeless, the scale of the problem The impact of being homeless affects the individuals’ long-term future, particularly that of children. This includes issues around The Australian Bureau of Statistics estimates that there are poor health, both physical and mental, disrupted education, currently 116,000 homeless people in Australia at any given truncated social development, inability to form lasting personal time. Homelessness is defined as living arrangements that do relationships, and feelings of shame, hopelessness and not have a sense of security, stability, privacy, safety, and the ability insecurity. This may lead some to a life which will result in mental to control living space. It can mean living in cars, couch surfing, health issues, family violence, police intervention and therefore (over) staying with family, living in very crowded shared living have flow on effects on our justice system. Without having a arrangements, and having access to emergency accommodation stable home, homeless children may face a future without hope, for only a few days at a time. This means that not all the homeless without purpose and the majority may become dependent on a are easily identified or in fact visible. life time of welfare.

Homelessness is not confined to our city either. The media We already know that the current estimated cost to the shows us vision of the homeless, with pictures of Flinders community, of rough sleepers, is around $25,000 per year for street colonised by homeless people being dragged kicking and each individual, including around $8,400 in health costs and screaming out of the CBD. But it goes much wider and deeper $6,100 in crime related costs. But we also need to consider these than this with an estimated 50% of homeless people spread long-term flow-on costs of homelessness and must be mindful across our suburbs and regional areas. of the implications to future governments and generations. If we fail to address the root cause, NOW, which is the lack of stable We need to see the homeless, beyond the stereotypes. Homeless- and affordable shelter, we will be leaving future generations with ness must not be considered a lifestyle choice. It is the outcome of an intergenerational time bomb. It makes good economic and

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18 / VPELA Revue October 2018 business sense to invest in economic infrastructure that results by allowing the Super Funds to achieve their required financial in long term cost savings. returns by investing in this country.

Social responsibilities If our collective governments collaborate through COAG and provide the necessary financial incentives to make this new Recently, there has been much discussion amongst the asset class work, Australian Super Funds will invest billions into commentariat, about social licence and what people’s percep- this new and low risk sector. However, with the provision of these tions and expectations are of our politicians and the private concessions, every new development must include a reasonable sector. Social licence embodies the permission and trust that number of affordable and low-income housing so that it can we give to our leaders, political and otherwise. They should, result in the longer-term savings in the areas mentioned earlier. at all times, operate in the best interests of their customers, members, shareholders, and constituents. We cannot be a country that pays lip service to our values of equality and fairness. We must recognise that shelter is a I believe it is time for the private sector to stand up and lead a fundamental human need (not right) and that if we want our national discussion around the provision of housing for our country to be innovative, creative, multi-cultural and inclusive, country, especially the drastic need for more social and affordable we must be able to shelter all our people, rich or poor. housing. That is why we have established Housing all Australians, as an organisation that consists of like-minded private sector This article includes the text from an article which appeared in the leaders that believe it is in the long-term economic interest of Financial Review in August. Australia to provide housing for all its residents, rich or poor. Robert Pradolin works as a consultant to housing developers The Edelman Trust Barometer recently found more than sixty and housing provider organisations. percent of Australians surveyed expect the impetus for effective E: [email protected] policy to be driven by leaders in the private sector. With this “Housing All Australians is group of influential leaders from the level of public support (and expectation) more Boards should private sector with a shared belief that it’s in Australia’s long-term be confident of allowing their CEO’s to take a public stand economic interest to house all Australians including those on around important issues for Australia, such as the provision of a low incomes. We believe the long-term cost to Australia of not fundamental human need like shelter. providing stable housing for all will result in future generations One of the four pillars of Housing all Australians strategy is to inheriting a significant burden with disastrous economic and social mobilise the private sector, (working with the community sector), consequences” See LinkedIn Page #housingallaustralians so that it can provide immediate short-term shelter in buildings that are vacant pending a planning and development process. Private sector solutions VPELA In July this year, the Minister for Housing, in the presence of the CHRISTMAS PARTY Governor of Victoria, launched Melbourne’s first pop-up shelter in a building owned by CaSPA Care. As a result of the private 2018 sector’s goodwill, the YWCA has been able to provide housing for 38 women over 55 years of age, in a building that would normally have been empty for several years. Since its launch, the level 4th December of public support we have received for this initiative has been nothing short of amazing. We have hit the Australian nerve of Luminare compassion and care. South Melbourne The same outcome has also been achieved in Leichardt (NSW) where Uniting has repurposed a vacant aged care home pending demolition, into temporary accommodation for 30 women aged over 45 years.

These two examples have proven the willingness of the private sector to help find solutions to homelessness. However, as much more popup shelters are needed, they are not a solution. They are a private sector response to a country in crisis. We must Proudly sponsored by build more social and affordable housing. Build to rent

Included as one of the 4 pillars of Housing All Australians, is the need for a Build-to-Rent sector in Australia. Australian Super Funds currently have invested several billion dollars of their Mark this date in your diary now! members’ funds into private build-to-rent developments in Invitations will be sent out in November America. They are helping Trump “Make America Great Again”. We need those funds directed back into housing Australians

VPELA Revue October 2018 / 19 The Business

Affordable housing Where are we? Liam Wilkinson, recipient of 2107 VPELA Young Professional Award

Are we there yet? • Participation in DELWP engagement workshops on the new planning mechanisms for affordable housing, At the 2017 State Planning Conference held in beautiful San • Participation in a Housing Summit conducted by the Melb- Remo, the question was asked, ‘In an Ever Changing World, are ourne School of Design’s Transforming Housing Program, we there yet?’ With respect to the issue of affordable housing, • Meetings and discussions with local government, state which featured heavily on the program, the resounding response government, housing associations and a range of other was, no. industry stakeholders in Sydney, New Zealand and of course here Melbourne. Affordable housing, which describes housing for very low to moderate income households, has become a more prominent These forums have involved representatives from all facets and critical issue as housing costs have risen. There is no of the industry and there is a clear energy in the room. I know shortage of statistics which highlight the challenge we face. where I work at the City of Whittlesea, there is an increased Research from the University of Melbourne’s Transforming understanding of our ability to facilitate change and growing Housing program suggests we will need an astounding 53,105 enthusiasm to bring it in to reality. I have also witnessed this more social housing units by the year 2031. enthusiasm in other forums and through discussions with colleagues across the industry. However, I feel there has been a shift in momentum with respect to tackling this issue, highlighted by the long-awaited So where are we now? state housing strategy Homes for Victorians and the growing implementation of affordable housing initiatives being rolled out It has been an exciting 12 to 18 months in the affordable housing across the state. space, with regular announcements with respect to initiatives and programs aimed at addressing the issue. In particular the Over the past 12 months, as the recipient of the 2017 VPELA planning initiatives include: Young Professional Award, I have been fortunate to be a part of this exciting change and have participated in a number of forums • Release of the refreshed metropolitan planning strategy Plan tacking the affordable housing issue including: Melbourne 2017-2050 and the state government housing strategy ‘Homes for Victorians’, • Attendance at the 2017 VPELA State Planning Conference and • Planning mechanisms for affordable housing which included speaking in the Young Professionals Group break out session, changes to the Planning and Environment Act 1987 with a • Being a Panel member at VPELA event ‘Delivering Affordable new object to ‘facilitate the provision of affordable housing’, a Housing’, definition of affordable housing, an order specifying income • Presentation to 2018 VPELA Fellows Dinner, ranges for affordable households and a model voluntary • Attendance and site tours at 2017 National Housing agreement, Conference ‘Building for better lives’ held in Sydney, • Release of the $1billion social housing growth fund which • Panel member at the DELWP Symposium into Affordable will provide much needed investment, Housing,

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20 / VPELA Revue October 2018 • Funding to assist local governments through the Social Housing Investment Planning (SHIP) Grant Program and assistance with negotiating voluntary agreements.

At the City of Whittlesea, like many local governments, we have also had a busy 12 months implementing our own strategy and have a number of exciting projects underway including:

• Hosting of the City of Whittlesea Social and Affordable Housing Forum in 2017 which has ‘kick started’ conversations and partnerships, • Incorporation of affordable housing into the future develop- ment of a significant urban renewal site in Epping, • A collaborative project funded through the SHIP program working with Hume City Council and Mitchell Shire Council in respect to the delivering social housing in growth areas, Artist’s impression CoW • Advocating for opportunities for social housing on State Government land, • Implementation of the ‘value capture tool’ identified as an • Exploring opportunities and the feasibility for social housing action in Plan Melbourne 2017-2050 to assist in assessing on Council owned land. value uplift, • A means to guarantee delivery of an affordable housing Whilst these are all exciting projects, initiatives and steps contribution which requires support to ‘gear up’ the comm- forward, we all understand that it is only the beginning and there unity housing sector and may include an option for a is much work to be done. monetary contribution to a trust or fund, Where to from here? • A suite of minor planning provision changes to support and incentivise affordable housing such as, reduction of third As we know, the issue of affordable housing is broad and complex party appeal rights for community housing, reduced car and planning is only one piece of the puzzle. However, I believe parking requirements and a simpler process for approving it can play a stronger role and contribute further delivering upon secondary dwellings, the new objective of the Act, and facilitating more affordable • Further engagement with the broader community with housing. respect to the need and importance of affordable housing and the households which it provides for, I am concerned that the current situation where there is • Advocacy for broader changes (beyond planning) which still limited state planning policy and a system of ‘voluntary would create a framework for additional models of delivering agreements’, risks creating inconsistent application of the tools affordable housing and unlock further streams of funding, and a wide variation of outcomes, which in turn creates a degree investment and capital including institutional investment. of uncertainty for all parties involved and potential for missed These are all attainable initiatives and there are many examples opportunities. showcasing their implementation either in Australia or overseas.

I believe that the planning mechanism implemented by DELWP Further, I think there is a role for the VPELA community to provide the foundation for further changes to facilitate more advocate for changes that provide greater clarity, support sound affordable housing. These may include but are certainly not policy and continue to share knowledge, case studies and build limited to the need for: capabilities throughout the industry.

• Stronger policy, consistent at a regional or state level I would to thank to Contour Town Planners for their generous which provides for clear guidance and avoids inconsistent sponsorship of the VPELA Young Professional Award and application of affordable housing provisions across municipal highlight the immense value and opportunity it has provided and areas, I hope to see the award continue for many years to come. • A clear framework to implementing mandatory affordable The affordable housing challenge is one which we will not solve housing requirements into planning schemes, where the overnight and certainly not without continued commitment need for affordable housing can be strategically identified, and collaboration across the whole spectrum of sectors and and issues such as the impact on development economics interests. But I am optimistic that at a future VPELA conference assessed. As research conducted by the Australian Housing if we ask the question, ‘Are we there yet?’ whilst we may not have Urban Research Institute in 2018 found, mandatory affordable arrived, we will be able to look a long way back in the rear vision housing requirements appear to deliver a much higher mirror and see how far we have come. proportion of affordable homes than voluntary schemes over the long term, Liam Wilkinson was the recipient of the 2017 VPELA young • Inclusionary zoning where appropriate, particularly where professional award which has assisted him learning more there is high land value uplift through land rezoning, density about affordable housing and implementation within a increases and significant public infrastructure investment Victorian planning system context. Liam is a senior strategic such as public transport links, think Melbourne Metro 2 or planner currently working at the City of Whittlesea. e: Liam. the Suburban Rail Loop, [email protected]

VPELA Revue October 2018 / 21 The Business Stonnington Managing a city in two parts Austin Cramm, – A planners perspective City of Stonnington

The City of Stonnington is a City of contrast, some being distinctly A union of convenience urban and others feeling very suburban and leafy. At its longest point, the municipality spans over 11km. In those eleven Despite the union of convenience, the joining of Prahran and kilometres, you traverse the Forrest Hill precinct with streets Malvern was not straight forward. For one, the demographics lined by towers, cross the commercial, retail and entertainment were varied. Neil Smith, as the chief commissioner of the newly precinct that is Chapel Street, cruise through the historic minted city said “The way we feel about it, you have a conservative residential hinterland with smaller workers cottages through to Malvern […], a sort of high-roller Toorak, if you like, and trendy grander mansion estates in Toorak before stopping for a coffee Chapel Street in Prahran”. The processes were also different, with on High Street, Armadale. Not to be forgotten in this mix is the different rates calculations leading to opposite sides of Kooyong presence of substantial public housing estates in Prahran and Road paying entirely different rates before the union. Windsor. Your journey continues across the gentle rolling hills City Planning also had its differences. The City of Prahran was of Glen Iris and Malvern East, rife with Interwar building stock covered with large areas of heritage protection (then “Urban before terminating at Warrigal Road, just after Chadstone Conservation Areas”), while the City of Malvern covered much Shopping Centre, Victoria’s most significant post-war shopping less. Adding to this, the City of Malvern did not place protection centre, not to mention the largest in Australia. In short, the on individual heritage buildings, only precincts. Meanwhile, the municipality transitions from the inner urban character of South City of Prahran had a street by street analysis of the significance Yarra to the suburban garden character of Malvern East across of all of their historic buildings in the its length, and the demographics and development pressures City of Prahran Character and This difference is still being addressed that come with it. Conservation Study 1992. through successive gap studies and heritage amendments. Whether the City of Stonnington constitutes an inner-urban Work continues today to build a strong community of what is a or a suburban local government is a source of debate. This is City of varied feel and character. evidenced by the Council both belonging to the Inner Melbourne Action Plan (IMAP) and being paired with the Cities of Glen Eira, Both sides of the coin Boroondara and Bayside in the Inner South East Region in Plan Melbourne 2017. In February 2015, I joined Stonnington City Council’s team as a student planner during the last year of my undergraduate This is not a new debate. As part of the local government planning degree. In my time since then, I have worked in both reforms in the 1990s, the City of Stonnington was formed by an the Statutory Planning and City Strategy teams. amalgamation of the cities of Prahran and Malvern. Even then, the urban/suburban dichotomy was clear. Several proposals There are certainly differences between the day-to-day were put forward before the City of Stonnington, as it currently tasks undertaken across these units of Council. Reading exists, was proposed. An early proposal saw the City of Malvern architectural plans, writing permit conditions, assessing against split down the middle, with west of Tooronga Road moving into decision guidelines and the applicable planning framework is the new City of Stonnington, and the remaining parts joining the quintessential to the work of a statutory planner. While writing and City of Caulfield in what would become Glen Eira. The City of reading glossy strategies and undertaking reams of background Prahran described its distinct urban to suburban transition: ‘With research forms the daily tasks of the strategic planner. each progression eastwards, the linkages with the key features of the City of Stonnington – its prime retail, residential and investment Despite these differences, there is a lot of crossover. Statutory sectors – reduces’. On the eastern side of the fence, the City of and strategic planners have similar educational backgrounds Malvern campaigned hard to maintain its 130+ year history of its and in Victoria, mostly operate within the confines of thePlanning full extent and be fully incorporated into the City of Stonnington. and Environment Act 1987 and the Victorian Planning Provisions. A later compromise saw the proposed border move to Darling On top of this, both need to advocate their cases in submissions Road, Malvern East but even the City of Caulfield questioned in formal hearings, be they VCAT or Planning Panels Victoria, the logic of annexing such a small area. Ultimately the state and defend their positions. Most importantly, both live and thrive government decided to incorporate the City of Malvern in its on the written report. entirety into the City of Stonnington, partly out of the convenience It is curious that, notwithstanding our similarities, statutory and of amalgamating two fully complete Cities. strategic planning are seen as distinct roles within the planning In viewing the City of Stonnington as an entity, one must also system. There are certainly differences in the work that is consider the historical context it holds. In truth, it is a city of undertaken daily, but both sides of the Council planning fence duality. The City of Stonnington is both an inner-urban and rely on each other and ultimately both strive for the public good. suburban Council at once.

22 / VPELA Revue October 2018 Building bridges different office cultures evolving and a lesser understanding of what the other team did, especially to the more junior and newer In October 2009, the decision was made to separate City Strategy staff members. and Statutory Planning from the same directorate at the City of Stonnington. The strategic planners moved from one world, In 2015, the two departments were reunited under the one Chapel Street Prahran, to another on Glenferrie Road, Malvern. directorate and moved into the new civic offices at 311 Glenferrie The statutory planning team remained in place. The thinking Road, Malvern. Instead of picking up the phone, hopping in of the time was that City Strategy had a more future-spanning a fleet car or hailing the No. 6 tram, statutory and strategic outlook on the future of the municipality and were better aligned planners could now traverse the stairs and visit each other’s in a Sustainable Future Directorate with Economic Development desks or find a meeting room to collaborate on projects. When and Community Planning while the Statutory Planning team had going out for lunch on Glenferrie Road or High Street, planners a more regulatory role in the operation of the city, remaining might run into each other or meet up to discuss the latest news alongside the Building & Local Laws team. and importantly, build relationships.

This division is not without merit. In many ways, despite their Collaboration between departments is improving all the time, aforementioned similarities, statutory and strategic planning but it must still be worked on as the quilt of City Strategy and clearly occupy different roles within the same system, like two Statutory Planning continues to be stitched together. In many sides of a coin. One applies the policy as it is, making perform- ways, building cross-departmental bridges is much like building ance-driven decisions on individual projects, while the other a community. It took time and effort to build a community out of contemplates what said policy ought to be. Further, while the the tenuous relationship of the Cities of Prahran and Malvern, and statutory planning team operates almost entirely under the it continues to take time and effort to seamlessly weave together Planning and Environment Act, Strategic Planners are tasked the urban and the suburban within the municipal boundaries. with undertaking long term projects, such as the identification of new public open space, structure planning and advocating for Surely, bringing together Statutory Planning and City Strategy local outcomes for state infrastructure projects. should be easy by comparison but the similarity they share is the ongoing commitment to achieving good outcomes for the As time went on and each department of Council grew Stonnington community. independent, old staff left and new staff came on board and integration between the two departments weakened. Not for Austin Cramm is a strategic planner with the City of lack of trying however, but a lack of incidental interaction and Stonnington. He has a passion for local government and is collaboration caused by a separation of just over 3km led to skilled in Victorian urban planning processes

T (03) 9225 7777 F (03) 9225 8480 M 0412 360 174 E [email protected] A 205 William Street, Melbourne 3000 DX 92 Melbourne

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John Kelly [email protected] Andrew Turner [email protected] • VCAT Matt Parnell [email protected] • Planning Appeals Anna Barry [email protected] Stacey Guyett [email protected] • Planning Panels • Compulsory acquisition of land compensation • Environmental and Planning Offences • Valuation of land - rating and tax appeals • Merit Appeals • Mining • Civil enforcement

VPELA advertisement_2018.indd 1 VPELA Revue19/07/2018 October 5:12:00 2018 PM / 23 The Business Commercial 3 A new zone for mixed use and creative industries Mark Woodland Director, Echelon Planning

Melbourne needs high quality mixed use employment precincts Planning permission can also be sought for dwellings and now more than ever. certain other types of residential buildings in the zone. However, the combined gross floor area of such uses must not exceed Land use zoning in Australia has traditionally been used to 35% of the combined gross floor area of all buildings on the lot. separate activities, often based on the idea that residential, comm- ercial and manufacturing activities are inherently incompatible. It is possible for the Planning Authority this to vary this percentage up or down via a schedule to this zone. However, the dwelling/ In the new economy, this no longer holds true. In fact, it’s the residential building percentage can only be varied upwards to a opposite – many of the new economy jobs thrive on mixed use, maximum of 50%. diversity and amenity. For a long time, we have needed a zone which allows a genuine mix of land uses to co-locate. The intent of permitting these uses on a conditional basis is to complement economic activity and allow a genuine mix of uses This is what the new Commercial 3 zone is intended to achieve. to establish over time, but to also ensure that such uses do not Commercial 3 – a zone for creative industries, end up displacing industrial, and commercial/office uses from such areas. small manufacturers and startups Of course, Melbourne’s existing industrial and commercial The Commercial 3 zone is essentially a mixed use employment zones already accommodate many significant and important zone which is intended to facilitate the establishment and growth of industries, a number of which depend upon separation from creative industries, small manufacturers and startup businesses. sensitive uses in order to continue their operations. In many It prioritises particular uses that form part of the emerging instances, the best outcome will be to retain these areas in their economy (including new models of industrial, commercial/office existing zone. and certain other employment-generating uses). In other instances, it will be a judgement call as to whether The nature of businesses operating within the emerging the ‘reverse amenity’ decision guidelines contained within the economy is much more diverse than in the past, which is why the Commercial 3 zone are adequate enough to ensure that existing Commercial 3 Zone provides for a wide diversity of ‘as of right’ economic activities are not displaced by new sensitive uses. uses. This includes arts and craft centres, education centres, home based business, certain types of industry, manufacturing sales, markets, offices, and research centres. Keeping the focus…managing the other uses The zone also allows complementary uses (including accomm- odation, small-scale retailing, places of assembly, and warehouses) that have the potential to contribute to the amenity and economic vibrancy of the locality. Floor area thresholds have been applied to these uses to reflect their role as small-scale activities within a mixed use employment context. Examples include:

• Cafés, restaurants or bars can be established in this zone without the need for a planning permit, so long as they are 150sqm or less in floor area – a planning permit is required for larger premises. • Activities like cabinetmaking, bakeries and smallgoods manufacturing can establish without the need for a planning permit, as can other industrial uses subject to satisfying certain buffer requirements. • A place of assembly can be established in this zone without the need for a planning permit, so long as it is 200sqm or less – a planning permit is required for larger premises. • A s hop of up to 200sqm and a warehouse of up to 500sqm can establish, subject to a planning permit being granted. Figures 1 and 2 (following page) – Live/work development in Berlin (http://www.bararchitekten.de/projects/oderberger.html)

24 / VPELA Revue October 2018 Figure 3: Current employment zones in inner Melbourne.

opportunities and to create a level of vibrancy needed to support creative industries and associated activities.

The rapid rise of coworking in Melbourne is an obvious response Figure 2: to these changing workplace trends. But there are many other innovative models emerging as well, including lifestyle oriented workspaces, integrated living/working spaces, artisan manu- This will be an important factor in deciding whether to apply the facturing spaces and a variety of creative spaces and cultural Commercial 3 zone to an area or not. venues (you can read more about these models in Echelon’s report on Melbourne’s enterprise areas – www.planning.vic.gov. Why do we need a new zone ? au/policy-and-strategy/unlocking-the-economy).

The Australian economy and the way people perform work All of these models are variants of a broader theme of mixed use within it are changing radically. The line between ‘home’, work’ and flexible buildings. and ‘leisure’ is blurred and both employees and companies alike are seeking maximum flexibility with how work gets done. But Even the scale and nature of manufacturing has begun to change. our current zones don’t cater well for these changes. Today a single person; can design, produce and sell goods from their home, using digital design, printing, fabrication, and online Contemporary employment precincts and even individual marketing and sales platforms. There are far fewer reason to developments will need to cater for the diversity and flexibility that separate where we live, work and play than there was in the past businesses and workers are seeking. They need to incorporate a industrial eras. mix of activities such as bars, restaurants, recreational facilities, etc. as well as provide health, childcare, education and other This is why we need a new zone – to cater for a wide range of services. In some instances, a precinct will also benefit from uses and to even allow for accommodation as part of the mix but inclusion of some forms of accommodation, to provide live-work in a way that does not displace employment activities.

VPELA Revue October 2018 / 25 Where would the Commercial 3 zone apply ? Not every existing industrial or commercial area will be suitable for the Commercial 3 zone. In many instances, the best strategy Melbourne is fortunate to have significant tracts of industrial for retaining or creating low cost workspaces for creative and commercial zoned located near transport infrastructure in industries might be to simply leave the land in an industrial zone. our inner and middle suburbs. These areas typically comprise older style buildings that have for many years offered affordable Where to next? accommodation for a wide range of commercial and cultural The task ahead is for local Councils to determine whether and activities, ranging from small scale manufacturing activities where to apply the Commercial 3 to land within their municipality. through to low-rent office and production spaces. This decision needs to be informed by an assessment of the Far from being economically redundant, these areas are perfect ongoing suitability of established industrial and commercial locations for the establishment and growth of new enterprises. areas for different types of employment purposes, and whether So, they are a valuable economic resource for our city, comple- there are locations where the Commercial 3 zone might facilitate menting the role of the Central City and Activity Centres. We growth in creative industries, etc. need to nurture economic growth within them. Determining whether or not to permit residential use as part These areas have good bones that can play an important role in of the land use mix in a Commercial 3 zone will be the most the incubation of creative industries, small batch manufacturing challenging part of the equation for Councils to address. It won’t and startup companies. be appropriate to allow housing in every Commercial 3 precinct, but equally, not every employment precincts need to be set Most of these areas are currently zoned Industrial, Commercial 2 aside for single-use purposes. Achieving a mix of uses is a large or Mixed Use. None of these existing zones properly facilitate true part of what drives the amenity and dynamics that make places mixed use development. The Commercial 3 zone can be applied attractive for business. to locations that are considered to be well suited to growing new economy jobs – places that have a stock of relatively affordable However, residential uses are only intended to be permitted buildings, are close to public transport, and are close to skilled where it can be demonstrated that it will complement the workers and a large urban market of consumers. employment and economic development focus of the zone. A thorough analysis of the potential commercial and land use impact of residential use will need to inform the strategic Would you like to advertise justification for any future proposals. Melbourne and Victoria need high quality mixed use employment your business in the precincts now more than ever. The Commercial 3 zone is an VPELA Newsletter? innovative new tool to provide flexibility for a wide range of small scale activities to co-locate with office and light industrial Do you have a job activities. you need to fill? It is a much-needed and very welcome new tool to help create foster and grow creative industry in this State. If you are interested in placing an advertisement Mark Woodland provided advice to the Victorian Government in the VPELA newsletter or advertising a on emerging employment trends and the case for creating a position on our website employment section, new commercial zone to foster growth of creative industries please contact the VPELA office on 9813 2801 and mixed use precincts. A copy of the report ‘Melbourne’s A full schedule of advertising costs is available Enterprise Areas’ (Echelon, 2018) can be downloaded at on our website www.vpela.org.au https://www.planning.vic.gov.au/policy-and-strategy/ unlocking-the-economy

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26 / VPELA Revue October 2018 VPELA Revue October 2018 / 27 VPELA Conference Making decisions: Doing the right thing … and doing the thing right Michelle Quigley QC, President of VCAT

Introduction Lawyers are expected, professionally and ethically, to present objective facts. Not ‘alternative facts’, that Orwellian phrase I had agreed to be part of the program earlier this year before my famously used by Kellyanne Conway, and then recently, Rudi appointment as President of the Victorian Civil and Administrative Giuliani’s contribution that ‘truth is not truth’. From a lawyers’ Tribunal. Now that I have done some research into ethics and perspective, the law doesn’t seek the truth – just the facts on the morals, I reflected on the decision to accept the invitation. I balance of probability in civil law and beyond reasonable doubt in assured myself that I had made the right decision – speaking criminal law. Yet we require witnesses to swear an oath to tell the to you about the balancing act that the process of decision- truth, the whole truth and nothing but the truth. Perhaps Giuliani making entails. I remain convinced notwithstanding that this wasn’t so wrong. It wasn’t that long ago that the concept of ‘core time Cameron Ling is not part of the lineup! I have checked with and non-core promises’ entered the Australian political lexicon Gideon Haigh – he is, as well as being a fantastic writer about to explain away a broken promise; public tolerance of inaccurate cricket and other things, a Geelong supporter. Go Cats! and indefensible allegations is high. Walking the line to ethical decisions I came across an article which suggested that perhaps we could in a post-truth world blame philosophy for the ‘post-truth’ concept. The concept of ‘epistemic relativism’ – that is that the truth can vary depending ‘Post-truth” was named the international word of the year on the context – is a concept that I have unearthed in my by the Oxford dictionaries in 2016. It is defined as, ‘relating to short-course on ‘moral philosophy for beginners’. An extreme or denoting circumstances in which objective facts are less relativist might hold that the truth varies from person to person. influential in shaping public opinion than appeals to emotion and But more rational positions can also invoke at least an element personal belief.’1 Another contender for that year was ‘alt-right’. of relativism.

The term ‘post-truth’ was first used in 1992 in an essay about Emanuel Kant’s contention that we can never know what things the Iran-Contra Scandal. Its use escalated with the ‘Brexit’ vote are like in themselves – independent of how our minds format and with Donald Trump securing the Republican presidential what we perceive – is a relativistic position. It implies what is true nomination. ‘Post-truth’ may become one of the defining words for the world of humans is probably different from that which is of our time due to an ongoing distrust of facts offered up by true for an insect, or a fly. Perhaps the calculation of numbers the establishment. Sadly, I cannot see a change in the public’s at Trump’s inauguration were calculated by an insect and not a appetite to return to trusting many of our major institutions for person. It would provide a rational explanation for the differences quite some time. Last week’s Federal Parliament debacle helps in the estimates provided by the administration. Is this really just consolidate such a view. The behavior of the banks and other a way of saying that what is the truth, or what is factual, is a financial institutions, highlighted in the ongoing Financial Services matter which is dependent upon the individual’s point of view, Royal Commission, and the disgraceful behavior of churches and perception and life experiences? For example, I know as a matter other institutions that was exposed by the Royal Commission into of fact that Geelong is the greatest team of all. It says so in the Institutional Responses to Child Sexual Abuse, have diminished first line of the theme song, and it has been so for as long as that the reputation of these once-respected institutions. theme song has existed and is reinforced at (almost) every game at Kardinia Park. Even the simple factual question – what day is The media, the ‘Fourth Estate’, essential in a functioning demo- it? – will have a different answer to a person (let alone an insect cracy to shine a light on the community’s dark places, have or a fly) depending on where in the world you are. I am starting to becomes commentators and not objective reporters. Chris worry that Kellyanne Conway might’ve been more on the money Ulhmann called out of some media players last week. I am sure than we think. he was not alone in his view that certain media participants stepped well over the line. Justice Finkelstein, in his article in the Monash Law Review ‘Decision-making in a vacuum?’, makes the point that: Why are these sectors making poor decisions? Why haven’t they been better behaved? Is it because they don’t have a Code of ‘Like everyone else, judges are the product of their social experience, Conduct or laws that apply to them? Yes, they do. So that can’t background, education and heritage. These factors will underline at be the answer. Is it because they have been able to get away with least some aspects of the decision-making process. To deny that that conduct with impunity? Is the rule in Dyer’s Case (named judges have regard to social justice, the public good or other ideals after Richmond’s famous Jack Dyer) that you run with the ball is to deny a fundamental part of their role. Judges are commonly until the umpire blows the whistle, the only rule that has applied? required to choose between several different and opposing legal Why is it that objective facts are ignored or just don’t cut through? principles that may be equally applicable. This inevitably involves What about evidence-based decision-making? And science? a value judgement. Similarly, judges must strive to ensure that What is the truth anyway? outdated principles and standards that no longer conform with

28 / VPELA Revue October 2018 current attitudes are not perpetuated. This is the surest way to ences that any action might have. In order to make correct secure judicial decisions that are consonant with generally accepted moral choices we have to have some understanding of what will notions of social justice, as well as those ideals to which our legal result from our choices. When we make choices that result in system ought to aspire.’2 the correct consequences, then we are acting morally; when we make choices that result in incorrect consequences, then Ethical decision-making in the legal context we are acting immorally. Finally, I thought I had found a moral and ethical philosophical approach that approximated the ’net You don’t have to do much online research to find references to community benefit test’. lawyers and ethics being uncomfortable companions. I came across a cartoon – two people sitting across a desk – ‘Yes, Decision-making as a lawyer Mary. That sounds like an ethical dilemma…but relax, it’s only a problem if you have a conscience’. In order to keep your ticket as a lawyer you must act in accordance with the rules of ethics and professional conduct. For example, if So where to start on my broader exploration of ethics and a lawyer breaks an undertaking given to the Court, it may not only decision-making? Of course, being a lawyer, I started with the be contempt of the Court, but an ethical breach. This standard dictionary, which defined ‘ethics’ as ‘moral principles that govern of behavior is not required of other professionals. Practicing a person’s behavior or the conduct doing of an activity; the branch lawyers are officers of the court. It is for this reason that lawyers of knowledge that deals with moral principles.’3 will inevitably be punished more severely if they break the law. It may be a long bow, but I think I can connect the philosophical moral theories of ‘Utilitarianism’ and ‘Kantian’ duty-based ethics Is it different for a judge? to planning law. The courts are independent of the legislature and the executive, Kant makes the concept of duty central to morality. Deontology, which enables judges to decide cases in an impartial manner. As defined as a science of duty or moral obligation is founded in a judge, I have sworn an oath that I will at all times and in all Kantian philosophy. Central to Kant’s construction of the moral law things discharge the duties of my office according to law and to is the categorical imperative, which acts on all people, regardless the best of my knowledge and ability without fear, favour, affection of their interests or desires. Kant formulated the categorical or ill will. I swore a similar oath as President of the Tribunal. imperative in various ways. His principle of universalisability requires that for an action to be permissible, it must be possible I earlier referred to the article by Justice Finkelstein, Decision- to apply it to all people without a contradiction occurring. making in a vacuum? In the article, Finkelstein analyses various theories of adjudication from the traditional or formalism to This is not sounding useful to a better understanding of the realism with critical legal studies and feminist legal theory Victorian Planning Panels (VPP) and policy-based decision-making! somewhere in between. He says that at times it is necessary to explain what a judge does. Some in the media don’t seem to be The usual example given of the operation of this approach is the bothered with understanding how judicial decisions are made – moral obligation to tell the truth at all times. You couldn’t lie to a what was the relevant material that was before the court and murderer that his intended victim was inside the house despite what was the legal ambit of the judge’s discretion. The classic your knowledge that there would be breach of another universal Australian movie ‘The Castle’ has a lot to answer for – proper principle being, ‘Thou shall not kill’. decision-making isn’t done on ‘the vibe’. Finkelstein wrote that:

Kantian or a duty-based approach has been criticised as setting ‘Laws confer rights and impose duties, and judges are required to absolute rules. The only way of dealing with cases that don’t investigate whether the claimed rights are enforceable, or whether seem to fit is to build a list of exceptions to the rule. It sounds an alleged breach of duty has occurred. This investigation requires a like an approach to mandatory controls and not one that sits judge to determine the truth of any asserted facts, analyses the law comfortably with performance-based policy approach underlying applicable to those facts, make an order in accordance with the law the VPPs. I suspect that detractors of mandatory height and as interpreted and applied to the facts.’4 setback controls would not be fans of Kantian ethics. Some might say imposing mandatory controls without any concern I’m not sure that I agree that the investigation requires a judge to about the broader consequence for policy is another example of determine the truth of any asserted facts. The better explanation the flaw in a Kantian approach. is that the task requires the decision-maker to form a conclusion on any contested facts as to what is more likely than not. Whether The dilemma of conflicting moral obligations is no different the truth is discovered, is not the test– just whether the asserted to the exercise of balancing policies which of themselves are facts have been proven on the balance of probability in civil law inconsistent with each other. This is an exercise planning and beyond reasonable doubt in criminal law. Perhaps the latter decision-makers are required to do on a daily basis. is closer to the standard which approximates the truth in absolute I got sidetracked for quite a while on Kantian ethics – more terms. What is certain is that a judge, having made a conclusion honestly bogged down in it – and thought it best to look at what as to the facts, applies the law to those facts. No doubt there can the alternative was. be significant debate about what is the applicable law as in the superior courts few cases are readily disposed of by following Utilitarianism well-established rules or precedent. Gaps and conflicts in legal rules, legal rules that are equally applicable and the very nature I moved to look at teleological moral systems. These are systems of litigation means that there will be always at least two sides in that are characterised primarily by the focus on the consequ- every case. …continues on page 32

VPELA Revue October 2018 / 29 VPELA Conference

A record 309 delegates and participants attended and participated in our hugely successful conference Balancing Act – Walking the line to ethical decisions in a post-truth world, which was held at Mantra, Lorne, on 30 & 31 August. A fabulous array of speakers engaged, informed and challenged us across a range of topics. BALANCING ACT

30 / VPELA Revue October 2018 BALANCING ACT

VPELA Revue October 2018 / 31 In planning cases, the task almost inevitably involves examination of Kantian and Utilitarian ethics, that you will be able to make of conflicting policy and its application to the facts of the case. balanced ethical decisions, like Gideon Haigh and me, and Therefore, the traditional theory of adjudication that a decision- correctly conclude, ‘Go Cats!’ I wish you all the very best for a maker must find the relevant rule of law determined from settled very successful VPELA conference. legal principles found in precedent and then apply it to the facts of the case does not provide the complete formula. There is a Endnotes requirement to balance competing policy objectives. 1 Oxford English Dictionary Online, 2018, Oxford University Press. Conclusion 2 Justice Raymond Finkelstein, ‘Decision-making in a Vacuum?’ (2003) 29(1) Monash Law Review 11, 11. So how does this all relate to my experience in my long eight 3 Oxford English Dictionary Online, 2018, Oxford University Press. months as a judge? I am acutely aware of the responsibility 4 Justice Raymond Finkelstein, ‘Decision-making in a Vacuum?’ (2003) of the task and the enormous privilege that I have been given. 29(1) Monash Law Review 11, 11. When in doubt, I fall back on first principles: to be honest to the oath that I have given and to do the job to the best of my ability. I am sure, now that I have taken you through my exploration

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32 / VPELA Revue October 2018 VPELA Conference Repairing Australia’s housing crisis

Peter Mares This is an edited version of the presentation made at the VPELA conference at Mantra Lorne in August 2018.

Your conference theme is ethics and I’m going to bring an ethical a single plugin electric hotplate, which she used to fire up the lens to bear on the question of housing. I’m going to start by espresso pot and warm our croissants for breakfast. The toilet putting a controversial proposition to you. I’m going to tell you leaked constantly. The kitchen cupboard over her bench top that it’s time for homeowners to pay the rent on affordable jutted out from the wall at an alarming angle. housing. What does that mean? It means it’s time to impose a levy on the great Australian dream. Yes, that’s right, it’s time to Carolyn’s earnings are roughly equivalent to the minimum wage tax the family home. and at $285 a week, she claimed to have found the cheapest one-bedroom flat in inner Melbourne, but rent still ate up close To ease you into this proposition I’ll begin with a story, or two to 40% of her disposable income. Now in her mid-50’s, like me, stories, really, one about me and one about my friend, Carolyn, Carolyn is worried about what the future holds. She knows the and these are tales of reward and punishment, about how I’ve demographic reality. been rewarded for being a homeowner and how Carolyn has been punished for being a renter. Older renters are at increasing risk of homelessness. Most older renters have low incomes and limited resources, that’s Carolyn and I first met in 1986. We were both 24 and I moved into why they’re renters. So they are living in housing stress, which a share house in St Kilda. I had secured a short-term job with technically means, like Carolyn, that they shell out more than the ABC and since I didn’t know anyone in Melbourne, I found a 30% of their income on rent. As a result, they often scrimp on share house through friends of friends. I knocked tentatively on essentials like food, heating and healthcare. the front door and Carolyn greeted me with a beaming smile and we’ve been friends ever since. Say you were a single person living and receiving the full aged pension and maximum level of rent assistance and paying There were seven of us in that house, four adults and three kids, Carolyn’s rent - which by the way, is well below the median of including Carolyn’s two pre-school-aged boys. It was chaotic, $360 for a single bedroom flat in Melbourne – you’d be spending highly sociable and when my ABC job became permanent, I 55% of your income keeping a roof over your head. You’ve be left gladly stayed on. I loved it. with less than $34 a day to cover all your other expenses. There was always an overflowing compost bin and in the Of course, the over 65s are the least likely of any demographic pre-mobile phone era, a constant stream of visitors calling group to be in housing stress because they’re the most likely to by unannounced. So, I got an instant social network. I was own their own homes. Pension rates in Australia are set low on introduced to my future wife, Julie, and we’ve been together now the assumption that in retirement, people have minimal housing for more than three decades. costs because they’re homeowners. In 1990 my years of sharing houses and sharing with Carolyn and But with falling home ownership rates, growing numbers of her boys came to an end. Julie and I had decided that we wanted people are entering retirement, or continuing in casual, low-paid, to live together. Three years into our relationship, romance and insecure jobs, without ever owning a home. Respected housing reason coalesced in a decision to buy our first home. At the time, economist, Judy Yates, from the University of Sydney, estimates $80,000 seemed a frighteningly large sum to borrow, especially at 15.5% interest. We bought this weatherboard in Northcote that on current trends, by mid-century, when the Gen Ys have all and since then we’ve bought and sold two other houses in inner gone grey, home ownership rates amongst the over 65s will have Melbourne, realising a significant increase in value over time. fallen by up to 15% from where they are now. According to Judy, The last house we sold was back in St Kilda, not far from where unless we change the way we organise housing in Australia, Carolyn and I used to share that cold, dark terrace. there could be as many as 700,000 older households in rental stress by mid-century. In the 28 years since Carolyn and I last shared a house, Julie and I have shifted three times and Carolyn has lived in more than a There are likely to be more older women than older men in this dozen different rental properties. Late last year, in researching vulnerable category because women live longer and need more my book, No Place Like Home, I went over to Carolyn’s to talk money to adequately fund their later years, but they generally about our different housing trajectories over those three decades. leave work with fewer assets. Signs of the problem are already evident. The number of women aged over 65 living in private She was living in a studio apartment on the top floor of a block of rental housing grew by 65% over the past decade. The number old walk-up flats. She had to come down and open the security of women recently overtook the number of men presenting at gate by hand because the remote release lash was always support agencies as homeless and according to Homelessness broken. Her apartment had no heating or cooling. The kitchen Australia, the number of women over 50 who are couch surfing didn’t have an oven or a stove. Carolyn did all her cooking on has almost doubled in four years.

VPELA Revue October 2018 / 33 Based on current research we find that one in two low-income At the last election Treasury estimated that Labor’s promised households in private rental in Australia is already experiencing reforms to negative gearing and the capital gains tax discount housing stress. One in two. Rental stress has climbed sharply, would boost revenue by about $5.5B. That’s enough to build even though government spending on Commonwealth Rent about 20,000 one-bedroom apartments every year. It’s a great Assistance has risen fast too and it now costs us $4.4B a year. start, but still nowhere near enough. We need at least double that. So where does the rest of the money come from? It comes Let’s go back to the example of Carolyn’s flat and imagine that from a tax on the family home. the person paying the rent there now is unemployed and on Newstart. After paying the landlord, they will be left with less The flipside of housing unaffordability is housing wealth and than $8 a day to live on. If they had housing before they became the flipside of generation rent is generation landlord. A housing unemployed they would be lucky to hold onto it for very long crisis for some is a housing bonanza for others, including me. and their chances of finding something more affordable are Julie and I chose our real estate well and we worked hard to zero. Anglicare analysed the online listings of more than 67,000 improve it, investing money and sweat in renovations, succumbing dwellings across Australia and found three – that’s right three very early on to the malady of mad renovators’ disease before it – affordable properties for a single person living on Newstart. was turned into reality television. Needless to say, none of those properties was inner city. To echo the views of 17th century philosopher, John Locke, on The situation isn’t much better for someone on the minimum the origins of private property, Julie and I have been industrious wage. Fewer than 3% of all those listings were affordable for and rational and so you might say we deserve the wealth that someone on a minimum wage. And again, it’s unlikely those 3% we’ve built up. In truth though, if we’re honest, then we have were in cities, in major cities, anyway. to admit that like most other Australians who bought a house a decade or more ago, we’ve really benefited primarily from a Is it any wonder that the census counted 116,000 people as large dose of luck: generational luck. We were able, on relatively homeless? Is it any wonder that more than 20 people have been modest salaries, to buy a house in an inner suburb and watch camping out at the Hobart Showgrounds, including children and that investment grow steeply in value. pregnant women? Is it any wonder that some young women feel compelled to provide sexual favours in return for rent? When we According to estimates on real estate websites, that modest talk about the housing crisis in Australia, this is what we should Northcote weatherboard that we bought for $137,500 in 1990 be talking about. is now worth between $1.6M and $2.1M. Most of the price rise doesn’t derive from any improvements that we or anyone else The middleclass barbecue-stopping conversation is rather made. It derives from the underlying increase in the value of the different. It generally takes the form, “Will I ever be able afford to land. Even accounting for inflation and renovation costs, if we buy a house? Will my kids ever be able to afford to buy a house?” still owned that house today we’d be sitting on a windfall profit of And that’s understandable. Under current arrangements, as about $1M. Not bad work if you can get it, and it’s not even work Carolyn’s story shows, being a long-term renter in Australia and it’s all tax-free. is definitely less desirable than home ownership, yet home ownership rates have been trending downwards for a quarter of We don’t tax this unearned property wealth in Australia. If we a century, most notably amongst younger age groups, especially sell our home and realise a windfall profit, we pay no tax on the those on lower incomes, and the decline has been fastest in the capital gain. When we die and pass on our houses to our kids, bigger cities. they don’t pay any tax either. The greatest beneficiaries of the current tax treatment of housing are those who already have the Still, however lamentable, the inability of middleclass kids to most wealth and the highest incomes buy homes is not the real focus of our housing crisis. They can, In 2004 the wealthiest 20% of Australians owned property that at least, afford to pay the rent without turning off the heating was, on average, worth 1.3 times the average property wealth of and will, in many cases, end up inheriting property wealth or everyone else combined. The top fifth of the population owns 1.3 borrowing from the family bank of parents and grandparents. times as much property as the bottom four-fifths combined. A The really urgent crisis is a lack of decent affordable rental dozen years later, in 2016, the average property holdings of the housing. Renting today is not a temporary youthful stepping wealthiest 20% of Australians were worth 1.5 times the average stone. The rental sector, the private rental sector, is the fastest property wealth of everyone else. That’s what a 12-year real estate boom can do for you. growing segment of Australian housing, growing at twice the rate of households overall. There are more people renting in They say a rising tide lifts all boats, but the luxury yachts seem middle age, more households who have been renting for more to ride higher on the flood than the dinghies. And those people than a decade and more renters with young families. struggling in the water without a lifejacket, well,…. they’re just at greater risk of drowning. We need to build more affordable decent rental housing. Problem is, this is very expensive. Private developers won’t do This is the primary argument for taxing the family home. It is it because it’s not profitable. The only way to increase the supply about fairness. It is about recognising that our relentless pursuit of affordable housing is for government to subsidise it, to bridge of the great Australian dream, fuelled by generous tax benefits, the gap between what it costs to build, operate and maintain is creating an increasingly unequal society, a divide between and what it will generate in rental returns. And we are talking wealthy homeowners and poor renters. It’s also an increasingly billions. So where does the money come from? indebted society, but that’s another matter.

34 / VPELA Revue October 2018 So how should we tax the family home? Well that’s easy. We abolish stamp duty and replace it with a broad-based property tax, just as Ken Henry recommended back in 2010 when he reviewed Australia’s tax system. And they’re already doing this in the ACT.

Economists, business groups, social welfare advocates and housing experts all agree that broad-based property taxes are far better than stamp duty. Why?

First, stamp duty is levied upfront when homebuyers, first homebuyers in particular, can least afford to pay it, whereas an annual broad-based property tax spreads that cost over time. The major beneficiaries of a transition from stamp duty to property taxes would be younger Australians seeking to buy their first home. Tick. David Hodge, John Thwaites, Tamara Brezzi, Carol Daicic, Samantha Ratnam & Jason Pizer. Second, the big upfront cost of stamp duty is a deterrent to when the reforms will be implemented and exactly what they look moving to a new house, making people less likely to shift to like. It’s time to push the debate beyond those tired issues and where work is or to a distant job where their skills would be start building the public argument for the switch to a progressive better used and more effectively used. Infrastructure Australia’s broad-based property tax. modelling suggests that a shift to a property tax and away from stamp duty would boost productivity across the country by 3%, Not long after I had breakfast at Carolyn’s place, the block of flats increasing annual GDP by $24B in 20 years’ time, lifting federal she was living in was put on the market and sold. Carolyn has and state tax revenues by $11B. Tick. had to move again. She’s found somewhere bigger and better, though still very rundown, and when she moved in it was filthy. Third, shifting to a property tax would encourage more efficient The only lighting in the front room comes from two blinding use of housing. Empty nesters may be more willing to downsize fluorescent tubes that emit a deafening buzz when you switch if it doesn’t cost tens of thousands of dollars upfront in stamp them on. The uncleaned chimney is leaking soot into the lounge duty. An annual property levy, an annual property tax, would give room and she’s paying an extra $130 a week. them an additional incentive to trade a big house with empty bedrooms for a smaller one that attracts a lower rate of tax. Tick. The way we organise and tax housing has rewarded me and penalised Carolyn. And the cycle will be repeated in the next Fourth, while real estate booms make State and Territory generation. Carolyn’s boys are now in their 30’s. They’ve both Governments rich, when the housing bubble deflates, the rivers been in good, secure fulltime jobs for many years. Both boys rent of gold quickly become a trickle. Property taxes gives State and Carolyn knows she’ll never be able to help them buy their Governments a far more predictable, stable and reliable revenue own homes. By contrast, Julie and I can afford to act as family stream than stamp duties. Tick. bankers for our son and when we die he’ll inherit whatever Finally, a property tax captures a share of those windfall gains property wealth we have left. I was talking about and it should be made progressive. In other We are walking open-eyed into inequality. We are entrenching words, it should be used to at least dampen rising inequality. A disadvantage in bricks and mortar. Those of us who own our progressive broad-based property tax is relatively easy to levy own homes may feel secure. We may pull up the drawbridge, fill and pretty hard to avoid. Tick. the moat,… ‘our home is our castle’. But as housing inequality worsens, it will touch more and more people. One day it could be I am not talking about forcing people out of their homes. I’m an old friend, a sibling, a child or a parent with no place like home. not talking about denying the kids their inheritance. I’m talking about a relatively modest levy above a threshold property value. We can do things differently; we can do things better; we can After replacing stamp duty, if we just one swap for the other and make housing fairer and more efficient. It’s time to tax the family then we added an additional charge that averaged out at $500 home. It’s time for homeowners to pay the rent on affordable a home, that would raise about $4.5B annually. Add that to the housing. Thank you. savings from changing negative gearing and the capital gains tax discount and you’ve got $10B annually. And then we could really Peter Mares is an independent writer and researcher whose start to make a difference on social and affordable housing. new book ‘No Place Like Home – Repairing Australia’s Housing Crisis’ will be published in September. Peter is a Now I said that shifting to a broad-based property tax was easy. Senior Moderator with the Cranlana Program, a not-for-profit Of course, that’s only true in theory. In reality there are a heap organisation that promotes ethical leadership. He is a regular of practical and, above all, political issues to overcome. And contributor to Inside Story magazine and an Adjunct Fellow it’s no silver bullet. There are many other much needed policy in the Centre for Urban Transitions at Swinburne University. measures to repair Australian housing but it is a crucial part of Previously Peter worked for 25 years as a journalist and the mix. It will help to raise the funds we need to build more social and affordable housing, to encourage more efficient use broadcaster with the ABC. He is the author of ‘Not Quite of housing and to constrain inequality. Australian: How temporary Migration is Changing Australia’, and ‘Borderline’, an award-winning analysis of Australia’s The intellectual debate about negative gearing and the capital policies towards asylum seekers and refugees. gains tax discount has already been won. The only question is

VPELA Revue October 2018 / 35 VPELA Conference My story and how it intersects with yours Rosie Batty

This is an edited version of the presentation made at the VPELA part for me in my life and my memories. We saw how quickly conference at Mantra Lorne in August 2018. you can galvanise community when they’re enraged about something. They may not have all the facts. It may be built on Michael Deidun Introduction: myths. But either way, when you galvanise community support it’s unstoppable and it can achieve great things. Rosie Batty knows pain no woman should have to suffer. Her son was killed by his father in a violent incident in February 2014, a truly Why is it that violence towards women and children has always horrendous event that shocked not only the nation but the world. been a societal issue and yet it’s one that has been able to Greg Anderson murdered his 11-year old son, Luke, and was then continue up until now? We have one woman a week being shot by police at the Tyabb cricket oval. Rosie had suffered years of murdered. It should be enraging us to take action. We should family violence and had intervention and custody orders in place, in have politicians absolutely focussed on creating the societal an effort to protect herself and her son. change we need to see. And yet we still struggle.

Rosie became an outspoken and dynamic crusader against I feel we should call it terrorism, family terrorism, because indeed domestic violence, which led her to be named Australian of the Year that is what it is. We are more likely to be hurt and terrorised in in January 2015. Since then, Rosie has made the most of her position our own home, in our own suburb than from any threat from of influence, campaigning and advocating for necessary systemic overseas. The statistics are unequivocal. We have one in three and attitudinal change to address the family violence epidemic. women over the age of 15 who will experience physical violence. That’s your friends; that’s your daughters; that’s your mothers; Rosie is the Chair of the Victim Survivors’ Advisory Council for the that’s your sisters; that’s your work colleagues. Victorian Government, which has been established in response to the country’s first Royal Commission into family violence. Fortune Before I came here today I thought, “What do I know about town magazine named Rosie as one of its top 50 world’s greatest leaders planning? What do I know about the industry around that? How and Rosie was voted the most influential person in the not-for-profit can I reach people in this audience?” Every single one of us starts sector on Pro Bono Australia’s Impact 25 list. She has also been off as being a human being. And our social connections are really inducted into the Victorian Honour Roll of Women. She is also an imperative and essential to us. In fact, the community where we ambassador for Our Watch and the Lort Smith Animal Hospital, live, our community connections, our families, are everything. patron of Doncare Community Services and a recipient of the Pride And yet we have one woman a week being murdered and we of Australia National Courage Medal. Please welcome Rosie Batty expect the women in our community to take responsibility for to the stage. their own safety. We have a very victim blaming culture that continues to ask, “Why doesn’t she just leave; why doesn’t she Hi everybody. It’s Friday afternoon and I believe after me you’ve just leave?” as if for some women that would be the solution. got a gala dinner to look forward to. So thank you for taking the time to be open enough to want to listen to a topic that’s I think you’ve talked today around homelessness, about what a confronting, a topic that’s not necessarily uplifting and I really barrier it is for so many people, for affordable housing, affordable appreciate the opportunity to speak to a very different audience. rent. And indeed, when we say, “Why doesn’t she just leave?” In fact, I still travel across Australia speaking to very different do we really seriously understand the barriers to leaving? Forty audiences and I’m really, really encouraged by the reception and percent of those that are homeless are women and their children. the interest and the desire for change in our community. The biggest driver of homelessness is indeed family violence. It affects so many areas, so many professions, in ways that they But we do have one woman a week being murdered. It didn’t haven’t really always been taken into account. use to make the headlines. It wasn’t newsworthy enough. In the period since Luke’s murder we do at least see family violence We have over 79,000 people homeless in Australia, over 38,000 reported. But we still have a long way to go before we engage of which are in Victoria. These are huge numbers. The financial the type of support that is needed to put family violence back stress, the financial pressure, particularly for single household into history and not a situation that we’re currently having to people, is extreme, and it’s real, and I’m sure it’s impacting on deal with. the work that you do and the considerations you have to make or may have to make. I was really interested in seeing the town planning project in relation to St Kilda. I love St Kilda. It’s quite some time since I’ve When I stood up the day of Luke’s murder, I didn’t have an been there but I can remember taking Luke there to see various agenda. I was really in shock. It was the stubbornness within me children’s acts and of course Luna Park. I also remember seeing because my friends wanted to protect me. They wanted to go Crowded House there and lots of other events. It plays a good to the media and say, “Thank you for coming. I know you’ve got

36 / VPELA Revue October 2018 a job to do but could you move on?” In my shock, in my semi- So that very question “Why doesn’t she leave?”, have we seriously consciousness, I heard them discussing what they believed was considered her safety and what may happen next? An intervention in my best interests and stubbornly – maybe my friends thought order, things that the police can provide, will not guarantee your stupidly – I decided to go to speak to the media myself. And safety if someone is intent on killing you and your children. what I said was, “What the hell could hurt me now? The most important thing in my world has been taken. Nothing can ever For many women, they can’t speak out. They may come from a hurt me again.” culture or a community where it’s not safe to bring shame on their family. They may have people turn their backs on them, So bravely, or stupidly, I went out to ask the media to leave. But isolate them, alienate them. They have no support. Some women when I opened my mouth and I was encouraged to speak, that may live in remote and regional areas, where they are known to is not what came out. And the message resonated far and wide everybody. How do you find anonymity and safety there? because what I did say is, “It doesn’t matter what suburb you live in, how nice your house is or how intelligent you are, you can And for Aboriginal women who belong to country, in remote experience family violence”. regional areas, how can they leave? Where can they go? An Aboriginal woman is 35 times more likely to be hospitalised and There are so many misconceptions, misunderstandings about ten times more likely to be murdered? It is horrific. this issue. I know that the reason I have been hurt is because Luke was murdered in such an appalling, confronting, unbelievable As a community, as society, we are still resistant to accept that manner, at cricket practice by his own father. The father who this is a gendered issue. It seems that we imply, by stating it as a actually loved him, had never raised a hand to him, the father gendered issue, that all men are violent, but that is not the case. that went hungry or would do anything to help him, support him There are only some men that choose violence. It is always about as best he could, was capable of the most brutal act of violence. power and control, always. And that brutal act of violence was purely and utterly an act of We can’t blame homelessness, being out of work, mental health revenge, a final act of power and control to make me suffer for issues, drug and alcohol addiction, but they all impact on our the rest of my life. communities and they do exacerbate and can make violence Some of you may have seen my interview with Andrew Denton more extreme and dangerous. But what we do need to realise recently when I was asked, “Did Greg win?” Yes, because I suffer is that violence is a choice and the main perpetrators of the every day. As anyone who is a parent knows, the biggest fear you violence are men. have when you give birth, when you have a child, is something The Prime Minister, said one of the most significant things I’ve awful happening to it and you worry for the rest of your child’s life, ever heard a politician say, so I quote it always because when you the rest of your life, because you never want to see them fall sick, hear statements like this out of the mouths of men, it has huge have an accident. You feel their pain, their anxiety, their sadness, influence and power and resonance. And what he said was, “Not their disappointments and you share the happy, wonderful times all disrespect to women ends in violence, but all violence begins and the joys and the highs. That’s what being a parent is. So he with disrespect”. makes me suffer but he hasn’t ruined my life. A more gender equal society is one where violence is less able to I knew at that moment that I had a voice that could be heard, thrive. So a lot of the discourse, discussions, a lot of the political that maybe I could make a difference. My motivation was so that correctness and sexism that is being called out, is critical. We can other children, other women, wouldn’t have to go through what I no longer accept, stand by and keep quiet. If you hear something have to go through, that Luke’s death wouldn’t be in vain. that is putting someone down, if someone is being disrespectful, But to change and stop family violence is not an overnight solution. it needs to be called out because, as David Morrison said, “The It starts with us being aware. This was a dirty little secret behind standard you walk past is the standard you accept,” and there is closed doors. No one talked about it. The shame was placed on no longer any room for complacency. the victim. The victim blaming community that we’re all part of So my speaking gives me purpose, it gives me direction, it somehow blames the victim. “Maybe she provoked the situation. gives me hope. I know we can change but when I see another Maybe she nagged or shouted too much. Why didn’t she get out? murder and I see the hideous statistics, it becomes sometimes Why did she get into the relationship in the first place?” We have overwhelming and it’s difficult to stay focussed. many judgements and criticisms and we spend much of our conversation debating and discussing and critiquing the victim. Our previous Police Commissioner, Ken Lay talks a lot about the antismoking campaign and I reflect back. I’ve been in Australia We are only now beginning to shift that conversation and now over 30 years. When I grew up in England, I grew up smoking say, “Well in actual fact, why should we expect a woman to and stealing cigarettes out of my dad’s cigarette packet. I thought leave, leave her home, leave her community, seek refuge it was cool. Everyone on TV smoked, the film stars smoked. if she can? Maybe in some situations and often, a woman Overwhelmingly, nearly all the people I knew smoked. You cannot find safety and will have to change her identity and live were able to smoke on aircrafts, workplaces, shopping centre, anonymously in another part of Australia or sometimes even supermarkets, hospitals, cinemas and restaurants. overseas because the only time she will be safe is if he chooses not to use violence. And when you do desperately seek to leave But I know, you know, that even though some people will continue and make plans to leave or are forced to leave abruptly, that is to smoke, the momentum of antismoking people is far greater. when you are at your highest risk, your highest risk of being We will never return back to a smoking culture. It is not tolerated murdered or significantly injured. in our proximity. We’ve made it very difficult, very expensive, very

VPELA Revue October 2018 / 37 inconvenient and it’s worked but it’s also taken a concentrated married him and he never hit me and yet, he was capable of the investment at a national level. worst violence possible.

This is what I know will happen with family violence. It will Nowadays, when a woman seeks assistance, she’s more likely take time but it starts with us talking about it, increasing our to be believed. She is more likely to get assistance but I can tell awareness, understanding what it looks like. It’s not just about you, it has been appalling for a very long time. We have a culture fat lips, broken ribs, bruised eyes. Physical violence is really that somehow thinks violence in the home is less of a crime than wrong. Physical violence of any form is wrong, we know that, violence on the street. Remove the word family, remove the word but family violence is also perpetrated through financial abuse, domestic and call it for what it is. This is violence. And in fact, it psychological abuse, spiritual abuse. should be considered worse.

Here in Victoria it is being taken very seriously. Our Victorian Other people that are also even more affected by family violence Government has invested $1.9B on improving our systemic in our communities are the elderly, the frail and the vulnerable, response to family violence. That’s way more than the rest of those with disability, those with different origins and language the country combined. We have a government, who said after barriers. It’s even worse for them. We must try to make sure that Luke’s death, “This should not happen. We failed you, we failed we all remember these kinds of people, these women and their Luke, we failed Greg. If we get into power we will have a Royal children, because they’re real and every single day the majority Commission.” And they did. And in that Royal Commission, of police work is in response to family violence. Luke’s coronial inquest was taken into account and there were 227 recommendations that were made and our government, the One of the things that is really important to me is to have hope, State Government, said, “We will implement every single one of to see that we can change our society. When I start to see the them”. So not only are they following through on their promise, same degree of campaigning towards family violence as we saw they’re also putting unprecedented funding towards this. with smoking and the positive results that will follow, I can start taking my foot off the pedal. But for now, I invite people to join Children are often the ones that are overlooked. They are the my story because if you have children, you know that you do most powerless. And a child in a violent household will always be not want them, when they grow up or when they start to have affected, no matter if the violence is directed at them or not. Luke relationships, to be one of those one in three women. So the never had a hand hit him and the violence was never directed journey starts with us, our power of influence and our demand at him but he knew and he saw from the moment of his birth for change, and I think that you’ll agree this is one of the biggest what his father was like. But his father never lived with us, I never societal issues that we have to tackle.

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38 / VPELA Revue October 2018 VPELA Conference All the (fake) news that’s fit to print Gideon Haigh, Journalist & Sporting Commentator

This is an edited extract of Gideon’s presentation to the VPELA I’ve watched journalism change from a rather raffish occupation, State Planning Conference on 29th August 2018 which made my mother wonder when I would get a proper job. In the first newsroom in which I worked, only one man wore a Today, I’m going to make a few comments about the world of suit and it was purple. Nowadays, journalism is a well-paid, well- words, how it’s being compromised by internal and external polished, well-dressed pursuit whose most famous exponent forces. It was a grievous blow, wasn’t it? I think we all felt gets around in a red bandana. Perversely, media has in the same shamed, diminished and demoralised. I’m referring of course to period gone from a concentrated industry with abundant returns, the news a couple of weeks ago that our very own Melbourne broad audiences and high barriers to entry, to a scattering of had been toppled from its secure spot atop the rankings of strivers pitching to niche publics with low barriers to entry. the world’s most liveable cities. I swear, laneways have looked narrower and streets gloomier ever since, but this vogue concept I started talking here about a matter to do with your area of work, of liveability has less to do with cities than with media. The most the urban environment, to show how the response to something popular index and the one cited in this news story is a product of trivial, a measurement frivolous, opaque and arbitrary, can end the intelligence unit of the Economist magazine. up defining the terms in which we engage with the city. There is The index was originally calibrated as a guide to companies for of course a story here in the myriad forces shaping Melbourne’s adjusting pay for executives on assignment in the relevant city. destiny, all of which a figure plucked as if from nowhere leads It takes no account of issues confronting permanent residents, out of account. But who hasn’t had that disturbing experience like housing affordability and job markets, and reflects local of reading a story in a paper that one knows something about, excellences much less than national and state characteristics, and realising that the journalist is either 180 degrees wrong, such as health and education. “Vienna dethrones Melbourne as has omitted the most important detail or overlooked the most world’s most liveable city,” reported the Herald Sun, as though distinguished authority? it had fallen like the Romanov dynasty. The story was illustrated Why does this happen? For everything that’s changed, a certain inevitably by a barista making a latte for Melbourne and a pastry few things have not, rather have they intensified. The media’s chef serving a slice of strudel for Vienna. The Age lamented that it was time to accept that Melbourne has lost much of its coveted job remains, as it always was, to extract, simplify, boil down liveability and no longer deserves the title. The Sydney Morning and convey as speedily, accurately and accessibly as possible Herald, gloating slightly, spoke to Melburnians now resident in to the maximum number of consumers. What’s blossomed in Vienna who had found it preferable for cleanliness, childcare and importance in the past decade is speed of presentation and size the availability of schnitzel. of audience. The former was once geared to a cycle that rotated as the day. Now, the struggle is measured in seconds. Channel 9 interviewed the CEO of a business lobby group, also a previous resident of Vienna. The Australian and 3AW’s Neil The latter was once measured crudely by circulations. Now it Mitchell, inclined to blame Sudanese gangs for everything can be quantified to the fleeting-est click. Stories are no longer from the Blues’ wooden spoon to the higher price of electricity, produced in single hits. Once, a reporter would’ve waited for all pressed new mayor Sally Capp to concede that Melbourne the reactions before they published. Nowadays, they’re happy had been rendered unsafe. Capp replied with an opinion piece to roll out what they have and report responses as they come deferring to Vienna but insisting, “I know Melburnians will be to hand. It’s one of the reasons that coverage of last week’s gracious in defeat but also hellbent on clinching a win next time.” leadership challenge was so chaotic. Ho hum. Another day when the media solicits media response to media reporting of a media issue, while seeking comment from Paradoxically, news events have shorter lives and longer a mayor whose municipality contains a fortieth of the population afterlives. A story now lives like a mayfly, prominent for a of the city’s metropolitan area, who exhorted citizens to up their morning, overtaken by afternoon, gone by evening, but leaving game, as though it was a trans-continental inter-urban football traces on the algorithm. match. Nobody troubled to break down the composition of the Journalists are no better and no worse than when I started. liveability index or the variability of the data relied on, including They simply have more necessity of and recourse to shorthand the 26 of the 30 categories on which the city has judged subjective measures of anonymous tippers, even though its target audience and shortcuts. Two features of journalism are abiding. One is is not citizens, but expatriates. complaint. Members of the public often bemoan that journalists are negative, that we harp on bad news and feast on suffering. Being a journalist means arriving lots of places with a pre- Well, of course we do. “Traffic lights work and all travellers reach emptive apology for all the trade’s misdeeds, travesties and destinations safely,” is not a story. “Traffic lights fail, causing 50- trivialising. I’m a journalist and have been for nearly 35 years. car pileup,” is.

VPELA Revue October 2018 / 39 Complaint finds an echo in conformity. In no other field of News is no longer to shock and affront but to provide a known endeavour are the doings on one’s competitors so regularly quantity to sure up an established narrative, whether it’s the and totally revealed. Your story almost always has an exact political correctness has gone mad, that racism is on the equivalent in rival organs. Comparison is more than tempting; march, that Australian immigration is producing unassimilable it’s mandatory. In my first few years, the nightly ritual of the subs enclaves of festering hatred or Australian handling of refugees desk always used to fascinate me. First editions of the Age would is uniquely iniquitous. It’s a badly kept secret of the modern be perused in desultory manner, then swept to one side when news organisation that most stories are retro-engineered to copies of the Australian, Sun and the Financial Review arrived. suit headlines that are already composed, positions already How we performed was never absolute, always relative. Ideally, known. We, who effect to deplore populism, are drawn on by the this should have fostered a wish to outdo, and sometimes it did. inexorable search for the G-spot of middle Australia. More often, it instilled the defensive mentality, a desire simply to match, replicate or even copy. At least back then this only There’s nothing new about fake news. It follows in the putrid happened every 24 hours. Now it happens every other minute. tradition of the protocols of the elders of Zion and the Kaiser’s cadaver factory in World War I. Katherine Hepburn famously To this limiting, time-poor audience, focused environmental said she didn’t care what appeared about her in newspapers, formulae are integral. We crave stereotyped characters. The providing it wasn’t true. As Churchill famously observed, a lie opportunist politician, the shadowy lobbyist, the faceless bureau- can travel halfway around the world before the truth can get its crat, the rapacious developer, the plucky community leader, the pants on. Fake news reached a pernicious peak during the last battling farmer, the controversial celebrity, the loveable larrikin. American election, where Hillary Clinton was variously reported We offer the solace of simply binaries; left versus right, money as being funded by George Soros, to be suffering from Parkinson’s versus love, city versus country, community versus corporate, disease, to have ordered the murder of a DNC staffer and to be Warnie versus Waleed. Clichés are our stock in trade, but it was presiding over a paedophile ring, all of which reached a very wide dismaying recently to read during the leadership challenge the audience. It should trouble us, I think, in the media quite frankly quality of the journalism that was being produced on this kind of how strongly fake news resembles what we like to think of as the minute-by-minute basis. I picked a piece at random to read out real thing. One of the curious features of the chief consumers by a very thoroughly reputable journalist on the Guardian. of fake news is that, from what researchers have been able to adduce, they are not primarily young, callow or impressionable, “Perhaps Morrison will be able to put the pieces back together or the poor, ignorant and isolated, but the middle-aged, affluent with sticky tape and glue and Band-Aids.” Cliché. “Perhaps and educated, looking for news that soothes them and panders he’ll be able to tune the instruments efficiently so that it doesn’t to their prejudices. shatter.” What does that mean? “But this is a very big ask.” Cliché. “I’m not sure he has superhuman qualities.” Cliché. While fake news is often deemed an American phenomenon, “I’m sure he will give it his best.” Cliché. “To try and plot a path we’re starting to get our share in Australia and from both sides between the party’s broad church,” cliché. “The jury is very much of politics. From the left, Labor amplified by the ACTU and GetUp out,” cliché, “on whether Morrison is the person who can set this came up with the shameless Mediscare campaign at the last right. In any case, setting it right is a longer game.” Cliché. “Right election, which had the Coalition privatising Medicare. From now, he has to steady the show,” steady the show? You steady the right during the plebiscite for same-sex marriage came the a ship. You don’t steady a show, and steady a ship is a cliché shock-horror stuff about legislative change allowing people to anyway, “in preparation for election. marry their pets. There will be more of it. You can bet on it.

It challenges nothing, changes nothing. It’s website wallpaper. It’s not, I think, that people are more or less gullible, simply Clichés are there because they save the journalist the labour of that we in the mainstream media have trained them to expect thought and they relax the demands on the reader who wishes to news and opinion to please them and if we don’t provide what’s feel informed but more properly to be reassured that nothing has wanted, they’ll find someone else who will and it hasn’t, in the changed and there is no pressing need to pay attention. mainstream media, done us very much good. That’s not a fun message for your conference, I’m afraid, but I think you’re a serious enough audience to cope with the advice that we have greater problems on our hands than dropping from one to two in the liveability stakes in Melbourne. Caveat lector is a concept worth spreading. Let the reader beware of any message that seems too good to be true, too appealing to be false or too simple to hold weight. Never, I fear, has it been more critical to apply an analytical sensibility to what you read and who you listen to. He said it of writing, but I’ve always liked that line of the poet Carl Sandburg, “Beware of advice, including this.”

Delegates from Best Hooper, Ratio & Traffix Group networking and enjoying the sunshine.

40 / VPELA Revue October 2018 The Business Desirable convenience or disease? Car congestion in Melbourne and related VCAT Philip Martin, VCAT Member 1

The rock band Queen’s iconic 1975 album ‘A Night at the Opera’2 reviews of contentious planning applications. However, there is includes the song ‘I’m in love with my car’, featuring the following some overlap between these car congestion problems and how memorable lyrics (with my highlighting): VCAT deals with the issue of ‘on-site car parking dispensation’, particularly with apartment projects. Oh The machine of a dream, such a clean machine The first part of this article suggests some key causes that With the pistons a pumpin’, and the hubcaps all gleam have contributed to the major car congestion issues Melbourne When I’m holding your wheel has for some time been grappling with. The next section deals All I hear is your gear with less contentious measures which now commonly appear With my hand on your grease gun in VCAT decisions, promoting sustainable transport outcomes. Mmm, it’s like a disease son I then discuss some key cases involving greater controversy, I’m in love with my car, gotta feel for my automobile where substantial or full on-site car parking dispensation was Get a grip on my boy racer roll bar proposed. The article will finish with some brief observations Such a thrill when your radials squeal3 about emerging urban transport trends.

As with most western cities, car ownership and usage boomed in How did we get here? suggested key Melbourne after World War Two and there followed a significant sources of Melbourne’s car congestion program of freeway building. As shown by Figure 1, this post WW2 period saw the national average commuting times reducing Whilst this is a separate topic in itself, I believe the following key until the early 1960s, but then steadily increasing. The average factors have strongly contributed to Melbourne’s car congestion ‘distance travelled’ steadily increased over this whole period. problems: • Going back 100 years, our radial railway network promoting land speculation/sprawl, with Melbourne now being one of the most sprawling western cities in the world. Melbourne lacks the strong mass-transit, cross-city rail system of say London or New York. • A general pattern of under-investment in suitable transport infrastructure over recent decades. • Melbourne’s failure to avoid (or at least remove along the way) its railway level crossings. Also the tension between trams and cars on main roads. • With the rise of our information-based economy, the mis- In this context of ever longer average commuting times since match between strong population growth on Melbourne’s the 1960s, the problem of car congestion in Melbourne has been edges vis-à-vis Melbourne’s CBD and inner suburbs being a live issue for decades. Over the last few years in Melbourne ‘employment hotspots’. ‘transport’ issues have increasingly featured in the newspaper • Melbourne’s economic bounce-back in the mid to late 1990s, headlines. Again, the language can be dramatic, such as ‘The its strong population growth since then and its population cars that screwed Melbourne’ (Saturday Age, 19/5/18, Anson surge in recent years with 500,000 additional cars registered Cameron) or ‘Wrong way, go back’ (Sunday Age, 1/4/18, Janet in Victoria over the previous 5 years (notably in the outer Rice). However, there are also some more upbeat recent suburbs). articles about emerging new technology such as electric or autonomous cars e.g. the ‘More than electric dreams’ article Widely utilised measures in VCAT decisions written by the then Federal Minister for Environment and which promote more sustainable transport Energy, Josh Frydenberg. Whilst there still might be some debate involved hearing-to- It’s not hard to see a tension here between the desirable features hearing, I have set out below some now widely utilised measures and convenience of car usage in Melbourne vis-à-vis the risk of in VCAT decisions, which promote more sustainable transport car congestion getting out of control like a contagious disease outcomes: (‘like a disease son’). • Taking a ‘centre based’ approach to car parking provision in Most of the causes and possible cures for Melbourne’s car activity centres – see for example Great Oaks Pty Ltd v Greater congestion lie beyond the scope of VCAT’s role with merits Dandenong CC (Red Dot) [2015] VCAT 1673.

VPELA Revue October 2018 / 41 • More weight being given to the availability of nearby on-street The Tribunal accepted the full commercial car-share schemes. waiver and approved the proposal. • Apartments being approved with a requirement that the It relied on the strategic planning occupiers receive a ‘green travel plan’ e.g. with public support for ‘transport mode shift’ transport timetables and a Myki card. and the convenient tram services, • A greater emphasis on on-site bicycle provision. but reiterated that each proposal • More common debates whether some modest on-site car for car parking dispensation parking dispensation should be granted e.g. in relation to on- should be assessed on its own site visitor car parking or with sites near activity centres or merits. The Tribunal respectfully public transport nodes. disagreed with the view expressed • The beginnings of a move towards apartment or commercial in the Chaucer Enterprises decision car parking including re-charging facilities for electric cars. that granting a full car parking waiver will unreasonably congest More contentious VCAT decisions where the local streets (Councils can put substantial or full on-site car parking waiver in place local on-street parking was proposed restrictions). It noted that a full waiver had been granted in the A front-running Red Dot decision was Frydman v Port Phillip CC decisions of Pels v Moreland CC [2015] 1615 and Karanlight P/L v [2012] VCAT 1838, involving a significant apartment proposal in Yarra CC & Ors [2015] VCAT 2279 earlier that year. St Kilda. Despite Council opposition, the Tribunal allowed a full on-site car parking waiver, in light of the site’s inner-city location More recently, the Red Dot decision of Ronge v Moreland CC [2017] and excellent access to public transport. VCAT 550 has reinforced the fresh direction taken by the Vincent decision. This was an unusually large (8760 sqm) site, yet again in Chaucer Enterprises Pty Ltd v Moreland CC [2015] VCAT 1615 Brunswick, within walking distance of fixed rail and tram services. involved a site adjacent to a railway station in Brunswick and The proposal was for 59 two and three storey townhouses, with opposite the prototype apartment building ‘The Commons’ (see a roughly 50% level of on-site car parking dispensation. Council photo below). Based on The Commons, the ‘Nightingale model’ opposed this dispensation. In approving this dispensation and for apartments involves no on-site car parking, a high level the whole project, the Tribunal relied on Melbourne’s projected of built form sustainability, a strong emphasis on bicycle growth to 8 million people by 2050, the policy support for mode usage and a more communal living style e.g. shared roof-top shift away from car usage and the support of Council’s Planning laundry facilities. Department. The Tribunal highlighted that having less on-site parking should result in less additional traffic in local streets.

At a ‘big picture’ level, the Tribunal commented as follows at paragraph 64:

We have already referred to what can only be described as the massive increase in Melbourne’s population projected through until 2050. Our roads are already congested and will be unimaginably so if a ‘business as usual’ approach is accepted through until 2050. The stark reality is that the way people move around Melbourne will have to radically change, particularly in suburbs so well served by different modes of public transport and where cycling and walking are practical alternatives to car The Chaucer Enterprises case involved a proposal for a 5-storey based travel. apartment building, using the Nightingale model. Council supported the proposal, but another apartment developer took Dinopoulos v Darebin CC [2017] VCAT 118 involved the the application on review to the Tribunal. The objector submitted ‘Nightingdale 2’ project on a site abutting Fairfield Station and that the lack of any on-site car parking was an unacceptable the Station St shopping strip. The proposal was for a 5/6 storey planning outcome. The Tribunal accepted this submission and building providing for 20 apartments, following the Nightingale refused the proposal, with the Tribunal placing significant weight model including zero on-site car parking. Council supported on the on-going convenience of private car ownership. the proposal, but third party objectors initiated a Tribunal merits review. At the hearing, the Tribunal received expert traffic [This project ended up being approved with three on-site car evidence called by both Council and the proponent, supporting parking spaces, has been built (see photos) and recently won a a full on-site car parking waiver. The Tribunal accepted this ‘Good Design’ award]. evidence and issued an approval along similar lines to Vincent and Ronge. Later in 2015 saw Vincent Corporation P/L v Moreland CC & Ors (Red Dot) [2015] VCAT 2049, being a proposal to convert a Some on-going examples of on-site car parking waiver include warehouse into a five-storey apartment building with full on-site guest parking being waived for a residential hotel (Guan v car parking waiver. The site was near two tram lines and within Melbourne CC (Corrected) [2017] VCAT 1208) and for a residential the Brunswick activity centre, but one km from the nearest train hostel (Ravida Properties Pty Ltd v Stonnington CC [2018] VCAT station. Council opposed the full parking waiver. 307). Also see Doyen Tower Pty Ltd v Whitehorse CC [2017] VCAT

42 / VPELA Revue October 2018 1324 where dispensation was granted for 51 on-site spaces for a Whilst recognising the major environmental benefits of full major apartment tower on the edge of the Box Hill activity centre. electric cars and the possibilities with autonomous cars, they might still remain a source of ‘car congestion’ in Melbourne. Future trends with urban transport Hence the need for a holistic approach to better urban transport, where a variety of more sustainable transport options are Looking forward in time with our urban commuting, will we be pursued – notably better public transport. still self-driving our own petrol combustion cars, or seeing a more dramatic shift to electric or autonomous cars? It seems Postscript: at the time of completing this article, I was interested tricky to predict, but here are some thoughts. to see Rory Costelloe’s ramble on the virtues of electric bicycles It is easy to forget that electric, steam and petrol combustion (see pages 22-23 of the previous VPELA Revue). The Age has cars were level-pegging at the beginning of the 20th Century, recently looked at traffic congestion problems in Melbourne. before petrol engines became dominant. Also see the RACV June 2018 edition of ‘Royal Auto’, which has an article by Nick Place on using real-time traffic data to better There are mixed signs with a potential move to full electric cars. track car trip patterns. Also, the possibility of a London-style A greater choice of full electric models are coming through and ‘congestion tax’ is discussed. Hopefully this type of focus will Volvo has indicated that it will before long shift to only offering full help Melbourne grapple with this long term challenge. electric cars. On the other side of the ledger, the existing take- up of full electric cars is extremely small in percentage terms in Australia and often they are more upmarket/expensive models. Endnotes 1 Philip Martin is a full time VCAT Member – the views expressed in this article The possibility of ‘full autonomous cars’ shimmers in the are his own and based on case law as at July 2018. Philip’s vinyl collection distance, as a potential game-changer involving the following includes most Queen albums and he also has a soft spot for Pink Floyd, scenarios – cars drive in ‘platoons’, road safety drastically which likewise has a motoring link in the form of its petrol-head drummer increases, we need much less car parking space in our cities Nick Mason. and far fewer people own their own car. However, the ‘real life’ 2 Being the only Queen song entirely written by its drummer Roger Taylor (the film clip is worth a look). experience with early autonomous cars is still in flux, including 3 The song finishes with the rorty sound of the revving engine of an Alfa Romeo one or two fatalities world-wide. It would also appear that a huge owned at that time by Roger Taylor. investment in ‘electronic road infrastructure’ would be needed to make this shift as a whole community. Watch this space!!

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VPELA Revue October 2018 / 43 The Business Sound bites

Let’s make music Gillian Lee, Senior Consultant, Marshall Day Acoustics

Agent of change The definition It’s been nearly four years since Planning Scheme Amendment What is a live music venue? VC120 introduced Clause 52.43 (now relocated to Clause 53.06 under VC148). The Clause implements the ‘Agent of Change’ In Clause 53.06, a live music venue is defined as: principle with respect to noise from live music performance “a food and drink premises, nightclub, function centre or across Victoria and aims to protect live music venues from resi- residential hotel that includes live music entertainment, a dential encroachment. rehearsal studio, any other venue used for the performance of Has the application of the agent of change principle worked as music and specified in clause 2.0 of the schedule to this clause, intended? subject to any specified condition or limitation.” The principle There are many recognised high profile live music venues in Melbourne including The Corner Hotel, The Tote, Howler, and When a new residential development is to be located within 50m Cherry Bar. of an existing live performance venue, the developer is obliged to provide appropriate noise attenuation measures to protect future But what of the small local hotel that has the occasional band residential amenity. or acoustic musician on a weekend or once a month? Does this also constitute a “live music venue” and does the performance The noise control treatments can be installed at the venue and of music definition extend to DJ’s who play pre-recorded music? paid for by the developer or the development can incorporate an appropriate design response such as upgraded glazing to In this case, it would be helpful for the relevant Responsible achieve a suitable internal residential amenity. Authority to have a list of recognised live music venues in the area to avoid any uncertainty in the application of the agent of Previously, the control of music noise was the sole responsibility change principle. of the noise emitter. If residential encroachment occurred the operator of the venue had to finance noise control treatments The noise limits or change the nature of operations to ensure music noise Music noise limits are set by State Environment Protection Policy emissions would meet the noise limits. (Control of Music Noise from Public Premises) No. N-2 (SEPP N-2).

44 / VPELA Revue October 2018 The types and extent of treatments required depends on the music volumes from the licensed venue being considered.

In determining appropriate treatments, it is important to ascer-tain the appropriate existing or potential music noise from the licensed venue to determine the most suitable design response.

In some cases, the effects of live music are underestimated and often an architectural design proceeds before the acoustic analysis has been undertaken resulting in situations where the agent of change provisions cannot be achieved without significant modifications to the spatial layout of the residential develop- ment. In some cases, upgrading glazing alone has not provided sufficient sound reduction to result in acceptable noise levels inside proposed apartments. SEPP N-2 sets limits based on existing background noise levels in the area and requires that the assessment of music noise be Dialogue between the developer and licensed venue is crucial to performed at an outdoor area (such as a courtyard or balcony) or ensure an outcome suitable for both parties. outside an open window of an affected dwelling, unless the noise The outcome transmission is via a floor, ceiling or wall with no openings. Residential developments that have had to consider the Agent of Under Clause 53.06, a noise sensitive residential use must Change principle and incorporate appropriate design measures be designed and constructed to include acoustic attenuation have been approved and are currently under construction. measures that will reduce noise levels from any: It remains to be seen whether the principle will successfully allow future inner-city dwellers to co-exist in harmony with • Indoor live music entertainment venue to below the noise live music venues. Maybe all it needs is a little R-E-S-P-E-C-T limits specified in SEPP N-2; between parties. • Outdoor live music entertainment venue to below 45dB LAeq (15min). Gillian Lee is a Senior Consultant with Marshall Day Acoustics. She specialises in environmental noise assessment and Clause 53.06 states: acoustic design for audio spaces e: [email protected]

for the purpose of assessing whether the above noise standards are met, the noise measurement point may be located inside a habitable room of a noise sensitive residential use with windows and doors closed (Schedule B1 of SEPP N-2 does not apply) It should be noted that Clause 53.06 allows for a new residential Thank you to departing development’s facade to be designed to achieve SEPP N-2 noise limits for music noise internally with windows and doors closed Board member – Lisa Stubbs (i.e. the assessment point is located indoors). VPELA would like to thank resigning Board member Lisa In contrast, if windows are openable, SEPP N-2 currently requires Stubbs for her significant contribution to the Association. an external assessment point which is in conflict with Clause 53.06. It would go against the principles of sustainable design to Lisa joined the Board in 2015 and since then has organ- have fixed non-openable windows in a residential building. ised and assisted with many seminars and workshops. She was instrumental in establishing the Moot Court Essentially, SEPP N-2 requires an amendment to allow for to program and has been a strong advocate for our young allow for internal assessment for new residential developments. professional members. She has participated in a number Whether this loophole will allow for residents moving close to of submissions in relation to planning policy and has an existing live music venue to complain about noise to the EPA assisted with the production of our magazine. and for the EPA to prosecute remains to be seen. We acknowledge and thank her for her committed The treatments service. She will be missed but we have no doubt she will continue to be an active VPELA member. We wish her The most common treatments applied to the development good luck for the future. include upgrading the facade design to include thicker glazing, the use of higher-than-standard solid balcony balustrades or the inclusion of winter gardens.

VPELA Revue October 2018 / 45 The Business Heritage fabricated: Tall buildings Can they ever fit in to a historic context? Jim Gard’ner, GJM Heritage

Ask any heritage architect what the three most important issues John Wardle Architect’s proposed tower for Victoria University are when fitting new built form into a historic context and the took a similar approach to that adopted in Denton Corker answer will undoubtedly be ‘scale’, ‘scale’ and ‘scale’. No matter Marshall’s Ernst & Young tower above the Herald & Weekly how well designed, how sophisticated the façade articulation Times Building (also included on the Victorian Heritage or ‘respectful’ the architectural language, a new building or Register). That is to construct a contemporary tower within a addition that is massively out of scale with its historic neighbour large-scale heritage building that takes up the good part of a city can seldom fit harmoniously into its environment. block and setting it off from the retained façades or outer form of the heritage building. The success of this approach depends Increased property values have made higher-rise developments both on the scale and robustness of the heritage building and financially viable not just in Melbourne’s CBD, but also its the height, massing and setbacks of the new development. The inner and middle suburbs, and as the ‘easy to develop’ sites heritage building must be able to hold the street edge and remain are developed more commercially marginal sites, including the dominant streetscape element. For this to be achieved, the those occupied by heritage buildings, become attractive for relative height between the retained heritage building and the redevelopment. In recent months Victoria University’s proposed new tower becomes critical. Victoria University’s proposed tower above the former Land Titles Office has been floated, tower was to rise 17 storeys (90 metres) behind the retained and ultimately refused, for a heritage permit by the Executive two Victorian-era storey form of the former Land Tiles Office. In Director, Heritage Victoria. The controversy surrounding this comparison the EY building rises 35 storeys (165 metres) above proposal raises interesting questions about how to integrate tall the five storey Interwar period Herald & Weekly Times building. buildings within historic areas. A clear international parallel to this approach, and one that was also constructed within the form of another heritage building, is the Hearst Communications world headquarters in Midtown Manhattan, New York City. This 46-storey (182 metre) building by Foster & Partners, like the EY Building, was built behind a 1920s six-storey stone-clad structure. The ratio of tower to existing building is similar between the EY Building, the Hearst Tower and the proposed Victoria University tower being 7:1, 7.5:1 and 8.5:1 respectively. In each of these examples the building is located within a dense CBD (or downtown) context and the relationship between the new towers and urban-scaled heritage buildings they occupy, arguably achieves an acceptable planning outcome by retaining the prominence of the street wall while also making a positive contribution to each city’s skyline. While not guaranteeing a poor heritage outcome, going beyond this relationship of tower to retained heritage building, even in a CBD context, will make it harder to maintain the visual prominence of the historic façade or its streetscape values without dwarfing the ‘host’ building.

An arguably more difficult challenge is how to integrate a new stand-alone skyscraper within a historic and predominantly low-scale environment. One of the most famous, and most controversial examples of the integration of a new high rise within a complex historic area is the 62-storey John Hancock Tower in Boston’s Copley Square. Boston, which is home to the historic preservation movement in the United States, introduced some of the first height limits at the turn of the twentieth century to protect the scale of primarily residential areas such as Back Bay and the visual prominence of key landmarks such as the Massachusetts State House. By the mid-twentieth century these height limits had broken down and been replaced with New York- style plot ratios and setbacks in downtown and urban renewal areas. Few of the skyscrapers built over the past 50 years have Hearst Building and Tower, New York.

46 / VPELA Revue October 2018 Whereas a standard office tower of 62 storeys with an externally expressed frame or concrete cladding panels, such as I.M. Pei’s Collins Place in Melbourne, would have dominated surrounding buildings, Cobb’s solution was to exploit the ambiguity of a reflective glass skin that mirrors the surrounding buildings up to the roofline and then picks up the colour of the sky. In this way the building only appears to exist up to about the seventh storey, after which it becomes almost indistinguishable from the sky. What Cobb achieved in the Hancock Tower is a building that responds to its context in a more sophisticated way and is ultimately a better neighbour than a building that overtly tried to reference the Romanesque architecture of Trinity Church, the Renaissance Revival of the Copley Plaza Hotel or the Italian Palazzo-style of Trinity Church and Copley Plaza Hotel reflected in Hancock Tower, Copley Square, Boston, MA. the Boston Public Library. Although originally derided, the Hancock Tower been inserted into such a sensitive heritage context as Copley has received multiple AIA awards as well as critical acclaim, being Square which includes the National Historic Landmarks of Henry described as “the crown jewel of Boston’s skyline” and “Arguably Hobson Richardson’s Trinity Church, Charles McKim’s Boston the last and best expression of the Modernist skyscraper … the Public Library and Cummings & Sears’ New Old South Church. triumph song of the Modern Movement in America.” It is for the building’s reflective quality that it is perhaps best known - not Vehemently opposed by the Boston chapter of the American only in the architectural press – but also the public imagination, Institute of Architects and the local Back Bay residents’ with travel guide Fodor identifying viewing “the reflection of Trinity groups, the Hancock Tower is, at 240 metres, taller than its Church in the John Hancock Tower” as one of six quintessential historic neighbours by an order of magnitude. Built on a site Boston experiences. immediately adjacent to Richardson’s American Romanesque masterpiece, Trinity Church, and designed by Henry Cobb of In a heterogeneous heritage environment such as Copley Square I.M Pei & Partners, the Hancock Tower responded to its context – or any number of comparable urban spaces – the ‘slick skin’ not by mimicking or taking design clues from its heritage-listed of reflective glass that reflects a myriad of architectural styles neighbours, but by angling its trapezium form so the narrow side can respect heritage buildings in a way than no other skyscraper of the tower addressed the historic square. The visual impact design response could. The Hancock Tower while not the answer of the tower is further reduced in visual bulk through the off- to every high-rise ‘problem’ offers one solution to how new centre ‘V’-shaped recesses running the full height of the narrow skyscrapers can be incorporated into a historic environment sides of the building. It is however the frameless curtain glazing, without resorting to historicist or Post-Modern design. itself innovative and at the limits of technology available in 1968, that allows the building to ‘dematerialise’. This approached is Jim Gard’ner is an architect and director of heritage best summed up by Cobb himself when he said “It’s a silent consultancy GJM Heritage. Currently based in Boston, building … the reason it’s silent is it’s designed to respond to Massachusetts ,Jim is returning to Melbourne at the Copley Square. If it weren’t silent it would really be offensive in beginning of 2019. [email protected] its presence there.” IMP012_VPELA 1-4 Page_Brand Comms_Update_10.10.18_300dpi.pdf 1 10/10/18 6:02 am

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VPELA Revue October 2018 / 47 The Fast Lane with Henry Turnbull Were all the parking changes in Henry Turnbull, Amendment VC148 intended? Director, Traffix Group

Amendment VC148 was gazetted on the 31st July recommended changes including the introduction of reduced as “part of the Smart Planning program’s reforms (Column B) parking rates, that were adopted and incorporated into Clause 52.06 of the scheme. to simplify and modernise Victoria’s planning policy and rules to make planning schemes more efficient, The MAC intention for Column B rates was for them to be applied accessible and transparent”. by means of a Parking Overlay for land: • Within an activity centre, and • Where there is a significant pool of public car parking provided to supplement the on-site parking being provided at the lesser Column B rate.

The Column B rates allow many uses to provide parking at the same rate based on floor area thereby removing the require-ment to obtain a permit to reduce parking for a change of use where the new use has a higher parking demand, e.g. shop to restaurant. This is based on the concept of a “whole of centre” parking assessment. The PPTN Area does not have the same characteristics! Out of centre parking reductions The PPTN Area includes many locations that are not well served by on-street (or off-street) community parking or significant public transport infrastructure to the extent that it would warrant a reduced car parking provision for all types of development.

While I am supportive of the changes made by Amendment VC148 in streamlining the planning process for small developments and removing outdated requirements, it is not universally appropriate to equate proximity to public transport Amendment VC148 changed Clause 52.06 (Car parking) to reduce with a reduced carparking demand. car parking requirements for new uses of existing buildings in commercial areas and for land within walking distance of public Significant parking reductions for uses which would be approp- transport on the Principal Public Transport Network (PPTN). riate in an Activity Centre now apply in residential areas within the PPTN Area, where they may not be so well suited. There are two main parking related changes, namely:– For example:– • A permit exemption under Clause 52.06-3 where a new use in an existing building in a Commercial 1 or 2 Zone or Activity • Restaurant, hotel, tavern, convenience restaurant or winery Centre Zone does not require a parking requirement reduction (where the rate goes from a per patron rate to a floor area of more than 10 spaces, and rate); • Application of the reduced parking rates specified in Column • Medical centre or veterinary centre (where the rate goes from B of Table 1 in Clause 52.06 if any part of the land is identified a per practitioner one to a floor area rate); and as being within 400 metres of the PPTN as shown on the PPTN • Dwelling, residential village or retirement village (where the Area Maps. requirement to provide visitor parking is removed).

It is this second change that causes me some concern. Time will tell whether these changes are supported by the com- munity. In the meantime, there are opportunities for increased Purpose and Application of Column B Rates development within the PPTN Area. In 2012, the Ministerial Advisory Committee (MAC) making a Henry Turnbull is Principal Consultant with the Traffix Group review of Clause 52.06 and the findings of the earlier 2008 MAC, and a former President of VPELA.

48 / VPELA Revue October 2018 The Business Covenants continued When is a beneficiary not a beneficiary? Matthew Townsend, Barrister

You’re attempting to identify the beneficiaries to a restrictive Does this create a further statutory exception to the principle in covenant arising out of a transfer of land, and the covenant Re Mack’s Conveyancing, set out above? purports to pass the benefit toall the land in the subdivision, for example, the covenant states that the benefit passes to: This question has not yet been considered in Victoria, but one Supreme Court judge has described it as a “simmering issue” … the transferors their respective heirs executors administ- and it now seems to be being raised on an almost weekly basis in rators and transferees and other registered proprietor or the Supreme Court. In the meantime, when a covenant purports proprietors for the time being of the land comprised in the said to pass the benefit to all land within a subdivision, current Plan of Subdivision and every part thereof… practice is to:

Does the benefit of the covenant extend to all lots in the - create two categories of beneficiaries—one whose standing is subdivision as the instrument purports to do? clear; and one whose standing is in doubt; - independently assess any injury occasioned by the proposed Arguably not, for it has been said that a covenantee cannot attach modification on both categories of beneficiaries; the benefit of a covenant to lands already sold. InRe: Mack and - notify both categories of beneficiaries with careful wording as the Conveyancing Act [1975] 2 NSWLR 623 Wooten J explained: to the recipient’s potential entitlement to become a party; and The covenant clearly states the land to which the benefit of the to restriction is intended to be appurtenant, and the only question - defer determination of any defendant’s standing to the final is whether the benefit is in law so appurtenant, ie whether the determination of contested proceedings. restriction is validly created. There is ample authority that The need to accurately identify beneficiaries is also raised in a vendor of land in respect of which he takes a restrictive applications to modify covenants arising out of instruments of covenant cannot, by the covenant, annex the restriction to land which he does not own, unless the covenant is given as part of transfer, pursuant to the Planning and Environment Act 1987 by a building scheme of development. reason of section 52 of that Act that provides:

In Victoria, Gillard J in Fitt & Anor v Luxury Development Pty Ltd (1) Unless the responsible authority requires the applicant to [2000] VSC 258 put it this way: give notice, the responsible authority must give notice of an application in a prescribed form— 153. The important point to note here is that the covenantee (cb) to the owners (except persons entitled to be registered does not have the right to enforce a covenant except as under the Transfer of Land Act 1958 as proprietor of an against the original covenantor, if he does not have any estate in fee simple) and occupiers of land benefited land for the benefit of which, the covenant was taken. by a registered restrictive covenant, if the application 154. A covenantee or his successor in title must own land to is to remove or vary the covenant; … be benefited in order to impose the burden on the owner of the burdened land. However, the issue in the planning jurisdiction is ameliorated to some degree by the ruling of DP Gibson inHill and Campaspe (Red As Wooten J suggested, an exception to the rule is where a Dot) [2011] VCAT 949 that by reason of the separate operation of building scheme or reciprocal scheme of development exists. clause 52.02 of the Victoria Planning Provisions to section 60(5) To determine this, one makes an assessment against the four of the Planning and Environment Act 1987, “there is no reason why criteria set out by Parker J in Elliston v Reacher. However, despite persons who do not have the benefit of a covenant may not object the regularity with which building schemes are claimed, few to its removal or variation.” have been effectively established in Victoria. Until this issue is finally resolved, lawyers advising clients in To add further complexity, section 56(1) of the Property Law Act covenant cases should embrace the approach advanced by 1958 provides that persons not named as parties may take an former Senior Member of VCAT, Russell Byard, when discussing interest in land: the notification obligations arising out of s52 of thePlanning and Environment Act 1987 that: “when in doubt, advertise.” For it is 56 Persons not named as parties may take interest in far better to deal with your opponents early, than to deal with land etc. the consequences if you are later found to have not carried out a (1) A person may take an immediate or other interest in land sufficient process of notification. or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or Matthew Townsend maintains https://restrictive-covenants- other property, although he is not named as a party to the victoria.com/ a website providing cases, precedents and conveyance or other instrument. materials on restrictive covenants.

VPELA Revue October 2018 / 49 The Business Environment Protection Amendment Act 2018 Zina Teoh, Gadens Lawyers

On 22 August 2018, the Environment Protection Amendment “A person who is engaging in an activity that may give rise to risks of Act 2018 (VIC) (the Amendment Act) was passed by the Victorian harm to human health or the environment from pollution or waste Parliament, providing for the largest overhaul of environmental must minimise those risks, so far as reasonably practicable.” legislation in the past 50 years. The key operative provisions are set to commence on 1 July 2020, which allows time for the The duty is modelled on occupational health and safety law and drafting of the regulations and other key policy materials. includes civil and criminal penalties for persons breaching the duty in the course of undertaking a business. While the Amendment Act (at the time, a bill) was being debated by the Victorian Parliament, VPELA, in conjunction with Gadens Kate advised that the EPA will be releasing guidance and Lawyers, hosted a breakfast briefing on 9 July 2017 on the compliance codes to support businesses with meeting their changes with speakers Kate Gavens, Direction of Environment obligations under the general environmental duty. The duty is Protection at DELWP and Con Lolis, Senior Policy Officer designed to be flexible and proportionate to the scale and risk of (secondment) at DELWP providing us with a detailed overview of an undertaking. the legislation and future for the environment protection regime Permissions moving forward. The Amendment Act takes the licence permissions and other The key takeaways from the briefing are still relevant as the parts from the EP Act 1970 and brings them together in one Amendment Act was passed essentially unchanged from the streamlined system with the following 3 main permissions: bill which was discussed at the briefing and are highlighted as follows. • Licence – For high risk activities requiring bespoke conditions; Background • Permit – For medium risk activities where the risks are well known and standard conditions are considered appropriate; and Kate took us through the background to the Amendment Act • Registration – For industries with generally low risk in order to and noted that it sits within a broader EPA reform program that provide the EPA with greater oversite. resulted from the 2016 Independent Inquiry in to the EPA which identified the need for the EPA to modernise and become a We note that it will no longer be possible for licences to be proactive leader with the power to address modern environmental granted indefinitely under the new system. Additionally, where issues such as population growth and climate change. registration is required, this registration will be automatic.

The first part of the legislative reform which came out ofthe Waste Management Framework Independent Inquiry was the new Environment Protection Act 2017 (the EP Act 2017) which comes in to force on 1 July 2019. The Amendment Act reforms the current Prescribed Industrial The EP Act 2017 implements a modern governance structure for Waste system and creates a priority waste system designed to be the EPA and introduces a new statutory objective for the EPA to more targeted and flexible. Litter and waste dumping penalties protect the environment and human health. will be based on volume so as to be more proportionate. The penalties for offences for industrial waste have been doubled. The Amendment Act represents the second tranche of legislative reform to the EPA and the environment protection regime. Once Contaminated land and pollution incidents the key operative provisions commence, it will amend the EP Act The Amendment Act includes a duty to report and to manage 2017 and repeal the Environment Protection Act 1970 (the EP Act contaminated land and to take action to respond to harm and 1970). Once amended, the EP Act 2017 will focus on prevention respond to pollution incidents. and reducing the potential risk of harm, representing a shift from the EP Act 1970 which was focused on managing the It also introduces a duty to notify the EPA as soon as reasonably consequences of pollution. practicable of a pollution incident and take action to respond to harm. Kate noted that this duty is consistent with the duty to The details of the changes to the EP Act 2017 brought in by the notify which we see in other jurisdictions across Australia, and Amendment Act are set out as follows. that many people thought that this was already a requirement General Environmental Duty in Victoria. The cornerstone of the preventative focus of the Amendment Act The duty to take action rests with the person responsible for the is the general environmental duty, which provides: activity. The inclusion of the ‘reasonably practicable’ wording acknowledges that it is not always possible to restore the land to the same state as before.

50 / VPELA Revue October 2018 Environmental audit Scheme by the Amendment Act are intended such that all notices can be appealed at VCAT, and that there will also be an internal review Kate noted that a criticism of the current audit system is the costs, provision within the EPA for notices. given it does not allow for flexibility. The reforms implemented by the Amendment Act are designed to increase flexibility and Moving Forward reduce the costs of the process, by introducing a preliminary risk screening for a quick low cost assessment of the risks, followed The majority of the provisions of the Amendment Act have not by a scaled assessment audit of key risks. yet come in to operation and will commence on the day that they are proclaimed, or automatically on 1 December 2020 if they Better Environment Plans to prevent are not proclaimed before then. The government has advised problems and avoid enforcement that it intends for the key operative provisions to commence on 1 July 2020. The Amendment Act introduces Better Environment Plans to provide a mechanism for persons undertaking an activity and This second tranche of reforms brought in by the Amendment the EPA to agree on a pathway to achieve compliance. This could Act brings in a new era for the EPA and implements a proactive be suitable for businesses remediating a portfolio of sites that approach to preventing the risk of harm to the environment wish to seek EPA endorsement of a plan that manages the clean and human health. We expect to see new regulations, policy up over a period of time to address the most significant risks documents and further guidance from the EPA released over first. Industries seeking to use new technologies and methods the coming months. Businesses will need to become familiar to meet the general environmental duty could also use Better with their obligations under the new legislative regime to ensure Environment Plans to seek EPA endorsement of their innovative that they are prepared when the key operative provisions of the approaches to duty management Amendment Act commence. Environmental Reference Standards Zina Teoh is a Lawyer at Gadens specialising in planning and environmental law. Email: [email protected] State Environment Protection Policies are set to be replaced by Environmental Reference Standards which would set out environ- mental values and the standards required to protect them. EPA powers, information transparency and sharing In line with the modernisation of the EPA, Authorised Officers will be given the power to enter premises and investigate suspected breaches of law, as well as access to modern surveillance devices. Officers will be better protected through higher penalties for obstructing, assaulting or impersonating an Authorised Officer. Information sharing across jurisdictions is also enabled. New Penalties The Amendment Act introduces new penalties and more flexible sanctions.

It will now be possible for third parties to seek civil remedies for breaches of the EP Act 2017. Additionally, alternative sentencing arrangements have been introduced, including the possibility of WE DO MORE funding of practical environmental improvement projects. THAN ADVISE; The Amendment Act also increases the maximum penalties as follows: WE DO PARTNER MORE • for corporations the maximum penalty has increased from THAN ADVISE; $1.6 million (10,000 penalty units to $3.2 million (20,000 In an increasingly globalised, hyper-connected penalty units); WEworld, we PARTNERfocus on our clients’ needs to best • for individuals the maximum penalty has increased from $0.4 position them for their new tomorrow, million (2,500 penalty units) to $0.6 million (4,000 penalty Inwhatever an increasingly it may globalised, hold. hyper-connected world, we focus on our clients’ needs to best units); position them for their new tomorrow, • for corporations that conduct illegal dumping the penalty has whateverWWW.CORRS.COM.AU it may hold. increased from $0.8 million (5,000 penalty units) to $1.6 million WWW.CORRS.COM.AU (10,000 penalty units).

Con noted that currently all notices i ssued under the EP Act 1970 must go to the Supreme Court for review. The reforms brought in

VPELA Revue October 2018 / 51 The Business PlanningxChange Podcast series enters the ‘Roaring Forties’ Jess Noonan Peter Jewell

PlanningxChange has kicked off its ‘roaring forties’ series with from the academic world, which is distributed on SoundCloud. the release of PX41 featuring David Bissell author of Transit Some of the distribution platforms such as PlayerFM aggregate Life. The podcast series is produced in Melbourne and has been topic headings so a search for say ‘city planning’ will bring up live since December 2014. It consists of a monthly interview podcasts on this topic from around the world. series. Each episode runs for roughly 30 minutes. Many of the interview subjects have graced the pages of the VPELA When we first started PlanningxChange it was very much a case Review. The interview subjects are a diverse bunch; government of DIY and learning on the run. Now with the help of sponsors we planners, consultants, lawyers, artists, security experts, media, have been able to buy better recording equipment and have an developers, architects etc. Although it is Melbourne based, the audio engineer to help with editing. Soon we will be conducting program seeks to be non-Victorian centric and cover topics of phone interviews so overseas guests will be on our list. Our universal urban interest. website contains a number of videos which show ‘behind the scenes’ with a podcast interview in progress. Many people are yet to enjoy the pleasures of podcasting. It can be described simply as ‘audio on demand’. It is not a difficult The PX project has only been possible through the generosity of medium to enjoy. If you have internet access on your phone or our subjects. In every interview they provide insights and candid on your computer, then you can listen to podcasts. Podcasts views. It is a heartening experience and one which confirms are available through a variety of platforms such as iTunes, the very collegial nature of our industry. There have been a few Player FM or Soundcloud just to mention a few. You can listen disasters on the way with at least three interviews having to be to a program and if you like it you can subscribe and then when re-recorded. Still we muddle along with great support from the each next episode is released it will automatically be available for planning community including VPELA and PIA. downloading on your device. It is easy to unsubscribe, just click If you haven’t listened to our podcast please visit our website the button. The technology makes ease of use outstanding. www.planningxchange.org for details. On the webpage there are The term podcasting originated in 2004 and was a shorthand links to other urban planning-based podcasts. If you have never combination of ipod and broadcasting. Podcasting in the listened to a podcast then we urge you to do so, your life will be mainstream really took off with the ‘Serial’ series which has had enhanced. 250 million downloads. In Australia, the series ‘The Teachers Jess Noonan is an experienced urban planner who works Pet’ recently passed 17 million downloads. There are now with Tract Consultants. Jess has previously been involved in podcasts on virtually every subject – sporting teams, history, the Planning Institute of Australia National and State Young crafts, business, news, arts etc. The technology allows special Planning Committee’s. She was awarded the ‘Female Achiever interest groups to flourish and for communities to connect. of the Year’ by PIA (Vic) and the Women’s Planning Network. When PlanningXChange first launched there were few Peter Jewell commenced work as a town planner in 1984. Australian urban planning / city development podcasts. Now Since 1991 he has had its own consulting firm, Jewell there are many. We have recently joined the Urban Broadcast Partnership P/L. e: [email protected] Collective, an Australian grouping of urbanist podcasts mainly

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52 / VPELA Revue October 2018 The Business Rory’s ramble Peddling a brighter future Rory Costelloe, Executive Director, Villawood Properties

Since staring this column in 2009, I’ve tried to rotate the topics the prevalence of overseas buyers in the Greenfield market covered, if only to keep things interesting and make sure I’m not has increased significantly. Historically prices per hectare of repeating myself. During this time, the themes covered have undeveloped land in the growth corridors of Melbourne have spanned from the ‘natural fit’ such as planning, the environment been averaging $600,000 – $800,000 per hectare, but due to the and related corporate matters right through to community influx of offshore competition the rates have gone up dramatically creation, world travel and economics. with some recent sales to overseas buyers at $1.8M and even $2Mper hectare. There is no home turf advantage here, as local The rotation has once again landed on economics and from a developers get priced out of the market by off shore purchasers developer’s perspective, boy, is there a lot to talk about. As I’m with different project performance metric, with the danger they restricted by space and word count, I’ll keep it to the timeframe are land banking to drive Melbourne’s land prices to the dizzy of 2016-2018, examining the unprecedented housing boom. In height experienced in Sydney. this two-year period, you can pinpoint where everything came to a head in terms of the pending market correction. The second whammy developers are facing comes in the form of increasing civil construction costs. This is primarily driven 2016-2018 marks the peak of the highest property boom the by the civil construction industry’s inability to keep up with the country has ever seen since the gold rush. And like the gold delivery demands fuelled by the surging sales experienced over rush, one of the driving factors is the population boom with the 2016 – early 2018 period in particular. This pressure has also people from all parts of the world seeking to find their fortune been exacerbated by Victoria experiencing an infrastructure in Australia. construction boom led by the State and Federal Governments, both of which are coordinating an unprecedented number In the last year alone, Victoria’s natural increase in population of transport projects. That’s 45 major road and rail projects was 143,000, of which approximately 85,000 was net overseas currently underway, and a new Metrolink in the decades to come. migration. The good news story is that this undertaking has the potential to Where do our new immigrants want to live? Anecdotally, there create tens of thousands of jobs across the state and at the end has been a link between country of origin and location preference. The rule of thumb is that Asian immigration is more inner city, Anglo/European migration is more prevalent in the middle Value of work done by year ring suburbs, while the aspiration for a detached home with (Years ended June) a backyard has contributed to vast numbers of Indian and Sri Lankan buyers in the growth corridors. This preference spread has translated to approximately 24,000 additional lots that need to be delivered in the outer suburbs over each of the last three years, up from a previous average of 15,000 lots per year for the previous decade.

Simple economics dictates that when demand outstrips supply, costs will go up.

Victoria’s booming population has created extraordinary demand and we are experiencing a change of demographics where over 70% of our current growth area buyers are born overseas. This high demand has driven the average price of a 448sqm block from $220,000 in 2016 up to currently its current position, in excess of $350,000.

While a 60% price jump for consumers in a two-year period may initially raise an eyebrow, the spiralling costs associated with acquiring and developing land have correspondingly increased the blood pressure of many developers.

I’ll start with acquisition costs. In the period of January 2016 – October 2018, the average amount it costs to buy englobo land has gone up by 175%. It’s no coincidence that in the same period, Major Transport Infrastructure Projects. (Source AFR)

VPELA Revue October 2018 / 53 of it all the optimist’s take is that the state’s infrastructure should Banks are now going through homebuyers’ credit applications be where it needs to be to meet the demands of the ballooning with a fine-tooth comb and reducing the amounts they are population. On the flipside, it means developers are competing willing to lend to people. with the Government for access to experienced civil contractors, quarry materials and things as simple as concrete and trucks to So, this in itself is a sensible thing – to only lend people what they deliver materials to sites. Which takes us back to the equation, can afford – but the Royal Commission should have been two where demand outstrips supply and, as a result, costs increase. years ago, in a far more stable and affordable market and would In the January 2016 – October 2018 period, civil construction have largely reduced the rampant demand that caused the price costs have increased 111%. hikes we’ve seen in this period.

It should also be noted that the infrastructure boom has only just Where to from here? started, and it’s anticipated to be one-and-a-half-times the size The graph below shows a collision course between prices and of the mining boom. costs if we continue on this path of increasing construction costs The third price increase faced by developers relates to and a significant land price correction. Responsible Authority fees, which have gone up by 101% since There is one thing for sure, nobody knows whether we’re going to January 2016. That’s on top of the 175% englobo land price have a minor or major correction. And we can’t rely on historical increase and 111% increase in construction costs. data and say the fundamentals are all strong because every While the violins play for us developers – let’s go back to the boom and bust is governed by different parameters. customers, who are dealing with minimal long-term salary Those who are under forty, who graduated from university since growth and three of the big four banks recently increasing their the year 2000 and began employment near the start of our mortgage rates. long property boom, have no comprehension of what it’s like to Commentators were watching the property market closely and experience economic hardship. wondering when the boom was going to end and then in comes A rest of the economy would be good to restore affordability, as the Banking Royal Commission, giving the major banks a kick up long as it does not cause too much carnage on the way down. the proverbial backside. Unless, of course, the horse has already bolted, and we are The kneejerk reaction of banks has been to overcorrect their forced into Sydney prices. poor lending practices which is now creating a credit squeeze, both in terms of developer land funding and home buyer finance.

High raw land prices and rampant construction costs have dramatically changed Melbourne’s affordability equation.

54 / VPELA Revue October 2018 The Business Unlocking significant social effects

Hubert Algie, Lawyer, Kellehers Australia

‘Significant Social Effect’ (‘SSE’) (underline added) is a mandatory • The Responsible Authority may determine that no formal SEE consideration in every planning permit application1. Its role in the assessment is required11. planning permit process, however, is far from clear. Current SSE • SSE (and all s60(1) considerations), whilst mandatory are not practice is leading to lost opportunities for improved planning. determinative12. • SSE must be balanced with other significant effects13 e.g. To date, successful reliance upon SSE is very rare, given the environmental. apparent practical difficulty of demonstrating a SSE sufficiently to impact decision-making. Evidence Required

Whilst vexing, this paper concludes that SSE assessment • SSE must be objective and evidenced. It requires a ‘proper has important potential for far more robust and rigorous use evidentiary basis’14. to achieve positive planning and economic outcomes. SSE • SSE must have a causal connection to both the proposed use assessment presents opportunities for innovative improvements or development as well as the objectives of planning15. in community engagement, more responsive permit conditions • SSE needs to be an effect upon the community and not merely and better, commercial, economic and planning outcomes. upon one individual or a small group of individuals. It could, potentially, include the whole State16. The commercial benefits of social capital are already well • SSE can be positive or negative. An SSE assessment must under-stood within entrepreneurship and business where consider both types of effect17. the financial benefits achieved by trusting social networks is • SSE involves an evaluative judgment of fact and degree18. recognised. Francis Fukuyama, the renowned political econo- • SSE should be ‘objectively ascertained through the decision mist, commented: maker’s expertise’19. “Social capital differs from other forms of human capital Determining Significance insofar as it is usually created and transmitted through cultural mechanisms like religion, tradition, or historical habit… The • Determining significance is a question of fact20. proclivity for sociability is much harder to acquire than other • It must be of a sufficient extent21. forms of human capital, but because it is based on ethical habit, it • The effect must be sufficiently probable to be ‘significant’22. is also harder to modify or destroy.”2 • ‘Significant’ is informed by the possible gravity of the effect, including consideration of the ‘postulated consequences’23. Social capital and the strength that comes with an established, • When considering if an effect is ‘significant’, it is necessary to trusting network, is well understood to bring long term economic have regard to: the planning scheme definition of the use or 3 benefits . One example Fukuyama gives, is the La Terza Italia development sought, the applicant’s disclosed intentions and region of northern Italy where high levels of social capital the capacity to confine and control the proposed use by permit demonstrate a link between social capital and a significant conditions24. 4 impact on the vitality and scale of economic organisations. • The mode of assessing the significance of an effect is not Improving SSE assessment, therefore, should not be viewed prescribed in PEA25. as a soft consideration but rather a fundamental element to improved planning, economic and commercial outcomes as well Analysing Social Effects as broader planning benefits. It is in the area of analysis that a degree of complexity and Analysis of thirty Victorian SSE cases suggested three broad difficulty emerges. This even extends to identifying what an SSE approaches applying now in Victoria5. These are summarised actually is and how it should be determined. below. Apart from needing a ‘proper evidentiary basis’, there is no clear method of analysis proscribed by Victorian cases, although Core Concepts of SSE many accept a Social Impact Assessment (‘SIA’) as a ‘proper 26 • Town Planning is ‘not a panacea for all social ills’6. evidentiary basis’ . It is not defined by stipulated criteria7. • The SIA developed in the USA in the 1970s as an analytic It is ‘necessarily protean’, i.e. frequently changing8. • methodology that grew out of the Environmental Impact The responsibility for determining what constitutes a SSE is • Statement process27. However, SIA is only one form of at least not placed with the Supreme Court9. thirty different possible methods for analysing and assessing The Responsible Authority [and VCAT on appeal] determines • ‘Social Impact’. The lack of consensus regarding methodology is whether something constitutes an SSE and what weight it recognised as hampering the ability to study social impact28. No should be given10.

VPELA Revue October 2018 / 55 Victorian or Australian standard exists for an SIA. International Or consider, Dr Mitch Mooney’s work, with Netball Australia SIA principles and guidelines29, developed by the International and the Australian ‘Opals’ Netball Team that used ‘systems Association for Impact Assessment (IAIA), provide useful thinking’, drawing on animal behavioural science (shoals of methodology and principles, as well as detailed guidelines fish), to analyse group dynamics. They demonstrated that for assessment. These extend to implementation, monitoring social decision-making can be unconscious and hardwired, but conditions and, where required, remediation. incredibly influential.39 They were able to map the unconscious traits of a number of netball nations (from elite to junior levels) Although no Victorian Council appears to have a specific identifying nation-specific instincts hardwired into their teams 30 SSE policy, a handful have developed SIA policies . These over decades. include Hume City Council31, the Responsible Authority in one of the leading SSE cases, Rutherford v Hume CC [2014] VCAT A Task for a Ministerial Advisory Committee? 786. Hume’s policy identifies specific types of permit applications requiring consideration of ‘social impact’. It seeks to respond This article, seeks to start a discussion, one that should be to the mandatory SSE consideration, whilst avoiding clogging embraced and led by the Victorian Government, for example Council’s permit system with unnecessary SIAs. It outlines a through a Ministerial Advisory Committee. A need exists to use less burdensome assessment method, that it terms a ‘Social the flexibility of SSE assessment to advance clearer and more Impact Comment’ being a basic assessment without requiring robust systems that open up to innovative practices in and specialist or technical assistance32. The Policy provides a list of outside immediate social sciences. different applications as a guide to where Council requires a full Ideas for potential Terms of Reference for such a Committee assessment rather than a ‘comment’. could include: The approach of Councils that have an SIA policy is both - Developing rigorous SEE assessment principles and theory pragmatic and praiseworthy. However, it is also problematic. that prescribe basic research techniques including and None of the policies appear to top any global best practice and adapting concepts from international guidelines such as the there is risk that some policies may actually undermine SSE International Association for Impact Assessment; assessment rigour, rather than requiring higher standards. - Creating clear guidelines as to when SSE should be SSE analysis and evidence must present opportunities for more assessed and whether differing levels of SSE assessment are refined articulation and validation of intangible factors, for appropriate: and for what and why; example, the ‘lived’ experience of individuals and communities. - Clarifying how to establish a social effect and how to Examples might include the nuances of the refugee experience33 understand or measure it; or the social value of a heritage building to a community beyond - Creating opportunities for projects or developments which its built form34. actively create positive social effects, and principles of SSE mitigation, prior to and through the planning process e.g. It is also concerning that many Council SIA policies tend to earlier mediation. morph into a quasi-Net Community Benefit (‘NCB’) assessment, - Embracing innovative social knowledge outside and within moving away from an SIA/SSE assessment. This is unwise and planning; concerning. NCB assessment35 is not a social effect assessment. - Facilitating transparent public disclosure and testing of NCB is a weighting process after SSE assessment. NCB assumptions of any computer modelling recommended or assessment must consider social effects along with many other used. community factors. Any NCB must be based upon, and include, consideration of a separate SSE. Conclusions

SSE and SIA assessment must not diminish the value of actual Using SSE assessment in ways not yet commonplace will unlock individual or community experience. There is risk in requiring silenced or minority communities, as well as deep cultural an outside ‘expert’ to provide the evidence of individual or instincts and patterns, whilst assisting data collection that community experience, to avoid individual evidence being better monitors and analyses SSE. In this way, planning and regarded as merely ‘subjective’. Such an outcome not only adds development can be better shaped to align with improved social considerably to costs, but leaves the decision-maker with third- engagement, empowerment and capacity. hand evidence of the actual ‘lived’ experience. It further excludes Planning decisions can often undervalue achievement of positive people particularly vulnerable or minority communities.36 social impact. However, SSE is profoundly aligned to economic An opportunity exists in Victoria to better respond to the human outcomes and has real potential as a mechanism to improve and social dimension of planning and the economic impacts prosperity along with how we shape society, its built form of social capital by embracing SSE in a far more sophisticated and contemporary planning to create a socially inclusive and way ‘to bring about a more ecologically, socio-culturally and cohesive State, through each planning permit decision. We need economically sustainable and equitable environment’37. to avoid a city disconnected from its social purpose, driven by economic necessity and ease. Our communities should not find It could draw on recent mathematical modelling showing that themselves, “‘strangers and afraid’, in a world …[they] never made: societal co-operation improves where an institution encourages a world ever less responsive to direct human command, ever more fewer, stronger connections,38 rather than popularly perceived empty of human meaning”40. ‘social’ forums such as Twitter or Facebook.

56 / VPELA Revue October 2018 Maybe, just maybe, this paper can start a discussion on the role 29 Frank Vanclay, International Principles For Social Impact Assessment, of SSE to help planning decisions to use SSE to positively affect Impact Assessment and Project Appraisal, volume 21, number 1, March 20013 pages 5-11 Beech Tree Publishing / Vanclay, F., Es- our society for our future. teves, A.M., Aucamp, I. & Franks, D. 2015 Social Impact Assessment: Guidance for assessing and managing the social impacts of projects. Hubert Algie was awarded the VPELA Young Professional Fargo ND: International Association for Impact Assessment. of the Year Award in 2016 to further study of the role of 30 Maribyrnong City Council, East Gippsland Shire Council, Greater Significant Social Effects (SSE) in the Victorian planning Dandenong City Council, Hobson’s Bay Council and Hume City permit approvals system. The work culminated in a detailed Council. paper, available on the VPELA website. This article is an 31 Hume City Council ‘Social Impact Assessment Planning Policy and abridged version of that paper41 ‘Opportunity Lost? – Guidelines’ July 2016: an update of an original July 2014 Version ‘Significant Social Effects’ in Planning Permit Applications’. (adopted after Rutherford). e: [email protected] 32 Hume City Council, ‘Social Impact Assessment Planning Policy and Guidelines’ July 2016 page 7. Endnotes 33 Kelleher, Leonie and Forrester, Robert. Significant social effects - lessons from Victoria [online]. Australian Environmental Law Digest, 1 Planning and Environment Act 1987 s60(1)(f) Vol. 1, No. 2, Nov 2014: [37]-[41]. 2 Fukuyama, Francis, 1995, Trust: The Social Virtues and The Creation 34 Kate Gray and Gary Vines, Last Drinks? Heritage and Melbourne’s of Prosperity, Free Press Parperback New York, NY. Pubs, VPELA Presentation, 24th May 2017. 3 Fukuyama, Francis, 1995, Trust: The Social Virtues and The Creation 35 [cl 10.02 of the State Planning Policy Framework] of Prosperity, Free Press Paperback New York, NY. Gambetta, Diego, 36 Kelleher, Leonie and Forrester, Robert. Significant social effects - 1988, Can We Trust Trust? in Gambetta, Diego (ed.), Trust Making and lessons from Victoria [online]. Australian Environmental Law Digest, Breaking Cooperative Relations, Basil Blackwell; Putnam, R.D, 1995, Vol. 1, No. 2, Nov 2014: [41]; Ciaran O’Faircheallaigh & Tony Corbett Bowling Alone: The Collapse and Revival of American Community, (2005) Indigenous participation in environmental management of Simon & Schuster. mining projects: The role of negotiated agreements, Environmental 4 Fukuyama, Francis, 1995, Trust: The Social Virtues and The Creation Politics, 14:5, 633 of Prosperity, Free Press Paperback New York, NY. pg 101 37 Frank Vanclay, International Principles For Social Impact Assessment, 5 This analysis should not be relied upon on as exhaustive of SSE International Association for Impact Assessment, 2003. principles. 38 Benjamin Allen, ‘Global cooperation depends on the strength of 6 Johnson v Greater Shepparton CC [2005] VCAT 1432; Rutherford v local connections’, 5 September 2017 < https://aeon.co/ideas/glob- Hume CC [2014] VCAT 786. al-cooperation-depends-on-the-strength-of-local-connections> / Bejamin Allen, Gabor Lippner, Yu-Ting Chen, Babak fotouhi, 7 Hoskins v Greater Bendigo CC [2015] VSCA 350. Nagmeh Momeni, Shing-Tung Yau and Martin A Nowak, ‘Evolution- 8 Hoskins v Greater Bendigo CC [2015] VSCA 350. ary dynamics on any population structure, Nature, Volume 544 13 April 2017, MacMillan Publishers, 227. 9 Hoskins v Greater Bendigo CC [2015] VSCA 350. 39 Shoal attack: How a school of fish helped Aussie netballers win gold; 10 Hoskins v Greater Bendigo CC [2015] VSCA 350. Radion National; By Joel Werner and Jonathan Webb http://www.abc. 11 Hoskins v Greater Bendigo CC [2015] VSCA 350. net.au/news/2017-10-05/australian-netballs-secret-weapon-is-a- school-of-fish/9014326 12 Hoskins v Greater Bendigo CC [2015] VSCA 350. 40 Lewis Mumford, The City in History, Secker and Warburg, 1961, p 13 Rutherford v Hume CC [2014] VCAT 786. 546. 14 Minawood Pty v Bayside CC [2009] VCAT 440; Rutherford v Hume CC 41 This analysis closed at February 2018. This paper does not consider [2014] VCAT 786. SSE role in Planning Scheme Amendments. However, the findings in 15 Minawood Pty Ltd v Bayside CC [2009] VCAT 440; Rutherford v Hume this paper may have some relevance to Planning Scheme Amend- CC [2014] VCAT 786. ments. 16 Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505; Rutherford v Hume CC [2014] VCAT 786. 17 Hoskins v Greater Bendigo CC [2015] VSCA 350. 18 Hoskins v Greater Bendigo CC [2015] VSCA 350. 19 Rutherford v Hume CC [2014] VCAT 786. 20 Hoskins v Greater Bendigo CC [2015] VSCA 350. 21 Minawood Pty Ltd v Bayside CC [2009] VCAT 440; Rutherford v Hume CC [2014] VCAT 786. 22 Hoskins v Greater Bendigo CC [2015] VSCA 350. 23 Hoskins v Greater Bendigo CC [2015] VSCA 350. 24 Hoskins v Greater Bendigo CC [2015] VSCA 350. Part of your team for: 25 Hoskins v Greater Bendigo CC [2015] VSCA 350. • Economic analysis • Strategy development 26 Rutherford v Hume CC [2014] VCAT 786 para 53. • Transport economics 27 Rabel J. Burdge & Frank Vanclay, ‘Social Impact Assessment: A con- • Business consultation tribution to the state of the art series’ (1996)14 Impact Assessment,62. 28 Maas, Karen & Liket, Kellie. (2011), Social Impact Measurement: T 0400 995 363 Classification of Methods, Environmental Management Accounting and Supply Chain Management, pp.171-202. [email protected]

VPELA Revue October 2018 / 57 The Business Breakfast with David Davis

John Cicero, Tania Quick & Nevan Wadeson.

As they said…”careful what you wish for!”. For a number of While an interesting list, there is an absence of new city-shaping years, I have heard members of the planning and development actions/mobilisation arrangements, or projects that will take industries bemoan the absence of public discussion on the Melbourne and the State forward directions of our city with opportunities for community enhance- And, how (with no change to the UGZ and a tightening of ments, sustainability, spatial changes and the like. True, in development opportunities in the established areas), will the 2014, the Coalition bet the ranch on the East-West Link, but it middle suburbs accommodate change and take some pressure turned out that as interesting a battle it might have been for the off the growth areas? David considers that there are plentiful inner east and the outer east, it was not a focus for the whole of opportunities across the suburbs for urban renewal that can Melbourne. accommodate change while protecting the suburbs. Maybe, but actions speak louder than words. The audience was familiar But in 2018, ‘the City’ is THE issue, and for the all the wrong with the Upper House votes (led by the David) that rescinded things. Population growth, exploding densities in the inner areas, the planning scheme amendments for higher density housing over-crowded public transport lack of housing affordability, high over the McKinnon railway station grade separation, and the rise buildings, congestion, over-crowded and missing schools, Development Victoria project at Markham estate, Ashburton. frustratingly longer road journeys, over-stretched and missing These actions (urged by local communities) provide evidence infrastructure, safety concerns. And growing cries of…”I want of how difficult it will become to work many of the well-located my city back!” renewal sites so that the 70:30 split of new housing between the established areas and the growth areas might be achieved. This was the theme outlined in the Hon David Davis address to The option of leaving the tasks of strategic development and the VPELA breakfast held at Norton Rose Fulbright on August 3. development approvals with local government will need a lot In a solid and wide-ranging presentation across planning and more work if we are to avoid a downturn in housing supply and a public transport fields, David identified the Liberal Party’s view lack of housing which is connected to jobs, services and access. on the failings across the Government’s performance and some But, returning to the reasons why in 2018, the City is in focus, of the remedies that will be introduced if it is successful in there is a real problem. Communities are feeling that the November. The nominated ‘failures’ included: crowding and the changes to their local environment are not being offset by additional facilities, services and improvements to • The management of population growth and its spatial guidance amenity. (David cited the situation of local primary school which • Achieving the decentralisation of population away from Melb- has been forced to compromise its programs to accommodate ourne (There will be a Minister for Decentralisation within a the extra pupils. There needs to be overt ways of benefitting Coalition Government) the communities who are experiencing changes. This could • The Government’s actions which has stalled CBD tall building occur through the securing of additional facilities back into approvals through Am C270 and the lack of development those neighbourhoods, funded by the development levies and within Fishermans Bend other funds generated by the new development That is directly • Providing increased rail services within Melbourne and to the connected! Hypothecation. (A dirty word form economists except regional cities. The Coalition will extend rail services to Baxter, when it suits them.). Remember the 2015 advisory Committee Cranbourne East and Clyde, upgrade the Hurstbridge line plus recommendations for across- the-board development levies? replace V-Line freight rolling stock) Instead, we see the Metropolitan Planning Levy operating which • Not releasing enough land within the UGZ to assist housing is just a general revenue measure, lost in the Treasury figures. affordability (The Coalition will deliver Precinct Structure Obviously, there will be more Liberal Party planning and public Plans with 290,00 lots by-30 June 2020 plus introduce a post transport policies to come before the election. But what was PSP fast track lot delivery process.) And, David reiterated that revealed left too many holes for the audience to gain a picture there would be no shifting of the UGZ boundary. of how broader metropolitan management would occur. • Changes to the Neighbourhood Residential Zones. The Coali- City building is a long process. What the professions and the tion would reverse the Government’s changes by reintro- communities look for is a commitment to long term planning. duction of the two-dwelling limit, reduce building height (from And, as Minister Wynne did with Plan Melbourne 2014 in 9m to 8m); and bring back the 9m discretionary height limit in refreshing it as PM 2017-2050, most of the Plan was retained. We GRZ (now mandatory 11m) and review the Garden Area rules. hope that before the election, and after, ( whatever the outcome) • No cancellation of committed projects such as occurred with that the matters of affordable living, broad accessibility, and the East West road link project which cost over $1bn. The services to match growth are prioritised. Coalition said it will honour the West Gate tunnel projects despite its opposition to the project Bernard McNamara , BMDA Advisory

58 / VPELA Revue October 2018 Young Professionals Group Ideas for the future

In the office of every professional reading this magazine isa Innovative policy-making – the recent past has shown the person we are all familiar with. This person has probably been planning system’s inability to discourage poor quality outcomes. working at your office before your graduation certificate was a We also need to ensure that regulation does not curb innovation twinkle in your mother’s eye. They’re the type of person you turn and progress. Policy drafting has generally taken a conservative to when you need to know about that policy, that case, or that approach and focused on the ‘lowest common denominator’ Minister. Imagine what life as a young professional would have to the detriment of pioneering design. Better outcome-driven been like for this person. A time when Melbourne’s nightlife was policy must be given greater attention. It goes without saying that the opposite of vibrant; when outer suburbs included Dandenong the policies of today will shape the cities and towns of tomorrow, and St Albans; and the city loop was still under construction. Fast this responsibility must be taken more seriously. forward to today, and the Green Wedges are a distinct feature of Melbourne; residential floor area has just overtaken commercial A respected profession – likely a world-wide phenomenon, floor area in the CBD; and construction is well underway on Council planners are often regarded in media and culture in one the Metro Rail Tunnel. The VPELA YPG represents the next of two camps: inept or corrupt. Whilst consultancies are known generation of professionals who will become this person in to attract the best and brightest, local government need to be offices of the future. We wonder what the next State Government able to attract high quality talented staff at all levels. Within the will deliver on to create a legacy we can be proud of. Certainly future we envisage, local government planners as experts in their there’s a whirlwind of infrastructure spending, some short field, engaged with industry bodies, keen to learn and test their term affordable housing ‘solutions’, and a repair of the planning knowledge. The public and the private sector will respect the system on the cards for our professions – but what else? How will opinions of the local government planner; and the relationship the decisions made today contribute to a better tomorrow? As between applicant and delegated decision maker will be built of corny as it sounds it’s a real concern for our generation. At a time mutual trust. Are we asking too much here? when newspapers are writing weekly about intergenerational Collaborative not combative – whilst we should never shy away problems caused by unaffordable housing, a growing population, from a genuine contest on the merits of a planning proposal, nor lack of adequate climate action, and congestion on roads and avoid accountability to due process, an operating environment public transport, how relaxed are we supposed to be? What kind where adversarial debates are the norm or where mistrust of Melbourne are we going to be left with? between parties is assumed should not become hallmarks of our A number of the YPG members have formulated a list of issues planning decision making process. The overarching system as it we consider the industry and Government should focus on in the currently exists is designed to encourage adversarial contests coming years. The views below have been informally brought where little incentive for collaboration is provided. Notice and together in an ad hoc spirit and in no way seeks to represent the review practices are increasingly risk adverse, whilst reliance on views of all YPG members, nor is the list exhaustive. VCAT and Panels to do the heavy lifting is detrimental to the way the system functions. The YPG wishes to see formal mechanisms Real action on quality and sustainable development outcomes created to encourage collaboration, mediation, and negotiation. - in the midst of our current building boom the planning system has failed to keep up, leading to many poorly designed buildings Helping the cause for affordability – critics are often quick to of sub-standard quality. The current system too easily enables blame the planning industry for increasing red tape to affordable irresponsible developers to pass ongoing costs (such as energy development. We believe the planning system can do more to and water inefficiency, poor construction quality, ongoing facilitate a greater diversity in housing delivery by reviewing its maintenance) onto purchasers. We recognise the planning approach to dwelling controls. That fact is that fewer people system must play a better role in creating a legacy of built form will own homes in the future. Victorians need a planning outcomes we’d be happy to live, work, and play in. system which works fluidly to provide a variety of housing and ownership options supported by local government. Ageing-in- Smarter investment in transport infrastructure – the Gov- place, multigenerational housing, housing cooperatives, and so ernment has historically had a focus on partnering with the on should be encouraged by planning controls, not let down by private sector to deliver road projects, some of which have old-fashioned ideas of what a dwelling must be. dubious justification. As young professionals we don’t want Melbourne to become a maze of on-ramps and merging lanes. If We hope that Government and industry keep pushing the demographers are telling us one thing, Melbourne’s population boundaries in order to make Melbourne, and to a larger extent growth isn’t slowing down anytime soon – roads are not going to Victoria, a better place to live for generations to come. There is a combat this. The Government must continue planning for public continuous need for improvement in all areas of our industry and transport, updating existing rail and tram infrastructure, and now is not the time to take our foot off the pedal. purchasing land for future Victorians.

VPELA Revue October 2018 / 59 The Gala Dinner at the conference was an eclectic gathering of music icons through the decades. From Sonny and Cher to the Wiggles, delegates embraced the theme MUSIC ICONS and dressed with imagination to carry off their music alter egos! Thanks to all those who came in costume GALA DINNER and congratulations to our winners. Angus Young: Mark Sheppard, David Lock Associates

ABBA: Elle Harrington and Holly McFall, SJB Planning

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1 Devo: The team from Ratio. 2 Daft Punk: Ainsley Rotgans & Erin Baden-Smith, DELWP 3 Amy Winehouse: Sandy Pok, Spiire 4 Ginger Spice: Kate Morris, Harwood Andrews 5 Cindi Lauper: Hayley Down, Beveridge Williams 6 Tina Turner: Anna Borthwick, Plan A. 7 Lady Gaga: Patricia Saw, Corrs Chambers Westgarth

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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.