INFASTRUCTURE Vision for a smaller planet

Andrew Gray THE VPELATHE ARG Planning victorianrevue / planning / environmental / law / association / volume 95 June 2015

1 / VPELA Revue June 2015 Contents President 3 Awards 4 Minister 9 Shadow Minister 11

Seminar Reports The (new) residential zones – 1 year on 15 Meet the Minister 21 Coastal planning – where are we at? 54 Expert Evidence Seminar 57 Places Planning… Like an Egyptian 22 Melbourne School of Design 40

People 1950’s Rock n Roll Gala 28 A day with Prof. Rob Adams 38 Peter Allen’s brilliant career 56 The Business New members 59 VCAT Bias: real or perceived 7 In the know 59 Planning policy and government investment 10 Residential zones, reflecting one year on 13 The new residential zones one year in transition 17 The low down on tall towers in Melbourne 25 Apartment standards, more Maslow or more area 33 Infrastructure provision in growth areas 35 Municipal matters 42 Making better decisions in Australian cities 45 The fast lane 47 Permit Triggers…to tick or not to tick 48 Legal world 51 Rory’s ramble 53

Cover photo: The Hon Richard Wynne MLA, Minister for Planning presenting Geoff Underwood the Richard J Evans Award.

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

2 / VPELA Revue June 2015 President Utopia and bipartisanship

Tamara Brezzi President, VPELA

Inevitably upon the coming and going of each election cycle, a arose not only from the ABC TV show of the same name, but from discussion about planning, and its system, turns to bipartisanship. a desire to explore what constitutes planning industry perfection As any government’s four year term comes to a close, there is for any given group of people and to ask in what parts of our an inherent uncertainty that arises in the development sector system bipartisanship could play a greater role; what issues, about whether a new government will want to tinker, overhaul or really, should be free from election cycle promises? otherwise mess with planning (regardless of whether there is a change in governing party). While the next Victorian election is still over three years away, the Federal arena and experience in other states has demonstrated 2014 was no exception. As the Coalition’s first term came to a that electorates are no longer shy about delivering single term close, I heard many a conversation that reflected on the significant governments; and planning, being a system that is inherently changes that had been brought to planning over the preceding strategic and focused on delivering outcomes well into the long four years-Plan Melbourne, Residential Zones, the evolution of term, will almost certainly struggle to deliver great results if it’s the MPA and numerous system reviews to name a few. faced with a ‘new normal’ every four years.

Those reflections would come with cautious breath-if the I encourage you to sign up to attend the conference in August government wins a second term, will the pace of change in Lorne and to bring some reflections and thoughts about how continue? If the government is not returned, will the system be bipartisanship might itself become the new normal, indeed a subject to a further round of reviews? Will the players be asked new utopia of sorts. to wait for policy certainty? Or what if there is a system upheaval on the cards; a reversal of the ‘new normal’ established only one Tamara Brezzi, Partner, Norton Rose Fulbright. or two years earlier? What if, what if, what if…. President Victorian Planning & Environmental Law Association VPELA’s Conference this year will be held in Lorne on 13 and 14 August at the Mantra Erskine House resort. The theme, “Utopia”,

THE PAUL JEROME AWARD 2015 Nominations are invited

In 2005 the Victorian Planning and Environmental Law Association established The Paul Jerome Award, as a memorial to a much loved and respected colleague. This award was created to encourage, recognise and support outstanding contribution to public administration.

The principal focus of the award is planning within the umbrella of public service to state and local government and the list of past recipients has brought prestige to the award. Nominations are now called for the 2015 Award. Nominations must be forwarded and be received at the VPELA office by close of business 17 July 2015. Nominations will be assessed by a panel and the announcement and presentation made at the VPELA Conference in August.

The recipient will be presented with an engraved trophy at the VPELA Conference Gala Dinner, to be held at Mantra Erskine Beach Resort Lorne on Friday 14 August 2015. The recipient will also be invited to attend the VPELA conference the following year as VPELA’s guest.

Criteria for the award and a nomination form The Paul Jerome Award can be downloaded from our website is proudly sponsored by http://www.vpela.org.au/awards/paul-jerome-award/ or phone 9813 2801 to obtain.

VPELA Revue June 2015 / 3 Awards Richard J Evans Award 2015 – Geoff Underwood This citation was prepared by longtime colleague and friend, Kathy Mitchell, Chief Panel Member, Planning Panels Victoria. The award was presented at VPELA’s Gala Dinner on 11 May 2015.

Citation Ministerial Advisory Committee, Geoff stepped away from a role as Chair of the Housing Industry Association planning committee Geoffrey Lyle Underwood has been closely involved in the in Victoria. planning and development community for over 40 years. He was Private Secretary to Ministers for Local Government and Since completing his Ministerial Advisory Committee obligations, Planning in the Victorian Government for more than 10 years Geoff has re-connected with the Housing Industry Association before he established his own planning consultancy, Underwood and now serves on the Victorian Regional Executive Committee. & Hume Pty Ltd in 1981. Geoff was the recipient of a Letter of Commendation from the Since then he has acted for developers, local, state and federal Commander, Australian Forces Vietnam for military service in governments and a variety of infrastructure providers. Vietnam, 1970.

From 1990, he combined his practice with a 14-year stint Geoff is a man of great integrity and wisdom. He has been called as Executive Director of the Urban Development Institute of upon many times to impart his knowledge of planning in Victoria Australia (Victoria). Over this period, UDIA greatly expanded to those in Government, those in bureaucracy at State and Local its membership and influence with Geoff well regarded by both Government, those in private practice and those who just want sides of the political spectrum as someone with a genuine to hear the ‘Masters voice’. He is a person who can always be interest in achieving good policy outcomes. He participated in relied up to help out, and once he commits to a task, he will a vast number policy committees and stakeholder reference always finish it. groups across a range of policy matters. His contribution to UDIA Finally, Geoff has a great passion not only for the planning (Vic) and the development and planning industry as a whole was industry in Victoria but also its history and his ability to recall recognised in 2006 with his elevation to life membership. dates, places and events in planning history continues to astound. Moreover, he now takes great delight in passing his On leaving UDIA in 2004 he became Director of Development knowledge on and is a great supporter of younger persons Facilitation with the Victorian Department of Sustainability and in the planning industry with a particular interest in VPELA’s Environment. This was followed by a senior role in helping to mentoring initiative. establish Victoria’s Growth Areas Authority in 2006. We can think of few people who have made a greater contribution Geoff then established Spade Consultants in January 2007. to planning in Victoria, and he is indeed at the very top of the Geoff served on the VPELA Board from 2004 until 2014, during mythical totem pole. which he was Secretary of the Association from 2009 until 2014. During this period he was responsible for completely overhauling the VPELA Rules to bring them in line with VPELA’s operational Geoff Underwood’s response objectives and practises. He was also Sponsorship co-ordinator, On previous occasions it has been my role to announce the forging great bonds with sponsors. He has participated in names of recipients of the Richard J Evans Award and read the numerous seminars – Expert Evidence series in the CBD citations. This is a different role tonight. and Regional Victoria, Hot Topics, Planning System Reform, Meet the Minister panel, Melbourne @ 7 Million, Development I was content being a Fellow of VPELA. Tonight I am embarrassed Contributions to name just a few, plus conferences on both that the Association ranks me in the same category of past committees and in breakouts. Geoff is currently a member of recipients of the Richard J Evans Award because the list reads the 2015 Conference Committee. as an honour role of VPELA.

He has been a member of various government departmental The list includes a former Governor of Victoria (Sir James Gobbo), committees dealing with reform of the planning system including a Deputy Prime Minister (Brian Howe), former Ministers for for example the Federal Government Green Street housing policy Planning (Messrs Hunt, Walker and Maclellan), supreme court committee (also known as the Joint Venture for More Affordable judges (Stuart Morris and Robert Osborn), senior counsel, senior Housing); two editions of the Victorian Code for Residential members of our VPELA community and now me, a lowly corporal. Development for housing and for land subdivision; the Victorian Government Land Compensation Inquiry 1979; chair Victorian In the citation Kathy Mitchell read, she was kind enough to credit Government Urban Development Programme; Chair, Victorian me with certain achievements. Planning System Ministerial Advisory Committee 2011. This was She failed to say that most of them were team things and the followed up as Chair of the Zone Review Advisory Committee in outcomes were the result of collaborative approaches. 2012/13 and the SPPF Advisory Committee in 2013/14. In 2011, when appointed as Chair of the Victorian Planning System I say I was just doing my job.

4 / VPELA Revue June 2015 I have also been around long enough to have known and briefed Richard Evans.

I add my voice to the endorsements given over the 20 odd years of this award when recipients speak of his skill as a barrister and the personal attributes that warranted the naming of this award after a fine man.

Peter Barber’s short history of VPELA speaks of discussions with the late Tony Hooper and me in 1987 about the formation of what became this association.

Peter imagined an apolitical body that had a broad based membership, which used its influence to deal with policy issues and which held seminars to inform and educate members. Above all Peter wanted VPELA to provide an excuse to get together and network.

He anticipated getting people together, giving them some nibbles, putting a glass of something in their hand and letting them network to their heart’s content. Much like this dinner. Geoff is pictured with VPELA President, Tamara Brezzi & Minister for Planning, Richard Wynne What Peter imagined is the VPELA we have today. I compliment you the members on making VPELA what it is with hundreds of members participating in a way that would make Peter Barber Frankly I think the only award criterion relevant to me is the one proud of the seminars, and ecstatic with events like this dinner: about length of service. I have been around a while; I started as consider there are more than 700 attending tonight compared to Private Secretary to Alan Hunt when he was Minister for Local the break-even number of 80 for the first dinner in 1991. Government in 1971. Alan Hunt with Evan Walker received this award when it was first presented in 1991. For this award, I am grateful to my nominators. Thank you for thinking me suitable. I am amazed that I am on the same list as those two people because they sit atop the rankings of my mythical totem pole of And of course, I am indebted to the Board for making the award Planning Ministers past. to me.

2002-2006 and has been a guest lecturer in environmental law VPELA Fellows and planning at Monash, RMIT and Melbourne Universities. He has been treasurer of the National Environmental Law Citations Association since 2013. Nick is an active member of the VPELA community and he Nick Wimbush, Planning Panels Victoria regularly attends and presents at seminars and conferences. He Nick holds qualifications in Environmental Science, Public Policy has an engaging and enthusiastic approach to environmental and Law. He has over 20 years’ experience in a variety of State planning in Victoria. and Local Government roles in Western Australia and Victoria Oona Nicolson, Ecology and Heritage Partners including managing environmental impact assessment of major road projects with the West Australian Environment Protection Oona Nicolson has been a member of VPELA since 2007. Authority and advising the Victorian Government in a senior role on coastal planning and development. Oona is an archeologist with specialist expertise in Aboriginal and Cultural Heritage – a relatively new discipline in the broad field of He also has extensive experience in the private sector in town planning and development. Oona was at the forefront of the Western Australia, Indonesia and Victoria both with consulting development of that discipline well before the introduction of the firms and after founding and running his own environmental Aboriginal and Cultural Heritage Act in 2006. consultancy from 2002-2006 specialising in integrated coastal zone management. She and her firm have been consistent supporters of VPELA having engaged with the membership through seminars Since 2006 he has been a full time Senior Panel Member with and events designed to inform, promote debate and prepare Planning Panels Victoria responsible for chairing environment submissions to government concerning the introduction of and effects inquiries, panels and advisory committees, including amendments to Aboriginal and Cultural Heritage legislation matters of state significance. and policy. She has trained and mentored countless fellow archeologists and other professionals in the development and Nick was a sessional lecturer at postgraduate level in natural planning sector to train and raise awareness concerning, in resource management at RMIT University in Melbourne from particular, indigenous archeology.

VPELA Revue June 2015 / 5 Bernard McNamara, BMDA Advisory For more than two decades Bernard has been a leading figure in town planning in Victoria and in particular in the discipline of retail planning through his own firm, BMDA Development Advisory and through his roles with the Gandel Group of Companies and Colonial First State.

He has advised government on numerous committees including most recently the Plan Melbourne Ministerial Advisory Committee for Minister Guy and the current Plan Melbourne Refresh Ministerial Advisory Committee for Minister Wynne.

Having tried his hand with other professional associations as Chair of the Planning Committee of the Property Council and President of the Victorian division of the PIA, he eventually saw the light and joined the VPELA Board more than 10 years ago L-R: Bernard McNamara, Nick Wimbush, Minister Richard Wynne & Oona Nicolson. until his retirement from the Board in 2014.

Oona has been responsible for extensive work in Melbourne’s For much of that time he served as Treasurer of VPELA and growth areas, is a trusted expert witness in VCAT and Planning the financial position of the Association is a testament to his Panels, is involved extensively with the peak industry body, the commitment and skills in that role. Since retiring from the Board, Australian Association of Consulting Archaeologists (a former Bernard has taken up the role of editor of VPELA’s quarterly National President), is a member of the industry advisor’s magazine, the VPELA Revue. group at Flinders University and is a member of the Australian Bernard has been a dedicated and trusted advisor to the Heritage Council. Association, and to me in my role as President, and I extend VPELA has been the beneficiary of Oona’s intelligent, academic my gratitude to him for his service and congratulate him on and disciplined approach to her area of expertise. She is a Fellow his Fellowship. candidate who is representative of the true multi-disciplinary nature of VPELA.

VPELA Young Professionals Award Carlo Morello, Traffix Group

Sponsored by Contour Consultants.

The Young Professionals Award is support a young professional member in undertaking independent research, a study tour, or a course of study related to their profession and which promotes the purposes of VPELA.

This year’s recipient Carlo Morello was successful in his application to study how Melbourne might manage transport activities while experiencing the massive disruptions that will occur in the construction of the Melbourne Metro Project. (London’s Crossrail project, Brisbane’s Bus and Train project, and Los Angeles Red Line are some examples). The study brief proposed examining the cost-benefits of selected projects, Marco Negri, Director, Contour presents Carlo with his award. post development, including the impacts which were caused through access restrictions to affected properties, what relevant compensation arrangements applied plus environmental and Carlo will examine the methods and programmes adopted by wider impacts. The study will also seek to identify external other major cities through a literature review and as part of a impacts that occurred but which were not anticipated in the European trip later this year. We look forward to his report and project planning. congratulate him again on the Award.

6 / VPELA Revue June 2015 The Business VCAT bias: real or perceived?

Addressing significant community concern Rob Milner 10 Consulting Group

The proposition There is a similar scope of opportunities to be heard and independently reviewed through the assessment process for Your phone rings. planning permits.

It’s Richard Wynne, Minister for Planning. If you have doubt, look particularly at Sections 12, 21A, 34, 52, 57 and 60 of the Planning and Environment Act. He asks you to recall that prior to the election his party pledged to amend the Planning and Environment Act so that, where It might be said there is no reasonable basis to conclude that appropriate, VCAT must take account of the extent of community the interests of present and future Victorians cannot be fairly, opposition to planning proposals. He reminds you that the equitably and regularly heard on planning matters. change would see significant community opposition formally taken into account. He wants your advice. What should he do Yet now and again a proposal arises upon which there is with that pre-election promise? a seemingly commanding voice, sometimes heartfelt and passionate, seeking to be given particular weight and standing This is what I would say. because of its cause, the relative size of its group that share the same opinion, or the public profile it has captured. Change is required – but not how you think Look what happened when Miley Cyrus popped up in the Ventnor The engagement of the community in the planning process is matter and Barry Humphries in the further development of inconsistent. The voices the government expresses concern Camberwell Junction. The McDonalds in Tecoma and the about get fairly heard. However, there are others that should be, residents of Armadale concerned about high-rise / higher but aren’t. density in Orrong Road, are two other cases in point.

For the most part, sectors of the community with concerns about Is there a blind spot in our processes that prevents these voices planning proposals are well served. The system gives most being fairly heard or given appropriate weight? individuals and groups in the community multiple opportunities to express their concerns, be heard and considered before That pre-election undertaking seems to suggest that Panels and planning decisions are made. Tribunals should give special weight to community submissions or objections because the number of persons seemingly holding Regional and local communities are consulted widely in the a common view has reached some critical mass that warrants ‘plan making’. There is usually a range of informal initiatives and particular attention and consideration. formal processes including independent review, to ensure that individuals and groups are heard and considered. We have been here many times before.

The planning jurisdiction is not the set of the Survivor reality show where once “the tribe has spoken” the proposal gets thrown out!

It has often been said that one submission or objection well made, expressing a relevant and well-founded ground of concern can be the deciding point, whereas 1,000 objections without sufficient merit or substance can fairly be put to one side.

In this respect, I recall the words of the late Dr Philip Opas QC, a former chairman of the Town Planning Appeals Tribunal, recalling the role of third parties in the Victorian planning process.

“It seemed to me that they pursued their objections only from selfish motives. They resisted change simply because they liked the ways things were and regarded any change as being detrimental to their interests.” 1

I do not fully share this sweeping observation. There are many circumstances where legitimate objections are made and should

Celebrities use their profile to promote a cause.

VPELA Revue June 2015 / 7 be given commanding consideration but there are equally The community has articulated how it feels disenfranchised from matters where Opas’s words ring with considerable truth. this outcome and those covered by the Capital City Zone have been statutorily denied a voice or a right of objection or appeal. So which ‘significant’ communities should be heard and given particular attention? Proposals have been conceived and scaled for the expressed purpose of ensuring the community (through local government) While in any particular matter there will be individuals and groups is denied the role of decision-maker. In these circumstances who might say they are voicing the opinion of the community the community has to depend upon the wisdom, fairness and in the final analysis there is only one relevant community that balance of the Minister of the day and hope that the overtures of planning must consider – the Victorian community; both now those that can gain access to that role are not just those of the and in the future. party that stands to gain the most.

Appropriate decisions are those that contribute to the Victorian Will Victorians derive a meaningful benefit that in any way community’s net benefit having weighed the competing policy equates to the windfall handed to select private interests through considerations and voices. The net community benefit sits above the exercise of discretion for major variations from the preferred and beyond the interests of any particular sectoral voice. urban outcomes?

The weight of community opinion and the sheer number of voices Decisions of this nature have the effect of moving the “goal has the democratic process and the ballot box to recognise the posts” and the affected community is right in feeling powerless scale of community attitudes on the bigger picture. That process and without a voice. sets the strategic direction and tone of the economic, social and environmental policy frameworks that will influence detailed Where are the goal posts? land use and development decisions. In a similar vein the role of ‘strategic development sites’ (SDS) Within that context the merits of a particular matter warrant a and preferred maximum height limits have had a similar effect with VCAT, and to a lesser extent councils. On occasions they have more ordered, structured, systematic and analytical procedure gone out on a limb to make decisions in which the urban context to determine what is in the broader Victorian community’s best and built form that the community expected from the planning interests and sustainable development. scheme appears to be put to one side for ‘ambitious’ proposal. In Popularism and the weight of a particular voice do not fairly some cases the planning and urban design framework lags well address this challenge. I am satisfied the legislative framework behind the proposal. for strategic and statutory planning and the decision making As professionals we understand the philosophical basis of processes and frameworks are generally equal to this challenge discretion over mandate, but I can equally understand why the and result in appropriate outcomes most of the time. community must wonder where the ‘goal posts’ are when the I cannot accept as fair criticism that VCAT or Independent Panels preferred height limit is significantly exceeded because the proposal is ‘high quality architecture’ (only to see it dumbed favour developers or professionals. I appear regularly and give down after the approval) or the order of development far exceeds evidence on behalf of Councils, objectors and developers. No one the nominated existing or preferred neighbourhood character party has an advantage over another, not all decisions are right because the site some-how qualifies as a SDS! or strike the right balance, however I have often experienced the hard, but appropriate call being made in the face of considerable I can also appreciate the community’s frustration when despite political and or community pressure. participating in the formation of a strategy or plan it finds that voice denied because its either not a ‘seriously entertained That said there are voices that do not get heard and ones that planning proposal’ or not referenced in the planning scheme. understandably feel disenfranchised when either the ‘goal posts move’ or there are no ‘goal posts’. We give vexatious litigants a lot of rope to hang themselves but these participants who thought they were making a constructive The voices that are not heard contribution find themselves marginalised.

The last 5 years have witnessed an extraordinary number of Minister, revisit the processes where the community does approvals for a scale, form and intensity of development in and not have a voice rather than giving those with a voice, a around the CBD, Southbank and Fisherman’s Bend. These will trump card! transform the character of the capital city, make considerable demands for more infrastructure, produce vertical ‘towns’ of Rob Milner is the Director of 10 Consulting Group, a former sometimes cramped and arguably inadequate housing and State and National President of PIA, a senior and experienced practitioner and is regularly called upon to provide expert directly and detrimentally impact upon the amenity and liveability evidence before Panels, Tribunals and Courts. of the city for a range of existing and future residents. 1 Throw away my wig – Philip Opas (1997) page 308 Except through the ballot box, the community has essentially been a bystander to this process and these events. Sure this development may constitute employment and economic development, but it will be a long-term legacy at the heart of our state.

8 / VPELA Revue June 2015 Minister Better apartment design for a more liveable city Richard Wynne Victorian Minister for Planning

On Thursday 14 May I launched the discussion paper Better space. This, along with uncertainty in neighbourhood planning Apartments, kick-starting a state-wide conversation with controls, has eroded public confidence in increasing density as community and industry on how to achieve better outcomes in the way forward for Melbourne to house its growing population. apartment design. However, the alternative can only mean more development at This paper, by the Office of the Victorian Government Architect Melbourne’s fringe – a result that few would find acceptable, and my department, builds on an already significant engagement given the strong evidence we have that continued expansion with industry on mechanisms to promote and ensure quality in of Melbourne has severe environmental, social and economic apartment design over the past two years. ramifications. In recognition of this, the Andrews Labor Government has a firm commitment to legislate for a permanent We are now inviting all Victorians to participate in a discussion urban growth boundary, and to protect and enhance our green on what is required to secure better apartment design. There wedge areas. will be stakeholder forums, online and postal submissions and a Victoria-wide survey to gather the views of apartment developers, Given we are one of the most dispersed cities in the world, there residents and investors, as well as the wider community. is certainly scope for increasing density across the city. But as we can see from concern that has arisen in the community There is consensus in the planning profession – and bipartisan about the quality of development in their neighbourhoods, we support in government – for higher density development around must be sure to put in place the controls – and the opportunities transport hubs and along tram corridors, in activity centres for genuine consultation – that will lead to agreement on how to and employment precincts, as the cornerstone to managing develop our city. Melbourne’s growth. We have long recognised a fair, sustainable As such, the Better Apartments Discussion Paper is about more and productive city is one where people have ready access to than establishing minimum standards: it’s about keeping pace employment, education and essential services. with how people want to live. This is the first time the planning The demography of Melbourne is changing rapidly. More and and property industries, government and the public have been more people, including families and the elderly, are choosing to brought together to talk about the type of apartments we should live in apartments. In Melbourne alone, it is estimated that an be building. additional 480,000 apartments will be required to accommodate I invite you – our community – to embark upon this journey a projected population of 7.7 million by 2051. with us, to read and get involved in the discussion on ‘Better Yet the quality of apartment development is not always living up Apartments’. We have the opportunity now to set the ground work to community expectations – let alone basic standards of safety to ensure that as our State grows, so too does our capacity for excellence in design, and provision of quality living opportunities and amenity. Apartments are being built with bedrooms without for all Victorians. windows, without storage, with poor ventilation and a lack of open

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VPELA Revue June 2015 / 9 The Business Planning policy and government investment Marcus Spiller (PhD) Putting planning at the centre of the budget SGS Economics & Planning Pty Ltd

Your Revue’s editor, Bernard McNamara asked me why ‘the With this critique, planning thought lurched almost overnight, planning profession has done a poor job at advancing the from the broad reformist scope of modernism to ideas which reasons why their activities should be seen as beyond regulatory focus on local area participation and action. Planners became and more about urban management’. He further asked ‘how almost apologetic thought followers rather than thought leaders. can planners convince the Treasury and Departmental decision- makers that planning is adding value?’ It’s interesting to contrast the trajectory of the civil engineering profession versus that of urban planning in the aftermath of Well, my short answer is that planners could start by speaking the Jacobs dismantling of modernism. By my observation, a lot in a language that central policy makers and budget writers can more engineers embraced (conventional) economics as a co- understand. discipline. I seem to recall lots of colleagues in the engineering school during my undergrad days doing double degrees over in It’s not long before newly recruited planners at SGS hear the commerce faculty. Meanwhile, it was almost unheard of for my well-worn dictum – ‘if you want to change the world, planning students to make a bridge from the world of design learn economics’. and sociology across to that of the dismal Not only do planners speak a different science. language to those who control public Modernist’s abstract view of Since the 70s planning theory seems sector investment, we seem to have turned humanitarian advancement to have been consumed by a critique of ourselves into some kind of permanent conventional market economics – the opposition to the economics way of thinking. simply overlooked how sort practiced by Treasuries. Of course A planning Minister (not in Victoria) recently human beings like to live there is a place for thoughtful and radical remarked to me that central policy makers and how a mature civil examination of how capital shapes our ‘hate planning – they (planners) seem to be society works oblivious to the real world trade offs which environments. After all the great British Governments have to make’. Marxist geographer David Harvey changed my life with his book ‘Social Justice and the Where did we go wrong? In the early post war period, which City’ (1973). But, the generations of planners who have graduated isn’t that long ago when you think about it, planning was part into the profession after immersive intellectual dissection of neo- of a pervasive modernist movement that held the attention liberalism often find themselves far less influential in the public of governments the world over, and influence over their policy arena than what they might have hoped for or expected. purse strings. Patrick Abercrombie’s 1947 London Plan was As mentioned, they are often the permanent opposition to what emblematic of this planning ascendency. No Treasury official is happening rather than a force for change. stood in the way of his outrageously bold plan to remove close knit, albeit, badly bombed, communities to new suburbs of And to requote my Planning News piece, ‘generally speaking, regimented towers. the planning profession likes to think small these days – looking for ‘solutions’ on a block by block or neighbourhood by As I have written in Planning News1, the intellectual terrorist neighbourhood level. It is beholden to what is often a hollow who wreaked havoc on planning and the modernist movement ritual of public consultation. It spends a lot of time second more generally came in the form of an unassuming and guessing the politics of the day rather than setting out a vision diminutive New York journalist – Jane Jacobs. With her many for the future. With few exceptions, it has ceded the ‘Big Ideas’ books, starting with the Life and Death of Great American territory to celebrity architects and geographers’. Meanwhile, the Cities, Jacobs exposed the neglectful side of the modernist economists in Treasury are calling the shots. character. The modernists wanted the best for the local and international communities; their intentions were pure and We are planners. By calling we want to change the world. We can’t noble. But their abstract view of humanitarian advancement do this unless planning is reinstated from the opposition benches simply overlooked how human beings like to live and how a to control of the Treasury. We need to learn economics. mature civil society works. Marcus Spiller (PhD), Principal and Partner, SGS Economics Jacobs reminded us that all cities are different; each nook and & Planning Pty Ltd can be contacted at cranny of the city told a different story. She reminded us that what [email protected] we love about our cities are their granularity and the layering of history. Basically, we don’t want to cut ourselves off from the 1 Spiller, M. (2011) How Planning Lost Its Way and How Economics Will past and live a life of abstract purity. We like the grime and the Help It Find Its Way Back, Planning News, Volume 37 Issue 1 (Feb 2011) suspense of the city.

10 / VPELA Revue June 2015 Shadow Minister Clumsy populism, outright incompetence or both? David Davis Victorian Shadow Minister for Planning

Case studies from the Andrews Government’s legislative agenda: Labor promised in Opposition, “Locals feel they have no say in Planning and Environment Amendment (Recognising Objectors) the future of their own neighbourhood. Labor will also amend Bill 2015 & State Taxation Acts Amendment Bill 2015 the Act so that, where appropriate, the Victorian Civil and Administrative Tribunal (VCAT) must take into account the weight The Planning and Environment Amendment (Recognising of community opposition to planning proposals.” Objectors) Bill is at the time of writing, before the Victorian Parliament. While no doubt being part of a claim to fulfil In fact, now in Government, Labor’s proposal falls far short of election commitments, the Bill will not achieve the aim of lifting their promise limiting the opportunities for communities to genuine community participation in local planning decisions in a requirement for responsible authorities ‘to have regard to a responsible and effective fashion, but instead risks providing the number of objectors to permit applications in considering false hope to local communities while making planning whether a proposed use or development may have a significant processes more cumbersome and costly. social effect.’

Others have pointed to the risks of weakening social cohesion Further clause 5 being “Matters for Tribunal to take into account”, and advancement through uncontrolled demagoguery, for says it must (where appropriate) have regard to the number of example, how will the Bill manage divisive issues within local objectors in considering whether the use or development may communities and what protections exist for the diversity of have a significant social effect.” These provisions are vague and Victoria’s multicultural and religious communities? A recent unclear in effect. The words ‘where appropriate’ carry great example of where such concern might arise is the controversy uncertainty and advocates for community or developers can surrounding the proposed development of the Bendigo mosque. potentially successfully advance many arguments. This will One outcome of the Bill could be opposition to public and social reduce predictability and certainty and add cost. housing development which, while ultimately ineffective, could This also begs the question of what precisely is “social effect” be sparked by the view that simple numbers are what will count. and how it might be consistently measured and fairly applied by Similarly, objectors to major projects may take false heart from responsible authorities under these new rules. the Bill. On Budget day, 5 May 2015, the State Taxation Acts Amendment The purpose of the Bill is to amend the Planning and Environment Bill 2015 was introduced into the Victorian Parliament. It amends: Act 1987 to provide for the Victorian Civil and Administrative Tribunal and responsible authorities to have regard to the • the Duties Act 2000 to require “foreign purchasers of number of objectors to permit applications in considering residential property” to pay a surcharge on stamp duty; and whether a proposed use or development may have a significant • the Land Tax Act 2005 to require “absentee land owners” to social effect. pay a surcharge on land tax. The localised anti-development groups at which the Bill is aimed The Bill also provides novel mechanisms in the Duties Act and are likely to be sorely disappointed. Land Tax Act through which the Treasurer may exempt certain The Bill will add to uncertainty and reduce predictability, giving taxpayers from paying the above surcharges. false hope to local objectors in decisions about the merit or otherwise of development proposals. The government may have The exemption provisions are a hastily cobbled together “fix” for crafted an outcome with which no-one is happy. the absurd pronouncement in the Budget, that “These measures do not increase the tax burden on Victorian residents” (BP2, What the Bill does not do is deliver on the Government’s Page 13). election commitment nor provide reasonable tools and support for those local communities with legitimate objections Property developers with significant foreign ownership, such to be heard. Instead it offers false hope. In few if any of the as Mirvac and Australand, would in the absence of such an contentious cases, including the Stonnington case cited in Bill exemption have to pay the tax, meaning Labor’s new 3% stamp notes, or the Tecoma McDonalds case would this Bill have duty surcharge would be passed on to ordinary Victorian first changed the likely outcomes. home buyers, and the cost of a $200,000 house and land package in the popular growth suburbs would increase a massive $6,000. Very few stand to benefit from the Bill, with the possible exception of the legal fraternity and perhaps some municipal councillors None of this occurred to the Treasurer when he or his office seeking to avoid contentious decisions. thought this gem up, something the Planning Minister confirmed

VPELA Revue June 2015 / 11 while disavowing any prior knowledge of the tax at the Public The Law Institute’s response is interesting in that on only one Accounts and Estimates Committee. previous occasion in modern times, in 1975, have taxing bills associated with the appropriation been amended. Given the Treasurer’s failure to consult on his new tax and his rushed attempt to ameliorate its unintended consequences, I In this instance, the Appropriation (1975-1976, No. 1) Bill’s long took it upon myself to consult the Law Institute of Victoria, with title was amended due to an error in the title. In the case of Tim the following, interesting results: Pallas’ possibly superficially popular new tax, with which even cursory consultation would have revealed serious flaws, it is The LIV submits that the Bill should be amended to provide more serious and less competent. that any discretionary powers created under the Duties Act and Land Tax Act should be exercisable by the Commissioner In a further blow to the Government’s credibility, the Scrutiny of (for State Revenue) instead of the Treasurer. Acts and Regulations Committee (SARC), which has a majority of government party members, in its Alert Digest No. 5 of 2015: The LIV submits that the Bill and the guidelines should be amended so that the Duty Surcharge will not apply to transfers refers to Parliament for its consideration the question of whether of residential property if the transfer is made pursuant to a or not clauses 16, 20 and 29(2), by imposing higher property contract of sale, or options contract, entered into before 1 July taxes on some foreign citizens than they impose on equivalently 2015. placed Australian and New Zealand citizens, reasonably limit the Charter’s rights against discrimination on the basis of nationality The LIV submits that discretionary trusts, in which a to achieve the purpose of ensuring that a larger number of local specified beneficiary does not receive distributions, should homebuyers remain competitive in the housing market. be exempt provided that the contract of sale was entered into before 1 July 2015. Legislation focussed on symbolism can be important but must be balanced against practical impacts. Empty symbolism Alternatively, trustees for discretionary trusts that owned land assists no-one, including governments seeking to be taken in Victoria before 1 July 2015 could be given the opportunity to seriously. Further, good legislative practice would not see wide nominate a beneficiary, which is not a specified beneficiary, discretion for Ministers instead should have predictable and to be deemed the beneficiary of the trust. The latter would transparent application. be consistent with the transitional arrangements for the 2006 amendments to the Land Tax Act which introduced the David Davis surcharge on land owned by trusts.

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The program for the 2015 VPELA PLUS: A Panel Discussion – What is Utopia to you – Mytopia, Itopia or conference is exciting, informative Utopia? and thought provoking. Moderator: Chris Wren QC, with an expert panel. PLUS: Breakout sessions on: regional employment, social media, emerging planning issues, demographic trends, governance and the politics of planning. PLUS: Our Back to the Future Gala Dinner and much much more….. Fabulous Venue: The venue is the historic Mantra Erskine Beach Resort located two hours drive from the CBD. With its comfortable apartments, stunning beachfront location and 12 acres of beautifully landscaped gardens that surround the resort, Mantra Mark this event in your diaries now! Erskine is an ideal setting for our conference. What more can we say? Keep a look out for the invitation which will be INVITATIONS WILL BE posted shortly and book early to avoid disappointment. Sponsorship FORWARDED SHORTLY opportunities are still available, to discuss ring Jane on 9813 2801.

12 / VPELA Revue June 2015 The Business Residential zones Reflecting one year on Con Tsotsoros Chair, Residential Zones Standing Advisory Committee

It has been almost a year since the new residential zones replaced degree of restriction applied in each schedule differed from the former three residential zones and over a year since the council to council. For example, the schedule to the General Residential Zones Standing Advisory Committee was appointed Residential Zone in one council was found to be more restrictive to consider residential zone proposals before being introduced to a schedule to the Neighbourhood Residential Zone in into planning schemes. This process involved hearing from many another. There were schedules to the General Residential Zones skilled and experienced council planners, State government that allowed development of up to 13.5 metres (or four storeys) representatives, consultants and lawyers, and residents to hear while others had a height equivalent to the Neighbourhood first-hand about how they believed the residential zones would Residential Zone. Community responses varied depending on affect them. whether a resident felt they needed protection from further development or whether they believed their ability to develop Our role was being adversely impacted.

The Committee was conscious of its role to consider the Even with such differences, the Committee found that the first 14 application of the residential zones for draft amendments draft amendments had common issues that could be addressed referred to it and not to review the zones themselves. through common underlying principles. The 31 principles, as However, there were submitters who raised issues beyond included in the Stage One Overarching Issues report related to the the Committee’s Terms of Reference that would have required State Planning Policy Framework and Chair, Residential Zones substantive changes to the zones themselves. For example, a Standing Advisory Committee, housing strategies, applying the nine metre height limit was sought for a two storey dwelling zones, each of the three residential zones and their schedules, in the Neighbourhood Residential Zone instead of the existing overlays, the residential zones practice note, covenants, default mandatory eight metre height. This was considered, mandatory provisions and ResCode provisions. This report has among other matters, by the Reformed Zones Ministerial been well received and is being regularly used and quoted. Advisory Committee. Our key objective was to support councils to achieve the 1 July 2014 deadline for introducing their zones General recommendations through an accelerated process. In its stage one report, the Committee recommended changes The process to the zones only where they assisted with their application. One recommendation responds to the misalignment between The Committee’s Terms of Reference specified fairly challenging a purpose of the Residential Growth Zone to provide buildings timeframes for preparing our reports which affected time of up to, and including, four storeys and the ability to specify available for councils and other parties to prepare. Those who a height greater than four storeys in the schedule. Another participated in the process exercised a high level of cooperation recommendation responds to the duplication between the to meet the strict timeframes. The Committee considered over new zones and existing overlays. Historically, many built form 2,500 submissions affecting 22 planning schemes and heard over provisions were included in overlays such as the Design and 600 parties over 68 days. As the new residential zones had never Development Overlay or Development Plan Overlay. The new been applied before, this was a learning process for everyone residential zones include the ability to include similar provisions. involved with the first 14 draft amendments. A challenge for the Committee and councils was the ongoing changes during the process including the implementation of Plan Melbourne and the introduction of a Ministerial Direction that specified how the VPELA Talks zones should be applied. Call for interested speakers It was clear at this stage that councils were at different stages of their strategic planning for applying their new zones. This is We are all familiar with TED Talks and its ability to spread ideas understandable when considering that councils periodically from engaged speakers and thinkers. VPELA TALKs will launch review their Municipal Strategic Statements and some may have in 2015 and we are currently seeking potential speakers from the been in the process of undertaking further strategic work while VPELA community that are interested in presenting at inaugural others may have completed it. Where the Committee concluded VPELA TALKs event. Your topic should be relevant for VPELA that further work was required, it provided recommendations to members but not limited to your area of expertise. Candidates help guide this process. will be provided with coaching and guidance to develop their narrative. Talks will be delivered in the TED style arena and are Seeking common principles to be no longer than 18 minutes. If you would like to register as an interested speaker forward your details to [email protected]. The methodology for applying the residential zones and the Submissions will close 10 July 2015.

VPELA Revue June 2015 / 13 Overarching issues Committee has 19 schedules. This was identified as an issue because in many cases these schedules are so different they Two examples of the overarching issues raised by submitters are effectively operating as individual zones. This is important include the dwelling cap in the Neighbourhood Residential Zone because the residential zones cannot be judged merely by and the proliferation of schedules. The other issues can be found looking at a map. A careful look at the provisions in each zone in the Committee’s Stage One report. schedule before judging whether a particular zone has been applied excessively or not. The limit (or cap) on the number of dwellings in the Neighbourhood Residential Zone was raised by a considerable Learnings number of submitters. As opposed to a density ratio, the cap applies to all properties in a specified area regardless of The recent well attended VPELA seminar on residential zones property size. Submitters provided examples of properties expressed opinions and learnings, including those from the ranging between 1,500sqm and 3,000sqm that could only have Committee. It was pleasing to see a healthy discussion from two dwellings because they were located in the Neighbourhood presenters with different views. Natasha Swan’s presentation Residential Zone where properties were generally about on Manningham City Council’s experience with the residential 650sqm. Different approaches were sought to work around this zones reiterated the importance of understanding whether the including multiple schedules applied on a property-by-property application of the zones will have an impact on a municipality’s basis (spot zones) or a table with a sliding scale. The Committee housing supply rather than merely looking at the proportion of a made no recommendation because there was a conscious zone applied. recommendation by the previous Ministerial Committee to apply Like any other zones or related provisions that have been this cap instead of a density ratio. In the absence of this cap being introduced into planning schemes, ongoing monitoring and formally reviewed, the Committee advised councils to question review, time and experience will inform us about how the whether this zone was appropriate if the dwelling cap created residential zones and their application can be further refined. similar issues. Con Tsotsoros, Chair, Residential Zones Standing Another issue is that a planning scheme may have an exhaustive Advisory Committee and Senior Panel Member, number of schedules across the three residential zones. For Planning Panels Victoria example, a planning scheme that was not considered by the

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14 / VPELA Revue June 2015 Seminars The (new) residential zones – 1 year on

Rachel Butler Tract Consultants

On Wednesday 29th April members of the VPELA community times, lower average incomes and more likely to be employed on assembled at the Treasury Theatre to be part of the seminar a casual basis. ‘The (new) Residential Zones – 1 year on’ on the new residential zones, one year on. The event was well attended by public and Paul highlighted the need to make it easier to build homes in private professionals, a reflection on the significance of this established suburbs close to jobs. He recognised that transport issue and the impact that it has had on the industry. The four solutions can help to ease current accessibility issues, but it engaging speakers that did a fantastic job of representing the is not the only answer. Paul concluded by emphasising the various perspectives from what has played out so far in the importance of allowing for development within the inner and ‘Game of Zones’. middle suburbs of Melbourne, where more people will have access to employment opportunities and existing services. The new residential zones were introduced to Victoria on July 1st 2014.. Heralded as introduction of nuanced planning regulation, So what did our state planning strategy Plan Melbourne do about the new residential zones were to serve as a sharpened tool that the supply of housing in Melbourne? Two key things, according would give rise to underlying strategic planning objectives. What to Colleen Peterson from Ratio Consultants. The first was to the residential zones intended to provide was a level of certainty in stipulate that at least 50% of residential-zoned land should an uncertain world. Now one year on, we reflected upon whether be Neighbourhood Residential Zone – a significant policy. The they have delivered what Council hopes, what opponents feared, second most significant was the mandatory height limits have and whether they are capable of allowing diverse housing for a been places on a large proportion of land, whereas previously it growing population. was a performance based control that did not enforce hard and fast rules. As chair for the evening Adrian Finanzio pointed out, Planning is a continuingly swinging pendulum. The past four years have Colleen believes that the process was part of the problem. Council seen significant upheaval within the planning profession that planners lacked the time and resources to properly implement has seen significant changes introduced across Victoria, not the zones; to complete the strategic background work required just in the form of the new residential zones. Planning schemes unless a Council had up-to-date fully analysed and implemented need to answer the deceptively simple questions – where will strategies including a housing policy. people live? Where will development occur? Where are the areas for substantial change? It needs to take into account the types Another factor to reflect upon was the public process that of places people like to live and the values that they place on was undertaken through the Residential Zones Standing their homes. It was lamented that all too often planning issues Advisory Committee (RZSAC), and how this played out for the such as these are characterised by opposing political parties, to municipalities who took part. Strong wording and criticism the extent that obvious and important planning issues get lost was received by some through the reporting process, as the in a combative political environment. The rate of change that is RZASC highlighted particular councils that did not complete the acceptable to people varies greatlyThe views about what exactly necessary strategic work. As a result their proposed application constitutes acceptable change alter widely – again the perpetual of the zones was deemed inappropriate. There was however a pendulum of competing objectives and at times opposing views. coherent and consistent message that resonated through all 15 The erosion of highly valued neighbourhood character is an reports – a constant messaged about strategic rigour and a clear issue that many residents feel particularly strongly about. The indication that if the background work and strategic justification question was posed “In light of reform and implementation – is provided, zoning changes are supported. will Melbourne ever be able to achieve fundamental strategic planning objectives?” So the new residential zones were “Policy The Victorian Planning Provisions (VPPs) continue to be with teeth” the test was always going to be in its implementation, performance based controls, in which mandatory controls what happens when the policy with teeth started to bite. should be used only in exceptional circumstances. Recently we have seen particular locations where redevelopment has been Paul Donegan from the Grattan Institute reminded us that the constrained unnecessarily, that could have supported higher economy has an inherently geographic dimension. In the Grattan densities than will now be allowed. The removal of discretionary Institute’s work on cities, a number of key themes emerge. In powers is of concern, particularly in locations which are well recent years two thirds of employment growth have occurred serviced by transport and have the potential to support a higher within 10km of the CBD, whilst more than half of all population level of development that will now be allowed. It appears that growth has occurred more than 20 kilometres from the CBD. political opinion has largely overwhelmed professional opinion This growing mismatch between where people live and where on the matter. What is required now is politics to get out of the they work, is a divide that has substantial consequences for way of planning, to not interfere with the professional advice and people’s lives – outer suburbs face issues such as long commute wealth of knowledge which can allow the proper decisions to

VPELA Revue June 2015 / 15 be made. Colleen encouraged activism and for people to voice had completed rigorous background strategic work and those their opinion on such issues, encouraging the involvement of the who were unable to do this within the specified timeframes, as is VPELA community to take part in the process. For Colleen the detailed in the advisory committee reports. process has renewed her faith in the planning system “When planning system is allowed to run its course – it does work” One of the difficulties that has become apparent through the advisory committee process was that the majority of the analysis Natasha Swan, Team Leader Statutory Planning at Manningham was undertaken at a municipal – rather than Metropolitan City Council next gave a local government perspective of the level as each Council was tasked with implementing the zones implementation of the new zones which has worked. As a case within their own municipality. This appears at odds with the fact study, the Manningham’s new residential zone experience that the intention of 50% application of the NRZ came from a illustrates that when the necessary background strategic work Metropolitan wide strategy – Plan Melbourne. Exactly what that has been completed, a translation of the new zones became a figure is in Melbourne has yet to be determined. There lies an relatively simple process. The success of their new residential inherent difficulty when a state policy is applied separately to zones application was commended by Planning Minister at the individual municipalities and a lack of integration of plans and time Matthew Guy application of the zones across municipal boundaries, despite this being a state wide policy with inherently state wide effects. Prior to the new residential zones process, Manningham had a complete residential planning framework in place underpinned It is recognised that there is much that remains largely unknown by residential strategy, character guidelines, an activity centre about the planning implications of these zones; it simply has strategy, an environmental and landscape significance review. not been long enough. Applications that have the benefit of Because Manningham’s planning framework had already been transitional provisions are still going through the system, and will exposed to consultation and much scrutiny, the implementation take more time yet to be resolved. And, unintended consequences of new residential zones was largely a “policy neutral” can be predicted. It can be expected that subdivision applications translation; which was met with relatively little resistance from will be put forward ahead of development applications to avoid the community. What Manningham was able to illustrate through the limitations of number of dwellings on each lot. Site specific its application of the new residential zones, was that a “whole of amendments are also expected as a way of dealing with restrictive municipality” story is important. zones placed on strategically significant sites. Dual occupancy proposals are also expected to increase as a mechanism to Peter O’Farrell of the Victorian Bar presented a paper which achieve greater density in inner and middle suburbs. tracked the process of the new zones implementation from the RZSAC through to VCAT decisions. Over 2014-15, Peter The perpetually swinging pendulum of planning will continue presented a range of planning decisions that illustrated the ways between the differing opinions and priorities. The conversation the tribunal has approached the new zones and in particular the has been started, and it will no doubt progress as our VPELA transitional provisions. (Editor’s Note: An abridged version of community continues to play an active role in the implementation Peter’s paper is published elsewhere in this edition.) and assessment of these zones across the state. The test of the new zones was always going to be in the implementation, there Peter identified that where VCAT highlighted that in the instances is still much that remains to be seen. when municipalities went through the process it resulted in few complaints, as Manningham had just shown. Although Rachel is a Town Planner at Tract Consultants complaints were certainly heard about the process through which and is a VPELA YPG committee member. these zones were applied, that really isn’t the point. The advisory committee were able to distinguish between those councils who

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16 / VPELA Revue June 2015 The Business The new residential zones one year in “transition” Peter O’Farrell Victorian Bar

1. This paper addresses: b) The Advisory Committee Report on the new zones 14 December 2012 which recommended: 1 a) The background of the new residential zones and the Recommendation 21: That transitional provisions be Standing Advisory Committees drafted so that existing permit holders or applicants b) What VCAT has found suffer no unreasonable disadvantage through the c) What the future may hold introduction of the new residential Background of the new residential zones c) The State Government response to the recommendations of the Reformed Zones Ministerial Advisory Committee and the Standing Advisory Committee Residential Zones Progress Report, December 2012 which 3 2. Amendment V8 to the Victoria Planning Provisions introduced agreed with recommendation 21 above and stated : the Residential Growth Zone, General Residential Zone and This will occur before the new Residential Zones are Neighbourhood Residential Zone on 1 July 2013. introduced into the Victoria Planning Provisions.

3. 1 July 2014 was a date that loomed large at many 9. As observed by the Tribunal in Whitefeather Group Pty Ltd v municipalities as this was the date when it was stated by the Bayside CC [2014] VCAT 11934 at paragraph 35 (‘Whitefeather’) Government that if a planning authority had not implemented (underlining added): the reformed residential zones into its planning scheme by mid 2014, a General Residential Zone would be applied to all …we are not so sure that this intent has been entirely residential land in these planning schemes. achieved. Clearly the transitional provisions create the discretion to allow more than two dwellings to be permitted 4. On 1 July 2014, Amendment VC116 to the Victoria Planning on the review site. They also exempt proposals from the Provisions and planning schemes, implemented the General mandatory height limits under the NRZ. However, they Residential Zone into 24 Victorian planning schemes where do not set aside the purposes and decision guidelines of the reformed residential zones had not been applied and the zone, and any supporting policies, that facilitate the deleted the Residential 1, 2 and 3 Zones from the Victoria provisions side stepped by the transitional provisions. In Planning Provisions and planning schemes. our view therefore the transitional provisions do not achieve 5. On 20 June 2014, the Standing Advisory Committee all that was intended. Our focus must be on applying the delivered its Stage One Overarching Issues Report. The words and content of the Bayside Planning Scheme as recommendations of the Committee are contained within the we find it, rather than the intent of a particular planning report which can be obtained from the Department website. scheme amendment.

6. The individual municipality Advisory Committee reports are 10. The debate that has taken placed was described by the also available on the Department website. Tribunal in Whitefeather as follows5: What VCAT has found This proposal is exempt from the ‘game changing’ prohibition on more than two dwellings, as it has the 7. The key focus of debate before the Tribunal has been the benefit of transitional provisions that apply to applications application of the transitionary provisions in the NRZ. lodged prior to the introduction of the new residential 8. The background of this debate is set in the context of: zones. This begs the question of what the Zone says about these transitional proposals. There is much consternation a) the Minister’s Reasons for Intervention in Amendment throughout the planning industry over the meaning of the VC104 (which introduced the new zones) – in those the third purpose of the NRZ, which seeks: reasons, the Minister stated2 (underlining added): The government in March 2013 committed to including • To limit opportunities for increased residential transitional provisions in the residential zones as development. recommended by the Reformed Zones Ministerial 6 Advisory Committee in its Residential Zones Progress There is now an established line of Tribunal decisions Report dated 14 December 2012. This was to ensure which, to varying degrees, have addressed the meaning that existing applications would not be disadvantaged by of this purpose. Each decision turns on its own facts the new provisions included in the new residential zones and circumstances yet a consistent line of thought is and the consequential changes to Clause 55 applying to emerging. We will focus on this line of thought contained four storey residential development. in two more recent decisions.

VPELA Revue June 2015 / 17 11. In Whitefeather, the Tribunal then proceeded to discuss and The debate has essentially focused on the proper compare Verbuk v Bayside CC [2014] VCAT 967 (‘Verbuk’) and application of the zone purposes in particular the Bayside Property Projects Pty Ltd v Bayside CC [2014] VCAT purposes in respect of neighbourhood character and 958 (‘Bayside Property’). the third purpose in respect of limiting opportunities for increased residential development. The zone purposes is 7 12. In Verbuk the Tribunal stated at paragraph 14: set out below:

As identified above, the application of the Neighbourhood • … Residential Zone has altered the balance to be given to different policy intents in this neighbourhood. In some • To limit opportunities for increased residential ways, the new zone is a ‘game changer’ to the way that development. applications like this are now considered. They shift the primary intent of the Bayside Planning Scheme as a • ... whole away from an even balance between encouraging I have found that the decision of Senior Member Baird urban consolidation and respect for neighbourhood and Member Carew in 360 New Street Brighton Pty Ltd character, to a more clear intent to restrict new v Bayside CC [2014] VCAT 1322 provides a particularly residential development in favour of protecting the helpful summary of the approach adopted by the Tribunal existing neighbourhood character. This significant to date: change in focus is evident despite the fact that the local policies have not yet caught up with the change of zoning, Our attention was drawn to various Tribunal cases and and in some cases the Neighbourhood Residential Zone the approach taken with respect to permit applications has been applied to locations also identified as residential relying on the transitional provisions of Clause 32.09. We opportunity areas (Having said this, I might have do not believe it to be contentious that: interpreted the Bayside Planning Scheme as a whole providing a different balance or emphasis if the review site • An application must respond to its physical and were within a central portion of a residential opportunity strategic contexts. area and therefore much closer to an activity centre, but still affected by the Neighbourhood Residential Zone). • The Zone purpose must be considered in assessing an application. 13. In Bayside Property, the Tribunal adopted a contextual approach including the characteristics of the site, built form • Compared with the former Residential 1 Zone, the considerations and management of amenity impacts. The language of the purpose of the Neighbourhood Tribunal said at paragraph 32: Residential Zone with respect to neighbourhood character has raised the obligation to respond Essentially, whether opportunity for increased residential positively to, and implement, the preferred character. development is appropriately “limited” in the case of a transitional application will turn on the individual • Different outcomes can be contemplated for proposals circumstances of each case. relying on the transitional provisions (because they are not bound by the mandatory limitations such 14. There have been many cases where the debate has as the number and height of dwellings) but the continued. A useful summary of the cases to date is found response to the preferred neighbourhood character in Bell v Maroondah CC [2015] VCAT 381 (‘Bell’), the Tribunal is an important consideration in an assessment of the observed 8: merits.

There are now a significant number of decisions dealing I adopt this approach. with the application of these transitional provisions. The consensus is that transitional applications are subject to 15. In Bell, the Tribunal also provided a useful table comparing greater constraint than would have been the case under the outcome in a variety of transitional cases. The Tribunal the Residential 1 Zone notwithstanding the stated intent observed at paragraph 20: of Amendment VC104 that these applications would The variety of the outcomes evident are what should not be disadvantaged by the introduction of the new expect given the contextual approach which has emerged residential zones. from the Tribunal decisions to date.

Case Dwellings Site Area (sqm) Decision Steward v Glen Eira CC [2014] VCAT 441 9 1142 Not granted Bayside Property Projects PL v Bayside CC[2014] VCAT 958 8 1621 Granted Verbuk v Bayside CC [2014] VCAT 967 3 815 Not granted 360 New Street Brighton PL v Bayside CC[2014] VCAT 1322 13 2775 Granted Whitefeather Group Pty Ltd v Bayside CC [2014] VCAT 1193 25 3908 Granted

18 / VPELA Revue June 2015 16. There has been some suggestion that the debate is different 20. It wouldn’t be surprising if there were a large number of land in the context of a 3 storey proposal because of the reference owners who are yet to fully appreciate the consequences of to ‘single and double storey residential development’ in the the roll-out of the new zones. zone purpose. A three storey proposal was approved by the Tribunal in Scarfe v Boroondara CC [2014] VCAT 1520. Again, 21. It is anticipated that there will be a new approach adopted for the Tribunal adopted the contextual approach as stated at many sites, particularly those affected by the Neighbourhood paragraph 25: Residential Zones and where there is a ‘two dwelling per lot’ limitation. During the hearing, some emphasis was placed by the applicants for review, and Mr Milner, on that purpose of 22. Many of the new zone schedules do not prevent subdivision. the NRZ3 to limit opportunities for increased residential It may be that subdivision will be brought forward in the land development. It was submitted that in several of the development process so as to facilitate additional dwellings Tribunal decisions referred to me, the Tribunal had on the land that has the ‘two dwellings per lot’ restriction. regarded that purpose as an unambiguous direction that 23. It may also be that permit applications will be made for increased residential densities are not envisaged within large dual occupancy developments on relatively large land the zone. I agree that this purpose reinforces the view that parcels. I have already expressed, that being that neighbourhoods that have had the NRZ3 applied to them, are not intended 24. It may be that there is a return of the level of debate that to play a significant role in the achievement of urban took place before the advert of ResCode 2 in relation to dual consolidation objectives. Because of the transitional occupancy development. provisions as they operate in the zone, the consideration of this application is not constrained by a restriction on 25. It is also anticipated that there will be a series of site the number of dwellings. In this context, whether the specific amendment requests to deal with sites that are not proposal achieves an acceptable outcome for this site, appropriate for the Neighbourhood Residential Zone (either and responds in an acceptable manner to the zone because of the height limitation or the ‘2 dwelling per lot’ purpose, will be dependant upon its built form response limitation). and its respect for the existing or preferred character of the neighbourhood. My assessment of this aspect of the 26. As to public process, it will be of interest to see whether proposal follows. those municipalities that haven’t been through the Advisory Committee process are required to do so.

What the future holds Peter O’Farrell 17. In many respects, it is probably too early to understand the Victorian Bar town planning implications of the new residential zones. It is Isaacs Chambers expected that it may take several years to determine the true 1 Much of which has been taken directly from the Department impacts on our cities. website. 2 Paragraph 8. 18. In terms of permit applications under the new residential 3 Page 3. zones, many applications which have the benefit of 4 A proposal for 25 two storey dwellings on a site of 3908m2. transitionary provisions are still working their way through 5 At paragraph 27. the system and are likely to do so for another year of so. 6 Including those of Steward v Glen Eira CC [2014] VCAT 441; Thistle Nominees Pty Ltd v Glen Eira CC [2014] VCAT 664; and Highett Grove 19. Once that round of permit applications are determined, Pty Ltd v Bayside CC [2014] VCAT 890. it will be interesting to see how permit applicants without 7 A proposal for 3 dwellings, two of which were 2 storey. the benefit of transitionary provisions will respond to the 8 Paragraph 15. new zones.

VPELA Revue June 2015 / 19 Seminars Meet the Minister the Hon Richard Wynne MLA, Minister for Planning Oona Nicolson Ecology and Heritage Partners

Always a highlight of the VPELA year is the event to welcome and meet the Minister for Planning. Ecology and Heritage Partners were honoured to be able to sponsor this event again this year.

A familiar face to many in the room, the Minister has been at the forefront of public policy, urban government, housing, Aboriginal Affairs and local government. This makes for an excellent resume to be the Minister for Planning.

The Minister’s vision is a refreshing one; it is “to bring the community voice back to the process…to leave a positive legacy with brave decision making”. Inspired by the legacy of Brian and Renate Howe, Andrew McCutcheon and Gough Whitlam, the initial part of the vision will be on a healthy economy and a diversity of housing with a community focus. This is to be balanced with the challenges of climate change, population growth and the need to maintain liveability and grow sustainably. Getting these spaces right at planning stage is important and Mark Woodland, Andrew Hill & Aaron Organ. the government is keen to invest in employment and housing without losing liveability. Neighbourhood character is highly prized in Melbourne and this is an essential consideration. Other key city shaping projects planned include the removal of 50 level crossings. This is not only to free up trains and result in The long term plan for Melbourne is essentially to protect green safer vehicle traffic but may also result in the freeing up of land wedge zones, to deliver better public transport and have high in some cases. Work has also commenced on the West Gate quality land use planning. The Minister emphasised that we all Distributor with 50 million dollars committed. Increasing trains want to live in vibrant neighbourhoods with good strip shopping. in the metropolitan area is also a priority in the Arden-Macaulay To do this, the Minister announced he is “putting the band Precinct. This will change the way the city works much like the back together” with a revisit of the Plan Melbourne document. city loop did 40 years ago. All of these projects are considered This will be achieved by reinstating the original committee for ‘game changing’ and will generate thousands of employment Plan Melbourne. The revisit will include a strong community options. It is all part of the long term planning and vision required consultation aspect and the plan is to make public all 450 by any government to ensure Victoria is a more liveable state. submissions that were made on the draft plan. It is expected that The desire by this government to be transparent is envisioned a draft of the revisited Plan Melbourne will be released in the by more effective consultation with local councils and their third quarter of 2015.

Sarah Watts, Paul Beatty & Con Tsotsoros. Rebecca Lyons, Sam Pagliaro & Chris Hinton.

20 / VPELA Revue June 2015 Peter Jewell, Jane Monk & Cameron Alderson. Rebecca Lyon, Andrea Pagliaro, Victoria Evans & Johan Moylan. communities. Getting Fishermans Bend right in regard to social In summary, it was a pleasure to welcome the Minister back in infrastructure is essential and it is envisaged that implementing government. We look forward to the transparent and collaborative new apartment standards will be a part of this. approach that is part of the current government’s vision.

The Minister is quite rightly concerned about the demise of Oona Nicolson, Director & Principal Heritage Advisor, manufacturing in Victoria, especially in the car industry and Ecology and Heritage Partners. therefore is concerned about a massive dislocation of people from She can be contacted on 0428 725 089 Geelong in particular. At the same time, Geelong is undergoing or email [email protected] rapid changes over the last few years with the development of housing at Armstrong Creek. The revitalisation of the Geelong waterfront and the CBD is a focus for the government and for the City of Greater Geelong.

Questions from the VPELA members on the night were varied. Amidst the all-important cricket updates from Chris Wren, the Minister assured the Save our Suburbs representative that the voice of the community would be heard through the release of the 450 submissions on Plan Melbourne. Harwood Andrews is In response to a question on renewable (wind ) energy the launching possibilities Minister advised that from the beginning of April 2015, he will be deciding on the outcome of all wind farm applications. In We work in partnership with our clients to addition the Minister hoped the current Federal government understand their businesses and bring to would take more notice to its public obligations regarding wind bear our expert judgement, to ensure the energy and renewables. service we provide is specific and tailored to their needs. Finally, the Minister hopes to demolish the “silos” that are seen to exist in some government departments which some VPELA Ask us how we can add value and help your members feel cause delays to project approvals. project reach its potential.

Geelong Melbourne Ballarat Bendigo

harwoodandrews.com.au Natasha Heard, Megan Schutz & Geoff Underwood.

VPELA Revue June 2015 / 21 Places Planning … like an Egyptian Bec Wardle at the Giza Pyramids.

Rebecca Wardle decided that while life as a town planner in cars and street vendors. This is just one of many examples of Tract’s Melbourne office was good, there was a world of planning Cairo’s dysfunctional, chaotic charm, which produces moments out there and switched to… Cairo of brilliance amongst moments of hair-pulling frustrations. But whatever obstacle you face in this city, you’re not alone, “Welcome to Cairo” and locals will often shrug in an exasperatingly nonchalant but admirably good-humoured way and say: “Welcome to Cairo”. Arriving in Cairo as an Urban Planner was more daunting than exciting at first. The drive from the airport to Downtown was On my third day as a Cairene, I found myself in the local post a memorable introduction, along a winding and slow moving office that was teeming with feisty senior citizens collecting highway through a dense concrete jungle. The city wasn’t exactly their pensions and no one conversing in English. Fortunately, an easy on the eye, and my first impressions were dominated by the American man assisted me. This man turned out to be David stark imagery of dilapidated buildings, incessant traffic, asthma- Sims, the prominent Economist, Urban Planner and author in inducing air pollution, and crowds that make Friday night footy Egypt, who has a seemingly limitless knowledge of the city. As it at the G look like a ghost town. Trying to absorb everything was happened, we met again at the Cairo Climate Talks, and while I a sensory overload – I was hit by the sights, smells and sounds was looking for a job I did some mapping and urban design work for him. My six plans have recently been published in his newest of an incredibly chaotic city. In particular, I couldn’t peel my eyes book about Egypt, ‘Desert Dreams: Development or Disaster’. away from the vast and crumbling housing stock. The buildings Along the way, I learned a significant amount about Cairo and looked tired and squalid with dusty satellites adorning every found that it’s extremely easy to meet interesting professionals rooftop, and I couldn’t tell if they were half-completed or half- and make great connections. demolished.

It was immediately evident that Cairo is not a pedestrian-friendly History, struggle, poverty, affluence, city. It was impossible for me to look up and marvel at the It took a few weeks before my initial shock gave way to resignation beautifully old, dust-covered buildings without being forced to and then eventually admiration for the city and its residents. look down. The footpaths – a basic piece of infrastructure in a While creating the maps for David’s book and exploring diverse city – disappeared beneath my feet unexpectedly, giving way to neighbourhoods I realised that despite its visible problems, Cairo manages to function, and in some ways function surprisingly well. The level and accessibility of basic services in Cairo are remarkable given its size and the minimal government investment in infrastructure. It has a vibrant, colourful street life with many hidden treasures, and phenomenally old and beautiful inner-city areas. What makes it even more interesting is its multi-faceted urban character; a mix of history, struggle, poverty, affluence and modernity.

Upgraded street, Downtown Cairo. Central Cairo view from the Nile River.

22 / VPELA Revue June 2015 Housing choice: Cairo style A project that my company is hoping to be involved in is the recently announced and much-hyped new Capital City for Egypt. The swathes of ‘informal housing areas’, which extend from The Government has decided that Cairo is beyond repair and has the inner-city Cairo to the outer ring, are where 70 percent of proposed to start from scratch on vacant desert land with no Cairenes have built their homes without formal permission. existing infrastructure. Many Egyptians are enormously excited These areas are in serious need of infrastructure upgrades and about it. It’s been hailed as the remedy to Cairo’s congestion and development. However, due to decades of neglect and minimal overpopulation problems and is expected to kick-start an ailing planning intervention, they have grown ‘organically’ into tight- economy. The project’s being treated as a radical new idea, but knit communities with strong social networks and informal local it’s been done many times before and proved to be unfeasible. economies. David Sims always says that credit should be given to the city’s residents, who have “built and shaped their own city” Over the past 50 years a disproportionate amount of government and been the key to Cairo’s ability to “function and evolve”. spending and investment has been siphoned into the creation of new capitals and new towns (essentially gated communities) Getting a job as a planner on desert sites and on the fringes of Cairo. These represent the planner’s ultimate dream of a total blank sheet of paper. Although Cairo is clearly desperate for cohesive, community- But in Greater Cairo, they’ve been largely unsuccessful and focused urban planning, it was not easy finding a paid job that I a considerable waste of resources. The ‘new towns’ house fancied. Eventually, I found myself attending a two-stage interview significantly less people than their intended capacity and have at a multi-national engineering consultancy. low occupancy rates of around 30%.They The first stage went smoothly and I was I have discovered that accommodate mainly wealthy residents. impressed by their level of professionalism. the industry’s preferred Many of them are devoid of services, job opportunities, housing affordability and The second stage, however, required me to strategy for dealing with perform an online, slightly bizarre ‘personality cultural or social vitality, and a few of them urban issues is investing in test’ which printed a photo and the words: are complete ghost towns with unfinished “You are: Barack Obama”. Amusingly, the lavish projects on vacant buildings. interviewer nodded in approval. desert land… A master plan has been prepared and I then had to undertake a difficult maths test (without a calculator) released for Egypt’s new capital. The city is and a CAD test. It was at this point I realised that these people proposed to be the biggest purpose-built capital in history, and don’t actually know what an urban planner is. They believe intended to contain shopping malls, skyscrapers, a theme park that an urban planner is someone who designs (i.e. an Urban four times the size of Disneyland, and a central park twice the Designer). So not only did I have to contend with eight Egyptian size of New York City’s. It will also be created by non-Egyptian male applicants sitting the same test, I also had to explain to developers. the company what I am, and convince them that they needed me. Somehow this worked, they offered me the job, and now I’m their first Urban Planner and their first foreigner in a company of 2,000 Egyptians.

My experience thus far has involved a lot of explanation of the role of an urban planner and persuading them that their projects (and the whole of Egypt) would benefit from urban planning. For the most part it’s been surreal and interesting. I’ve been writing master plan reports, competition submissions and design guidelines for new residential communities in Egypt, resorts on the Red Sea, King Abdullah Economic City in Saudi Arabia, …continues next page the Petroleum Institute in UAE, a port in Qatar, and University campuses in Iraq. I’ve also been attending meetings with Saudi Arabian and Emirate clients, and advising my company on best planning practice. View of Cairo fro Al Azhar Park “New” preferred over “fix”

I have discovered that the industry’s preferred strategy for City governance: a world-wide problem dealing with urban issues (from housing provision to traffic Meanwhile, the same ‘problems’ remain in Cairo. It’s likely congestion) is investing in lavish projects on vacant desert land, that this unrealistic new Capital plan will exacerbate economic away from existing urban agglomerations. Governments and and urban inequality. Instead, I think Egypt should be tackling investors in the region look to Dubai, whether they’d like to live its existing urban challenges in established cities across the there or not, for answers to their urban challenges. Trying to country. The massive amounts of money bestowed on the new implement change and negotiating with clients has been testing Capital should be used to improve the living standards of millions at times, and I certainly would have enjoyed a greater role in the of Cairenes in areas that have been neglected for so long. The early planning phases of the projects. Nevertheless, it’s been an answer is not uprooting decades-old, organic communities in incredibly educational and eye opening job experience. informal areas, either.

VPELA Revue June 2015 / 23 organisations, as well as seminars run by architects and planners in cool spaces in Downtown. A female professional in Cairo Life as an urban planner and a foreigner in Egypt is made even more interesting (and challenging) as a professional woman. I am extremely fortunate that my workplace has a gender balance of almost 50-50. Women are in high positions and are outspoken and very well respected. I do presentations about our work to clients and feel confident amongst my hospitable and hard- working Egyptian counterparts. However, this wonderful bubble of equality in which I work is in no way a true reflection of the world outside. It’s a complex cultural situation that I couldn’t do justice in this article; however, in short, women in Egypt face significant obstacles in almost all aspects of life.

The complex, intertwined issues that Cairo and its residents face make some of the things that we consider back in Melbourne very minor in comparison. At times the urban planner inside of me cries out for some structure, some sense of this fragmented city (and the footpaths I continue to stumble over!). But I’m enjoying the reactive and creative planning initiatives and am in admiration of the city’s endurance and energy. Cairo is still the Khan el Khalili Market. economic and cultural hub of Egypt (and perhaps of the Middle East), and has been a fascinating place to live and work.

What Cairo needs is many small-scale urban initiatives that Rebecca Wardle is a Melbourne based town planner who was upgrade and revitalise every neighbourhood. A lack of money is working with Tract Consultants until 2014 when she decided often cited as an excuse for not making substantial improvements, to pursue international experience. Rebecca is still working but many of these inexpensive and immediately tangible actions in Egypt. can collectively improve a city and have a powerful impact on residents. Moreover, local engineers and Egyptian companies should be the ones undertaking these cohesive, community- based initiatives.

Some of the basic infrastructural, small-scale initiatives that are having a positive impact on urban life in Caro include: revitalising streets and laneways with new paving, seating and lighting; ‘colouring Cairo’ by painting public spaces brightly; installing public art in key locations; designating and upgrading land for parks; and improving footpaths. Many of these initiatives are being undertaken by not-for-profit organizations, and there are countless groups trying to change Cairo’s urban development and governance for the better.

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24 / VPELA Revue June 2015 The Business The low down on tall towers

Meg Lee Allens

Recent press reports have made much of the findings of maximum number of residents could be up to 8600, with a the Churchill Fellowship report by Leanne Hodyl (the Hodyl density of 6290 people per hectare, 1046 cars per hectare, 0.1m2 Report)1 that high-rise apartment towers are being built within open space per person, 92 per cent site coverage at ground level Melbourne’s Hoddle Grid at four times the maximum densities and tower heights of up to 95 storeys, with no community benefit allowed in cities such as Hong Kong, New York and Tokyo. requirement. The report raises some key considerations for developers, city planners and the new Victorian Minister for Planning in ensuring The findings for the other cities studied included that for the same block: that Melbourne plays its part in providing much-needed housing stock, while also maintaining our much lauded liveability. • For Hong Kong, the maximum number of residents could be up to 3600, with a density of 2620 people per hectare, 237 cars Background per hectare, 1.5m2 open space per person, 61 per cent site coverage at ground level and tower heights of up to 46 storeys, The Hodyl Report studies the planning controls of New York, with ESD benefits resulting from density bonuses; and Vancouver, Tokyo, Hong Kong and Seoul to review central • For Vancouver, the maximum number of residents could be city controls on high-rise building densities in each of those up to 1750, with a density of 1290 people per hectare, 192 cars cities. Her report then focused on one block in Melbourne and per hectare, 3.0m2 open space per person, 64 per cent site compared the extent to which this block could be developed in coverage at ground level and tower heights of up to 33 storeys, each of those cities. with 37 affordable housing units and 7000sqm community The Hodyl Report was released in the early days of the new facilities resulting from density bonuses. Andrews Government and its new Planning Minister, the The report has its limitations. The focus is on just one city block Hon Richard Wynne MP. It comes in the wake of what some and extrapolates from that to the whole of the central business considered a ‘proliferation’ of tower approvals by the previous district. Further, the report takes a somewhat simplistic Liberal Government Minister for Planning, Matthew Guy, dubbed approach to the current lack of mandatory density or apartment 2 by some as ‘Mr Skyscraper’ .​ size controls by failing to study the take-up and use of the guideline tools in decision-making. It is important to acknowledge that residential tower develop- ments are an efficient way to address the increasing demand Ms Hodyl does not argue against high-rise apartment develop- for housing in Victoria. Plan Melbourne reported that the ‘inner ments or ‘height’ per se. She acknowledges that increased city’ currently has 11 per cent of the metropolitan population, apartment development in the city benefits residents (easy and predicted that it will take 19 per cent of the projected growth walking access to jobs, shops, restaurants etc) as well as the by 20313. The Melbourne Planning Scheme itself notes in clause city, by enabling it to evolve, grow and become economically 21.07 that: stronger and more sustainable6. However, she concludes that reform is needed to better balance development and investment “The City of Melbourne supports the growth of the municipality’s and to deliver better quality places. residential population, which is forecast to reach 177,000 people by 2030 (ID Consulting 2011, Population Forecasts). Most of this Ms Hodyl recommends the introduction of four related planning increased population is planned to be accommodated in the tools: City’s areas of urban renewal, planned urban renewal and the Hoddle Grid.” • density controls in central Melbourne to provide an as of right maximum; The Hodyl Report findings therefore need to be balanced with a • density bonuses to incentivise developers to provide new open comprehensive consideration of the impact of any controls on spaces, affordable housing or other community facilities in housing supply and affordability. In this context, a recent New exchange for greater density above the as of right maximum; Zealand report found that the impact of minimum apartment • an enforceable tower separation rule; and and balcony sizes for affordable housing units added as much as • apartment standards to address internal amenity (eg $30,000 to the cost of development per apartment5. including access to daylight, setbacks, minimum floor to ceiling heights) and minimum size requirements. What did the Hodyl Report find? What other tools are available ? Ms Hodyl’s findings, graphically represented in aerial perspective for the subject city block on A’Beckett Street under the maximum While there is some overlap with Hodyl Report recommendations allowable rules for each city, reveal that for Melbourne, the (namely the introduction of minimum standards for apartments),

VPELA Revue June 2015 / 25 the focus on the Draft Housing Strategy is squarely on an outlook and sunlight between towers and ensure adequate provision of affordable housing. The Draft Housing Strategy sun penetration at street level as follows: recommendations are yet to be adopted into Melbourne City Council Policy and have been the subject of significant public u Development above 45 metres be set back 24 metres from and industry submissions7, particularly in relation to the any surrounding podium–tower development. recommendations to: u Tower separation setbacks may be reduced where it can be demonstrated that towers are offset and habitable • develop inclusionary zoning to require provision of 15 per room windows do not directly face one another and where cent affordable housing in new residential developments in consideration is given to the development potential of the Hoddle Grid and renewal areas such as Arden-Macaulay, adjoining lots. Fishermans Bend and E-gate; • incorporate the Office of the Victorian Government Architect These policies and guidelines have, in our experience, been (OGVA) document (currently in draft form) – Victorian Apart- used by decision-makers (Council and the Minister alike) over ment Design Standards – into the Planning Scheme; and the years to require setbacks, demonstration of air rights over • include development bonus schemes for renewal areas abutting lots where development goes to the boundary, and to encourage the delivery of additional apartments in a requirements to enter into s173 Agreements so as to require proposed development in exchange for providing affordable boundary windows to be closed over in the event of future housing. (This measure only works where there is an existing development on adjoining lots. Such tools can therefore assist in restriction on height, density or floor space ratios, or a ensuring equitable development between adjacent parcels and combination of these, that can be surpassed to provide the appropriate tower separation and treatments at street level. developer with a bonus above the amount of a development The Hodyl Report does not address the use of any of these allowed for a particular site). existing tools in decision-making and their potential to address The Property Council of Australia (PCA) has expressed concern and guide a sensible balancing exercise in decision-making. that these recommendations could increase the cost of However, the point made by the report that there are currently development and damage Victoria’s competitive position. In no mandatory density or internal apartment amenity controls in particular, the PCA submission warns the City of Melbourne Melbourne obviously remains valid. to consider the impact of NSW’s State Environmental In the absence of clear guidance in the Schemes, the Tribunal Planning Policy 65 (SEPP 65) mandatory controls on Sydney’s has grappled with acceptable apartment standards. In the Abby housing market. Apartments10 case last year, the Tribunal commented that: What the Hodyl Report does not assess or address is the “The Tribunal has been grappling with acceptable standards existing policy matrix that must be considered in any planning for internal amenity in recent years. There has been a gradual application. The State Planning Policy Framework at clause shift in approach such that what is acceptable is not a matter for 15.01-2 requires that planning should consider ‘as relevant’ the compliance with prescribed standards under building (or other) Design Guidelines for Higher Density Residential Development law. Until the scheme contains clearer guidance than that in the (Department of Sustainability and Environment, 2004) (Higher current guidelines, what is an acceptable standard is a matter of Density Guidelines) in assessing the design and built form of fact and degree in individual circumstances.” residential development of five or more storeys which include design objectives including: An early draft of the Victorian Apartment Design Standards was apparently leaked last year to the media, however it was not • Objective 2.6 – to ensure areas can develop with an equitable widely accessible. It is understood that the leaked draft standards access to outlook and sunlight; were based on SEPP 65, introduced by former NSW Premier • Objective 5.4 – to ensure that a good standard of natural Bob Carr in 2002. SEPP 65 includes minimum apartment sizes lighting and ventilation is provided to internal building for one-, two- and three-bedroom units (but not for studios) spaces; and and mandates that an architect design all high-rise projects. • Objective 6.6 – to create public open space appropriate to Architect involvement in the design of high-rise developments its context. has become a common condition imposed in permits issued by The Local Planning Policy Framework (LPPF) in turn further the City of Melbourne. SEPP 65, however, was recently criticised provides at Clause 22.01 that, where the Capital City Zone by the NSW Land and Environment Court as the incorrect (Schedules 1 or 2) applies, it is policy that the design of standard and that instead, SEPP 66 should be used which sets buildings is assessed against the certain design standards, the size of a one-bedroom unit at 58 square metres; a two-bed as appropriate, including: unit at 91 square metres and a three-bedroom apartment at 148 square metres. In comparison, it has been reported that • Towers should have a podium height generally between 35 the leaked draft Victorian standards included apartment sizes to 40 metres, except where a different parapet height already of 37 square metres for a studio apartment; 50 square metres exists or where the need to provide a context for a heritage for a one-bedroom unit; 65 square metres for a two-bedroom building or to emphasise a street corner justifies a variation apartment and 90 square metres for a three-bedroom unit. from this norm. • Towers above the podium should be set back at least 10 After numerous statements to the press and at industry events metres from street frontages. about small apartments the Minister has visited where he could • Towers should be well spaced to equitably distribute access to touch the ceiling or with showers over the toilet, the Minister has

26 / VPELA Revue June 2015 now released Better Apartments – A Discussion Paper9. The The release of the Better Apartments Discussion Paper will no Better Apartments discussion paper includes discussion about doubt elicit much debate in the development sector. Submissions ‘space’ including posing the question as to whether we need to on the Discussion Paper are open until the end of July and set minimum apartment sizes, minimum ceiling heights and stakeholder consultation will then occur in July and August. requirements for larger developments to include different types Implementation options will then be developed during the last of housing. By way of background, the Discussion Paper refers quarter of 2015. to Charter Keck Cramer research that, of a sample of 10,373 apartments currently being marketed or constructed 43% are In the meantime, the Minister has approved new apartment tower one bedroom and only 7% of those are less than 40 square proposals at 380 Lonsdale Street and on the corner of Bourke meters. The Discussion Paper refers to the other jurisdictions and Spencer Streets (which includes 160 hotel rooms) and has and mentions SEPP 65, however it does not appear to be driving refused one tower proposal at 85 Spring Street. Tribunal appeals at adopting a similar approach. The Discussion Paper also poses have been lodged in relation to the Spring Street proposal and questions upon which it is seeking feedback on thirteen other also in relation to a ‘failure to decide’ application for a 25 storey, issues in addition to size, including daylight, outlook, natural 243-unit proposal in Batman Street, West Melbourne. ventilation, noise, outdoor space, adaptability and car parking. With the State Budget allocating $1million towards clearing The Discussion Paper does not state a preference for implement- the backlog of 26 central city permit applications (and the 150 ation options but instead invites comment on the best mechanism planning scheme amendments awaiting approval), it is likely that – either regulatory minimum standards implemented through a clear picture of the Minister’s priorities for central city planning the planning schemes; performance based standards and for tall towers will emerge in the near future. guidelines such as a ‘ResCode’ for apartments; or policy based This Article was first published in a longer format on the by way of revising the Higher Density Guidelines. Allens website. An issue not picked up in the Discussion Paper is the issue of Meg Lee is Managing Associate, Allens in Melbourne and can contribution to community facilities or open space. This was be contacted on +61 3 9613 8154 or [email protected] a point raised by the Hodyl Report and it warrants further consideration. Obviously, any move to impose mandatory Endnotes requirements in the inner city needs to take account of the fact that the inner city is generally already well serviced by existing 1. Hodyl, Leanne (2014), 2014 Churchill Fellowship: To investigate infrastructure and community facilities, and thus should not be planning policies that deliver positive social outcomes in hyper- subject to the same contribution requirements as growth areas. dense, high-rise residential environments. 2. ‘Could the Andrews Labor Cabinet Signal a Turning Point for What will happen next? Melbourne’s City Planning?’ by Shane Green, The Age, 31 January 2015. In an interview with The Sunday Age newspaper, Mr Wynne was 3. Note, however that the definition of ‘inner city’ in Plan Melbourne asked about his predecessor’s approval of numerous tall tower includes municipalities of Melbourne, Yarra, Port Phillip, developments in the CBD. His response flags the likely direction Stonnington, Maribyrnong of any changes he will make to CBD planning controls, namely 4. Personal Communications, 12 March 2015. Chris McNeill that he will focus on: (B.Economics, Monash) is well known throughout the development industry. An economist and former Policy Director with UDIA • quality of ground level spaces and the impact of tower (Victoria), Chris is noted for his knowledge of land supply policy, developments on the pedestrian realm; demographics and regional development issues. • introducing minimum standards for the internal amenity of 5. Grimes, A. and Mitchell, I (2015) Motu Working Paper 15-02 apartments and apartment size11; and Impacts of Planning Rules, Regulations, Uncertainty and Delay on • a new, more transparent, process for the approval of tall Residential Property Development. towers (presumably only for those buildings over 25,000sqm 6. Hodyl, Ibid.p11. floor area for which he is the Responsible Authority, although 7. See the City of Melbourne’s Consultation Responses, Homes for this is not clear at this stage. People Draft Housing Strategy. 8. See for example: West Valentine Pty Ltd v Stonnington CC [2005] Mr Wynne was quoted in the interview as saying that: ‘Height VCAT 224. in appropriate settings is a good thing. But we all live on the 9. http://delwp.vic.gov.au/planning/policy-and-strategy/better- ground. We all get about the place on the ground. So what’s apartments?remap=delwp.vic.gov.au/better-apartments happening on the ground? Is it an activated space? Is it a space 10. Abby Apartments Pty Ltd v Stonnington CC [2014] VCAT 172. that is pleasant? Is it a space where we are interacting?’12 11. ‘Planning Minister: Skyscrapers make Melbourne’s CBD hostile’, It is understood that the new process will involve the new Victorian The Sunday Age, 8 March 2015. Planning Authority for the central city and potentially review by 12. ‘Victoria’s Planning Minister Richard Wynne is focused on the job the Victorian Government Architect. However, the details of the ahead’, The Sunday Age, 8 March 2015. new body or the new process are yet to be released as at the date of writing. There has been no mention to date of any new requirements for the provision of contributions or ‘works in kind’ to provide for public facilities as called for in the Hodyl Report.

VPELA Revue June 2015 / 27 nce again VPELA members and industry colleagues VPELA’s Oflocked to our gala dinner on 8th May at the Crown 1950s, Palladium Ballroom. Over 730 “rockers” attended our fabulous 1950’s themed event. Guests were greeted by Elvis “aka Tony” and his beautifully presented red Cadillac, before mingling Rock n Roll with themed waitresses in the VPELA Diner for pre-dinner drinks. The mood was upbeat and it was great to see so Gala Dinner many dressed in their 1950’s finery, adding to the fun! Our 1950’s dancers really kicked the night off to a great start.

ongratulations to our costume favourites on the Thanks to all our sponsors Cnight. Best female costume Angela Armstrong, Message Consultants who looked 1950’s from head to toe. Best male Carlo Morello, Traffix Consultants TABLE SPONSORS and best couple Tania Quick & Cameron Alderson.

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28 / VPELA Revue June 2015 VPELA Revue June 2015 / 29 30 / VPELA Revue June 2015 VPELA Revue June 2015 / 31 32 / VPELA Revue June 2015 The Business Apartment standards More Maslow or more area? Chris Goss Orbit Solutions

As we are all well aware the State Government has released Theodore Maslow, the American psychologist had a bit to say a discussion paper (Better Apartments: a Discussion Paper, about our physiological needs; our need for safety and our need May 2015 (Office of the Victorian Government Architect and for love; which can be applied to our housing needs. Maslow’s Department of Environment, Land Water and Planning) that aims hierarchy of needs places as the foundation, satisfying the to focus on how we can ensure the spaces within an apartment physical requirements for human survival. Without these, the match peoples’ needs and expectations during different phases human body cannot function properly and will ultimately fail. of their lives. The purpose of the discussion paper is to: In looking at the provision of adequate amenity within human habitation Maslow’s three core factors of metabolic requirements • provide a context to apartment living (air, water and food), protection from the elements and sexual • focus on the internal design amenity and functionality of all competition require consideration. Safety is also a requisite. apartments and apartment buildings Citizens need to feel secure; next is the third of Maslow’s needs, • consider other issues that affect amenity for those living in identifying our need for love and belonging. This hierarchy of apartment buildings. needs can be seen in the context of apartment living.

A great deal has already been said about the pros and cons The Committee for Melbourne advocate in favour of a more of prescribed minimum sizes for apartments and it is not my compact city encouraging a greater mix of high and medium intention to contribute further to the plethora of opinions about density development within strategic inner urban locations. the merits of more controls on internal amenity and functionality The Committee noted that population density in Melbourne has within apartment buildings. declined since the 1920’s from 2,700 persons to around 1,455 persons per square kilometre in 2001. A city can offer a myriad This article addresses the less vexing, but perhaps ultimately of housing typologies including diverse apartment types; micro- more meaningful purpose of apartment living as a housing housing being one such solution. It is interesting to compare our solution and choice. We can observe an increasing predilection situation other more urbanised cities. in the Australian urban market toward apartment living. Historically the apartment dwellers of Victoria were likely to Apartment models are being delivered in many other countries. be social housing recipients or students and younger people Songpa’s Micro-Housing project in Seoul, South Korea and the renting prior to purchasing their own home. In today’s market, New York Micro Housing project focus on the quality of place the occupiers of apartments may be either owners or renters over quantity of space. Seoul’s attitude to dwelling size called and extend across all economic and cultural backgrounds. for less area than New York. In each locale the authorities favour the provision of flexible individual units with a high level of shared We need additional housing for more citizens with more diverse amenity and common areas that blend with more public and/ needs than ever before. The United Nations have identified that or commercial spaces. The need for adequate housing that over half of the world’s population live in urban areas, a proportion provides for our three core metabolic requirements is the base of this is expected to increase. Melbourne’s population is forecast line. There is no vital requirement for large areas however there to increase to 7.7 million in 2050. So apartment developments is an imperative to provide safe and secure environments This, in Australia will continue to be deployed with an increasing in combination with Maslow’s third identified needs (love and proportion of our citizens being housed in this dwelling type. In areas like Southbank “high end” apartment buildings (such as Eureka Tower and Freshwater Place) designed circa 2000 are neighbours with lower end apartment buildings completed at the end of the 1990’s. Communities require an array of apartment typologies in the same way that our suburban areas also require diversity of housing choices.

Let’s first look at the fundamentals: The need for housing is universal. The challenges of urban density and housing costs is global. The issue of affordability is cultural. The expectations of amenity are personal.

VPELA Revue June 2015 / 33 belonging) suggests that our policy makers and designers should promote shared areas within and around apartment buildings that promote community and provide choice to the citizens.

The discussion paper levels some criticism at the type of apartments that are being delivered. It is important to recognize that the evolution of apartment design is the result of at least three contributing and often conflicted factors; planning policy and precedent decisions, building codes and building economics, and the market forces including finance modelling and purchaser preferences. In the last decade we have seen apartments morph and change. Fundamentally though it is the developer of the project who will determine the make-up of the project They risk much in the undertaking so if we want to be able to house our citizens in a free market system then we need from our government as much certainty as possible but encouraging innovation and quality design outcomes fitting the ever evolving Victorian context.

Chris Goss is director of Orbit Solutions, architects and visualization specialists.

He has lived in apartments in different cities around the globe, as the Architect of thousands of apartments around the country and as an ‘Expert Witness’ specialising in visual amenity. Chris recently returned from a Study Tour of the USA looking at Urban Renewal Projects,

Image source: http://www.ssdarchitecture.com/ works/residential/songpa-micro-housing/

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34 / VPELA Revue June 2015 The Business Infrastructure provision in growth areas Have we still got our heads in the sand? Bill Forrest

Reflections from the front line Wyndham had another big year in 2015 in terms of residential growth. We had a number of Precinct Structure Plans (PSPs) and Development Contribution Plans (DCPs) approved in Wyndham West and Wyndham North. Collectively they accommodate provision for an additional 55,000 dwellings. Concurrently there were approvals of nearly 9,000 lots in subdivisions (Section 96A).

Population continues to grow at around 10,000 to 12,000 people per annum, 80 birth notices per week, and building approvals running at their long-term trend of 3,000 per annum. Total population now exceeds 200,000 and is forecast to increase to over 400,000 over the next 30 years.

We have around 34 greenfields subdivision residential develop- New approaches to procurement - Alamanda Pre-school built on a ments active at the moment. If you describe a local community school site as part of the contract for Stage 1 of the school with Council contributing funding. as one that is of a scale to warrant its own primary school, kindergarten/maternal and child health centre, recreation reserve and local activity (shopping) centre, as per approved PSPs, then talks about pegging rate increases to CPI. Imagine if the State we have 12 “communities” or neighbourhoods currently under Government needed to increase its total expenditure by 11% to construction. Each of these communities is asking, “When is accommodate just the capital demands for state infrastructure in the local primary school/kindergarten/recreation reserve/bus the 7 growth area municipalities, whilst the Federal Government service/shopping centre coming?” was threatening to cap their major revenue source to CPI? That’s the magnitude of the challenge. Developers can give a general indication of when the shopping/ activity centre will arrive based on estimates of the rate at which State infrastructure houses will be built and thresholds to support the centre will be reached. Council has an indicative 10 year capital works program The challenge at the State level is also substantial. When the and, (subject to being clear on how the funding gap is to be State Government introduced the Growth Areas Infrastructure plugged), can also give indicative time frames. Having said that Contribution (GAIC), it argued that this only covered 15% of their our processes and planning could do with further improvements. infrastructure capital liabilities/obligations in growth areas. On the other hand we still have an annual State Government budget process in relation to announcing new projects. In Wyndham (which accounts for around 20 to 25% of Greenfields developments), it is estimated that the State Government will Providing local infrastructure collect $565m in GAIC. If this is 15% of their obligations, then they face a total capital investment challenge of $3.8 billion in The DCPs will raise $1.6B for local infrastructure. The estimated Wyndham alone, over the next 30 years. If the funding allocations total cost of the local infrastructure in question is $2.4B, leaving were “straight lined”, this would represent around $120 million taxpayers (local, State and Federal – but almost exclusively local) per annum to be spent on things like; to foot the bill. Rounded to the nearest $10 million or so (a figure that just rolls off the tongue in a local government context!); • Around 30 new schools, each school built in 3-4 stages • 5-6 additional railway stations • the local roads shortfall/gap is $300m. • Hospital expansions • Open space, recreation and community infrastructure • Emergency services facilities is $200m • A doubling of the bus service network just to keep pace with • Higher order and “Regional” sports and recreation eg: existing poor quality/inadequate service levels Grandstands, aquatics, indoor highball is $300m This says nothing about the backlog; It would require an immediate 30% increase in Council’s capital program, and an 11% increase to Council’s total budget to bridge • police numbers per capita are half the state average this gap; and that’s just the capital component. All things being • primary and secondary schools are behind schedule, as are equal, if the Council was to fully meet the costs, rates would need much-needed subsequent stages on the existing recently to increase by around 30%. Meanwhile the State Government constructed schools.

VPELA Revue June 2015 / 35 • 21 sections of 2 lane arterial/main roads at or overcapacity Recent infrastructure gains in Wyndham and therefore in need of duplication, 17 of these being the responsibility of VicRoads In late June, Regional Rail Link will commence services, offering • The Auditor General in 2013 estimated transport capital a 20 min service in peak periods and two new railway stations infrastructure backlogs in growth areas totalled more than in Wyndham, each with 1,000 commuter car parking spaces. $10 billion, and recurrent funding of $197 million per annum Bus schedules are being reworked to improve services for was needed to improve bus services to minimum service commuters with 20 min frequencies (currently 40 to 60 min), standards. more direct routes and better connections with trains on both the RRL service and the Werribee line. The problem for the State is pretty clear in terms of poor revenue The proposed Metropolitan Rail Link, when combined with streams and high demands for infrastructure provision. purchase of additional rolling stock, and the proposed Westgate distributor, create the capacity to accommodate significantly Community priorities more journeys from Wyndham to Central Melbourne, and Our residents live the experience of the lack of timely provision of represent a radical upgrading to transport services. infrastructure on a daily basis. Not surprisingly, residents have a In the most recent state budget an allocation of $85 million poor opinion of governments’ and the industry’s collective efforts to Werribee Mercy Hospital addresses the next stage of the in managing population growth. Our community satisfaction hospitals need to upgrade to meet population demands. There surveys consistently rate Council’s performance poorest in was one road project of $7.5 million, but no new schools. managing residential growth, along with traffic management/ congestion. The average scores are less than 6/10, compared Some more systematic gains have been made in relation to with over eight for services like garbage collection and libraries. road funding with a more substantial proportion now funded through DCs and borrowing costs included in DCP is where When we asked residents an open-ended question “what is large amounts of work works are required upfront. The Andrews the most important thing for Council to address in the next 12 Government has also committed to an outer suburban arterial months?” traffic management was identified by nearly 50% road fund of $1bn over 8 years. of respondents, followed by road maintenance 17%, public transport 14% (they know Council doesn’t provide public Notwithstanding all of this transport, education and health transport – but get it fixed!), and (commuter) parking 13%. These services in growth areas are not up to the standards of the “world’s most liveable” inner city . Not by a long shot. were the top 4 issues identified. They are followed by issues such as schools, health services, and local employment. Most What can local governments do to better to manage this? people know which level of government is responsible for what services, but still expect Council to take an active role in having these issues addressed. The major exception to this is who has planning control in relation to opening up growth areas, where confusion in the minds of residents abounds.

What rings loudly in Councillors’ ears is the heart-felt and anguished plea from residents – “if you can’t deliver much more timely provision of road duplications, bus and train services upgrades, schools, health services and more local jobs, - then stop the residential growth!”

The recent creative ploy of residents in Pt Cook to seek to set up their own nation state is a creative/desperate way to gain mainstream media attention for the underlying problem – infrastructure is not keeping pace with residential growth. Scratch away at the surface of this and you find deep discontent in relation to the lack of arterial road capacity, buses, commuter parking, schools, and police. This is not only a problem for Pt Cook but all growth areas in Wyndham, and growth areas on the planning, designing & collaborating fringe of our major cities. hansen partnership is a multidisciplinary planning and In Council’s most recent survey, 15 respondents out of 800 design practice. surveyed raised concerns about the level of rates, as a priority for Council to address. In terms of ranking priorities this came in We work together, blending our expertise and knowledge across urban at number 22. Hardly a ringing endorsement of the necessity for planning, urban design and landscape architecture. We are committed to rate-capping relative to other priorities. streamlining the planning and design process to deliver compelling solutions based on your needs and aspirations. For residents in established areas like Hoppers Crossing with 20+yrs old infrastructure, they see the new infrastructure being Find out more on our new website: hansenpartnership.com.au built in growth areas and are not happy with the notion that their rates are contributing to this newer and higher quality urban planning urban design landscape architecture infrastructure.

36 / VPELA Revue June 2015 There are a number of approaches that Wyndham is pursuing;

• Reduce costs of infrastructure • investigating opportunities to change standards of infrastructure • Find efficiencies in infrastructure procurement and delivery, • Options and opportunities to more actively manage the number of growth fronts. • Indexation of relevant fees and charges

There are other opportunities more broadly;

• More targeted user fees/pricing policy to bridge the gap – e.g. differential rates – using the value capture method in relation to rail infrastructure improvements • Better collaboration with the development industry in terms of advocacy for infrastructure in growth areas. • Encourage real attempts at population growth and higher densities in inner and middle Melbourne. Take the pressure off (slightly) by increasing the supply of housing in existing residential areas. In the last 5 years only 3 metropolitan Councils not within the growth areas grew their population by more than the metropolitan average of 1.6% pa. 18 Councils grew their population by less than 1% pa. • The “elephant in the room”, federal-state taxation relations – it could be argued that the Federal government is 70% of the problem in that they collect 70% of the nation’s taxes. There is also the state of the national budget. To quote Peter Martin, economics editor of The Age; “hidden in this week’s tax discussion paper and in the earlier intergenerational report is an inescapable reality – we need more tax” (March 31). Economics commentators are arguing quite strongly that a clampdown on tax avoidance whilst a good start, is not sufficient.

We are making some headway in relation to the review of • Meaningful ways to encourage greater densities closer to standards, procurement flexibility particularly in relation to existing infrastructure. works in kind, and more funding certainty for local roads, including the forward financing component. Footnote: Any views and opinions expressed in this article are those of the author, and do not represent formal policy We are struggling to have deep and meaningful conversations positions held by Wyndham City Council. most of the other issues but in particular; Bill Forrest is Director Advocacy at Wyndham City Council. • Any increases to taxes, or restraint of tax concessions, to Bill’s role involves working externally with state, federal fund this and private organisations to negotiate better outcomes • Options to better or more actively manage the number and for Wyndham City. Bill has extensive experience at local location of growth fronts, and conditioning further growth on government level both in Australia and in UK including 5 years infrastructure provision. as a CEO.

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VPELA Revue June 2015 / 37 People A Day with Professor Rob Adams AM Director of City Design at City of Melbourne Carlo Morello Traffix Group

Joining the City of Melbourne City Design team: in-house and consultants (CoM) team in 1983, Rob Adams has been instrumental What most people don’t realise, Rob tells me, is that the City in mapping Melbourne’s Design team works as a fee for service team, offering Urban future by revitalising its Design expertise, Advocacy and Advice, Project Delivery and urban landscape, helping it Procurement, and Parks and Asset Management to not only CoM but to other municipalities, stakeholders and the to become the world’s most government. Later in our day, Rob met with Claire Ferres-Miles, liveable city. He was awarded the Manager of Place Strategy and Development at City of Port a Membership of the Order of Phillip, a regular meeting between the two where Rob shares Australia in 2007, the Prime his experience with Claire and they discuss Melbourne, Port Minister’s Environmentalist Phillip, Governmental change and announcements, tackling big of the Year Award in 2008 projects and Council strategy. and has received a multitude of other prestigious accolades for his works. He introduced and implemented Postcode 3000, Rob has grown the City Design team from a modest four people oversaw the transformation of Birrarung Marr, Swanston Street, in the mid-80s, to now over 90 personnel. As a condition of his QV precinct and a range of other projects (including the 6 Green original engagement by City of Melbourne, Rob ensured the Star Council House 2) and has contributed significantly to team would be run as a productive business, to benefit both the research and education, particularly with RMIT and the City and his personnel, by having the expertise in-house. This University of Melbourne. He continues to guide not only the City has proved very successful. of Melbourne, but also other municipalities, in becoming more liveable and sustainable. “New” public open spaces The City Design team prioritises creatively addressing Public As Director of City Design, Rob leads a large team and has Open Space issues in a dynamic way. A current focus is re- five direct managers (for Urban Design and Docklands, Urban purposing existing public spaces (roads, parks, etc.), rather than Landscapes, Design , Capital Works and Park Services) investing in new land holdings. Rob believes that these types reporting to him. I was lucky enough to be able to spend the of projects will save significant dollars for the city by changing day shadowing him; a “day in the life” of’ one of Planning’s most previously disused and run-down city space, into functional influential people. places that the public can benefit from. A prime example is the our first meeting of the day regarding an upcoming project in The generosity with which Rob shared his knowledge, ideas, Southbank where nine members of the multidisciplinary CoM experience and his day with me (and all those he met throughout team from infrastructure and services, landscaping, urban the day) meant that in shadowing him, I gained great insight into design, maintenance and assets and traffic, are presented and why this man has had such a significant role in the shaping of the briefed on a current project ready to be placed out on public City of Melbourne. consultation by Rob’s team.

Although Rob’s day usually begins at 5:00am, I’m granted a Other recent and prominent projects include the Queen Victoria Markets (QVM) Precinct Renewal – an exciting project to see the sleep-in. Our day together commences at 8:30am. By this time entire market precinct, including a recent City land purchase at Council House 2, Rob has swum over a kilometre at the Fitzroy reinvented, Return to Royal Park – the successful reinvention Pool, had breakfast, ridden into work, caught up on his emails, of the old Royal Children’s Hospital car park at Gatehouse made phone calls and completed administration tasks. He also Drive as a newly landscaped public park with open and creative had a chance to brief the Lord Mayor’s office about relevant space to be enjoyed by patients and families, as well as the project updates for the fortnightly radio spot on 3AW. public., Neill Street Reserve – upgrades to recreational facilities and landscaping in Carlton, and the West Melbourne Parks When I arrive, Rob’s dedicated assistant of 12 years, Fiona, Expansion – where the team is looking to expand existing park hands me an A4 sheet filled with appointments; meetings with land to provide additional open space and opportunities for a dog team leaders, team debriefs, discussions with the City’s media off-leash area. advisor, meetings with Landscape and Parks, negotiations with Next, we move directly to a debriefing with one of the new media external stakeholders and developers, workshops with other advisors, where I come to understand the full breadth of Rob’s City departments on neighbourhood, population and economic current project list, and then to another meeting with one of his research, mentoring meetings and lastly an exhibition at the team leaders as part of their weekly debrief and coordination. Rob National Gallery of Victoria to finish off the day.

38 / VPELA Revue June 2015 then meets with a well-known landscape architect regarding a for People team. This team is undertaking detailed research new project within Queen Victoria Gardens regarding this year’s using city data and questionnaires to understand liveability of ‘MPavilion’. Beginning in 2014, an architecturally commissioned certain areas and neighbourhoods. They hope to understand pavilion will be constructed each year in Queen Victoria Gardens how these factors can be used in developing the upcoming place to form an event hub from October to February. This meeting strategies for the city. The workshop includes attendees from focuses on the landscaping within the gardens and attempts to various CoM teams include urban design, social research, and improve the currently heritage listed gardens to better activate the finance team. The workshop finishes early and Rob has a the areas surrounding the MPavilion itself. short meeting with one of the city’s Golden Mile Heritage Walk Lunchtime is sacrosanct. Rob prefers to spend this time alone, tour guides regarding an upcoming Planning Institute of Australia a half hour generally spent in Hairy Little Sista (ground floor of (PIA) walking tour that the two have volunteered to guide. CH2) reading the Financial Review, and dedicated purely to catch Education and research are clearly large components of Rob’s up on personal time which includes personal phone calls and contribution to the industry. He continues to publish research emails, prior to launching into a busy afternoon. with the help of Council’s internal departments and is a guest “Creative” infrastructure lecturer at RMIT and the University of Melbourne. He has appeared in countless interviews for paper publications, internet Back in the office, you can see that Rob is always designing, blogs and has presented at various events, including at TEDx creating and reinventing. Pinned up on walls, stacked neatly in Sydney 2010. He is a wealth of knowledge and expertise and is draws and bound in his daily notebook are hand sketches and very willing to pass this on to others, lending him the recognition butter paper designs showing block master planning concepts, by some in the industry as Australia’s city urban design guru. detailed elevations and urban landscapes. He says that the scope continually changes, but ultimately he (and the team) start a The day finishes after a meeting with a private developer to project with a vision which evolves and develops over time. Initial discuss changes to plans, construction progress and contract ideas might spring from a stakeholder or property owner, the issues, followed by the weekly branch meeting. Before heading Government or as part of a Council strategy. to the Australian Artists and War 1914-1915 Exhibition at NGV, Rob spends the rest of his day catching up on emails, documents Rob advises me that simply saying ‘yes’ or ‘no’ to a project, and briefs in an attempt to clear the slate before another pre- particularly when it is a State Project, does not allow Council dawn start to the next day. to fully appreciate the benefits that can be drawn from it. He likes to focus on fully understanding the city’s issues, in order Reflections to manufacture a resolution. Looking for opportunities to piggy- back big CoM infrastructure projects with other projects either I left my day with Rob feeling inspired; inspired professionally by lobbying the State Government or individual land holders in about the projects and evolution the city is involved in, but also the City. Within the scope of his practice include physical space personally inspired by someone with such vision and drive who and urban landscape issues, identification of factors making has achieved substantial change and is clearly always willing the City fundamentally ‘liveable’, and what can impact on these to share his wisdom on to others without reservation. Rob’s contributing factors. Rob integrates consideration of how city integration of private and government pursuits, with research and developments impact on land prices, changing council rates, education is unique. He has been instrumental in the creation of increased density, repurposing open space etc., when planning Melbourne’s distinctive urban landscape, transforming it from a new project. what it was in the eighties to one of the world’s most liveable and exciting cities. Projects based on research I thank Rob and his team for inviting me into their workspace Rob clearly loves statistics and hard data to support his ideologies for the day, for involving me in their discussions and for being and next we walk to the CityLab – a dedicated space in the so excited and enthused by their projects and sharing them Melbourne Town Hall which is currently being used by the Places with me.

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VPELA Revue June 2015 / 39 Places Melbourne School of Design Realising our built environment through design Professor Tom Kvan The University of Melbourne

The Melbourne School of Design (MSD) at the University of Let me explore this concept a little further. Any task or project Melbourne encompasses six professional programs, which undertaken by a professional in our collective fields can be prepare students to enter professions that contribute to realising approached at various levels. It can be addressed in a formulaic our future built and inhabited environments. All six professional manner and a response prepared by following guidelines, streams (urban planning, urban design, architecture, landscape policies and regulations. Indeed, this is a core activity embedded architecture, construction management and property) prepare in professional work and mastery of this process is essential graduates to engage collaboratively in researching and for any member of the planning profession. We have legal and understanding a context and situation, proposing change and social obligations to ensure that the work we deliver is properly realising their ideas through appropriate mechanisms. This prepared within all appropriate and relevant bounds and at the is, after all, what professional work is about – listening to highest standards, but is that enough? community needs, understanding the issues at hand, articulating opportunities and then proposing insightful solutions to address For much professional work, the formulaic method is these needs. inadequate. We must approach this work with judgement and care, not only to the particular situation and individuals involved As we deliberated in 2007 on the establishment of a graduate but also considering the broader implications of our work within school for the six professional programs (now the MSD), we our community and society. Additionally, with our experience and decided that a core principle to demonstrate in the student education, we are often able to see potential for a better outcome experience was the collective and collaborative nature of our and we have the obligation to bring attention to this potential. As work in delivering a better quality of life through an improved we all recognise, the larger goals of our community are realised built environment. Thus, the curriculum is structured in six through projects and decisions both large and small. clear and robust professional pathways, accredited by the Institutes, each ensuring graduates are properly equipped with the necessary knowledge and skills. In addition, we ensure that a student is given ample opportunity to work with students in the other programs within the graduate school, preparing them to enter their chosen profession with some understanding of the perspective and capabilities of the other disciplines and the community more broadly. Why call it the School of Design? ‘Design’ is not just about having good ideas and documenting them in words, images or calculations. It is also the skill and capability to communicate these ideas so they can be understood, tested and embraced by others. Importantly, it is also the ability to see beyond an immediate solution to understand the issues that lie behind a situation, and to recognise the opportunity each situation presents. Finally, design it is the capability to make sound judgements on the appropriateness of a proposition and There is considerable work, therefore, that requires us to explore to ensure professional obligations are properly fulfilled. the potential of a particular situation and to identify what might lie beyond the obvious. We recognise too that we work within the In framing our curriculum, the underlying capability we are realm of what Horst Rittel and Melvin Webber called, in 1973, helping our students master is the capability of design. Our use ‘wicked problems’, as opposed to the ‘tame’ problems that of this term takes the word well beyond its common association science or engineering deal with. Obvious quick reactions may with a graphical and geometric exploration. Essentially, we in fact lead to worse outcomes in the long run. see design as stepping beyond problem solving in a purely mechanical sense to exploring the potential in a situation, As defined by Rittel and Webber, ‘wicked problems’ are not just seeking opportunity to address core issues. To do this, we need large and complex, requiring many perspectives to understand to be able to work not only in images but also in words and them (a common current interpretation of the term). More with numbers and data. Design is not only undertaken by than that, Rittel and Webber assert that ‘wicked problems’ can graphical means, we can also design by writing policy, by never be definitively described, and that they change as they are structuring budgets, by deploying technologies as well as by addressed. As Rittel and Webber claim in their paper, Dilemmas modelling geometries. in a General Theory of Planning, “The search for scientific bases

40 / VPELA Revue June 2015 for confronting problems of social policy is bound to fail, because of the nature of these problems.”

This situation is common across all six of our professions – in no discipline can we confidently expect to be presented with projects, each consisting of a situation and context, in which we will be sure of finding a set of enumerable solutions. In professional work we are called upon to make judgements in a series of unique situations and to offer a singular and perhaps untested answer. These are our propositions, because they are untested.

In their paper, Rittel and Webber described ten characteristics of wicked problems. As many have observed since the publication of their paper, these ten characteristics of problems can be found in many fields, not only in planning, and the term has been embraced widely, including in the field of design. The power of the design approach In choosing to call ourselves the Melbourne School of Design, we are declaring that we educate future professionals across the six professional programs to master not only the procedures and regulatory contexts of their future work but to recognise that, in the delivery of professional work, they take on an obligation beyond offering formulaic solutions. In effect, they must be working in a propositional manner since ideas cannot be tested without consequences. In much of science and engineering, a problem based learning). Thus, the MSD curriculum includes problem can be bounded, the problem worked within that context materials in theory, history, technology and professional and solutions tested without risk. In our work, boundaries are content; it also puts students into open ended discussions and difficult to establish and work cannot be undone if faulty. We explorations of particular situations. Through these experiences cannot build a neighbourhood then demolish it immediately if it is the students come to understand that the formulaic application not working as expected. Furthermore, no two neighbourhoods of a body of knowledge, whether encapsulated in theory or are the same so we cannot simply replicate on different sites, regulation, is a useful but inadequate response. They are called at different times and with different people. The power of the upon to provide their interpretation and judgement and to see design approach has been recognised and adopted by the British that problem solving in itself will not always suffice. As they step Government, for example, in their Design Policy Lab that works beyond this, they are engaged in design. By drafting regulations, on core policy framing and drafting challenges. constructing a budget or writing a project brief, they are starting to sketch out potentials, describe limits and establish Design thus underpins our approach to learning and developing opportunities. This is the act of designing, carried out in words, as professionals. Students learn through understanding the calculations and forms. facts, methods and theories of their discipline as well as through the difficult process of peer exploration. The later process is Our new MSD building, located on the centre of the campus encapsulated in the term ‘studio experience’ (or, in other fields, in Parkville, demonstrates this approach. In making choices about the location of the building (its boundaries do not replicate the former footprints), in casting the budget (with which we delivered a project at below median cost per square metre for academic buildings), by choosing construction methods (that ensured deliver four months early) and by describing its form, design decisions were made throughout the many steps it took to realise the project. Students can observe this as they use the building and see the consequences of such decisions. As one decision was made, new and unforeseen opportunities emerged. The outcome has been a building beloved by students, heavily used, raising the standards of design and awarded 6 Stars by the Green Building Council of Australia. This, in essence, is what Rittel and Webber were describing – a complex process that has no singular outcome, a process that steps beyond the formulaic to delivering something of great community value.

Tom Kavan Dean, Faculty of Architecture, Building and Planning. The University of Melbourne

VPELA Revue June 2015 / 41 The Business Municipal matters

Julie Rivers Davis Victorian Bar

Local government Inspectorate As a result of the enquiry, the Ombudsman made three recommendations: The Local Government Act 1989 at sections 223A and 223B, establishes a regime for the appointment of inspectors of 1. The Minister for Local Government consider including municipal administration. An independent administrative office within the Act known as “the Local Government investigations and compliance a definition of ‘complaint’: inspectorate” resides in the department of Environment, Land, A complaint is an expression of dissatisfaction with: Water and Planning. • The quality of an action taken, decision made, or service provided by a council or its contractor The powers of inspectors of municipal administration include • A delay or failure in providing a service, taking an action that they may examine or investigate any matter relating to a or making a decision by a council or its contractor council’s operations or to Council elections or electoral maters; 2. The Minister for Local Government consider including and any possible breaches of the Local Government Act. The within the Act information sheet about the inspectorate reveals that Inspectors A requirement that councils have complaint handling are divided into teams of investigators and auditors who carry out policy and procedures, and an internal review function for the functions of the Inspectorate, which conducts compliance reviewing council complaint handling decisions audits of all Victorian local councils, including spot audits and 3. That Local Government Victoria develop, or coordinate the investigation of complaints of alleged breaches of the Act. development of, standard fact sheets or advice for local Council decisions or democratic processes do not fall within councils relating to issues bound by legislation – such as the purview of investigations, unless there is an allegation rates, infringements and planning. of corruption or a breach of the Act. It is said that a key role As a result of the enquiry, the good practice guide was developed. of the Inspectorate is to promote voluntary compliance with the requirements of the Act and encourage best practice, The guide is structured around three concepts generally accountability and transparency in local government. (www.dtpli. recognised as fundamental to complaint handling: vic.gov.au/local-government/complaints-and-investigations). Enabling complaints – receiving complaints Functions of the Inspectorate include undertaking prosecutions Responding to complaints – managing complaints for breaches of the Act. A number of those prosecutions are Learning and improving – using complaint data to improve noted in the web site and include: service delivery

• filing to disclose a conflict of interest as required by s. 80B(2) The Ombudsman noted in her report ([56]) that the Act sets out of the Act; the Best Value Principles all councils must adhere to.; including • failing to submit a campaign donation return within 60 days of that ‘Council must achieve continuous improvement in the an election; provision of services for its community” (s. 208B(d)). Analysing • nominating for Council despite having previously been complaints can assist with this. convicted of an an offence making the candidate ineligible to nominate (fined $15,000 and required to pay $9900 costs); • approving unauthorised payments and contract variations to a former CEO. Councils and complaints In April 2014, the Victorian Ombudsman commenced an “own motion” enquiry into complaint handling in local government in order to develop a complaint handling guide for use by Victorian Councils. An analysis of complaints about local government received by the Ombudsman found that the most common complaints related to:

Not responding in a timely manner Planning Rates Infringements

42 / VPELA Revue June 2015 The “unreasonable complainant” was acknowledged ([82]) and • The application of rules of statutory interpretation will guidance included in the Guide for managing unreasonable properly involve the identification of a statutory purpose, complainants conduct and contact management (p 17). which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate Complaints in relation to the performance of services by reference to extrinsic materials. The purpose of the statute is contractors (for example, rubbish collection) was also examined not something that exists outside the statute. It resides in its ([84[). The Guide (p.15, [2.8]) notes that text and structure, albeit it may be identified by reference to common law and statutory rules of construction. “Councils are ultimately responsible for all complaints about • A construction that would promote the purpose or object their services irrespective of whether those services are underlying the Act or subordinate instrument shall be delivered by the council directly, or by a third party contractor. preferred to a construction that would not promote that Where councils allow contractors to respond to complaints on purpose or object. their behalf, it is crucial that they monitor this function and have clear oversight of the contractor’s complaint handling process.” In relation to the interpretation of subordinate instruments, including planning schemes, there is an additional principle, Complaint handling is based around 7 principles (summarised): namely that they are to be interpreted bearing in mind their use • Commitment (recognise the right to complain; accept by practical people skilled in a particular industry. Therefore they complaint handling as part of core business) ought to be construed in light of practical considerations. An • Accessibility (access to and assistance from council staff) interpretation which leads to a reasonably practical result is to • Transparency (where and how to complain, and steps to be be preferred. taken) In essence, the task of construction requires consideration of • Objectivity and fairness (mutual respect and courtesy; merit text, context and purpose. and fact judgment) • Confidentiality (privacy) The text to be interpreted is as follows: • Accountability (internal and external scrutiny; review processes) The Minister for Planning is the responsible authority for • Continuous improvement (analyse data; improve processes) considering and determining applications … and for approving matters required by the scheme to be done to the satisfaction Both the Report and the Guide can be found at of the responsible authority in relation to: www.ombudsman.vic.gov.au. • Developments with a gross floor area exceeding 25,000 square metres … Statutory interpretation: council or the minister 36. Clause 71 of the planning scheme provides as follows: In considering who the responsible authority was for the A term used in this planning scheme has its ordinary purposes of determining a single planning permit application to meaning unless that term is defined: both redevelop the former Melbourne Theatre Company building • In this planning scheme. in Russell Street( for a 107 metre high hotel development), and • In the Planning and Environment Act 1987 or the undertake refurbishment of the exterior of the adjacent Forum Interpretation of Legislation Act 1984, in which case Theatre, the Tribunal considered the principles of statutory the term has the meaning given to it in those Acts interpretation. (Melbourne CC v Minister for Planning (Includes unless it is defined differently in this scheme. Summary) (Red Dot) [2015] VCAT 370) 37. Development is defined in section 3 of the Planning and It is instructive to set out those principles to understand how the Environment Act 1987… Tribunal analysed the circumstances of this case, and formed the 38. Section 37 of the Interpretation of Legislation Act 1984 view that the Melbourne City Council was the proper responsible provides that unless the contrary intention appears, authority, not the Minister for Planning (who had determined to words in the singular include the plural and vice versa. grant a permit as responsible authority). 39. Clause 72 of the planning scheme defines gross floor Ms Brennan SC , on behalf of the council, set out the principles area as: of statutory interpretation which must guide the interpretation of The total floor area of a building, measured from the outside this provision. They are not in dispute. of external walls or the centre of party walls, and includes all • The relevant starting point is the words of the legislative text. roofed areas. • The primary object of statutory construction is to construe the (see pages 12 and 13 of the decision for case references) relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. Single planning permit application • It should be noted that the context (including the mischief which the statute was intended to remedy) is to be considered Also of interest in this case is the discussion with respect to at the first instance – not only in cases of ambiguity. the status of a single permit application to undertake both the • The duty of a court is to give words of a statutory provision hotel building construction as well as the refurbishment of the the meaning that the legislature is taken to have intended Forum Theatre. The Tribunal found that there was no material them to have. connection between the works to the Forum theatre and the

VPELA Revue June 2015 / 43 construction of the hotel building. They are on two separate however was irrelevant with respect to Clause 91. Similarly, the parcels of land with separate owners. The proposals were not applicant had relied on irrelevant considerations. “integrated” simply because they were included in the same permit application. Ultimately, in considering the application under the relevant provisions of the schedule to the DDO, the Tribunal found that “Just as a single permit application may include an application the proposed fence did not adequately respond and affirmed the for multiple permissions required for a single project, there Council’s decision that no permit should be granted. is nothing in the Act or Regulations that would necessarily preclude a single application form being used to seek When a Section 1 use becomes a Section 2 use permission for two separate projects. It is not the normal practice and would be administratively cumbersome to The Tribunal in Kanzburg v Bayside CC (Includes Summary) process, but I see no lawful impediment to a single application (Red Dot) [2015] VCAT 278 discussed the matters that should be being made for what in, in effect, separate projects requiring considered in the case of a Section 1 use becoming a Section separate permits”. [68] 2 use under clause 31.01 by virtue of non-compliance with a condition prescribed in the Table of Uses. The Tribunal concluded Vicsmart that the only relevant consideration is the planning merit (in the particular case) of the requirement imposed by the condition. The first VicSmart application has been determined by VCAT. In doing so, VCAT has posed the question of whether clause It follows that where a use is permitted as of right and the only 93.05-2 of the VPP’s should be reviewed to possibly exclude the bar is non-compliance with a specified requirement the only need to consider (in a VicSmart context) decision guidelines considerations relevant to the exercise of discretion to grant a under an overlay if there are also decision guidelines under the permit are those which arise from that requirement. So where, as relevant schedule to the overlay (Johnson v Banyule CC (Includes in this case, the requirement relates to the provision of car parking, Summary) (Red Dot) [2015] VCAT 444 the adequacy of the proposed parking in the circumstances of the particular case is the only relevant consideration. The applicant for permit wanted to build a fence at the front and to the sides of his property. The Council refused to grant Similarly the policy matrix, which is a primary determinant of a the permit. The Tribunal held that the Council went beyond the decision in relation to a Section 2 use, is limited to those policies relevant limited grounds in a VicSmart application in refusing to which have a bearing on the particular non-compliance which grant a permit, and the applicant went beyond those grounds in triggers the need for a permit. his application to the Tribunal. The identification of planning considerations and planning The Tribunal observed that care should be taken in identifying the policies relevant to a particular decision is best achieved simply limited matters for consideration in a VicSmart application (par by asking the question: Why is a permit required? If, as in the 5). The Tribunal analysed the requirements for an application to present case, the answer is because a permit is required under fall within Clause 91 and then reviewed the matters that must and clause 52.06-3 the decision maker is confined to a consideration must not be considered in determining a VicSmart application. of the planning merits of a permit under that provision. Amongst other things the Tribunal found that Clause 91 makes Julie Davis, LLB, Master of Business (Corporate Governance) it clear that (in the case before it) the matters that must not be Certified Mediator, Certificate IV Training and Assessment considered include: (TAE 40110), Barrister experienced in Environment, Land, • the policy framework Water, Planning and Local Government Law, Foley’s List, • decision guidelines of 9225 7777 or 0412322111. o the zone o Clause 65

However the decision guidelines of the DDO and the schedule to the DDO must be considered because clause 93 so provides. Would you like to advertise

The matters to be considered in that case are set out at par 25, your business in the wherein the Tribunal commented on apparent contradictions VPELA Newsletter? between the DDO guidelines, references in those guidelines to the schedule to the DDO and decision guidelines therein, and Do you have a job clause 91. The Tribunal noted: you need to fill? “It is unclear to me why the drafters of clause 93.05-2 included relevant decision guidelines under both the overlay and the If you are interested in placing an advertisement schedule. This proceeding illustrates that including decision in the VPELA newsletter or advertising a guidelines under the overlay means some matters expressly position on our website employment section, excluded by clause 91 are arguably included.” please contact the VPELA office on 9813 2801 The Council in its assessment of the application had refused to A full schedule of advertising costs is available grant a permit on grounds including that the neighbourhood on our website www.vpela.org.au character policy was not addressed by the application. The policy

44 / VPELA Revue June 2015 The Business Making better decisions in Australian cities that endure for the long-term Paul Donegan

The Grattan Institute released its first book in March 2015 – City The Grattan Institute looked closely at decision-making in Dublin, Limits: why Australia’s cities are broken and how we can fix Copenhagen, Vancouver, Toronto, Seattle, Portland, Chicago them. It shows that although many of the joys of Australian life and Austin – eight cities with similar demographics, population are to be found in our cities, many of our problems are as well. growth and political systems to large Australian cities. Each of these cities had made and sustained hard decisions to better City Limits reveals that the distance between where people live manage population growth or to turn around economic decline. and where they work is growing fast. The housing market isn’t giving Australians the choices about where and how to live that Our interviews with decision makers in these cities revealed it could. The daily commute is getting longer, putting pressure that debates about the future of cities are fraught everywhere. on social and family life and driving up living costs. Instead of A former senior official in Seattle said that ‘planning is the most bringing us together, Australia’s cities are dividing Australians – political thing a society does’. between young and old, rich and poor, the outer suburbs and the inner city. Many of these problems are getting worse. Collaborative decision-making: necessary but more often missing So why aren’t we dealing with these major challenges facing our cities and citizens? Mainly because they have underlying causes The interviews showed that it is vital to find a way of making that are not easy to address. One that stands out is how decisions decisions that make sense for the city as a whole. What happens about cities get made. in one part of a city affects residents in another. Therefore everyone needs to get a say in decisions that affect housing and City management transport across the city. Currently no institution or process does this, with big Australian cities instead caught between Australia’s Australian and international experience shows that the decision- three tiers of government. making process must be better in two critical ways. Decision- making must take the whole city’s needs into account. And This doesn’t necessarily require new organisations. Changes if changes are to endure, residents need to have much more to decision-making structures can help, especially when they power to shape decisions that affect them – both at a citywide solve a particular problem and reflect a shared view among and at a local level. the community. But changing structures will not produce success by itself, and can be a distraction from other, more productive reforms.

Collaboration between governments, business and civic institutions also helps cities succeed. It avoids a government- against-citizens dynamic. In Toronto, the Toronto City Summit Alliance brings together business, government, community groups and unions to deliberate and consider the future of Toronto. “Stickability” Cooperation across party lines contributes to a further characteristic of successful cities – consistency of political direction across political cycles. In Portland, they call it ‘stickability’ of direction. A Portland senior public servant commented that policy ‘has managed to survive political generations. A mayor leaves office, a new one comes in – and the agenda doesn’t change dramatically’. This consistency was ascribed partly to the extent of public engagement.

A former mayor of Copenhagen said: ‘It is crucial o see that to change the course of cities is a long-term project. You have to have a vision, you also have to have the will’. He described the effort as like trying to lose weight: ‘Over time, there are hundreds, even thousands of decisions that have to be made, all heading in the same direction’.

VPELA Revue June 2015 / 45 Community engagement: deep and sustained

All of the overseas cities in the study had a different story to tell. But a recurring theme was early, sophisticated, sustained and deep engagement with the community. This was especially the case in cities that needed to make hard decisions and did so successfully.

Engagement seems to make tough decisions possible, and to make them stick. Yet most Australian residents feel they have little control over changes to their neighbourhood. If decisions to make our cities better are to be made, and made to last, people What does this engagement look like? need to have more of a say in them. All the overseas cities in our study had a few things in common. A metropolitan-level discussion about the future of the city came Too often in Australia, governments ‘consult’ residents to provide first, so that choices about individual neighbourhoods could take a veneer of respectability to a largely pre-determined outcome, place when residents understood the consequences of these rather than to genuinely respond to residents’ priorities. choices for the wider city. Engagement had to happen early, before decisions were made or decision-makers’ minds largely When genuine engagement doesn’t happen, officials and made up. politicians are in danger of paying too much attention to noisy lobbyists and protesters. Small numbers of residents can be Residents needed to be presented with real choices and their very active, but unless a much larger proportion of residents long term consequences. In Vancouver, officials discussed are engaged, we have no idea how representative the loudest how they were careful not to present a clearly preferred option. advocates are. ‘People were not presented with two leper colonies and a Club Med,’ said one senior official. Many of the overseas cities we examined faced challenges similar to our own. But in Toronto, Copenhagen and Chicago, and Residents needed information about the consequences of especially in Vancouver, Seattle and Portland, residents were each of the choices they faced about the future, and what these engaged in making difficult but necessary trade-offs far more choices meant for how they wanted to live. often than in any similar exercise we have seen in Australia. The nature of engagement was also important. One official involved with Vancouver’s engagement observed that it was largely characterised by debate among residents – ‘very much Proud sponsors of the citizens speaking to citizens’ in scores of public discussions 2015 VPELA Gala Dinner rather than ‘pontificating by staff or politicians’. And a significant proportion of the population was involved. In Portland, development of an overarching Regional Framework Plan involved 182 public meetings. A survey of every household in the Portland metropolitan region drew 17 000 responses. Aboriginal Cultural Geospatial Land Management Heritage Solutions and Restoration The engagement challenge Intensive, genuine community engagement is neither easy nor cheap. But it seems to make tough decisions possible, and to make them stick. Bushfire Risk Historical Assessment and Heritage Management If community engagement is to work it requires decision- makers to have a genuine commitment to doing it properly, even if it takes them towards results that they wouldn’t have favoured. It requires expertise and, as one former Sydney councillor put it, ‘nerves of steel’. Built Terrestrial Aquatic Heritage Ecology Ecology The challenge is not just one for governments though. Our cities will only get better if we want them to, and act accordingly. With over 3,000 projects delivered for the planning Australians are good at adapting to change, even if we are industry in Australia. Contact one of our trusted sometimes wary of it. The reward is a richer, fairer and happier consultants to assist you with your next project. Australia, as cities take us with great speed into the next phase of our economic and social life.

Paul Donegan is Fellow at the Grattan Institute. He is the www.ehpartners.com.au co-author, with Jane-Frances Kelly, of City Limits: why 03 9377 0100 Australia’s cities are broken and how we can fix them, published by Melbourne University Press.

46 / VPELA Revue June 2015 EHP2896 GalaDinnerAdvert_v1.indd 1 27/04/2015 4:57 pm The Fast Lane with Henry Turnbull

Western Distributor Henry Turnbull – a step in the right direction Traffix Group

Access between the central metropolis and the west of Melbourne has suffered a chronic shortage of capacity due to the lack of Yarra River crossings. Hopefully the Government’s announcement of the Western Distributor will turn into actual construction.

There has been an acknowledged problem serving the western suburbs. In my article in the Winter 2004 VPELA Review, I noted:

Radial road links and established inner metropolitan routes between residential dormitory areas and centres of employment are increasingly being pressured by the ever-expanding size of outer Melbourne and the spreading and dividing of family households. A consequence of major urban sprawl is that the inner suburban transport networks become overstressed with motor vehicle volume necessary to allow the duplication of the Westgate Bridge, congestion and railway running congestion. whether crossing the Yarra by bridge structure or tunnel?

This is most obvious when looking at the important link The Western Distributer is said to provide a 60% capacity increase the Westgate Bridge provides between central, east and to the West Gate Bridge. southeast Melbourne and the western suburbs. For all intents and purposes, the bridge currently runs at capacity However there are still some issues to resolve, namely:- during peak periods. But traffic levels are steadily increasing • The West Gate and Princes Freeways will have to be and load shifting to public transport may not be feasible in substantially widened to allow for the massive increase in the corridor. traffic at the western end, • The removal of existing traffic from Yarraville (said to include Reference to the government’s broad hectare residential some 5,000 trucks per day) will not represent new capacity, land report (readily available on the internet), shows the • Access to the east is compromised by not having any link to forward supply figures for residential dwellings in Wyndham the Eastern Freeway, alone as estimated at some 17,500 within the next five years • Increasing the traffic capacity of Footscray Road may and a similar number six years and beyond. contravene the provisions of the CityLink Concession Deed, If we look at the five-year forward estimate of 17,500 and dwellings, we can start to appreciate the scale of the problem • There is already no spare peak capacity on CityLink through facing Melbourne. A traditional analysis would see in the the Domain and Burnley tunnels and beyond to the east. order of one trip-end generated by each new household So although the project will help resolve some of the accessibility during the morning peak. Distributing these trips between and amenity issues facing the western suburbs and Yarraville Werribee and the CBD, school trips and work trips, outbound residents, these will be most evident in off-peak times as peak and inbound travel, etc. still suggests the traffic from these hour congestion will still occur on roads leading to and from new residential developments can be expected to generate in the project. the order of 5,000 vehicle movements per peak hour towards central Melbourne and the eastern and southeastern In reality, there is no global solution to peak congestion. Rather, suburbs, where major employment opportunities are to be we need to implement links where we can and fill the gaps in found. the network.

This is equivalent to approximately three quarters of a new The proposed Western Distributor is definitely a step in the Westgate Bridge, but there is no likelihood that anything right direction. more than planning procedures could be determined in a five year horizon for such a massive undertaking. In any Henry Turnbull is Principal Consultant event, are we prepared to contemplate the implications of at Traffix Group and a former President of VPELA. the approach roads and distribution networks that would be

VPELA Revue June 2015 / 47 The Business Permit Triggers…to tick or not to tick Permit triggers and their scope of considerations clarified Ellen Laskiridis

There are regularly permit applications which contain multiple be assessed as part of the application – for example, the types permit triggers. An issue in assessing and determining these of use/s, the built form, car parking and loading waivers, and applications is, what is the scope of relevant considerations that permissions under any applicable overlay. Factors relevant to the decision maker may have regard to under each trigger? A the assessment of these applications may include matters such recent Court of Appeal decision has provided a guide to how as the impact on the heritage area (by the loss of the existing these should be approached. heritage building as well as the construction of the replacement building), neighbourhood character, architectural quality, and In Boroondara City Council v 1045 Burke Road Pty Ltd [2015] strategic support for that type of application – for example, the VSCA 27 the Court of Appeal clarified the decision making site’s location within or close to an activity centre and/or PPTN, process for permit applications involving multiple permit its size, and/or its lack of any other considerable constraints triggers, making this an important decision for responsible besides heritage. (There are numerous other situations where authorities, the Tribunal on review, and for permit applicants in conflicting objectives exist under zones overlays and policies.) preparing their applications and supporting materials. In this case, the Court found that the assessment of an application for When considering whether to grant permission for demolition of demolition under a Heritage Overlay is not confined to heritage the existing heritage building – which is only one of a number of considerations alone. applicable permit triggers – can the decision maker have regard to these considerations that also relate to the replacement A summary of the issue and other relevant cases is briefly set building, or are they confined to matters relating to the existing out below. heritage building only, such as its history, structural condition and the impact that its loss would have on the surrounding

The issue – balancing competing objectives heritage area? The assessment of every permit application must have regard The permit trigger for demolition is most commonly found within to a range of objectives and policies and – more often than the Heritage Overlay. (Most planning schemes also contain not – there will be competing objectives that, depending on heritage policies and objectives within the Local Planning Policy the assessment made, will lead to different outcomes. Indeed, Framework or Municipal Strategic Statement.) The Heritage the way the Victorian planning system is set up, through the Overlay and these policies and objectives not only address Planning and Environment Act 1987 (PE Act) and the Victorian demolition of existing heritage buildings, but also address any Planning Provisions and planning schemes, is intended for every proposed replacement building in a heritage context. This is relevant factor to be considered and a decision made that results also the case with Clause 15.03 of the SPPF, which includes in an integrated outcome. Clause 10 of the State Planning Policy the objective that new development ‘respects places with Framework states that: identified heritage values and creates a worthy legacy for Planning and responsible authorities must take account of future generations’. and give effect to the policies applicable to issues before them to ensure integrated decision making... Planning authorities Sweetvale, National Trust and responsible authorities should endeavour to integrate and other relevant cases the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community The Sweetvale principle established that, in making a decision benefit and sustainable development for the benefit of present on a permit application which involves multiple permissions, a and future generations. discrete decision should be made regarding each permission, rather than treating the application as a single and indivisible one. Responsible authorities, and VCAT on review, are obliged to have regard to a range of factors when making their decisions, and In that case1 the Supreme Court considered an appeal by this includes the relevant objectives of the planning scheme to objectors from VCAT regarding a development application the application (see sections 60 and 84B of the PE Act). which was subject to six permit triggers. Two of those triggers (buildings and works under the Capital City Zone and Design and Residential development and heritage Development Overlay) were exempt from third party notice and objectives: frequent intersections review rights. The issue that the Court was required to consider was whether the single permit application that was made, which In multi-unit development applications where demolition (or captured more permissions than what the exemptions applied partial demolition) of an existing heritage building is sought, to, was ‘an application’ that the third party exemptions wholly there will be a range of other permit triggers that also need to related to.

48 / VPELA Revue June 2015 The Court found that although a single application for a planning But what about the situation where there are multiple permit permit had been made, it included a number of components, being triggers that need to be assessed, and the achievement of the a series of applications for each permission required. A discrete purposes of these are mutually exclusive? This is usually the decision was required to be made in relation to each permission case with demolition cases under the Heritage Overlay, as and, as such, the application could be ‘disaggregated’ so that the demolition is usually sought to allow for the development of a exemptions that related to only some of the permissions would replacement building. be applicable. This was upheld by the Court of Appeal.2 In The University of Melbourne v Minister for Planning [2011] The Court stated: VCAT 469 the Tribunal assessed a proposal to demolish a It is true that in deciding to grant a permit it was necessary heritage building to allow the development of the Peter Doherty for the responsible authority to consider the matter overall, biomedical facility. The Tribunal held that there is nothing within as well as or in the course of considering the individual the PE Act or the planning scheme which limits the consideration permissions which the permit applicant had to obtain. But of matters when determining an application to demolish a that does not mean that the applications made with respect building in a Heritage Overlay only to matters pertaining to to each of those controls did not have to be the subject of heritage. It found that the ‘full ambit’ of planning controls and individual determination.3 policy applying to the site could be considered, and that ‘the requirements of clause 10.04 regarding integrated decision The Sweetvale decision is therefore authority for the appropriate making and the opening words of clause 65 direct the Tribunal method of assessing permit applications with multiple triggers to take into consideration the full gamut of policy objectives and – that is, an individual decision is to be made on each trigger planning considerations.’ 5 before determining the application overall.

This authority is not to be confused with the National Trust Boroondara City Council v 1045 Burke Road principle, which is that when making decisions which involve Pty Ltd & Ors [2015] VSCA 27 the exercise of discretion, the scope of relevant considerations in making that decision is defined by the purpose for which the The application in this case was not particularly exceptional to discretion was conferred, and matters that are extraneous to any other application previously described. A permit was sought this should not be considered. In National Trust of Australia (Vic) from Council which captured multiple permit triggers, including v Australian Temperance and General Mutual Life Assurance demolition of an existing building within a Heritage Overlay, Society Limited & Anor [1976] VR 592, the National Trust construction of a new four storey apartment building, reduction objected and sought to appeal against the Council’s decision of bicycle parking requirements and alteration of access to a to grant a permit on grounds relating to the demolition of the Category 1 Road Zone. The building was within a site-specific existing building, in circumstances where the applicable permit Heritage Overlay and was a ‘B Grade’ building under the heritage trigger was for exceeding the maximum height limit for the site. assessment referenced within the planning scheme (although the heritage evidence before the Tribunal led it to conclude that it The National Trust principle is simple to apply when there is was more likely a ‘C Grade’ building). a single permit trigger which deals with a discrete issue. For example, there have been cases in which the National Trust The Tribunal found that, on ‘purely heritage considerations’, the principle has been applied to prevent objections being made demolition of the existing building was not justified. However, to proposed developments on land within a Land Subject to when balanced against other relevant considerations, including Inundation Overlay, where those objections do not relate to the the strategic context, excellent architecture and the site purpose for which the LSIO was applied (such as overshadowing responsiveness of its design, the Tribunal found that a permit and impacts on views).4 ought to be granted.6 …continues next page

VPELA Revue June 2015 / 49 The Council appealed the Tribunal’s decision to the Supreme This included a requirement to have regard to sections 4, 60 and Court and later, the Court of Appeal. The questions considered 84B of the PE Act, and clauses 15, 20, 21, 22, 43 and 65 of the on appeal expand on the Sweetvale principle as follows: Boroondara planning scheme. Once the scope of considerations has been identified, Justice Garde went further to state that the • If an individual assessment needs to be made in relation to weight to be given to each relevant consideration is a matter for each trigger forming part of a permit application, does the the decision maker in undertaking their assessment.9 outcome of each assessment need to be a favourable one or, in coming to an overall integrated decision to grant a permit, In this case, the Court of Appeal held that while the Tribunal an unfavourable decision can be made in relation to one (or took into account matters that went beyond strictly heritage more) triggers, but a favourable decision made for the others? considerations, those matters did not stray beyond what the • What is the appropriate scope of considerations that can PE Act and the planning scheme authorised to be taken into be taken into account in determining each individual account in assessing the application for demolition under the permit trigger? Heritage Overlay. In relation to the first question, the Court of Appeal (which did not Conclusion agree with the Supreme Court on this matter) found that there is a need to get a ‘tick in every box’. That is, the decision maker The Court of Appeal has clarified the way applications for must be satisfied that a permit should be granted in respect of demolition of heritage buildings are to be assessed. Assessment each permit trigger. If the PE Act and planning scheme require a must include not only consideration of heritage matters relating permit to be obtained, a favourable decision to grant that permit to the existing building; these must be balanced against must be reached, otherwise such use or development would consideration of other relevant matters as directed by the PE Act be unlawful. and provisions of the Heritage Overlay.

Importantly, the Court also stated that each individual permit More generally, all permit applications seeking permission under trigger must be assessed in an integrated way, having regard to multiple triggers must achieve a favourable outcome in relation the application as a whole. Chief Justice Warren stated: to each trigger. The assessment of each trigger should be carried out in an integrated way to determine the appropriateness of an The integrated decision making approach contemplated by the overall proposal. Act and the Scheme necessitates that permit requirements triggered by a proposal be considered together rather than in 1 Sweetvale Pty Ltd & Anor v VCAT & Ors [2001] VSC 426. isolation, with regard to the overall proposal and its impacts on all relevant planning considerations; but it does not mean 2 Sweetvale Pty Ltd & Anor v VCAT & Ors [2003] VSCA 83. that they cease to be requirements.7 3 Ibid, paragraph 60. 4 Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VSC 528. See On the second question, the Court of Appeal found that the scope also Victorian National Parks Association Inc v Iluka Resources Limited of relevant considerations under a particular planning control [2004] VCAT 20 and White Ash v Frankston CC [2004] VCAT 2170. will be directed by the PE Act and the planning scheme. In this 5 The University of Melbourne v Minister for Planning [2011] VCAT 469, case, for the application to demolish under the Heritage Overlay paragraphs 71-75. the Court stated: 1045 Burke Rd Pty Ltd v Boroondara CC & Ors [2013] VCAT 1108. 7 Ibid, paragraph 48. …the objectives and provisions of the Act, and the purposes, 8 Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27, objectives and decision guidelines applicable to the Heritage paragraph 123 (Garde AJA). Overlay make it plain that considerations wider than strictly 9 Ibid, paragraphs 126-128. heritage considerations are to be taken into consideration by decision-makers. 8

planning melbourne since 1989 transportation planning, design and delivery

www.gta.com.au

50 / VPELA Revue June 2015 The Business

Legal world

Joseph Monaghan Holding Redlich

Dustday Investments Pty Ltd v Minister for Stanley Pastoral Pty Ltd v Indigo SC (Includes Planning [2015] VSC 101 Summary) (Red Dot) [2015] VCAT 36 and BRD Group Pty Ltd v Melton SC [2015] VCAT 13 This decision by the Honourable Justice Garde of the Victorian Supreme Court highlights the very wide discretion of These cases will be of interest to those who prepare expert planning panels. reports and those who engage expert witnesses.

Dustday sought a declaration that a panel recommendation and Cultural Heritage Management Plans (CHMP) under theAboriginal Council resolution to include land in the heritage overlay was Heritage Act 2006 (AHA) are often required for developments in affected by legal error and was therefore invalid. areas of aboriginal cultural heritage sensitivity and they can be expensive to prepare. It is therefore not uncommon for there Dustday’s arguments focussed upon the following conclusions to be debate around whether a development area has been reached by the panel: subjected to significant ground disturbance, and hence exempt from the need for a CHMP. That was the case in Stanley Pastoral. “In all we were not persuaded by the arguments presented on this issue that the nature of the decision-making framework, The permit applicant sought a planning permit to develop a water including the limitations applying to decisions on permits, is transfer station to transfer water from a ground water bore to an such that condition should normally be taken into account at the offsite water bottling plant. It sought review in the Victorian Civil and listing stage. Administrative Tribunal (VCAT) when the Council failed to decide the application. Shortly before the hearing, the Council’s lawyers Having said this we do acknowledge that condition may advised VCAT that they considered that a CHMP was required. sometimes be relevant in extreme cases of dilapidation where demolition is an inevitable outcome. In such circumstances, The permit applicant argued a CHMP was not required on the the case for demolition would have to be irrefutable and the basis that the activity area had been the subject of significant community-wide costs and benefits of the demolition versus ground disturbance. It relied upon a cultural heritage advisor’s conservation outcomes would have to be clearly identified.” report to support its submissions. In what appears to have been quite an effective exercise in cross examination, the Dustday argued the panel misdirected itself by imposing an cultural heritage advisor conceded she had not visited the site arbitrary restriction on when consideration of demolition was prior to signing her report, had relied upon work undertaken by relevant, which was not grounded in law or policy. another staff member but had not mentioned that in her report, Garde J held that the panel had a wide discretion and so it was and that there were a series of inconsistencies in her report. open to the panel to adopt the position that it would only give VCAT, constituted by Deputy President Dwyer, was critical of the weight in its report to the dilapidation of the building where cultural heritage advisor’s evidence, describing it as essentially demolition was an inevitable outcome. supporting a “pre-determined conclusion, rather than the Dustday also argued that the panel failed to consider social and evidence being fairly assessed...” VCAT decided a CHMP was economic effects. At the panel hearing, Dustday submitted the required, and so the review could not proceed. building was of borderline heritage significance, and given its BRD Group involved an application made under the Valuation of very poor condition, any reuse option would be very costly. Land Act 1960 (VLA) for a review of a decision of a valuer upon Dustday had developed its submissions partly on the basis an objection to a Council rates notice. The valuation involved substantial sums of money, and a significant difference between of recent changes to section 12(2)(c) of the Planning and the claimed values by the Council, and the land owner. Environment Act 1987, which now requires that a planning authority must take account of social effects and economic Despite the significant amounts, the applicant did not call a valuer effects (as opposed to may). to present evidence, instead relying upon valuation reports, in draft form, that had been previously prepared by Knight Frank Garde J was satisfied that the panel gave social and economic for a potential forced mortgagee sale of the land. effects careful and comprehensive consideration, and observed that as Dustday had not made available development plans at VCAT, constituted by Senior Member Byard and Member Jacono, the amendment stage, the panel’s consideration of conservation gave limited weight to those valuations on the basis that they and heritage matters in a reuse scenario was necessarily were not prepared for the purposes of the hearing and had not more circumscribed. been prepared in accordance with the VLA. VCAT also observed

VPELA Revue June 2015 / 51 that steps required under its pre-hearing directions, and consent of Mirvac Victoria Pty Ltd (Mirvac) or its nominee, required under VCAT’s practice note for expert evidence, had not demolish or permit any building to be developed unless in been undertaken or complied with. accordance with certain approved plans.

Whilst the Council at least called a valuer to give evidence at the Mirvac objected to the permit application, as did a number of hearing, that valuer also made no reference in his report to site members of the community. However, no beneficiaries under value, capital improved value or net annual value, in accordance the covenant objected. with the VLA. Despite this, VCAT still preferred the Council’s evidence and upheld the Council’s decision. VCAT, constituted by Senior Member Wright and Member Bensz, accepted that a person may properly object to a proposal to vary The case highlights the need for advocates and experts to be or remove a covenant despite not being a beneficiary because thoroughly familiar with the legislative framework relevant to that person may still have a planning interest. However, Mirvac the decision under review. Instructing solicitors need to carefully had a commercial interest. It was not in the interests of orderly consider the questions that need to be put to an expert in and proper planning for a commercial entity no longer involved litigation so as to address the elements relevant to the dispute. with the land to have unfettered power to dictate the future use and development of land under the covenant. Waterfront Place Pty Ltd v Port Phillip CC (Includes Summary) (Red Dot) [2014] VCAT 1558 Waterfront Place Pty Ltd applied for a planning permit to vary or remove a restrictive covenant. The covenant provided that the owner of the land burdened must not, except with the written

52 / VPELA Revue June 2015 The Business Rory’s Ramble

A new world order: or why we need a new world Rory Costelloe order to deal with the new world order Villawood Properties

Talkfests have their place. Over the past few months I’ve attended We have to move into the New World Order – largely technology- many forums featuring discussion of new technologies and their led – and embrace our global market but, at the same time effect on the future shape of our society, both economically and businesses blindly shed local jobs to improve their bottom line socially. These have included the UDIA National Conference, without grasping the aggregated damage it is causing to our the Property Funds Association conference, the Creativity and society; fostering an ever increasing gap between the `haves’ Innovation conference, a property conference in New Zealand and `have nots’. and a Reserve Bank economic update forum. Recently I was also Critically, this chronic display of short termism has ramifications fortunate enough to catch up, one-on-one, with Harry Triguboff, that reverberate beyond immediate business interests. Australia’s leading high rise developer and an amazing personal Unemployment – especially in its most insidious guise, success story. generational unemployment – can have a devastating effect on individuals, families and communities. Disconnection and A consistent thread emerged from this series of discussions. That disengagement, so often by-products of long-term unemploy- being Australia’s response to the continuing global economic ment, can have serious social effects. It can be devastating on shift, technological changes and their combined effect. Current health – physical and mental – and on communities. Witness global economic trends mean Australia’s interest rates will the crime statistics in areas with high unemployment levels. remain low in the foreseeable future and, the trend of growing Bigger prisons and more cops on the beat is no response. overseas investment in Australian real estate will continue. Meaningfully coming to grips with the cause will yield much Overseas investment in Australia has historically focused on better results all round. mining and agriculture but in recent times it has switched to residential and commercial real estate. Avoiding a descent into this situation requires a re-setting of existing attitudes and a re-imagining of how things could be. This stems from the rapid growth – in both size and aggregate In recent years we’ve been talked into a stupor by politicians wealth – of the Asian elite and middle class, the continuing and others on the need for Australia to develop a knowledge weakening Australian currency and the comparative attractive- economy or risk being left behind. Active steps to address this ness of Australian real estate as a stable and affordable issue is what’s needed. In our industry, technology presents investment. Locals trying to get into the housing market may both challenge and opportunity. We need to find ways to harness beg to differ on this last point, but these things should be viewed the rapid pace of technological change to ensure a thriving in context. local industry that employs locally. A range of technological innovations, 3D printing among them, means the way we A key part of this context of course is the Australian domestic produce, buy and sell goods is being revolutionized. situation, which in the current economic climate remains mired in uncertainty. Unemployment is predicted to continue rising, We need creative responses. The concept of Australia’s tyranny yet industry – including ours – remains fixated on the idea of of distance used to be applied to our perceived geographic offshoring jobs, seemingly oblivious to the fact that it is slowly isolation. We don’t want a new tyranny of virtual distance where cooking the golden goose. we’re cut adrift technologically while our traditional sources of employment seek cheaper options elsewhere. There is a widespread push by our property industry to employ Foreign investment in Australian real estate is part and parcel large percentages of their workforce overseas. Some major of being an active member of an increasingly open global builders employ up to a third of their work force offshore. The economy. Within reason, it has its place. We do however have a sad irony is that many of those who could be employed in the greater capacity to influence a key element of what makes our building and property industry in Australia are also those who society tick, like employment. Australian business icons like buy the homes we build and move into the communities that we Harry Triguboff – himself a migrant – have employed countless create. This is only the tip of the iceberg, with offshoring of jobs Australians over the years, enabling many to live the life so occurring in flood-like proportions in all sectors of our economy, envied by others around the globe. the Big Four banks in particular. This is a tradition – a particularly proud one in our industry - that So while Governments desperately try to create new jobs, must continue to flourish, albeit in a very different environment. Australian industry is racing to send existing jobs offshore, not Immigration, foreign investment and technology are all essential measured in thousands but in hundreds of thousands. Reserve parts of Australia’s continued prosperity and security. Let’s Bank data predicts unemployment will rise to 6.5 per cent, but I throw in some social responsibility and closely consider the fear they have not taken into account the planning of all sectors consequences of jumping on the band wagon of trimming the of industry to offshore more jobs. bottom line by sending our workers jobs offshore.

VPELA Revue June 2015 / 53 Seminar Reports Coastal planning – where are we at?

Bernard Collins Beveridge Williams & Co

On 15 April, Beveridge Williams & Co sponsored the VPELA are supported by detailed structure planning including the seminar, Coastal Planning – where are we at? Presenters were introduction of township settlement boundaries. Juliette Forsyth – Victorian Bar, Jodi Kennedy – Bass Coast Shire Council, Emma Peppler – Victorian Bar and Rick Bailey Council’s policy approach has been supported at a Planning – UNESCO/IOC Intergovernmental Coordination Group for Panel Hearing for the introduction of the Inverloch Design Tsunami Warning and Mitigation. Framework, where the Panel recommended the adoption of Council’s proposed township settlement boundary against The current approach to Victoria’s coastal planning policy requests to extend it to accommodate future growth. Council framework can be traced back to the Coastal Management Act has also successfully introduced a Land Subject to Inundation (1995) which enabled the preparation of the Victorian Coastal Overlay for its riverine and coastal areas to address current and Strategy, first released in 1997. The Strategy is reviewed every 5 anticipated flooding levels. years and is in its fourth iteration. One benefit of Council’s approach is the greater certainty Jodi Kennedy took attendees through the Bass Coast experience provided to all those involved in development in Bass Coast’s in addressing the Coastal Strategy policy requirements, with coastal townships. All parties are now aware of the strategic a focus on the management of urban growth in their coastal planning requirements for townships and discussion can focus townships. instead on the form of developments, not on endless requests for possible township expansions. As Jodi explained, in recent times Bass Coast has experienced significant demand for the residential expansion and Emma Peppler addressed the relevant legislative frameworks development of its coastal townships. This pressure has around coastal planning policy and presented a number of VCAT caused community agitation as current residents are wary of decisions that specifically addressed anticipated sea level rise proposals that they perceive will have detrimental impacts on and its impact on development. the character of existing townships, and also burden them with costs of infrastructure to support the increased populations. Perhaps the telling point was Emma’s observation that the We have seen this scenario repeated along Victoria’s coast in number of VCAT cases dealing with sea level rise had declined numerous townships over the past 15 years. There are also the over the past few years. This suggests that the current legislative environmental impacts of development on the fragile coastal and policy framework in place is understood and accepted by the environment to be considered. development industry. We could surmise from this observation that policies such the continued reliance on the 0.8m sea level Bass Coast has sought to manage population growth through increase by 2100 as a benchmark and requirements such the development and introduction of settlement planning as the need to include a Coastal Hazard and Vulnerability policies in its planning scheme. These policies have created a Assessment for proposals within the sea level rise ‘footprint’ are “Settlement Hierarchy” for the council’s townships. The policies indeed accepted tools to deal with current applications for land

Bernard Stewart, Jodi Kennedy, Juliette Forsyth, Emma Peppler & Bernard Collins. Rick Bailey, John Carey & Kathy McInnes.

54 / VPELA Revue June 2015 explained, the power of a tsunami is not in its wave height but in the energy released by the earthquake and the accompanying water displacement that manifests itself as a tsunami at the shoreline. As practitioners dealing with coastal areas, we can often focus on the policy, or ‘dry’ side, of an issue. Rick’s presentation reinforced the practical implications of dealing with coastal inundation, storm surges and long term sea level rise and why coastal policies are, in fact, needed.

A theme touched on by all speakers, and one that will become increasingly relevant is the liability of government to protect coastal areas from the impacts of future sea level rise and storm surges. What is the onus on the state, given that the Neil Cooney, Luke English & Kristin Richardson. Crown is the owner of most coastline land, to protect nearby land owners from future natural hazards? Is a physical response (i.e. the construction of sea walls etc.) a necessary or realistic potentially affected by sea level rise. It is arguable that further response, or will landowners in these areas be left to seek their policy change in this area is not warranted without revised or own protection outcomes, or even abandon their properties? updated predictions of anticipated sea level rises. The presenters’ position (and that of the Strategy) was that the government can only do so much, and has little obligation to do Our final speaker, Rick Bailey, presented attendees with tangible anything, but the politics of this issue are yet to play out. In future examples of the damage that can be caused by sea water decades, when the impacts of climate change on coastal areas inundation and the immense power of tsunamis. is expected to be far more widespread, the state may be forced Rick began by revisiting the current Intergovernmental Panel on into greater involvement in the protection of coastal urban areas Climate Change position on anticipated sea level rise. He pointed in response to community pressures, rather than a reliance on out how sea levels are measured and noted two key points: natural processes as a response to coastal hazards. Firstly, that sea levels are expected to rise at different levels As Australians, we all love our coastal areas but the take home across the globe, thus necessitating localised assessments and point of the evening was that whilst our current coastal policies responses, and also; that sea level rise will not stop at 2100. are well understood and have been accepted by the community, As policy makers, we have chosen the 2100 timeframe as an we must never lose sight of the need and purpose of these ‘over the horizon’ goal to enable us to identify and address the policies, both from a short and long term perspective. impacts of climate change, but this may need reviewing as the years progress. So, where are we at? The acknowledgement of our pristine, but fragile coastal areas and their future protection is the overriding At the time of the 2004 Boxing Day tsunami, the Indian Ocean purpose of the Victorian Coastal Strategy and it should continue did not have a well-resourced regional tsunami warning system, to form the basis of future coastal environmental and land use but for towns such as Aceh, this would not have mattered as planning policy. The Strategy will necessarily be modified as more residents there had little more than 15 minutes warning after information is available to shape policy responses. The Strategy the earthquake that triggered the tsunami before it arrived at may need to address more practical elements as climate change the town. Rick took us through the activities involved in achieving impacts become more influential. satisfactory confidence of a threat to issue a tsunami warning in the region and the mechanisms for doing so. Bernard Collinsis Manager, Planning, Beveridge Williams Melbourne. He can be contacted on 9524 8888 The majority of his presentation then showed us the immense or email [email protected] impact of and damage to coastal townships caused by both the Boxing Day tsunami and the 2011 Japanese tsunami. As Rick

Ian Pitt, Susan Brennan, Nick Wimbush, Juliet Forsyth & Tamara Brezzi. James Lofting, Kate Kraft, Frank Butera & Ilya Berelov.

VPELA Revue June 2015 / 55 People Peter Allen’s brilliant career; now climbing “different peaks”

Following just a few months the expedition. Peter “held back” from climbing on for family after Jeff Akehurst left the reasons, concentrating his contribution at base camp. His profession, we celebrate selfless contribution was however recognised by the expedition of an equally prominent as “playing an essential part in the success of the expedition”. member with the retirement of Peter Allen from his life After Everest, the late Paul Jerome had this “special agreement” as an exemplary public with Peter allowing him a yearly sabbatical of up to 6 weeks in servant in planning to the Nepal; (the early introduction of a work-life balance). Peter leads State of Victoria. expeditions each year to reconnect with the Himalayas.

Peter, started his profess- Wolfgang Haala form the Department went on his first expedition ional life as a school to the Himalayas on one of Peter’s trips in 2005 to Narr, Phu teacher, then a drainage and Tilicho Lake in the Mustang/Annapurna Region. He soon engineer, then as a town realized that mountaineering expertise and experience was not planner at Frankston City all that Peter displayed in his leadership role. Patience, client Council to a long career in management, expectation management, were skills needed; just the Victorian public service. Peter can rightfully be identified to name a few. Wolf thought “why does he do it? This is harder as “architect and the artisan” of Victoria’s statutory planning than managing up and down in the Public Service or relations system. In designing the VPPs in the 1990s Peter’s contribution with the Minister and his office or local and national stakeholders to excellence in planning is recognised throughout Australia. in his working life!.” But again this was the Himalayas. Peter served on various national planning groups and a number of states have emulated the efficient VPP structure into their That expedition ended on the last day in a storm and snow dump own planning systems. from cyclonic weather from the Bay of Bengal. The 45 trekkers in Peter’s group and 3 from a French group they picked up, Prior to Peter’s leaving the position of Director of the Office of were lucky to have Peter’s mountaineering calmness of mind Planning Performance at DTPLI, Peter was Executive Director, and resolve and overall stoic leadership (navigating in white-out Statutory Systems (DPCD and DSE) from 2005 to 2012, Manager, conditions) that ensured survival and a smooth retreat back to Planning Systems (DoI and DSE) from 1996 to 2005, and various Kathmandu. The event could have easily resulted in catastrophe. other substantive positions in Government at DoI, MMBW and It involved a 12 hour chest high snow bash in white out conditions Frankston. The whole ethos of Peter’s most recent and former to reach relative safety right on the set of dark (avoiding a night positions in Government has been about delivering a workable out in freezing and snow conditions without tents or cover). planning system that is now widely regarded as ‘best practice’ in Australia. Peter’s trips to exotic locations also involved him buying the latest/greatest camera gear to record many fantastic images Since the late 1990s, Peter was the lead author and project of people, places and scenery. The office wall photos were a manager on key projects such as the introduction of the VPP, the “must see”. implementation of ResCode, Melbourne 2030 initiatives, Better Decisions Faster, Cutting red tape in planning and Making local Not content with mountain climbing, Peter is also a dedicated policy stronger. cyclist. For over 20 years, Peter, (with Nevan and Wolfgang) has been part of a Saturday morning crew. The group regularly rides Away from the statutory challenges, Peter takes on challenges of Beach Road, many Alpine Classic events at Bright and recently a very different kind: mountain climbing. He is a frequent trekker trips to the Pyrenees and other French and Italian Alps. He still to Nepal and guides climbers in that testing and dangerous enjoys a last minute hilltop attack when he is within range. environment. His skills and passions as a mountaineer are well known. In his riskier days he led and participated in many treks Peter, has always been a man of great integrity, a leader in our and expeditions. profession.

He contributed to the successful Australian Bicentennial We congratulate Peter on all that he has achieved in what we can Expedition of Mt Everest in 1988 confidently call ‘a brilliant career’.

It was a joint civilian and Army expedition undertook a traditional Kathy Mitchell, Chief Panel Member, Planning Panels Victoria, climb without the assistance of Nepalese Sherpa’s that resulted Nevan Wadeson, Director Town Planning Melbourne, in three Australians successfully summiting Everest. Peter Tract Consultants & Wolfgang Haala, Sessional Member, wasn’t one of these; however he was rightly recognized as one Planning Panels Victoria of the most skilled and experienced of the civilian climbers in

56 / VPELA Revue June 2015 Seminar Reports Expert Evidence Seminar Giving evidence at VCAT Maria Marshall & Kristine Richardson & Planning Panels Victoria Maddocks Lawyers

On 23 February 2015, Maddocks sponsored an engaging and Katrina Thomas’ presentation focussed on appearing at VCAT insightful VPELA seminar titled Presentations & Submissions: from the perspective of a Council advocate. She set out some Giving Evidence at VCAT & Planning Panels Victoria. The basic rules of advocacy for the Council and offered a number of audience was treated to valuable insights and tips from VCAT useful tips for advocates when an officer’s recommendation is Deputy President Helen Gibson and Chief Planning Panels not adopted by Council and for when cross-examining witnesses. Victoria Member Kathy Mitchell, as well as Chris Canavan QC, A summary of the tips and tricks shared by the presenters is set Jamie Govenlock from Urbis and Katrina Thomas from Yarra out below. City Council.

Chris Canavan QC, Jamie Govenlock and Katrina Thomas Planning Panels entertained the audience with their personal experiences of It is important that advocates and expert witnesses presenting to presenting and giving evidence at VCAT and Planning Panels, a Panel understand their role and duty to the Panel, which is to while Deputy President Gibson and Kathy Mitchell shared their assist the Panel in reaching its findings and recommendations. experiences from the ‘other side’ of the table. Advocates and expert witnesses should be up front and honest, and respectful of others. The use of mobile phones, whispering The seminar was chaired by Jillian Smith from the Department or chatting when someone else is speaking should be avoided. of Economic Development, Jobs, Transport and Resources, with a short presentation from each speaker, followed by a Think about the readability of your written submission and always Q&A session. use a 12 point font and good spacing so Panel members can write notes. Make sure to try and address opposing perspectives. The evening began with Kathy Mitchell sharing some very useful tips on how to prepare and present submissions and evidence at It is useful for planning authorities to provide strategic material Panel hearings, as well as some ‘pet peeves’ to avoid! prior to the hearing. More recently, some Panels have directed that Council’s Part A submission be lodged at the same time Chris Canavan QC offered advocates some handy pointers on evidence is lodged, which has resulted in time savings. how to run a VCAT or Panel case, including preparing for the hearing and developing a case concept, presenting at the hearing When presenting your submission or evidence: and cross-examining witnesses. • provide a short overview and then get to the critical facts and Deputy President Gibson gave an insightful presentation about issues the role of advocates and witnesses at VCAT and shared some • watch the Panel members to ensure that they are following valuable tips for presenting submissions and evidence at VCAT. you • don’t try and provide advice on areas that are outside your Jamie Govenlock spoke of his personal experiences appearing expertise as an expert witness and imparted some helpful advice to expert • listen carefully to the questions from the Panel and respond witnesses giving evidence at VCAT and Planning Panels. accordingly.

Tamara Brezzi & Kathy Mitchell. Simon Beardall, Andrea Pagliaro & Johan Moylan.

VPELA Revue June 2015 / 57 Jillian Smith, Simon Gilbertson & Irene Plakidis.

Tips for cross-examination

Sandy Pok, Jasmine Butler , Fiona Whiffrey, Sarah Wright & Andrea Boully. When preparing your cross-examination, write down your questions, including what you are trying to achieve from the cross-examination. Avoid building your whole cross-examination Finally, remember that good witnesses will offer alternatives around errors in the expert witness report, rather, focus on the and good planning authorities will be receptive to such advice. key issues that will help your case. VCAT During cross-examination: Like at Planning Panels, it is important that advocates and expert • ask questions to establish how the expert witness has arrived witnesses understand their role, which is to inform and assist the at their opinion Tribunal. This includes assisting the Tribunal to identify the legal • don’t ask irrelevant questions and policy framework. Although hearings can be emotional, your • don’t ask any questions if you have none! role is a professional one, so try not to take it personally. It is normal to be nervous! When preparing your submission: It was acknowledged that nerves can be an issue for advocates • establish the facts and witnesses when presenting or giving evidence, particularly • identify any permit triggers and relevant decision guidelines for those presenting for the first time. A key tip for addressing • use persuasive language nervousness is to let the member know if it is your first time • make concessions where appropriate – avoid withholding presenting at a Panel or VCAT. Another important tip for information or failing to give the whole story. minimising nerves is to be well prepared – know the file ‘inside out’, and be ready to make your submission. And finally, in the When presenting submissions at VCAT, be prepared and be words of Kathy Mitchell, try to ‘relax and enjoy the experience’. succinct. The use of a projector screen to display plans, maps or aerials can be useful for the Tribunal as well as the other parties. Maria Marshall, Partner and Kristin Richardson, Lawyer at Maddocks. Maria is an experienced advocate in the planning Expert reports should focus on the key issues and salient policy and environment jurisdiction, appearing both in Victorian points, rather than simply reciting policies, and findings, which Civil and Administrative Tribunal (VCAT) matters and before should be stated at the beginning of the expert report. Visual aids Planning Panels Victoria. Kristin is a lawyer in our Planning can also be helpful when presenting your expert evidence. and Environment team

Chantal Lenthall, Clare Szymczyk, Paul O’Shea & Evan Dimitropoulos. John Glossop, Anthony Matthews & Gerarad Gilfedder.

58 / VPELA Revue June 2015 Welcome to our new members…

Jeremy Addison Message Consultants Nathaniel Man Whitehorse City Council Oylum Agkoc Message Consultants Clare McCutcheon Biosis Kar Beston Equipe Lawyers Niall McGovern Whiteman Property & Accounting Rob Burgess Charter Keck Cramer Samantha Megenis HWL Ebsworth Lawyers Rachel Clancy Biosis Grant Michell Glossop Town Planning Evan Dimitropoulos John Patrick Landscape Architects Eliza Minney Simon Nixon & Associates David Dwight Glenelg Shire Council Adam Moar Horsham Rural City Council Sukanya Elison-Whyte Jimmy Lardner & Associates Samuel Mulligan Cardno Danai Fadgyas Planisphere Alistair Noble Aurecon Mathew Furness Message Consultants Shahameh Parhizgar Sana Gelic Maddocks Jacob Peterson Mesh Planning Lee George Abiwood Pty Ltd Manesha Ravji Cardno Tom Hamilton proUrban Ernie Sanchez Calibre Consulting Rebecca Hunt KBR Kate Schomburgk Student Emily Johnstone Allens Simon Thompson Maddocks Gokhan Karpat Message Consultants Ella Turnbull Urbis Goksel Karpat Message Consultants Alejandro Vesga Student Michelle Keen Southern Grampians Shire Council Megg Walstab Message Consultants Andrew Kerr City of Boroondara Wen Xiang Wang Wyndham City Council Helen Lardner HLCD Pty Ltd Joelene Whitehead JW Planning Services

ITK In the know

The Board of Directors of Beveridge Williams is pleased to announce the appointment of Nicole Faulkner to the position of Executive Director. The first female director to join the Board, Nicole is experienced in Landscape Architecture and Urban Design.

Edgar Gottschalk, formerly with Urbis has commenced a new job at Bayland Property Group as Planning Manager.

Lynne Jarman joined Spiire earlier this year as a Principal Planner in their Melbourne office. Lynne was most recently with RDV and Major Projects Victoria.

Daniel Soussan, formerly Planning Co-ordinator at the City of Melbourne, has joined Tract as a Principal Town Planner. Max Barz has also joined as a planning student from RMIT.

Sarah Wright, formerly of Beveridge Williams, has joinedSpiire ’s Dinner guests hamming it up at our Rock ‘n Roll Gala. Geelong team as a Senior Associate Planner.

VPELA Revue June 2015 / 59 VPELA’s 1950s, Rock n Roll Gala Dinner

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