October 2016 Contents

victorian / planningrevue / environmental / law / association / volume 99 October 2016 Contents

President 3 Conference Editorial Licence 5 Conference Wrap: 10 Shadow Minister 8 Hard decisions – Strong leadership A conversation with Julian Burnside AO QC 12 Places Planning Tasmania’s Renaissance 18 Health through local planning: Brimbank 26 Boosting amenity in the Monash National Employment Cluster 32 City based transport construction projects: some European experiences 47

Courage and common sense: A feminine view 20 Think Different(ly)…Things that will change our cities 22 My VPELA education, a VPELA-cation 25 Paul Jerome Award – John Keaney 28

The Business Seminars The Victorian Planning Authority 6 Environmental tourism seminar 54

Contaminated land: A new environment protection regime for Victoria? 34 Tribunal Talk 39 Local Government Matters 40 Heritage Fabricated Brutalism – unloved heritage 43 Contaminated land seminar 37

– STOP PRESS – NEW BOARD MEMBERS ELECTED

VPELA would like to congratulate Board members Legal World 45 Tamara Brezzi and Michael Deidun on their The Fast Lane 50 re-election to the Board and congratulate new In Between Spaces 52 members Carlo Morello, Oona Nicholson and David Vorchheimer on their successful election. Full profiles of your new Board Members will be included in the March 2017 Revue.

Cover photo: Tamara Brezzi, John Keaney, winner of the Paul Jerome Award and Adam Terril from Tract Consultants.

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

2 / VPELA Revue October 2016 The President The need for a twist in the year of the apartment? Tamara Brezzi President, VPELA

A quick catch up about what's happening in the planning industry housing in Victoria since the introduction of Rescode and its is becoming increasingly difficult – there is much to be debated predecessors, the Good Design Guide and VicCode2. and the list of current and very hot topics is long. • It is well documented that the size of apartments, along with Top of the list at present appears to be apartment housing the qualities of their internal amenity, have been the focus of and, more specifically, the Better Apartments Draft Design planning decision makers in recent years. Standards. Members will be pleased to know that VPELA has • Without in any way criticising either the councils concerned, been highlighting the issues arising in the debate in a number or the divisions of the Tribunal that have written extensively on of ways: at a recent VPELA seminar which sought to explore the subject, it’s the planning system that has facilitated this issues concerning the content of the guidelines; as members of kind of piecemeal case by case development of principles. That the DELWP reference group; in briefings with DELWP and the such a system has been allowed to evolve concerning such an Minister's advisers; and with the Minister directly. important subject is quite unsatisfactory. Outcomes are often In all of these endeavours, VPELA seeks to maintain a position of arbitrary; Guidance or principles are developed in a “pseudo independence and impartiality. VPELA’s strength, membership cultural” fashion; New proposals are designed to fit a mould and very existence is founded on the diversity of its member- for the current fashion rather than necessarily achieving good ship, and with that comes a necessary diversity in opinions outcomes and results are often inconsistent. This approach is and approaches to planning issues which arise. Given the neither fair nor orderly. composition of its membership, it is not for VPELA to judge • There is concern among various sectors of our membership, the direction of government policy, or to lobby for particular that the resultant Draft Design Standards have not been the outcomes. VPELA’s Board does not regard the Association as a subject of critical scrutiny, and that when tested, the underlying lobby group. VPELA is more an informed commentator, which rationale for the existence of certain of the guidelines lack stands ready to assist where it can with information which might veracity, are incapable of consistent and fair application and assist in the development of reform ideas. have the capacity to lead to anomalous outcomes. There are also parts of the membership that strongly support For that reason, the Board is always careful to ensure that when the proposed Draft Design Standards, or at least support VPELA seeks to contribute to the reform discussion, it does so many of the techniques employed and there are parts of our from the perspective of an informed participant in the planning membership who regard the proposed Draft Design Standards system with a rich membership, capable of bringing a deep as a necessary step in the right direction, but who would prefer understanding of often highly technical content to the fore for to see refinements and clarifications contained in the Draft consideration. The one principle which unites the vast majority Design Standards. All views on the topic point to the need for of VPELA members, whatever differences of opinion we might independent review. have on any particular issue, is that VPELA encourages planning decisions to be the product of an open, transparent and rigorous • The Draft Design Standards do not transparently explain assessment of all of the available evidence, and will advocate the basis for the choices made or the potential impact that for decisions which are soundly reasoned and based upon that the proposed changes might have on the current regulatory evidence. VPELA considers that when such an approach is taken regime. For example, the Draft Design Standards appear it usually results in a rational and careful appreciation of all of to presuppose that ‘saddlebag’ or ‘snorkel’ bedrooms, or the issues – and in the end – better planning outcomes. bedrooms with borrowed light will necessarily deliver poor outcomes when in practice, this is not always the case. To that end, VPELA’s submission in relation to the Better Similarly, many of the proposed standards appear to be Apartment Draft Design Standards has sought to put a position driven by objectives that are concerned with daylight access. that the Board considers is likely to be held by a majority of its In our view, this is an entirely appropriate objective in order members – that new, generational change to the planning system to ensure that housing is delivered with good standards must be evidence-based and must be properly and independently of amenity. However, if it is the case that the basis for the tested to ensure that the system’s provisions are robust and will standards chosen is somehow flawed; that there is insufficient serve the Victorian community well into the future. transparency as to how the standards have been developed; or that the standards have not been properly analysed and tested, In relation to issues of transparency and independent review, then the objective will not be able to be achieved. VPELA’s submission states: • For a proposed change of the significance and importance • Any design standards for apartments will represent one of of this kind, the absence of a detailed account of the choices the most fundamental policy interventions in the provision of made and decisions reached is particularly troubling.

VPELA Revue October 2016 / 3 • The approach adopted so far is to be contrasted with the • ‘Wedding cake’ architectural responses and exposed blank process of preparing regulatory impact statements, EESs, and walls cannot be ruled out as likely design outcomes as a planning scheme amendments where significant changes in consequence of the pressure created to design in accordance a regulatory environment are closely scrutinised from a range with Draft Design Standards as presently proposed; of perspectives (such as the ResCode Advisory Committee for • If adequate daylight is a fundamental concern of the Draft example). Design Standards, the standards themselves do not address • The design standards for apartments are a legitimate area of some of the fundamental determinants of daylight levels: policy and regulatory inquiry. e.g. room width (as opposed to depth); window size; balcony overhangs; building projections and adjacent buildings • The work done to date is an appropriate starting point for and there are questions about the adequacy of the daylight detailed and open debate and rigorous analysis. objectives sought to be achieved by the standards that appear • The Better Apartment Draft Design Standards should be the to be driven by daylight outcomes; subject of a process of transparent and independent review • Applying the Room Depth Standard may in some instances having regard to the importance of these guidelines; result in an exceedance of Best Practice as defined by BESS, • The Minister for Planning should appoint an Advisory which must mean that “adequate” daylight levels could be Committee pursuant to section 151 of the Planning and achieved in rooms deeper than 8 metres – depending upon Environment Act to consider the matter. other design elements. The same is true for bedrooms; • The Committee should be constituted by highly qualified • The Draft Design Standards appear to suggest that an acoustic and respected members of the various professions. The standard other than the widely accepted noise limits according Committee should conduct hearings in accordance with terms to AS2107 are appropriate but without proper analysis it is of reference which enable it to explore, in detail, the veracity unclear to some members why a different, potentially more and genesis of the measures which are contained in the Draft complex, standard would need to be adopted by the Draft Design Standards, in a similar way to that which occurred Design Standards; and prior to the introduction of ResCode. • The basis for establishing the cross-ventilation measures is In the course of consulting the membership about the proposed unclear and may lead to inefficient design outcomes. Standards, our members have told us that the following Development proposals in Victoria are more often than not particular factors are matters which VPELA members consider required to be considered within a process of detailed review by require further detailed consideration: others – whether that be by third parties, Council officers and • The Draft Design Standards would require (if applied strictly) Councillors, VCAT on review in a permit application, or Planning outcomes which are inconsistent with the recently approved Panels Victoria in the case of planning scheme amendments. amendment by the Minister (Port Phillip Amendment Victoria has long been applauded for its review processes C107) and currently proposed amendment by the Minister and for the better developments that result from a process of (Melbourne Amendment C270); independent merits review. We have encouraged the Minister to pursue an independent review of the Better Apartment Draft • If applied strictly, the Draft Design Standards may significantly Design Standards because it is transparency and evidence reduce the development capacity of key and strategic based regulatory reform that will increase the likelihood of a redevelopment sites within inner urban and established areas. set of standards being introduced that will serve Victorians with As recently put by Mark Sheppard (David Lock Associates) at distinction. VPELA’s seminar on this topic, developments over 8 storeys in height will require a site that is 39 metres wide in order to Tamara Brezzi is President of VPELA comply with the stated setbacks; and a Partner at Norton Rose Fulbright

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4 / VPELA Revue October 2016 Editorial licence

Bernard McNamara, Editor VPELA Revue

First, an indulgence. A signature of my generation has been The Revue also has articles from the Victorian Planning Authority the music of Leonard Cohen. Last week there was an obituary to mark its commencement. in The Age for Marianne Ihlen – the Marianne of ‘So Long, Marianne’ fame, Cohen’s lover and companion during his Greek e-planning has arrived? island period. I stand to be corrected on this, but I think I have found the first It made me reflect on the joy of past connections in my teens and proposed paperless exhibition. (Well, Adrian Williams can’t think twenties; in a simpler world. of another case!) Am GC45, for Melbourne Metro introduces an Incorporated Document which requires the display of Making ‘connections’ allows me to get back on message, where Development Plans for all portals and stations. The display for the matter of ‘disconnection’ is emerging as a key divisive the public is to be ‘on a clearly identifiable website for 14 days’. element within our society. The recent Federal election results, While the DELWP website is where we go for our information the US Presidential election campaign and other political events now, John and Joan Citizen could always go down to the Council are being identified by social commentators as signals of major planning counter to see the paper version. shifts in society. Changes that some of our political and executive (including the planning industry) may not yet appreciate. It seems that this is not on offer for these plans. So is this the start, or should I say the end? It has been called by some as the rise of the “unprotected”. This interpretation sees society divided between those who are ‘in’ Enjoy. As always, please contact me if you have comments, and those who are ‘out’. It is not just a financial division, but more suggestions and a yearn to contribute. a political one, connected with access to what is wanted in the globalised world. [email protected]

Those who are ‘in’ understand or have access to the political system and achieve outcomes that are favourable. Those who are ‘out’ are seeing their living conditions suffer; through loss of general employment, more competition for housing, and decline in or lack of services and changes in their localities that are unwelcome, as well as in changes in the social mix. The increasing struggle to obtain affordable housing, particularly in Melbourne and Sydney is a factor in this phenomenon. In the planning space, the influx of medium and high density apartments, in previously low density housing areas is an example. While as most in the profession can see the benefits in increased density, for service provision etc., it should not be assumed that such benefits are broadly supported.

The need to understand, communicate and act to broaden social and economic participation must be a key driver of actions in Plan Melbourne Refresh when it is released. There is a need also to accommodate and respond to different views. I detected this concern within the VPELA Conference interview Join us in our new environment by Adrian Finanzio SC of Julian Burnside QC. An edited version is continued in this edition. I urge you to read it. Looking to take you career to a new level? Then we should talk. Maddocks is looking for a 2-4 year lawyer to join our market- There are a number of contributions from the successful leading Planning & Environment team, based in our new conference which unfortunately I was unable to attend. Stephen Melbourne office at Collins Square. Yarwood, Mary Massina, Jane Jose, Jodi Kennedy and Amy This role will see you advising our government and private sector Woods have all contributed articles. clients on the full range of planning and environment issues. To learn more, contact Marita Pascoe on 03 9258 3625 or I am also delighted to have an article by Professor Rosemary [email protected] Calder, a leading social researcher and implementer over a long period. Rosemary has provided a revealing analysis of social data on Brimbank which highlights connections between health and maddocks.com.au the design and use of places.

VPELA Revue October 2016 / 5 The Business

The VPA new name, new work areas, same determination Peter Seamer, Victorian Planning Authority

I’d like to tell you a bit more about the Victorian Planning To support this new focus, the Government has funded an Authority and the work we do as the Government’s strategic additional $2.1 million to establish a specialist regional unit, and planner, under the direction of the Minister for Planning. a further $2 million to streamline subdivision processes and unlock strategic development sites for housing and jobs. It’s now the tenth anniversary of the creation of the old Growth Areas Authority, during which time the organisation has As VPELA members would know, there are many sites in undergone major changes, including recently becoming the Melbourne and regional Victoria that have been unable to be Victorian Planning Authority. While developed for a variety of reasons: many things have changed, some sometimes they are stuck in the things have not, namely our clear planning system, they may be seriously purpose of helping manage our state’s contaminated or in need of greater strong growth so Victoria continues collaboration across government to to be a great place to live or run a deliver their new future. business well into the future. A few examples of strategic redevelopment sites we will be focusing on This is particularly important in light include the Clayton Business Park; and of the latest figures confirming Victoria remains the fastest- the former industrial school/ asylum/ tertiary education facility in growing state in Australia, with population expected to reach 10.1 Sunbury now owned by Victoria University and known as Caloola. million by 2051. The VPA is interested in hearing from councils and the Our work is highly complex and requires the management of development industry about any potential opportunities for us to many competing goals, organisations and often conflicting assist with planning outcomes. interests. We must keep Victorian housing better and more affordable than comparable states for all of us – not just the rich The VPA has also been asked to examine Victoria’s post-PSP – and incorporate innovative design, environmental planning, subdivision processes, particularly in Melbourne’s Growth transport solutions and economic reality into all our work. Areas. We have a program that will support councils to speed up approvals, to ensure we have a strong pipeline of new houses We have been, and will continue to be, very active in designing going to the market and to maintain Victoria’s strong advantage and enabling Melbourne’s growth areas (58 suburbs so far) and in supply and affordability. planning for urban renewal in established areas, such as the National Employment Clusters. Currently we have around 50 projects underway. These vary from Precinct Structure Plans and higher level framework planning However, the VPA will now have a focus in two new areas: for regional cities, to more site specific work on strategic sites. regional planning and strategic redevelopment sites in both The program can be viewed on our website, vpa.vic.gov.au Melbourne and regional areas. To explain our work a little further, I’d like to explain three projects in more detail. The first, one of our very earliest Structure Plans, was Cranbourne East, which was gazetted in 2010. Today, it is the fastest growing suburb in Melbourne. Creating this PSP involved a number of new processes and outcomes, working hand-in-hand with the City of Casey.

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6 / VPELA Revue October 2016 cafes and new bus services, helping us to achieve our target of Becoming the VPA will also give us the opportunity to extend our localisation of as many activities as possible. New business and work into Victoria’s growing regional areas. We are undertaking employment areas currently being planned in Casey will, over or have completed work in Wodonga, Drouin, Warragul, Moe, and time, help turn around the shortfall Casey has in employment. Torquay and will soon be assisting the City of Greater Bendigo with Plan Bendigo. We are not saying the area is complete – the extension of the rail line to Clyde will be a boon for the area, and this is still some The third example I wish to draw on is working with Moorabool years away. Council on the planning for Bacchus Marsh, which exhibits many of the challenges many of our regional centres and towns face. Another very different example of our work, in inner Melbourne, includes the Draft Arden Vison & Framework. Minister Wynne, Bacchus Marsh is one of Victoria’s oldest settlements, with Minister Allan and the Lord Mayor of Melbourne launched this buildings in the town centre dating back to the mid-1800s. The framework for consultation on September 1. entrance to the town centre from Melbourne is along the iconic and state-significant Avenue of Honour. Arden will be a classic 21st-century urban development, based around progressive urban design, a metro station and a beautiful There are good rail and freeway east-west connections but civic heart and public realm. It will be a new focal point for poor and dangerous north south links. The Bacchus Marsh business, innovation and living in Melbourne. It will be a new conurbation is the amalgamation of a number of very different central city destination. Like all our work, the Draft Arden Vision & areas and growth has been incremental leading to the city Framework and the Arden video can be viewed and commented growing (sprawling) without a clear plan. It has the full range on via www.vpa.vic.gov.au. of issues: food security given its irrigation areas, a coal mine, a huge sand mine, an airport, a historic town centre, and a The project has two components: structure planning for the beautiful setting. privately owned parts of North Melbourne working with and building on the work of Council, and a site-specific project on the Moorabool Shire Council requested our help to prepare an Urban large area of land the Government owns in Arden. It is a unique Growth Framework (UGF) for Bacchus Marsh and coordinate a opportunity to create something special, which takes advantage whole-of-government approach from the state level down. of the precinct’s amazing surrounds and proximity to the CBD, the knowledge precinct in Parkville and the flourishing west. The UGF will guide residential and employment growth for growth to 2041 and aim for a regional town that has self-sustaining Planning will draw on some of the better comparable sites employment. The UGF will also establish a settlement boundary worldwide, including Kings Cross and Canary wharf in London and identify high-level infrastructure needs. and Hudson Yards in New York. Our high-level work will inform the detailed design and project work will be the responsibility of The VPA has grown into a balanced, multi-disciplinary group the appropriate Government Agency, currently Places Victoria. and with the Government’s support we are keen to work with local communities, councils, landowners, developers, state This is a huge milestone for this project, coming after many departments and specialist groups on the challenging variety of months of the VPA working closely with the City of Melbourne work that we have. and several government departments and agencies. We welcome your input and feedback and no doubt will be It has involved working through many of the challenges and working with many VPELA members over the coming years. opportunities of strategic planning – from planning for the regeneration of an industrial area while keeping much of its Peter Seamer is CEO of the Victorian Planning Authority heritage, leveraging off the Metro Project investment, and dealing with flooding, open space, contamination, education issues and design innovation.

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VPELA Revue October 2016 / 7 Shadow Minister Andrews breaks election commitment and deals a major blow to The Hon David Davis MP Shadow Minister for Planning housing affordability and Local Government

In a mockery of its rate capping policy and in direct breach of Second, if the gap between the fees and planning costs was in repeated pre-election commitments not to increase taxes, fees fact climbing under the previous Liberal Government and Labor and charges, the Andrews Labor Government has gazetted in opposition felt as Richard Wynne did when he made the recent massive increases to the wide range on Planning and Subdivision statement that, “Ratepayers have been left to foot the bill for Fees that can be charged by councils in relation to housing developers for too long and we have decided to act,” then surely developments. For example: Labor should have taken the Victorian housing development industry and indeed the Victorian community into their confidence • The maximum fee for a planning permit application for a single and spelled out prior to the election that electing Labor would dwelling was $490. Now, if the estimated cost of development is more than $100,000 and not more than $500,000 the fee will have a direct negative impact on housing affordability in Victoria. be $1213, an increase of 148%. Labor chose not to – despite this fee hike being “long overdue” • The fees for a low rise apartment development of 25 dwellings at least in part due to Labor’s own failure to act over a decade in with a construction cost of $5.5 million have risen from $1,153 government. to $8,196, an increase of 611%. Daniel Andrews’ formal promise to “every single Victorian” made • The fees for an apartment development of 100 dwellings with on the 28th November 2014, that he would not increase taxes or a construction cost of $30 million have risen from $8,064 to introduce any new taxes if he was elected Premier, was in fact a $24,151, an increase of 200%. blatant lie. As these increases will inevitably be passed on to new home Daniel Andrews had promised prior to the election to cap council buyers, these fee hikes can only detrimentally affect housing rate increases at the CPI, and while with inflation running at affordability in Victoria. This may well be the straw that broke the camel’s back for young Victorian families seeking to realise the around 1% this is something he has singularly failed to do, he dream of home ownership. was at least prepared to talk about this policy prior to the election.

Planning Minister Richard Wynne had the gall to say of this fee However, he was not prepared prior to the election to openly hike: “This change is long overdue, with the increase directly discuss Labor’s plans to massively increase Planning and related to the inaction taken by the Liberals while the gap Subdivision fees. between the fees and planning costs was climbing. In fact he did the opposite. He repeatedly ruled out any increase This is disingenuous on a number of fronts. in taxes, fees and charges beyond indexation should Labor be elected to office. But don’t take my word for it – here it is in his First, state – set planning fees for local councils have not been own words: indexed consistently since 2000 the overwhelming majority of which time Labor was in fact in office.

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8 / VPELA Revue October 2016 4 September 2014: Younger Victorians in particular have been lied to and betrayed by Daniel Andrews with these massively increased taxes on new JON FAINE: Are you going to put taxes up? housing. But it does not end there. Farmers, small businesses, DANIEL ANDREWS: Of course we’re not. We’re not going to tax indeed anyone, seeking to amend a planning scheme will now be our way into, we reduce taxes… charged between 500% and 1330% extra for the privilege. (Source: 774 ABC Mornings, 8:35am, 4 September 2014) 5 November 2014: Despite the promises of no new taxes, the Victorian Government has increased state taxation by 20.7% in two years and in fact in CALLER, DAVID: Morning, Jon. Mr Andrews, if you don’t get the this financial year the land tax take will surge by 28%. The above Federal funds, will you either cut your infrastructure program tax rises and the new stamp duty and land tax levies placed on for public transport? Or will you raise taxes overseas purchasers mean that the property and construction DANIEL ANDREWS: Well, David, we’re not… thank you for your industry is carrying a massive share of the tax burden. call, firstly, David, I’m not interested in raising taxes. (Source: 774 ABC Mornings, 5 November 2014) The massive increases in property related taxes cannot but impact negatively the viability of the sector, one of the biggest 5 November 2014 employers in the state. Jobs and housing affordability for Q. You’ve said there won’t be any new fees or fines, what about young Victorians are key casualties of Daniel Andrews’ property changes to new fines, fees, what about increases tax slugs. DANIEL ANDREWS: “There is an indexation arrangement that." Was Daniel Andrews honest with Victorians in the lead up to Q. Besides indexation the last election? To use his own words: “absolutely not”. DANIEL ANDREWS: “No, we’re not interested in making it Whether anything he now says can be trusted I will let you be harder for Victorian families…” (Source: press conference) the judge of. 19 November 2014: Hon David Davis MP DAVID SPEERS: So, any higher taxes, levies? Shadow Minister for Planning and Local Government DANIEL ANDREWS: Absolutely not… (Source: Sky news election forum, 19/11/2014)

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VPELA Revue October 2016 / 9 Conference Conference wrap

Jodi Kennedy, Bass Coast Shire Council

Hard Decisions – Strong Leadership The Breakout sessions after lunch were well attended and the VPELA Conference, 1-2 September 2016 topics provided something for everyone. These sessions were then followed by a presentation from Gavin Smith, CEO Bosch Silverwater Resort, San Remo Australia, who took the audience on a journey to the future of Wow, where do you start in trying to summarise this conference? self-driving cars and other forms of technology. His key message The location (OK, yes I am biased as I live on Phillip Island), or the was that the future is here!! calibre and content of the presentations, panels and workshops? The final session for day one was Julian Burnside AO QC, The first day of the conference had a great mix of speakers. From having a conversation with Adrian Finanzio SC. The insights Christine Wyatt, Deputy Secretary, DELWP, setting the scene, to and challenges posed to the audience by Julian were at times Stephen Yarwood who talked about ‘preferred futures’, ‘artificial emotional and tough but also light-hearted, a reflection of intelligence’, ‘geospatial gaming’ and ‘cognitive cities’. Stephen Julian’s approach to his work and life in general. A key message shone a light on the role technology will play in the future of that came out of the conversation was that sometimes you do place-making opportunities; Pokémon is just the beginning. not set out to be a leader and/or a voice, however circumstance and personal convictions, can create a space for our voice to be We then heard from Jane Jose, CEO Sydney Community heard and this provides the platform to become a strong leader. Foundation, author and Urbanist, who focused on the role of the community in urban planning. Jane put forward the view After a day of inspirational and diverse speakers we boarded that if cities work for women – they will work for everyone and buses and drove onto the island for dinner at the Cape Kitchen, that we need to design our neighbourhoods for accidental where we experienced a magnificent sunset, great food, wine connectedness. and conversation.

Next was the panel of young and senior members of our Day 2 was the highlight of the conference for me with an amazing profession who shared candid experiences regarding their array of speakers. Mary Massina, Executive Chair, Tasmania careers and their ‘special talents’. This talent search went from Planning Reform Taskforce shared her trials and tribulations a love of cooking for others by Amanda Ring of SJB Planning in implementing a new planning system for Tasmania. Mary to a love of Dad Jokes by Phoebe Harrison of Planisphere, to demonstrated the strength of working collaboratively with the the talented Sean McArdle of Norton Rose Fulbright who can local and state levels of government, and the importance of clear apparently do a mono on a digger. leadership to ensure the challenges of implementing a whole new planning system were able to be met. As MC, Carlo Morello, Traffic Group, did a great job of getting the panel members to share their experiences and challenges they The Minister for Planning the Hon. Richard Wynne gave an have faced through their careers, as well as and the opportunities overview of what is happening in the planning space in Victoria. they see going forward. Both Peter Fearnside of Marshall Day The Minister focussed on urban renewal projects, in particular Acoustics and Des Grogan, Planning Panels Victoria provided the Arden Street redevelopment. some wise (and not so wise) words for the younger panel members and the audience.

Conference Local Market Our thanks to local producers who kindly provided a range of delicious goods which we sampled at our gala pre-dinner drinks. They are: Bassine Specialty Cheeses, Bass Highway, Bass , www.bassinespecialtycheeses.com.au Kite Haven Olive Oil – McFees Road, Rhyll, [email protected] Rhyll Trout & Bush Tucker Farm, 36 Rhyll-Newhaven Road, Rhyll, www.rhylltroutandbushtucker.com.au Wattlebank Park Farm, 425 Lynnes Road, Wattlebank, http://wattlebankparkfarm.vpweb.com.au

If you are heading down that way be sure to drop in and try out their products! Silverwater proved an extremely popular venue and the weather was very kind.

10 / VPELA Revue October 2016 their ‘intel’ had concerns for the Council meeting that was to be held that evening and they were going to have a police presence. Good stories also have come out, like uniting the community including residents, leaders and local businesses promoting the message of diversity. John Schauble who was fantastic in standing in for Craig Lapsley at the very last minute gave an insight into what it is like to be surrounded by fire and having to decide which house (and sometimes lives) you are going to not save as you have to think of the safety of your crew. He also gave an insight into the challenges of being in senior management in Emergency Services.

In summarising this Panel session, Caroline Viney, former CEO Grocon said it well in her presentation on the dispute with the Construction, Forestry, Mining and Energy Union (CFMEU) on the Lonsdale Street redevelopment. Caroline was of the view that Expert Panel – John Schauble, Jane Nathan, Prue Mansfield, Carolyn Viney the decisions were easy as she and the company had very clear and Andrew Holden. values. However, living through the process of implementing these decisions, that was the hard part. The Minister also put a challenge to both VPELA and PIA members– where is the planning voice? He wants to see our We then heard from the Hon. Greg Hunt Minister for Industry, profession have a strong voice and be at the table, in the media Innovation and Science before concluding with one of the pushing the views of the profession. He wants us to advocate on most powerful presenters I have seen – Gill Hicks. Gill gave behalf of our members, encouraging us to be strong leaders. an insight into her life before the London bombings and how it had changed and evolved since that tragic incident where she Adam Terrill of Tract Consultants presented the Paul Jerome lost both legs. Gill is a true artist, she took the audience on the Award to a most deserving recipient, John Keaney. John gave a journey of her story and as I left the room there was many a tear very humble, heart-warming acceptance speech reminding us of being shed, but I think I am right in saying they were tears of who Paul was, his contribution to planning, his personality and awe and inspiration. character that demonstrates why this award is really important. Congratulations John! Finally, what would a conference be without a Gala Viking Dinner. The night was a great success with music courtesy of Following a session of workshops that again were diverse and Carlo Morello’s band The Daedels and all were still enjoying well attended, we heard from a panel of exceptional individuals themselves well after midnight. who provided candid stories of how they had provided ‘leadership through adversity and opposition.’ Thank you to the organising committee, for their commitment to putting on an inspiring conference. I hope many went The Panel included Andrew Holden who told the story of how away thinking about that one hard decision they had to make he and his team at The Press published the next day and for and action, and that we all strive in our everyday lives to be months after in portable buildings after Christchurch was struck strong leaders. by major earthquakes in 2011 destroying The Press building and killing one staff member. Prue Mansfield from Greater Bendigo Jodi Kennedy City Council told the audience of the journey the whole Council Conference Organising Committee & Manager had been on regarding the application for a new Mosque. Prue Strategic Planning and Development shared the moment she got the call from Police to inform her Bass Coast Shire Council

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VPELA Revue October 2016 / 11 Conference A Conversation with Julian Burnside AO QC Interview by Adrian Finanzio SC at the State Planning Conference

So I started, like all lazy researchers, with Wikipedia. I went deeper for a long time and came back to Wikipedia to realise that there was a pretty succinct summary that I could put to Julian as a starting proposition. What it says, Julian, is that in 2004, Burnside was awarded the Human Rights Law Award by the Human Rights and Equal Opportunity Commission and sponsored by the Law Council of Australia for his pro-bono legal work with asylum seekers and for his work in establishing Spare Lawyers for Refugees. Also in 2004, he was elected an Australian Living Treasure. In 2006 he was inducted as an honorary member of the Monash University Golden Key Society and in 2007 he received the Australian Peace Prize from the Peace Organisation of Australia and in 2014, the Sydney Peace Prize from the Sydney Peace Foundation.

But Burnside has also written successful publications on law, human rights and philology. In addition to his work in the law, he is a patron of numerous arts organisations and he regularly commissions classical music composition and sculptures, and is Chair of two arts organisations.

And so in an endeavour to try and come to terms with Julian the person, the first question that I have for Julian, to commence this conversation, is: How do you find the time?

Julian Burnside: I learned to sleep faster.

By the way, I would disagree with the idea that I’m outspoken. I’m sometimes referred to as outspoken. And frankly, I think that when your conscience tells you something is wrong, to speak against it isn’t being outspoken. I mean, you know, lots of people in the country don’t understand what’s going on and the things that need to be understood. I was interested to read something that Arundhati Roy the author of The God of Small Things said– she is mainly known in Australia as an author, but in India, Adrian Finanzio: Welcome to this session this afternoon, which she is well known as a political activist, especially against the is entitled In Conversation: Adrian Finanzio in Conversation with construction of dams at the cost of people living in small villages . We’re privileged to have Julian agree to come Julian Burnside that get flooded. and spend some time with us this afternoon. And Arundhati Roy once said that a thing once seen cannot be To many of you, Julian will no doubt be a personality with whom unseen and if you have seen a great moral wrong, to remain you’re familiar. He has had an extraordinary career in the law, silent, is as much a political choice as to speak against it. And but also been a particularly outspoken person in the field of I think that’s about the most accurate summary of what drives human rights. It’s right to say, I think, that every generation sees most people who are concerned about any particular issue. So it people trained in the law, transcending the law and speaking troubles me to be called outspoken. about things which strike us all as social commentators, as public commentators. And certainly, Julian is a person who’s Adrian Finanzio: It’s true, Julian, that you enter the professional done that. What I wanted to do this afternoon is to attempt space as a lawyer. You’ve done extraordinarily high profile work to introduce Julian to you in a way that gives you a broader over the course of your career. You took silk when you were 40. understanding of Julian, the man, and Julian’s involvement in But what brought you to the law in the first place? Was it always that public discussion. the law for you?

12 / VPELA Revue October 2016 Julian Burnside: No, accidents. My whole career has been a came out of the ballot, you would be called up. And my birthdate series of accidents. I’d love to be able to take credit for carefully came out of the ballot but because I was already enrolled and plotting my course, but it’s just been a series of accidents. I did studying law, I was able to defer until the end of my course. And, very well at Year 12, which we used to call matriculation back I deferred until the end of my course, which because I had picked then, and I think I was accepted into four or five faculties at up economics partway through, ran for six years, not five. And Monash and Melbourne, which were the only two universities we at the end of my sixth year, Gough Whitlam was elected and the had in Victoria. And one of the faculties I was accepted into was first thing he did was to abolish conscription. And I hadn’t even law at Monash. My sister had previously gone out with a bloke voted for Gough Whitlam. who I had always found to be enjoyable company. He was doing law at Monash so I decided to do law at Monash so that I would I had not the least interest in politics then. I have no interest in know someone and I wouldn’t be lonely. So I’m not necessarily politics now, to be honest. the best at career planning. Adrian Finanzio: It’s interesting, the observations you make Then I thought “Although I have a hankering to be an artist I about that time. A little later in life in 2004 you delivered the Sir would like an income.” So I decided to pick up an economics Ninian Stephen lecture I think answering the rhetorical question: degree because I thought I would be a management consultant. Why study law? The Practice of Law, Justice, or Just a Job? You And management consultant, you know, that was the occupation made this observation, “most actions have many causes,” you ‘du jour’ back in the late 60’s. said, “and the causes of human conduct are generally complex. Putting to one side my own reasons for enrolling in law school, Anyway, so I did that and back then at Monash, ‘mooting’ - which my impression of my contemporaries is that they were motivated is like a mock court thing – mooting was voluntary. Now it’s largely by an instinct for justice, and to a small but measurable compulsory, I think, at all universities. And only nerds tended extent by the lure of a large income. Those in whom the desire to do it, so I gravitated to it. In 1970, I was invited to be part of for money was greater were generally those who already enjoyed the Monash Intervarsity Mooting Team. The Australian and New its privileges; those who most sought justice had often been Zealand Law Student Societies were having their annual thing in stung by its absence.” New Zealand. Now I hadn’t even been to Tasmania, so the idea of a free trip to New Zealand was very exciting. Julian Burnside: I agree with myself.

So anyway, I went there and as luck would have it, I won the Adrian Finanzio: What interested me in the speech, was a Blaxton Cup as the best individual speaker. At the prize-giving subsequent observation, which I think challenges many lawyers drink session afterwards, I was in conversation with the Chief who start life with a degree of idealism. You went on to note that, Justice of New Zealand who had presided over the final moot. “Soon the impulse for justice was recast, as starry-eyed; the And he said, “What are you going to do?” And I said, “Oh, I think, naïve privilege of youth. Serving the client’s needs, no matter I think I’m going to be a management consultant.” I didn’t want how venal, was the ascendant; attending at the community legal to tell him I wanted to be an artist. He said, “You should go to service fell away. One by one we succumbed to takeovers or the bar.” That was my career planning. So I just decided I would, pleading summonses; disputes about wills or tax, broken limbs I’d be a barrister. It only occurred to me two years ago, wouldn’t and broken promises.” it be funny, if what he really meant was, “Go and get another drink.” I like the idea that my whole career had been based on a That is a conundrum, that confronts many of us in the develop- misunderstanding. ment of our professional lives?

And so because I had done economics, I naturally found myself Julian Burnside: It is and it’s not surprising because in the sort being briefed and doing tax cases. It was quite a long time before of hot commercial end of the profession, most clients aren’t I found myself with the opportunity to do things concerned with the least bit interested in justice. They’re interested in a result social justice. that favours them. And I have noticed, that a lot of people, by the Adrian Finanzio: So let’s go back a step. You were at university, at Monash University, in the late 60’s and early 70’s, reputedly a hotbed of social unrest. And I suppose the question that I have for you is: was that a time when things seen could not be unseen?

Julian Burnside: Not at all. I went along to the Vietnam rallies that Jim Cairns organised in 1970, thereabouts. I went along to the Springboks … the demonstration against the Springboks rugby team when they came to Melbourne in, I think, ’69 to ’70, during the apartheid era. But I did that because I was the photographer for Lot’s Wife, because photography was the area of art that I was particularly keen on. Lot’s Wife was the newspaper at Monash. And I had no interest whatever in the politics of either of those things, not the slightest interest.

In fact, I turned 18 during first year university. And, most of you probably don’t remember this, but we had conscription back then for the Vietnam War and all done by ballot. If your birthdate Julian Burnside QC and Adrian Finanzio SC.

VPELA Revue October 2016 / 13 time they’re three or four years in practice, to say that they’re The Department psychiatrist said that he asked her what she practicing as lawyers because they’re interested in justice wanted to do with her future and she said, “I don’t want to be sounds so undergraduate that they don’t say it. I’m quite often buried here in the camp. I want to be taken back to Iran and asked to speak at universities, and I always urge law students, be buried beside my grandparents.” This is an 11-year-old, “Write down now why you’re studying law and look at it again okay? So the, the psychiatrist said the family should be moved every year and remind yourself, that was the reason you’re doing to a metropolitan detention centre where the kid could get daily what you’re doing. Because if you surrender an interest in justice psychiatric aid. and surrender it entirely to just to making money, well then you’ll have a rich but unrewarding life, in my opinion.” So they moved to Maribyrnong in the western suburbs of Melbourne. And although the reason for moving them was that Adrian Finanzio: Speaking out about those injustices can be the 11-year-old girl needed daily psychiatric help, for the first difficult. Speaking out can be difficult. It’s clear that in relation few weeks of their stay in Maribyrnong, nobody came to see her; to migration and refugees in this country, you have been one to not a psychiatrist, not a psychologist, not a nurse, not a doctor, speak out about the things you’ve seen. And I think one of the no one. And on a Sunday night in May of 2002, while her parents things that most interests this group is: What led you to, to that and her young sister were off having their meal in the mess hall, course, to that path? I mean in 2001 Tampa occurred. Up to 2001, she took a bed sheet and hanged herself in their cell. you had done a vast array of high profile commercial work. But 2001 seems a turning point. Kon Karapanagiotidis had recently set up the Asylum Seeker Resource Centre. I heard about this. Because she was only little, Julian Burnside: It was. It was a turning point. I got into the you know, she didn’t know how to tie the knot properly so she was Tampa case by accident because, a bloke I knew had briefed me still suffocating when the family came back to their room. She to act on behalf of Carlos Cabal, the fugitive Mexican banker who and her mother were taken off to the general hospital nearby. was desperately trying to avoid being sent back to Mexico. And They had two guards with them as they were still technically in anyway this solicitor worked out what he thought was a plausible immigration detention. case theory to resolve the Tampa standoff and asked me if I’d act pro-bono on behalf of the people the Tampa had rescued. Kon hears about it, goes to the hospital 9:30 that night. Said, So I said, “Of course,” Actually, I didn’t know anything about “G’day,” to the guards. Said he just wanted to speak to the refugees. I didn’t know anything about refugee policy or law or mother to see if there was anything he could do to help. And the anything. But I do feel the heat and it was not difficult to imagine guard said, “No, you’re not allowed to see them because lawyers’ how uncomfortable it must have been for those people stuck on visiting hours in immigration detention are nine to five.” And they the steel decks of the ship in the tropical sun. You know, that’s sent him away. He rang me at home at about ten that night. I how limited my thinking was. Anyway, so I did the Tampa thing will never get over that phone call. It was just … I thought, “Shit, and I learnt a lot about refugee policy during that case because how can anyone behave like that? How can anyone drive a child I came across a lot of people who knew a lot more about it than to suicide, or to attempt suicide, and then turn away someone I did. who’s just offering help?”

And then the turning point, actually, was not Tampa. That got And at that point I thought, “This is far deeper than just dealing me into that area but during the early part of the following year, with legal problems. This is a real problem … an existential I got a phone call that changed everything. It concerned a family problem for Australia. And I thought … I mean it was very obvious who had fled Iran in awful, awful circumstances. This is mum after Tampa that both political parties would use boat people as and dad and two daughters who at the relevant time were aged a means of attracting votes. I thought, in my naivety, “Well if the eleven and seven. They were from a minor sort of pre-Christian public understood this stuff, they’ll change their mind and the sect who are regarded by the majority in Iran as unclean, with all politics will shift because we have a party, not of political leaders, of the consequences that that has. but of political followers.”

Anyway, they had fled Iran desperately, late one night. They’d In fact, what we’ve got in Australia, and have had for the last ended up coming down that corridor from the northwest. They couple of decades, is Jim Hacker style leadership. You know, ended up in Indonesia and they used a people smuggler to “I’m their leader, I must follow them.” That’s what we’ve got in get them across to Australia. They were banged up in the Canberra and have had for a couple of decades. Woomera Detention Centre in the South Australian desert. They were all doing it pretty hard, but after 18 months, the So I thought, “Well if I can just start speaking out and let people 11-year-old was a complete wreck. She had given up. She know what’s going on, then the policies will change.” I thought it had stopped eating. She’d stopped grooming herself. She’d would take six months. I was obviously wrong about both aspects stopped caring about anything. of it, because attitudes haven’t changed and it’s taken more than six months. A psychiatrist from Adelaide heard about the case and went up to Woomera, which is a four hour drive from Adelaide, and spoke Adrian Finanzio: Well you say that in a very humble way, that you to the girl and spoke to the parents and delivered a devastating just started speaking out. In fact, you took some extraordinary psych report to the Department saying, “This child was at steps to articulate the position to inform the broader public. In extreme risk. She needed daily psychiatric attention.” And in one abstract of a speech that I found, you described the approach Woomera back then, if you needed urgent psychiatric attention, of the government as putting the country in breach of its you would get to see the vising psychiatrist roughly once every six international conventions. “It has portrayed,” you said, “a deeply months. But she needed it daily. unattractive element in the Australian character. It did this for

14 / VPELA Revue October 2016 electoral advantage at a time when Australia receives a minimal that and they would be swearing and abusing me unrelentingly, number of refugees and treats appallingly those who arrive.” and I would bite my tongue and say, “Dear so and so, thank you for your email. I gather you don’t agree with me but you realise They, together with many of the other observations that you made there’s this fact and this fact and this fact?” in the public domain, combine to send a very strong message. How does that marry with your role as a barrister? Almost of them replied and all of the replies were polite. They’d gone from screaming to room temperature polite in one jump, so Julian Burnside: It’s difficult. It’s difficult, because there is a sort extraordinary. And some of them, some of them would say, “Oh of unwritten rule at the bar that barristers don’t speak out about actually I didn’t know that,” or, “I agree with you now.” And others public matters, unless they’re politicians, in which case they do would say, “Well that’s all very well but what about this and this it all the time. And it was difficult because I think I’m actually, by and this?” And I’d write back saying, “Well actually there’s that nature, very conservative and I’m very much rule oriented and I and that and that.” And over the, the years – and this was 2001 prefer to follow the conventions than to reject them. So whenever to about 2007 – more than 50%, I’d say, ended up saying, in I spoke out, it was with a sense of some concern that what I was substance, “Thank you for discussing it with me. I agree with you doing was not compatible with my profession. All of this came now.” And 25% said, in substance, “Well thank you for discussing into sharp focus one night in 2004 when Kate and I were at a very it with me. I don’t agree with you but I think it’s good you stand up fancy social thing and the wife of a very senior, highly respected for what you believe in.” The other 25% don’t worry about. colleague came up to me and said, rather archly, “Oh, do you Adrian Finanzio: You’ve taken up the cudgels to attempt to think a member of the bar should speak publicly about these persuade everyone from the Prime Minister down to the fellow matters?” And it really cut deep, because part of me agreed whose sister you were interested in, and yet, Julian, we find with her. And without the benefit of preparation, I said, “Well do ourselves, again in a time when these issues are at the forefront you think it appropriate to know about these things and remain of the discussion. How does that make you feel? silent?” And that had two advantages. First was it sort of clicked into place in my own mind why I was doing it and why I would Julian Burnside: Like I’ve failed. The problem is, most Australians keep on doing it. And the second advantage was that she never get their information from the News Limited media, like 70%, spoke to me again. And the second is an enduring benefit. and the News Limited media are not the least bit interested in publishing my views so you get 70% of the public who think what My involvement in this thing has actually had two phases. the government is doing is right. First from the time of Tampa in 2001 through to about maybe early/mid 2007, when the issue went off the boil and later that And this takes us back to Tampa. I remember the chronology year, of course, the Rudd Government was elected and they of Tampa very well, for obvious reasons. The decision at first instance in Tampa was handed down in Melbourne at 2:15 in changed a lot of things. But then it came on the boil again in th about 2010, thereabouts. the afternoon on the 11 of September 2001. And eight or ten hours later, there’s the attack on America and all of a sudden, During the first phase, I felt utterly rejected by many people who you didn’t have terrorists; you only had Muslim terrorists. And I thought were friends. It was professionally one of the most you didn’t have boat people; you only had Muslim boat people. difficult times of my life because colleagues I thought were And that’s when John Howard starting calling them illegal and friends would cross the street to avoid, meeting me in the street. the Liberals have continued to refer to boat people as illegal But this time around, it’s been a bit different. This time around, I ever since, even though it is completely untrue because boat people don’t commit any offence by coming and seeking a safe think some people have begun to wake up to the fact that there’s place to live, even if they haven’t got papers or an invitation something deeply wrong with what’s happening and I haven’t felt or anything. Then when Scott Morrison became Immigration the same sense of antagonism. Minister in, what, 2013, he started calling the whole exercise The other interesting thing about the first phase was the public “border protection”. hostility which it generated. This was, of course, before Twitter. So put yourself in the shoes of the average punter who gets his But I used to get bucket loads of hate mail, mostly by email. or her news from the Herald Sun. What they read is there’s a And that was very bracing, actually. You know, if you sort of had a quiet life doing commercial litigation, getting hate mail is interesting; as well as death threats. The Tampa … I’ve done some controversial cases, but the Tampa’s the first case that provoked death threats, which is odd.

Anyway, I used to get all this hate mail, mostly by email, and I decided … since I’d set on the task of persuading everyone in Australia that what was happening was wrong, I thought, “Well here are people that are self-selecting as not sharing my views so I will try and persuade them.” So I decided to answer all the hate mail. Jesus, what an idiot.

Now when people write to you, pen and paper, you can’t answer them because they tend to forget to give a name and address. But with emails, it doesn’t matter that they conceal who they are, you can always answer it by hitting the reply button. So I did

VPELA Revue October 2016 / 15 border protection exercise and it’s pushing back the illegals. wasn’t a leader, Shorten’s not a leader, Rudd wasn’t a leader. I That means we’re being protected from criminals, which makes don’t know how far back you have to go before you find someone. perfect sense. If you knew that both elements of it were a lie, you I mean arguably Paul Keating was a political leader, I mean I might think differently. think that’s debatable. I think, arguably, Gough Whitlam was a leader, in fact he was. Gough Whitlam managed to do some But why would anyone need to dig into that? Why would they astonishing things. I think arguably Robert Menzies was a leader. need to question what they’re told by our politicians? You know we’re a very strangely believing lot and a trusting lot in Australia. Interestingly, Robert Menzies began his record run as PM the We believe what parliamentarians tell us, even though again and year I was born and he was PM until I finished at school, okay? So again and again they break their promises or they’re caught out I grew up in a Menzies atmosphere with Liberal voting parents, lying to us. But still we keep on believing, perhaps because it’s a breathing Liberal air. I suspect, (and I have several colleagues hope in better things. who are members of the Liberal Party who agree with me), that if Robert Menzies were alive today, he would not be admitted to Adrian Finanzio: You’ve been, in fact, quite controversial in membership of the Liberal Party, which he founded, because some of the ideas that you’ve promulgated about keeping or he’d be regarded as too far on the left. Now it’s a curious thing. holding politicians to account for the things that they say. I think It’s a very bad thing that’s happened in this country, and it’s all you’ve indicated that not unlike, perhaps, the way that the Trade because they go for votes. They’re only interested in votes. Practices Act works for misleading and deceptive conduct for people engaged in business. Politicians might also be caught by I had a very interesting meeting in my chambers early last year. similar obligations. A handful of former health workers who’d worked in offshore detention in Manus plus a senior Liberal parliamentarian who I’d Julian Burnside: Once again, I think I agree with myself. Why known for a fair while. I don’t hang around with parliamentarians not? Why should parliamentarians get away with a standard of much but I knew this person. behaviour, which falls below the standard that they set for people in commerce? You know, if people in commerce are not allowed Anyway, one of the doctors was particularly interesting to engage in misleading and deceptive conduct, why should ‘cause unlike me, he’s not a bleeding heart. He has spent his politicians be allowed to engage in misleading and deceptive professional career in the prison system, including in maximum conduct? I mean it just doesn’t make any sense. security prisons, and he decided to do a tour of duty in Manus because the pay was good. So he said, he said three things really And I think our whole country would be a lot better off if struck him. When he first arrived at the compounds at Manus parliamentarians could be sanctioned for misleading the public. Island, his immediate inner thought was, “This is what the Now when I say “sanctioned”, I don’t mean fining them but, you concentration camps must have been like.” know, you have a graded level of suspension from parliament, ultimately prohibition from parliament, depending on the And if that sounds like something too extreme, don’t forget seriousness of the events. A bit of honesty in politics, I think Stephen Charles, very conservative former member of the Court would actually improve this country considerably. of Appeal in Victoria, recently wrote a piece for The Age in which he described our detention centres as concentration camps, and Adrian Finanzio: No one gets the impression that you’re going to said we should all see them as concentration camps. stop speaking out about these injustices that you encounter. What is it about our leaders and the nature of leadership that’s going to So first thing, the doctor thinks is that this is what the concentration bring about change? How will change occur, do you think? camps must have been like. Within a week of working inside, he said he’d formed the view, that the way they’re treated and the Julian Burnside: Well if we had a leader then things might conditions they’re held in were 100 times worse than anything change, but we don’t. I mean Turnbull’s not a leader, Abbott he’d seen even in any maximum security prison in Australia. And third, by the end of his tour of duty, he was persuaded that the barely concealed purpose of the whole exercise was to break the refugee’s spirit so they would abandon their claim for protection and return to the country that was persecuting them.

Now the meeting broke up, the parliamentarian stayed behind and said – and I believe what he said – he said he was shocked, that he’d never heard facts like this. He was genuinely shocked because he didn’t realise things were like that. And without missing a beat, he said, “Mind you, it would be political suicide for us to take a soft line on boats.” That’s what politics looks like in Australia today. A man is prepared to throw out everything his conscience tells him because the alternative would be damaging in the polls. Now as long as we’re like that, we’ll continue to behave like animals.

Why does it worry me? We are behaving, in this country, in a way that betrays what we think of ourselves. It betrays our character. I think most Australians, not all, but most Australians would say, Delegates Tamara Reilly, Gabby McCarthy and Nick Hooper enjoying a break. “No, you do not punish and mistreat innocent human beings

16 / VPELA Revue October 2016 deliberately, and especially right now when we’re doing it as a deterrent. You shouldn’t do that. It’s just bad behaviour.” And yet it’s quite explicit in our present government, that the harsh treatment on Manus and Nauru is all designed as a deterrent so that people will not even try to come here seeking a safe place to live.

Now what worries me is that right now in Australia, human rights are sort of slightly on the nose and there is a real risk that in another 10 or 20 years, people will look back at that time when we used to think about human rights. It will be one of those things that isn’t even thought about anymore. And if that’s so, then there will be a catastrophe lying ahead of us before we correct back to where we were.

Adrian Finanzio: It’s an interesting point to reflect on that trend given the re-election of Pauline Hanson and the One Nation Party to the senate. Just the other night on Catalyst, there was a discussion group where a number of people were expressing Aboriginal heritage their views, aligned with Hanson and others, but also lamenting the fact that they want a right to be heard in respect of their legislation has changed views as well, as though there’s some kind of pride in position to express the view that they have, a right that they’re seeking to Book your FREE training session assert, to press their own view. And that unless we engage with those people in the way that you have in numerous emails in the • Understand the significant changes course of your engagement with people who are against your • Stay abreast of the implications for your projects views, we won’t actually change that underlying culture. and industry • Learn now to minimise risks, delays and Julian Burnside: It is complex, but I suspect that the Pauline unexpected costs Hanson phenomenon reflects something, which I started • Have your questions answered thinking about during all those emails. Why was it that people would write to someone they don’t know, screaming and ranting, The sessions cover: and then become very polite when they get a response? And it • Significant changes to rules and fees seemed to me that the real explanation was nothing to do with what they thought about refugees, but the fact that they felt • New penalties and how to avoid them isolated in the community. The fact that they felt as though the • Consequences of the new ‘stop the clock’ only way they could get someone’s attention was to scream at provisions them. And then, when they were listened to, their behaviour • Implications for pre Act amendment CHMPs changed completely. • Intangible Aboriginal heritage and land management Now it would not surprise me if the people who voted for the • New powers and structures for Registered Hanson Party are people whose lives are just shitty and not Aboriginal Parties (RAPs) working out well for them and they are attracted to someone who will shout on their behalf. Now I could be totally wrong. • Role of the new Activity Advisory Groups (AAGs) But I would be very unhappy if it were the case that the Pauline • What you need to know about the Preliminary Hanson view of the world was the new Australian way of seeing Aboriginal Heritage Test (PAHT) things, and I don’t believe it is. Walk away with a valuable understanding of the amendments and how to apply them to I hold onto the belief that our country is much better than this, your projects for smoother implementation that we’ve been misled into behaving badly because politicians and better cultural heritage outcomes. mislead us and at the fringes you’ll get people like Pauline Hanson who will express the views that unhappy, dissatisfied, alienated people find somehow comforting. TAILORED REGIONAL YOUR TO YOUR AND METRO OFFICE OR Adrian Finanzio: If this conference is about examining or BUSINESS AREAS OURS exploring the notion of strong leadership, the contribution that Julian has made this afternoon to that discussion, is to provide us with an example of one of the most important elements of leadership; moral leadership. And I want to thank Julian for his Book your free training session today: contribution to our conference this afternoon. 1300 839 325 Julian Burnside AO QC, is a barrister, human rights and refugee advocate. Adrian Finanzio SC, is also a barrister and is [email protected] Vice President – Legal of VPELA.

VPELA Revue October 2016 / 17 Conference Planning Tasmania’s renaissance

Hard Decisions – Strong Leadership Mary Massina, Tasmanian Planning Reform Taskforce

This is an edited version of Mary Massina’s The 28 Interim Planning Schemes conform to a common conference presentation template, Planning Directive Number 1 which was developed in 2008 by the Tasmanian Planning Commission. Tasmania has created the first single state wide planning scheme in Australia and what’s more because of this significant While it sets in play 22 generic Zones and a raft of Codes, there reform, it paves the way for others to follow. was limited guidance provided through Planning Directive Number 1 regarding the standards and spatial application. As a small state operating in a global market for capital, it means Tasmania must play to its unique strengths and resolve So unsurprisingly, councils have interpreted what should be weaknesses which hamper investment. under the headings, 28 different ways, leaving Tasmanians with 15 per cent consistency across the state and between the regions. Through the creation of a single state-wide planning scheme, the Tasmanian Planning Scheme, Tasmania is making the For example, the Significant Agricultural Zone is only used in hard decisions, showing remarkable leadership and achieving the Southern region, yet our prime agricultural land and the reforms which others can only dream about. bulk of our farming activity occurs in the North and the North West regions. Reforms such as this can only be achieved with the strong leadership and unwavering support from the Tasmanian Government Another example is the Environmental Management Zone, which is underpinned and supported by the commitment of a which you would expect Tasmania’s world, national and state myriad of key stakeholders who firmly believe Tasmania can and wilderness areas to be zoned without residential development. will have a planning system which is fit for purpose. However, currently there are very different ways of dealing with this Zone across the state. A planning system which balances the built and natural environments, community needs, cultural significance and economic In some council areas, it is applied to public land, in others it is sustainability. applied to public land and very limited private land due to land The frustration road conservancy, or it’s a mixture of public and private or a mixture with residential development. To put this historic Tasmanian reform into context, it is important Also in a complete denial of natural justice, these inconsistent, to note that there have been a number of significant economic complex, confusing Interim Planning Schemes came in overnight, reports over forty years calling for leadership and reform across leaving the majority of Tasmanians dealing with Schemes which the State’s planning system. they weren’t, in the main, consulted on. The frustration experienced at the lack of reform culminated in 2013 with 30 different industry and community sector Commencing Planning Reform 2014 organisations call to arms on a variety of key issues with planning In May 2014, the Liberal Tasmanian Government created the 10 reform being at the top of the list. member Tasmanian Planning Reform Taskforce, comprising In a small market, in a small state, which needs to differentiate of planning and legal experts, industry and local government itself from the rest of Australia, planning reform is low hanging representatives. fruit. The Taskforce was charged with the responsibility of developing While microeconomic reform has never been easy, it is necessary an Australian first, the single state wide planning scheme model, called the Tasmanian Planning Scheme. if the state wants to drive further investment, productivity and job creation. It is also fundamental to ensuring fairness and equity In March 2015, the Planning Reform Taskforce was instructed which, allows for all Tasmanians to have confidence in how their to draft the single state-wide planning scheme’s State Planning communities are to grow and prosper. Provisions along with the template for the Local Provisions Schedules. Currently, Tasmania has 29 councils, 28 have Interim Planning Schemes which articulate three Regional Land Use Strategies, This package was delivered to the Minister for Planning and the North, North West and South. Local Government, the Hon Peter Gutwein MP, on 21 December 2015. However, the three Regional Land Use Strategies do not assess or recommend the same planning matters and in fact, each region’s The Minister Gutwein and the Planning Reform Taskforce have Strategy is quite different in approach, language and intent. stepped up and delivered, in true partnership a significant

18 / VPELA Revue October 2016 planning reform from a legislative, planning scheme and cultural This was the first time that some of the key stakeholders, who reform perspectives. underpin the state’s economy and employ or support vulnerable Tasmanians were asked to sit at a planning table and assist in The Land Use Planning and Approvals Amendment Bill 2015 which finding solutions to address their key planning barriers and take legislated for the single planning scheme is the only significant ownership of the decision making. reform bill so far to have received unanimous support from the 15-member independent Legislative Council. This was due to In addition to the range of external stakeholders, there was a the fundamental belief and support for: whole of Government Interdepartmental Committee created to work through the policy questions and issues which arose • The Minister for Planning taking the responsibility for state through the drafting. This was the first time that State Govern- planning rules; ment Departments had buy-in to any planning scheme. • The underwriting of the true partnership between state and local government to ensure that success of the single planning While no one organisation or sector achieved all their wants, scheme by a clear delineation of the roles and responsibilities all stakeholders (whether they be business, community sector, of each level of government; local government, industry or State Government Departments) were treated as equals with valid points of difference which • Ensuring that the denial of natural justice which is at the heart required solutions and negotiation. of the current interim planning scheme process will be history; and Decisions into actions • Ensuring a higher degree of transparency and accountability than has ever been seen before in the planning system. It’s important to note, that the only level of consensus was at the Planning Reform Taskforce table. As a collective, it was Clarity of outcome, timeframes and the adaptability ensured the expected that the Planning Reform Taskforce would make drafting of the Tasmanian Planning Scheme’s State Planning the hard decisions, show the strong leadership and come to a Provisions were, from a policy, planning and legal perspective, position of agreement, even if it meant compromising. sound and achieved within the timeframe and budget. However, for external stakeholders, the express view was Collaboration for success consensus was not expected. It was more important that the In a break from past planning scheme drafting habits, targeted Planning Reform Taskforce heard the differing and sometimes, stakeholders were brought inside the tent to sit alongside the competing opinions because only from a diversity of views and Planning Reform Taskforce and the drafting team to assist in the advice can balanced decisions be made. drafting of the single state-wide planning scheme. This consultation was conducted in an environment of respect The Planning Reform Taskforce brought together two technical and clarity of communication that there would be times where groups: there would need to agree to disagree.

• Planning Technical Reference Group made up of nine local The draft Tasmanian Planning Scheme is a practical and government planners from three regions, representing urban pragmatic first step in what is envisaged will be a continuing and rural councils; and evolution of a single planning scheme for Tasmania and it has paved the way for other innovative reforms to be developed. • Infrastructure Reference Group which brought together all the key physical infrastructure agencies and bodies covering Given the experience that Tasmania has had in the reform energy, transport, utilities and local government. space, there are two words which need to be placed next to hard This was ground breaking, as it was the first time that local decisions and strong leadership. These two words are respect government planners and infrastructure providers were asked to and trust. assess, discuss and review land use planning and infrastructure These attributes are only granted if there is true, effective and provision from a whole of state perspective, not a regional or a honest communication. This requires leaders to be clear about council perspective. the ground rules and the outcomes at start while keeping an To the credit of the Minister for Planning, throughout the process open mind because no one person is the keeper of the truth. he encouraged and supported what was seen as an unorthodox process of engagement and consultation. The Tasmanian Government has shown courage and leadership and this is the hallmark of Tasmania’s renaissance. Some 145 state-wide stakeholders covering heritage, environment, community sector, large and boutique primary producers, However, as with any reform, it is not solely the responsibility of property, large industrials, small, medium and large business government. As key planning stakeholders we must also support were asked to work in partnership with the Planning Reform and drive reform. Complacency is not an option if we are serious Taskforce. about continuous improvement across the planning system for the collective good of our communities. These groups were tasked with reviewing and providing direct technical and policy advice to the Planning Reform Taskforce Mary is currently the Executive Chair of the Tasmanian on every section of the draft State Planning Provisions, from Planning Reform Taskforce. An influential and experienced the Planning Scheme’s structure, Development Application business lobbyist, Mary Massina has carved out a unique requirements through to the use and development standards career across the public, private and community sectors, as across the 22 generic Zones and the 15 Codes. well as within the political sphere

VPELA Revue October 2016 / 19 Conference Courage and common sense A feminine view Jane Jose, Sydney Community Foundation

This is an edited extract of Jane’s presentation to the permission. The pop-up use is an interesting phenomenon. State Planning Conference on 1st September 2016. It was exciting to arrive one weekend to find that amongst the stacked canoes and boats of an old wharf in Elizabeth Bay Sydney Cities are the playrooms of our lives - holding the past and that we could suddenly get coffee and sit enjoying morning tea promising our future. It takes courage, common sense and on the wharf. There was pretty instant opposition from nearby collaboration to make them change for the better. I want to residents. It kept being closed and then popping up again. It’s a highlight the key roles that women have played in making our good example of how planning controls often lag behind public cities connected and more livable. interest and public desire.

New York’s Times Square is now a walkable place changing the Good cities respect tradition. Places from the past ground us dynamic and helping the wellbeing of the city. Sydney is working and connect us to the future. I was very involved 25 year ago in on making its main street George Street a pedestrian and light saving the inner city heritage of Adelaide and I share some of rail street. These are bold changes, courageous and which called this story in my book Places Women Make. The scale of most on the land owners to be collaborative. heritage property is a human scale. Having the courage to speak up against the demolition of our past is to bring common sense Urban life now means we need willingness to change our public to contested planning. Our cities have plenty of places where places. We want them to be house and garden, a ‘third place’; a development of office towers can occur. shared living room away from work and home. The Queens Theatre, one of the oldest mainland theatres in Once our time away from work was spent at home making and Australia dating from 1840 was destined for the wrecker’s ball enjoying ‘house and garden’ improvements to our place. Home when it was caught in a property portfolio when the developer was a refuge behind the gate or the front door of our apartment went broke, so it was languishing in the assets of the State Bank block. Now we spend so much of our time in the public places of of South Australia. One of Australia’s leading heritage advisors cities and neighbourhoods. Joan Domicell from Sydney, a voice of reason called on the Minister to preserve it in the national interest. It was saved and We want ‘house and garden’ comfort and style in our local streets one of the first performances after the building had minimal and parks and in the shared places of the city. The changes to restoration, was an Opera Australia touring performance of traffic free streets in New York were led by the head of Transport the Magic Flute. Now it’s a community asset and is also used in the city administration. A woman named Jeanette Sadak Kahn. as craft market. It was women who saved this building and the Cities are for everybody. Life now happens more outside our collaborative activism of women in fighting for great places in apartment and front door where people who are mobile can find a cities and towns across Australia is a model for future place sense of belonging as well as good food and flowers at a weekend making. Heritage places sustain community life. market. Sydney’s Carriageworks Market cares for body and soul. The bush makes Australian cities like nowhere else. As Australia It brings urban people and country providors together. But even urbanises we need to be able to escape to the bush and we need wonderful markets like this can draw local resident protest from pockets of bush in the city. Australia’s birds, animals and flowers invading cars, noise and out of hours’ delivery trucks. Commons our flora and fauna are part of our bush eco system and we need sense is needed to sort these kinds of issues fairly. both. Australia’s cities are unique for their bushland and for the song of native birds that still sing and screech in the city – Jane Jacob’s (The Death and Life of Great American Cities) message keeping a connection to nature. In Australia the environmental was that Cities are for everybody. It is a great, simple, definition of movement to save patches of bush in the city was led by a group the essence of sustainability. The struggle today is to make cities of “educated middle class housewives” from Sydney. In 1971 work to meet all our diverse needs to provide shelter, stimulus, the women who became known as the battlers for Kelly’s Bush wellbeing – places to meet, places to play, places to discover and saved 4.8 hectares by forming the world’s first ‘green band’ with this takes collaboration. the New South Wales Labourer’s Federation. The legacy of their Women as nurturers and bearers of children see the world collaboration is immense. Looking back, it took great courage to differently and have an almost programmed desire to protect stand up against the multi-million dollar profits of development. and preserve community life. Women seek to hand on cultures Activism over decades led by women has resulted in much of from the past, recipes from grandmother, the handmade skills Sydney’s inner harbour, headlands and islands being preserved of weaving, knitting and making. as national park for everyone to enjoy. Around the edge there are We live in a society where things must be regulated – but we miles of harbour paths that make the waterfront a playground also have to bring common sense to what receives planning shared by everyone. Parks have been upgraded for all to enjoy

20 / VPELA Revue October 2016 by landscape architects such as Jane Irwin in many projects Sydney Town Planner, Joan Masterman, now in her seventies initiated by Sydney Lord Mayor Clover Moore. working with architect, Ken Latona provided the courageous and common sense planning solutions that enabled the In creating great public space, you need to consider: creation of the Cradle Mountain Huts and Walk in remote Tasmania, beginning a movement of urban escape eco- • Beautiful gardens with grass and trees tourism respecting the land. It was with sensitivity, common • Playgrounds sense and willingness to seek to change the view that national • Bike and walking paths parks could not co-exist with tourism, that she in her tenacious and gracious way led to a change that supported sensitive • Community resources, such as libraries, free museums development that communities love. and galleries • Social connectedness, use of Wi-Fi and other technology Emily Simpson, in her thirties, walked the labyrinth in San Francisco’s Grace Cathedral and decided Sydney needed one. • Places that encourage gathering and celebration She has gathered support tapping into people of all ages, for the first public Labyrinth in Centennial Park. It took courage to Women such as Marcelle Hoff, Urban Activist, Lucy Turnbull, take on the planning system that said nothing could be built in Sydney Lord Mayor, Genie McCaughey, North Sydney Lord centennial park! It’s there and the community love it. Mayor and Wendy Whitely have been instrumental in creating such places around Sydney. Women have not always had power – but those with courage and common sense have influenced our cities. Elizabeth Henrietta I’m convinced a feminine view in shaping community life is needed Macquarie travelled in 1809 from Scotland to Sydney, the more than ever today if we are to find the wellbeing we need from township of the small but thriving British penal colony of New our cities. Looking back into history we can see how women as South Wales. She arrived in a privileged position of influence as pioneers supported the growth of the cultural life that helped the wife of Governor Lachlan Macquarie. civilize our towns and cities in Australia. Think of the lending library movement that shared knowledge and friendship. The As a woman without power but with influence, she had the garden societies that led to public parks and gardens. My work courage to use her influence on the design of her adopted city looking at Australian cities shows the enormous contribution to and on social change to civilize the convict settlement. Her great our city and community life by women that has long not been legacy is Mrs. Macquarie’s Bushland Walk. The walk remains a recognized. When Marion Mahoney Griffin drew the sketches pilgrimage for tourists and locals taking in the constant beauty of for the Australian National Capital, Canberra, a hundred years the harbour and the cooling breezes. It is a walk that the ancient ago, it would have been not socially acceptable for her to share aboriginal people walked before her and that under Clover joint authorship with her husband Walter Burley Griffin. She was Moore’s leadership will become the Eora Journey marking happy to just do the work. aboriginal culture and knowledge.

Women work in shaping cities in complex, often indirect ways. Women have made an enormous contribution to place making They are catalysts, advocates, activists, commissioning clients, in Australia. We need their dreams, their courage and common donors, influencers, decision makers, and sometimes architects sense, their excitement and risk-taking and their instinctive and planners. Many women decision makers begin as activists collaboration – our urban life will be better for it. agitating for change, taking up the cause of better outcomes in their neighbourhoods and cities. As an urbanist Jane Jose has written, shaped and informed policy to make great public places for people to enjoy in cities In NSW Clover Moore has led change in the community’s ideas across Australia. She now brings over 20 years of experience and behavior by involving people in making the changes. From in working with the design professions, government leaders community gardens for growing healthy food, cycle paths for and corporate Australia to her philanthropy work as CEO of healthy transport, adopting green technologies or walks to learn Sydney Community Foundation. history and about our proud aboriginal ancestors on the land, her approach is to have people participate. Women see the small things adding up to more. Community places and activities are the glue in the community drawing people together, helping them to rethink their ideas and even how they live their lives.

Women continue to make us rethink how we live our urban lives. Melbourne Chef and gardener, Stephanie Alexander with one school project in Melbourne’s Collingwood College brought Europe’s slow food movement to mainstream Australia. A well-known restauranteur, she popularised the movement encouraging people to grow and eat healthy food leading to a changing interest in food and in a movement for community gardens in suburbs across Australia where people can get together if they don’t have their own garden and grow fresh food. Kate Brennan CEO of Melbourne’s Federation Square let small allotments on Federations Square ‘s rooftop as vegetable garden plots to the local community.

VPELA Revue October 2016 / 21 Conference Think different(ly) Things that will change our cities Stephen Yarwood, city2050

Some edited highlights of Stephen’s conference presentation. Uber is one I wanted to touch on when talking about solutions. I'm not necessarily going to profess to have all the solutions Do you want to have a once in a lifetime opportunity to actually when it comes to either the share economy or Uber. All I guess implement change and provide strong leadership? This is I really wanted to say about Uber and the drive economy, is that a conversation around preferred futures; helping people if you think the conversation around Uber is about competition understand where we're going and some of the issues. If you with taxis, you are profoundly mistaken. think that what you've learned over the last 20 years can be applied to creating the future, you really not only need to think Uber as a company has already stated they want to get rid of again, but you either need to reskill or retool or get people in your all of their employees. They have major contracts with major organisation to help you do that, or quite literally, get out. car companies talking about autonomous vehicles, and what that actually physically means. Additionally, Uber is now looking There's a saying about Futurists, "If you don't talk about into things like public transport. ‘Uber pool’ is a great example. preposterous things and challenge people's thinking, you're No longer does a car just have two people in it; a driver and a probably not doing your job the right way." I've got about four or passenger. It can have regularly up to four people. I always use five random examples from different parts of our urban future Uber pool just because I'm a nerd, and I love to try these things that I'm going to talk about today that should get you thinking and meet the people who are in the car, ask them why they're around some of the contemporary issues that we're going to doing this, and what their experiences are. Uber are now looking have to face: to challenge your ideas on the things that you're at public transport. They are looking at buses. They are looking worrying about today, and how relevant they are going to be in at a whole range of infrastructure. the next five, ten, or even 20 years. Moving around Let’s look at a few: How we will connect; how we will move; how we will use possessions; how we will see our civic spaces; and, The world is changing very, very rapidly, and I think we need to about ‘intelligent cities’. start to understand where this is actually going and just as the Atari was the computer game of old school computer games, Connectivity and AI what we're looking at now here with Uber and autonomous So of course, one of the really big trends in where this is all cars is really the very early days of a dramatic shift. Now, the th going is connectivity. Samsung as a company is now embedding car was the defining technology of the 20 Century. It created computer chips in everything. Where is all of this connectivity our streets, which in turn created our cities, and defined how ultimately leading? You can talk about all sorts of crazy and our cities developed, etc. But, just as cars were a completely interesting ideas, but for me, I think the fundamental ‘elephant in different beast to the horse and cart, these autonomous vehicle the room’ is that I don't hear planners talking about this. I don't things are not cars. What I am here to tell you is if you think it hear city leaders talking about, Artificial Intelligence. walks like a duck, looks like a duck, and quacks like a duck, so it must be a car, you are fundamentally wrong and you need to My son is seven. By the time he finishes university, his mobile start to rethink how you think these things are going to influence phone will be smarter than he is. Now, what does that actually our cities. My biggest concern about this conversation is that it's mean for our cities? What is Artificial Intelligence ultimately all being held by engineers and policymakers, not by urbanists, not about. If it's self-learning; it assumes, it adapts, and it predicts. It by planners, not by architects and not by city shapers. I really see finds typical and untypical patterns and analyses and suggests. a horizon where we have no idea how this is fundamentally going Isn't that what cities are, arguably the most complex patterns to redefine our streets. in humanity? Isn't that the work that we do ourselves right now? These patterns that we call cities are going to start to be One of the great examples that I want to use how we will use influenced by this autonomous approach. Of course, if, once road space. Traditionally we had a footpath. We had a car parking again, if every single one of our phones is an AI, and they're all space. We had two lanes for cars; maybe a bus line or a bicycle connected to each other, what sort of a city are we going to end line if we're innovative and that's how we split it up. We separated up into the future? based on the type of use of that space.

So artificial intelligence is already here. It's in our Facebook In the future, I think we're going to have to have a new profiles; it's in our Google accounts. We're often looking at our conversation around how we use roads. Maybe the first lane is phones thinking, "Geez, I was only just searching for that, now for five kilometres and under, the second one is for five to 15 it's showing me adverts”. It's also starting to be in some of the kilometres, the third lane is for 30 kilometres and the fourth lane city applications that we're already using. is for 60 kilometres. It doesn't actually matter whether you're

22 / VPELA Revue October 2016 on a bicycle, an electric bicycle, an electric scooter, an electric to get by and the opportunity to create these new connections is two wheeler, an electric three wheeler or electric four wheeler, really, really key. a car, an autonomous vehicle, or you're just jogging or running really fast. Instead of segregating our streets based on the type My biggest concern about controlling Airbnb is that we're of vehicle, maybe we need to be rethinking how we segregate underestimating the power of the share economy. There's a our streets by the speed we're moving. hundred million electric drills in the United States alone that have been used for no more than five minutes! Wouldn't it be wonderful Share economy if we could have one electric drill, one lawn mower? For those of you in the room who are cyclists, buy the best bike you can, The share economy is another significant shift in our society. It is because you can then rent it out to everyone else.Spin Mister is a getting profoundly complex and it's only going to get significantly downtown Melbourne company, where you can hire a bicycle for a more complex. My biggest fear with the share economy is that we day. This type of share economy is only going to expand. are now looking at something to control. That's what planners love to do. Now, for those of you in local government who are thinking that you don't want to spend half a million or a million dollars Planners regulate, planners control, planners try and make sure building public toilets, why not map out all the toilets in your that things don't happen unplanned. I plead with you to open your neighbourhood, in your community that could potentially be mind to actually not controlling the share economy, but letting used. I'm sure there's a whole pile of men and women who are it flourish. Take Air BNB. There are huge opportunities. There prepared to pay two dollars to use a premium bathroom rather are thousands of empty spaces in our cities that could be used. than actually have to use a public toilet. So there's an opportunity Why are we protecting a hotel industry when it's mostly owned to start mapping out the assets of our cities and actually making by billionaires who live offshore, and that money goes offshore them open; making them available, connecting them to the versus that money going into local economies? community. Yes, there might be a price to pay, but this is a whole new operating system of cities. There's a huge amount of statistics on this in terms of retirees. In particular in Japan many people are now making a living Seeing cities differently by providing this sort of service, with local knowledge. This means money spent in local shops, local restaurants and local I want to touch on another piece of traditional infrastructure. The communities. There's a huge amount of documented evidence good old fashioned street light. If we talk about the street light of around people who are paying their bills, or paying their rent just the future, then you can start to see the sorts of technologies that …continues over page

VPELA Revue October 2016 / 23 we might use to measure our urban environment. If you think It's actually helped create this whole new way of interacting with about a big city, let's say metropolitan Melbourne, and every urban environments. You're starting to see that in terms of a single one of the street lights collects data, then these nodes perfect storm in certain places, with people starting to use public would act like a brain that's connecting a whole pile of data and realm, there are going to be a huge number of opportunities this using artificial intelligence to start remapping and rethinking the summer around place making. Temporary seating, temporary operation of our cities. lighting, buskers, entertainment but make no mistake, it is a company who created this future of an augmented gaming, Now, I'm going to talk about Pokémon Go. And I heard some geospatial environment. Every single plaque, public art, street groans and some giggles. I know that some of us want Pokémon art, historic building, significant community asset has a tag on to go away. I wanted to touch on this as another key trend. I just it and it's basically showed us that our planners, place makers, finished yesterday the MAV, my first Pokémon Go, Cities and local government as missing, not even actually understanding or Streets, Master Class and it was fascinating. The issues that are imagining what could have been achieved and a private company coming up throughout cities, in local government throughout have done it. It's food for thought. Australia and throughout Victoria is amazing. Intelligent cities Now the whole thing about Pokémon is that it's not about Pokémon. For those of you who are planners, have you not City Futures, are not going to be about architecture and design. noticed people starting to use cities in completely different ways There is a fundamentally new operating system of cities on the over the last few weeks? horizon. I talked about AI before. Consider the Fitbit.

Pokémon Go, has been a net positive for public space use and I love the fact that they're called ‘watches’, because the truth is, awareness. People are exploring unfamiliar areas of the public they're going to start watching every single thing that happens realm and in the process are socialising with strangers. Virtually in your entire life! Including how much solar you get, your every significant asset in your community has been tagged, heartbeat, your temperature, the list goes on. If every single and when you go to it you interact and you get a reward. All of one of us in our communities are wearing this, and they're all a sudden, I know the name of every piece of public art in my connected, our cities are actually going to start to change. community and I know a whole range of different pieces of infrastructure. This is going to see human self-organisation fundamentally change. Instead of us making our own decisions, we're going to be advised where to drive, when to walk, when to use a bicycle, when to go here, when someone we know is nearby, a whole range of things that are going to be wonderful. Now, I know it's also scary. The ice caps are melting. We are more obese than ever. We're more dependent on oil and we put out more carbon emissions than virtually any country in the world. It's Beveridge Williams not perfect now; we need to have an open mind. So ultimately development & environment consultants we're going to start to see not only natural organisation change into human organisation, but urban organisation is going to be completely redefined.

In the next few years, these examples of street lights, around Comprehensive land development services for a range of geospatial gaming, around artificial intelligence and how it works projects from feasibility through to construction. We are in cars, how buildings, how we're going to use the resources in able to deliver a continually evolving range of services our city through the share economy will unfold. We're going to from our network of offi ces across Victoria and in Sydney. ultimately be going from the Smart Cities notion, to an intelligent cities notion where we're starting to talk about being intelligent citizens. Then, ultimately, to a cognitive city where we're now • Urban Design • Town Planning actually getting to the point where those billions of nodes with • Land Surveying • Traffi c Engineering embedded devices, using the common language of binary digits • Civil Engineering • Project Management to talk to each other, is ultimately going to create an AI that is the • Landscape Architecture • Environmental Services city. Then the city becomes a conscious beast.

Now this sounds overly trippy, and it was meant to be confronting. The point is it's going to happen in pretty much everyone's lifetime in this room. We tend to apply what we've learned over the last 20 years to create the future of tomorrow. Yet this is now arriving in a very rapid way.

The former Lord Mayor of Adelaide and founder of city2050 Stephen plans, trains and facilitates on preferred futures for cities, corporations and communities. His consultancy www.beveridgewilliams.com.au specialises in the future of cities and innovation in urban development; governance, leadership, strategic planning, policy development, master planning and place making.

24 / VPELA Revue October 2016 Conference My VPELA education, a VPELA-cation

Amy Woods, Biosis

I'm not a planner or a lawyer (or traffic engineer or urban my brother-in-law, Liam, along with the rest of central London, designer), but I am a very interested archaeologist, and happily I had no choice but to return home that night on foot. He walked won a scholarship. After working in Victoria for almost 7 years in shoulder to shoulder as literally millions exited the city, many my field with my ecology and environmental planning colleagues, with in excess of 8 hours pedestrian travel over streets they have I have become acutely aware of how our disciplines merge into never seen. Despite years of public transport, the majority of an integral part of community development and change. I really Londoners had never seen the space above their tube stations. enjoyed this conference and have reaffirmed my commitment to For Liam, the sudden understanding of geography came with figuring out what the rest of you do. it a realization of 20 minutes unnecessary underground travel per day. The traditionally aloof CBD citizens had to shout out Hard Decisions, Strong Leadership was such a great theme, and for help in the crowded streets for the most basic directions, as I feel it attracted presentations and discussions that were frank they had no knowledge of their direction on London streets. The and constructive. The presenters themselves were varied, and simple unity this created as Londoners marched home together the odd minister or two gave it a red hot go, but could anyone have always stayed with me as a fascinating outcome of such a possibly have compared to Julian Burnside? Skillfully interviewed distressing time. by Adrian Finanzio, this self-proclaimed politically conservative human rights lawyer was captivating. If there were sign up sheets As Ms Hicks moved on from her experiences as part of the available, I am sure I wouldn't have been the only one to forget successful bid in the design team for the London 2012 Olympics, my (wonderful and rewarding) career and walk away in outraged she recounted saving her own life with a scarf tourniquet, the determination with Julian. My takeaway message from this was vanity with which she chose to be an inch and a half taller that left or right, one's politics are irrelevant when faced with true through her prostheses, her work with Sisters Against Violent despair. Offshore detention centres were of course a key focus in Extremism and MAD for Peace. Throughout she kept a two- this hour, including a few and significantly distressing examples day-fatigued conference audience totally engrossed. In the of life on Manus Island and Nauru. The second clear message meantime, her small daughter and three other children could was that our leaders are being led by those whom they should be be seen through the glass walls of the venue, running around on leading. Many who were not able to attend the conference asked the grass outside against a stormy sunset and Western Port Bay me: how relevant was a refugee advocate to the represented in an oddly poignant juxtaposition to the content being discussed. disciplines? The answer to that is easy. Mr Burnside grasped and If I were forced to bring this together in a somewhat relevant articulated the importance of the conference theme, even if he framework to our livelihoods, I would point out the common was left disappointed by its application in the political arena. The denominator for speakers talking about the most difficult tone and concerns he brought to those assembled were clearly issues (Burnside, Mansfield, Hicks). It isn't fear, Islamophobia also kept alive throughout the conference. or ignorance (well it is actually but there is something more productive). All three talked about the need to hear from those All presenters met the theme with consideration and honesty, who are disenfranchised, not to simply dismiss their beliefs not least those who were addressing the long and fraught with antagonism. Prue Mansfield mentioned that during process of the Bendigo Mosque application or the administration question time in community consultation, the normal half hour of processes in the aftermath of Black Saturday. While I've limit was not imposed. All questions were heard, addressed been gradually learning the wide reaching social and cultural and answered. Julian Burnside talked of his perseverance implications of planning through my time on the VPELA YPG, with hate mail (email) – when responding with respect and the experiences of Prue Mansfield (CoGB) and John Schauble acknowledgement of concerns, haters didn't become lovers but (Emergency Management Commission) acutely illustrated to me they became reasonable. Gill Hicks headed the first MAD for the responsibilities and contributions inherent in this discipline. Peace WALKTALK event, a Leeds to London 250 mile trek and The issues that had to be addressed within each of these stories opportunity for those of different backgrounds to discuss beliefs are undeniably complex: freedom to worship, Islamophobia, and focus on commonalities. These were powerful messages, governmental responsibility, personal responsibility, addressing but simple, with broad application. tragedy… MC Jane Nathan wrapped up with a little inspiration, referencing the regular acknowledgement of Traditional Owners The conference ended for me as all conferences should, in robust as custodians of the land, and reminding us that we too are political discussion at 4am with other like minded professionals, custodians, challenging us to plan for the present and future use many of whom had generously brought the wine gifted to them of the land and to enrich and care for our diverse communities. for their conference contributions. This was a really positive and enlightening event for me, and I sincerely hope that I delivered In the very last session of the conference, we had the privilege the perspective and enthusiasm I promised in my scholarship of hearing from Gill Hicks, London bombing survivor and fierce application. campaigner for peace. Personally, I was drawn back sharply to that evening more than 10 years ago, and a consuming fear Amy Woods, that was fortunately never realised. On the evening of July 7, Archaeologist, Biosis

VPELA Revue October 2016 / 25 Places Improving Australia’s health Through local planning for improved public health Professor Rosemary Calder

Good health is fundamental to individual wellbeing and society- Brimbank collaboration wide prosperity, but access to good health and to health services is not equally shared in Australia. The AHPC established a collaboration between VU and the Brimbank City Council in the west of Melbourne to lift health Over recent decades, chronic diseases have become a national – and education outcomes in the Brimbank population. The and global – health problem. Currently, 50% of Australians have Growing Brimbank program of evidence based interventions a chronic disease such as diabetes, heart disease or depression, and research will apply the evidence of ’what works’ to risk and one in five have multiple chronic diseases. Almost two factors identified by two population studies,The Brimbank thirds of the Australian adult population is overweight or obese; Atlas of Health and Education, and Physical Activity, Sport and cardiovascular disease is killing 46,000 people each year; and Health in the City of Brimbank (2014).These two reports have almost 3 million people are affected by mental health and provided a comprehensive picture of the health, education and behavioural conditions. socioeconomic characteristics of the Brimbank population. These diseases and their risk factors are unevenly spread. The Brimbank spatial map of Low socioeconomic status communities are disproportionally social and physical infrastructure affected, for example, women living in areas of disadvantage are more likely to be overweight or obese, and poorer Australians “It is increasingly recognised that there is a clear association are more than twice as likely to smoke. between the health and wellbeing of individuals and communities, and where they live. Place can influence health and wellbeing, The burden of chronic diseases is a major public policy challenge both positively and negatively, directly and indirectly.” (Brimbank that threatens not just the health of individuals but the wellbeing Atlas of Health and Education, page 6) of community and Australia’s future economic prosperity. As a nation we have unacceptably high rates of obesity, physical The Brimbank Spatial Map of Physical and Social Infrastructure (the inactivity, alcohol use, smoking and poor nutrition – and there Spatial Map) to be published late 2016 will profile the physical and is an urgent need for attention to these modifiable factors that social assets within the City of Brimbank. are contributing significantly to disease and disability amongst growing numbers of adults and increasingly seen in children. This report presents a modern way to look at existing data on health and wellbeing within a local community. It introduces Much of this burden is preventable. Effective policy responses ways in which health data can be augmented through a multi- can prevent or delay some diseases, improve health outcomes faceted approach to complementary non-health data and a and equity, and reduce health system costs. We need to give geographical approach more broadly, and the use of Geographic much more policy attention to the factors that contribute to Information Systems (GIS) specifically. preventable chronic diseases – and among these is the physical environment and urban and rural infrastructure. The key outputs presented in the report are maps and correlation results representing the strength of relationships between health Poor health and geography outcomes for residents of Brimbank, and different local assets and deficits within the City of Brimbank, which make upthe There is strong evidence that geographical location, physical and everyday environment for its residents: from schools to transport social infrastructure and planning are central to the health and options, libraries, food outlets and health care providers. wellbeing of a community. The Heart Foundation in Australia, in recognition of this has published Creating heart healthy Not all features of Brimbank are included, but a large set of communities: Helping local councils meet the requirements of different features are combined into the maps and correlation Public Health planning (Feb 2014) providing practical suggestions tables. The patterns in these features can help to inform for health-promoting infrastructure and non-infrastructure thinking on questions like: Does poor health relate to poor initiatives to support local government in public health planning. physical access to health care providers in Brimbank? Does obesity relate to a lack of local healthy food options? How does the strong The Australian Health Policy Collaboration (AHPC), based correlation (0.947) of packaged liquor licenses contribute to children at Victoria University (VU), is working to encourage greater assessed as developmentally vulnerable? Planning should take investment in prevention and early intervention for chronic into consideration infrastructure as environmental and social diseases, and overall improvement in population health and enablers for health. wellbeing. We aim to contribute to the development of public policy and its practice, and to improve health outcomes through The maps and correlations do not present answers, but they evidence-based research, particularly for socioeconomically present new perspectives on public health challenges. Many disadvantaged Australians. public health issues are, on the one hand, complex and multi-

26 / VPELA Revue October 2016 faceted, but on the other hand, geographically stark: irrespective of the complexity of overlapping factors, rates of health indicators like diabetes, obesity, hospitalisations for ambulatory care sensitive conditions, and psychological distress are higher in Brimbank than in many other parts of Melbourne.

The different perspective that geography can bring to public health has been termed by some researchers as the “public health macroscope” (Rydin, Bleahu et al. 2012). A prominent example is the current obesity trend: the rapid growth and uneven distribution of this chronic health problem is difficult to understand if we limit our focus to the behaviours and choices of individuals.

A multi-disciplinary, collaborative and policy-focused approach to public health has been advocated in recent Australian research:

“Multidisciplinary research teams conducting interdisciplinary research offer two main advantages. First, they can close the gap between researchers and policymakers by increasing the policy- relevance of the research …Second, multidisciplinary research teams that include public health professionals can increase attention to health in decision making about the built environment. Despite increasing knowledge of the health implications of their decisions, for many academics and policymakers, the impact on ‘health’ remains a minor consideration. Working with those outside of health may have long-term benefits.”

(Giles-Corti, Sallis et al. 2015)

For policy-makers and health and community service providers with responsibility for improving health and wellbeing in communities, it is helpful to have targeted information. This report will:

- Highlight potential connections (or lack thereof) between features in the local environment and health outcomes in communities with specific population health needs - Help planners to strategically consider environmental, infrastructure and service planning to better direct resources to population health needs; - Provide a better understanding of the assets and deficits contributing to health outcomes in our communities.

The methodology: (two main groups of data) were collected, combined and measured as correlations.

The two main groups of data were:

1. Brimbank Atlas indicators of health and wellbeing The set of indicators already collected by PHIDU (Public Health Information Development Unit), included in the Brimbank Atlas of Health and Education. Professor Rosemary Calder is the inaugural director of 2. Additional spatial datasets of different Brimbank features the Australian Health Policy Collaboration, an independent national health policy ‘think tank’ at Victoria University, Additional spatial datasets from a variety of sources, established in 2015. She has worked for State and which were not specifically tagged as health or wellbeing Commonwealth governments in Australia as a senior public data but which could be of relevance for describing assets servant in health policy and administration. Rosemary has and deficits in Brimbank. These datasets were collected served as Chief of Staff to the then Victorian Minister for incrementally from different sources, to be combined with Health and was the head of the Office for the Status of Women the PHIDU data. during the Howard Government.

VPELA Revue October 2016 / 27 Conference Paul Jerome Award

VPELA’s Paul Jerome Award for public service was presented to John Keaney at the State Planning Conference on 1 September. The following is John’s response on receiving the award. We would like to thank Tract Consultants for their ongoing sponsorship of this prestigious award.

It is both an honour and a privilege to be presented with the Paul Jerome Award for 2016. As you know, this award marks the memory of a wonderful servant of the planning system in this state, who brought the very best of his formidable skills to a wide Many of the planners here, like me, will have started our planning variety of tasks at the local, and especially the state level. careers in local government. Most of the planners on the list at I only crossed paths briefly with Paul during my earliest years VCAT have worked in local government at some stage of their in planning but like many, I knew of his considerable reputation. career. It remains as the very best nursery for planners. I got to know Paul when sitting before him at the time of the Over the journey for me I have seen the role of the local new format planning scheme Panels in the late 1990s. He was government planner change considerably. I sense that the role of a regular Panel member and I was appearing for a number of the Council planner is getting more difficult by the day. Schemes Councils seeking to introduce their new schemes. Paul always are more complex, obligations to produce material are more struck me as being inquisitive and challenging, but always fair. extensive and the raft of considerations seems exponential. In For our respective sins we were asked to do a bit of a departmental that context, the planner can be on a ‘hiding to nothing’ trying ‘road show’ around 1999 with a few peri-urban Councils to to balance their independent professional opinion with the views coincide with the gazettal of their new format scheme. I was of submitters, who often think they know better, while always struck by Paul’s ability to articulate an otherwise complex new being conscious of the difficult political environment that their system into easily digestible and understandable terms. He had Councillors find themselves in. a nice knack of controlling the room without appearing to lecture I commend to you all a decision of my former VCAT colleague people. A good listener and a good ‘explainer’. I was also struck Geoff Code in defending the role of a Council planner who was by his uncompromising commitment to the importance of sound under attack from an applicant during a hearing. He wrote: ‘planning’ at all levels. Victoria’s planning system needs young, bright and enthusiastic When Paul rang me in about 2003 to ask me to be a member of planners in local government who fearlessly express their views the initial Priority Development Panel, I jumped at the prospect and recommendations. The job of a local government planner is of working closely with himself and other planning experts. difficult. It is subject to high levels of scrutiny. When a planner Sadly as you all know Paul only ever saw the earliest days of appears for a council at the Tribunal, he or she should not be the PDP. subject to discourteous disparagement of their reports by parties claiming superior qualifications and experience. While the PDP then blossomed under the leadership of Kathy Mitchell and then Jane Monk, the fiercely independent approach I would hope that we are always mindful of the pressures and and framework that Paul had set up always stood us in good constraints that Council planners increasingly work within. stead, in my view. While I understand that Paul only briefly worked in local Soon after his passing, it was a wonderful initiative of VPELA to government, I think that he would be the first to concur with annually honour Paul’s memory and contribution and I proudly those views. accept that award. I thank you all once again for this award and I am humbled to While I have worked at VCAT, Planning Panels and the Priority accept it in Paul’s memory. John Keaney Development Panel, much of my work has revolved around consulting to local government.

I understand that I might be the first from outside state or local planning to be honoured but I would like to briefly give special mention and pay tribute to the role of the local government planner in our system.

28 / VPELA Revue October 2016 Hard Decisions, Strong Leadership

VPELA Revue October 2016 / 29 Hard Decisions, Strong Leadership

30 / VPELA Revue October 2016 Hard Decisions, Strong Leadership

VPELA Revue October 2016 / 31 Places Boosting amenity in the Monash National Employment Cluster Emily Hillebrand, Urban Renewal Director, VPA

The Cluster It is for this reason the Minister for Planning asked the Victorian Planning Authority (VPA) to turn its attention to the Cluster – to The Monash National Employment Cluster is home to some of determine what planning initiatives could make it more vibrant. Australia’s premier research institutions. For the past two years, the VPA has been conducting research into Within the precinct – which comprises parts of Huntingdale, the Cluster, carefully examining its strengths and weaknesses Mount Waverley, Notting Hill, Clayton and Springvale – scientific and determining how it could benefit from infrastructure breakthroughs are every day occurrences. investment, changes to land use and development.

In the past 18 months, for instance, researchers at the Australian In 2014, for example, the VPA surveyed 200 business owners Synchrotron discovered ways of enhancing the nutritional value and workers in the Cluster, asking them about how they thought of rice, while scientists at Monash University’s NanoBiotics lab the area should be improved. Business owners identified the created a wearable “metallic skin” that measures patients’ body key strengths of the Monash technology precinct as its close motion, heartbeat and blood pressure. proximity to clients, accessibility by road and the size of available And it’s not just the medical fields that the Cluster is excelling sites/premises. in. After the Second World War German engineering company However, they also revealed that the Cluster faces stiff Bosch began manufacturing in the Cluster, and these days the competition from newer employment areas that offer cheaper company’s Clayton base is making parts for driverless cars and more. land prices; better road access; or closer proximity to the CBD. While some institutions were considering moving to more The Cluster’s globally significant institutions are a magnet for affordable locations, others were considering relocating to Australia’s best and brightest, and largely account for the fact the Melbourne’s inner city, where workers can access a better array area has the largest concentration of jobs outside of Melbourne’s of business and lifestyle services. CBD, with 82,750 workers being based there. What the VPA is doing to However, while visitors to the Cluster would have no improve the Cluster’s outlook problem stumbling across lifesaving technology or high-tech manufacturing, finding a conveniently located hotel to stay in To ensure the Monash National Employment Cluster continues would be quite another feat! to flourish into the future, the VPA has been working hard to address some of its critical issues. Indeed, although the Cluster is excelling in its economic output, its overall amenity could do with an upgrade. The Cluster is lacking Firstly, we have been supporting the cities of Kingston, in public transport, has congested roads and would benefit from Greater Dandenong and Monash to ascertain key community a greater concentration of cultural and entertainment facilities, infrastructure gaps in the area. We have also been supporting including restaurants and bars. VicRoads in the development of a business case for the Westall Road extension and providing input into the City of Monash’s Integrated Transport Strategy.

Progressing forward-thinking transport solutions to address congestion, the source of much frustration for local workers and lost productivity, is essential. Indeed, during a recent community consultation with local workers, 40% of people told the VPA that “improving local access and transport networks” was the most important idea for enhancing the Cluster.

This feedback was provided to the VPA during a six-week community consultation in April and May this year. During this consultation, the VPA presented participants with a series of preliminary ideas for enhancing the Cluster, including ideas that would leverage off significant public investment in the area, such as the Caulfield-Dandenong Level Crossing Removal project. We are pleased to report that the vast majority of participants agreed Monash University. with the VPA’s proposals.

32 / VPELA Revue October 2016 Proposals ranged from building better cycle and walking paths • Master planning for Clayton Business Park, to create a in the Cluster; creating more green spaces; and rezoning land higher density, contemporary business park that leverages its to allow for more places where people can gather. The VPA is position at Westall Station and adjoining Westall Road. now exploring the potential to rezone the Monash Technology • Modifying the bus network, with a focus on achieving faster and Precinct, to enable the development of suitable retail centres, more convenient access to employment areas from residential hotels and conference facilities. areas and the rail network. We are also in the process of preparing a Structure Plan for the • Delivering streetscape upgrades that provide better walking Clayton Activity Centre, on behalf of the City of Monash, and we and cycling infrastructure. have started framework planning processes for strategic sites, such as Clayton Business Park. We will soon be exploring options • Master planning a series of strategic precincts and sites to of allowing for mixed-use developments in the Cluster that maximise employment opportunities and enhance the local reflect more contemporary approaches to living and working. image and identity. The next steps • Engaging business owners and investors to help deliver the vision for the Cluster and enhance the networking and The VPA is now confirming development goals for the precinct, innovation opportunities. and will release a Draft Framework Plan for the area in early We are sure that with the right planning initiatives and 2017. infrastructure investment, the Monash National Employment Key proposals include: Cluster will continue to grow and prosper into the future – cementing its place as one of Australia’s eminent research • Planning for the renewal of the Clayton Activity Centre and destinations. increasing its role as the main mixed-use precinct that has an array of dining, shopping, entertainment, hotels, professional Emily Hillebrand is an urban designer and planner leading services and residential opportunities. a team focussed on planning for the future of employment clusters and urban renewal sites across metropolitan • Reviewing planning controls around the Monash Technology Melbourne. Precinct to establish local business town centres.

VPELA Revue October 2016 / 33 The Business A new environment protection regime for Victoria? Mark Beaufoy, Partner, King & Wood Mallesons

On 16 May 2016, the report of the Independent Inquiry into These recommendations included the following (in summary): the Victorian Environment Protection Authority (Report) was released to the public [http://www.epa-inquiry.vic.gov.au/]. Reforming the EPA’s legislation, The Government has not yet responded to the Report but is governance and funding expected to do so shortly. • the Environment Protection Act 1970 be replaced with two It is expected that the Government will accepted most of the separate pieces of legislation: an EPA (Establishment) Act, Inquiry’s recommendations. If so, there will be a significant and a modernized Environment Protection Act. The new implementation task ahead and this will result in a major EPA (Establishment) Act would contain a statutory objective transformation of environment protection legislation in Victoria. for the EPA to protect human health and the environment by reducing the harmful effects of pollution and waste, and The Report proposes a ‘comprehensive overhaul’ of existing establish ten high level functions of the EPA, reducing and environmental legislation including: increased criminal simplifying the 27 separate powers and functions for the EPA penalties, strengthened third party rights to restrain breaches under the current legislation. of environmental laws, new statutory triggers for early EPA input into strategic planning processes, new legislative duties • a high level Environment Protection (Integration and on businesses to minimise risks of harm to human health and Coordination) Act be introduced in order to improve coordination and collaboration across government on environment the environment, statutory duties for the notification of pollution protection and associated public health issues. The MAC also incidents, licence reform (fixed term/ periodic review), and a considered that the EPA’s current funding is both inappropriate strengthened and formalised role for the EPA in mine regulation. and unsustainable and recommended a reformed funding Background model, including more appropriate and efficient use of fees and levies to fund EPA and DEWLP developing a business A Ministerial Advisory Committee (MAC) was appointed by the case to increase the EPA’s future resources levels to take on Minister for Environment, Climate Change and Water (the Hon. additional functions recommended by the MAC. Lisa Neville MP) in May 2015 to conduct the Inquiry, following a series of high profile environmental and public health incidents EPA’s role in strategic land use in Victoria, including the fire at the Hazelwood coal mine, planning processes – including managing contamination issues at the former CFA Fiskville training ground, land use conflicts and asbestos contamination issues for residential properties in North Sunshine. • the creation of a statutory trigger to require planning authorities to seek early advice in relation to strategic planning processes The MAC’s Terms of Reference required it to consider: the (some amendments, rezoning and structure planning) from EPA’s roles relating to public health, environment protection the EPA for developments that involve significant human health (particularly exposure to asbestos, site contamination, air and or environmental risks, or that are located near a licensed water quality), the regulation of greenhouse gas emissions, facility. The Report also recommended that the establishment the appropriateness of its governance existing structures and legislation for the new Victorian Planning Authority require resourcing, the scope and adequacy of its powers, and its role in strategic planning processes to be referred to the EPA. environmental justice. • strengthened land use planning mechanisms be developed, and that the EPA and the Department of Environment, Land, In conducting the Inquiry, the MAC sought the views of the Water and Planning (DELWP) work together to simplify and community, industry and workers in relevant industries, local better integrate EPA regulatory standards and obligations that government and Victorian government agencies, and other are to be applied through the planning system. relevant stakeholders. A Discussion Paper was released in August 2015 followed by a series of public consultation hearings • as a priority, land use planning mechanisms be developed to across a number of regional and metropolitan locations in establish and maintain buffers to separate conflicting land uses, Victoria. More than 200 written submissions were received. avoid encroachment problems, help manage health, safety and amenity impacts, and ensure integration with EPA regulatory Key recommendations requirements. The issue of ‘reverse buffers’, to prevent sensitive residential and other uses encroaching on existing industrial The Report (more than 400 pages in length) contains a large land uses, has long been recognized as a significant gap in the number of recommendations (48) aimed at establishing a existing planning and environmental regulatory framework (an modernised EPA, with a focus on protecting both environmental issue also considered recently by the Planning Minister’s Major and human health. Hazard Facilities Advisory Committee).

34 / VPELA Revue October 2016 Strengthening prevention of environmental takings and modernize the inspection and enquiry powers harm – general duty and mandatory for EPA authorized officials (including local government notification of pollution incidents environment protection officers) to provide powers equivalent to safety regulators. the introduction of a general duty to minimize risks of harm to • • the EPA expand its range of sanctions, increasing their human health and the environment (akin to employers’ health severity, including maximum penalty for criminal offences and safety duties to employees under the Occupational Health (in line with penalties in NSW which for corporations is up to and Safety Act 2004 (Vic)). $1M for most strict liability pollution offences, and $2M where • expanding the number of activities requiring a works approval there is negligence and $5M for willful conduct leading to an or licence to include all activities with significant impacts on offence), and the introduction of a civil penalty regime as an human health or the environment. alternative to prosecution. • introducing more conditions on certain licenses, a new post- • third party rights be strengthened, to allow persons whose closure licence category for landfills and activities that carry a interests are affected or any other person with the permission high risk of causing contamination. of the court to seek an order to restrain or remedy breaches of environment protection laws (civil remedies). • a requirement for EPA licensees to prepare and implement pollution incident plans and a requirement for business to Managing legacy risks – site contamination notify the EPA or local government of pollution incidents (this mandatory notification requirement would apply to both • an integrated database for recording potentially contaminated licensed and non-licensed business) (similar to the pollution sites be developed by DELWP based on site history information incident planning and notification regimes in NSW). and other data held by government. Holding polluters to account - increasing • planning and environmental regulation of legacy contamination enforcement measures and penalties be integrated and strengthened through a reform process to be led by DEWLP to provide a more consistent, risk-based • the EPA develop a robust and efficient overarching prosecution approach to risk screening, assessment and remediation strategy, as well as review how it applies enforceable under- requirements and ongoing compliance mechanisms. …continues over page

Planning and Development Consultants // Offering services across property advisory, statutory planning, strategic planning and master planning.

VPELA Revue October 2016 / 35 Strengthening the EPA’s role In the interim, the Victorian Government has committed to in mining regulation respond on the report and its recommendations by establishing a board to guide the EPA in delivering reform, employ a Chief • the EPA’s role in mining regulation be strengthened and Environmental Scientist to strengthen the EPA’s focus on formalised, including to ensure compliance and enforcement science and improve their environmental health capability by of environmental conditions in licences. working with the Department of Health and Human Services to gradually transfer the Department’s environmental health • the Earth Resources Regulator should refer mining work plan functions to the EPA. applications and variations, including rehabilitation plans, to the EPA, as well as seek the EPA’s advice in relation to applications In delivering a new environment protection regime for Victoria, for reductions in, or the return of, rehabilitation bonds. it remains to be seen whether many of the recommendations of past inquiries and reviews will be implemented. Of particular Other key recommendations relevance to the relationship between planning and environment protection are the recommendations of the Advisory Committee • The EPA be given appropriate statutory mechanisms in order on Potentially Contaminated Land (March 2012) and the VAGO to effectively respond to climate change, specifically a role in report on Managing Contaminated Environments (December 2011). regulating and managing greenhouse gas emissions. Many of the recommendations of those earlier reports are long • The establishment of a new statewide network of local govern- overdue and could be implemented as a priority before the more ment environment protection officers to address localised comprehensive reform is undertaken. Fixes to the application pollution and waste complaints. and requirements of the Environmental Audit Overlay, updating of the PCL Practice Note, notifications of statutory environmental Government Response audits and Statement conditions on property titles would be a great start. The Government has not yet responded to the Report but is expected to do so shortly. Mark acknowledges the assistance of Emily Heffernan, Bronwyn Woodgate and Alex McKinlay in preparing this If the Government accepts most or all of the Inquiry’s 48 article, an earlier version of which is published on the KWM recommendations, there will be a significant implementation website http://www.kwm.com/en/au/knowledge/insights/ task ahead and this will result in a major transformation of inquiry-report-epa-victoria-reforms-environmental- environment protection legislation in Victoria. protection-authority-20160519

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VPELA advertisement_2016.indd 1 9/20/2016 12:21:31 PM 36 / VPELA Revue October 2016 Seminar Contaminated land dial (a lawyer) before you dig: what you Bronwyn Woodgate, need to know about contaminated land! King & Wood Mallesons

On a chilly Wednesday night in July 2016, a VPELA cohort the costs incurred to remediate a bluestone pit previously used attended the seminar ‘dial (a lawyer) before you dig: what you as a coal tar storage tank on the site. The pit was not disclosed in need to know about contaminated land!’ at King & Wood Mallesons. the sale process and was not identified in the due diligence prior to purchase – it was an ‘unknown unknown’. It was an exciting line up of contaminated land experts with Michelle Quigley QC as chair. The line up involved:

• Rob Milner, Director at 10 Consulting Group; • Ken Mival, Environmental Auditor at EHS Support • Marita Foley, barrister; and • Mark Beaufoy, Partner at King & Wood Mallesons.

Rob Milner explained how the planning system addresses contaminated land, and asserted that the regulatory framework is not appropriate for managing contaminated sites in Victoria. Rob covered the redevelopment of Brookland Greens Estate in Cranbourne and the current approach to Fishermans Bend Photo 1: remediating the bluestone pit. (source – Marita Foley’s slides) as examples.

Rob noted that the Victorian planning framework is incomplete During the course of the transaction of the Burnley Site, both and an imprecise tool to guide contaminated land management. the seller and MFB commissioned a number of environmental For example, the Environmental Audit Overlay mapping system due diligence assessments of the site. Even though more is not complete, there is not enough information on land use than average sampling points were undertaken, none of the history, and the Permit triggers are ‘patchy’ and do not call up assessments identified the tar pit. It was unlikely that any kind contamination as a decision measure. of standard investigation for that kind of transaction would have Rob suggested a number of opportunities for addressing these identified the tar pit. It was finally discovered when a test hole gaps such as the Government undertaking further work into identified coal tar, after the planning permit was granted and strategic land uses, passing permits and rezonings through construction of the new facility was underway. contaminated land filters, and applying the precautionary …continues over page principle in more instances.

Ken Mival discussed the key factors planners and other consultants need to consider when assessing contaminated land sites. Interestingly, Ken discussed the ‘error and omissions’ matrix:

• The known knowns: current and recent ownership and operations; • The known unknowns: primary and secondary sources and the extent of impact on soils and groundwater; and • The unknown unknowns: potential for roadblocks and deal killers as a result of hidden features of the site that are missed.

Ken used the sampling approach adopted for the Burnley Street Site. This was the subject of the Supreme Court case of Metropolitan Fire and Emergency Services Board v Yarra City Council and Others [2015] VSC 773 (MFB Case).

The MFB Case involved a claim for compensation against Council (previous owner) by the MFB (purchaser) as a result of Photo 2: Soil Sample Locations. (source – Ken Mival’s slides)

VPELA Revue October 2016 / 37 Ken suggested that for future assessments, consultants should • Vendors should be cautious about selling contaminated undertake more investigations into the history of uses on a site land without remediating it first, or at least having a plan for by analysing historical aerial photographs to identify areas on the remediation shortly after sale. site which require targeted investigations. Mark Beaufoy rounded off the seminar by discussing the status Ken rounded off his presentation by raising a future potential of contaminated land regulation in Victoria. This included a problem for indoor air and vapour intrusion: iceberg houses. summary of previous investigations and advisory committees These occur when a significant portion of the house is located undertaken by various government departments and statutory below ground level and problems arise from air exchanges, soils authorities, and the release of numerous guidelines and policies and groundwater contaminated with volatiles, ground stability governing contaminated land management in Victoria. and the undermining of neighbour’s foundations. Mark highlighted repetitive recommendations from the various reports such as system improvements (reviewing the Environmental Audit Overlay system, more coordination between the regulating bodies), and better identification and recording of contaminated sites.

Mark then explored the recommendations in the Report of the Independent Inquiry into EPA, released on 16 May 2016. Of note are the following recommendations:

• Overhauling of the Environment Protection Act 1970 (Vic), Photo 3: Iceberg houses. (source – Ken Mival’s slides) including splitting it into two Acts: an establishment Act and an operations Act. • More activities to be captured by the licence requirements. Marita Foley provided case commentaries for the following contaminated land proceedings: • Increasing the maximum penalty for criminal offences and introducing a civil penalty regime. • Finlayson v Armidale City Council (1994) 51 FCR 378, • Introducing third party rights to restrain and remedy a breach • Armidale City Council v Alec Finalyson (1999) 104 LGERA 9, of environmental law. • Premier Building & Consulting Pty Ltd (in Liq) v Spotless Group • Integrating planning and environmental decision making Ltd (2007) 64 ACSR 114, and on contaminated sites to provide more consistent, risk- • the MFB Case. based approach to screening, assessment and remediation requirements and ongoing compliance mechanisms. In summary, Marita highlighted the following key implication arising from the series of contaminated land proceedings over Mark gazed into his crystal ball to anticipate what is next in the the last 20 years or so: contaminated land regulatory space. Mark concluded that there may be: • Those responsible for, or who abandon, very old contamination (e.g. in the MFB Case, 100 years ago) are still potentially liable • a complete overhaul of the Environment Protection Act 1970 under the Environment Protection Act 1970 (Vic) for the costs of (Vic); cleaning up. • changes to scheduled premises and types of activities • Liability in Victoria for historical acts and omissions which requiring a licence and new licence compliance tools; have caused pollution may continue even where the person • better information on contaminated sites and transparency of that caused the pollution is unaware of the pollution before the that information; site is relinquished or sold. • some kind of notification requirements for contaminated sites • A former owner or occupier of land may be found to have and pollution incidents; ‘abandoned waste or a hazardous substance’ under the Environment Protection Act 1970 (Vic) in circumstances where • better recording of information about sites in a transparent they had no actual knowledge of the contamination. way; and • Liability to provide compensation for costs incurred in complying • greater role, coordination and consistency of local government with a Clean Up Notice under s 62A(2) of the Environment and EPA in environment protection and in planning decision Protection Act 1970 (Vic) will extend to liability for cleaning up making. pollution which occurred before the commencement of the Four very informative presentations were provided by practitioners relevant provisions of that Act. with highly contemporary advice on the dos and don’ts of • Liability for costs incurred in complying with a Clean Up Notice handling contaminated land in Victoria. Valuable insights into will continue even where the land has been sold or is occupied likely legislative and regulatory developments were also provided by an entity which may not have had a relationship with the to help all aspects of the contaminated land industry position recipient of the Clean Up Notice. itself for changes to come.

38 / VPELA Revue October 2016 Tribunal Talk New fee structure Helen Gibson, Deputy President, VCAT

A new fee structure and a new website are among recent changes If your claim relates to either a multi-dwelling or non-dwelling you will notice if you are involved in planning and environment development the fee is determined by the cost of the development cases at VCAT. and whether the applicant is a corporate, standard or concession payer. This applies even if the applicant is making the application Changes to fee structure on behalf of the permit applicant or objector.

VCAT’s fees are set by the Victorian Government, which Objectors can file a statement of grounds and participate in the introduced new fees effective 1 July 2016. The new fee structure hearing (fee applies) or not take part in the hearing (no fee). If followed a Regulatory Impact Statement process, conducted by they do not participate in the hearing, their statement of grounds the Department of Justice and Regulation. is put on file for the member to consider at the hearing.

The new fee structure has three tiers of fees – corporate, New website standard and concession. The corporate fee applies to larger VCAT launched a new website on 20 July 2016. In developing the businesses, companies, corporations and government site, we responded to issues identified in user and stakeholder agencies. The standard fee applies to individuals, not-for-profit surveys, user testing and desktop research. organisations and incorporated businesses with a turnover of less than $200,000 in the previous financial year. The concession The new site is responsive to mobile devices, easier to navigate fee is capped at $150 and is available automatically to holders and explains what happens at VCAT in plain language. It steps of a Commonwealth Health Care Card. Fee relief is available for users through how to apply or respond, and other stages of a VCAT fees, including waivers and reductions, based on eligibility case. It includes text-to-voice technology, which is particularly criteria – except for the Major Cases List. helpful for people with low literacy or language skills. It also has introductory information in eight languages, which explains how There are first-day hearing fees for matters valued at over to access VCAT using a translator service. $100,000 and those of no monetary value except change of conditions applications and VicSmart applications, which only From the home page you can go straight to information such as attract a hearing fee if they proceed to a second day. application forms and fees, upcoming hearings and resources. Click on ‘Get started’, then choose ‘Planning and Environment’ If you are a permit applicant, you can ask to have your case from the 17 different case types that VCAT hears. You’ll find all the included in the Major Cases List regardless of the value of the information you need, including steps in taking or responding to claim – before 1 July, the claim had to be over a particular value. a VCAT case, and links to relevant application forms, time limits, fees, practice notes and the statement of grounds form. If your claim relates to a single dwelling, regardless of its value, you pay one fee. The amount you pay is determined by whether The website also enables feedback on each page, so we welcome you are a corporate, standard or concession payer. your constructive comments about what you find helpful or suggestions for improvement.

2016 VCAT Red Dot Decisions (up to 15 September 2016)

1. Roads Corporation v Latrobe CC Interpretation of advertising sign (Red Dot) [2016] VCAT 1167 2. AGL Loy Yang Pty Ltd v Department Head, Role of VCAT in making consent orders Department of Economic Development, Jobs, Transport to give effect to settlement agreed by parties and Resources (Red Dot) [2016] VCAT 1249

3. Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 Existing use rights

4. Living Streets Designs Pty Ltd v Strathbogie SC Consideration of the meaning of the defined uses of (Red Dot) [2016] VCAT 1073 “Racing dog training” compared to “Racing dog keeping”

5. Gembrook Pines Pty Ltd v Glen Eira CC Application to amend a development permit when develop- (Red Dot) [2016] VCAT 537 ment not in accordance with current planning controls.

VPELA Revue October 2016 / 39 Local Government Matters When is a laneway a public highway? Julie Davis, Victorian Bar

In this edition of VPELA Revue, the writer considers a decision Agreed statement of facts of the Supreme Court of Victoria wherein the Court considers the legal status of a laneway. The laneway ran between two The agreed statement of facts included: dwellings from a residential street to a pathway adjacent 7. (ff) The laneway has been used as a public pedestrian a railway line. The Court considered the inter-relationship access to Lovers’ Walk (a pathway adjacent to the railway line between the Local Government Act (LGA), the Road behind the Plaintiffs dwelling) without express leave or licence, Management Act (RMA) and the common law. which use is continuous and otherwise unexplained, since Roads!!!! Have you ever tried to work your way through this it was constructed as a laneway, or alternatively for a long minefield?!! What is the relationship between the legislation and period of time: the common law? How many types of roads are there? Is there That fact subsequently became important in determining the such a thing as a road at common law? When is a laneway a status of the laneway. road? When is a road, a public highway? And when indeed is a laneway a public highway? Pyramid legislation Recent decision – Anderson & Anor v City of Stonnington According to the Court, there is a pyramid structure in legislation & Anor [2016] VSC 374 (McMillan J) pursuant to which the status of roads is to be determined. At the The Supreme Court of Victoria was recently charged with the top of the pyramid sits the LGA. The relevant provisions of the task of deciding the legal status of a laneway. Why did it matter? LGA refer to the relevant provisions of the RMA at the next level; The case was conducted on the basis of a comprehensive agreed which in turn refers to the common law which is the base upon statement of facts (par 7). That statement set out the history of which the legal pyramid is founded (par 60). the land from 1893. It is understood that in 1920 the Victorian Local Government Act Railways Commissioners granted an easement of carriageway to the then owner of the Plaintiffs’ land, over land which comprised Road Management Act a laneway adjacent to the Plaintiffs’ land. Common Law

Soon after, the title to the Plaintiffs’ land was registered by the The effect of this, according to McMillan J, was that if the laneway Registrar of Titles and the title designated the laneway as a road. was a public highway at common law, then it was a road for the In 2004, the Council registered the laneway as a laneway on its purposes of the legislation. Register of Public Roads. It did not however declare the laneway to be a road pursuant to s 204 of the LGA (or s 11 of the RMA). Common Law Various incidents in the laneway adjacent to their dwelling had At common law, the term ‘public highway’ should be taken to caused the Plaintiffs to firstly seek to purchase the laneway; and mean all public rights of way, including those rights of way that subsequently to erect a fence to exclude the use of the laneway may colloquially be described as ‘roads’ (par 29). by the general public.

Declarations were sought by the Plaintiffs with respect to whether the laneway was:

a ‘road’ within the meaning of: Would you like to advertise (i) the Local Government Act 1989 (LGA); your business in the (ii) the Road Management Act 2004 (RMA); (iii) the common law; VPELA Revue? and/or Do you have a job a ‘public highway’ within the meaning of the common law. you need to fill? The City of Stonnington and Victorian Rail Track (first and second If you are interested in placing an advertisement defendants) successfully argued, and the Court agreed, that the in the VPELA Revue or advertising a laneway is a road under the relevant statutory provisions, and a position on our website employment section, highway open to the public at common law. How did the Court please contact the VPELA office on 9813 2801 arrive at that position?

40 / VPELA Revue October 2016 The Court observed that the terminology of the common law (ff) agreed facts) worked against the Plaintiffs. That statement differs from that adopted by the statutes. Further, in both the LGA reinforced the use of the laneway ‘as of right’; and the public’s and the RMA, the definition of “road” is followed by definitions of acceptance of an intention to dedicate the laneway as a highway, “public highway” (which definitions differ in both Acts), and in the which intention could be inferred from the second defendant’s case of the RMA, “public road”. acquiescence in the public’s use. (par 72).

Whether the laneway was a public highway at common law would The inevitable conclusion according to McMillan J was that the be determined in accordance with common law principles. The laneway was a public highway at common law. This conclusion Court considered the colloquial meaning of road; the statutory it was said was supported by the fact that Council had accepted meaning of road and the following statement of the law: responsibility for the care and maintenance of the laneway. This conclusion is questionable, given that no declaration had been “At common law a highway was created when a competent made with respect to the laneway being a public highway under landowner manifested an intention to dedicate land as a s. 204 of the LGA. public road, and there was an acceptance by the public of the proffered dedication”. (see Permanent Trustee Company Whilst the common law does not recognize the term ‘road’ as of New South Wales Ltd v Campbelltown Municipal Council a right of way that can arise over land, the common law does (1960) 105 CLR 401, 420). recognise the right of the public to pass and repass along a ‘public highway’. The ‘way’ becomes a public highway because The High Court in the Permanent Trustee case were considering of the dedication and acceptance discussed above. whether a strip of land left in a plan of subdivision (which land was almost impassable) was a road or not. In that case, the fact Legislation and the status of that the plan of subdivision set out roads as open streets was a common law public highway to be construed as an invitation to the public to use the streets. How was the common law position reflected in the legislation? In terms of the common law then, McMillan J identified two Before considering the common law position, the Court had concepts to be considered in determining whether a road is a analysed the legislation. public highway for the purposes of the common law: McMillan J considered the definition of ‘public road’ (by reference (1) – intention to dedicate land as a public highway either to s 17 RMA) and the requirement (at S 17 (3) RMA) that the expressly or to be inferred from the conduct of the landowner; relevant road authority and ‘must register on its register of public roads a road in respect (2) acceptance by the public by, for example, repeated and of which the road authority has made a decision that the road continued use of the relevant land as a way – that is, evidence is reasonably required for general public use’. (par 23) of user. The effect of s 17 of the RMA, according to McMillan J is that, Intention to dedicate by registering a road on its register of public roads, a road authority (including Council) makes the road a ‘public road’ for The Court firstly considered the intention to dedicate land as a public highway, whether expressly or to be inferred from the the purposes of the RMA, which in turn makes the road both a conduct of the landowner. The intention to dedicate land as ‘road’ and a ‘public highway’ for the purposes of the LGA (par 25). a public highway, it was said, did not need to be specific. The S 17 (1) (e) and (3) RMA together provide that a public road is a use of the land by the public (rather than the particular physical road the Council has decided is reasonably required for general ‘as of right’ features of the land) (that is, without force, secrecy public use; and a public highway under the LGA includes a or permission) was considered consistent with the dedication of public road under the RMA. Whether or not the Council passed that land to the public. a resolution with respect to the laneway being reasonably Referring to the twin requirements of dedication and acceptance, required for general public use is not discussed. It is arguable the Court continued:

“The rule remains that, for land to become a common law public highway, there must be an intention to dedicate it to the public as a way that must be accepted by the public for DALTON that purpose”. (par 33) CONSULTING ENGINEERS The question of whether a road can co-exist with an easement was also considered. This was relevant because the Plaintiffs enjoyed a private right of way over the laneway (the easement); but that did not mean that the laneway was not a road or that it had never become a highway under the common law (par 65). Use of laneway The fact that the parties had accepted that the public had used the laneway without leave or licence, and in a manner that is dceng.com.au otherwise unexplained, continuously for a long period of time (7

VPELA Revue October 2016 / 41 that the laneway was not so required. However, by virtue of the Under the LGA the laneway was: registration of the laneway by the Council as a public road, it a road (being a public road under the RMA – s. became a public highway under that definition in the LGA. 3 LGA definition of road (ca))

Registration and dedication a public highway (being a public road under the RMA – S.3 Can the act of “dedication” at common law be inferred, or LGA definition of pubic highway (c)) is something more required? Other than the creation of the Under the RMA the laneway was: easement in favour of the Plaintiffs’ land, there was no evidence of an intention to dedicate the laneway for public use. The a road (which includes public highway – s.3 (1) RMA) Permanent Trustees decision, which was relied on by the Court a public highway (a highway for the purposes of the to find that there was an intention to dedicate the laneway as a common law - RMA s.3 (1)); public road, was based on strip of land which had been laid out on a plan of subdivision. a public road (RMA s.3 (1); and s.17 (1) (e) which refers to s. 17 (3) – a road required for Was the unfettered use of the laneway evidence of acquiescence general public use) by the owners of the laneway land (Victorian Railways) such that an intention to dedicate could be inferred? Could acquiescence At common law translate into dedication? Her Honour referred to other decisions The laneway was a highway which involved questions of whether the lodging of a plan of subdivision, wherein roads were set out, constituted a dedication By reason of dedication of the laneway evidenced by ‘as of right’ of such roads for use by the public. The conclusion was drawn use by the public. that the “twin conditions of intention to dedicate and acceptance (Words in italics are the author’s comments) by the public” must be met. Julie Davis LLB; Master of Business (Corporate Governance); “The delineation of land as a road on a map or plan of Accredited Mediator; Certificate IV Training and Assessment subdivision lodged with the titles office is evidence of an (TAE 40110). intention to allow the public to use the land as a road such Barrister experienced in Environment, Land, Water, Planning that, where there has been sufficient use of the land asa and Local Government Law. road by the public to demonstrate acceptance, an inference Foley’s List – 9225 7777 or 0412322111. may be drawn that the land was dedicated to the public [email protected] for that purpose. Other facts particular to the case may be inconsistent with such an inference; for example, where the road is barred by a gate or fence”. (par 39) Seminar flyers Conclusion are now EMAIL ONLY If you are a member of the Association and have not “Given my finding that the laneway is a highway at common been receiving emails you are missing out on important law, it must also be a road under the RMA. [86]. If the Council communications. We are trialling an email only policy had exercised its power under s. 11 (1) of the RMA to declare in relation to advertising most seminars. If you are not the laneway a road (and see s 204 LGA), there would be no receiving our VPELA Update please contact us by emailing doubt as to its status as a highway at common law.” [87] [email protected] or phone 9813 2801. You do not want to miss out! In terms of the pyramid structure discussed by her Honour:

42 / VPELA Revue October 2016 The Business Brutalism – unloved heritage

Jim Gard’ner, GJM Heritage

This year Open House Melbourne, the not-for-profit organization that opens scores of significant buildings (both historic and contemporary) to the public, has featured a number of events raising awareness of Brutalism – probably the most unloved architectural style. Under the banner of ‘What’s the beef with Brutalism?’ Open House Melbourne has attempted to educate the public about this noble but poorly understood part of our architectural heritage.

The term ‘Brutalism’ (a shortening of the French – béton brut i.e. raw, natural or off-form concrete) was coined by British architectural critic Reynam Banham to describe the new architecture produced by young idealistic architects such as Alison and Peter Smithson and Ernö Goldfinger in the 1950s. Brutalist architects created forms that followed function using the sculptural characteristics of reinforced concrete with an honesty of finish and form that challenged public taste. Harold Holt Swim Centre. [Heritage Victoria] Brutalism as a movement was enthusiastically taken up for major civic, educational and institutional buildings such as Boston City Hall (Kallman, McKinnell and Knowles, 1962) and also found root in Australia in Kevin Borland and Daryl Jackson’s Harold Holt Swimming Pool (1969) and Graeme Gunn’s Plumbers and Gasfitters Union Building (1969-71). Now some 40 or50 years on some of Australia’s best Brutalist buildings are being considered for demolition and redevelopment or heritage listing – and most problematically both demolition and heritage listing at the same time.

The adaptive re-use of reinforced concrete structures presents a particular set of challenges. Financially, the costs of bringing access and safety up to current standards and refurbishing buildings constructed of such an unyielding material is significant. However, the biggest barrier to the retention and adaptive reuse

Boston City Hall. Plumbers and Gasfitters Building. [Heritage Victoria]

VPELA Revue October 2016 / 43 Sirus Building, Sydney. (Allshots Imaging Creative Commons) of these buildings is the lack of public appreciation of the style and the belief that it is inherently ‘ugly’. It was this perceived ‘ugliness’ that then Planning Minister Matthew Guy referred to when the Total Car Park by Alan Bogle and Gordon Banfield (1965) was nominated to the Victorian Heritage Register. While stating that he would not intervene in the registration process, Mr Guy was reported in the Age on 2 May 2014 as saying “If it's ugly we can do better. Newer generations should have a chance to decide what goes on that site”; sentiments which would reflect the view of many – if not the majority – of Victorians.

Fortunately, Victoria’s state heritage system is not politicized as it is in many other Australian jurisdictions, and the independent and expert Heritage Council based its decision to include Total House on the Victorian Heritage Register purely on its cultural heritage significance. In New South Wales, however, where the Total House, Melbourne (GJM). final listing decision rests with the Minister for Heritage and the Environment a great Brutalist building will soon be lost. made late last year to include the Sirius Building on the State The Sirius Building in Sydney’s The Rocks is a social housing Register. The recommendation to list the Sirius Building was complex by Tao Gofers dating from 1979. Known locally as supported by the Australian Institute of Architects, the National the “stack of concrete boxes”, Gofers’ building draws heavily Trust and Lord Mayor of Sydney Clover Moore, but in this case on the Moshe Safdie’s Habitat 67 in Montreal. NSW Heritage Minister Speakman declined to heritage list the building, saying and Environment Minister Mark Speakman has recently gone it could reduce the site value by approximately $70 million, and against the recommendation of the NSW Heritage Council considered that in this case the heritage value “…is greatly outweighed by what would be a huge loss of extra funds from the sale of the site, funds the government intends to use to build social housing for families in great need.”

Brutalism may not be the most loved style, but as we have seen community tastes evolve over time. In the last sixty or so years Victorian, Edwardian and Inter-war architecture have all been seen as unattractive and expendable – yet today they are widely valued.

The role of heritage listing is not to just reflect community values, Acacia Place but to protect the best examples of important movements and 2016 Melbourne styles – such as Brutalism – even if the general public sometimes Design Award think them ugly. Winner Jim Gard’ner is a registered architect and heritage consultant www.tract.com.au Melbourne / Brisbane / Sydney / Adelaide / Geelong and is a director of GJM Heritage.

44 / VPELA Revue October 2016 The Business Legal world

Joseph Monaghan, Partner and Tess Bowyer, Solicitor, Holding Redlich

Rosemary Zumpano v Banyule City Council and others [2016] distinction between clause 63 and reliance upon accrued rights VSC 420 under a permit was drawn by DP Macnamara (as he then was) in Lakkis v Wyndham CC [2001] VCAT 863, which is considered This was an application to the Supreme Court for leave to appeal in both Seers and Gembrook. Because the establishment a decision of VCAT. The case is of interest due to Garde J’s of existing use rights under clause 63 is typically a factually consideration of the principles of repeat appeals. complicated exercise, and because clause 63 specifies a number of restrictions in relation to existing use rights and when they The permit applicant had applied on four occasions for a expire, it may be advantageous to rely upon accrued rights if the planning permit to convert an existing two storey dwelling into circumstances allow. two two-storey dwellings. Each Application for Review had been unsuccessful. The most recent Application for Review was In Seers, the Applicants sought a declaration that the relevant use refused by VCAT on grounds that included that ‘great weight had been in accordance with the permit since it was granted in must be given to preceding decisions.’ 1996, the use had been continuous and not ceased over a period of two or more years and as a result the use could continue The Applicant sought leave to appeal, including on the question of pursuant to the permit. VCAT made declarations to that effect. whether VCAT had misapplied the principles of assessing repeat In doing so it considered when it is necessary to rely on clause appeals. Garde J observed that the common law doctrines of res 63.01 to establish existing use rights and when it is sufficient and did not apply to VCAT with respect to judicata issue estoppel to rely on the provisions of the planning scheme or a permit. merits appeals which typically involve review. However, de novo VCAT observed that in order to ascertain whether existing use VCAT could still give weight to previous decisions. Garde J held rights can be established, one should first enquire about why that with respect to the decision for which leave to appeal was it is necessary to establish existing use rights. If the use of the sought, VCAT had not based its decision to refuse upon a strict land complies with a valid permit, the permit continues in effect application of the principles of repeat appeal and had instead under s 28(2) of the Interpretation of Legislation Act 1984 (the ILA), decided the application on the planning merits by placing weight not under clause 63.01 of the planning scheme. upon previous decisions. VCAT had therefore based its decision on questions of planning and of fact and accordingly it was open Gembrook was a proceeding that arose out of an application to to VCAT to arrive at the conclusions that it did. amend a permit. Relevantly, there was no height limit prescribed in the Residential 1 Zone which applied when the permit was Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 and granted. However, part of the initially approved development now Gembrook Pines Pty Ltd v Glen Eira CC [2016] VCAT 537 (Red Dot) lay within the General Residential Zone which required that no These are both recent red dot decisions involving consideration building be higher than 10.5 m and the relevant part of the building of existing use rights and should therefore be looked at when rose to a height of 13.3 m. Senior Member Wright QC observed the question of existing use rights arises. The decision in Seers that because the issue concerned development, as opposed was by DP Gibson and the decision in Gembrook was by Senior to use, existing use provisions provided no assistance to the Member Wright QC. In both decisions, VCAT drew a distinction Applicant. However, pursuant to s 28(2) of the ILA, the Applicant between existing use rights under clause 63 of the planning had a right under the permit and this right was not taken away by scheme and use/works authorised under an existing permit. The the planning scheme when the new zone was introduced. …continues over page

Inspiiring people and places Engineering Our planning capability is growing. Services: Surveying Landscape Architecture To complement our current team, some new experts f Advocacy Planning with diverse backgrounds have joined the team. f Due diligence f Development facilitation f Strategic and statutory planning f Stakeholder engagement and community consultation

Peter Dawson Aran Barker Business Unit Manager, Planning Land Development Manager, Planning

VPELA Revue October 2016 / 45 Roads Corporation v Latrobe CC (Red Dot) [2016] VCAT 1167 needs to undertake a detailed analysis of the material before it analogous to a full merits review? That would be unworkable, In this decision, VCAT (constituted by DP Dwyer) considered but at the same time, VCAT cannot simply rubber stamp a the method for defining a sign that falls within the definition of settlement proposal without consideration. This decision of several of the outdoor advertising terms found at clause 73 the VCAT (constituted by DP Dwyer) discusses VCAT’s role in making Victorian Planning Provisions. consent orders.

Latrobe City Council and VicRoads agreed that the proposed The parties to the proceeding, as a result of a compulsory sign could be classified as any one of five different types of sign, conference, agreed upon a set of revised conditions and sought three of which were permitted and two of which were prohibited. a consent order to give effect to the settlement. VicRoads and VicRoads sought a declaration from VCAT as to the proper Latrobe City Council indicated their agreement to the revised interpretation of the planning scheme in classifying the sign. conditions after being given an opportunity to participate in the compulsory conference process. However, the Council’s Clause 52.05-1 of the Victoria Planning Provisions provides that agreement was qualified and it sought to place before VCAT ‘If a sign can be interpreted in more than one way, the most substantial background material which it asked VCAT to consider restrictive requirement must be met.’ VCAT found that the on the papers as a ‘matter of record’. To what extent was VCAT subject sign could be interpreted as both a ‘panel sign’ and a required to consider this material? ‘electronic sign’, which were both prohibited on the subject site. VCAT noted that the definitions and types of outdoor advertising VCAT relevantly observed that ‘12 … in giving effect to a settlement terms in clause 73 are out of step with changes in technology in a proceeding of limited ambit, VCAT does not have an inquisitorial and advertising practices and that there was a need for a review function to enquire into any underlying or broader issue of substance of those definitions. that the Council says the resolution of the… conditions may not resolve.’ VCAT observed that it was ‘31. Not particularly helpful AGL Loy Yang Pty Ltd v Department Head, Department of to VCAT if a person or party involved in the settlement seeks to Economic Development, Jobs, Transport and Resources (Red unilaterally provide extensive additional material on issues beyond Dot) [2016] VCAT 1249 those that relate to the acceptability of the agreement and requests It is sometimes said that in making a consent order VCAT must VCAT to consider that material in determining the proceeding.’ VCAT still be satisfied that the decision agreed to by the parties is the went on to make the consent orders requested by the parties. ‘correct or preferable decision’. Does that mean VCAT always

Smart Planning

A simpler and more accessible planning system for Victoria

The Smart Planning program is reforming and modernising planning processes and reducing the size and complexity of regulation.

The last major review of Victoria’s planning system was in 1993. Since then, a number of necessary and focussed changes to individual aspects have made the system increasingly complex, with a proliferation of local variations and other multiple planning controls.

Our response to these challenges needs to be comprehensive and smart. The Victorian government will work closely with industry, local government and the community to co-create a better planning system.

To keep up to date with developments and for more information on the Smart Planning Program visit www.planning.vic.gov.au.

46 / VPELA Revue October 2016 YPG City based transport construction projects Carlo Morello, some European experiences Traffix Group

In April last year, when I was writing a submission for the It includes raised shared paths on both sides of the river and in VPELA YPG Award, the Andrews Government announced excess of 30 bridges (new and old) were constructed or revitalised that it was committing funding to the new Melbourne Metro to provide connections across the river to the reenergised Rail Tunnel and it had identified a preferred route beneath parkland. Artistic and architectural competitions were run to Swanston Street. design and refresh the river crossings.

The State Opposition and media took to the airwaves to warn of The parklands now provide cycling paths, areas for skateboarding, the downfall of Melbourne as a thriving city as a result of the climbing, football, tennis, basketball, BMX cycling, playgrounds, trench which would be cut along Swanston Street through the performance pavilions and an urban beach is proposed. city. The project has since changed, but at the time, I thought to myself “What do other countries do when they construct a major project like this?”

So, with the grant provided by Contour Consultants as part of the YPG Award, I was able to part fund a trip that included stops in Rome, Paris, London, Copenhagen and Madrid to look at some of their past and current tunnelling and major transport projects.

With the help of Iain Lawrie at Acciona (Melbourne), I met with Acciona representatives in Madrid (they have been part of many tunnelling projects in Europe and also Australia), and with the help of Graham Currie at Monash ITS, I was able to meet with representatives of Transport for London (which is currently Rio Madrid – Urban revitalisation of parklands and a former arterial road route. constructing Crossrail 2).

So, after a couple of weeks of travel around Europe, here’s a very short summary of what I was fortunate enough to have discovered.

In terms of urban renewal opportunities, major transport infrastructure projects seem to offer a lot of different prospects.

Acciona (Madrid) representatives took me to Madrid Rio and explained in detail their role in the consortium responsible for the tunnelling and construction of the Madrid Southern M30 Tunnel Link in Madrid. Twin tunnels were constructed to replace two previously at-grade arterial road links which ran along the River Manzanares (Rio Manzanares). These roads Rio Madrid – An urban beach? were previously subject to heavy peak hour congestion, high levels of vehicle emissions and contributed to pollution of the In Paris, Les Halles was also undergoing a major revitalisation river. The roads also created a barrier between the southern to underground some existing roads, improve the existing side of the river and existing parkland on the northern side. underground railway station, provide a new underground shopping centre and revitalise gardens at surface level. For over 3 years, the area was subject to considerable construction works while the tunnel boring machine, and its supplies Starting in 2011, the project will ultimately provide for a new of concrete, workers and trucks, constructed the twin tunnels cultural centre with 6,300 square metres of retail, a music and the placed roads underground. For the 7 years following, conservatory and hip hop centre, a library and artistic workshops. what is now known as Madrid Rio was created – a combination The revitalised parklands will provide almost 4,000 square of six different park lands, approximately 30 metres wide and metres of playground and 4 hectares of uninterrupted parkland stretching for over 6 kilometres along the river, in place of the above an expanded and refurbished regional rail interchange. It previous at-grade roads. is intended to be handed over for completion in 2016. …continues over page

VPELA Revue October 2016 / 47 Paris Les Halles – Construction hoarding and information around ROME – Construction hoarding and scaffolding protect historical buildings on the Les Halles, Paris. walk to the colosseum.

Paris Les Halles – The revitalisation of Les Halles, Paris. ROME – Recent archaeological findings to be incorporated into a new metro Image courtesy of http://www.parisleshalles.fr/ station. Image courtesy of DailyMail.co.uk

But not all transport infrastructure projects are such good Colosseo (Imperial Forum and Colosseum) is expected to news stories and Rome’s ambitious Metro Linea C construction be completed by 2020, but the full metro line isn’t likely to be has been subject to many a delay. The metro authority, Roma completed for some time after that. Metropolitane, advised me that inconsistent funding, changes in political direction, and significant issues with existing architecture The tunnelling must take place between 20-35 metres below and archaeological artefacts have delayed the expansion of the the ground surface to avoid impacts to the existing architectural buildings and minimise the amount of disruption to any hidden metro significantly. archaeological sites. For example, ‘Venezia’ station was shifted Rome’s Metro system is comprised of two main underground and the ‘San Giovanni’ station was deeper than originally planned lines, Linea A and B, and a third, Linea C, which has been under to avoid artefacts. Extreme care is also taken above ground with construction since 1990 (!). The current section of construction, existing archaeological buildings and artefacts protected with which is the extension to, and stations around, the Fori Imperiali- reinforcing, scaffolding and strengthening before and during the tunnel process.

Just recently (in May this year), the project discovered a preserved Barracks of the Praetorian Army approximately 9 metres below the surface level adjacent the site of one of the newest metro stations. Excitingly, the intention is to now incorporate the finds into the construction of the new metro station, however, unfortunately it is another delay for the metro construction which has been going for over 25 years.

Meanwhile, Copenhagen powers ahead with the construction of its newest project, CityRingen (City Loop) which will also facilitate the Nordhaven and Sydhaven extensions. Copenhagen’s Metro is very young (it only opened in 2002), and it is relatively small in comparison to metros in the other cities I visited. Tunnelling started in 2013 and should be completed by 2018 and the new expansions will ultimately serve 24 new

48 / VPELA Revue October 2016 COPENHAGEN – King’s New Square temporarily closed for tunnel construction.

BOX PARK, SHOREDITCH – Excitement builds at the opportunities.

leases of the shipping containers changes regularly. It sits on land which previously sat dormant next to the rail infrastructure.

There are other similar examples (which I didn’t visit on my trip), like ReStart – a semi-permanent shipping container mall established in Christchurch following the February 2011 earthquake; and The People’s Market, which repurposed at- grade car parksawaiting redevelopment in Docklands and Collingwood, to create pop-up malls, with retail, markets, food and drink, music and entertainment, and film showings.

Ultimately, the cities I visited had found many interesting ways of COPENHAGEN – “Cool Construction” around Copenhagen Metro mitigating the discomfort and bigger challenges that came with construction sites. their infrastructure projects, and it was a revelation to see how some had taken advantage of the opportunities (and challenges) that were available, and how exciting the end results were, or stations and two new lines M3 and M4, including approximately could be… 32 kilometres of twin tunnels in a loop around the city. Special thanks to Ian Lawrie (Acciona Melbourne), Graham Station construction sites and tunnel portals were scattered Currie (Monash ITS), Emily Coldbeck (TFL), Manuela Muscia around Copenhagen and construction hoarding and cranes (Roma Metropolitane), Sonia Perezminguez Escobar & occupied a lot of the skyline around significant historic sites such Josemaria Castrillon Montes (Acciona Madrid), Kate Hardwick as Kongens Nytorv (Kings New Square) and Frederikes Kirke (MMR), Tamara Brezzi & Jillian Smith (VPELA). (Frederick’s Church). Carlo Morello is an Associate at Traffix Group and received the However, the Copenhagen Metro construction consortium YPG Award in 2015 with a proposal to undertake a study tour is using “Cool Construction” to integrate the construction of European cities to look at the opportunities and challenges sites into the surrounding residential and commercial areas. they faced during construction of their metro and road ‘Urban labs’ are created by holding artistic and architectural Infrastructure projects through central city areas. competitions, different exhibitions and interactive works along the construction hoarding.

While the idea of ‘Cool Construction’ and ‘urban labs’ makes complete sense, I argue that we could take it a step further. Box Park, a temporary shopping mall located adjacent to the Shoreditch Underground and Overground Stations, is a perfect example of how seemingly ‘dead space’ can be converted or repurposed and create a flurry of activity. While it wasn’t used in this way in London, it could help to soften the impacts of some of the major projects and larger construction sites.

Box Park comprises a total of 61 shipping containers over two levels, providing retail pop-up space for independent and commercial brands, a bar with music and entertainment, and a number of food kiosks and outlets. Exhibitions are held and

VPELA Revue October 2016 / 49 The Fast Lane with Henry Turnbull

Don’t forget the airport rail link Henry Turnbull, Traffix Group

The current raft of railway projects is a welcome start to the rail and road commuters by removing level crossing delays for remediation of a railway network which fell out of favour as the motorists and by safer running and timetable improvements for car took over. trains.

Naturally, the showpiece is the Metro Tunnel Project which The forgotten project seems to be the Airport Rail Link (ARL). is the Government’s “big ticket item”. This project will provide meaningful and substantial capacity and operational The ARL has been the subject of numerous studies, with the 2001 improvements to the metropolitan railway system. Advisory Committee and Planning Panel recommending that the Albion East route should be adopted. This recommendation In addition, the Railway Level Crossing Removal programme was accepted by the then Government and the necessary land is progressing apace. Whether or not the SkyRail concept has required for the ARL was set aside in a Public Acquisition Overlay popular support, the removal of level crossings benefits both in the Brimbank Planning Scheme.

More recently, a detailed review has been undertaken by PTV with the Public Transport Victoria Melbourne Airport Rail Study Findings and Overview published in 2013.

The PTV Review:-

identified that the 2001 Albion East alignment using existing lines to Southern Cross Station would not have the capacity or allow for growth in rail patronage to incorporate new rail services to Melbourne Airport or other rail services. This resulted in a redesign of the Albion East alignment which utilises the land reserved in 2001 and the existing Sunshine rail corridor, but connects with the planned Melbourne Metro rail tunnel to access the CBD and link with Melbourne’s south-east.

The PTV study then compared the Albion East route to three other shortlisted route options as shown on the extract from the Study Findings and Overview below.

The PTV Study Findings and Overview found:-

With land reservations already in place on the Albion East route and planning now well under way for the Melbourne Metro rail tunnel, PTV recommends that a Melbourne Airport Rail Link should be provided via the Albion East route once the Melbourne Metro rail tunnel is in place.

Since the PTV Study, there have been calls for the route to follow the Flemington Link because of the extra stations that could be added and passengers which could be served. Of course, these benefits would come at a cost and this route would be much more expensive.

Significantly, the Albion East route uses the same link to the airport at Airport Drive as the Flemington

50 / VPELA Revue October 2016 Link but could be put in place using the existing route through • efficient, convenient and reliable access to and from Melbourne Sunshine but linking with the Metro Tunnel Project. A later Airport is an important element if Melbourne is to retain its upgrade to the route if the Flemington Link were constructed “World’s Most Liveable City” reputation, would not seem too difficult. • now we are building many railway projects, the expertise is While it may not be possible to build the ARL now, there is an ever high and costs should be lower, growing need to include it as a priority project. Chris Woodruff • the project has popular appeal: everybody either has them- (Melbourne Airport boss) is quoted as saying that Melbourne selves or knows someone who has had problems accessing Airport is on track to be the busiest airport in the world without the airport, and a rail link within 10 years with annual passenger numbers set to rise from 32 to 46 million. • a rail service is unaffected by road commuter peak disruption and is better able to handle the peak loads which can occur There are roadworks currently being undertaken to increase the from time to time at airports. capacity of the Tullamarine Freeway, but much of this increase will be taken up by traffic from the developing areas to the north/ I understand the Government’s wish to give priority to moving north-west of the airport. Traffic delays are now commonplace commuters ahead of airport passengers however the Albion and it is wishful thinking to imagine any long-term resolution East route could be a simple extension of the Metro Tunnel is likely. Project, thereby satisfying both objectives. Even if this approach were adopted, we are still talking of at least a 10 year wait! There are a number of reasons why the ARL should be a high priority project, including:- Henry Turnbull is Principal Consultant at Traffix Group and a former President of VPELA. He was a Member of the 2001 Advisory Committee and Planning Panel into the ARL.

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VPELA Revue October 2016 / 51 The Business In between spaces activity centres in growth areas Michelle Calleja, Associate Director – Mesh

In between Spaces is a new regular VPELA urban design article Based on recent experience the answer lies somewhere in by Mesh Planning. between, where the success in the urban design process can be measured by three important indicators: Now more than ever growth areas are coming under increased scrutiny from those who oppose outward expansion of • The extent to which the analysis and design response process Metropolitan Melbourne. Criticisms regarding lack of infra- can capture and harness the value of the structure beyond structure and absence of character are common from those who the site; favour alternative growth options. • The extent to which the opportunities the site has to offer are Those who criticise growth areas however often fail to understood and revealed; acknowledge the important role that growth areas play in • The extent to which the design response creates accommodating a significant share of the State’s population opportunities for genuine place making at all stages of the growth. Nor do they acknowledge all the combined effort that design and delivery process; has been directed toward ensuring that growth areas are better places now and into the future. • The extent to which the design process can identify unseen opportunities that have the capacity to energise and align all Over the last 10-15 years significant effort has been directed of the stakeholders. towards ensuring that growth areas have access to common levels of services and facilities and Precinct Structure Plans Through the design process of greenfield sites, I think the have established a framework to guide the development intention should be to take the expression of an idea in the process. Over this same period, growth areas have diversified PSP – the shopping list of uses and links – and overlay them to a point where there is real depth in the housing market with an understanding of site and context, and reimagine these and increasing buyer expectations and competition have with a deliberate place making intention. In my experience, underpinned a culture of continuous improvement, particularly the process of rigorously assessing the site conditions and the in master planned communities. land use and transport framework offered by the PSP, typically reveals hidden opportunities. Another aspect of growth area planning and delivery that warrants specific positive mention, within the context of continuous This was the case on Rathdowne, a future Villawood Properties improvement, is that of activity centres. I have had the privilege of flagship project to Melbourne’s north in the City of Whittlesea. being involved in the master planning of some smaller and larger activity centres in growth areas in recent times.

Through the experience of working on these projects I have been privy to ideas and insights as to what makes these centres successful and the unique challenges they pose by their context in place and time.

When contemplating the form and composition of activity centres, most have drawn inspiration from traditional main street ‘strip’ centres. In my experience it is dangerous however to expect that activity centres in a greenfield context will behave in a similar way, as the context and structural components are worlds apart.

When faced with the contemporary challenges associated with planning for greenfield based activity centres, often a traditional strip centre is at one extreme and a completely enclosed climate controlled mall is at the other.

Where the common outcome we are all seeking is a form of activity centre that is more balanced, more placed based and which still meets contemporary retail needs, the simple question arises – what is the appropriate approach in growth areas and how can it be delivered with the confidence and support of all stakeholders? Extract of exhibited Wollert PSP.

52 / VPELA Revue October 2016 Introduction of the Y intersection as a deliberate urban design initiative was critical to the success of the reimagined centre. The Y intersection created a platform for authentic place making where the deflected road alignments have resulted in positive view lines to key buildings and open spaces. The partial separation of land uses via the introduction of local streets also serves to define the activity centre, slowing traffic supporting walkability.

With the co-operation and support of Whittlesea City Council and the VPA, the developer has been encouraged to further the place making potential of the centre. This includes structural and detailed design to manage car parking and strengthen the role and importance of the public spaces. The developer has also embraced the potential to bring forward delivery of community facilities and a unique gateway experience will introduce a standard of architecture that is not commonly found in growth areas.

Rathdowne is an outstanding example of how urban design can be used to define a vision, add value and provide direction that informs every aspect of the design and delivery process.

In Rathdowne this was achieved by working in the space between the structure and the detail, the space between the site and its context, the space between the planners and the architects, and the spaces between the built form to deliver a new generation of activity centre.

Extract of Post Panel Wollert PSP. Michelle Calleja Michelle has 20 years experience in a combination of The Wollert Precinct Structure Plan established a framework private and public sector urban and landscape design roles. Throughout this time Michelle has developed a including a neighbourhood level shopping centre (a full line very well recognised specialisation in growth area urban supermarket and specialty shops), two primary schools and planning and design. a Council community centre along with an expectation that higher density housing outcomes would be delivered within the Michelle practices at all scales of urban design from the walkable catchment of the centre (see extract from draft Wollert structural to detailed design. Michelle’s approach is to look Precinct Structure Plan). beyond the site for the urban design solution, and is focused on achieving best urban design practice framed within a The PSP framework was very clear in terms of the role of the context of commerciality. related uses and the desire to create an in-board, walkable village style centre. However the questionTOWN which CENTRE emerged was how could that objective be delivered THE and VILLAGE possibly HEART enhanced having regard to the site and context, and the aspirations of all of the stakeholders including The Civic Square steel details

araMaX® roof araMaX® roof sheetiNG MaDe roof liGht structural Gutter MaDe froM froM ZiNcaluMe® - Pedestrian connection to Verandah sheetiNG steel truss ZiNcaluMe® steel steel @ 1o the developer. material forCe roof top This bold building is a welcome departure from the shed-like covered outdoor areas that currently dominate in Australia, and it turns heads in more ways than one. words micky Pinkerton photography John Gollings DowNpipe fiXeD to chs upriGht aise, train, sustain” is the Army’s mantra chs 2501 o Opportunities to interact + relax 45 Mitre to bottoM of DowNpipe 150 - for ensuring its personnel achieve optimal suMp “rmilitary capabilities and for 60 years Kapooka New retaiNiNG has been the reliable backdrop to the ‘raise’ stage. wall aND footiNGs But it isn’t just raw recruits that are transformed here – the architecture has also risen to the challenge by using materials in new ways. it looks like it’s landed from outer space and while the futuristic tubular frame of the new covered “The outdoor court really couldn’t have been done SKm-S2F collaborated closely with Barry Young murray had never before specifiedAr AmAX® outdoor court at Kapooka military Area is something in anything other than steel because we wanted of TTW Engineers on the project. While Young had made from ZinCALUmE® steel and found the to marvel at in itself, the real beauty of the building the big spans and a big cantilever for the shading previously worked with ArAmAX®, it was the first process absorbing. is revealed when standing underneath. Looking up, device of the building,” says murray. “By fixing time he had suspended it below the structural frame. “The ArAmAX® sheet buckles and twists by nature as any recruit might be expected to do, there’s no the ArAmAX® to the underside of the trusses, “From a visual point of view, the building is almost when it is being installed but then it all clips into honking great trusses interfering with the view, the continuous spans become quite striking. upside down and it makes it quite a unique looking place via brackets which fix on the top of the sheet. just metres and metres of gleaming steel. And there’s nowhere for the birds to roost.” structure,” says Young. “The methodology we used You get a bit of a shock when you see it going on ® The structure features ArAmAX made from employed cleats bolted through to the steel trusses because it is all bendy and bowing – it almost looks ® ZinCALUmE steel which was selected for above and they were then bolted through to hang like you’re installing bananas – and then all of a various reasons: it can allow for huge spans the ArAmAX®. This produced the very clean lines sudden it locks into place.” Where the developer initially without the use of purlins or girts, it is quick and look that the architects were after.” to install – leading to reduced construction it’s a process like that experienced by recruits at timeframes – and visually it reflected the Kapooka, where they undergo a similar transition no-nonsense image of the armed forces. from malleability to rigidity. This building will be the reliable backdrop to that transformation ® ® “ArAmAX made from ZinCALUmE steel has for years to come. sP a very industrial, very strong look and feel about it, and its profile suited the scale of the building,” explains architect Clinton murray of SKm-S2F. “Serious things are going on here at Kapooka, and we wanted the architecture to reflect that seriousness. We wanted the favoured relocation of the centre buildings to be physically robust, to have nothing frivolous or ambiguous about them.” Solemn aesthetics aside, the material’s structural properties were paramount to the to create main road frontage success of the design.

ProJeCt Kapooka Covered outdoor Court Client department of defence arChiteCt SKm-S2F ProJeCt team Clinton murray stru43Ctural enGineer TTW Engineers PrinCiPal ComPonents roofing: ArAmAX® made from ZinCALUmE® steel; ArAmAX® guttering. ChS steel tube super structure along Craigieburn Road East, www.steelprofile.com.au architectural steel innovation • STEEL Profile #115 the analysis revealed a series of rocky knolls, trees and linear open space opportunities which offered a unique context for partial relocation of the centre such that the values of the site could be put to best effect. Partial relocation of the centre was then complemented with an ‘opening’ of the connector road system to create a Y intersection within the Rathdowne Civic Square. heart of the activity centre. Illustration courtesy Jones Moore Architecture and Sixdegrees.

VPELA Revue October 2016 / 53 Seminar VPELA Planning for Environmental Tourism Forum Stuart Worn Senior Consultant, Bosco Jonson

On Sunday 14 and Monday 15 August, Mt Buller hosted the The official race results are: inaugural VPELA Planning for Environmental Tourism Forum, which has been given the colloquial moniker of ‘The Ski-Posium’. • Jan Talacko from Ark Resources, fastest competitor over 55 years of age The event had three key objectives: • Aaron Harvey from Biosis, fastest telemark competitor 1. To explore the key issues around natural resource • Steve Schutt from Hansen, fastest snowboarder management, tourism and climate change. • Abergale Riordan (Granddaughter of Chris Canavan QC), 2. To mix professional development with networking and fastest female competitor recreational activity. • Andrew Evans from RedC, overall fastest competitor 3. To showcase and enjoy Victoria’s Alpine environment.

I am delighted to report that the Forum has been acclaimed by Après Ski Party all participants and stakeholders as an outstanding success. For “Hansen was very pleased to be able to support the Forum, those who were not fortunate enough to attend, below are some and we couldn’t think of a more appropriate way than comments from delegates about the event’s various activities: sponsoring the Après Party following the inaugural running VPELA Cup of the VPELA Cup! Whether you’re skiing or snowboarding, (Giant Slalom ski and snowboard race) it can be thirsty work, and the chance to share a few drinks with colleagues and swap stories about our skiing exploits “The first ever VPELA Cup was held on Little Buller Spur in near whilst listening to live music in the historical Tirol Hutte, perfect conditions. The sun was out and the snow was forgiving, high above the village was well and truly enjoyed by all.” maybe even a little too soft for a giant slalom. With around 30 Steve Schutt, Director at Hansen Partnership competitors, both skiers and snowboarders, and ages ranging from 6 years to 70 years, it was a family event with smiles all Gala Dinner round. All competitors survived the course and those that were over 18 attended the presentation which was held after a “The prestigious and ornate Pension Grimus hosted the events wonderful dinner at Pension Grimus. The Hon. John Eren, the gourmet Gala Dinner. In a packed room, full of history and Victorian Minister for Sport, presented the medals. And there atmosphere Lorenz Grollo, CEO of the Grollo Group and a were plenty of medals for all types of outstanding sporting Director of Mt Buller Ski Lifts, kicked-off the formal proceedings achievements, each one followed by a shot of Jägermeister in with an inspiring toast to the importance of ‘good planning’. The true alpine tradition. There is no doubt that the VPELA Cup will Honourable John Eren MP, the Victorian Minister for Tourism continue to be a hotly contested race for many years to come.” and Major Events, Sport and Veterans then more than equally Andrew Evans, Director at RedC responded. The Minister candidly outlined his responsiblity and

54 / VPELA Revue October 2016 passion for safeguarding Victoria's position as a leader for business on public land or on private land. If you take the time to know events, major events and tourism, and its mantle as the World’s your environment and its values, know your product and your sporting capital. Fittingly, the evening’s formal proceedings client base and not be reliant on one offering, then a balance concluded with the Minister for Sport presenting the elite skiers can be achieved. As Eric put it, the three key ingredients to find and snowboarders of VPELA with their race medals. The festive a balance are Relationships, Relationships and Relationships." activites continued well into the next day at Herbie’s Bar and the Ben Howells, Principal Environmental Planner at Biosis Kooroora Hotel. Overall the Forum was a great successful for many reason, including the fact that it highlighted the ‘E’ in VPELA.” Monday luncheon Tamara Brezzi, Partner at Norton Rose Fulbright “The Chief Executive for Parks Victoria, Bradley Fauteux spoke Mt Buller Village Technical Tour over a hearty alpine lunch at the Ski Club of Victoria’s Whitt Restaurant. He was a fabulous communicator and an inspiration. “One of the highlights for me was the Technical Tour of the Mt He provided wonderful insights into the role of social media, the Buller Village. What struck me is that despite the uniqueness way visitation should be facilitated and encouraged, and how of the Village; in terms of location, environmental sensitivity, government should manage parks and the deliberately lengthy landscape values, urban design, constrained infrastructure process that it follows to make decisions. Overall the Ski-Posium and highly seasonal population, in many respects the planning totally exceeded my expectations, it was good fun and I learnt issues faced by Mt Buller are just magnified ‘everyday’ issues a great deal. Clearly the best way to protect our magnificent faced by planners throughout Victoria. For example protecting environmental assets, is to make the community aware of their environmental values, traffic management and character design values, while allowing them to contribute to the State’s economy response. Altogether the Forum offered a number of insightful, through facilitation of appropriate and sensitive developments.” inspirational and ‘ah-ha’ moments, all in great company.” Cameron Alderson, Director at Canopi Homes Alicia Burnett, Associate at Meinhardt Panel discussion – how would you Ski field Technical Tour plan a new resort from scratch? “A number of early risers explored the Mt Buller ski area on Featuring: a ‘blue-bird morning’. We enjoyed first tracks and lift priority • Steve Schutt, Director Hansen Partnership thanks to our mountain hosts, while savouring the freshly groomed ‘corduroys’. Led by Paul McNamara the manager of the • Jerry de Gryse, Co-founder and Director, Inspiring Place development team at Mt Buller, we got to experience the mountain • John Huber, CEO Mt Buller & Stirling Alpine in all its finest glory, bright sunshine, no wind and with freshly Resort Management groomed runs beneath us. Reaching the summit, the views were expansive and picturesque across the entire Victorian alps and “The afternoon saw three extremely engaging and visionary one of the best Monday morning views I’ve had for while! Paul presenters share with us their wisdom concerning how you talked us through the various planning and management issues, would plan a new resort from scratch. For several of the pointing out areas where new lifts and future, snow making water speakers this included a discussion around re-imaging existing storage could be considered – a vital resource for the longevity resorts and infrastructure to suit changing visitor needs. Steve of the ski season. We continued our tour of the mountain, with talked about his recent experience in Vietnam where he has many of the skiers in the group enjoying exhilarating runs, been creating a vision for a new resort that is focused on culture while the rest of the village were still enjoying their breakfast.” and natural beauty. Jerry spoke from a 'deep green' perspective Gary Wissenden, Director at Hansen Partnership about how engagement and immersion in nature is the key ingredient, if you are wanting a resort to be focused on nature Panel Discussion – how to balance the based experiences. Finally, John demonstrated the importance environment and tourism. of having a vision and ensuring that the vision is aligned with what your visitors want and need, both today and into the future.” Featuring: Aaron Harvey, Director at Biosis • Peter Beaumont, Executive Director Land Management Policy, Department of Environment, Land, Water & Planning Overall, the Forum was a great success, thanks to our excellent speakers and panel members, the hard working event committee • Andrew Paxton, Board Member, Phillip Island Nature Park and the events sponsors; Biosis, Hansen Partnership, Georges • Eric Noël, Managing Partner, EnviroComms Ski Hire, Mt Buller ARMB and Mt Buller Ski Lifts. • Louise Perrin, Environmental Services Manager, Mt Buller Planning for the 2017 Ski-Posium at Mt Buller has already Mt Stirling Resort Management Board commenced. The preliminary dates are Thursday 10 and Friday 11 August. The likely topics of discussion will be the Melbourne "Wow what a great forum! There were a number of highlights, Strategic Assessment Revisited and Pulling apart the ‘Black Box’ from the inaugural VPELA Cup to the Panel discussions. The of Green Building Assessments. Please put these dates in your insight from the four different panel members discussing diary and contact Jane Power, if you would like to be involved in how to balance the environment and tourism was fantastic. organising or sponsoring the event. Peter, Andrew, Louise and Eric showed that despite having different roles and experiences in environment and tourism The Ski-Posium Convenor across Victoria that a balance can be achieved, whether it be Stuart Worn, Senior Consultant, Bosco Jonson

VPELA Revue October 2016 / 55 SMEC Nexus Ball 2016 Our Young Professionals really enjoyed the circus theme at Speigeltent!

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