GREATER DANDENONG PLANNING SCHEME AMENDMENT C87

PANEL REPORT

JULY 2008

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87

PANEL REPORT

Cathie McRobert, Chair

Robin Saunders, Member

Chris McNeil, Member

July 2008

Contents

OVERALL CONCLUSIONS AND CONSOLIDATED RECOMMENDATIONS ...... 5 Overall Conclusions...... 5 Consolidated Recommendations...... 10

1. INTRODUCTION...... 16 1.1 The Area ...... 17 1.2 Thompsons Road Retarding Basin...... 21 1.2.1 Background to the Proposal - Amendment C67...... 21

2. IS EXPANSION OF THE DANDENONG SOUTH INDUSTRIAL AREA STRATEGICALLY JUSTIFIED? ...... 22 2.1 Discussion...... 22 2.1.1 Recognition of Potential for an Inland Port ...... 26 2.1.2 The Sita Site ...... 28

3. DRAINAGE...... 29 3.1 The Area Taken For Retarding Basins...... 30 3.1.1 Discussion ...... 33 3.2 Securing Land to Widen the Eastern Contour Drain ...... 35 3.2.1 Discussion ...... 36 3.3 Compensation for Land Acquired ...... 37 3.4 Conclusions and Recommendations ...... 38

4. NATIVE VEGETATION...... 39 4.1 Background ...... 39 4.2 Do Habitat Zones 8 and 11 Qualify as Patches?...... 43 4.2.1 Habitat Zone 8...... 43 4.2.2 Habitat Zone 11...... 44 4.3 Scattered Tree Offsets on the Salta Land...... 45 4.3.1 Discussion ...... 49 4.4 Securing Sensitive Native Vegetation In the Long Term...... 52 4.4.1 Patches on Road Reserves and Scattered Trees ...... 52 4.4.2 Patches of Heathy Woodland Adjoining Colemans Road...... 53 4.5 Scattered Trees in the South of the Keysborough Area ...... 56 4.5.1 Other Issues...... 56

5. PUBLIC OPEN SPACE...... 59 5.1 Discussion...... 64 5.1.1 The Rigor of the POS Plan...... 64 5.1.2 POS Policy - Multiple Public Open Space Functions ...... 65 5.1.3 How Much POS Should be Provided? ...... 66 5.1.4 Are the POS Development Costs Excessive?...... 73 5.1.5 Conclusions...... 73

6. MOVEMENT NETWORKS ...... 77 6.1 The Proposed Road Network, Traffic Volumes and External Use at Lyndhurst ...... 77 6.1.1 The Exhibited Road Network...... 77 6.1.2 Agreed Post Exhibition Changes...... 79

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008

6.1.3 The Road Network and DCP Funding ...... 84 6.1.4 Access to the Declared Arterial Network...... 89 6.1.5 Road Cross Sections...... 90 6.2 The Proposed Road Network, Traffic Volumes and External Use at Keysborough ...... 91 6.2.1 Background ...... 91 6.2.2 Submissions...... 92 6.2.3 Issues Resolved During Adjournment Consultation ...... 94 6.3 Public Transport ...... 94 6.4 Conclusions and Recommendations ...... 95

7. COMMERCIAL CENTRES ...... 97

8. INTERFACE TREATMENTS...... 102 8.1 Interface Treatments ...... 102 8.1.1 Interfaces with Keysborough Community Uses...... 102 8.1.2 Interfaces with Residential uses ...... 105 8.1.3 Interface with the Western Port Highway ...... 109 8.1.4 Sita Waste Disposal Site Interface and Buffers...... 109

9. DEVELOPMENT CONTRIBUTIONS PLAN...... 112 9.1 Discussion...... 117

10. PLANNING SCHEME MECHANISMS...... 120 10.1 LPPF ...... 120 10.2 The Structure Plan...... 120 10.3 The Native Vegetation Precinct Plan...... 124 10.3.1 Discussion ...... 126 10.4 The Development Contributions Plan...... 132 10.5 The Development Plan Overlay ...... 133

Appendices

APPENDIX A: REFERRED SUBMISSIONS ...... 135

List of Figures

Figure 1 Locality Map ...... 17 Figure 2 Exhibited Keysborough Structure Plan...... 19 Figure 3 20 May 2008 Revised Keysborough Structure Plan Diagram...... 19 Figure 4 Exhibited Lyndhurst Structure Plan...... 20 Figure 5 May 2008 Lyndhurst Structure Plan Diagram ...... 20

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008

Figure 6 Revised Public Acquisition Overlay Lyndhurst (19 April 2008) ...... 35 Figure 7 Native Vegetation Precinct Plan, Lyndhurst Precinct...... 41 Figure 8 Salta’s Option 4 and 5A for the reserve in the south west corner...... 48 Figure 9 Vegetation on 80 - 120 Colemans Road ...... 54 Figure 10 20 May 2008 Open Space Plans...... 62 Figure 11 Lyndhurst Road Hierarchy Plan...... 77 Figure 12 Proposed Collector Roads in the Keysborough Area...... 92

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GREATER DANDENONG PLANNING SCHEME AMENDMENT C87

PURPOSE OF AMENDMENT: Rezoning of land: ƒ Extensive areas within the Keysborough and Lyndhurst sites to Industrial 1 Zone (IN1Z) ƒ On the north-east corner of Frankston Dandenong Road and Colemans Road to Business 1 Zone (B1Z) with a limits on floorspace for office (500 m2) , shop (6,000m2) and trade supplies (500m2) in the schedule to the zone (Clause 34.01). ƒ On the east side of Dandenong‐Frankston Road and on the west side of Taylors Road, within the Lyndhurst site to Urban Floodway Zone (UFZ). ƒ Within the Dandenong Creek Reserve abutting the Keysborough site to Public Use Zone 1. Changes to overlays: ƒ Applies the Development Contribution Plan Overlay (DCPO) to the Keysborough and Lyndhurst Areas. ƒ Applies the Development Plan Overlay (DPO) to the Keysborough and Lyndhurst sites with a new schedule 5 to apply to both sites. ƒ Some land immediately north of Colemans Road is moved from the DPO3 to DPO5. ƒ Applies a Public Acquisition Overlay (PAO1) in favour of the Roads Corporation for road widening at the south-east corner of the Lyndhurst Area. ƒ Applies a Public Acquisition Overlay (PAO6) in favour of Melbourne Water for drainage purposes on the Taylors Road and Thompsons Road retarding basins. ƒ Applies the Land Subject to Inundation Overlay (LSIO) to land affected by flooding from the Eastern Contour Drain and Rodds Drain within the Lyndhurst site. Changes the schedules to clauses ƒ The Keysborough and Lyndhurst sites are added to the schedule to Clause 52.01 with a requirement to make a contribution for public open space fixed at 5% in a monetary or land contribution. ƒ Site specific controls consistent with the NVPP for the Keysborough and Lyndhurst sites are introduced in Clause 52.03. ƒ The NVPP is included in part 2 of the schedule to Clause 52.17. Incorporate the following documents at Clause 81.01: ƒ Dandenong South Industrial Area Extension – Structure Plan (SGS Economics and Planning ‐ June 2007) ƒ The Dandenong South Industrial Area Extension – Development Contributions Plan (SGS Economics and Planning August 2007) ƒ Native Vegetation Precinct Plan – Greater Dandenong Planning Scheme Amendment C87, Dandenong South Victoria Practical Ecology, May 2007

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PLANNING City of Greater Dandenong AUTHORITY

THE PANEL: Cathie McRobert (Chair) Robin Saunders Chris McNeil

PANEL HEARINGS

Directions Hearing 22 January 2008

Pre‐Hearing Consultation Groups of expert witnesses and lead agencies addressing drainage, traffic, native vegetation and development contributions were directed to consult before the hearing. Statements setting out areas on which there was agreement and issues that were contentious were tabled at the hearing. The hearing was structured to hear evidence in these areas on the same day.

Panel Hearing: 27, 28, 29 February, 2008 3, 4, 5, 6, 7, 11, 12, 13, 14, 31 March 2008, 1 April 2008, 23, 26 May, 2008.

REFERRED See Appendix A SUBMISSIONS

INSPECTIONS The Panel made unaccompanied inspections of the Amendment and surrounding area before and after the hearing.

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APPEARANCES

City of Greater Dandenong represented by Mr Terry Montebello of Maddocks Lawyers. Expert evidence was called from: • Planning and Development Contributions ‐ Mr Ian Swan of SGS Economics and Planning • Flora and Fauna – Mr Lincoln Kern accompanied by David Fairburn of Practical Ecology

• Traffic – Mr Nigel Ashton of John Piper Traffic Pty Ltd

City of Casey represented by Mr Liam Hodgetts

Department of Innovation, Industry and Regional Development represented by John Panozzo

SITA Environmental Solutions represented by Michelle Quigley SC and Angela Cook of Baker Mackenzie

Melbourne Water represented by Ms Meg Lee of Allens Arthur Robinson and Mr G Daff of Melbourne Water. Expert evidence was called from: • Drainage ‐ Dr McCowan of Water Technology

VicRoads represented by Mr Bill Hronopoulos

Department of Sustainability and Environment represented by Mr Mathew Townsend of Counsel and Mr Russell Costello

Environment Defenders Office Ltd represented by Mr Brendan Sydes

Pat Ville Constructions Pty. Ltd represented by Mr Richard Rogalsky. Expert evidence was called from: • Arborist ‐ Mr Robert Galbraith of Galbraith & Associates • Flora ‐ Sandy Cochrane & Richard Francis of Abezco (expert report ‐ not called)

Goodman represented by Mr Stuart Morris QC. Expert evidence was called from: • Planning ‐ Mr Andrew Biacsi of Contour Consultants • Flora and Fauna – Dr Charles Meredith of Biosis • Drainage – S Rowland (expert report ‐ not called) • Traffic – Mr Jason Walsh of Cardno Grogan Richards • Development Contributions ‐ Mr Greg Wood of Tract Consultants

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Pellicano Group of Companies represented by Mr Paul Connor of Counsel, Mr Chris Wren SC and Mr F Crummens. Expert evidence was called from: • Traffic – Henry Turnbull of Traffix Group

Salta Properties (Lyndhurst) Pty. Ltd represented by Mr Graeme Peake of Counsel and Mr Charles Veevers. Expert evidence was called from: • Planning ‐ Mr Jamie Govenlock of Urbis • Supply Chain and Logistics ‐ Mr John Edhouse of John G Edhouse and Associates • Flora and Fauna – Mr Brett Lane of Brett lane & Associates • Traffic – Mr Chris Maragos of Cardno Grogan Richards • Development Contributions ‐ Mr Matt Ainsaar of Urban Enterprise

Australand represented by Mr Phillip Bisset of Minter Ellison lawyers. Expert evidence was called from: • Planning – Ms Kirsten Coster of The Planning Group • Traffic – Mr Damien Hancox of TTM Consulting Pty Ltd

Intrapac and Keysborough South Development Group represented by Mr Andrew Walker of DLA Phillips Fox Miramah Investments Pty Ltd represented by Mr Theo Niakolas (Argot

Consultants), Mr Frank Singh of Bestway Group and Mr How Ng

Jayco, Sunny Corporation Pty Ltd and Mr Huy Taing represented by Mr Roger Green

Keysborough Turkish and Islamic Cultural Centre represented by Mr Matthew Spozio of Beveridge Williams

Mr Leo Cantwell

Hopin Pty. Ltd represented by Mr Jonathon Fetterplace of Urbis Pty Ltd

Mr Simon Grady (Hillblock Pty. Ltd) represented by Mr William Chow

Mr Wilson and Ms Thomas (late submission)

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Overall Conclusions and Consolidated Recommendations

Overall Conclusions

Strategic Justification

The Amendment enjoys strong strategic justification and will result in a net community benefit. It will address the projected undersupply of industrial land in south eastern Melbourne in a location that consolidates an important employment node and capitalises on major investments in infrastructure. The possible development of an inland port in the Lyndhurst area was highlighted and the Panel supports flagging this option in the planning framework to ensure the potential for an inland port is not compromised or precluded by planning and infrastructure decisions.

Post Exhibition Changes

The constructive approach adopted by parties to finding consensus solutions during the hearing narrowed the scope of the issues in contention and the Panel has been conscious not to unnecessarily upset the consensus reached on acceptable responses.

Significant refinements to the amendment documentation were put forward relating to drainage, public open space provision, and the form of the Structure Plan, the Development Contributions Plan (DCP) and the Development Plan Overlay (DPO). Many of the revisions to documentation extracted unnecessary material from incorporated documents or improved drafting to provide clearer, more concise documents. The Panel required further notice to landowners in the Amendment area of the more specific Public Open Space (POS) plans developed during the course of the hearing. In the main, those affected by substantive changes proposed had the opportunity to present their views through the Hearing process.

However, the Panel is concerned that the owners of 90‐120 Colemans Road have not been directly consulted about potential planning responses for their properties. Further, the Panel considers Council should lead areas specific development planning which protects Heathy Woodland patches while achieving viable future development of these properties. In these circumstances, the Panel considers that 90‐120 Colemans Road should be excluded from the Native Vegetation Precinct Plan (NVPP) and POS equalisation process in the DCP.

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Drainage

Melbourne Water presented more sophisticated analysis it had commissioned of the Lyndhurst drainage network at the Hearing and consequential revisions to the drainage network which minimised the area required for retarding basins. The post exhibition changes do not disadvantage any properties and provide significant benefit (10 ha additional developable land) to the Miramah property in particular. The Panel endorses the siting of the retarding basin in the GWZ and the revised scheme for retarding basins as appropriate means of maximising the land available for industrial development.

The widening of the Eastern Contour Drain and the relocated Lyndhurst Drain (on Pellicano land) without compensation was contentious. While issues of compensation are beyond the scope of this Panel, the distinction being made by Melbourne Water between land required for a retarding basin and land for drains is questioned. It remained unclear whether the parts of the drainage system in question would have any storage function and the extent of land required for drainage purposes has not been finalised. The Panel considers that the Structure Plan and the associated diagram should identify the land as “possible additional Drainage Reserve”. The Panel has also recommended that part of this area should be incorporated in the POS network with development costs and any private land acquisition included in the DCP POS equalisation mechanism.

Before adoption of the Amendment, the Urban Floodway Zone and Land Subject to Inundation Overlay on Jayco land also need to be delineated on the basis of the established guidelines regarding flow depth and velocity.

Native Vegetation

The Panel is not satisfied that HZ11 in the Lyndhurst Area meets the definition of a patch of Plains Grassy Wetland or that HZ8 in the Lyndhurst Area qualifies as a Heathy Wetland patch.

With regard to scattered trees, the Panel is conscious that some important very large old scattered River Red gums will be removed to advance strategic policy to expand the supply of industrial land, provide for large unrestricted parcels of land and preserve the potential for the development of an Inland Port. However, it is satisfied that tree protection areas, offsets and effective ecological function can be achieved in the recommended conservation and open space reserves. With regard to the reserve in the south west of the Lyndhurst area, the Panel has endorsed a modified version of an option presented by Salta at the end of the Hearing which provides at

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 7 least a 90 metre vegetated link along the south of the conservation and open space area.

The Panel also advocates the transfer of ‘conservation and open space’ reserves to Council’s ownership and ongoing management, provided adequate funds are provided for the necessary revegetation and development of POS. It is emphasised that an integrated approach should be adopted for these areas to optimise both conservation and recreation outcomes and ‘notional’ differentiation of the POS and conservation areas should only be included in the DCP for equalisation purposes.

There was consensus at the hearing that the mechanisms for implementation of the NVPP are acceptable but cumbersome. They are discussed in some detail with a recommendation that they be reviewed by DPCD in consultation with DSE.

Public Open Space

The Panel agrees with submissions that the exhibited Amendment mandatory requirement for 5% POS contribution was not adequately justified. The Council preparation of the open space plan responded to a broad desire amongst landholders for greater certainty at the structure planning stage. The Panel accepts the approach adopted, with some qualifications, and considers it represents a substantial advance in the definition of the open space requirements. The Panel is satisfied that a transparent approach to the costing was adopted which establishes a reasonable basis for POS contributions.

Overall, the Panel sees the proposed POS plan as a pragmatic balancing of policy to maximise the quantum and development options of land available for industrial development while achieving a network of functional POS to serve future workers in the locality. The network of POS proposed takes advantage of land required for drainage and conservation purposes. Both State and Local planning policy make it clear that POS is intended to fulfil a range of functions and it is good planning to integrate multiple functions in these spaces if other important values are protected.

However, the POS network would be enhanced if land identified for widening of the Eastern Contour Drain (on Pellicano land) is developed as a POS link. The Panel thinks the Structure Plan and DCP should be revised to recognise the POS function of drainage land that is almost always dry by including the cost of any private land and the development costs of land within the drainage network that is above the 5 year ARI.

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The Development Plan for 90 ‐ 120 Colemans Road should address any POS provision for those properties, which should be excluded from the proposed POS equalisation mechanism in the DCP. The Panel agrees with Council that only the wider elements of the interface treatments north of Greens Road should be accepted as forming part of the open space network contribution.

Roads

The Panel finds that the traffic analysis (save for the coding error that results in ER3 having virtually no traffic) and the road networks for Lyndhurst and Keysborough in the 20 May 2008 Structure Plan provide an adequate basis for subsequent development planning. The Panel supports the removal of the cross‐subsidies between the Lyndhurst and Keysborough Areas for road projects. It is noted that issues relating to the Greens Road intersection and the approach to secondary access have been resolved during the hearing process and, the Keysborough Structure Plan should make it clear that the collector road network is indicative. The road reserve widths and the revised DCP road costs are also endorsed.

However, the Panel has accepted Council’s view regarding elements of LR5 that should be funded by the DCP.

A number of further revisions are recommended relating to VicRoads principles for main road access, the scope of Integrated Travel Plans, references to temporary access to the Westernport Highway and the provision of footpaths.

Commercial Centres

The exhibited location of the larger Lyndhurst Activity Centre was unworkable and the alternative location now proposed is accepted as appropriate. Although the basis for the activity centre floor area limits in the Structure Plan and schedule to the B1Z was not presented, the scale of the centres was not contentious and is also accepted by the Panel.

Similarly, the proposed design guidelines for the activity centres were not challenged and are accepted as broadly consistent with the generic activity centre design guidelines that would also apply. However, the Panel does not consider a 20 metre main road setback is warranted for the larger Lyndhurst site as the adjoining retarding basin will achieve the intended purpose.

The new indicative location for the small commercial centre in Keysborough was not controversial but the Panel notes that the planning criteria will only be satisfied if revegetation within the adjoining reserve maintains good exposure to Perry Road.

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Interface Treatments

Given its concern about the limits of stakeholders’ future rights under the DPO, the Panel believes DPO5 should specify that industrial uses should satisfy Clause 52.10 threshold distances from sensitive uses. The Panel also supports greater specification of the interface treatments in DPO5 for long term community uses and residential uses. It recommends a 30 metre ‘buffer’ between industrial properties and community uses should generally apply. This interface treatment should take account of the existing circumstances, such as existing screen planting and could include a road as well as planting. As residential uses in the industrial zone are transitional, some flexibility may be warranted but landscaping or other measures on industrial land should be to achieve effective screening of industrial development from existing residential and rural residential properties.

The 20 May 2008 Structure Plan reflects the agreement reached on interface treatment between the industrial development facilitated by the current Amendment and residential development to the west in the Amendment C36 areas with provision of the buffer on both residential and industrial land (with varying arrangements along the boundary). The Panel endorses this arrangement.

The Panel considers the design rationale in the structure plan and DPO 5 should explicitly address the interface treatment of Westernport Highway, which will also maintain the visual amenity of the residential areas to the east.

DCP

Revisions in the May 2008 DCP have addressed various matters raised in submissions and evidence and the Panel concludes that the revised DCP establishes an appropriate basis for contributions. However, The Panel is inclined to agree that some discount should apply to the value of encumbered land contributed for POS but is not in a position to nominate a value. The Panel leaves the nomination of a value of POS land contributions to Council to resolve to its satisfaction.

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Consolidated Recommendations

Based on the reasons set out in this Report, we recommend:

A. THE AMENDMENT

Amendment C87 to the Greater Dandenong Planning Scheme should be adopted subject to the following recommendations:

1. Adopt the revised versions of Amendment documentation tabled at the completion of the hearing with the further revisions set out in subsequent recommendations.

LPPF

2. Update the Municipal Strategic Statement to reflect the further revisions to the exhibited Amendment.

3. Revise Clause 21.03, the Structure Plan (and the associated reference document) and DPO5 to refer to the potential for an inland port at Lyndhurst.

The Structure Plan

4. Revise the May 2008 Structure Plan to remove the waste management and extractive industry sites on the northern side of Colemans Road from the Structure Plan area.

5. Include the principles tabled by VicRoads to guide the consideration of access to specified declared roads in the Amendment documentation.

6. Revise the May 2008 Structure Plan Diagram to identify the nominated site for the Keysborough Activity Centre as an “Indicative location of Activity Centre”.

7. Amend the May 2008 Lyndhurst Structure Plan clause referring to the temporary access to the Westernport Highway by replacing the phrase “if the adjacent land is developed as an inland port” with “subject to the satisfaction of VicRoads”;

8. The provisions of the Structure Plan should be revised to remove distinctions between the areas of ‘notional’ POS designations for funding purposes along the lines set out in Chapter 5.

9. The areas that serve the dual conservation and recreation functions should:

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ƒ be designated as “Conservation Area and Public Open Space” on the Structure Plan diagrams. ƒ be transferred to Council (The total estimated cost of development as POS, including the establishment of vegetation required to enhance conservation values, should be funded by a combination of POS contributions under the DCP and payments to provide offsets).

10. Explicitly refer the interface with the Westernport Highway in the Structure Plan design rationale

11. Revise the May 2008 Structure Plan design guidelines to: ƒ clarify that a 20 metre setback is not required from the western boundary of the larger activity centre in Lyndhurst as an integrated design treatment with the adjoining retarding basin would serve the intended urban design purpose. ƒ encourage provision of some on‐site outdoor passive space within the Structure Plan design guidelines.

12. Revise the May 2008 Structure plan text should indicate that the form of development of 90 – 120 Colemans Road Lyndhurst requires further consideration through the development planning process. These properties should be identified by hatching on the Structure Plan Diagram with an appropriate annotation. The delineation of the ‘conservation area’ should be removed from these properties.

13. Amend the legend on the May 2008 Lyndhurst Structure Plan diagram that refers to “35m drainage reserve” to “possible additional drainage reserve.

14. Revise the retarding basin in the south of the Keysborough Area on the May 2008 Structure Plan diagram so that it is cross hatched with the annotation in the legend ‘greater flexibility as subject to detailed design at Development Plan stage’.

15. Revise the Design Rationale of the May 2008 Structure Plan (Lyndhurst) so it refers to potential habitat links with Eumemmerring Creek to the northwest and remnant woodland to the northeast.

Native Vegetation Precinct Plan and ESO4

16. Update the 26 May 2008 NVPP and ESO4 to reflect the most recent vegetation assessments (undertaken by Practical Ecology for the City of Greater Dandenong and in relation to 80 Colemans Road) and Panel recommendations.

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17. Revise the 26 May 2008 NVPP so that HZ8 and HZ11 are not treated as patches.

18. Adopt an option based on Salta’s Option 4 with a 90 m strip connecting the eastern and western sections of the reserve along the southern edge as the native vegetation reserve in the SW corner of Glasscocks and Taylors Roads.

19. Exclude 90 – 120 Colemans Road from the NVPP and ESO4.

20. Limit ESO4 so that it only applies over drainage network areas with native vegetation.

21. Transfer native vegetation reserves to Council’s ownership and ongoing management, provided funds are transferred with the land for Council to undertake the revegetation necessary to provide protection of large old trees and offsets.

22. Exclude 90 to 120 Colemans Road from the NVPP with measures to protect patches of heathy woodland vegetation on these properties addressed at the development planning stage.

23. Update the NVPP to indicate trees 43 and 70 is dead and remove the ESO around these trees any other dead trees outside the ‘open space and conservation areas’.

24. Explicitly indicate in the NVPP that the removal of native vegetation identified after approval of the NVPP is exempt from permit requirements.

25. Include the current street address as well as title details, GPS co‐ordinates and mapped locations in the NVPP and ESO 4 tables.

26. Include the Native Vegetation Precinct Plan Background Report as a reference document to ESO4 and the NVPP.

27. The Native Vegetation Precinct Plan Background Report should provide for measures other than fencing to preclude or mange access to tree protection and other conservation areas.

28. Identify DSE as a Clause 66.06 referral authority for applications to remove native vegetation under ESO4.

29. Clarify the NVPP so that the offset requirement will be reduced if further large old trees are retained.

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30. Check the vegetation listings in the NVPP and ESO for consistency prior to adoption.

Development Plan Overlay

31. Revise the June 2008 Schedule 5 to the DPO as follows: ƒ In Clause 1 provide for a permit to be granted “For the subdivision of land to facilitate the preparation of a Development Plan” before the approval of the Development Plan. ƒ Delete references to the DCP public open space contributions (including references to areas identified as ‘notional’ POS for funding purposes) along the lines set out in Chapter 5. ƒ Include a new clause that sets out the principles tabled by VicRoads to guide the consideration of access to specified declared roads. ƒ Reflect the agreed access arrangements to the industrial area north of Greens Road in the Keysborough Area. ƒ Include a new Clause relating to 90‐120 Colemans Road that highlights additional specific matters to be addressed in the Development Plan for the properties, including specifically identifying the need to address the protection and management of native vegetation on these properties and any provision of POS. ƒ Include reference to the requirements of the Native Vegetation Precinct Plan in the Environmental Management Plan clause. ƒ Require, under the Environmental Management Plan, storm water management plans that ensure appropriate hydrological regimes for retained vegetation based on expert ecological assessment. ƒ Include a Development Plan requirement for landscaping or other measures on industrial land to achieve effective screening of industrial development from existing residential and rural residential properties. ƒ Include a new Development Plan requirement to indicate that industrial uses satisfy threshold distances from existing community uses and either existing or proposed residential uses. ƒ Include a new development plan requirement under ‘Specific Requirements for Keysborough Buffer Areas’ along the lines set out in Chapter 8. ƒ Explicitly address requirements for a development Plan the interface treatment of Westernport Highway along the lines set out in Chapter 8.

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32. Council should take a leadership role in working with the owners to prepare a development plan for the properties from 90 to 120 Colemans Road.

Development Contributions Plan

33. Adopt the revised DCP dated May 2008 subject to updating to reflect any final changes in the revised Structure Plan and recommendations elsewhere in this report.

34. Remove the cross‐subsidies between Lyndhurst and Keysborough Areas for road projects from the DCP.

35. Exclude the northern and southern portions of the Lyndhurst Area collector road LR5 (LR5a, LR5d, LR5e and LR5f) from the DCP.

36. Require the provision of a single 2.5 metre footpath on collector roads rather than footpaths on both sides of these roads.

37. Identify the dark green areas within the DCP Public Open Space Plans as ‘notional POS for funding purposes’.

38. Treat drainage network areas that are almost always ‘dry’ (land above the 5 year ARI) as POS. The development costs of this land should be included in the POS equalisation mechanism and the land component (with values taking account of the nature of the land, such as flood risk) should be included as a land contribution where the land is in private ownership. If the ultimate ownership of land around the retarding basins has not been resolved when the Amendment is adopted, any land component should be excluded from the POS equalisation mechanism.

39. Exclude the elements of the Keysborough ‘buffer’ areas where the landscaped component may be 10 metres wide or less from the POS equalisation mechanism in the DCP.

40. Exclude 90‐ 120 Colemans Road from the POS equalisation mechanism in the DCP.

41. The value of POS land contributions should be determined by Council to reflect the level of encumbrance of the land.

Zones and Overlays

42. Rezone the Melbourne Water land in the Lyndhurst area on the north east corner of Dandenong Frankston Highway and Colemans Road as IN1Z rather than the exhibited B1Z.

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43. Rezone the land identified for the activity centre on the south sided of Jayco Drive in the location indicated on the 20 May Structure Plan to B1Z, and amend the B1Z schedule to apply the provisions exhibited for the Coleman’s Road site to this land.

44. Adopt the revised scheme for retarding basins as tabled by Melbourne Water.

45. Reconfigure the PAO applicable to the Thompsons Road Retarding Basin site in accordance with the agreement reached between Melbourne Water and SP Ausnet.

46. Revise, in accordance with the May 2008 documentation provided by Melbourne Water, the exhibited UFZ and PAO for the Thompsons Road Retarding Basin, the retarding basin on Miramah land, and the Eastern Contour Drain south of the Miramah retarding basin.

47. Reduce the size of the exhibited UFZ associated with the retarding basins adjacent to the Dandenong Frankston Highway (on Jayco land) to an area covering with a 1.3m depth or more during a 1 in 100 year flood. The zoning of the adjoining land to the east should apply to the remainder of the exhibited UFZ and an LSIO should apply to any of this land subject to the 1 in 100 year flood.

B. FURTHER PANEL RECOMMENDATION

48. The Panel also recommends that DPCD, in consultation with DSE, should review the operation of Clause 52.17 provisions relating to Native Vegetation Precinct Plans. Consideration should be given to excluding land where an incorporated NVPP applies from the generic exemptions in Clause 52.17‐6 and identifying areas where an NVPP applies on planning scheme maps.

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1. Introduction

Amendment C87 affects land that was included within the Urban Growth Boundary (UGB) in 2004 to address the projected undersupply of industrial land in south eastern Melbourne and reinforce the function of the Dandenong South industrial area as one of Melbourne’s major employment nodes. The vision for Dandenong South is to establish a cluster of “new economy” manufacturing, wholesaling, transport and storage businesses.

The Amendment proposes to establish the framework for development and set requirements for development contributions for three areas referred to as the Keysborough Area, the Lyndhurst Area and the Thompsons Road Site (see figure 1). It proposes to rezone 1148 hectares of land, and incorporate Structure Plans (SPs) and Development Contributions Plans (DCPs) for each area and incorporate a Native Vegetation Precinct Plan (NVPP) affecting both areas. Public Acquisition Overlays and Urban Floodway Zones are proposed to implement drainage proposals for the Amendment Area. The planning framework also provides for more detailed development planning after rezoning.

The industrial future of the land was not contentious – submissions strongly supported the strategic intent of the Amendment. Most submissions to the Panel emphasised the strategic importance of maximising the yield of industrial development while responding to substantial drainage constraints and policies to protect and enhance native vegetation. Fair apportionment of development contributions and adequate compensation for land required for public purposes were a key concern to landowners, while Council had a particular interest in ensuring the framework provided adequate funding of local infrastructure.

Significant refinements to the Amendment were put forward during the course of the hearing relating to drainage, public open space provision, and the form of the Structure Plan, the DCP and the DPO. The constructive approach adopted by parties to finding consensus solutions narrowed the scope of the issues in contention and the Panel has been conscious not to unnecessarily upset the consensus reached on acceptable responses. The consideration of issues in this report briefly sets out the exhibited approach with changes proposed to address the issues raised followed by the Panel evaluation of the responses proposed with a focus on matters that remained contentious.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 17

This report is structured on the basis of issues associated with the following key themes: ƒ Strategic justification for expansion of the Dandenong South industrial area; ƒ Drainage; ƒ Native vegetation; ƒ Public open space; ƒ Traffic; ƒ Interface treatments; ƒ Development contributions; and ƒ Planning scheme mechanisms

1.1 The Area

The Amendment area is to the south and south‐west of Dandenong’s current industrial area.

Figure 1 Locality Map

The Amendment area has excellent linkages to the regional road network, including direct connection to Eastlink. Flooding is a major constraint on both sites, particularly the Lyndhurst site (see discussed in Chapter 3).

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 18

The Keysborough and Lyndhurst sites are within the Urban Growth Boundary (UGB) and are generally within the Farming Zone. The Thompsons Road Retarding Basin is outside the UGB and is in the Green Wedge Zone.

The surrounding areas comprise residential development to the east (Lynbrook), a proposed residential area to the north and west of the Keysborough site (the Amendment C36 land), rural land to the south and west, and south east Melbourne’s major industrial node to the north of the Lyndhurst Site and to the north and east of Keysborough Site.

The Keysborough Site and Structure Plan

The Keysborough Area has an area of approximately 350 hectares in 44 allotments that range in size from approximately 0.4ha to 26ha. It has a potential development area of 163.9 hectares if areas for community uses1, reserves, drains/retarding basins, buffers, and roads are excluded.

The Exhibited and May 2008 versions of the Keysborough Structure Plan Diagram are shown in Figures 2 and 3.

The Lyndhurst Area and Structure Plan

The ‘Lyndhurst site’ has an area of approximately 690 hectares in 33 allotments ranging in size from approximately 0.75ha to 105ha in various holdings. The land is relatively flat and its location at the confluence of three drainage catchments poses substantial challenges and development constraints. The single track Cranbourne railway line and the proposed Lynbrook railway station2 are to the north‐west of the Lyndhurst site. The Lyndhurst structure plan (see Figure 4) indicates 438.6 hectares of the 678 hectare site (65%) is available for industrial purposes. It has a potential development area of 163.9 hectares if areas for community uses, reserves, drains/retarding basins, the SITA waste site and roads are excluded3.

The Exhibited and May 2008 versions of the Lyndhurst Structure Plan Diagram are shown in Figures 4 and 5.

1 The Keysborough Turkish and Islamic Cultural Centre & Mt Hira College, the Dhamma Sarana and Polish Catholic Centre sites, which are used for community purposes are excluded from Amendment C87. Amendment C80 proposes to rezone these site to Special Use Zone and apply Development Plan Overlays. 2 Scheduled to commence in 2011-12 3 The 293.4 hectares not identified as having industrial development potential comprise: main and collector roads - 52.3 ha; the SITA waste disposal site - 56.1 ha; land on the North-west corner Taylors and Colemans Roads - 22.7 ha; Proposed private vegetation reserves 29.4 ha; Proposed public vegetation reserves 11.5 ha; Proposed drains and retarding basins 67.4 ha

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 19

Figure 2 Exhibited Keysborough Structure Plan Figure 3 20 May 2008 Revised Keysborough Structure Plan Diagram

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Figure 4 Exhibited Lyndhurst Structure Plan Figure 5 May 2008 Lyndhurst Structure Plan Diagram

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1.2 Thompsons Road Retarding Basin

The Thompsons Road Retarding Basin site is south of the Lyndhurst site and has an area of approximately 108 hectares. It is outside the UGB and within the Green Wedge Zone (GWZ).

Prior to the hearing Melbourne Water responded to a submission by SP AusNet by agreeing to a reduced Thompsons Road Retarding Basin PAO and accommodate a transmission tower in an agreed location within the PAO. SP AusNet did not participate in the hearing as their concerns had been addressed.

Panel Recommendation

Reconfigure the PAO applicable to the Thompsons Road Retarding Basin site in accordance with the agreement reached between Melbourne Water and SP AusNet.

1.2.1 Background to the Proposal - Amendment C67

Amendment C67, which was exhibited in 2005, also proposed to rezone extensive areas in the extended UGB area and establish the planning framework for industrial development of the area. While submissions to Amendment C67 generally supported additional industrial land supply, objections were raised to the proposed level of developer contributions, drainage and transport infrastructure provision and the approach to native vegetation management.

Review of the Amendment was co‐ordinated by a Steering Committee4. Further work was undertaken which included: ƒ A detailed Field Survey and Flora and Fauna and Habitat Hectare Assessment and Net Gain Analysis on both sites by Practical Ecology; ƒ An archaeological assessment of the Glasscocks Road area and Retarding Basin sites by TerraCulture; and ƒ Further traffic modelling by the Department of Infrastructure (DoI) with traffic layout design by John Piper Traffic.

Council abandoned C67 and included revised/new material in Amendment C87, with changes5 to drainage infrastructure, road infrastructure and the treatment of open space are proposed in the current Amendment.

4 The Steering Committee was chaired by the Department of Innovation, Industry and Regional Development (DIIRD)With representatives of the Department of Sustainability and Environment (DSE), Melbourne Water, DoI, VicRoads and the City of Greater Dandenong

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2. Is Expansion of the Dandenong South Industrial Area Strategically Justified?

Submissions from Council, DIIRD and landholders6 who presented to the Panel supported the strategic intent of the Amendment and the proposed rezoning for industrial development. There was a strong theme in these submissions and the planning evidence that the industrial development potential of the land should be maximised if the planning intent underpinning the extension of the Urban Growth Boundary (UGB) and potential benefit from investment in Eastlink are to be realised.

However, written submissions from some residents and institutional landholders expressed concerns about the impacts of expansion of the industrial area on sensitive uses and green wedge land.

The owners of six properties (85 acres) in Bangholme Road to the south of the Keysborough Area submitted that the industrial area should be extended to include their properties. They argued that the boundary of the UGB and industrial area should align with the Eumemmerring Creek.

Mr Rahula opposed rezoning on basis of impact on character and environmental quality of Lyndbrook village while G Grenda7 and the Sandhurst Club8 were concerned industry will creep into green wedge land with associated impacts on their amenity.

SITA sought exclusion from structure plan but did not pursue the issue in its presentation to Panel.

2.1 Discussion

Metropolitan planning strategies include ‘Providing an adequate supply of industrial land in appropriate locations including sufficient stocks of large sites for

5 The changes included application of a Public Acquisition Overlay to the Thompsons Road Retarding Basin and for future road expansion of the Western Port Freeway; Additional smaller retarding basins were included within the Lyndhurst site with the location, capacity and design to be determined at development plan (or development) stage; Only one permanent access is provided to the Western Port Highway, at the intersection with Glasscocks Road; Glasscocks Road is upgraded to operate as an arterial road by 2031 and realigned to avoid significant vegetation; and a Native Vegetation Precinct Plan (NVPP) was included. 6 Although Mr Cantwell indicated he did not have short term development intentions. 7 A resident of Keys Rd west of the Keysborough Area 8 South of Thompsons Road, Lyndhurst

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 23 strategic investment’.9 Metropolitan planning policy also aims to create opportunities for innovation and the knowledge economy by, amongst other things, encouraging the expansion and development of logistics and communications infrastructure, supporting the development of business clusters and promoting a physical environment that is conducive to innovation and to creative activities10. State and local planning policy also recognises the strategic importance of the Dandenong South industrial area, and the IN2Z in particular11.

Amendment C53 to the Greater Dandenong Planning Scheme extended the UGB in Lyndhurst and Keysborough ‘to implement policies in Melbourne 2030 relating to the need to maintain access to an adequate supply of well located industrial land’12. The express purpose of this change was to add to the supply of industrial land.

The Panel believes the extensive body of work undertaken over several years, together with further work undertaken during the course of the hearing on drainage and public open space, provides a sound basis for the Amendment.

Background Reports, including the Structure Plan document (December 2007), provided a ‘Development Context’ to the proposed Amendment. Economic analysis pictures an outcome whereby proximity to existing higher order industrial networks and new infrastructure such as the Eastlink project would draw a cluster of “new economy” manufacturing, wholesaling, transport and storage businesses to the Amendment Area. Economic modelling provided estimates of potential industry typology, associated potential employee per hectare ratios and estimates of annual land consumption rates across the Amendment Area.

From a number of options the Structure Plan recommended that Council focus on a “two‐pronged strategy of investment attraction that focus on: ƒ Advanced Manufacturing and ƒ Assembly and Logistics (ie production support)”

Curiously, the analysis rated the likely developer interest in Advanced Manufacturing as low to moderate, noting that “development in this group is sporadic and driven by business leadership, innovation, skills, investment and other

9 Clause 12.04-2 10 Clause 12.04-2 11 See Clauses 11.03-1, 17.03-1, 17.03-2, 21.04-2 12 Greater Dandenong Planning Scheme Amendment C53 Explanatory Report.

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‘difficult to harness’ business development factors. Many regions in Australia have targeted this activity.”

In his evidence statement, Mr Swan (for Council) noted that the term ‘new economy’ (of which ‘advanced manufacturing’ is a key component) is broadly used to describe any manufacturing, wholesaling, transport and storage activity which is “knowledge based and “export focused”.

Mr Swan noted that in assessing the development potential of the Amendment Area a 50:50 split between Advanced Manufacturing and Assembly and Logistics was adopted. General floor area to site area ratios were then applied in order to estimate floorspace and, as a final step, floor area to employee ratios (based on industry norms) were applied to calculate the future employment potential of the area.

The Panel appreciates that strategic modelling of this nature is somewhat speculative and accepts the basis of the underlying economic assumptions as providing a suitable strategic basis for the Amendment.

The Structure Plan indicated an additional 249 hectares of Business 3 and 152 hectares of Industrial 1 was required, as supply was well below DSE’s nominal benchmark of 15 years supply with around 9 years supply of Industrial 1 and 4 years for Business 3. The 2006‐7 UDP was released during the course of the hearing. It indicated the supply of industrial land in the southern node had tightened to 7 years with 9 years supply of IN1Z land, 3 years supply of IN2Z land, only 2 years supply of B3Z and 25+ years supply of IN3Z land. As noted in the Structure Plan, this analysis relates to past trends and does not take into account the EastLink project which is expected to be a major impetus for industrial development which it was suggested could increase demand for industrial land by a further 20 to 30 per cent.

DIIRD’s submission highlighted that the Southern Node has the least supply of any of Melbourne’s industrial nodes. It suggested that the Amendment would increase the supply to 13.6 years (without accounting for land consumed in the last year or increased demand due to EastLink) which remains below desirable levels.

The Panel does not question that there is strong strategic justifications for adding to the supply of industrial land. Further, the Amendment C87 land is well placed to consolidate an important established employment node and to capitalise on major investments in infrastructure in the locality, including EastLink. This justification and the benefit to the broader community of promoting employment opportunities by maintaining an adequate supply of well located industrial land outweighs the impacts on individual owners,

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 25 such as Mr Willrath, who submitted that existing residential lifestyle purposes should be maintained.

The Panel understands concerns from residents in the Green Wedge that the area will change. However, the extent of industrial zoning must be confined to within the UGB and there has not been any indication that a further extension to the UGB in this locality is contemplated. Extension of the UGB requires government approval and the request by residents to the south of the Keysborough Area to extend the industrial zoning to their land is not a matter within the scope of this Panel.

Could There be a Role for the Business 3 Zone?

The Panel queried whether use of the B3Z had been considered for the Amendment C87 area given that this zoning would be compatible with the vision for Dandenong South to establish a cluster of “new economy” businesses and the much greater undersupply of this type of land.

Mr Swan, the primary author of the Structure Plan acknowledged that the B3Z could be a mechanism to implement planning objectives for the area but did not indicate why it was not applied. Council responded that the B3Z could undermine objectives for the area. Council was of the view that ancillary office uses may provide a greater degree of flexibility than suggested by the IN1Z restriction of this use to 500m2.

The Panel agrees with Council that the B3Z carries a risk of office uses overwhelming industrial uses rather than accommodating the intended ‘new economy’ mix of office and manufacturing or warehousing functions. This issue could be addressed by appropriately located zoning together with zone, overlay and policy provisions that are specifically crafted to achieve the intended outcome , as occurs elsewhere (eg Caribbean Gardens, Epping, Cranbourne East) The Panel sees merit in strategic application of the B3Z to parts of the C87 Amendment to support achievement of the landuse mix envisaged, as well as reinforcing the sense of place sought, but recognises that this would be a substantial change to the Amendment and the necessary planning framework is not in place to ensure planning objectives are not undermined. Any application of the B3Z would require evaluation under a separate amendment.

Conclusions ƒ The Amendment C87 land is well placed to consolidate an important established employment node and to capitalise on major investments in infrastructure in the locality, including Eastlink.

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ƒ There is strong strategic justification for adding to the supply of industrial land and appropriate investigations of the Amendment area have been undertaken. ƒ The benefit to the broader community of promoting employment opportunities by maintaining an adequate supply of well located industrial land outweighs individuals’ preferences for continued residential lifestyle uses. ƒ The extent of industrial zoning must be confined to within the UGB and the request by residents to the south of the Keysborough Area to extend the industrial zoning to their land is not a matter within the scope of this Panel.

2.1.1 Recognition of Potential for an Inland Port

Salta Properties sought recognition in the planning scheme of the potential of the Amendment area and their 177 hectare property13 in particular for an inland port. The inland port envisaged would include the following components: ƒ port services ‐ containers from/to the Port of Melbourne arrive/depart by train; ƒ customs and AQIS clearance would be done at Lyndhurst; and ƒ port related warehousing.

The Panel was advised that an inland port would enhance the capacity and efficiency of the Port of Melbourne dockside operations by reducing the delay associated with customs, agriculture and other required clearances. Congestion on the road network, particularly in the vicinity of the Port of Melbourne, is a significant and growing constraint on Port of Melbourne operations. An inland port at Lyndhurst would divert a substantial amount container cargo from trucks using the freeway and arterial roads to the rail system. This would be one of a number of measures being pursued with government support to address this constraint14.

Submissions from Salta and evidence from Mr Edhouse highlighted that 35% of all metropolitan destined containers are transported to and from the South East / Dandenong area and the government target to transfer 30% of all Port

13 The Salta property is between Taylors Road and Western Port Highway. It has frontages to Bayliss Road to the North, Western Port Highway to the East, Glasscocks Road to the South and Taylors Road to the West, apart from the land adjacent to the eastern boundary of the precinct owned by Commercial Sands and L Cantwell. 14 It was apparent at the hearing that an inland port it will be not be a panacea for road congestion near the port of Melbourne and 75% to 80% of containers from the Port will still be carried by road.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 27 of Melbourne containers by rail in 201015 can only be achieved if an Inland Port is established in the South East / Dandenong area. Salta is committed to moving freight in and out of Swanston and Victoria Docks by rail and currently operates an inland port Altona. They intend to pursue approvals of an inland port at Lyndhurst immediately16 to complement these operations. The large site area capable of accommodating all required functions, the site’s access to the Melbourne/Cranbourne railway line, potential rail linkages to the Port of Hastings, the excellent road network in the immediate area and scope for operations 24 hours/ seven days per week were all identified as factors that underpin the suitability of the Salta site for an inland port.

It was acknowledged that rail track capacity is currently a limitation. However, plans currently underway for rail improvements between Caulfield and Dandenong will provide capacity for rail freight to the South‐ East/Dandenong areas. Access to Western Port Highway was also highlighted as critical and negotiations are underway to secure access at Morton Bay Boulevard (Chapter 6).

The scope of the Panel’s consideration is limited to the extent to which a potential inland port should be recognised in the planning framework proposed for the Lyndhurst area. It is emphasised that, although a concept plan was table at the hearing, it was only presented to indicate the form an inland port could take and the Panel has not formed any view on a particular proposal.

The Panel agrees with Mr Govenlock that: ƒ The development of an inland port enjoys strategic policy support. For example, the metropolitan strategies include: ‘Ensuring suitable sites for intermodal freight terminals at key locations around Metropolitan Melbourne including Tottenham, Somerton and Dandenong are protected.’ and ‘Improving the freight and logistics network to optimise freight handling.’ (Clause 12. 04‐2 emphasis added) ƒ This logistics use is one of two types of industrial development identified as ‘most suitable’ in Structure Planning for Dandenong South. ƒ The Salta land meets key criteria for an inland port.

Council did not see the need to specifically recognise the potential for an inland port because it is a relatively innocuous use that can be

15 Review of Port Planning published by the Essential Services Commission December 2007 16 With September 2009 being the target date to commence operations.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 28 accommodated in the proposed IN1Z. However, the 20 May 2008 version of the Structure Plan refers to a potential inland port in relation to access to the Westernport Highway and the associated working report (proposed as a reference document) indicates ‘there may be opportunity to develop an ‘inland port’ in the Lyndhurst Area given the rail location.

The Panel agrees that the proposed planning framework would accommodate consideration of an inland port. It also recognises that Salta’s expressed intention to develop their extensive holding for that purpose means the role of the planning framework in protecting this potential is not crucial. Nevertheless, the Panel considers that flagging this option in the planning framework is appropriate to ensure the potential for an inland port is not compromised or precluded by planning and infrastructure decisions. The Panel supports revision of Clause 21.03 the Structure Plan (and the associated reference document), and DPO5 to refer to the potential for an inland port at Lyndhurst, which is less emphatic about the future development of an inland port than sought by Salta.

Panel Recommendation

Revise Clause 21.03, the Structure Plan (and the associated reference document) and DPO5 to refer to the potential for an inland port at Lyndhurst.

2.1.2 The Sita Site

Sita questioned the inclusion of their waste management site in the Structure Plan. The Panel sees no reason for including the land in the Structure Plan. While the waste management site is immediately to the north of the Lyndhurst Area and forms part of the context for assessment of planning proposals, the Amendment does not propose to rezone the Sita site or include it in the proposed DPO5, DCPO or the NVPP. Nor are other elements of the Structure Plan, such as the urban design provisions, likely to be directly relevant to this site.

The extractive industry site on the northern side of Colemans Road should also be removed from the Structure Plan area for the same reasons.

Sita’s concerns relating to interface treatments are addressed in Chapter 8.

Panel Recommendation

Revise the Structure Plan to remove the waste management and extractive industry sites on the northern side of Colemans Road.

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3. Drainage

The Issues

The drainage proposals for the Keysborough Area, which are on the public record, were not contentious and therefore are not considered by the Panel.

The two key issues raised by submitters in relation to the drainage proposals for the Lyndhurst Area are: ƒ the area proposed to be taken for retarding basins is too large; and ƒ the proposal to widen the drains on the site by use of Drainage Reserves is unfair, and represents “acquisition by stealth”.

The open space potential of the drainage land is discussed in Chapter 5.

What is Proposed in the Lyndhurst Area

As exhibited, the Lyndhurst structure plan proposes that 22.9ha (3.4%) would be devoted to drainage reserves and waterways, and 44.5 ha (6.6%) would be devoted to retarding basins. Key elements of the proposed drainage system include: ƒ A 37 ha retarding basin incorporating a wetland on flood prone land on the junction of the Eastern Contour Drain and Rodds Drain on the west side of Taylors Road. This site is yet to be purchased by Melbourne Water. ƒ Two retarding basins are being constructed on 3.6 ha and 2.3 ha parcels of land within the Jayco development adjacent to Frankston‐ Dandenong Road. ƒ A 1.62 ha parcel of land to the south east of the Jayco site for a basin is yet to be purchased by Melbourne Water. ƒ Widening of the Eastern Contour Drain north from Glasscocks Road by about 40 metres to reduce the extent of the natural floodplain. ƒ Widening of the northern leg of the Eastern Contour Drain and widening of the Lyndhurst Drain comprising some 7 ha overall. This land will not be acquired by Melbourne Water but is set aside as a drainage reserve. ƒ Melbourne Water prefers road access alongside the Eastern Contour Drain to allow maintenance and visibility. ƒ Filling in the order of 1 metre will be needed on the area to be developed within the current flood plain.

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ƒ A further large retarding basin of about 108 ha south of Glasscocks Road abutting Thompsons Road outside the Lyndhurst Area. ƒ Amendment C87 proposes Public Acquisition Overlays over the retarding basins.

Policy Context

Melbourne Water manages drainage and flooding.

Ms Lees, counsel for Melbourne Water, submitted that it is not for the Panel to inquire into Melbourne Water’s powers under the Water Act. With respect to the drainage, Ms Lees submitted that the Panel’s role was confined to making recommendations as to the appropriateness or otherwise of the application of the UFZ and the LSIO and it is not for the Panel to consider land acquisition by Melbourne Water nor indeed the ‘equity’ of compensation paid by Melbourne Water (if any).

The Water Act empowers Melbourne Water, on referral of a subdivision application, to require the creation of easements or reserves for Melbourne Water’s use for the purpose of pipelines, channels, drainage and water management. No compensation is payable for such easements or reserves, where the area of the reserve will not reduce the value of the unencumbered freehold interest in the allotment by more than 10%17.

Melbourne Water’s approach to the drainage system at Lyndhurst has been to strive to maximise the land available for industrial development, which has resulted in the proposal for a large retarding basin upstream of the development area (outside the Urban Growth Boundary), and diverting the water presently flowing down Rodds Drain through the retarding basin and onwards through the Eastern Contour Drain.

The remainder of this Chapter will focus on the matters of contention.

3.1 The Area Taken For Retarding Basins

Submissions and Evidence

Miramah

Mr Singh submitted on behalf of Miramah Investments Pty Ltd, who own 71 ha within the C87 Lyndhurst Area. He expressed concerns relating to the loss of land to the Urban Floodway Zone, the need to fill land above the Top Water Level of 9.9 AHD, the level of compensation, the inequality of the

17 Regulation 6(1)(b) to the Land Acquisition and Compensation Act 1986

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 31 retention basin proposal, the previous construction of a levee bank to facilitate previous downstream development, the proposed operation of outflows from the retardation basin, and the desire of Miramah to retain the ownership of the retarding basin area for future use.

The submission set out that the previous C67 amendment has proposed no retarding basin on Miramah lands, instead retarding basins were to be provided by each upstream property at the time of the development of their property (The Panel notes that the C67 Lyndhurst Structure Plan showed a significant part of the Miramah land as Proposed Drains, Wetlands and Retarding Basins).

A series of options were submitted, including options where all the flood water was piped through the Miramah holdings and options combining a smaller retardation basin in the west of the Miramah holding in conjunction with some piping and additional retardation basins within upstream properties.

Mr Singh sought details from Melbourne Water of all the options that had been considered.

SP AusNet

SP AusNet submitted that the Thompsons Road Retardation Basin would prevent the construction of a future sub station at the southern end of their land. They also had concerns about easement rights, transmission tower locations and fair and reasonable compensation.

Jayco

One matter not resolved at the hearing is whether the Jayco retarding basins should be acquired by Melbourne Water or should be retained in the ownership of Jayco. In her closing address for Melbourne Water, Ms Lees submitted that in the former case, the whole area of the retarding basins should remain in the UFZ as exhibited. In the latter case, the size of the exhibited UFZ could be reduced to an area covering up to the 1.3m depth level (The remainder of the retarding basin would presumably adopt to zoning of the adjoining land to the east with an LSIO over any land subject to the 1 in 100 year flood event).

Mr Roger Green18 sought a further week to consider Jayco’s response.

18 Mr Green of KLM Spatial represented the Sunny Corporation Pty Ltd

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While no further submission has been received from Mr Green, the Structure Plan generally agreed by the parties, and further amended to the requirements of Melbourne Water, states (in part) under the section relating to Drainage and Retarding Basins at the Jayco site: It is yet to be determined in consultation with the owners as to whether or not this site will remain in private ownership or be purchased by Melbourne Water. Irrespective of ownership, the site will require a Floodway Zone on the majority of the site with a Land Subject to Inundation Overlay around the perimeter.

Mr Van Wyk

Mr Van Wyk’s submission queried the impact that the Thompsons Road Retarding Basin, which shares a boundary with his property at 605 Thompsons Road, would have and whether it would reduce the value of his property. Mr Van Wyk submitted that it was unfair to site the retarding basin in the Green Wedge Zone, and that it should have been contained within the C87 amendment area.

Late Submission ‐ Thompsons Road Site

A late verbal submission was made to the Panel by the Wilson and Thomas Partnership, the owner of land at 685 Thompsons Road to be acquired by Melbourne Water. The property has an area of about 83 ha, is within the Green Wedge Zone and has a minimum subdivision size of 40 ha. The latest version of the PAO requested by Melbourne Water leaves a residual area of the property of about 12 ha, too small to subdivide. The owner desired to know the rules that would apply to the residual lot, and noted that there would be no ability to subdivide and build two houses, as had been the case with the whole property.

Miss Lees advised at the hearing that Melbourne Water might consider acquisition of the whole property if that was the owner’s desire.

Therefore the options open to the Wilson and Thomas partnership appear to be to sell the whole property to Melbourne Water, or to retain the residual 12 ha. In the latter case the owner would be entitled to apply for a permit to construct a single dwelling.

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Melbourne Water

Dr McCowan’s pre‐hearing expert report, advised that19 further work for Melbourne Water, which included new hydraulic modelling and water quality modelling, had been undertaken. Based on these investigations: ƒ The preferred option consists of a 35 ha retarding basin west of Taylors Road, and a 108 ha retarding basin off Thompsons Road20. Within the 35 ha retarding basin a 25 ha wetland is proposed for water quality treatment21. ƒ The preliminary results of further two dimensional modelling have shown that additional storage within the drainage channels will reduce the size of the retarding basins required. This will certainly reduce (and possibly eliminate) the area of the SP AusNet land that will need to be acquired east of Taylors Road.

On 3 March 2008 Water Technology provided further modelling results, which reduced the amount of land required: ƒ at the Taylors Road Retarding Basin (on the Miramah land) from 37 ha to 27 ha. ƒ for the Thompsons Road Retarding Basin from 108 ha to 89.5 ha.

Melbourne Water also noted that the retarding basin in the south of the Keysborough Area is not yet locked in and should be shown on the Structure Plan diagram as cross hatched (as per the Goodman Retarding Basin at Lyndhurst).

SP AusNet land has been agreed to the reduced acquisition area and Melbourne Water have agreed to provide land (in the form of an island within the retardation basin) if necessary for a transmission tower.

3.1.1 Discussion

The Panel is satisfied that none of the options earlier considered (but rejected) by Melbourne Water offer a better solution to the exhibited proposal, either for the precinct as a whole or for Miramah. The options proposed by Miramah do not represent best practice, as the piping solutions make no provision for the improvement in water quality necessary to meet current standards.

19 Water Technology undertook a detailed review of the proposed retarding basin and wetland calculations , including a review of the earlier work undertaken by S P Goh and Associates. 20 Option 7 proposed in the earlier report by S P Goh and Associates. 21 A total wetland treatment area of 20 ha would be necessary to meet the requirements of the Best Practice Environmental Management Guidelines for Urban Stormwater. This treatment area would consist of a linear system comprising a 7 ha sedimentation basin and a 13 ha wetland.

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The Panel is satisfied that the revised work by Water Technology, reflected in the 20 May 2008 Structure Plan Diagram, has minimised the land take for the retarding basins. The post exhibition changes are underpinned by more sophisticated analysis that supports planning policy by maximising the land available for industrial development. The post exhibition changes do not disadvantage any properties and provide significant benefit (10 ha additional developable land) to the Miramah property in particular.

The desire of Miramah to retain ownership of the retarding basin land would serve little purpose. It would deny Miramah compensation for the land, while making no practical difference to the land available to Miramah for an alternative low intensity use, of the sort that is not uncommon elsewhere where a significant area of retarding basin land is only infrequently inundated. At the retarding basin on the Miramah land, the total land required has been reduced from 37 ha to 27 ha, or the approximate total land area required for water quality purposes. There would be little, if any, land in the retarding basin available to Miramah for other uses.

The Panel considers the lack of any further submission by Jayco as an acceptance of the Melbourne Water addition to the Structure plan referred to above. The Panel notes that the consultation referred to will need to be completed in time for the UFZ and LSIO provisions to be finalised before the Amendment is submitted for adoption.

Concerning the issues raised by Mr Van Wyk, the Panel is aware that the construction of a retarding basin wall close to an adjacent property can result in some adverse impact. The impact can result from changes to drainage paths on the adjacent property, inadequate construction standards that allow water to seep onto the adjacent property, overshadowing and aesthetic degradation. With good consultation and best practice construction, none of these impacts need occur.

The Panel believes that the siting of the retarding basin in the GWZ is a desirable outcome, as it is a use consistent with the purpose of the zone, and will maximise the area available for industrial development within the Urban Growth Boundary.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 35 3.2 Securing Land to Widen the Eastern Contour Drain

The report by Mr S Rowland of GHD22 noted that the redirection of Rodds Drain increased the impact on Goodman’s land by contributing to the need for a 40 metre wide widening of the Eastern Contour Drain.

Mr Morris highlighted the inequity of providing compensation for the small retarding basin proposed on the Goodman land, but not for Goodman land required for the widening of the Eastern Contour Drain. He submitted that Goodman would accept the proposals if there was fair compensation for the land involved in widening the Eastern Contour Drain.

Pellicano relied on the Goodman submission as far as the issue of fair compensation for the land involved in widening the Eastern Contour Drain was concerned.

Melbourne Water

The PAO now required by Melbourne Water is shown in Figure 6.

Figure 6 Revised Public Acquisition Overlay Lyndhurst (19 April 2008)

22 GHD February 2008, Goodman Property Services (Aust) Pty Ltd, Glasscocks Industrial Estate Panel Report. This expert report was provided prior to the Hearing but Mr Rowland was not called to give evidence at the Hearing.

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The area required for widening the Eastern Contour Drain north of Glasscocks Road was included in the area to be acquired by Melbourne Water on the basis that drainage system redesign (see above) now provided for a storage function in this part of the drain.

This outcome has satisfied Goodman.

With respect to the widening of the Eastern Contour Drain and the relocated Lyndhurst Drain, Melbourne Water is content for the reference to this reservation to be removed from the Structure Plan as it will be imposed at the time of development of the Pellicano land.

The Panel sought advice from Melbourne Water whether that part of the drain that runs East–West on the south edge of the Pellicano land could serve a flood storage function as well as the carriage of flood water, as is the case for the widened Drain within the Goodman land.

In a new Appendix A to the Water Technology report dated 6 June 2008, the question has been thoroughly explored. The critical design factor is the location of the Pellicano section of the Drain with respect to other floodplain and drainage features adjoining it. Two ways to use the potential storage volume within the Pellicano section of the widened Eastern Contour Drain are: ƒ maintain the existing top water level of the Miramah retarding basin, and adjust levees and adjacent filling to suit; ƒ lower the water level and provide the storage in both downstream and upstream channels, with extra excavation in the retarding basin.

These solutions required either raising the levee and additional fill for 24 ha of land on the north side of the Drain for the first option, or lowering of the bottom level of the Miramah retention basin. The cost of these solutions varies from $6 to $9 million, and they have significant impacts for native vegetation protection.

3.2.1 Discussion

The Panel recognises that, from Melbourne Water’s perspective, the approach to acquisition of private land for drainage purposes is outside the scope of the Panel.

However, it is not only the acquisition that is at stake here, but a complex chain of drainage and open space issues that do raise the issue of overall equity between the various parties to the Amendment.

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The Panel believes that the approach to gaining the use of the land should be driven by principles. A fundamental principle here should be that if land is to be taken by a public authority for a public purpose or to be used exclusively for a public purpose, it should be acquired. The distinction being made by Melbourne Water, between land required for a retarding basin and land for a drain, appears to be the product of long established practice but does not sit comfortably with the principle above. The further distinction between a drain with storage capacity and one without (or with limited storage capacity) is even harder to reconcile with the suggested principle. The Panel notes with concern that Melbourne Water’s response to questions about the equity of the current practices was to the effect that the Water Act did not require it to be fair.

The Panel accepts that neither of the two solutions suggested by Water Technology for providing significant storage in the drain to the south of the Pellicano land is practical or desirable. However the question asked by the Panel, whether there is any storage capacity in the drain to the south of Pellicano’s land under the present arrangement of levels and berms (and alternatively with the drain having the same cross section as that where it traverses the Goodman land) has not been answered.

The decision by Melbourne Water to acquire the widening for the Eastern Contour Drain on the Goodman land on the basis that it provides some storage function leaves open the question whether the proposed drainage reserve on the Pellicano land has some storage function. As this issue has not been clarified by Melbourne Water, the Panel believes it desirable to adopt the earlier suggestion made by Mr Morris23, and agreed by Melbourne Water, that the Structure Plan diagram legend be changed from “Drainage Reserve” to “possible additional Drainage Reserve”. The issue of the degree of storage function in the widened Eastern Contour Drain is left open, and will no doubt be a consideration at the time the Drainage Scheme is implemented by Melbourne Water.

3.3 Compensation for Land Acquired

As noted above, a number of submitters were concerned with the basis for compensation of land to be acquired by Melbourne Water (that is, where the land is included in the PAO).

The Panel completely supports the submission by Ms Lees that the issue of fair compensation is outside of the Panel’s role. Compensation for land acquired under a PAO is governed by the procedures provided in the Land

23 at Day 3 of the hearing

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Acquisition and Compensation Act 1986. Established valuation principles govern the sum paid, and the valuation is based on the underlying zoning (which, if the Amendment is adopted will generally be Industrial 1 Zone with the GWZ applying south of Glasscocks Road), with recognition of applicable constraints (the existence of a LSIO for example).

3.4 Conclusions and Recommendations

The Panel concludes that the revised scheme for retarding basins within the C87 area (and the associated revised PAO) has maximised the land available for industrial land, and it is supported.

Panel Recommendations

Adopt the revised scheme for retarding basins as tabled by Melbourne Water.

Revise, in accordance with the May 2008 documentation provided by Melbourne Water, the exhibited UFZ and PAO for the Thompsons Road Retarding Basin, the retarding basin on Miramah land, and the Eastern Contour Drain south of the Miramah retarding basin.

Reduce the size of the exhibited UFZ associated with the retarding basins adjacent to the Dandenong Frankston Highway (on Jayco land) to an area covering with a 1.3m depth or more during a 1 in 100 year flood. The zoning of the adjoining land to the east should apply to the remainder of the exhibited UFZ and an LSIO should apply to any of this land subject to the 1 in 100 year flood.

Amend the legend on the Lyndhurst Structure Plan diagram that refers to “35m drainage reserve” to “possible additional drainage reserve.

Revise the retarding basin in the south of the Keysborough Area on the Structure Plan diagram so that it is cross hatched with the annotation in the legend ‘greater flexibility as subject to detailed design at Development Plan stage’.

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4. Native Vegetation

The Issues ƒ Do Habitat Zones 8 and 11 qualify as patches? ƒ What area is necessary for native vegetation protection and recruitment on the Salta land to offset the proposed removal of scattered trees? ƒ Are scattered trees at the southern end of the Keysborough Area, adjoining the Eastlink reserve within private property? ƒ Will sensitive native vegetation be secured in the long term?

4.1 Background

The planning scheme mechanisms proposed to implement the Native Vegetation Precinct Plan are addressed in Chapter 10.3.

Policy Context

Planning policy24 requires a “net gain” approach to the management of native vegetation. A three step approach requires that the removal of native vegetation must be avoided wherever possible, minimised if avoidance is not feasible, and where it is necessary to remove some vegetation offsets are to be provided involving protection of other similar vegetation and recruitment of additional plants. Further publications amplify the way planning applications are assessed25, revegetation standards26 are set, and the calculation of net gain requirements27.

The policy’s “whole‐of‐landscape” approach means that the actual spatial position of individual patches of native vegetation is important, along with their size, quality and linkage to neighbouring remnants. Mapping of native vegetation has established Ecological Vegetation Classes (EVCs) throughout

24 Clause 15.09-2 requires planning and responsible authorities to have regard to Victoria’s Native Vegetation Framework - A Framework for Action. DNRE 2002. 25 DNRE (2006) Native Vegetation Guide for the assessment of planning permit applications. Victorian Government, Department of Natural Resources and Environment, East Melbourne. 26 DNRE (2006) Native Vegetation Revegetation Planting Standards. Victorian Government, Department of Natural Resources and Environment, East Melbourne. 27 DNRE (2006) Native Vegetation Gain Approach — Technical basis for calculating gains through improved native vegetation management and revegetation. Victorian Government, Department of Natural Resources and Environment, East Melbourne.

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Victoria, and within each region the scarcity of remaining EVCs has been assessed. This assessment of scarcity assists in establishing the conservation significance of native vegetation, and the quantum of required offsets.

The Native Vegetation Precinct Plan (NVPP)28 is a new native vegetation management tool. The NVPP allows an integrated, strategic approach to applying the net gain policy over multiple titles at the Planning Scheme Amendment stage. While a number of NVPPs have been prepared and exhibited, the C97 amendment is the first to be evaluated by a Panel.

What is Proposed?

The remnant vegetation within the C87 Amendment area is now limited to that listed in Table 1 below29, which also lists the conservation status of the Ecological Vegetation Classes (EVC): Table 1 Remnant Vegetation

EVC Description Conservation Status Plains Grassy Woodland modified patches on roadside verges high and Swamp Scrub Heathy Woodland two patches in the north of the Lyndhurst site medium30 Plains Grassy Wetland modified patches in the north of the Lyndhurst site very high31 Scattered River Red-gums a large cohort of large and very large old trees high

The Lyndhurst Area Native Vegetation Precinct Plan map32 (Figure 6 below) identifies the scattered trees and habitat zones to be retained and those to be removed.

It should be noted that scattered trees within Melbourne Water retention basin areas have not been included in the Net Gain calculations. Melbourne Water must manage the development of the retention basins so that these scattered trees are retained, or where they are removed, appropriate offsets are to be provided. Melbourne Water does not offer retained trees as offsets to third parties.

28 DSE (2006) Preparing a Native Vegetation Precinct Plan, VPP Practice Note. State of Victoria, Department of Sustainability and Environment. 29 Pages 17 and 19 Native Vegetation Precinct Plan Dandenong South Industrial Area, Practical Ecology Pty Ltd Revised February 2008 30 the conservation status is “medium” because of its scarcity throughout the southeast of Greater Melbourne. 31 the Conservation Status is “very High” because the habitat score is greater than 0.4‡ 32 DSE, 14 May 2008, Native Vegetation Precinct Plan, Lyndhurst Precinct, Draft for discussion purposes.

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Figure 7 Native Vegetation Precinct Plan, Lyndhurst Precinct

The habitat zones are described in Table 2 below. Table 2 Habitat Zones to be retained or removed

Habitat Zone EVC Description HZ 1 Retained Heathy Woodland 0.41 ha on 100 - 110 Colemans Road HZ 2 Retained Heathy Woodland three patches of 0.62, 0.24 and 0.23 ha on 80-100 Colemans Road HZ 3 Retained Plains Grassy Woodland 0.17 ha on the eastern end of Glasscocks Road HZ 3 Plains Grassy Woodland 0.66 ha on Glasscocks Road Removed HZ 4 Retained Plains Grassy Woodland 1.4 ha on Glasscocks Road HZ 5 Retained Plains Grassy Woodland 0.79 ha on Taylors Road HZ 6 Retained Plains Grassy Woodland 0.78 ha on Bayliss and Taylors Roads HZ 7 Retained Plains Grassy Woodland 0.62 ha adjacent to the Eastern Contour Drain corner HZ 8 Retained Plains Grassy Wetland 0.14 ha adjacent to the corner of Bayliss Road and Westernport Highway service road HZ11 Plains Grassy Wetland 0.17 ha on the gas pipeline easement within the Salta Removed land

The general approach to the NVPP has been to retain native vegetation wherever possible, whilst striking a balance between its preservation and the

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 42 competing need for additional industrial land. The habitat zones in road reserves33 will be retained in Glasscocks Road and Taylors Road by relocating the road outside the existing reserve. Offset areas for the 0.66 ha of Plains Grassy Woodland on Glasscocks Road can be found on other areas of the same EVC within the Lyndhurst site, including the adjacent patches between the existing alignment of Glasscocks Road and the proposed alignment some 60 metres to the north.

Offset areas for the 0.17 ha of Plains Grassy Wetland on the gas pipeline easement within the Salta land are available on HZ8, although it is possible (though not probable) that the proposed rail spur line to the inland port will cross HZ8.

The removal of scattered trees has been limited to 15% of the total, allowing (generally) offsets to be provided on site. Trees around the edge of sites have been generally retained but removal of some large old trees within the body of larger areas has been accepted to facilitate industrial development. In particular, the removal of eight very large old trees away from the edges of the Salta site is proposed to facilitate the development of an inland port. The offset obligation of protecting 40 existing very large old trees can be achieved by protecting 28 very large old trees within the Salta land, and a further four on land within the Lyndhurst site, and one at the Keysborough site. Therefore seven very large old trees must be found outside the C87 area for protection. The 13 large old trees to be protected outside the Salta land can be found within the C87 Lyndhurst Area.

Figures 3 and 4 show the revised boundaries proposed by the Planning Authority for the conservation areas.

The changes between the DSE diagram dated 14 May 2008 and the 20 May 2008 revised Lyndhurst Structure Plan Diagram (Figure 4) include: ƒ Revised treatment of vegetation at 80–120 Colemans Road; ƒ Taylors Road is realigned south of Bayliss Road east of the vegetation (but potentially encroaching on Scattered Tree No 203); ƒ A small decrease in the area allocated for scattered tree protection ‐ double counting was avoided where overlapping canopies occur.

Figure 10 (the May 2008 DCP Figure 10) identifies areas in dark green as Proposed Open Space.

33 Along Glasscocks Road, Taylors Road, Bayliss Road and Perry Road

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 43 4.2 Do Habitat Zones 8 and 11 Qualify as Patches?

4.2.1 Habitat Zone 8

Reports and Evidence

Mr Fairbridge34 recommended that the area mapped as potential Plains Grassy Wetland be provisionally protected in the Structure Plan pending an assessment when the site is inundated and the outcome of the EPBC nomination is known35. He set out management options for the patch as follows: Protection of this zone could be incorporated into a habitat zone associated with two very large, healthy, hollow‐bearing trees (shown on Figure 3). A small patch of Plains Grassy Wetland (shown on Figure 3) was identified on private land in the current survey. This patch is approximately 3652 m2 in area and is associated with a small stand of River Red‐gums on the Bayliss Road reserve. This patch was assessed as having very high conservation significance and will require protection under Net Gain and its Flora and Fauna Guarantee listing. The small size of this patch and its location, lends itself to protection. A habitat zone, based on principles shown in Figure 3 could be incorporated into an entrance to the development off the Westernport Freeway service road.

Mr Lane’s evidence stated that during a site inspection in summer 2008 the vegetation was deemed to qualify as ‘degraded treeless vegetation’ as it was less than 25% indigenous cover and lacked most of the character species of the Plains Grassy Wetland EVC. The area was indistinguishable from many areas of damp pasture in this part of Melbourne and its damp condition is likely to be due in part to excavation on the south side of Bayliss Road for road drainage works.

Late in the hearing, Salta advised that it was probable that the rail spur for the inland port could avoid this patch.

Discussion

The Panel inspected HZ8 from the north‐east corner of Bayliss Road and observed that the land slopes markedly to the north. This natural slope had been cut off by the earthworks and drainage lines associated with the Blue

34 Practical Ecology Pty Ltd (August 2006) Page 48. 35 His report cited a personal communication from Mr D Cook that patches of Plains Grassy Wetland are likely to regenerate following inundation.

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Circle Southern Cement facility and Bayliss Road. The Panel is inclined to favour the view of Mr Lane, that the drainage of the area has been substantially changed since those works were constructed (in the 1980s it is thought). Whether, as a result, the area was originally a natural Plains Grassy Wetland patch is not so clear.

Overall the Panel is not satisfied that HZ8 is a patch. As it has associated large old trees and some Heathy Wetland vegetation, the Panel agrees that it should be protected and enhanced to the extent possible after the railway spur is constructed. However it should not be treated as a patch, nor should offsets be required for any part of it that may be removed for the railway spur line

4.2.2 Habitat Zone 11

Map 1 of the NVPP (May 2007 version) shows this area as HZ11 (Habitat Zone 11) covering an area in the order of 1.2 ha straddling the gas pipeline easement in the Salta land in the north east of the Lyndhurst site. The EVC is listed under the Flora and Fauna Guarantee Act 1988, and is also nominated for listing under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. The major part of the EVC is within the easement for the gas pipeline, where a permit is not required for the removal of native vegetation, and hence is not subject to offsets.

Reports and Evidence

Evidence from Mr Kern referred to an earlier 2004 study by Parsons‐ Brinkerhoff that identified remnant areas of Plains Grassy Wetland to the east of Taylors Road and south of Bayliss Road. Since that date cultivation of some 24 ha has effectively cleared any patches of Plains Grassy Wetland within the cultivated area. Practical Ecology36 reported that in 2006 indicator species of the EVC were found in low lying areas of the site previously mapped as Plains Grassy Wetland, although these patches were difficult to define, and indigenous cover was less than 10%. The 2004 study also identified an area of potential Plains Grassy Woodland to the east of the cultivated area, and Practical Ecology identified a number of characteristic species there, though the area was dominated by pasture species, and less than 25% of native species were present. The report quoted D. Cook, who advised that a period of inundation followed by up to 3 months for plant species to regenerate would be required before a site could be properly assessed.

36 Practical Ecology Pty Ltd (August 2006) Flora and Fauna Assessment for Planning Scheme Amendment C67, Dandenong South, Victoria. Pages 23 – 25

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A description of the patch in Appendix 3 of the NVPP (May 2007) indicates that while no “present” Plains Grassy Wetland was found, in 2005 it was mapped by M McHugh of Biosis Research as including a 0.17 ha patch of Plains Grassy Wetland and 0.62 ha of “potential” Plains Grassy Wetland. A discretionary default habitat score37 of 0.45 was applied. The patch was accorded a default habitat score of 0.094 hha.

Mr Lane’s evidence on behalf of Salta Properties Pty Ltd stated that during a site inspection in summer 2008 the vegetation was deemed to qualify as ‘degraded treeless vegetation’ as it was less than 25% indigenous cover, lacked most of the components of the Plains Grassy Wetland EVC and comprised opportunistic Juncus sp. (a common pasture weed). At the hearing, Mr Lane stated that most of HZ11 is within the pipeline easement, and what persists of the sedges is within the pipeline depressions. He queried the likelihood of the margins of the pipeline easement being a viable EVC. Further, he stated that the gas pipeline construction means the area is no longer natural.

Discussion

The Panel is inclined to the view of Mr Lane, that any small areas of Plains Grassy Wetland fringing the gas pipeline easement are unlikely to be viable. The Panel is not satisfied that HZ11 meets the definition of a patch of Plains Grassy Wetland, and does not believe that it should be treated as one. Therefore, offsets are not required.

The Panel is not satisfied that HZ11 is a patch. Offsets for its removal are therefore not required.

4.3 Scattered Tree Offsets on the Salta Land

The position with respect to scattered trees on the Salta land is established in the NVPP38 and is set out in Table 3 below.

37 DNRE (2006) Native Vegetation Guide for the assessment of planning permit applications. Victorian Government, Department of Natural Resources and Environment, East Melbourne. 38 Native Vegetation Precinct Plan, Practical Ecology Pty Ltd, Revised May 2008

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Table 3 Scattered trees on the Salta land retained, removed and offset requirements

Very Large Large Old Medium Total Old Tree Tree Old Tree Number retained 28 (25)1 11 (12)1 2 (1)1 41 Number to be removed 8 6 0 14 Required number to be protected 5 x 8 = 402 4 x 6 = 242 0 64 Trees to be protected not available on 12 13 0 25 Salta land Available trees to be protected on other 4 (+ 1 at 13 0 18 Lyndhurst land Keysborough) Trees to be protected that must be found 7 0 0 7 outside the C87 area Enhancement planting for protected trees 50 x 28 = 1400 50 x 11 = 0 1950 — trees and shrubs39 550

Enhancement planting for protected trees 300 x 28 = 300 x 11 = 0 11,700 — ground storey plants 8,400 3,300 Recruitment plant targets 30 x 8 = 240 20 x 6 = 120 0 3603

Note 1 Figures in italics represent a count of trees from the tree list supplied in May 2008. While the total number of trees to be retained in the Salta properties was 41 in each case, three of the May 2008 listed trees were reported with a zero cm dbh, confirmed at the Hearing as representing dead trees. These numbers will need to be checked, but for the present report the number shown in the NVPP (20 May 2008) is used for illustrative purposes. Note 2 The balance of 12 Very Large Old Trees and 13 Large Old Trees to be protected must be found outside of the Salta land. Note 3 15% (i.e. 54 plants) must be trees.

The diameter of tree protection zones should be twice the diameter of the tree canopy to meet Net Gain policy. A default area of 1024 m2 has been assigned for the purpose of estimating tree protection costs40.

The requirement for offsets for removed trees41 is: ƒ for the 8 very large trees removed 40 existing trees must be protected and 240 new plants recruited; ƒ for the 6 large trees removed 24 existing trees must be protected and 120 new plants recruited;

40 Dandenong South Native Vegetation Precinct Plan Background Report, Practical Ecology Pty Ltd, Revised May 2008, Page 20 41 Ibid Pages 14 and 17.

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ƒ for each tree protected as an offset, enhancement planting of 50 trees and shrubs, and 300 ground storey plants. These requirements for understorey planting can be in tree protection zones.

The Lyndhurst Structure Plan (Figure 5) shows the areas within which scattered trees will be protected, and offsets provided, as purple areas with the legend “conservation area not developable includes tpz” (an abbreviation of “tree protection zone”).

The exhibited documents did not quantify the area of land require to accommodate offsets. The Panel has noted the quantification prepared for Salta, and made its own estimates by scaling from the plans provided.

Mr Kern’s evidence provided some further insight into the way the “Private Vegetation Reserves” have been arrived at. He stated42: The intention was to ensure scattered trees are retained in reserves large enough to maintain ecological function and serve as habitat nodes or corridors for fauna species movement across the landscape. This necessitates large reserves with large areas of revegetation to connect the retained trees and allow recruitment of Red‐gum seedlings over time, hence the relatively large areas set aside as conservation zones.

Mr Kern also stated that 1024 m2 was optimal for the protection of large old trees, and hence that 9.5 ha would be required for the 41 trees to be protected and the 54 canopy trees comprising part of the recruitment.

Evidence from Brett Lane developed an indicative tree protection area by ascribing the default value of 450 m2 to each of the 41 trees being retained on the Salta land (1.85 ha) and a further 450 m2 for the 15% of the 360 recruited plants, i.e. 54 trees taking an area of 2.43 ha. The total area for the tree protection by these calculations is thus 4.28 ha, which is compared in the 16.2 ha area he calculated as private vegetation reserve on the Salta land43.

Salta presented five options as alternatives to the arrangement shown in the NVPP and Structure Plan. These ranged in area from 8.4 ha upwards.

Salta’s Option 4 (Figure 8) is similar to the DSE plan but with an area of land centred on the dead tree number 205 excluded from the vegetation reserve, and the southern connecting strip of 40 m in width. Option 5A, which varied Option 4 by widening the connecting strip to 90 metres (also shown in Figure

42 Expert Witness Evidence, Lincoln Kern, Ecological Consultant and Managing Director, 19 February 2008, Page 19 43 The Panel arrived at an area of 18.45 ha for the total conservation reserve area on the Salta land, by scaling from the submitted plans – see Table 4.

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8) was forwarded to the Panel in mid June 2008 to illustrate the option ultimately favoured by Salta at the hearing. Option 5A also tightened the reserve area around the external perimeter of the retained scattered trees44. The Panel’s scaling of plans suggests the following differences in the approximate reserve areas: the DSE preferred option had an area of 17.5 ha, Option 4 had and of 14.6 ha and Option 5A had an area of 13.3 ha.

Figure 8 Salta’s Option 4 and 5A for the reserve in the south west corner.

DSE strongly opposed the Salta proposals. In its closing submission45, DSE addressed the issue of the ecological rationale for a large reserve and indicated the implications of the reduced POS contribution now proposed by Council were: ƒ increased edge effects, particularly in the vicinity of the major thoroughfare that is Glasscocks Road; ƒ reduced opportunities for long term restoration of the scattered trees and woodlands;

44 Neither the DSE proposal nor any of the Salta proposals allow for the relocation of Taylors Road on the east side of the existing road reserve. The area of the native vegetation reserve taken by the relocated Taylors Road is 0.93 ha. Neither DSE nor Salta remarked on this further reduction and the Panel has assumed that the incursion for the relocated Taylors Road will simply reduce the reserve area for all proposals. 45 Para 8, DSE Closing Submission, 26 May 2008

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ƒ increased difficulty in managing pest plants and animals.

4.3.1 Discussion

The Panel has had some difficulty in understanding the technical basis for the objections by DSE to a reduction in size of the vegetation reserve on the Salta land. The principles on which DSE relies are well understood, and supported by the Panel, namely that large areas are desirable for habitat protection. However when pressed to provide a more detailed statement of the ecological requirements to achieve conservation objectives, the responses from DSE were so general as to offer little assistance to the Panel.

For example, in response to the critical question of how wide the connection between the east and west sides of the large Salta conservation area should be, DSE responded at first with a value of 200 metres. When it was pointed out that the central and eastern portions of the area was only approximately 240 metres in depth, and that corridors for the protection of scattered trees in the planning for C67 were generally from 60 to 90 metres wide, the response was reconsidered. It may be that substantial errors in the graphical scale of the NVPP 14 May 2008, Lyndhurst Area Diagram46 contributed to the confusion. Nevertheless a smaller distance of about 90 metres was then put forward verbally, but ultimately no reduction was agreed by DSE.

Can a precise area be set for the retention of scattered trees, their enhancement, and the offsets for scattered trees that are removed?

The components of the desired area are detailed in Mr Kern’s remarks (see above) and can be summarised as follows: ƒ twice the crown diameter for retained large old trees; ƒ an area sufficient for the enhancement planting of 50 trees and shrubs and 300 ground storey plants for each retained large old tree; ƒ an area sufficient for the 30 recruited plants for each Very Large Old Tree, and the 20 recruited plants for each Large Old Tree, noting that these recruitment plants must contain 15% trees; ƒ to ensure scattered trees are retained in reserves large enough to maintain ecological function and serve as habitat nodes or corridors for fauna movement across the landscape.

46 For example, the distance from Taylors Road to Westernport Highway scales 1000 metres but is in fact approximately 1600 metres. Even the Lyndhurst Structure Plan diagram tabled by Council on the second last day of the hearings has an incorrect graphical scale, and the Panel draws Council’s attention to the need to review all graphical scales in the Amendment drawings.

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As noted earlier, Mr Kern stated that 1024 m2 was optimal for the protection of large old trees, and hence that 9.5 ha would be required for the 41 trees to be protected and the 54 canopy trees comprising part of the recruitment. Mr Kern clarified that the 1024 m2 per tree allowed sufficient room for the enhancement and recruitment targets.

The Panel notes that several other practical considerations may amend the precise value of 1024 m2 per large tree protection areas – existing tree canopies may overlap, the protection area of twice the canopy will exceed 1024 m2 in some cases and less will be required in others, and there will be areas between the existing tree protection areas and trees to be recruited as offsets.

The Panel also notes that an allowance for public open space provision within the reserve area is sought by Salta (and the other private owners) and is accepted by DSE. As detailed in Chapter 5, the entire reserve area can be considered as serving both recreation and nature conservation, with the recreation component designed to provide paths, seating and some nodes. The essential point here is that the provision for compatible recreation functions does not change the reserve requirement.

The Panel must consider whether a case has been made for the magnitude of the offsets derived through a quantitative application of crown diameter, enhancement and recruitment requirements, taken together with the application of the fourth dot point (to ensure scattered trees are retained in reserves large enough to maintain ecological function and serve as habitat nodes or corridors for fauna species movement across the landscape) by the provision of the reserve area advocated by DSE, or some version of the Salta options.

The Panel notes that with respect to “Scattered Trees”, the VPP note47 indicates that that Regional Native Vegetation Plans establish the strategic and targeted outcomes for native vegetation in each Catchment Management Authority Region. The NVPP ‘protect and recruit offsets’ are consistent with PPWCMA requirements48 for very large and large old trees. The PPWCMA also requires the vegetation to be created by the offset to have “Similar or more effective ecological function and land protection function as impacted by the loss”49

47 VPP Practice Note “Assessing applications involving native vegetation removal” 48 Port Phillip Catchment Management Authority Native Vegetation Plan 2006 49 Appendix 3 Port Phillip Catchment Management Authority Native Vegetation Plan 2006

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It was the indeterminate area to provide for the final dot point – the ecological function – that was the source of conflicting views.

Firstly, with regard to increased edge effects, particularly in the vicinity of Glasscocks Road, the Panel notes that the 90 metre connecting width at the base of the “U” is about the same as the widest part of the long 4.8 ha reserve south of the relocated Glasscocks Road.

Secondly with regard to reduced opportunity for long term restoration of the scattered trees and woodland. This is another way of expressing the desire for maximising the opportunity for ecological function. The Panel considers the Salta proposal generally meets the intention to ensure scattered trees are in reserves that are large enough to maintain ecological function, including recruitment of Red‐gum seedlings over time, and serve as fauna habitat nodes or corridors. However, the margin around the scattered trees on the perimeter of reserves is tight. The Panel prefers the more generous margin provided in Option 4, that is, it favours a combination of Options 4 and 5A.

The last concern raised by DSE, relating to the control of pest plants and animals, does not seem to the Panel to differ to any marked degree between any of the options. It will need to be addressed in the detailed design and ongoing management of the reserve, whichever option is adopted.

The Panel is conscious that some very important very large old scattered River Red gums have been allowed to be removed to advance strategic policy to expand the supply of industrial land, provide for large parcels of developable land and preserve the potential for the development of an Inland Port.

The Panel has reviewed all the evidence and considered the physical position of existing trees and the proposed reserve boundaries and is satisfied that in the present case the requirements for ecological function are sound. The Panel concludes that Option 5A with the more generous margins of Option 4, provides sufficient area to satisfy the protection and enhancement requirements for native vegetation loses on Salta land, save, of course, for the protection and enhancement of 12 existing trees elsewhere.

The Panel concludes that an option having the 90 m connection of Salta’s Option 5A and the more generous margins of Option 4 should be adopted as the native vegetation reserve in the SW corner of Salta’s land50.

50 The option favoured by the Panel provides a reserve area approximately 2 ha less than the DSE preferred option and approximately 1-2 ha greater than the Salta options 4 and 5 A respectively. This approximate assessment is based on Panel scaling of tabled plans.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 52 4.4 Securing Sensitive Native Vegetation In the Long Term

4.4.1 Patches on Road Reserves and Scattered Trees

The protection of native vegetation is well secured through the provisions of the NVPP, the ESO and Section 173 Agreements to secure offsets51.

Nevertheless a significant policy consideration is whether long term protection is best achieved if the land in question is in public ownership. It is widely recognised that public ownership of native vegetation is a stronger, more secure basis for the long term protection of ecological values. The DSE guidelines52 attribute double the typical range of points for vegetation in a secure Municipal Reserve for conservation purposes compared to the same vegetation in private ownership. Practical Ecology August 2006 also supported public ownership of protected vegetation, stating: “The goal of the Vegetation Precinct Plan should be to retain the majority of scattered trees as public open space, providing for the adequate protection and management of these remnants through local government policies and management plans.” (Page 43)

This strong preference for public ownership of land with important native vegetation was also expressed in Villawood Properties Pty Ltd v Greater Bendigo City Council [2005] VCAT 2703, in which the Tribunal commented: 55 …If there is highly significant vegetation on the land that should be protected, then this part of the land should be brought into public ownership where its long‐term management and protection can be assured

Two of the major landholders at Lyndhurst, Salta and Goodman53, have indicated a willingness to transfer the ownership of the of conservation areas to the City of Greater Dandenong. The City of Greater Dandenong has indicated that it is prepared to accept such land provided that: ƒ The reserve makes some contribution to Public Open Space; ƒ Good access is available; and ƒ Funds are provided to it to undertake the revegetation necessary to satisfy tree protection and offsets for recruitment requirements.

51 BL&A February 2008, Report 8026, page 7 52 DNRE (2006) Native Vegetation Gain Approach — Technical basis for calculating gains through improved native vegetation management and revegetation. 53 Goodman’s submissions were on the basis that the land transferred would satisfy its POS contribution obligations.

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Discussion

The Panel notes that Goodman do not propose to remove trees and therefore transfer of their land would not be associated with any direct obligations to pay for development costs (although the cost of developing part of the land designated as POS would be funded by the DCP equalisation process). It is anticipated that the Goodman reserve will provide for some of the offsets for trees removed from the Salta property. Before the Amendment is adopted, it should be confirmed that these Salta offsets will be provided and that the combination of the POS contribution for reserve development and offset obligations satisfy Council’s funding requirement for transfer of the ‘purple’ Goodman land. The Panel assumes that this matter is capable of being resolved through negotiation between the parties.

The Panel concludes that native vegetation reserves should be transferred to Council’s ownership and ongoing management, provided adequate funds are available for Council to undertake the necessary revegetation (and development of POS).

4.4.2 Patches of Heathy Woodland Adjoining Colemans Road

There are patches of Heathy Woodland, totalling 3.4 ha in properties 80 – 120 Colemans Road are summarised in Table 4, and Figure 9 shows the location of the patches. Table 4 Heathy Woodland Patches at Lyndhurst

Property - Colemans Road Heathy Woodland patches (HA) Habitat Score 80 0.6263 90 0.8339 0.24 (1.6918 ha) 100 0.2316 110 & 120 1.7 0.41 (1.7 ha) Total 3.4

Pat Ville constructions engaged with DSE in a process to establish the requirements to protect native vegetation while enhancing the development potential of the land. This resulted in the drawing54 tabled at the Hearing showing approximately half of the 1.2 ha property available for development.

The Panel expressed concern during the hearing about the future options for 80 ‐ 120 Colemans Road.

54 Abzeco Pty Ltd, Proposed alignment of rezoning for discussion, 80 Colemans Road

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 54

Figure 9 shows the vegetation on 80 ‐ 120 Colemans Road, submitted on the penultimate day of the hearing. The figure is labelled Option 1, and DSE advised that offsets can be balanced over 80 ‐ 120 Colemans Road. An Option 2 was also tabled, showing less clearing at 120 Colemans Road, but this was not favoured by Council.

Figure 9 Vegetation on 80 ‐ 120 Colemans Road

After the Hearing had concluded, further correspondence and reports from Richard Rogalsky, Abezco and DSE, confirmed agreement between the parties on a native vegetation proposal for 80 Colemans Road. The proposal is similar to the hatched area on Figure 9, except that nearly all the vegetation on the western half of the lot is cleared. A net gain target of 0.0567 ha is required to offset the clearing, and it can be provided (with a small excess) on the retained vegetation area at 80 Colemans Road.

In a written submission, Mr Booth suggested that the two Heathy Woodland reserves should be connected to one another, to increase their viability.

Discussion

The advice concerning 80 Colemans Road from DSE clarifies for the Panel that a proposal for 80 Colemans Road can be achieved that will allow both development and native vegetation net gain, meeting the needs of both DSE and the owner. However, the development options for the properties on Colemans Road will require further consideration to integrate planning and environmental considerations in a holistic manner.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 55

Unless an arrangement of the sort shown in Figure 9 is adopted, the future of 120 Colemans Road is unclear. While the present owner, who is elderly, wishes to remain at his home for the remainder of his life, it is hard to see it attracting a buyer in the future if the current use becomes non‐conforming, the site is surrounded by industrial development and no development is allowed on the property. In such an eventuality, the protection of the native vegetation would be most insecure.

While in general the proposal in Figure 9 may well leave the owners better off than they would be the case under the exhibited plans, it is essential that the owners are consulted on the development framework for their land. At this stage several of theses six owners have not had the opportunity to comment on the proposal set out in Figure 9 above.

Council has submitted that they do not intend to purchase conservation areas along Colemans Road and they are considered to have little utility for POS due to conservation constraints, limited direct access and isolation from the POS network. However access could be provided by easements from Colemans Road. The Panel believes Council ownership of the Heathy Woodland patches is desirable if suitable terms can be negotiated.

The Panel agrees that it would be desirable to link the two patches of Heathy Woodland with a connecting corridor of about 50 metre width (the same width as the narrowest part of the patch at 90 Colemans Road) across the cleared lot between 100 and 110 Colemans Road.

The Panel supports the Council’s desire for the Colemans Road properties with heathy woodland vegetation to be treated together in a single development plan. However, while it is not the role of this Panel to undertake a an assessment of the specific development proposals put forward for 80 Colemans Road, it is noted that the significant work undertaken in relation to that property has resulted in a level of agreement relating to approach to the protection of native vegetation on the property. The owners of 80 Colemans Road have been active participants in the Panel process and this means that the Panel’s concerns relating to consultation do not apply to this property. In these circumstances the Panel considers it would be unreasonable to delay development of 80 Colemans Road pending the outcome of development planning processes for 90 – 120 Colemans Road.

Given the importance of securing the long term future of the Heathy Woodland remnants on these properties, the limited viability of the individual properties for industrial development, and the fragmentation of ownership, the Panel believes it is important that Council takes a leadership role in working with the owners to prepare a development plan for the area. The need for this further work should be highlighted in the DPO and the

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 56

Structure Plan. 90‐120 Colemans Road should be excluded from the NVPP (and the DCP POS equalisation mechanism). This matter is further discussed in Chapters 5 and 10.

4.5 Scattered Trees in the South of the Keysborough Area

A submission on behalf of Mr Huy Taing, who was a purchaser under contract for Lot 2 on PS 603443D at 345‐385 Perry Road Keysborough, questioned the location of the strip of native vegetation at the south east boundary of the property. On the penultimate hearing day, the Responsible Authority confirmed that no “scattered trees” are on Mr Huy Taing’s land.

It has also been confirmed that trees 43 and 70 are dead and the NVPP should be updated accordingly. There is no need for either an ESO or offsets for the removal of these dead trees.

4.5.1 Other Issues

A comprehensive written submission from Mr Boot raised a number of further issues relating to the management of native vegetation in the Amendment Area that have not been addressed elsewhere. The issues and the Panel’s response are provided below.

Issue raised Panel response

The size of reserves on the northern Disagree. The size of the reserves needs side of Glasscocks Road should be to be balanced against the need for increased slightly to reduce their edge- industrial land as discussed in the Panel area ratio, and additional and extended Report. private reserves should be provided wherever possible to protect clumps of large old Red-gums.

The Lyndhurst Structure Plan should 2.2.4 Design Rationale of the Structure indicate potential habitat links along Plan, Section 1, dot point 3 states “In the the Eastern Contour Drain, Bayliss long term it is envisaged that this network Road and through the landfill site to will connect to the wider open space network connect the remnants and scattered along the Eumemmerring Creek and into trees along Taylors and Glasscocks residential areas within Casey and Road with Eumemmerring Creek to Frankston.” The Panel agrees that this the northwest and remnant woodland statement could be strengthened by to the northeast. graphical representation of habitat links within the structure plan area and showing potential connections to external habitat areas.

State Government should work with Noted. Council to identify other mechanisms for funding conservation management of reserves, including the use of

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 57

Issue raised Panel response developer contributions.

Offset requirements should be The clarification that the offset presented as a maximum offset requirement will be reduced if further liability, which can be substantially large old trees are retained is reduced if more scattered Red-gums appropriate. are protected at the development plan and subdivision permit stage.

The DPO schedule should support Agree. In the DPO5, under appropriate hydrological regimes for Environmental Management Plan: retained vegetation by requiring storm “Protection and enhancement of areas of water management plans to address public open space, native vegetation to be this issue and to incorporate expert retained, and native vegetation protection ecological assessment. zones to be established under the Native Vegetation Precinct Plan.” should be amended by the addition of the clause: “and appropriate hydrological regimes for retained vegetation by requiring storm water management plans to address this issue and to incorporate expert ecological assessment.”

Panel Recommendations

Revise the NVPP so that HZ8 and HZ11 are not treated as patches.

Adopt an option based on Salta’s Option 4 with a 90 m strip connecting the eastern and western sections of the reserve along the southern edge as the native vegetation reserve in the SW corner of Glasscocks and Taylors Roads.

Transfer native vegetation reserves (both patches and scattered trees) to Council’s ownership and ongoing management, provided funds are transferred with the land for Council to undertake the revegetation necessary to provide protection of large old trees and offsets.

Exclude 90 to 120 Colemans Road from the NVPP with measures to protect patches of heathy woodland vegetation on these properties addressed at the development planning stage.

Council should take a leadership role in working with the owners to prepare a development plan for the properties from 90 to 120 Colemans Road.

Update the NVPP to indicate trees 43 and 70 are dead and remove the ESO around these trees.

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Clarify the NVPP so that the offset requirement will be reduced if further large old trees are retained.

DPO5, under the Environmental Management Plan, should require storm water management plans that ensure appropriate hydrological regimes for retained vegetation based on expert ecological assessment.

Revise the Design Rationale of the Structure Plan (Lyndhurst) so it refers to potential habitat links with Eumemmerring Creek to the northwest and remnant woodland to the northeast.

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5. Public Open Space

The Structure Plan indicates public open space (POS) is intended to establish the amenity sought by ‘new economy’ businesses and to provide passive and active recreational opportunities for almost 30,000 people who will work in the Amendment area55.

The Issues ƒ What functions should the POS accommodate and how much should be provided? ƒ Should land required for drainage, native vegetation protection and interface treatments be deemed to also fulfil a POS function? ƒ Are the POS areas identified appropriate? ƒ Are the POS development costs excessive?

The Exhibited Amendment

The exhibited Amendment C87 included a Clause 52.01 requirement for 5% POS in the form of transfer of land or payment in lieu (or a combination of both) at the subdivision stage. The precise location of POS was deferred to the Development Plan stage but the exhibited Structure Plan indicated that: ƒ A land contribution may incorporate environmental features (such as drainage lines, significant vegetation and scar trees) into the network of public open space corridors with paths for jogging, walking, cycling and passive recreation. ƒ Areas nominated for tree protection and offsets in the NVPP could be developed for passive recreation where the design, development and management protect the integrity of the vegetation. ƒ Council may purchase additional land and would improve all areas contributed as POS with monetary contributions received. ƒ In the Keysborough Area a north‐south leisure route along Dandenong Creek will connect with Eastlink trails. ƒ In the Lyndhurst Area the existing Glasscocks Road reserve would serve POS functions while ensuring vegetation is retained and enhanced. ƒ A land contribution will be considered at the commercial centres to provide passive and/or active recreation opportunities for centre

55 SP page 45

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users. That POS could be combined with facilities such as a café or conference facilities.

No one opposed the provision of some public open space but submissions from landholders and the planning evidence emphasised the strategic importance of optimising the yield of developable land and ensuring this resource is not squandered through unnecessary or extravagant requirements. These submissions and the planning evidence highlighted the absence of any analysis of open space needs (or the form the open space would take) that should underpin any POS requirement. It was argued that sound justification of a POS requirement in the planning scheme at the Amendment stage is important as, unlike a requirement under Subdivision Act, the requirement is not open to review in subsequent development approval processes.

A further concern was uncertainty ‐ the implications of POS requirements were unknown as the areas designated as tree reserves, ‘dry’ elements of drainage reserves and buffers in the Keysborough Area that would be accepted as fulfilling open space requirements had not been determined. It was noted that the exhibited DPO5 referred to an ‘open space network’ in the Structure Plan but a network had not been identified. It was argued the POS should be identified on the Structure Plan and the process for acquisition (including development contribution or reimbursement) should be incorporated within the Amendment56.

Goodman, Salta and Australand argued the 5% POS contribution is onerous if the native vegetation reserve and buffers are not treated as POS contributions but the requirement was acceptable if these areas were included as contributions. Goodman, Salta and Mr Rogalsky submitted that the extensive vegetation reserves on their properties can fulfil open space functions without compromising conservation objectives. Expert evidence from Dr. Meredith, Mr Lane and Mr Kearns also expressed the view that there was scope for recreational use in the reserves.

Proposed Revisions

In the course of the hearing, Council developed a layout and composition for the open space network, together with a framework for equalisation of contributions (See DCP Chapter 6.2). There were a number of iterations of the plan which responded to a range of issues raised by the parties or the Panel. For example, submissions questioned whether Lyndhurst workers would use Melbourne Water land to the east of the Lyndhurst Area if it was

56 For Example Salta and Goodman submissions and evidence from Mr Govenlock.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 61 developed for public open space and these development costs were deleted from the final version of the Open Space Plan.

By the end of the hearing the key elements of the POS provision comprised Melbourne Water drainage network land, land within larger conservation areas for the protection, enhancement and offset recruitment for scattered trees, public land along redundant road reserves for off road pedestrian/cyclist routes, parts of the interface ’buffer’ areas in the Keysborough Area north of Greens Road; and land to be acquired to augment POS and strengthen linkages in Keysborough.

The POS land comprised (20 May documents57): ƒ Lyndhurst – 25.66 ha made up of: ƒ 6.8ha private land being part of larger conservation areas. ƒ 9.05 ha associated with linear elements of the drainage network ‐ assumed to be 25 m wide except for the 10 m wide link to the Thompsons Road retarding basin (development costs only in DCP, no private land contribution credited); and ƒ 9.81 ha from redundant road reserves along Dandenong‐ Frankston Road, Glasscocks Road and the southern leg of Taylors Road – assumed to be 25 m wide. (development costs only in DCP, no private land contribution credited). ƒ Keysborough – 4.85 ha made up of: ƒ 0.82 ha private land being part of larger conservation areas; ƒ 0.39 private land linking corridor; ƒ Buffers on private land 1.77 ha comprising: 0.1 ha (5m wide), 1.17 ha (15m wide), 0.5 ha (25m wide); and ƒ 1.86 ha associated with drainage corridors ‐ assumed to be 25 m wide (development costs only in DCP, no private land contribution credited).

The revised approach proposed provides for public open space land and monetary contributions for each property equivalent to: ƒ 2.19% of the developable land area in Keysborough comprising 1.51% land and 0.74% cash, based on $1m per ha; and

57 Public open space contributions were calculated on the basis of developable land as exhibited in the DCP dated September 2007 with revisions to the developable land area only where amendments to open space and vegetation conservation areas have been altered since this time. This open space contributions will be subject to final review upon approval of the DCP to take account of the final form of the collector road network; drainage reserve requirements; retarding basin requirements; and any further changes to conservation areas and/or open space area requirements.

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ƒ 2.25% of the developable land in Lyndhurst comprising 1.79% land and 0.40% cash, based on $1m per ha.

Lyndhurst POS Plan (Provided 20 May 2008)

Keysborough POS Plan (20 May 2008)

Figure 10 20 May 2008 Open Space Plans

The POS contributions provide for the acquisition of 2.99 ha in the Keysborough Area and 6.8 ha in the Lyndhurst area. These areas are

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 63 identified as dark green on Figure 10 above. It should be noted that this contribution understates the extent of the POS network as existing public and encumbered land is not included. In addition to the land acquired via the POS contributions, public land designated for drainage purposes, redundant road reserves and land required for conservation purposes will also form part of the open space network.

Council considered the POS contributions equalization mechanism in the DCP is necessary as the equalisation of contributions cannot be left to the development planning process due to the numerous Development Plans that will apply in the area.

The revised proposal largely addressed Goodman’s and Salta’s58 concerns and was supported by them.

Pellicano’s concerns relating to contributions towards the cost of developing land external to the Amendment area were addressed in the latest iteration of the open space plan. However, Pellicano highlighted that the north west of the Lyndhurst Area did not benefit from the open space network and argued that development of the drainage reserve running along the southern boundary of their property for open space would provide an important connection that would enhance the network. Consequently, both the land (which is private land encumbered by a drainage reserve) and development of it should be included in POS contributions.

Although Pellicano had originally opposed the requirement for a generic 5% POS contribution and it is understood they had participated in the various consultative meetings during the hearing process, on the final day of the hearing Mr Wren challenged the rigor and equity of the open space plan prepared by Council. He argued the outcome was not an effective network of well distributed POS but a series of awkwardly shaped spaces in locations determined by the existence of trees to be retained.

Mr Rogalski, acting for Pat Ville Constructions which owns 80 Colemans Road, had argued for a reduction in the POS contribution from 5% to 2% which has to a large extent been achieved in the revised proposal. He also submitted that the small properties in Coleman’s Road were being treated inequitably with POS attributed to the larger holdings in the Lyndhurst Area, while smaller properties were identified as ‘private vegetation reserves’ that are not credited for POS contributions purposes. Post hearing

58 Goodman argued the transfer of the reserve should constitute their POS contribution while Salta generally accepted the revised proposal, despite a range of reservations, subject to its submissions relating to the extent of the reserve at the corner of Glasscocks and Taylors Roads being modified (see Chapter 51.3).

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 64 agreement was reached with DSE relating to vegetation management on the site which identified 37% of the site as a ‘Passive Open Space Conservation Reserve (Arbor Park)’ and ‘private vegetation reserve’.

Mr Ian Jensz who owns 110 Colemans Road (and indicated in his written submission he represented the owners of 90 and 120 Colemans Road) also questioned the equity of excluding smaller properties with native vegetation to be protected under the NVPP from the designated POS.

Pellicano challenged elements of the POS development costs as excessive and Australand questioned the POS improvement costs for the two areas of limited size in Keysborough.

The Panel was conscious that a POS plan had not been exhibited and required owners to be notified of the proposal (albeit not the final iteration). That process generated one additional submission that raised POS issues. The Panel notes that, while the flexibility to provide POS on individual parcels of land is explicitly precluded in post exhibition proposals, it is relevant that the POS plan put forward reduces the POS contribution required by landholders in both precincts compared to the exhibited Amendment. Further, the areas identified for POS correspond with land foreshadowed in the exhibited Structure Plan text as likely to form the POS network. In these circumstances the Panel considers it is reasonable to consider modification of the Amendment to include more specific POS provisions and contributions without further exhibition.

5.1 Discussion

5.1.1 The Rigor of the POS Plan

The exhibited Structure Plan suggested that ‘Whilst the type of recreational opportunities afforded to employees within an industrial area is different to that of a residential setting, it is necessary to provide adequate places for the population to take advantage of before or after work or during breaks. It is envisaged that this area could be combined with facilities that may be frequently attended during the course of a work day, such as a café or facility for conferences.’ The Structure Plan also foreshadowed that public open space should be networked and areas associated with vegetation to be protected and drainage lines could be elements of the POS network but deferred further planning to subsequent planning processes.

The Panel agrees with landholder submissions that the exhibited Amendment did not address open space adequately. Justification for the exhibited 5% POS contribution, beyond it being the default requirement under the Subdivision Act, was not apparent in either the Amendment

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 65 documentation or during Council submissions and evidence at the beginning of the hearing. This is not a basis that is sufficient to justify a mandatory requirement in the planning scheme.

Council responded to these submissions by undertaking a substantial piece of work during the hearing process to prepare a POS Plan with an associated equalisation mechanism.

The Panel does not agree with the objections introduced by Mr Wren on the final day of the hearing that the public open space plan lacked rigor. The work undertaken by Council, which occurred in a concentrated timeframe, drew on the large body of existing work underpinning the Amendment, including native vegetation analysis and plans for the drainage network. Council then considered the likely intensity of use/development within the open space network and refined the assessment of areas required for scattered tree protection.

The preparation of the open space plan was a response to a broad desire amongst landholders for greater certainty at the structure planning stage. The approach of addressing POS at the structure planning stage meant that definitive development plans were not in place and assumptions about the nature of open space improvements were necessary. The Panel accepts the approach adopted (save for the delineation of specific areas for POS within the conservation areas which should not be identified in the Structure Plan). It considers the open space provisions developed during the course of the hearing represent a substantial advance in defining open space provision. The Panel complements Council on the work undertaken during the course of the hearing. The following discussion focuses on the revised proposal presented at end of the hearing.

5.1.2 POS Policy - Multiple Public Open Space Functions

State and local planning policies seek effective open space networks in urban areas, not just residential areas. The Greater Dandenong Planning Scheme also includes a specific local strategy to increase the provision of open space in business areas while recognising the need to achieve a balance between environmental considerations and community needs, including development requirements59. Planning invariably involves balancing competing objectives and the Panel agrees with submitters that in this case the strategic importance of optimising the yield of developable land is an important consideration. Further, planning for the area is directed at facilitating new economy industrial and logistics uses and options for development requiring

59 Clause 21.04-7

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 66 large sites, such as an inland port ‐ open space requirements should not undermine these broader land use strategies for the locality by fragmenting land holdings.

The Panel agrees with Mr Morris that recreation is one of a number of public open space functions. Both State and Local planning policy60 make it clear that POS is intended to fulfil a range of functions and it is good planning to integrate multiple functions in these spaces if other important values are protected. Where land required for drainage purposes (see Chapter 3), protection of native vegetation (see Chapter 4) and buffers (see Chapter 8.3) can also fulfil open space functions without compromising the primary purpose for which the land is set aside, all the better.

The typical open space treatments in the 20 May 2008 POS Plan and DCP illustrate that these compatible functions can be accommodated within reserves that also serve another complementary function.

5.1.3 How Much POS Should be Provided?

Unlike development planning for residential areas61, expectations and benchmarks for POS provision are not well established for industrial areas. Many industrial areas in Melbourne do not provide any POS and where it is provided the quantum varies. For example, the Panel was referred to VCAT decisions which adopted a requirement for 2% POS provision in the absence

60 For example: Clause 12.02-2 - Structure plans to be prepared before land is zoned for urban development are to, amongst other things, Create multi-use, linked open space networks. Clause 12.05-2 objectives refer to Ensuring that urban open space provides for nature conservation, recreation and play, formal and informal sport, social interaction and peace and solitude …. and Protecting sites and features of high scientific, nature conservation, biodiversity, heritage, geological or landscape value. The Clause 21.04-7 Open space and recreation preamble indicates public open space adds to the quality of life by providing an attractive and aesthetically pleasing environment… Greater Dandenong’s open space includes bushland areas, parks, reserves, roadside and railway corridors and undeveloped areas, many of which provide habitat for significant flora and fauna. ….There is a need to consolidate and improve the quality of public open spaces, to integrate them with corridors of natural interest and significance …. Open space and recreation objectives and strategies in Clause 21.04-7 aim to provide high quality open spaces and recreation facilities, enhance natural assets and to conserve and enhance areas of indigenous flora and fauna. Clause 56 Standard 13, which applies to residential subdivision, envisages a network of open space for active and passive recreation in conjunction with natural and cultural features and land for drainage purposes (if generally available for recreational use). Linking People And Spaces A Strategy For Melbourne’s Open Space Network Parks Victoria 2002 recognises the function of open space for recreation and conservation of environmental and cultural values, as well as economic benefits, the contribution aesthetic value to liveability and maintaining water quality in urban waterways. 61 Clause 56 establishes standards for the distribution and size of POS in residential subdivisions

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 67 of a more rigorous assessment, the Cooper Street (Epping) Employment Area DCP required a contribution of 3.08% unencumbered land for POS, whereas the Development Plan for the recent M1, M2 and M3 industrial precinct in Lyndhurst provides for open space in the form of a 10 metre landscaped setback from Colemans Road and Remington Drive plus the potential for open space along Eumemmerring Creek.

Rather than adopting a number crunching approach that focuses on whether a nominated percentage of developable land has been allocated for POS, in industrial areas the focus should be on first principles consideration of the functions the POS network and how they can be efficiently provided.

Open space functions in residential and industrial areas are different and the amount of POS required for industrial areas will normally be reduced accordingly. In an industrial area the open space will be used by a narrower demographic for more limited times. Apart from providing linkages to the wider POS network, planning should be to provide for the recreation needs of the area’s workers. Facilities for activities such as occasional out of hours sporting events between work colleagues or family based activities are better consolidated elsewhere in locations where the space would be used more consistently. A range of facilities, such as playgrounds for children or BMX tracks for youths, are not needed in industrial areas.

The open space in these industrial precincts should serve a number of functions: ƒ Opportunities for the area’s workers, to a walk, run or exercise during breaks and to some extent before and after work. ƒ Passive recreation. There should be some provision for passive areas associated with the linear networks, retarding basins, vegetation protection areas and activity centres. However, the Panel agrees with Jayco that time constraints require passive uses at lunch time and during work breaks to occur near the work place. Given the large lot sizes envisaged, it will often be most appropriate to provide these spaces primarily on site. ƒ Conservation and maintenance of ecological processes is recognised in planning policy as one of the roles of open space. Evidence from Mr Lane and Dr. Meredith both expressed the view that the reserves provide ample space beyond ‘tree protection zones’ which could be effectively developed for open space without compromising conservation objectives. DSE emphasised the need for consolidated areas well beyond the tree protection areas and the significant safety risk associated with limbs dropping from ‘self‐pruning’ river red gums. However, DSE agreed with expert evidence that, with

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appropriate design of these spaces62, paths and passive recreation areas could be incorporated without compromising conservation objectives to protected existing vegetations and enhance the conservation values of these areas through planting (see Chapter 4). ƒ The aesthetic value of open space, particularly where it incorporates iconic river red gums and water, is a key contributor to an area’s identity. Workers and those passing through the locality appreciate the ambience created by POS even if they never make direct use of it. The open space network, whether encumbered or unencumbered land, also makes a significant contribution to establishing a positive sense of place which is important to achieve the strategic planning objective to attract new economy business.

DSE’s closing submission encouraged ‘the panel to adopt an expansive approach towards the issue of public open space contributions, in order to better secure land for the protection and enhancement of native vegetation.’ The Panel discusses the protection of scattered trees in Chapter 4.3. It is noted here that the DSE submission appeared to be based on an understanding that the POS contribution as represents the extent of POS land. As already noted, the POS network will comprise much more than the land acquired under the POS contribution. The Panel agrees that an expansive approach should be taken to POS contributions if this is intended to mean that the multiple functions of open space should be considered but does not agree with DSE if the intention is to refer to very large areas for recreation purposes.

Council set out the principles applied in the development of the open space plan63 which required land designated as POS to be located so that it is accessible and forms a logical part of the network. The POS plan also capitalises on the extensive areas required to conserve native vegetation and address the locality’s substantial drainage constraints. These are sound principles that support both ecological objectives and enhance the quality of the recreation space. However, the Panel only accepts the differentiation of areas within the conservation (Light Green) and recreation reserves (Dark Green) as a means of determining POS contributions but this differentiation should not be reflected in the Structure Plan. It is emphasised that these spaces should be planned and managed as a whole.

The Panel notes that the POS Plan has taken account of planning objectives for the locality and avoids fragmentation of industrial land. This affected the distribution of POS and has meant that some areas have more limited access

62 For example ensuring through design measures such as planting and (where necessary) fencing, preclude access to sensitive areas and areas that present safety risks. 63 Pages 7-8 Public Open Space Reference Document 21 May 2008.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 69 to open space. Fore example, POS in the north east of the Lyndhurst Area is limited in order to preserve a large site area that maintains the option for an inland port. Given the size of many holdings in both Areas and the distribution of POS proposed, the design guidelines should encourage the provision of some on‐site outdoor passive space within development sites for use by employees during breaks to supplement the designated POS network. However, as there is a wide range of potential businesses with wide variation of on‐site open space needs, it is not appropriate to prescribe a requirement.

Any number of alternative POS arrangements/locations could have been proposed and the Panel has accepted the basic merit of the overall network proposed. The Panel finds that the POS corridors, with paths and rest areas, will provide workers with reasonable opportunities for walking, running, cycling and exercise. Off‐site passive recreation needs can be provided in association with the conservation and drainage reserves (outside tree protection envelopes and the 5 year ARI) and the wider buffer areas in the northern section of the Keysborough Area. The tree protection areas will also contribute an open space function, in that they will form part of the landscape and provide for visual and aesthetic enjoyment. The Panel agrees with submissions that some areas with limited dimensions will be attractive, functional POS as a result of the sense of space and ‘borrowed’ amenity from adjoining ‘encumbered’ drainage and vegetation protection areas.

The Panel also agrees that open space associated with the commercial centres is an important element of the network. In both Keysborough and Lyndhurst the siting of the commercial centre adjacent to ‘conservation and public open space areas’ or landscaped drainage areas enhances both the centres and the recreation opportunities.

The Treatment of Land with Drainage Functions

The Panel agrees with Pellicano that POS provision and access to the network in the north west of the Lyndhurst Area is limited and would be substantially enhanced by the development of the northern side of the Eastern Contour drain as a public open space link. The Panel was provided with conceptual sections of this part of the proposed drainage reserve which has a shallow profile.

At the hearing the Panel noted that in the adjoining Amendment C36 area that drainage network areas that are almost always ‘dry’ (land above the 5 year ARI) were counted as POS land although it is required to serve drainage purposes. Mr Daff of Melbourne Water advised there is no objection to Council landscaping and maintaining part of the reserve on Pellicano land for POS. He also advised that, although this drainage reserve has not been

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 70 subject to detailed design, there is a strong likelihood the access track on the eastern side would be above the 1 in 10 flood level. Mr Krummens for Pellicano confirmed that significant earthworks will be required as the adjoining land will need to filled and an integrated approach to the planning and development of this area could achieve an attractive open space link in a land efficient way. The Panel is satisfied that there is considerable scope to form the drain to accommodate the required volume of water while providing a functional open space link (and secondary access for Melbourne Water maintenance) above the 5 year ARI on the northern side.

The Panel thinks the principle of treating land above the 5 year ARI as POS should apply to the northern side of the Eastern Contour drain (Pellicano land). It should also apply to the land around the Jayco (and perhaps a small part of the Miramah) retarding basin(s), although the design(s) proposed mean that most of the retarding basins areas will be ‘wet’.

The Structure Plan and DCP should be revised to include the land and development costs of land within the drainage network that is above the 5 year ARI. Where the land has been acquired for drainage purposes, only the cost for development as POS would be included in the DCP. On other land, such as the northern side of the Eastern Contour Drain (and perhaps part of the Jayco land), there would also be a land cost attributed to the POS contribution.

The Treatment of Areas with Conservation Functions

The Whittlesea C81 Panel considered the issue of open space with multiple functions in some detail. This Panel endorses the view that it is appropriate to determine the open space land contribution and the public open space component of land with multiple functions at the structure planning stage. This provides the greater certainty sought by many submitters to Amendment C87.

This Panel also agrees with the Whittlesea C81 Panel that ‘There is no doubt that encumbered land can have a complementary open space function and should be developed as open space where possible’ and ‘use of encumbered land for open space can reduce the requirement for other land to be set aside if community needs can be met on the encumbered land.’

In considering areas set aside for a mixture of ecological and open space reasons, Whittlesea C81 Panel suggested the area needed to preserve River Red Gums should be calculated and these areas to be set aside on the basis of their ecological values set should be at the owner’s cost. The Whittlesea C81 Panel drew a distinction between areas that must be preserved, and areas that might be conserved to achieve some conservation objectives among

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 71 other issues. The area required for conservation purposes beyond twice the diameter of the canopy spread of trees on the Salta land was contentious and is discussed in Chapter 4.3.

By the end of the hearing process, there was a level of acceptance amongst the parties, with the exception of Pellicano and Pat Ville Constructions, that the designations were acceptable, they serve a necessary function in POS equalisation mechanism, and therefore contribute to the certainty sought. While the Panel accepts these somewhat arbitrary distinctions between conservation and ‘public’ open spaces areas are necessary to determine contributions, it does not think they should be shown on the incorporated Structure Plan or referred to in DPO5.

The Panel agrees with Mr Morris that the dual function of these areas should be reflected in a different annotation on the incorporated structure plans as “Conservation area and Public Open Space” without differentiation between the functions within those consolidated areas64. It also considers that a number of references to the differentiation between areas in both the Structure plan and the proposed DPO5 inappropriately reinforce distinctions drawn to determine contributions and should be deleted. The provisions of the Structure Plan and DPO5 that should be deleted/revised are set out in the Panel recommendations below.

Public Ownership of Conservation and Recreation Areas

DSE’s closing submission indicated that it had proceeded on the basis65 of an agreement with Council (which was subsequently endorsed by the affected landowners) that combined public open space and private vegetation reserves would be transferred to Council. DSE submitted ‘The rationale for the combination was to improve the POS amenity of the area and to offset the ecological impacts of combining the two in terms of the mix and having to manage the two simultaneously and all managed by Council.’

Council was concerned to ensure that all of the costs were adequately funded. By the end of the hearing, Council indicated that it would accept ownership of the vegetation reserves provided they were transferred without cost and with adequate provision for development as POS, including the establishment of vegetation required to enhance conservation values.

64 The Panel notes that the NVPP will ensure that planning for these spaces achieves protection of the scattered trees and the nature enhancement for offsets. 65 Agreed at a meeting with Council on 11 March 2008 based on the principle of applying the 1024 square meters for each tree and the POS in between.

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These conservation and recreation areas that include scattered trees to be retained shown on the revised Structure Plan (‘purple areas’) spaces will require an integrated approach to design and ongoing management in order to optimise both conservation and recreation outcomes. Public ownership of these areas with multiple functions is necessary to achieve optimum open space planning as well as securing protection of native vegetation (see discussion in Chapter 4) The Panel considers the Structure Plan and DPO should make it clear that these areas will be transferred to Council.

The Panel expects that the combination of POS contributions under the DCP and payments associated with offset obligations should meet improvement costs. However, if there is any shortfall due to the area required for ‘ecological function’, those costs should be determined before adoption of the Amendment and included in the DCP POS equalisation mechanism.

POS Functions of Keysborough Buffers

With regard to the Keysborough Area, Council stressed the importance of the relatively narrow open space (pedestrian and cycling) linkages to the Eastlink trail networks. However, Council did not accept the narrower portions of the buffer (10 metres wide or less) as POS.

The Panel notes that Australand has sought to maintain the flexibility to include roads within the interface treatment.

The Panel agrees with Council that only the wider elements of the interface treatments north of Greens Road should be accepted as forming part of the open space network contribution. Unlike relatively narrow links that benefit from the borrowed amenity of adjoining encumbered drainage or native vegetation areas, these narrow buffer areas adjoin roads and or fences to residential properties.

90‐120 Colemans Road

Council did not support the designation of any of the land at 90‐120 Colemans Road (approximately 6.6 hectares) as POS and did not include any POS component in the POS equalisation mechanism in the DCP. It does not consider the land would form part of the POS network. It considers access from the potential areas to the road network to be poor and that the requirements to conserve the patches would not be compatible with use as POS.

As noted in Chapter 4, the Panel is concerned that landholders in 90‐100 Colemans Road have not been directly consulted about potential planning responses for their properties. Further, the Panel considers area specific

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 73 planning is required to protect the Heathy Woodland patches, while providing an integrated solution that achieves viable future use for this land. Issues such as achieving connections between the vegetation and determining any potential for functional POS also require consideration at a more detailed level than has occurred during the more ‘macro’ view adopted in this structure planning process. The Panel has commented that these issues should be addressed through a subsequent development planning process led by Council.

In these circumstances, the Panel considers that 90‐120 Colemans Road should be excluded from the POS equalisation process in the DCP. The schedule to the DPO should include a requirement to address POS in the Development Plan.

5.1.4 Are the POS Development Costs Excessive?

Council determined the development costs taking account of different levels of development costs within the network for typical treatments for general parkland, drainage corridors, redundant road reserves and buffer areas66. Development costs for development of the typologies were then itemised. In the absence of specific development design, it is inevitable that development costing will be dependant on a series of assumptions ‐ this is an outcome of providing the certainty sought by developers about contribution early in the planning process.

While it would be possible to debate the costs of each of the cost items, it is difficult to come to a particular view on the justification for individual items at this stage of the planning process67. The Panel is satisfied that Council has adopted a transparent approach to the costing which establishes a reasonable basis for POS contributions.

5.1.5 Conclusions

Overall, the Panel sees the proposed POS plan as a pragmatic balancing of policy to maximise the quantum and development options of land available for industrial development while achieving a network of functional POS to serve future workers in the locality.

66 For example, it was assumed that general parkland comprised 5% High intensity/quality with development cost of $57,250/ha, 30% medium intensity/quality with development cost of $51,893/ha and 65% low intensity/quality with development cost of $57,420/ha. Drainage corridors will generally be developed to a similar standard as ‘basic general parkland’ 67 The Panel notes that the POS improvement costs proposed here are substantially less than the open space improvement cost of $250,000/ha that was eventually agreed by the parties to Amendment C36 in the adjoining residential areas in Keysborough.

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The NVPP establishes the vegetation (and offsets) to be protected due to their conservation values. The somewhat arbitrary designations of ‘conservation’ and ‘recreation’ elements of POS with scattered trees is a pragmatic approach to determine POS contributions but should not be reinforced in the Structure Plan and DPO5. It is emphasised that an integrated approach to the design of these areas should be adopted to optimise both conservation and recreation outcomes.

The Panel considers the POS network would be enhanced if land identified for widening of the Eastern Contour Drain (on Pellicano land) is developed as a POS link.

The Panel thinks the Structure Plan and DCP should be revised to recognise the POS function of drainage land that is almost always dry by including the land and development costs of land within the drainage network that is above the 5 year ARI. Where the land has/will be acquired for drainage purposes, only the cost for development as POS would be included in the DCP. On other land, such as the northern side of the Eastern Contour Drain (and perhaps part of the Jayco and Miramah land) there would also be a land contribution credit within the POS equalisation mechanism.

The Development Plan for 90 ‐ 120 Colemans Road should address any POS provision for these properties, which should be excluded from the proposed POS equalisation mechanism in the DCP.

The Panel accepts that wider elements of the interface treatments north of Greens Road in the Keysborough Area could serve an open space function but does not accept the elements of the buffer that are 10 metre wide or less as POS.

The Panel has accepted the POS improvement costing provided by Council as a reasonable basis for contributions.

Panel Recommendations

Encourage provision of some on‐site outdoor passive space for use by employees during breaks within the Structure Plan design guidelines.

The areas that serve the dual conservation and recreation functions should: ƒ be designated as “Conservation Area and Public Open Space” on the Structure Plan maps. ƒ Be transferred to Council (The total estimated cost of development as POS, including the establishment of vegetation required to enhance conservation values, should be funded by a combination

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of POS contributions under the DCP and payments to provide offsets). ƒ The provisions of the Structure Plan and DPO5 that should be revised along the lines set out below: ƒ Any land which is to be credited as public open space must be located so that it is accessible and forms a logical part or extension of an open space network or the system of drainage reserves which link both locally, and where appropriate to a network of open space linkages. (Page 20, 20 May 2008 Structure Plan). ƒ The open space network plans ‐ Figures 4 and 5 ‐ in the Structure Plan should be revised to remove distinctions between ‘proposed open space’ and ‘conservation areas’ (20 May 2008 Structure Plan Pages 22 and 24). ƒ ensure that any’ public open space and conservation areas’ shown in a development plan which shown on diagrams contained in the Dandenong South Industrial Area Extension Structure Plan and the open space tables set out in the Dandenong South Industrial Area Extension Development Contributions Plan .is vested in the relevant authority (in DPO 5 2.0 Conditions and requirements for permits). ƒ not directly or indirectly allow a credit towards the required public open space contribution in respect of any open space which is not shown in the open space diagrams in the Dandenong South Industrial Area Extension Structure Plan or the open space tables contained in the Dandenong South Industrial Area Extension Development Contributions Plan. (in DPO 5 2.0 Conditions and requirements for permits) (Note – the DCP contribution does not rely on the DPO and does not need to be referred to in DPO5). ƒ areas set aside for drainage in which native vegetation may be established. The proposed ‘public open space and conservation areas’ in accordance with the public open space network diagrams set out in the Dandenong South Industrial Area Extension Structure Plan and as further specified in the Dandenong South Industrial Area Development Contributions Plan.

Identify the dark green areas within the DCP Public Open Space Plans as ‘notional POS for funding purposes’.

Drainage network areas that are almost always ‘dry’ (land above the 5 year ARI) should be treated as POS. The development costs of this land should be included in the POS equalisation mechanism and the land component

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(with values taking account of the nature of the land, such as flood risk) should be included as a land contribution where the land is in private ownership. If the ultimate ownership of land around the retarding basins has not been resolved when the Amendment is adopted, any land component should be excluded from the POS equalisation mechanism.

Exclude the elements of the Keysborough ‘buffer’ areas where the landscaped component may be 10 metres wide or less from the POS equalisation mechanism in the DCP.

Exclude 90‐ 120 Colemans Road from the POS equalisation mechanism in the DCP.

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6. MOVEMENT NETWORKS

What are the issues? ƒ Does the road analysis and proposed network establish a sound basis for development planning and the Development Contributions Plan? ƒ Is the proposed funding of the road network equitable? ƒ What collector road network should be shown in the structure plan? ƒ What road and intersection works should be funded under the DCP?

6.1 The Proposed Road Network, Traffic Volumes and External Use at Lyndhurst

6.1.1 The Exhibited Road Network

The road network in the exhibited plans for the Lyndhurst Area is shown below in Figure 11.

Figure 11 Lyndhurst Road Hierarchy Plan68

68 Reproduced from the John Piper Traffic Pty Ltd report, “Structure Plans for the Extension to the Dandenong South Industrial Area, Traffic Analysis and Road Costing, February 2007”, Figure 9

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Longer term upgrading of the existing network of major roads includes: ƒ Glasscocks Road will be progressively upgraded from the east. Stage 1 will comprise a two lane two way road, and will be included in the DCP. Stage 2 will upgrade the initial construction to a four lane divided road, and Stage 3 to a six lane divided arterial. Stages 2 & 3 are to be funded by VicRoads. The intersection of Glasscocks Road and Western Port Highway will be constructed initially as a roundabout by the developers of the residential area to the south east; ƒ A future rail overpass from Pound Road West to Remington Drive (north of Abbotts Road), which will provide a route for traffic from the South Gippsland Freeway to Abbotts Road, then south along ER3b and ER3a, and west on Colemans Road to the Dandenong‐Frankston Road; ƒ Colemans Road is intended to be constructed over the Eumemmerring Creek to connect with Bangholme Road. An interchange will eventually be provided with Eastlink, connecting to Perry Road in the north west; and ƒ Western Port Highway will be upgraded to freeway standard, becoming a continuation of the South Gippsland Freeway.

Roadworks to be included in the Lyndhurst DCP69 are: ƒ Abbotts Road‐from Remington Drive to ER3, and bridge widening; ƒ Taylors Road‐from Abbotts Road to Glasscocks Road (standard varies) and culverts B6 and B7; ƒ Glasscocks Road‐Stage 1, including land purchase and culverts B3 & B5; ƒ Jayco Road (LR4)‐connection to LR5 and contribution to cost of existing constructed portion, over subdivision requirements; ƒ LR5b & LR5c‐LR4 to LR6 (Stage 3) & bridge B1, and LR3 to LR4 (Stage 1); ƒ Colemans Road (LR15) & LR16‐from Taylors Road to Dandenong‐ Frankston Road (standard varies); ƒ Perry Road‐the upgrading of Perry Road from Greens Road to Bangholme Road, part contribution from Lyndhurst; and ƒ Intersection treatments associated with these road upgrades.

Traffic analysis included projections of Lyndhurst AM peak volumes for all roads in the general area of Keysborough and Lyndhurst derived from the Melbourne Integrated Transport Model (MITM), along with the proposed new collector roads and the additional road improvements envisaged by 2031. The assumed land use was 50% Assembly and Logistics, 50% Advanced

69 See DCP Appendix 2b

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Manufacturing70 and employment was estimated at 21,165 jobs in the Lyndhurst Area.

The following traffic evidence was called in relation to the Lyndhurst Area: ƒ Pellicano ‐ Mr Henry Turnbull. His evidence included an indicative subdivision and road layout of the Pellicano land71; ƒ Goodman ‐Mr Jason Walsh of Cardno Grogan Richards; and ƒ Salta ‐ Mr Christos Maragos of Cardno Grogan Richards.

6.1.2 Agreed Post Exhibition Changes

The Panel will focus on the issues in contention but first places on the record the process and key reasons for changes agreed to by parties to the hearing process.

Pre‐hearing Consultation & Testing of Evidence at the Hearing

Consultation between experts, Council and VicRoads plus the testing of evidence at the hearing resulted in agreement on the following matters: ƒ The Structure Plan should include principles from VicRoads relating to access to arterial roads; ƒ Pellicano would no longer pursue the alternative alignment for Glasscocks Road using the existing alignment as part of a one‐way pair; ƒ Salta would no longer pursue the inclusion of Bayliss Road in the DCP or an additional interchange with Eastlink at Bangholme/Perry Road; ƒ The northern end of Taylors Road (ER5) will be downgraded to one lane in each direction, as it is presently to Colemans Road; ƒ The eastern end of Colemans Road (LR15) be downgraded to a two lane collector, ƒ Intersection LI3 (Taylors Road and Colemans Road signals) be downgraded to an uncontrolled intersection; ƒ Council agreed to explore if LR5b and Bridge B1 could be brought forward and the associated impact on the DCP and Council’s cash flow; ƒ Pellicano’s proposal to realign LR6 relocated approximately 200 metres to the north going through the Pellicano land just north of the relocated Lyndhurst Drain. A further local east‐west road is proposed just north of

70 See Structure Plan by SGS page 36 71 The indicative subdivision and road layout of the Pellicano land showed the realignment of the Lyndhurst Drain and LR6 relocated approximately 200 metres to the north, just north of the relocated Lyndhurst Drain. A further local east-west road is located just north of the Eastern Contour Drain running west from LR5 to a Tee intersection with the Dandenong-Frankston Road. Here a left-in left-out connection is proposed, with no central median break in Dandenong- Frankston Road. A service road is shown to provide access to several lots along Dandenong- Frankston Road, and direct access to Colemans Road is proposed for 6–10 lots.

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the Eastern Contour Drain running west from LR5 to a Tee intersection with the Dandenong‐Frankston Road. Here a left‐in left‐out connection is proposed, with no central median break in Dandenong‐Frankston Road. VicRoads accepted this additional connection with Dandenong Frankston Road, providing it conforms with the access principles it has provided (see the section 5.1.4); ƒ As a result of LR6 being moved northwards, the cross intersection at Taylors Road (LI7) is unnecessary, provided Pellicano fully funds the intersection if a cross road is ever required; ƒ A 22 metre reserve and a 12 metre pavement is sufficient for LR3 and LR14; ƒ Mr Turnbull conceded that the four lane collector road treatment of the southern end of Taylors Road (LR13) is acceptable as: ƒ a significant part of the widening would be needed for the signalised intersection with Glasscocks Road. ƒ Mr Maragos’ evidence had highlighted there would not be a single four lane collector route giving access to the Salta land if LR13 was downgraded. ƒ VicRoads accepted the merit of the temporary connection with the Western Port Highway opposite Moreton Bay Boulevard to serve a potential inland port on the Salta land. It supported the following notation on the Structure Plan ‐ “Planned Temporary Access for Inland Port”. VicRoads will place conditions and controls on the use and ultimate closure ‘triggers’ of the temporary access point likely to relate to an intersection performance threshold or the availability of suitable alternative access arrangements off Glasscocks Road72.

72 It is noted for the record that VicRoads raised concern that this connection conflicts with their planning to convert the Western Port Highway to freeway standard, with no abutting access. There is an existing interchange of the South Gippsland Freeway (the northern continuation of the Western Port Highway) with the South Gippsland Highway in line with Abbotts Road. To the south, the next planned interchange would be at Glasscocks Road. While the Stage 1 upgrading of Glasscocks Road is planned to progressively develop from the west, and be complete by 2017, the intersection between Glasscocks Road and the Western Port Highway will initially be constructed as a one lane roundabout, and will be provided by the developer of the approved new housing estate to the south east of the intersection. VicRoads will upgrade the intersection with the Stage 2 duplication of Glasscocks Road to two lanes in each direction, and will grade separate the Western Highway (in preparation for the future freeway conversion) at that time. Mr Maragos stated that the limiting movement at the temporary connection opposite Moreton Bay Boulevard would the right turn from north to west (vehicles entering the Salta site from the north). Above 400 vph there would be an adverse effect on Western Port Highway traffic flows. The temporary connection would serve the development of the inland port in the eastern part of the Salta holding. Salta envisages that by the time development has extended further to the west and closer to Taylors Road, the upgrading of Taylors Road and Glasscocks Road would be in operation. It is envisaged that the temporary connection will be first downgraded and then removed when freeway conditions are created on Western Port Highway, and a grade separated intersection constructed at Glasscocks Road.

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The following submissions were made at the hearing on matters not resolved at the pre‐hearing consultation.

VicRoads submitted that: ƒ The DCP funds 62% of the Frankston‐Dandenong Road/Glasscocks Road Stage 1 intersection treatment with the remainder externally funded. The DCP shows 38% external usage, but VicRoads submitted that this intersection should be funded entirely as is the case with the other Stage 1 intersections along Glasscocks Road. ƒ The Frankston‐Dandenong Road / Colemans Road intersection provided for in the DCP is inadequate and Stage 1 works, including intersection performance, should be reviewed before the DCP is finalised. VicRoads stated it will be responsible for the Stage 2 upgrade of the intersection in association with Bangholme Road extension or the Stage 2 Colemans Road upgrade but that these works have indicative time‐frames of 2030‐2032. In the primary submission VicRoads stated that the intersection would need to be at least of a similar order to the Dandenong‐Frankston Road intersection with Jayco Drive.

In addition to concerns about inequitable funding of local collector roads, Mr Cantwell submitted that: ƒ The lack of connections to Western Port Highway would compound traffic issues at the Pound Road/Monash Freeway interchange; and ƒ Acquisition of land for Glasscocks Road should be funded by VicRoads, not the Lyndhurst Area.

Hillblock Pty Ltd expressed concern about access to their 2.5 hectare property on the corner of Glasscocks Road and Dandenong Frankston Road. It has been purchased (but not yet settled) with the intention of building a service station and/or fast food outlet. Further, a 40 metre road widening will be acquired to widen Glasscocks Road and would reduce the land available for development to 17,000 square metres.

Mr Kaye and the Sandhurst Club expressed concerns that the development will increase traffic on the broader road network and, in particular, impacts Thompsons Road and the intersections at Dandenong‐Frankston Road and Western Port Highway, which are already congested at peak hour.

In response to the concern by the City of Casey that the temporary connection would be dangerous, with a large increase in truck movements to an residential traffic pattern, Mr Maragos stated that in his expert opinion it would be no more dangerous than what already exists at the signalised intersection, which carries about 40,000 vpd, with 12% trucks.

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The key issues in contention before the hearing adjourned in April related to: the contribution of Lyndhurst owners to the construction of Perry Road in the Keysborough Areas; the design and funding of the Frankston‐Dandenong Road intersections with Colemans and Glasscocks Roads; the designation and funding of local collector roads (particularly the DCP funding of LR5); and the upgrading of Thompsons Road and its intersections with Western Port Highway and Dandenong‐Frankston Road.

Specific design modifications to the road network sought by Pellicano and Goodman are elaborated below:

Pellicano sought modifications relating to: ƒ the width of the southern portion of Taylors Road; ƒ direct access to Colemans Road; ƒ access to Dandenong‐Frankston Road from both the proposed east‐ west road and the proposed service road; ƒ the width of the southern portion of Taylors Road (LR13c and LR13b) and the width and status of LR5, both of which are also addressed in the Goodman submission and are further detailed below; ƒ the inclusion of LR5 in the DCP in place of Taylors Road; and ƒ the application of the principle that the costs for roads within the DCP should be limited to the marginal cost of the specified standard above the cost of a subdivisional road provided by the abutting land owners.

Goodman sought modifications relating to: ƒ the inclusion of LR5 in the DCP. Equal treatment of LR5 and Taylors Road in the Structure Plan and DCP was sought in recognition that, in their view, LR5 would take more traffic than Taylors Road; ƒ the alignment of the southern leg of LR3 being moved from entirely within the Goodman property to straddle the property to the north; ƒ the realignment of LR5 200 metres to the west to the eastern edge of the northern and central parts of the Goodman land; and ƒ realignment of LR14 being from entirely within the Goodman property to straddle the boundary with the property to the north.

Issues Resolved During Adjournment Consultation

When the Panel reconvened on 20 May 2008 revised documents (prepared by the Planning Authority, and substantially agreed by parties at the Hearing) were tabled which reflected the following changes that resolved some road issues in contention:

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ƒ The treatment of Taylors Road shown on the May 2008 Structure Plan Diagram which identified in red sections of road as “limited to no flexibility 25m collector road DCP”, and in grey with a red border (the section of Taylors Road north of Colemans Road) as “limited to no flexibility 20m collector road DCP”. The May 2008 DCP details the lane configuration of the various sections of Taylors Road; ƒ A relocated alignment of LR5 to the western boundary of the northern and central portion of Goodman’s land; ƒ Realignment of LR14 to straddle the boundary between the Goodman land and the property to the north; ƒ The insertion of a non‐DCP subdivisional road sought by Pellicano north of the relocated Lyndhurst Drain; ƒ The 100% DCP funding of the Stage 1 intersection of the Dandenong Frankston Road intersection with Glasscocks Road; ƒ Revised costs for the Stage 1 intersection between the Dandenong Frankston Road and Colemans Road. Council drew VicRoads attention to the presence of a scarred tree in the vicinity of the splay in the north east quadrant of the revised intersection. VicRoads advised that it would be willing to reduce the splay if necessary; ƒ Deletion of the activity centre on the corner of Dandenong‐Frankston Road and Colemans Road. VicRoads had submitted that access to an activity centre in this location is problematic. VicRoads considered the only suitable access arrangement would be the consolidation of access to this site with the access to the adjoining industrial area on the north side of Colemans Road73. Access constraints were the key factor in an alternative site being identified for the activity centre. (See Chapter 7); ƒ The removal of the cross subsidy between Lyndhurst and Keysborough for road works from the revised DCP; and ƒ The relocation of the main activity centre to within the Jayco land.

The May 2008 Structure Plan for Lyndhurst shown at Figure 4 reflects these changes.

The subsequent discussion does not address matters that are no longer contentious. Issues that remain in contention to be addressed by the Panel are: ƒ The road network and DCP funding; and

73 VicRoads advised it would be prepared to support a signalised full movement access on Colemans Road, the commercial centre intersection, generally midblock between the two proposed signalised intersections at Frankston Dandenong Road and ER3, to service the commercial centre on the north side and the industrial land on both sides. There would be no access allowed on Colemans Road between the signals at the Dandenong Frankston Road and the signals at the commercial centre intersection. VicRoads clarified at the hearing that the possibility of a service road was not ruled out.

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ƒ The southern leg of LR3 remaining entirely within Goodman’s land. ƒ The implications of increased traffic on Thompsons Road and the intersections at Dandenong‐Frankston Road and Western Port Highway.

6.1.3 The Road Network and DCP Funding

The DCP, which largely is concerned with road works, can be viewed overall as a triumph of pragmatism over principle. The roads included in the DCP are generally arterial or future arterial roads, comprising: ƒ Abbotts Road (an external road to which the Lyndhurst Area will pay a contribution for widening from Remington Drive to ER3 and bridge widening); ƒ Colemans Road (Stage 1 upgrading from ER5 to Dandenong‐Frankston Road, including land acquisition for road widening); and ƒ Glasscocks Road (Stage 1 including land purchase and culverts B3 & B5).

The remaining road segments funded by the DCP are collector roads, and comprise: ƒ Jayco Road (LR4, both the connection to LR5 and a contribution to the cost of the existing constructed section within the Jayco development, over subdivision requirements); ƒ LR5b (LR4 to LR6 (Stage 3) & bridge B1) and LR5c (LR3 to LR4); and ƒ Taylors Road (from Abbotts Road to Glasscocks Road (two lanes except for the southern link from LR14 to Glasscocks Road) and culverts B6 and B7).

The Panel accepts the general view of the traffic experts that the road network proposed is satisfactory, subject to several matters of detail addressed below. With regard to the Sandhurst Club submission concerning the potential exacerbation of traffic problems due to the Lyndhurst Area development, the Panel accepts advice from Mr Kaye and Mr Ashton (for Council) that the major change to traffic patterns on Thompsons Road will come from the opening of Eastlink where there will be a major interchange. It will be a matter for VicRoads to plan to accommodate growth in traffic in the wider road network.

The principal objection to the collector road network, and those collector roads to be included in the DCP, is that it is inequitable. The acquisition of land for the realigned Glasscocks Road also provoked objection, on the ground that VicRoads should have been responsible for the acquisition rather than Council through the DCP.

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Land acquisition for the realigned Glasscocks Road

The Panel had some concerns that the proposals for funding for Glasscocks Road departs from the usual practice whereby VicRoads would acquire the Glasscocks Road reservation, including the residual land between the old road and the new. However, the Planning Authority advised that, if the acquisition is left to VicRoads, funding constraints may well mean the new road reserve could not be acquired for some considerable time. It is proposed that the excess land between the old and new roads will be reserved for native vegetation (and offsets). All things considered, the Panel accepts the proposal for the acquisition of the land as a satisfactory outcome.

Funding of Collector Roads

Council justified DCP funding of Taylors Road on the following grounds: ƒ Taylors Road is centrally located in the precinct, provides accessibility to an even spread of land within the precinct and its early construction will open up land within the precinct; ƒ As significant parts of Taylors Road are flanked by retarding basins or natural vegetation which is to be retained and will prevent direct access, it is unlikely that Taylors Road would be constructed by developers, notwithstanding the role it would play in providing a north south route between Glasscocks Road and Colemans Road and to a lesser extent beyond.74

Council’s view was that Taylors Road is an important collector road due to its location halfway between the Dandenong‐Frankston Road and the Western Port Highway. It needs to be in the DCP to ensure that it is constructed. Taylors Road is abutted by the SITA site, the retarding basin within the Miramah land, a public vegetation reserve on the east side over much of its length, and the conservation area in the south west corner of the Salta land. These abuttals are likely to prejudice its construction unless it was in the DCP.

Council justified the inclusion of central parts of LR5 in the DCP on the grounds that it too was unlikely ever to be built by developers, given its abuttals (the Eastern Contour Drain and the retardation basin) and its distance from the major east‐west arterials. Council did not agree to the inclusion of the remainder of LR5 in the DCP.

Pellicano sought the transfer of funding from Taylors Road to the remainder of LR5 on the grounds that LR5 would offer a better strategic role with its future connection to Remington Drive, and its greater traffic volume.

74 see the opening statement for the Planning Authority

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Goodman sought the inclusion of the remainder of LR5 in the DCP, on the grounds that LR5 will perform a more important role in the traffic network than Taylors Road, and will have higher traffic volumes.

In terms of traffic volumes, the Panel is persuaded that volumes on LR5 will equal or exceed volumes on Taylors Road. This view does not arise from the traffic modelling work, which was challenged in traffic evidence on the following basis: ƒ Remington Drive and Taylors Road were shown on the same alignment, instead of forming a pair of tee intersections at Abbotts Road. While the impact of this error on Taylors Road traffic volumes may not have been large, there were other physical restrictions in the reservation width at the north end of Taylors Road. As noted above, traffic experts agreed that the northern end of Taylors Road should be downgraded from four lanes to two. ƒ Negligible traffic volumes were allocated to ER3a and ER3b, which provides an additional link on the route from Remington Drive and Abbotts Road to Colemans Road, across Dandenong‐Frankston Road and along Bangholme Road to Eastlink.

Mr Ashton held the view that the ER3/ LR5 route would not bring significant volumes of external traffic into the Pellicano and Goodman industrial developments. Mr Turnbull and Mr Walsh contended that the ER3/LR5 route would provide the main north south route for the western half of the Lyndhurst site, as Taylors Road would involve a reverse dog leg from Remington Drive, and there would be no access from the Western Port Highway except for the temporary access at the Salta property, and at Glasscocks Road to the south.

The Panel prefers the evidence of Mr Turnbull and Mr Walsh in respect to future traffic volumes on LR5, who pointed to the intensity of use in the Pellicano and Goodman areas, and LR5 being a logical route to access these.

The usual test for including a road in a DCP is that it serves a strategic function to the area outside the DCP area, and that it offers a wide service to the precinct, as distinct from serving just a few surrounding owners. In its original position, LR5 (other than the central portion already in the DCP) traversed just two properties, Pellicano and Goodman75. Goodman has sought the realignment of LR5 some 200 metres to the west to straddle two properties that abut to the west. Both these properties run through to Dandenong‐Frankston Road, and the proposed collector LR3 traverses both properties. It does not seem

75 There was a sliver of Mirimah Investments land west of the Eastern Contour Drain, but this triangular severed segment of about one hectare is insignificant when compared to the 120 hectares owned by Pellicano and Goodman.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 87 compelling that a variation of the alignment of LR5 instigated by Goodman for its own efficiency of development should open up the provision of that road link to common funding through the DCP.

The inclusion of LR5 in the DCP would further burden the overall cost of the development for all parties, without any commensurate advantage for most.

The Panel does not favour the inclusion of the northern and southern sections of LR5 in the DCP, notwithstanding that LR5 has equal or greater value strategically and in terms of traffic volumes. The arguments that persuade the Panel are that the timing of Taylors Road is uncertain if it is not in the DCP, whereas that the northern and southern sections of LR5 are likely to be constructed to serve development of the Goodman and Pellicano land.

Regarding the proposed principle that the costs for collector roads within the DCP should be limited to the marginal cost of the specified standard above the cost of a subdivisional road provided by the abutting land owners, the Panel makes several observations.

Firstly, if it was adopted, there would have to be a trigger to compel an adjacent owner to contribute its subdivisional share to an abutting DCP road, to allow the construction costs to be covered, when this owner was not proposing to develop, and was not a party to the relevant Development Plan.

Secondly, it is not clear if an abutting owner would be expected to pay the subdivisional share if access to the road was only provided at cross roads (i.e. where a vegetation reserve prevents direct access). If properties without direct access to roads were not required to contribute to the costs, significant under funding of construction could arise.

Thirdly, there has been no analysis provided of the actual financial implications if it was implemented.

In view of these matters, the Panel does not support such a change to the DCP.

Goodman also submitted that the southern leg of LR3 should straddle the property boundaries between Goodman’s land and the property to the north. The revised Structure Plan makes it clear that three trees (numbers 23, 24 and 2576) which are to be protected in a conservation area abut the southern leg on the north side. It appears that siting the leg to straddle the property boundaries could prejudice the conservation values. The Panel only supports the relocation of LR3 if it is confirmed before adoption of the Amendment that these trees can be protected through appropriate development design.

76 Native Vegetation Precinct Plan 14 May 2008, draft for discussion purposes, Lyndhurst Precinct

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Mr Wren for Pellicano raised the issue of the closure of Bayliss Road shown on the Lyndhurst Structure Plan, and the Panel sought advice on the continuing access for the M3 development. Council advised that alternative access would need to be provided, for example the construction of Bayliss Road and a section of Taylors Road, and Council’s agreement to its use. Salta advised that it did not disagree with such an outcome.

Truck Traffic

The Panel was concerned that the issue of truck traffic generation had not been adequately considered. The traffic modelling proceeded from the employment trip generation in the area, and the morning 2 hour peak analysis. VicRoads submitted that it had no robust truck model, but that where truck traffic was about 12½% over 24 hours (as was expected at Lyndhurst), the morning peak hours usually contained only about 4½%‐5% truck traffic, and the evening peak about 6% truck traffic. As intersections congestion was greatest at peak hours, that situation had been modelled. VicRoads believed that truck traffic would not be a limiting factor on the roads, a view that was not disputed by the traffic experts.

The Panel accepted this advice.

Temporary Access at Moreton Bay Boulevard

Salta’s plans for an Inland Port on the eastern side of the Lyndhurst site raise the issue of truck traffic management and access to the Western Port Highway. Salta sought a temporary westerly connection at the intersection at Moreton Bay Boulevard on the Western Port Highway. Salta see direct truck access to the arterial network via this intersection as vital to the Inland Port.

VicRoads were cautious about agreeing to the temporary connection at Moreton Bay Boulevard, as they intend to convert the Western Port Highway to freeway standards in due course. However the intersection is already signalised, and subject to a detailed agreement between VicRoads and Salta concerning the conditions that will trigger traffic volume restrictions at the intersection, and eventual closure of the intersection when the Glasscocks Road intersection with the Western Port Highway (or Freeway, as it may be) has sufficient capacity, VicRoads have agreed to the temporary intersection.

The Panel sees the temporary connection as a most desirable feature, given the large backlog of works that VicRoads has, and the likelihood that the conversion of the Western Port Highway to freeway standards, and the Stage 2 upgrading of Glasscocks Road, will not occur for a considerable period.

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Salta expressed concern the wording of the of the Lyndhurst Structure Plan77, providing that a temporary access to the Westernport Highway be included in the collector road network, conditional on the adjacent land being developed as an inland port. Salta would prefer to see flexibility for the connection to provide for other traffic arising from development of its land prior to the development of the inland port. VicRoads agreed to the removal of the condition, if the clause included “at the discretion of VicRoads”.

A related matter is the presence of the at grade intersection on the Western Port Highway at Bayliss Road. Late in the hearing VicRoads clarified that from its perspective, the Bayliss Road access to the Western Port Highway could be left as it is.

6.1.4 Access to the Declared Arterial Network

VicRoads Principles

VicRoads provided the following five principles guiding the access to Dandenong‐Frankston Road and other declared arterial roads within the Lyndhurst Area, namely Glasscocks Road and part of Colemans Road78: ƒ the connections should be limited to left in and/or left out movements only in the form of either subdivisional road connections or service road connections; ƒ the land the connections service should continue to have internal road connectivity via the signalised intersections to provide for safe right turning movements, especially for trucks; ƒ the entry and exits of any service roads should be adequately spaced (100 metres minimum) from the signalised intersections to minimise confusion and conflict with traffic turning at the intersections, to allow for the provision of a left hand turn deceleration lane at the entry and to allow traffic exiting the service road to safely access the right turn lanes where U‐turns would be allowed; ƒ any subdivisional road connections should carry no more than 1,000 – 2,000 vehicles per day and have low level of interconnectivity to limit the attractiveness of the routes for ‘rat runs’; and ƒ any subdivisional road connections should be located to allow the provision of a left turn deceleration lane and desirably be mid distance between signalised intersections.

77 dot point under Section 4 of the Structure Plan 78 LR16 including between LR5 and Dandenong Frankston Road

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The access principles would permit the proposed additional east‐west road immediately north of the Eastern Contour Drain (subject to ongoing discussions with VicRoads), but would not permit direct access from properties in Colemans Road west of LR5 or the proposed service road along Dandenong‐ Frankston Road.

The Panel supports the set of principles which provides clear guidance to all parties and should be included in the Amendment documentation (see Chapter 10).

With regard to the Hillblock submission, the Panel notes that Mr Ashton (for Council) advised that direct access to the two roads will not be allowed but there may well be a design that could satisfy both VicRoads and Council access requirements. The Panel agrees with Council that this is a matter for the planning permit stage.

6.1.5 Road Cross Sections

There have been different views put as to the form of various collector roads. Council favours a cross‐section with one lane in each direction, a central turning lane, and parking. Pellicano submitted that parking is neither necessary nor desirable on collector roads within modern industrial estates. There were also differences about whether links such as LR15 should be four lanes or two.

The principal reason for addressing these matters now is to ensure that the DCP adequately funds road construction.

The John Piper Traffic report79 shows Council’s two lane collector road width as a 15 metre pavement within a 25 metre reservation. The 15 metre pavement consists of a central 4.0 metre turning lane, and in each direction a 3.5 metre through lane and a 2.0 metre parking lane for cars. This cross‐section provides the flexibility to line mark for two lanes in each direction in the future without additional cost compared to a two lane collector road80.

The need for footpaths on each side of collector roads was also raised. Council submitted a plan showing the typical cross‐section for industrial roads, which provided for a 1.4 metre path on one side of the road only, whereas budget estimates81 provide for two 1.5 metre footpaths but the description in the DCP82 provides for two 2.5 metre wide footpaths. Pellicano advised that they had

79 see Figure 6 John Piper Traffic Pty Ltd report Traffic Analysis and Road Costing, February 2007 80 see Figure 8 John Piper Traffic Pty Ltd report Traffic Analysis and Road Costing, February 2007 81 For a 2 lane collector road with a 15 metre carriageway - Appendix 3, John Piper Traffic Pty Ltd report, February 2007 82 see, for example, the description of Taylors Road RR011 in Appendix 2a of the DCP

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 91 developed industrial estates within the City of Greater Dandenong that had no footpaths but, after observing the actual behaviour of people within the estates, they had retro‐fitted a footpath on one side of the road only. The Panel has visited these estates, and observed the very small demand for pedestrian use.

In its closing submission, Council clarified that collector roads will require a 2.5 metre footpath on one side, and a 1.4 metre path on the other. Where there are physical circumstances that don’t justify the provision of two paths, such as an adjacent public open space reserve with a linear path, the remaining path will be 2.5 metres wide. For local roads, a 2.5 metre path on one side is required.

The Panel is satisfied that the road reserve widths and road costs are adequate for the DCP, whatever detailed line‐marking is eventually adopted. Concerning the provision of footpaths on both sides of collector roads in an industrial estate, the Panel views this is as an over‐design and believes a single 2.5 metre footpath is sufficient.

6.2 The Proposed Road Network, Traffic Volumes and External Use at Keysborough

6.2.1 Background

The exhibited road network proposed for the Keysborough Area is shown on the Structure Plan83. The collector roads proposed for the Keysborough Area are shown below in Figure 1284.

Longer term upgrading of the existing network of major roads, beyond the works to be included in the DCP, includes work on the Perry Road‐Bangholme Road‐Colemans Road route. Colemans Road is intended to be constructed over the Eumemmerring Creek, to connect with Bangholme Road, and an interchange will eventually be provided with Eastlink, connecting to Perry Road in the north west. VicRoads advised that this work is not presently considered a short term (within the next 5–10 years) priority project but would be subject to future review.

83 Reproduced from the Dandenong South Industrial Area Extension Structure Plan prepared by SGS Economics & Planning, Figure 7: Keysborough Structure Plan. 84 Reproduced from the John Piper Traffic Pty Ltd report, “Structure Plans for the Extension to the Dandenong South Industrial Area, Traffic Analysis and Road Costing, February 2007”, Figure 10 — Recommended Road Widths, Keysborough.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 92

Figure 12 Proposed Collector Roads in the Keysborough Area

Roadworks to be included in the Keysborough DCP85 are: ƒ Abbotts Road from Remington Drive to ER3, and bridge widening; ƒ Taylors Road from Bayliss Road to Colemans Road; ƒ Perry Road from Greens Road to R7; and ƒ Perry Road‐South from R7 to Bangholme Road.

Intersection treatments associated with these road upgrades are also included in the DCP. No internal collector roads, nor any intersections along Greens Road, are included in the DCP.

6.2.2 Submissions

Australand originally sought development of Chandler Road to be linked Greens Road to the Dandenong Bypass. Council advised it had formally resolved to truncate Chandler Road just south of Bend Road under Amendment C36. Australand did not pursue their opposition to the truncation of Chandler Road in view of Council’s decision.

The following issues were not resolved at the meeting of experts.

85 see DCP Appendix 2a

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Collector Roads South of Greens Road

Mr Greco (who owns 241 Perry Road, the block immediately north of the lettering KR7) and Hopin Pty Ltd (the owner of 259–265 Perry Road) sought the alignment of internal collector roads at property boundaries, rather than wholly within or dissecting their properties.

Mr Greco submitted that KR7 should be realigned on his property boundary instead of dissecting it.

Hopin, represented by Mr Fetterplace, is concerned that the location of KR7 will have severe implications on future development of the land, that the delineation of collector roads is premature, and that there is no reference to how land for the proposed roads will be developed. The L shaped block would be dissected by the southern end of KR7. Mr Fetterplace told the hearing that his client’s preference is to remove reference to the proposed alignment of the Perry Road to Greens Road collector road on the plan and either (i) apply a note to the Structure Plan indicating that the future requirement for the provision of a north‐south collector road link to be provided is subject to future investigations at the development plan stage; or (ii) realign the Perry Road to Greens Road collector Road to the northern property boundary at his clients site. If it is necessary to ‘lock in’ this collector link, it was submitted that the DCP should include acquisition costs that reflect the reservation area and the fragmentation of the land.

Collector Roads North of Greens Road

Australand sought the flexibility to adopt a different arrangement of collector roads north of Greens Road. Australand also held the view that nomination of collector roads was premature, and the draft version of the Structure Plan diagram it presented (Hearing Submission 82) carried a notation against Collector Roads in the legend as follows “Indicative only, with the actual road pattern to be resolved at the development plan stage”.

Cross Subsidies between Lyndhurst and Keysborough

Australand objected to the apportionment of works in Lyndhurst to the Keysborough DCP. Salta queried the contribution required by Lyndhurst owners to the construction of Perry Road.

Other

G Grenda (a Keys Rd resident) was concerned that the upgrading of Perry Road would increase the use of Keys Road by traffic, particularly trucks, using it as a short cut to Huttons Road, and Mr Grenda also sought the sealing of Keys Road.

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Keys Road is outside the boundary of the Amendment area, and the Panel’s view is that any consideration of the future treatment of Keys Road is a matter for Council.

Evidence

Mr Damien Hancock of Traffix provided detailed evidence relating to the issues and options for the road connections from Greens Road to the Australand holding, both north and south of Greens Road. VicRoads took issue with a number of matters, including the proximity of the intersections to the Eastlink ramps, the sight distance available, the spacing of controlled intersections, the predicted traffic volumes, the number of turning lanes required, the physical space available for the intersections. Eventually Australand and VicRoads agreed on a layout, which is detailed below in Chapter 6.2.3.

6.2.3 Issues Resolved During Adjournment Consultation

When the Panel reconvened on 20 May 2008 revised documents were tabled which resolved nearly all the contentious road issues relating to the Keysborough Area. The new Structure Plan for Keysborough that reflects these changes is shown at Figure 7.

One minor further change agreed by the Responsible Authority in response to a query from the Panel was the wording of the Legend in respect to the internal collector roads, where the notation “exact alignment of road may vary” will be amended by deletion of the word “exact”.

VicRoads advised that the secondary road connection providing access to the land north of Greens Road was desirable for accessibility, but not necessary, and VicRoads would not object if it was not provided.

As detailed in Chapter 6.1.3 the cross subsidy between Lyndhurst and Keysborough for road works was removed in the revised DCP. Parties either agreed to the cross‐subsidy being removed, or left it to the Panel to make a recommendation on the issue. The Panel supports the removal of the cross‐ subsidies.

6.3 Public Transport

The Structure Plan identifies the opportunity to promote public transport and non‐motorised vehicle access by incorporating bus interchange facilities, sidewalks and bicycle tracks into the Development Plan approval process, and ensuring that the road network will accommodate expanding bus routes into the area in the future.

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Submissions questioned the DPO5 requirement for an Integrated Transport Plan (ITP). Mr Morris put it that the ITP requirements over‐estimate the power of developers. In fact, he submitted, public transport providers respond to consumer demand, and to effect change it is necessary to influence the consumers.

The Panel agrees that land developers are not in a position to determine the level of public transport service provided to an area and at the subdivision stage their influence is limited to ensuring efficient routes with appropriate configuration are provided for potential public transport services. The Panel queried whether Green Travel Plans, mode share, monitoring and car parking can be addressed prior to the development application and in some cases when an application is made for a specific use ‐ Mr Peak responded that they could not.

The requirement for an Integrated Transport Plan requiring the provision of mode share targets, preparation of Green travel Plans, Car parking, implementation and monitoring measures, and details of infrastructure changes were deleted from the revised version of DPO5 tabled near the conclusion of the hearing.

The Panel supports these changes.

6.4 Conclusions and Recommendations

Conclusions – Lyndhurst

The Panel concludes that: ƒ the traffic analysis (save for the coding error that results in ER3 having virtually no traffic) and the collector road network for Lyndhurst as amended in the Structure Plan dated 20 May 2008 provides an adequate basis for subsequent development planning; ƒ the northern and southern portions of LR5 (LR5a, LR5d , LR5e and LR5f) should not be included in the DCP; ƒ the principles tabled by VicRoads relating to access to specified declared roads provide clear guidance to all parties and should be included in the Amendment documentation; ƒ the Lyndhurst Structure Plan clause referring to the temporary access to the Westernport Highway should be amended by replacing the phrase “if the adjacent land is developed as an inland port” with “subject to the satisfaction of VicRoads”; ƒ the road reserve widths and road costs are adequate for the DCP, whatever detailed line‐marking is eventually adopted; and

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ƒ the provision of footpaths on both sides of collector roads in an industrial estate is an over‐design, and a single 2.5 metre footpath is sufficient.

Conclusions – Keysborough

The Panel concludes that the amended Structure Plan dated 20 May 2008, with the word “exact” deleted from the Legend, provides an appropriate basis to address traffic issues in development planning for the Keysborough Area.

Conclusions Applying To Both Precincts

The Panel concludes that the revised requirements for Integrated Travel Plans in industrial areas should be adopted. The requirements to provide mode share targets, preparation of Green Travel Plans, Car parking, implementation and monitoring measures, and details of infrastructure changes should be deleted.

The Panel supports the removal of the cross‐subsidies between the Lyndhurst and Keysborough Areas for road projects.

Panel Recommendations

Exclude the northern and southern portions of LR5 (LR5a, LR5d, LR5e and LR5f) from the DCP.

Include the principles tabled by VicRoads to guide the consideration of access to specified declared roads in the Amendment documentation.

Amend the Lyndhurst Structure Plan clause referring to the temporary access to the Westernport Highway by replacing the phrase “if the adjacent land is developed as an inland port” with “subject to the satisfaction of VicRoads”.

The provision of footpaths on both sides of collector roads in an industrial estate is an over‐design, and a single 2.5 metre footpath is sufficient.

Remove the cross‐subsidies between Lyndhurst and Keysborough Areas for road projects from the DCP.

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7. Commercial Centres

The Amendment plans to identify three activity centre locations to service the Amendment Area.

What is the Issue? ƒ Are the locations and scale of the identified commercial centre locations appropriate for an industrial area?

What is proposed?

The 20 May 2008 Structure Plan86 sets out the proposed activity centres for the Amendment Area.

The design rationale for the Keysborough site proposes a local commercial centre that: · “Provides shops and services (both personal and business) in a location that is both convenient for the estate and enjoys good exposure to passing traffic. · Is provided access by the internal road network. · Is appropriately located near conservation areas and/or public open space.”

A fuller description of what is proposed is outlined as follows: A small activity centre of between 1200m2 and 1500m2 floor area is proposed for the area on Perry Road which would provide a range of uses that actively compliment the surrounding industrial use of the land. This centre will be required to be well designed and considerate to the surrounding Green Wedge Zone to the west of Perry Road. The development of any activity centre that abuts a Green Wedge Zone will be required to provide a landscape setback of 20m to ensure that the amenity of the Green Wedge is maintained. The scattered River Red Gums throughout the designated site must be retained in context of the development of the site as a minor local commercial centre. This centre will be the focus of all non‐industrial uses, with the sprawling of commercial activity along the remainder of Perry Road strongly

86 Sections 2.2.2 and 2.2.4

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discouraged. Total floor space would be in the order of 1200 sqm and 1500sqm with a site area of around 1 hectare.

Two activity centres are proposed within the Lyndhurst site. The design rationale provides the following outline: ƒ One on the Frankston Dandenong highway (Jayco land) that provides a range of retail, commercial and other services relevant to the industrial development in the area in a location that is both convenient for the whole industrial area (including existing industry beyond the estate to the north) and enjoys good exposure to passing traffic (the new centre). ƒ One on Glasscocks Road that provides a daily convenience function shop in a location that is both convenient for the area of higher worker density (in the southeast corner of the estate) and enjoys good exposure to passing traffic (the south east centre).

A fuller description of the larger centre is outlined as follows: An activity centre of approximately 6000m2 floor area is proposed for the Lyndhurst site in the vicinity of the Frankston Dandenong Road, as shown on the Structure Plan Diagram. The role of this centre will be to service not only the industrial area extension, but the existing industrial area within Dandenong South, and will be zoned appropriately. This centre would provide shopping plus personal and business services for the area. Abutting a Green Wedge Zone, the design response must consider the amenity of this area.

The smaller activity centre of between 1200m2 and 1500m2 on Glasscocks Road would provide a range of developments and uses that complement the surrounding industrial uses. This centre will be required to be considerate to the surrounding Green Wedge Zone to south of Glasscocks Road, with a significant landscape setback of a minimum of 20m from the future Glasscocks Road. This centre is intended to complement the activity in the vicinity of Frankston Dandenong Road.

The 20 May 2008 Structure Plan87 also sets out the need for the development of an Urban Design Framework (having regard to the Activity Centre Guidelines) to guide the specific design, layout and built form of the proposed activity centres. The activity centres are to incorporate public plazas to provide a focus point for the local community and a meeting point for the area’s workers. These public plazas are to be attractive and vibrant, to contribute to a strong local character that is influenced by the natural environment. It is envisaged that the public plazas will play an important

87 Section 4.5

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 99 role in the development of an Integrated Transport Plan, by locating public transport interchanges within each commercial centre88.

Policy Context

State Planning Policy (Clauses 12.01‐2 and 17.01) is directed at encouraging the concentration of major retail, commercial, administrative, entertainment and cultural developments into specific activity centres. Clause 19.03 Urban Design requires planning and responsible authorities should have regard to Activity Centre Design Guidelines89.

Submissions

The principal matter arising during the hearing related to the location of the larger Activity Centre in the Lyndhurst Amendment Area. While the original Structure Plan proposed a location on Melbourne Water owned land at the north east corner of Frankston Dandenong Highway and Colemans Road, it became apparent during the Hearing that access restrictions to this site from both roads effectively rendered development of the site as an Activity Centre both impractical and commercially unviable.

Council’s proposal to relocate the centre to a site on Frankston Dandenong Highway south of Jayco Road was included in the 20 May 2008 version of the Structure Plan. This outcome was supported by VicRoads and the owner of the site and was not challenged by any other party.

Discussion

The Panel accepts the exhibited location of larger Lyndhurst Activity Centre was unworkable and the alternative location now proposed is appropriate.

It is noted that, while specific justification for the activity centre floor area limits in the Structure Plan and schedule to the B1Z was not presented, the scale of the centres was not contentious and is also accepted by the Panel.

Similarly, the proposed design guidelines for the activity centres were not challenged and are accepted as broadly consistent with the generic activity

88 Each public plaza should incorporate (but is not limited to): Paving and street design that comfortably and safely accommodates pedestrians and cyclists; Pergolas, shade structures or similar; Advanced planting and landscaping that maintains sightlines for natural surveillance; Seats and bins; Integrated lighting to enhance visibility and safety; Automatic teller machines; Public toilets and telephones; Public transport; Minimal, well located and integrated signage; Public art to engage visitors to the site; Bicycle facilities to facilitate sustainable modes of transport; Linkages to pedestrian, cycle and road network to promote accessibility and use. 89 Activity Centre Design Guidelines (Department of Sustainability and Environment 2005) referred to in Clause 19.03-3

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 100 centre design guidelines90 that would also apply. It is noted that the 20 metre set back proposed for the activity centres maintains the setback that would apply in Glasscocks Road and Perry Road anyway. However, the Panel questions the specification of this setback in relation to the larger Lyndhurst site as the retarding basin between the site and Dandenong Frankston Road will achieve the intended purpose and a further substantial setback from the property boundary is not warranted.

Another change that arose during the hearing related to the proposed location for the Keysborough centre. The exhibited document located this Activity Centre on Perry Road adjacent to the southern boundary of a ‘Private Vegetation Reserve’ at approximately the midpoint between Greens Road and Eastlink.

The 20 May version of the Structure Plan reconfigured the layout of this area, whereby the proposed Native Vegetation reserve has been extended over the proposed site of the Activity Centre and the Activity Centre itself has been shifted to the west behind the Native Vegetation Reserve. The Activity Centre no longer has direct access to Perry Road and instead will rely on a Collector Road, which has been moved north from its previous location.

The Panel understands that Australand controls the property which contained the original as well as the new site of the proposed Activity Centre and did not oppose the layout proposed in the 20 May version of the Structure Plan.

While the proposed new layout does not appear to have been controversial the Panel, in forming a view, is mindful of the Design Rationale91 which specifically notes the need to position the Activity Centre in a location that is both convenient for the estate and enjoys good exposure to passing traffic. The Panel notes that in the same section the Structure Plan states the Activity Centre should also be “located near conservation areas and/or public open space.”

While the proposed location fulfils the second criteria the Panel is not certain the first element is satisfied. Indeed the Panel is concerned that if the Native Vegetation Reserve between the Activity Centre and Perry Road is re‐ vegetated there may be limited exposure to passing traffic on Perry Road.

An alternative may be to relocate the Activity to the southern corner of where the Collector Road will intersect with Perry Road, a location that appears to better satisfy the features outlined in the Design Rationale.

90 Activity Centre Design Guidelines (Department of Sustainability and Environment 2005) referred to in Clause 19.03-3 91 20 May 2008 version of the Structure Plan, Section 2.2.2

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The Panel acknowledges however that this is a matter best left to the Development Plan stage.

While the 20 May version of the Structure Plan Diagram notes that the precise location of the Activity is subject to detailed design, the Panel has formed the view that a more explicit statement of flexibility is desirable. Consequently the Panel believes the location of the Activity Centre should be identified as “indicative” in the Structure Plan Diagram.

Panel Recommendations

Update the 20 May 2008 Version of the Development Contributions Plan to reflect revisions to the Structure Plan and recommendations elsewhere in this Panel report.

Rezone the Melbourne Water land in the Lyndhurst area on the north east corner of Dandenong Frankston Highway and Colemans Road as IN1Z rather than the exhibited B1Z.

Rezone the land identified for the activity centre on the south sided of Jayco Drive in the location indicated on the 20 May Structure Plan to B1Z, and amend the B1Z schedule to apply the provisions exhibited for the Coleman’s Road site to this land.

Revise the Structure Plan to clarify that a 20 metre setback is not required from the western boundary of the larger activity centre in Lyndhurst as an integrated design treatment with the adjoining retarding basin would serve the intended urban design purpose.

Revise the Structure Plan Diagram to identify the nominated site for the Keysborough Activity Centre as an “Indicative location of Activity Centre”.

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8. Interface Treatments

8.1 Interface Treatments

Interface treatments are addressed by the Structure Plan and its urban design provisions by indicating new commercial or industrial areas should: ƒ Be separated from existing and future residential areas by significant buffers of open space and/or a main road. ƒ Restrict the potential for industrial traffic to filter through to residential areas. In particular, this will be achieved by restricting access along the Western Port Highway to the intersection with Glasscocks Road only within the Lyndhurst site and the closure of Bend Road to the north of the Keysborough site. ƒ Protect the amenity of the adjoining green wedge by limiting points of vehicle access; protecting and enhancing vegetation and requiring a 20m landscape setback for all developments adjoining a Green Wedge Zone; ensuring signage is unobtrusive. ƒ Ensure an appropriate building scale and mass along boundaries with sensitive uses (Clause 22.03 policy specifies a setback from residential uses of ½ the building height plus 1.5m).

What is the Issue? ƒ Are buffer treatments to the west of the Keysborough Area (ie with Amendment C36 residential land) adequate? ƒ Are the waste management operations on the Sita site adequately protected? ƒ Is the treatment of the interface to the Westernport Highway addressed appropriately? ƒ Will the amenity of existing residential properties within the Amendment area and nearby residential areas, particularly to the east of the Lyndhurst Area, be protected?

8.1.1 Interfaces with Keysborough Community Uses

The May 2008 Structure Plan requires landscape buffers that: Separates(sic) new industrial development from residential areas and community uses where appropriate.

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Keysborough Turkish and Islamic Cultural Centre (KTICC) owns a 9.7 ha community facility, which includes Mt Hira College, at 396 Greens Road. This site has a planning history spanning 20 years which was set out in the Advisory Committee appointed to consider whether the school use should be regularised. Permits for the school and associated sporting facilities issued in 2002 with subsequent approvals of stage 1 and stage 2 developments. Amendment C80 proposes to rezone the triangular to SUZ4 and apply a site specific DPO692 but has not yet proceeded to the Panel stage.

KTICC’s original written submission on Amendment C87 opposed the industrial zoning of land adjoining their site and sought incorporation of landscape buffers on adjoining land as is proposed at the interface with residential areas north of Greens Road. At the hearing this submittor was represented by Mr Spozio who focussed on the lack of specificity of interface treatments for the site. Mr Spozio noted that the Stage 2 permit for additional school buildings had regarded existing landscaping on their site, together with vegetation on adjoining land, as providing a substantial buffer to surrounding properties. However, this vegetation is not protected under the NVPP. Mr Spozio acknowledged that Clause 32.10 and development permit requirements provide for merits based evaluation of industrial proposals but sought greater certainty about interface treatments. He referred to the treatment of interfaces with residential development to the north and argued that, as a minimum, the Structure Plan and DPO should specify minimum landscaped buffers to address the adverse impacts associated with the encroachment of industrial development on an established sensitive use.

Australand objected to locking in the prescription a requirement for a vegetative screen adjacent to Mt Hira College in the incorporated plan as the vegetation has not been assessed and a range of interface treatments may achieve the intended planning objective.

Mr Van Wyk, who operates Van Wyk Nursery, owns the 440 Greens (on the corner of Perry Road) and 410 Greens Road. His written submission noted that 440 is identified (largely) as a vegetation reserve and also queried the constraint which KTICC would impose on industrial development of 410 Greens Road. The submission raised the possibility of an alternative scenario of adding his land to the proposed residential development to the north (Amendment C36) while acknowledging the land is well placed in relation to both residential and industrial boundaries.

92 The Development Plan ‘requirements’ in the exhibited DPO6 schedule are generic elements that establish the scope of the plan but do not specify any site specific responses to be included.

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Discussion

It is recognised that the Van Wyk land adjoins and is opposite sensitive uses and a substantial area is constrained by native vegetation, but the combined property does provide for more than 6 ha of developable land. The Panel was not able to explore Mr Van Wyk’s views at the hearing. In the circumstances, the Panel does not think it is in a position to recommend such a substantial change to the Amendment.

There are a number of potential responses to the specific circumstances applicable to particular sites which have not been specifically explored in relation to community uses in the Keysborough Area, including the KTICC site. In the case of the interface with residential land north of Greens Road, options such as combinations of tree reserves and roads have been explored and there is either agreement (or at least no objection) to the arrangements proposed. This has allowed a more specific treatment of these areas in the planning framework.

Both the proposed Structure Plan and DPO5 identify the need to address interface treatments with adjoining community uses. The Panel agrees that, in principle, it is appropriate to address this issue at the Development Plan if agreement on interface treatments has not been reached at the structure plan stage. However, it is concerned that KTICC (and other long term community uses) may have few rights in subsequent planning processes. The Development Plan must be to the satisfaction of the responsible authority and third parties do not have explicit rights. Then, once a Development Plan has been approved there are no third party rights for subsequent permits.

Therefore the Panel supports greater specification of the interface treatments that should be provided in the Development Plan for long term community uses.

The Panel suggests the DPO should indicate that a 30 metre ‘buffer’ between industrial properties and community uses should generally apply93. This interface treatment should take account of the existing circumstances, such as the required screen planting on the KTICC site, and could include a road as well as planting.

While a development plan cannot change the scope of discretion applicable in a zone, as Council pointed out, the Development Plan can address land use where the zone provides discretion. In this case the IN1Z provides

93 In the IN1Z industrial uses more than 30 metres from a sensitive use only require a permit if a threshold distance is specified in Clause 52.10. This establishes some form of ‘benchmark that is reasonable to adopt here.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 105 discretion to evaluate industrial uses through the permit process if Clause 52.10 threshold distances are not satisfied. The Panel considers the Development Plan should indicate that industrial uses should satisfy threshold distances from community uses and existing or proposed residential uses. This would make it clear that uses that do not satisfy threshold distances are discouraged and would maintain third party rights if such a use is proposed.

8.1.2 Interfaces with Residential uses

Interfaces with Existing Residential Uses within the Amendment Area

Mr Willrath, who lives at 305 Greens Road made a written submission94 objecting to the rezoning of land against owners’ wishes. The submission argued that existing rural residential uses have not been considered, these uses should be entitled to remain and if the rezoning proceeds buffers in the order of 200 metres should be provided.

The exhibited Structure Plan indicated in the Lyndhurst Area that: There are a number of existing rural residences on the south side of Colemans Road (see Figure 8). In the course of the study a meeting was held with representatives of this area. There was a general recognition shown by the residents that the land would eventually become industrial but the feeling of the majority was that they preferred that this happen later rather than sooner. Interface issues with existing residents will be managed via the Development Plan approval process (Structure Plan Page 50).95

The exhibited and 20 May 2008 version of the Structure Plan indicated: ‘The design of new commercial or industrial areas should be separated from existing and future residential uses and community uses by appropriate buffers of open space and/or a road.’ It also specifically highlighted the need to manage interface issues in relation to existing rural residences on the south side of Colemans Road via the Development Plan approval process.

In the Keysborough Area, Mr Willrath was the only objecting existing rural residential property owner from within the Amendment area. The Panel has discussed the strategic merit of the Amendment in Chapter 2 and generally supports the industrial rezoning proposed. However, the planning

94 Mr Willrath’s brief written objection to Amendment C87 indicated he continued to oppose the industrial rezoning as set out in his earlier submission relating to Amendment C67. The Panel has referred to that earlier submission. 95 page 50

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 106 framework should respect the residential uses that remain, potentially for many years, while the area changes to an industrial precinct. However, there is no justification for a 200 metre buffer, which would sterilise much of the area for industrial development. While the Panel has suggested a 30 metre interface treatment as a benchmark for community uses which are recognised in the planning framework as long term uses, more flexibility may be warranted in relation to residential uses.

In relation to the Colemans Road properties, existing vegetation is an important feature which, together with some supplementary planting within the industrial area, should go a considerable way towards buffering residential uses while they remain.

The Panel considers this provision appropriately highlights the issue for consideration although the Development Plan responses to the issue have not been explored or foreshadowed. It is appropriate to maintain a degree of flexibility for the subsequent planning process to adopt the most suitable treatment, taking into account the specific circumstances of particular interfaces. Given the Panel’s concern about the limits of stakeholders’ future rights under the DPO the Panel considers the Development Plan should required landscaping or other measures on industrial land to achieve effective screening of industrial development from existing residential and rural residential properties. The Panel has also recommended the inclusion of a Development Plan requirement that Clause 52.10 threshold distances should be satisfied (see discussion in Chapter 8.3.1).

Interface with Residential Areas Adjoining the Keysborough site

The 20 May 2008 Structure Plan requires a buffer of 30 metres proposed residential development to the east of the Keysborough Area (Amendment C36) and the proposed industrial zone north of Greens Road. Provision of the buffer is provided on both residential and industrial land (with varying arrangements along the boundary.

The following buffer treatments have been agreed (or there is no objection) from affected landholders: ƒ a 20 metre wide road reserve adjoining the Polish Catholic Centre; ƒ a 25 metre road reserve (including a 5 metre landscape strip the western edge of the road reserve) or a 25 metre wide landscape reserve adjoining the Intrapac land (to the north of the Polish Catholic Centre); and ƒ a 15 metre wide landscape reserve along the remainder of the boundary with proposed residential development.

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The Panel accepts this interface treatment, which is consistent with the arrangement endorsed by the C36 Panel.

The Amendment C36 Panel noted that the management of potential conflict between the proposed residential and industrial uses and development may not necessarily be fully resolved by the combination of 30 metre separation distances and the provisions of Clause 52.10. The option of applying an Industrial 3 Zone , which has a purpose ‘To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.’ and requires a permit for industrial uses as well as development, was explored by the current Panel. It noted that it is common practice to apply the IN3Z at the interface between residential and industrial areas and this is in fact the practice elsewhere in the City of greater Dandenong.

Australand opposed the application of the IN3Z arguing that use permits should not be routinely required for industrial uses in view of the combination of following requirements and circumstances: industrial and residential traffic are completely separated; the proposed interface treatment will achieve effective visual screening; the requirement for a permit for development; the requirement for a permit for specified uses with recognised potential for adverse amenity impacts96 and the obligation to comply with SEPP N1 noise limits. It was also submitted that placing land in two zones is not good practice.

Council and Intrapac, a major landholder of adjoining residential land, did not argue for the IN3Z.

The Panel is conscious that it must consider the interests of the future residents of the C36 area, not just the current landholders. Nevertheless, it is persuaded that the IN1Z is acceptable in the current circumstances. Traffic, visual impact, and uses causing greater potential for concern are addressed by the framework proposed. The main issue that a permit for use is likely to address is operating hours and SEPP N1 provides a means (albeit with more difficult enforcement demands) to address potential noise issues that could arise from night time operations. The Panel accepts that the IN1Z is acceptable.

Potential Impacts on Residential Development to the East of the Lyndhurst Area

Mr Rahula, a resident of Lynbrook to the east of the Lyndhurst Area objected to industrial zoning due to impacts on residential areas to the east. The City

96 If Clause 52.10 threshold distances are not satisfied.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 108 of Casey submitted that potential adverse impacts from industrial development in the Lyndhurst Area on residential areas to the east should be recognised in the planning framework for Lyndhurst. The potential for noise, light emissions, traffic and visual impacts from the inland port contemplated for the Salta site, which could operate 24 hours/day, were highlighted.

While the Casey submission recognised that both zone provisions and permit requirements for uses with off‐site amenity impacts (pursuant to Clause 52.10) allow consideration and management of impacts, it argued that early consideration of the issue would improve both the quality of outcomes and certainty for all stakeholders. The Council sought recognition in the Structure Plan of the potential for impacts on sensitive uses and additional design guidelines and a requirement for a planning/design response to address any surrounding sensitive uses in the DPO as follows:

Suggested Revisions to the Structure Plan Industrial development within the ‘Lyndhurst site’ has the potential to adversely affect residential suburbs of Lynbrook and Lyndhurst, within the City of Casey. Interface and amenity issues will be managed via the Development approval process.

Suggested Additional DPO development Plan requirement The development plan must consider appropriate landscape and design solutions to limit amenity impacts on surrounding residential land.

As mentioned in relation to the residential land to the east of the Lyndhurst Area, Salta noted that part of this interface is screened by the railway overpass.

Discussion

A number of factors mitigate the potential impact of industrial development in the Lyndhurst Area on residential development to the east, particularly the width (in the order of 100 metres) and form of the intervening highway. Background noise levels from the highway already affect these residential areas. The Panel notes that these residential areas have been designed to take account of the interface with the highway and the industrial use and development will be subject to regulatory framework that allows impacts to be considered97.

97 For example a permit would be required where Clause 52.10 threshold distances were not satisfied and SEPP N1 establishes noise limits to be met.

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The Panel does not support the suggested revision to the Structure Plan but does consider it is reasonable to highlight potential impacts on residential amenity as a matter to be addressed by the Development Plan. This is already addressed in the Amendment documentation. The Panel has also recommended the inclusion of a Development Plan requirement that Clause 52.10 threshold distances should be satisfied (see discussion in Chapter 10.3.1).

8.1.3 Interface with the Western Port Highway

Planning policy aims to achieve attractive interfaces with major transport98 . The City of Casey highlighted the risk of poor interface treatments as Westernport Highway access restrictions may promote development that turns its back on the highway. The presentation to the highway could consist of blank concrete walls, back of house industrial operating areas and towers of shipping containers. While it was acknowledged that the Structure Plan provides guidance in terms of siting and design treatment of buildings along major roads the City of Casey sought a more specific reference to ‘preferred interface’ treatments which ensured building facades front Western Port Highway. An internal loop road running parallel to Western Port Highway was a suggested design response99. Revision of the Structure Plan Design Rationale ‐ Internal Roads was suggested.

Salta noted that part of this interface is screened by the railway overpass.

Discussion

Poor interface treatments along many freeways and major roads where direct access is not allowed confirm that the City of Casey’s has legitimate concerns about the issue. The Panel agrees that the design rationale in the structure plan and DPO 5 requirements for a development Plan should explicitly addressed the interface treatment of Westernport Highway. This will also maintain the visual amenity of the residential areas on the eastern side of the highways.

8.1.4 Sita Waste Disposal Site Interface and Buffers

Sita’s presentations to the Panel emphasised the importance of their site on the northern side of Colemans Road as it is State’s only prescribed waste facility. They highlighted the community sensitivities to this use and sought revision of the planning framework for the locality to recognise the

98 Clause 18.01-2 99 An example of this approach is Commercial Drive in Lyndhurst (City of Casey) which runs parallel to the Western Port Highway

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 110 significance of the site’s waste management functions to the State and to ensure that development in the Amendment area does not prejudice these operations.

Concern was expressed that ‘new economy’ uses to be promoted may be more sensitive to potential off‐site impacts from the Sita site. They highlighted that, even where best practice facilities and management are in place, offsite impacts can occur under upset conditions.

New economy businesses with larger offices and higher concentrations of employees intended for the Amendment area are likely to have higher amenity expectations than more traditional industrial users which could translate to constraints on landfill development and operations. Sita noted that the planning framework proposed (IN1Z with a DPO) excluded third parties from subsequent permit processes and this reinforces the need to ensure the interests of stakeholders in the locality are addressed at the Amendment stage.

Sita sought further explicit support for their landfill in the MSS, requesting a new objective in 21.04‐4 ‘Protect the future operation of the Lyndhurst landfill.’ It was also submitted that the Amendment failed to adequately address interface issues for their waste disposal facility. Requirements for adequate buffers and design responses in the structure plan and DPO were sought with the ‘agent of change’ (developers and users in the Amendment C87 area) being explicitly responsible for ameliorating potential impacts. Sita provided, at the invitation of the Panel, the following suggested addition to DPO5: Appropriate treatment and buffering of the interface between the Lyndhurst landfill and the land in the plan.

It was noted at the hearing that few of the uses capable of being considered under the proposed IN1Z would normally be considered sensitive and there is little discretion to manage light industrial uses in the zone. The form of buffering and treatment sought was explored at the hearing but separation distances were not advocated, SEPP N1 addresses potential noise impacts and measures to address odour (which may be a key amenity concern) are more likely to be relevant to the development permit stage than the development plan stage. The Panel does not support the inclusion of a DPO buffer provision when no one could identify how it would be implemented in a Development Plan – the requirement proposed would only confuse the development plan process.

It appears to the Panel that Sita’s key concern is to ensure the expectations of those who locate in the area take account of the waste management use and

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 111 new arrivals do not impose additional constraints on existing or future operations on the Sita site. The Panel does not support further recognition of the site as part of this Amendment. MSS Clause 21.03‐3 already recognises that Lyndhurst landfill ‘is to become the principal solid waste disposal area in the southeast region’. While this recognition does not extend to its prescribed waste function, the change is beyond the scope of this Panel. Further, the site’s use is apparent to anyone visiting the area or looking at a street directory.

Panel Recommendations

Include within DPO5 a Development Plan requirement for landscaping or other measures on industrial land to achieve effective screening of industrial development from existing residential and rural residential properties.

Include within DPO5 a new Development Plan requirement to indicate that industrial uses satisfy threshold distances from existing community uses and either existing or proposed residential uses. DPO5 should include a new development plan requirement under ‘Specific Requirements for Keysborough Buffer Areas’ to the following effect: · ‘An integrated treatment of any interface with an existing community use to provide a ‘buffer’ of 30 metres which should incorporate existing boundary landscaped areas and boundary landscaped areas required by permits on the land used for a community purpose. The interface treatment must include landscaping on the industrial land and may include a road.’

Explicitly address in the design rationale in the structure plan and DPO 5 requirements for a development Plan the interface treatment of Westernport Highway by adding provisions to the following effect:

Structure Plan Lyndhurst Design Rationale ‐ Internal roads:

‘Encourage buildings to front major arterial roads, including the Western Port Highway, to maximise business exposure and appearance;’

DPO5 ‐ 3.0 Requirements for development plan

‘The development plan must provide for appropriate design solutions and landscaping to achieve a visually attractive interface to the Westernport Freeway.’

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9. Development Contributions Plan

What are the Issues? ƒ Does planning for the area provide an adequate basis for the DCP? ƒ Is the proposed mechanism to equalise Public Open Space contributions over the Amendment Area equitable and workable? ƒ Are the key principles set out in the DCP Guidelines adhered to?

What was Exhibited?

The exhibited Development Contributions Plan (September 2007) (DCP) effectively created separate DCPs for the Lyndhurst and Keysborough Areas. It was designed to part fund the cost of selected upgrades to external and adjoining roads that could be attributed to the anticipated increase in demand from the development of the two amendment areas and fully fund some roads and related works within each area that provide key links in the collector road system.

The Lyndhurst and Keysborough Areas were considered as separate charging areas. An allowance for external demand ascribed to each project was based on a strategic analysis undertaken by the City of Greater Dandenong, the Department of Infrastructure, John Piper Traffic and SGS Economics and Planning.

The basic methodology employed to calculate infrastructure charges was outlined as follows: · “Specify the total cost attached to providing the infrastructure item; · Spatially define the area enveloping development that will make primary use of the item – this is known as the Main Catchment Area (MCA); · Adjust the cost of the project downwards in line with the estimated share of usage emanating from outside the MCA (in line with the estimated proportion of external demand); · Count the existing demand units (equivalent square metres of industrial or retail/commercial site area) in the MCA; · Project the growth in demand units (equivalent square metres of industrial or retail/commercial site area) in the MCA over the life of the DCP; and

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· Express both the stream of demand units and the (adjusted) infrastructure costs in present value terms and divide the adjusted infrastructure cost by the number of demand units to arrive at a charge per demand unit in the projects MCA.”

Development projections in Appendix 1 of the DCP anticipated rapid development in the Lyndhurst area between 2008 and 2011 before easing, while in the Keysborough area development was projected to begin more slowly reaching a peak in 2013. Projections anticipated development in the Amendment Areas to be completed by 2017.

Two specific matters relevant to the exhibited version of the DCP are noted as follows: ƒ It was proposed that the Lyndhurst Area should contribute to the upgrade of Perry Road which is wholly within the Keysborough site; ƒ Public open space was not proposed to be dealt with within the DCP.

What is Proposed?

An updated version of the DCP (May 2008) was provided to the Panel on the penultimate day of the hearing and incorporated several matters discussed and agreed to by the parties during the course of the Hearing.

Consistent with the exhibited DCP, the updated version sets two specific contribution rates for the geographically separate charging areas of Lyndhurst and Keysborough.

Items covered by the DCP relate almost exclusively to transport and include a variety of bridge and culvert projects, various intersection works, the construction or partial construction of sections of Taylors Road, Abbotts Road, Glasscocks and Colemans Roads (all in Lyndhurst) and Perry Road (in Keysborough).

It has been determined that the proposed industrial, commercial and retail development proposed for the Amendment Area has a usage nexus with the nominated transport projects due to the traffic generated by the proposed development. The extent of external apportionments have been largely based on the Select Link analyses undertaken by the then Department of Infrastructure with costs to be covered by the DCP calculated according to share of projected usage.

Internal roads and treatments which do not play an important part in opening up the Amendment Area for development are not included in the DCP. Various potential road works outside the Amendment Area but not

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 114 funded by the DCP are listed to provide an understanding of the broader connectivity issues that impact on the region.

One square metre of developable site area has been determined to be one demand unit and the total demand units applicable to the Amendment Areas have been determined as:

Development Type Keysborough Lyndhurst

Commercial/Retail 10,000 34,300

Industrial 1,628,709 4,351,566

Total Demand Units 1,638,709 4,385,866

Costs associated with all infrastructure items other than land are to be adjusted over time based on the Construction Index for Road and Bridge Construction.

In relation to land, it is proposed that for the period up to acquisition by Council, the adoption of the market rate based on the midpoint between a valuation undertaken by the Valuer General (for Council) and that of a registered valuer (for the landowner).

There is however the case where a project has been completed before the end of the life of the DCP but before all levies have been collected. In these instances it would be unfair to continue to index the levy based on the increase in land values as the land itself has already been acquired, the cost of the project itself is known. The only residual cost to Council will be the holding costs of the land associated with those developers who have yet to subdivide and pay the relevant levy. In these instances the ongoing adjustments will be by CPI.

Contributions for public open space are levied under the DCP but are listed separately to the specific DCP infrastructure rates. An equalisation, or ‘contribution table’, details anticipated land and cash contributions and reimbursements.

Policy Context

The Planning and Environment Act 1987 requires a DCP to: ƒ Clearly identify relevant infrastructure and the infrastructure to be provided including any detail and capacity of development and community infrastructure items;

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ƒ Indicate the type and rates of development (whether residential, commercial, industrial or other), the area’s expected population profile, infrastructure catchments and any specific needs; ƒ Indicate the timing of infrastructure and the expected staging.

Ministerial Direction 46M: Development Contributions Plans (May 2003) sets out the works, services or facilities that may be funded from a development infrastructure levy. They include: ƒ Acquisition of land for roads, public transport corridors, drainage, public open space and community facilities; ƒ Construction of roads, bicycle and foot paths, traffic management devices, public transport infrastructure; Drainage works; Basic improvements to public open space; and maternal and child health care, child care centre, or kindergarten or a combination of these.

The State Planning Policy Framework100 requires the planning authority to have regard to the Development Contributions guidelines in the preparation of DCPs. The key principles set in the DCP Guidelines include: ƒ DCPs must have a strategic basis in the State and Local planning policy frameworks; ƒ A nexus between new development and the need for new infrastructure must be demonstrated; ƒ Infrastructure can be included in a DCP if it will be used by the existing and future community of an area. New development does not have to trigger the need for new infrastructure in its own right but can be charged in accordance with its projected share of usage. Infrastructure costs must be apportioned equitably amongst all the likely users – including existing development – on the basis of projected ‘share of usage’; ƒ DCPs must have a reasonable time horizon (should not exceed 20 to 25 years); ƒ A DCP imposes an obligation on the infrastructure provider to provide the infrastructure by the date or criteria specified in the DCP; and ƒ Levies collected must be used to provide the infrastructure specific in the DCP.

100 clause 18.12-2

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Submissions

Several iterations of the DCP were presented through the course of the hearing and it is not necessary for the Panel to comment on changes introduced as a result of re‐design or agreement between the various parties.

During the hearing submitters focused on the following matters: ƒ Whether the nexus between the Lyndhurst and Keysborough Areas is strong enough to justify a cross contribution between the two areas. ƒ Whether the construction of Taylors Road should be included in the DCP and the subsequent question of whether Collector Road LR5 should be included either instead of, or as well as, Taylors Road. The inclusion of Collector Road LR5 was argued forcefully in submissions and in evidence by both Pellicano and Goodman. ƒ The degree of nexus between the Collector Roads west of Taylors Road (ostensibly LR4 and parts of LR5) and the area to the east of Taylors Road was questioned in evidence by Matt Ainsaar on behalf of Salta Properties. ƒ The inclusion of specific items within the DCP and the costing of those items.

The final version of the DCP (dated May 2008) tabled on the penultimate day of the hearing provides the basis for the Panel’s assessment of the DCP and the outstanding matters as raised by submitters.

The Panel notes the following key matters as representing substantive changes from earlier versions of the DCP: ƒ New sections detailing Public Open Space (POS) funding principles the method of calculating the POS charge; and POS Contribution tables which act as an equalization mechanism by providing the anticipated cash/land split on a title by title basis; ƒ Deletion of cross contributions between Lyndhurst and Keysborough for road works; ƒ Updated intersection costs and land requirements for Frankston Dandenong Road and Colemans Road, and Greens Road and the relevant Internal Collector Road; and ƒ The inclusion of an additional 10 hectares of developable land within the DCP due to the reduction in the size of the retarding basin on the Miramah land.

The following discussion does not address matters that are no longer contentious.

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The DCP’s final shape is one in which there are essentially two separate DCP’s, one representing an inventory list of items for the Keysborough Area and one for the Lyndhurst Area. Revisions to the text in the May 2008 DCP have addressed various submitter concerns and matters raised in Mr Ainsaar’s evidence.

The elimination of any cross contributions between the two Amendment Areas, Council has taken on broad concerns expressed by submitters and the Panel in regard to the question of nexus and this matter does not require any further exploration.

The 20 May 2008 DCP also now incorporates a new section (6.2) dealing with POS and includes an equalization mechanism demonstrating the actual land/monetary contribution of POS requirements on a title by title basis. The POS mechanism includes costs relating to the development of public open space and the acquisition of land for public open space. The developable area has been calculated by subtracting all areas unsuitable for development, or unable to be developed including native vegetation reserves.

The Panel accepts that cost estimates for the development of POS at a structure plan level are necessarily broad. It is noted however that the DCP utilises industry rates for typical park infrastructure and for the style and type of reserves anticipated in the C87 area and Council anticipates a reasonable level of accuracy.

Section 6.2.1 of the DCP sets out the methodology for calculating the infrastructure required. For proposed parkland, calculations are based on typical types of parkland development that will be necessary within the area and a cost model is derived for typical parkland of that type. For example, the DCP notes that “a parcel of general parkland, of say 1ha and with a passive recreation function, will typically contain and include the following a range of areas including: ƒ 5% of high intensity/quality areas ƒ 30% of medium intensity/quality areas; and ƒ 65% of low intensity/quality areas.”

The cost of open space improvements is calculated accordingly and this figure is included in the equalisation table as a fixed sum, though subject to appropriate indexation.

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In relation to the acquisition of land for POS, the value of land has been assumed as $1,000,000 per hectare and to be fixed for the initial life of the DCP. The DCP proposes that the monetary amount of the contribution is to be adjusted annually in the same manner as the adjustment of non‐land infrastructure specified in this DCP.

The Panel found the construct of the POS equalisation mechanism somewhat difficult to grasp but understands that the actual area (in hectares) of POS along with the total anticipated cost to improve the open space network are essentially the two fixed items within the mechanism. The overall expression of the contribution as a percentage figure is therefore a function of the two fixed items as well as the ascribed compensation value attached to the land in the equalisation table ($1,000,000 per hectare).

If the ascribed value of the land was to be varied, the total cash and land percentage contribution would change accordingly.

As many of the areas identified as POS are a mixture of ecological and open space the Panel considered whether the approach endorsed by the Panel in Whittlesea C81 may be appropriate whereby this land would be compensated at a reduced rate that reflects the ecological ‘encumbrance’ of the land. The Panel is inclined to agree that some discount should apply to the value of land contributed for POS but is not in a position to nominate a value. The Panel leaves the nomination of a value of POS land contributions to Council to resolve to its satisfaction.

Section 6.2.4 of the DCP requires that planning permits to include a condition requiring the land and/or monetary contributions in respect of public open space specified in the DCP to be paid/transferred to the responsible authority prior to the commencement of any buildings and works unless there is an agreement in writing with the responsible authority specifying an alternative time for that transfer and or payment.

Matters relating to the appropriateness of road projects in the DCP including the key question of the status of Collector Road LR5 are addressed in Chapter 6 of this report. The details and basis for the Panel’s position do not need to be repeated except to record that the Panel does not support the inclusion of LR5 as a fully funded DCP item.

The Panel concludes that the revised DCP (dated May 2008) establishes an appropriate basis for contributions.

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Panel Recommendation

Adopt the revised DCP dated May 2008 subject to updating to reflect any final changes in the revised Structure Plan and recommendations elsewhere in this report.

The value of POS land contributions should be determined by Council to reflect the level of encumbrance of the land.

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10. Planning Scheme Mechanisms

Substantive issues have been addressed in earlier chapters and here the Panel addresses the form of the planning scheme mechanisms.

The Amendment documentation has been subject to extensive revision to address concerns raised in submissions and input from expert witnesses and parties during the course of the hearing. The revisions to the Amendment documentation substantially improve the exhibited documents. The subsequent discussion will briefly note key changes but focuses on matters that remained contentious. It does not repeat the discussion of substantive issues in earlier chapters of this report.

10.1 LPPF

The exhibited Amendment included updating of the Municipal Strategic Statement but further updating to reflect the outcome of the Amendment will be required. For example reference to the Structure Plan in Clauses 21.02‐3, 21.03‐4, 21.04‐2, updating the framework plan in 21.04‐ 4 Business to show the proposed commercial centres, and updating of Reference documents in Clause 21.06.

Panel Recommendation

Update the Municipal Strategic Statement to reflect the further revisions to the exhibited Amendment.

10.2 The Structure Plan

Planning evidence and submissions from a number of parties101 argued it would be better to only incorporate the Structure Plan ‘diagrams’ and include the Structure Plan text as a reference document. They considered further redrafting, beyond the revisions in the 20 May 2008 Structure Plan, is necessary to achieve a document suitable for incorporation. Concerns were raised about remaining inconsistencies or ambiguities between the text and the structure plan diagrams and/or the schedule to DPO5. Australand cited the example of the Keysborough interface treatment in the Structure Plan being inconsistent with the treatment in the DPO which reflected the agreement with Intrapac.

101 For example Goodman, Salta, Australand, Jayco

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Council had acknowledged these types of concerns in relation to the exhibited Structure Plan but submitted that content not directed at decision making had been extracted and included in a reference document. Given the importance of the Structure Plan in guiding development planning and establishing the basis for obligations to fund key infrastructure, Council sought the statutory force associated with incorporation of the ‘leaner’ Structure Plan.

The Panel agrees with Council that the Structure Plan diagrams cannot stand alone and require the supporting text to appreciate the design rationale. The complexity and various iterations of Amendment documentation did lead to inconsistencies during the process but the scrutiny of the parties has highlighted those issues. Further updating to reflect Panel recommendations will be necessary, as will a careful final review to ensure the Structure Plan, NVPP, DCP and DPO5 are consistent.

A number of submissions sought greater flexibility in the Structure Plan to enable optimum outcomes during the detailed design stage. The Panel is satisfied that the DPO 5 requirement that plans be ‘generally in accordance with structure plan diagrams contained in the Dandenong South Industrial Area Extension Structure Plan (an incorporated document) and otherwise have regard to that incorporated document’ provides reasonable scope for some variations. A number of qualifications to diagram designations to make it explicit that there is some flexibility regarding the location of particular elements have also been endorsed in earlier chapters (for example in relation to some retarding basin locations, Keysborough collector roads, the northern leg of the Eastern Collector Drain widening).

Submissions questioned the mandatory nature of some Structure Plan provisions. The mandatory requirements in the Revised Structure Plan relate to: ƒ The treatment of the western boundary of the industrial area along the alignment of the ‘extension’ of Chandlers Road (page 6). Panel Comment: The final design may not include a road. Therefore the provision should provide for a 20 metre buffer strip in this location, which may include a road; ƒ The scattered River Red Gums throughout the designated site Perry Road Commercial centre site must be retained (Page 9). Panel Comment: These scattered trees are shown as a conservation area on the updated structure plan diagram. Therefore this text is no longer required; ƒ For land to be accepted as public open space by Council it must accord with a number of key criteria (Page 20).

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Panel Comment: This mandatory requirement is acceptable; ƒ Any land to be credited as public open space must be located so that it is accessible and forms a logical part or extension of an open space network or the system of drainage reserves (Structure Plan Page 20). Panel Comment: The Panel recommended in Chapter 5 that this provision should be deleted. POS contributions are addressed in the DCP and the distinctions drawn between conservation and ‘POS’ for funding purposes should not be reinforced in the Structure Plan. POS principles are addressed elsewhere in the Structure Plan; ƒ Council may consider utilising appropriate sections of the public open space network (which it owns) for future ‘net gain’ vegetation recruitment, the cost and value of which must be borne by those removing the native vegetation. (page 20). Panel Comment: This mandatory requirement is acceptable; ƒ The preparation of Development Plans must give effect to the open space network shown in Figure 4 (Keysborough Page 22, Lyndhurst P24) and The provision of open space must be consistent with any open space requirements set out in the Development Contributions Plan (Structure Plan Page 22 Keysborough, Page 24 Lyndhurst) Panel Comment: These open space network plans reinforce distinctions between conservation and ‘POS’ for funding purposes and does not promote an integrated approach to the planning of the spaces. The Panel has recommended that these areas be identified/referred to only in the DCP and identified as ‘notional for funding purposes’.

The Panel also questions whether Figures 9 and 10102 add anything. It is also noted that the Keysborough Structure Plan diagram legend requires some colour coding and corrections.

Melbourne Water sought some further editing of the May 2008 Structure Plan103. The Panel generally endorses these changes except that reference was made to widening the existing UFZ by 35m in the E‐W part of the Eastern Contour Zone (Pellicano land). However, the Panel notes that a PUZ rather than UFZ applies here and the extent of widening of the drain required has not been finalised.

102 Figure 9 Example of treatment of watercourse within industrial estate M1 Estate and Figure 10 Example of passive recreational opportunities, Dandenong Wetlands 103 Circulated via email 26/5/08.

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Overall, the Panel is satisfied that Revised Structure Plan, with recommended changes, strikes a reasonable balance between certainty and flexibility.

80‐ 120 Colemans Road

As already noted the Panel is concerned that these property owners, other than Pat Ville Constructions, have not presented their views on options for their properties that were prepared during the course of the hearing.

The Panel supports the Council’s desire for five of these six Colemans Rd properties to be treated together in a single development plan and has highlighted the importance of Council leading the preparation of this development plan. It considers the preliminary work undertaken in relation to development of 80 Colemans Road justifies its inclusion with the broader Amendment area.

The Panel considers issues such as the developable area, vegetation to be retained, linkage between vegetation, offsets for vegetation to be removed, any POS provision and integration with the remainder of the Lyndhurst Area require further consideration through the development planning process. The recommendations below indicate that 90 – 120 Colemans Road should be specifically addressed in DPO5, identified on the Structure Plan and should be excluded from both the NVPP and the DCP POS equalisation mechanism.

Design Guidelines

The Design Guidelines in the May 2008 Structure Plan have responded to a number criticisms raised during the hearing. For example, Mr Govenlock considered the requirements for landscaping front setbacks within 20m of a major road frontage was unclear, inappropriate to be applied across the board, and would result in inefficient use of the land. He suggested a minimum 2‐3m landscape strip along the front boundary and car parking area would be appropriate.

The Panel considers the following setbacks in the revised Structure Plan, which replace the Clause 22.03 policy guidance, provide clear guidance and an appropriate response: ƒ front building setbacks adjoining existing and future arterial roads104 to be generally 20m with a minimum 5m landscape strip between the property boundary and any car parking.

104 Western Port Highway, Glasscocks Road, Dandenong Frankston Road, Colemans Road West, Greens Road and Perry Road

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ƒ front building setback adjoining collector roads to be generally 9m with a minimum 3m landscape strip between the property boundary and any car parking/access. ƒ A 5m and 3m landscape component within building setbacks to sidages of arterial roads and collector roads respectively.

The Panel notes that the revised design guidelines have been improved by adopting a number of changes recommended by Mr Govenlock’s relating to integration of with adjoining industrial areas, public open space and watercourses. Other matters raised during the hearing, such as the rationale for avoiding reflective roofs, have also been addressed.

It is also noted here that Panel has recommended in Chapter 5 that the design guidelines should encourage the provision of some on‐site outdoor space for use by employees during breaks.

Panel Recommendations

Make the following changes to amendment documentation in relation to 80 – 120 Colemans Road, Lyndhurst: ƒ The Structure Plan text should indicate that the form of development of 90 – 120 Colemans Road requires further consideration through the development planning process. These properties should be identified by hatching on the Structure Plan Diagram with an appropriate annotation. The delineation of the ‘conservation area’ should be removed from these properties. ƒ DPO 5 should identify specific Development Plan requirements which should require the protection of native vegetation to be addressed, potentially through the preparation of a NVPP for theses properties. ƒ These properties should be removed from the NVPP. ƒ These properties should be removed from the Public Open Space equalisation mechanism in the DCP and public open space provision should be addressed in the development planning process.

10.3 The Native Vegetation Precinct Plan

What is the issue? ƒ Do the planning scheme mechanisms proposed provide an effective means of implementing the Native Vegetation Precinct Plan? ƒ Should there be discretion to grant a permit to remove vegetation identified for retention in the NVPP?

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ƒ Will the mechanisms proposed assure provision of offsets? ƒ Are NVPP provisions in Clause 52.17 effective?

What is Proposed?

The exhibited Amendment proposed to implement the NVPP by: ƒ Incorporating it in the planning scheme via the Schedule to Clause 52.17 and in Clause 81. ƒ Incorporating the NVPP under Clause 52.03 Specific Sites and Exclusions. The effect of incorporating under this clause is to set aside planning scheme provisions and provide alternative provisions to the extent provided for in the incorporated document.

Although an incorporated NVPP must specify, amongst other things, vegetation to be retained105, there was consensus in submissions to the Panel that an NVPP does not operate in its own right and only operates as one of the range of exemptions in Clause 52.17‐ 6 . Therefore the NVPP would be powerless to prevent removal of vegetation nominated for retention in the NVPP if the conditions for other exemptions are satisfied. Of particular concern were the exemptions for removal of vegetation on lots with an area less than 0.4ha, for the construction of a building (and ancillary elements) 106 and within 10 metres of a building on lots greater than 0.4ha. The Panel agrees that these exemptions put at risk vegetation identified for retention and could severely undermine the integrity of the NVPP.

Clause 52.03 was proposed to ensure the long term protection of vegetation identified in the NVPP irrespective of these exemptions. The purpose of this clause107 is ‘To provide in extraordinary circumstances specific controls designed to achieve a particular land use and development outcome.’ It is understood that during the course of the hearing DPCD advised parties that the use of this clause is not appropriate.

There were a number of iterations of the native vegetation provisions but the following discussion will address the latest version (June 2008108 ) of the

105 Clause 52.17-3 106 The Panel was referred to several VCAT decisions relating to the operation of the Clause 52.17 exemption for the construction of buildings, including Best v City of Maribyrnong [2006] VCAT 1239 and Wemear Madoc Pty Ltd v City of Dandenong [2007] VCAT 1578. 107 The other purpose to recognise specific controls designed to achieve a particular land use and development outcome existing on the approval date addressed unique planning frameworks that applied when new format planning schemes were introduced. 108 DSE forward an updated version of the 26 May NVPP which addressed formatting and minor matters such as fencing of conservation areas as discussed and generally agreed on the final day of hearing.

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NVPP and the planning scheme mechanisms proposed to implement it. The provisions proposed were: ƒ The NVPP which is incorporated pursuant to Clause 52.17 and Clause 81 with a supporting Background document; ƒ A new schedule 4 to the Environmental Significance Overlay (ESO4); and ƒ DSE is nominated as a Referral Authority pursuant to Clause 66.04 for applications under the ESO4. (ie where the specified exemptions under the ESO do not apply).

10.3.1 Discussion

NVPPs provide a mechanism to manage the conservation of native vegetation in a larger, predetermined area, rather than on an ad hoc site‐by‐ site basis. Despite reservations expressed later about the operation of the current VPP mechanisms, the Panel endorses the precinct planning concept for large areas. It does not agree with Mr Govenlock that the NVPP should be deleted from the Amendment to provide greater ability to potentially integrate open space areas and remnant trees within industrial developments subject to approval by the responsible authority.

Clause 52.17 Exemptions

The post exhibition inclusion of vegetation identified for retention in the NVPP within public open space, together with Panel recommendations relating to habitat zones in the Lyndhurst Area (see 4), goes much of the way to resolving concerns about the long term protection of that vegetation. Nevertheless, as this is the first proposal to incorporate a NVPP, the Panel accepts the submitters’ invitation to comment on the need to strengthen the mechanism provided to implement the NVPPs.

As noted above, NVPPs must set out vegetation to be removed and retained. Practice notes109 released when provision for NVPPs in Clause 52.17 were introduced reinforce the expectation that NVPPs will be capable of ensuring that identified vegetation will be retained in the long term (at least 10 years), stating a NVPP: ƒ ‘sets out requirements for the protection and removal of native vegetation’, ƒ ‘helps guide the form of future development in a precinct by identifying the native vegetation to be retained and removed… ƒ (can) regulate the removal of native vegetation

109 Managing Native Vegetation In The Planning System March 2006 and Preparing A Native Vegetation Precinct Plan March 2006.

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However, the practice notes also make it clear that the continued operation of the generic Clause 52.17 exemptions was part of the framework envisaged and maintaining these exemptions in addition to the Precinct Plan exemption was not a drafting error. It states ‘A native vegetation precinct plan cannot seek to impose requirements over the removal of native vegetation that is exempt from permit requirements under Clause 52.17 or an overlay.’ 110 And ‘The plan should cover only those works which require a planning permit for native vegetation removal under Clause 52.17.’111

NVPPs are expected to have a role in the urban conversion process for growth areas but lot sizes and building exemptions mean that most of the new urban areas will be exempt from permit requirements after subdivision. This outcome is entirely appropriate but requires the preparation of NVPPs to be cognisant of the exemptions that would apply. Planning framework responses that will usually be necessary to ensure the long term protection of vegetation identified for retention in the NVPP include: ƒ Providing for public ownership of the land with vegetation to be retained. This outcome is widely recognised as good practice and is an outcome envisaged in the practice note. It is also a key element of the solution ultimately presented to this Panel for the subject area. ƒ Applying overlays to require a permit to remove vegetation irrespective of the size of lots and the location of buildings112.

Clause 52.03 is only intended to apply in exceptional circumstances. The Panel agrees with the DPCD view that it would be inappropriate to rely on this Clause to implement Native Vegetation Precinct Plans. As a matter of principle securing native vegetation in public ownership or the use of overlays are preferable to routinely resorting to the provisions of Clause 52.03 when a NVPP is proposed.

The need for both incorporation of an area specific NVPP for the purposes of Clause 52.17 and the application of an Overlay could be seen as running counter to initiatives to reduce the complexity of planning scheme provisions.

110 See pages 4 and 5 Preparing A Native Vegetation Precinct Plan March 2006 111 See page 5 Managing Native Vegetation In The Planning System March 2006 112 The VPP practice note Vegetation Protection In Urban Areas, August 1999 indicates Clause 52.17 will have limited applicability in urban areas with small lot sizes and discusses the use of overlays. The ESO (as now proposed in the C87 area), a VPO, the SLO or HO are identified as relevant in various urban circumstances. The DPO could also have a role in limited circumstances by including a requirement under Permit conditions to specify development envelopes that do not allow vegetation removal in areas required for vegetation protection.

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The proposed exemptions in ESO4 from permit requirements are endorsed as appropriate in the Amendment C87 circumstances. We question the relevance in this proposed urban industrial area of the recently introduced generic ESO exemption of ground fuel around buildings and note that there could be some minor implications for understorey vegetation that may be planted in tree protection areas under the NVPP.

NVPPs are intended to be widely used, such as growth area planning, but testing of this new planning scheme mechanism through Amendment C87 has identified significant limitations that should be addressed.

There was consensus between parties to the panel process that the approach adopted in this Amendment to the implementation of the NVPP, in particular, the application of the ESO to vegetation that has been removed in order to anchor future offsets, was cumbersome but necessary.

The Panel endorses the DSE view that the scope of the NVPP provision in Clause 52.17‐3 should be expanded ‘to represent the full spectrum of vegetation management for the precinct, just as a planning permit may for a single property.’ The Panel agrees with DSE that the following changes should be evaluated: ƒ The general exemptions of Clause 52.17‐6 should not apply to land where an incorporated NVPP applies. ƒ The general exemptions should be replaced with exemptions that are specific to that NVPP which are formulated having regard to current land uses, future development and the characteristics of vegetation to be retained and offset requirements for vegetation to be removed.

DSE also highlighted that in some circumstances land currently without vegetation will also need to be protected and revegetated to enhance, extend or link the retained remnants but Clause 52.17‐3 does not currently allow a NVPP this level of flexibility. This is a further matter that should be considered in a review of NVPP provisions in the planning scheme.

However, it is noted that NVPPs may apply to extensive growth areas. If Clause 52.17 was amended to ‘turn off’ the other provisions of that Clause where a NVPP is incorporated to provide an alternative regulatory framework, careful consideration would need to be given to expiry clauses, longer term exemptions and the role of overlays.

DSE expressed concern that the NVPP is not accorded any status in any future proposals concerning areas specified to be retained or as offsets. The Panel considers there should be an opportunity to apply for a permit to remove native vegetation identified in an NVPP for retention, as currently indicated in the Practice Note. The Panel would expect that the provisions of

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 129 an incorporated NVPP (and elements of the LPPF that are likely to support a NVPP) would be accorded substantial weight in subsequent decisions affecting vegetation. Nevertheless, the Panel appreciates the concern that, after the considerable effort in preparing and achieving incorporation, the NVPP should not be undermined by ad hoc subsequent decisions. As proposed for the C87 Area, the inclusion of DSE as a referral authority will also be appropriate in some other NVPP areas as it recognises the significance of departing from the NVPP and provides for additional scrutiny of proposals that depart from the obligations under an incorporated NVPP.

The Panel also notes the desirability of identifying areas where an NVPP applies on planning scheme maps.

ESO4 ‐ Ensuring Offsets are Provided

During the hearing, application of a new ESO4 to the whole of the Amendment area was considered to anchor future offsets for vegetation that has been removed. It is now proposed to apply the ESO to: 1) areas in which native vegetation is specified to be retained; 2) areas in which native vegetation may be removed destroyed or lopped, where an offset is required; 3) native vegetation protection areas; and 4) drainage reserves and waterways.

The Panel agrees with submissions that application of ESO4 to vegetation to be removed is perhaps the most unsatisfactory aspect of the native vegetation provisions, but accepts that the ESO is needed to achieve the enforceability of offset requirements. Without the ESO, vegetation could be removed under Clause 52.17‐6 without the need to provide offsets. The application of the ESO to ‘public open space and conservation areas’ where offsets are expected to be provided, also ensures the vegetation planted cannot be removed under Clause 52.17 exemptions.

Mr Green suggested that the application of ESO4 over the retarding basis is premature as their final form has not yet been decided. The Panel notes that some parts of the drainage network do not have native vegetation and these areas Melbourne Water does not offer these areas for offsets. ESO4 should only apply over drainage network areas with native vegetation.

It has been confirmed that trees 43 and 70 in the Keysborough Area are dead. The NVPP should be updated accordingly and ESO 4 should not be applied to these and any other dead trees.

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Variations to the NVPP

The practice note Managing native vegetation in the planning system, indicates ‘If the proposal is not in accordance with a plan, a planning permit is required’113 Despite this, DSE argued that the comprehensive panel process to introduce the NVPP justified protection of the vegetation to be retained in perpetuity with changes only being considered via an amendment process. DSE did not want to see any residual powers for removal of this vegetation via the permit process.

The Panel agrees with Salta properties that there should be an ability to apply for a permit to remove vegetation identified for retention in the NVPP. The NVPP is intended to operate over an extended timeframe and the permit process would allow consideration of removal of vegetation if circumstances change. The Panel notes the VPP were introduced with fundamental principles that the discretion must be wide rather than narrowed and the planning permit (rather than planning scheme amendments) is the preferred form of development approval114.

The ESO4 now proposed provides a mechanism to apply for a permit even where vegetation is identified for retention in the NVPP. The permit process establishes a justified degree of flexibility but we emphasise that this in no way suggests a reduction in the commitment to NVPP provisions. The combined effect of the Structure Plan, the incorporated NVPP, and the objectives and decision guidelines of the proposed ESO would establish a strong predisposition against the issue of a permit to remove vegetation specifically identified for protection. The proposed inclusion of DSE as a Referral Authority for ESO4 applications adds even further weight to the implementation of the NVPP. The Panel considers this outcome is appropriate.

90 – 120 Colemans Road

As noted in Chapter 4.4.2 alternative options have been developed for the management of heathy woodlands on 90 – 120 Colemans Road and consultation with owners is required. These properties should be excluded from the NVPP and ESO4. A separate NVPP dealing these properties115 may be an appropriate mechanism for management of the vegetation or it may be possible to deal with the vegetation adequately through the development

113 See page 3 Managing Native Vegetation In The Planning System March 2006. 114 Page 7 Manual of the Victoria Planning Provisions. 115 As noted earlier, although 80 Colemans Road could be viewed as a logical part of this sub-area, that property should not be grouped with 90-120 Colemans Road in recognition of the substantial work undertaken and the agreement on the management of native vegetation at 80 Colemans Road.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 131 plan process. DPO5 should specifically identify the need to address the protection and management of native vegetation on these properties.

Treatment of Native Vegetation Not Addressed by the NVPP

The specification116 of native vegetation to be retained and that may be removed in the NVPP was underpinned by expert assessment of vegetation and comprehensive consideration of vegetation management (see Chapter 4).

The Panel agrees with landholders that the NVPP should address all obligations to retain vegetation/offset removal. If additional native vegetation is discovered, its removal should not be subject to a planning permit. The Panel considers the work undertaken provides an appropriate basis for native vegetation management in the area. An important benefit of NVPPs would be undermined if it did not provide certainty about the development constraints associated with protection of native vegetation.

The Panel considers the NVPP should explicitly indicate that the removal of native vegetation identified after approval of the NVPP is exempt from permit requirements.

Drafting Issues

The 26 May 2008 NVPP has been substantially improved compared to the exhibited NVPP. The extraction of material into a Background Report results in a document that is more appropriate for incorporation in the Planning Scheme. The Background Report should be included as a reference document to ESO4 and the NVPP.

The Panel endorses the inclusion of GPS co‐ordinates for vegetation to be removed and the numbered identification of the vegetation on plans. The Panel suggests that the inclusion of the current street address would also assist in navigating the document.

Mr Bisset pointed out there are inconsistencies between trees that can be removed without an offset, how they are listed in Appendix 2 of the NVPP and there identification in ESO4. These listings should be checked for consistency prior to adoption.

It was also noted the background report suggests that tree protection zones must be fenced. In some instances access can be managed through planting which is less obtrusive than fencing. The Panel considers that the

116 Appendix 2 to the Plan

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Background report should provide for measures other than fencing to preclude or mange access to tree protection and other conservation areas.

Panel Recommendations

Update the 26 May 2008 NVPP and ESO4 to reflect the most recent vegetation assessments (undertaken by Practical Ecology for the City of Greater Dandenong and in relation to 80 Colemans Road) and Panel recommendations.

Check the vegetation listings in the NVPP and ESO for consistency prior to adoption.

Identify DSE as a Clause 66.06 referral authority for applications to remove native vegetation under ESO4.

Exclude 90 – 120 Colemans Road from the NVPP and ESO4. DPO5 should specifically identify the need to address the protection and management of native vegetation on these properties.

Remove ESO4 from drainage network areas without native vegetation.

ESO 4 should not be applied trees 43 and 70 in the Keysborough area or any other dead trees outside the ‘open space and conservation areas’.

The NVPP should explicitly indicate that the removal of native vegetation identified after approval of the NVPP is exempt from permit requirements.

Include the current street address as well as title details, GPS co‐ordinates and mapped locations in the NVPP and ESO 4 tables.

Include the Native Vegetation Precinct Plan Background Report as a reference document to ESO4 and the NVPP.

The Native Vegetation Precinct Plan Background Report should provide for measures other than fencing to preclude or mange access to tree protection and other conservation areas.

DPCD, in consultation with DSE, should review the operation of Clause 52.17 provisions relating to Native Vegetation Precinct Plans. Consideration should be given to excluding land where an incorporated NVPP applies from the generic exemptions in Clause 52.17‐6 and identifying areas where an NVPP applies on planning scheme maps.

10.4 The Development Contributions Plan

See discussion in Chapter 9.

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The revisions to the exhibited DPO5 have addressed a range of both drafting and substantive issues raised in submissions and the planning evidence. For example requirements to address lot sizes have been deleted and the Integrated Transport Plan provisions are substantially modified.

The following discussion relates to an updated version of DPO5 (included in Appendix B) forwarded by Council in June 2008 which reflected further changes to the 20 May 2008 version agreed by parties on the final day of the hearing.

The Panel had queried the basis for nominating 30 ha as the minimum development planning unit. While some parties and planning experts considered there was no particular basis for the size nominated, the Panel accepts the view that designation of alternative development planning units based on the characteristics of the sub‐areas would require further work and development planning in at least 30 ha units within the context of the incorporated structure plans is likely to produce appropriate outcomes. As already noted, the Panel has identified 80 – 120 Colemans Road as an exception. The June version of DPO5 should be revised further to make it clear that a single Development Plan should be developed for 90‐120 Colemans Road. The Panel considers that, given the preliminary work undertaken relating to 80 Colemans Road, agreement relating to protection of native vegetation on the site and the limited connections to other parts of the Amendment area, consideration should be given to allowing separate development of the site. This does not remove the need to ensure consistency with the Structure Plan or to address issues of integration with surrounding land in the subsequent planning processes.

While the Panel agrees with submissions from Mr Peake and evidence from Mr Govenlock that the Aboriginal Heritage Act (2006) will require approval of a Cultural Heritage Management Plan before a permit issues, it considers the proposed DPO5 requirements is acceptable as it will highlight any necessary responses early in the planning process.

The Panel agrees with Mr Govenlock that the requirement for a Vegetation Management Plan, under the DPO5 Environmental Management Plan clause, should include reference to the requirements of the Native Vegetation Precinct Plan.

Mr Morris sought provision in DPO5 for a permit to be granted “For the subdivision of land to facilitate the preparation of a Development Plan” before approval of the Development Plan. He gave the example of boundary

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 134 realignments/land swaps to facilitate LR5. The Panel agrees that this is appropriate.

The Panel also notes that the June 2008 version of DPO5 still refers to the Greens Road primary intersection as being in the ʺeastern sectionʺ of the Keysborough Precinct. This error was raised at the hearing but has not yet been corrected.

The Panel also notes that the following further changes to DPO5 have been recommended elsewhere in this report: ƒ Planning for the ‘conservation and recreation areas’ should be integrated and it is not appropriate to reinforce the allocations for specific functions for funding purposes in the planning of these spaces. The Panel has recommended that references to open space provisions of the DCP should be deleted from DPO5. ƒ The principles tabled by VicRoads to guide the consideration of access to specified declared roads should be included in a new clause ‘Access to Main Roads’ in DPO5. ƒ DPO 5 should also include a new clause relating to 90‐120 Colemans Road. This clause should highlight additional specific matters to be addressed in the Development Plan for the properties, such as, the developable area, vegetation to be retained/removed and opportunities for offsets, open space provision and the like.

Panel Recommendations

Revise the June version of DPO 5 to: ƒ Clause 1 should provide for a permit to be granted “For the subdivision of land to facilitate the preparation of a Development Plan” before the approval of the Development Plan; ƒ Delete references to the DCP public open space contributions; ƒ Include a new clause that sets out the principles tabled by VicRoads to guide the consideration of access to specified declared roads; ƒ Reflect the agreed access arrangements to the industrial area north of Greens Road in the Keysborough Area; ƒ Include a new Clause relating to 90‐120 Colemans Road that highlights additional specific matters to be addressed in the Development Plan for the properties; ƒ The DPO5 Environmental Management Plan clause should include reference to the requirements of the Native Vegetation Precinct Plan.

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008 Page 135 Appendix A Referred Submissions

Mr Rahula Vince Greco

G & C Grenda Nancy Butterworth

SP AusNet Mr Huy Taing

Department of Innovation, Industry Pellicano Group and Regional Development Environment Defenders Office Ltd CFA Westernport Area Headquarters Goodman International Limited Australand Miramah Investment Pty Ltd South East Water Petitioners, C/‐ Sandhurst Club B Vavasis Limited

Minerals and Petroleum Division, Salta Pty Ltd Department of Primary Industries Ingo Willrath SITA Environmental Solutions KTICC City of Casey Graham Kaye Leo Cantwell Department of Sustainability and Moknor Enterprises Pty Ltd Environment

Pat Ville Constructions Pty Ltd Andrew Booth

Bill Van Wyk, Van Wyk Flower Simon Grady Supply Pty Ltd Petitioners , C/‐ N & N Butterworth Lyndcadle Pty Ltd VicRoads Melbourne Water Mr James Mant Department of Infrastructure Mr Wilson and Ms Thomas Intrapac Pty Ltd

Sunny Corporation Pty Ltd Mr Ian Jensz

Hopin Pty Ltd

GREATER DANDENONG PLANNING SCHEME AMENDMENT C87 PANEL REPORT: JULY 2008