VPELA Revue (October 2022)

The Business

People

VPELA Masterclass

compensation after the Brompton

person’s heritage is almost always another person’s property

Conference

Planning as an ‘economic enabler’ through the pandemic period

The importance of people and place

Why you should be optimistic about our future

Strengthening our mental health and mindfulness in a post pandemic world

Grassroot water activism in São Paulo, Brazil

Using Biodiversity Sensitive Urban Design to coexist with Nature in Cities

Applying an intangible heritage framework to socio-spatial use of built form

Cover: Paul Jerome winner Chris Chesterfield, centre, VPELA president, Mark Sheppard,

Tim McBride-Burgess, (Contour, award sponsor),

Newsletter editor: Bernard McNamara

0418 326

bernard.mcnamara@bmda.com.au

9699

VPELA

Box 1291 Camberwell

admin@vpela.org.au

9813 2801

The President Spring is the time of plans and projects (Leo Tolstoy)

Welcome to the spring edition of Revue.

It’s been a busy few months at VPELA, highlighted by our first inperson conference for three years. Just like spring blossoms after winter, you were obviously raring to open up after the ravages of COVID because we had our biggest ever turnout, with over 300 delegates. Or perhaps it was because of the fantastic line-up of speakers, headlined by Catherine Freeman and including Tony Wood, Kerstin Thompson in conversation with Stuart Harrison, Sophie Renton, Dr Adrian Medhurst and Julian Lyngcoln.

Big thanks to our sponsors – particularly our ongoing Platinum Sponsor DELWP – and our amazing admin team and organising committee led by Anna Borthwick and Michael Deidun.

VPELA’s Paul Jerome Award, presented at the conference, recognises outstanding contribution to public service. I congratulate this year’s recipient, Chris Chesterfield, whose patient and persistent work over many decades to improve the way we manage stormwater has transformed our urban environments for the better.

Water

Speaking of stormwater, planning for flooding has become more pressing following catastrophic events in Victoria, NSW and Queensland this year, which raise the question of how to deal with existing and planned development in floodprone land. Two current planning scheme amendments promise to draw a ‘line in the sand’ (pun intended!) in relation to planning for sea level rise and increasing rainfall intensity.

Moyne Amendment C69 explores the question of what extent of sea level rise to plan for in Port Fairy. Melbourne Amendment C384 proposes to increase the area of land affected by the SBO and LSIO to reflect increasing rainfall intensity. It also proposes to introduce as a reference document a ‘Good Design Guide’ for buildings in floodprone parts of key renewal areas, which seeks to ensure that flood responsive design still supports equitable and inviting urban environments. This highlights the need for integrated decisions in established urban areas that balance the need to minimise flood risks with urban design outcomes. We are planning a seminar in the New Year to explore this topic further.

The decisions ultimately made in relation to these Amendments promise to be significant inflection points in Victorian planning for climate change.

This edition’s Think Again article takes up the issue of what scale flood mitigation should be planned at. It poses the question ‘How should land subject to inundation perform in relation to its buildings?’ rather than ‘How should a building perform in land subject to inundation?’.

Wind

Mark Sheppard, Principal, kinetica

From the risks of rain to the potential of wind, a topic which has featured prominently in our winter webinar season.

We learnt that Australia has the potential to be a global offshore wind superpower, but there are major constraints to be tackled before we can get there – not least, the lack of supporting infrastructure and industry. Offshore wind farms are also supported by the Bald Hills Wind Farm VCAT decision, discussed at our Red Dot Decisions event, which highlights concerns about wind farms’ impacts on nearby residents. This is a critical topic that needs thorough investigation to ensure we can capitalise on the enormous potential of carbon-free energy.

Our panoply of webinar topics also included the opportunities and challenges of developing former quarries, and an update of all things PPV and VCAT, illustrating the diverse interests of our multi-disciplinary membership. If you missed any of our recent events (including the conference), the presentations are available on our website, along with recordings (for members only).

New governance

The Victorian Government has appointed a new Minister for Planning: Lizzie Blandthorn. Congratulations to Lizzie on her appointment to such an important role.

Speaking of Ministers, I’m looking forward to introducing you to the Shadow Minister for Planning, Ryan Smith, at a forthcoming webinar. If you haven’t met Ryan before, log in to get to know him and his vision for planning in Victoria.

By the time you read this, it’s likely that the VPELA board election will be complete. Thank you to everyone who nominated and congratulations to the new board members: Lucy Eastoe, Arnold Bloch Leibler Damian Iles, Hansen Partnership Grant Logan, DELWP

Emily Porter S.C., Victorian Bar.

Thanks also to all of you who responded to our survey last month, which has provided a wealth of information to help us serve you better.

I look forward to seeing you all at our Christmas party on 13 December!

Mark Sheppard is President of VPELA and a Principal at kinetica

Editorial licence

Greetings as we head into no mask territory and a somewhat return to normal. Now quadruple-vaxed and office normal, we move into the end of 2022 and an election in November.

In the shadow of the YPG

I am still in recovery mode after having been shown up by the YPG in its ‘super-good edition of the VPELA Revue in June 2022. Well done to Jack Chiodo, Isobel Viscovi, Emily Mignot, and others for their work.

That, and other activities from the YPG, indicate that VPELA is renewing and strengthening. The humorous and informative Work from Home/Office debate at the Conference illustrates my view.

Conference

Wow , we actually had an in-person conference in Lorne at the start of September. Well done to the Conference organising Committee led by my friend and former BMDA staffer, Anna Borthwick.

There was an energy across the 300 plus delegates. We explored the environmental and professional topics with speakers including Tony Wood, Stuart Harrison, Julian Lyncoln, but also the personal with Cathy Freeman and Adrian Medhurst (breathe and release!)

And lots of fun along the way. This edition of the Revue provides an abridged version of a number of the presentations. These include the new researchnew voices contributions of the RMIT Phd students. Hearing these new voices was a good initiative. A test of a conference/ seminar is to ask yourself whether you are coming away with some new thinking. Conference gets a tick.

Metropolitan Planning as a political football

As a member of the Victorian Government’s Plan Melbourne Ministerial Advisory Committee in the 2013—2016 period (i.e., under Minister for Planning Guy and then reformed under Minister for Planning Wynne), out primary objective was to think about Melbourne as a city, long term.

The objectives included creating an environment that would foster new age skills and businesses to sustain and grow Melbourne as a world city. The initiatives included the National Employment and Innovation Clusters, at Parkville, Monash, La Trobe-Austen and others. We recommended a vision which we hoped would be acceptable to all sides of politics, allowing for long term planning policies and investment confidence; both public and private.

One of the frustrations we experienced was the absence of clear transport plans from the government department. Phrases provided by staff such as ‘node-agnostic modes of travel’ are not much help when one is trying to understand and establish where and how opportunities might be encouraged and connected, respectively.

The Advisory Committee was a fan of Metro 1, and Metro 2 (now thankfully back on the agenda), the east west freeway link,(abandoned),extensions to tram routes and the introduction of high capacity/high frequency Smartbus services to allow people to access services, employment clusters and regional centres. In Melbourne, unlike Sydney, bus services have been a neglected resource.

No suggestion was ever provided to the Committee on a suburban rail link. That first surfaced in late November 2018. To my knowledge there was no input from Infrastructure Victoria. I acknowledge the State Government’s authority to introduce a project without requiring broad scale departmental consultation.

Putting the huge billions of dollars involved (and the various and conflicting business case forecasts) to one side, the situation where the project has become an election issue is a disappointing occurrence.

Personally, I have always questioned why more transport investment should be focussed on the eastern side of Melbourne when the western side of Melbourne is under-provided with rail services. The airport rail link will redress a part of that challenge.

Wither the PPV/Independent Advisory Committee process?

First, a declaration that I provided expert town planning evidence for a party before the Bellarine Peninsula Distinctive Areas and Landscape Assessment. Advisory Committee,

On 6 October, the Premier announced that the Minister for Planning had approved the Bellarine DALs with permanent settlement boundaries around towns. The Minister did so after having the Advisory Committee report in July.

But the Advisory Committee report did not recommend approval. Instead, it criticised (my word) the authorities for the poor level of investigation. It concluded that the authorities had by and large, simply used the old planning scheme town settlement boundaries to become the Permanent Settlement Boundaries without doing the necessary work to meet the DALS criteria. The Advisory Committee effectively handed the DELWP and Greater Geelong CC a massive ‘Fail’ and recommended resubmission. This was no ‘on balance’ call.

Not so, said the Minister and the faceless bureaucrats passing the boundaries into law.

Bernard McNamara Editor and Director, BMDA Development Advisory

OK, Ministers can make unilateral decisions about settlement boundaries and other matters. But why the farce? Many community groups and landowners, in good faith, invested in the preparation of serious and beneficial studies that in most cases identified the inadequacies of the background work and supporting studies. They did this, honouring the independence and high regard that Planning Panels Victoria holds and deserves.

Why waste months of time and resources, and devalue the role of PPV? A bit close to an election maybe? An echo of Spring Creek, Torquay? And every time this occurs, it chips away at the commitment of the PPV members, making him/her ask… “Is what I am assessing going to matter?” A black day for planning assessment independence.

Process or Outcome?

My turn for a grumble. Accepting that plenty is happening, and we all feel a bit under resourced, but we can do better. Acknowledgements to Julian Lyngcoln and team for reducing the time that the Minister(DELWP) is taking to authorise and approve planning scheme amendments and all the expended approvals under Cl 52 everything.

But seriously,… Should a sign in a shopping centre be notified to 180 residents (no objection received)? Should a minor change to endorsed plans take months to be reviewed? Should the RFI button be pushed, probably before an application is inspected?

My thesis is that our systems are drowning us. You can be assure that the planners and authorities which created the Hoddle Grid, the streets of Camberwell, the rail lines to Frankston and the Great Ocean Road, did not spend years in assessments etc. Are they perfect? No, but we have embraced them and built on them.

As development assessment professionals , we are in part guilty within the process game. I don’t have an answer except to say that in a simpler world there was a place called the Planning Counter in local governments where plenty of items were sorted out quickly. Now we find that often a planner within an authority will not pick up a phone, requiring everything by email, controlling the process.

My first suggestion is that the outcome and its impacts (positive and negative) be understood at the outset, before the process buttons are pushed. If planning educators continue to see the profession as a regulator, rather than see it as a creator/builder on ideas, then we will continue for assessments to go slower and slower. As Anna Cronin found in her planning and building regulation review, this all comes at a cost to you and me. Did you read the Spanish infrastructure CEO who identified that project construction costs in Australia are twice as much and much slower in Australia than in Spain.(?)

Notable retirements

We are witnessing a ‘change of the guard’ of venerable proportions. This edition carries tributes to three of our leading QCs, (now KCs) from within the planning and environment jurisdiction. Chris Canavan, Chris Wren and Ian Pitt are passing the batons after decades of contributions. All have been active and generous VPELA members. I have personally worked with (and have been cross-examined by all over years.) My personal tribute as well.

And not forgetting the humble town planner! Michael Barlow, esteemed founder and director at Urbis is retiring after a stellar career.

Adios

This will be my last edition of the VPELA Revue. I assumed the editorial role at the start of 2015, giving me 7 years in this role, after years on the VPELA Board. Time for renewal. My thanks to Tamar Brezzi and the Board for entrusting me with this role. And, my great thanks to Jane Power, Grace Hamilton, and Katherine Yeo at the VPELA office for their support and guidance.

One fun comment to finish. Over the years, at the end of each column, I always requested feedback, but almost never got any. So, I concluded,…. people mustn’t read my column (sigh). But, in one edition, I wrote something that was not correct. Well,… people jumped out of trees! …..The lot of the editor!… Cheers and Thanks

Bernard McNamara e: Bernard.mcnamara@bmda.com.au

Mr Ian Pitt KC

Pivotal and key to Best Hooper’s rich history dating back to 1886 is the contribution of our Mr Ian Pitt KC, who remains actively involved with our firm.

Ian joined Best Hooper in 1966 and, over the years, has been recognised as pre-eminent lawyer and a respected leader in our industry. In 2002, Ian was appointed silk, making him only the fourth solicitor advocate to be appointed as either Queens Counsel or Senior Counsel in Victoria. This significant honour and recognition in the legal industry is testament to Ian’s advocacy skills and dedication to jurisdiction.

On behalf of the entire Best Hooper team, we take this opportunity to thank Ian for his outstanding 56 years of service to the planning, environment and development industry of Victoria.

Ian’s legacy is the next generation from Best Hooper who continue to maintain the high standard set by Mr Pitt KC with quality legal skills, tenacity, mentoring and measured temperament, all attributes that Ian has fostered.

Shadow Minister

Confidence, probity and integrity: Trust in our planning system

Hon Ryan Smith MP, Victorian Shadow Minister for Planning, Finance and Heritage

The newly appointed Minister for Planning, Lizzie Blandthorn, exemplifies the fractured and underhanded nature of this Government’s attitude towards planning.

Those plans sitting on the previous Minister’s desk, gathering dust – remember those? File them away because the new Minister’s hands are tied on the matter.

Confidence: the feeling or belief that one can have faith in or rely on someone or something.

Example – “we had every confidence in the Government”

Under the new arrangements for the Planning Minister and her staff, major projects requiring ministerial approval will be delayed, or potentially prevented from even beginning. There is a lack of logic and practicality in the government’s approach, and with it, a wavering faith that the planning system in Victoria will ever improve.

The Minister is obligated to exclude herself from any planning decisions that involve her brother’s firm, Hawker Britton. There will be no contact between the Department of Environment, Land, Water and Planning and Hawker Britton. The alternate Minister and their office will also not have any contact with Hawker Britton.

So who will?

Hawker Britton represents some of Victoria’s largest infrastructure project proponents and advocates. Projects which impact the lives of Victorians and pose major challenges to the planning system as a whole. If we are prevented from relying on the government to make the important decisions, then who can we rely on?

Projects like the West Gate Tunnel, which are already behind schedule and well over budget, will likely be delayed even further

given the supposed separation of the Minister and lobbying firm. How can Victorians have confidence in the government to deliver on projects if no one is seemingly allowed to make a decision? How can Victorians have confidence that planning decisions will be made swiftly and competently so as to ensure no further inconvenience is posed? How can we have any confidence at all with an impractical arrangement that will only slow things down?

We can’t.

Probity: the quality of having strong moral principles; honesty and decency.

Example – “Their probity is questionable when conducting business” Australian Super. The largest Australian superannuation and pension fund is waiting for a ministerial decision regarding its proposal to redevelop Kingswood Golf Club. A controversial project that residents of Melbourne’s south-east strongly oppose. The heated dispute between residents and developer is one of the many projects on the Minister’s conflict-of-interest list. Even if the Minister does not directly decide applications from Hawker Britton’s clients, the staff in her office and her department will be aware when an application involves the boss’ brother.

It is an impossible task to reconcile a popularly elected legislator’s duty with that of a lobby firm. Two opposing entities that represent vastly different interests and moral codes. One is accountable to the people. And that one is charged with the responsibility of serving the Victorian people with transparency and decency. Do not forget that.

How can the Minister demonstrate probity in planning if they are already the subject of such potential large-scale conflict-ofinterest with barely even a day in the role?

Integrity: the state of being whole and undivided or the quality of being honest and having strong moral principles

Example – “It is expected that decisions are made with integrity”

Unfortunately, no planning decision going forward under this government will truly be free of doubt. The integrity concerns raised have been met with a clear lack of governance and leadership which means that projects that require decisions won’t get one.

These blurred lines of morality have been clearly felt throughout the industry. Since Bladthorn’s appointment, a number of those in the planning and construction sector have asked to be removed from Hawker Britton’s list of clients.

Stephen Charles, a member of the Centre for Public Integrity, monumentally understated the situation by describing the appointment of the planning ministry an “unfortunate one”.

The question of integrity remains.

Remember this November

For eight years planning, development and progression have suffered under this government. Resources are stretched. Roads are in need of repair. Population growth and the accompanying infrastructure demands have not been met.

Reflecting on these years, it is important that we can see some hope in our futures, and progress for our state. To do this, we must be able to trust our planning system.

Because without confidence, probity and integrity acting as the guiding principles for the government of the day, then our government has truly failed.

What we need is transparency and certainty. What we need is integrity and probity.

Under the current appointment, we have none of these.

STOP PRESS

2022 BOARD ELECTION RESULTS

VPELA would like to congratulate sitting board members Tim McBride-Burgess and Carlo Morello who were successfully returned in our recent election.

Warm congratulations to Lucy Eastoe, Arnold Bloch Leibler, Damian Iles, Hansen Partnership, Grant Logan, DELWP and Emily Porter S.C., Victorian Bar, who were also elected and joined the board in October.

A full profile of our new members will be included in the March 2023 Revue.

People

The Paul Jerome Award Citation for Chris Chesterfield

This citation was prepared by Helen Gibson AM and David Rae. The full nomination can be found on our website at https://www.vpela.org.au/documents/item/674

At a time when climate change is guiding the decisions and actions of the community through to federal leaders, the ability to work collaboratively with many different stakeholders to bring about change is more crucial than ever.

The winner of this year’s Paul Jerome award is known for their ability to facilitate constructive conversations, building trusted relationships in order to effect change across many levels of government that have changed the way our suburbs are designed, our streetscapes are managed and our resources planned for.

The initiative and leadership of this year’s recipient has played an enduring and outstanding role in fundamentally changing the way stormwater and waterways are planned for and managed in Victoria – across legislation, policy, practice, research, communication and engagement. The legacy of their work underpins our whole approach to the sustainable development of cities, in Victoria and nationally.

They have also led the way in bringing recognition and acknowledgement of First Nations People to the way waterways are managed. They brought rightsholders of Country to the Victorian Parliament to ensure that the way we plan, manage and engage respects cultural values and knowledge. This work has set a benchmark for engagement with Traditional Owner groups, recognition of rights and pathways for collaborative policy making.

Our recipient’s work on improving the way stormwater is managed began some 30 years ago with the formation of the Melbourne Stormwater Committee. This led to a new approach to become known as Water Sensitive Urban Design, which sought to improve the health and vigour of urban waterways and realise their potential to enhance the overall environmental quality of urban settlements, and which was in complete contrast to the then conventional engineering solution. The resulting Urban Stormwater Best Practice Guidelines were incorporated into State Policy. This kicked off an era of capacity building to produce tools and programs to support the transition of WSUD into policy and into practice.

The work of the Stormwater Committee directly led to a profound change in the way stormwater is managed, through:

· the EPA Victorian Stormwater Action Program,

· the Clearwater capacity-building Program which has been recognised by the United Nations,

· multiple publications showcasing the transition in stormwater management practice,

· the development of a wide range of new tools, policies and statutory controls, including the Integrated Water Management Framework for Victoria, and

· the facilitation of a wider approach to water management which achieved recognition and a much deeper engagement with Traditional Owners.

Most recently, this work led to the introduction of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 and the establishment of the Birrarung Council where the recipient was appointed as the inaugural Chair. Their leadership has again seen this Council make major strides in its development of a long term physical and cultural management plan for Melbourne’s key river. It leads the way for respectful and effective engagement and integration of cultural values and knowledge in government policy.

This year’s Paul Jerome Award winner has a remarkable reputation – as a respected leader and change-maker, but also as a champion of new ideas and approaches and a mentor to emerging leaders. They have not only led significant change but have also mentored new generations of change makers which has ensured the legacy of their ideas and initiatives is embedded in policy, practice and across the culture of the organisations they have worked in and people they have worked with.

Like Paul Jerome, this year’s recipient is renowned for their creative thinking and their ability to navigate the politics and barriers to change. They share the same trait – unafraid of pursuing ideas that sit outside the comfort zone of politics and government for the betterment of the environment and communities.

Please congratulate the winner of the 2022 Paul Jerome award, Chris Chesterfield.

People “Au revoir” Chris Canavan KC

Kate Lyle, Victorian Bar

After 53 years of practise, Chris Canavan KC has decided to hang up his robes for the final time.

On behalf of the Planning Bar, I would like to mark the occasion of Chris’ retirement.

Chris was admitted to practise and signed the Bar Roll in May 1969. After 18 years as a preeminent planning junior, Chris took silk in 1987.

Over five decades at the Bar, Chris will be known to many within the VPELA community. He has been an active member of VPELA, regularly contributing to legal seminars and keenly attending functions. In 2005, Chris received the Richard J Evans Award in recognition of his contribution to planning.

Chris has been a leader of the Victorian Bar, and in particular, the Planning Bar for a generation. He has rightly earnt a place among the truly great advocates at the Bar. A consummate advocate, he was uncompromising in his advocacy, a ferocious cross examiner and fearless in the pursuit of his client’s cause.

Never one to rely too heavily on written submissions, Chris was a master of the art of oral advocacy. Jeremy Gobbo KC is correct to say that “Canavan has been for many of us an inspiration – a model of excellence in Court craft”.

Chris’ contribution to the planning jurisdiction, in the cases he has run, and won, and in the submissions he has made, has in many instances profoundly shaped the field of town planning and the law. His most important contribution to the town planning field, and the practise of advocates within it, has been the standard at which he has operated. Over many years he has been one of the benchmarks of excellence in advocacy and as such, an important contributor to the much needed rigour in planning decision making.

In leaving the Bar, Chris leaves behind many to which he has been a teacher, a confidant, a mentor and in the truest sense, a friend.

He has modelled true leadership at the Bar, and the responsibility that comes with it. In his retirement he leaves that as a legacy for the next generation.

On behalf of the Planning Bar and broader planning community, Chris we wish you well in your retirement. You leave behind big shoes to fill.

Kate practises principally in planning and environment law. Prior to joining the Bar, Kate was a solicitor at Maddocks and most recently Kate was a Senior Adviser to the Minister for Planning.

Hansen Partnership LVIA Team

Our dedicated Landscape & Visual Impact Assessment (LVIA) team is highly skilled in assessing the impacts of major infrastructure projects. We recently assessed Star of the South, Australia’s first offshore wind project, which will provide renewable energy powering around 1.2 million homes.

Contact Steve Schutt, Director for more information: sschutt@hansenpartnership.com.au

Urban Planning I Urban Design I Landscape Architecture

Serena Armstrong, Victorian Bar

The time has come, Chris Wren KC said

Never shy of an apt quote, some recall Chris Wren KC lapsing into song during submissions. It was therefore with trademark style that Chris announced his retirement after 47 years at the bar. Those who received his email missive, appreciated it commenced with his typical humour, warmth, theatricality and wit by riffing on Lewis Carroll:

“The time has come”, the Walrus said, “to talk of many things: Of days with time to relaxOf a phone that never ringsAnd whilst I haven’t quite lost the plot –I’m taking to the wings.” 1

Without doubt, those who know Chris remark on his loyalty and generosity. He is the consummate gentleman, courteous and calm yet never shy to fire up when it is of benefit to his case. He is a fierce fighter but level headed, provided the argument does not concern his beloved ‘Pies. The strength of his loyalty to his friends is surpassed only by his devotion to his family.

In the words of Stuart Morris KC, “universally you will be told this man is a man of integrity, a man with a strong commitment to the public good, a man who has been a forceful advocate for his clients, and a man who has been a great friend of planning law in Victoria.”

Chris is known to work relentlessly in each of his cases, doing the utmost for his clients. As Justice Osborn aptly describes, “Chris engages deeply with his cases, honing in on the points that matter, asking pertinent questions, listening intently to the answers and reading the bench.” He reflects that Chris is a leader of the jurisdiction, commenting that his body of work has been significant.

Chris was born in 1950, growing up in Kew and was educated at Xavier. After finishing school he resided at Newman College. It was there that his love of wine blossomed. He recalls engaging with his fellow students in developing a thorough understanding of big, bold reds.

Despite claiming to have spent “far too much time at the Clyde and not enough at the law library”, Chris excelled in his Bar Roll studies and upon completion commenced articles at Corrs. He was admitted to the legal profession in 1974, signing the bar roll 15 months later on 28 August 1975.

He read with John (Jack) Winneke, a formidable intellect whose expertise included town planning and whose judgments are well known from his time as President of the Court of Appeal (1995-2005). Winneke sparked Chris’ love of planning, opening it up as a “fascinating, entertaining and creative” profession. His entre to the planning bar was no doubt further assisted by taking chambers with Robert Osborn KC and Michael Wright KC. He had the good fortune to work with them, as well as Chris Canavan KC, early in his career.

Chris’ early years at the bar were occupied by a typically broad mix of matters. In addition to planning, he was briefed for a range of criminal, personal injuries and workers compensation hearings. But it was planning law that Chris truly loved and as his experience and reputation grew he focused on planning, land valuation, local government and liquor licensing law.

In 1989-1990 he was a member of the Administrative Appeals Tribunal, hearing matters to clear the backlog of planning cases plaguing the government. Shortly afterwards he authored the Wren Report” into the Planning Appeals System Review. He wrote the report working out of the Attorney General’s office during the period of Andrew McCutcheon, who was an architect by training and went on to become the Planning Minister from 1990-1992. McCutcheon was also a founding winemaker of Ten Minutes By Tractor, so no doubt there was much talk of pinot and Mornington Peninsula viticulture practices during that period.

Chris was a champion of VPELA and believed deeply in Barber’s vision of a multidisciplinary organisation where people could network and share ideas. He served as its Vice President from 2004 to 2010 and in 2012 was awarded the Richard J Evans Fellowship. He was also an active member of the Law Institute Planning and Environmental Law Committee.

Penny and Chris Wren.

Chris was always generous in the time he spent helping develop the careers of young barristers, including his readers Nick Tweedie, Sarah Porritt, David O’Brien and Joanne Lardner. In 2005 his long and outstanding contribution to law, particularly planning law, was recognised through his appointment as Queens Counsel.

Chris is known for giving his complete focus and energy to each of his cases. This is reflected in his response when I invited him to reflect on his greatest career achievements. He replied: “Every case is so important to the individual client, I don’t really differentiate them. You want your advocate to be totally focused on your case and nothing else. I tried to do that.”

Nonetheless, there are certain matters that warrant mention, including his role in the Inquiry into Nillumbik Council (1998), Basslink (2002), and as ‘Counsel assisting’ in a number of major EES and Advisory Committee matters including the Victorian Desalination Plant (2008) and the Logical Inclusions Advisory Committee (2011).

No chronicle of his achievements would be complete without mention of his commitment to the yearly surfing conferences in Indonesia, where, when not preoccupied by surfing with other lawyers and counsel, he is known to present papers about the laws of ‘dropping in on a wave’.

Last, but by no means least, Chris acknowledges his wife Penny, their four children and seven grandchildren as the most important part of his life. In the years to come, Chris’s time will be filled tending to his farm at Flinders, producing cool climate

wines and truffles, teaching the grandchildren to surf and travelling the world with Penny. Chris, we wish you all the best.

Serena Armstrong, is a barrister at the Victorian Bar specialising in planning, environment and heritage matters. She has had the pleasure of working with Chris Wren KC both as a solicitor and later as a junior barrister.

1 Those with a similar love of literature to Chris may recognise the opening three lines appear in Alice Through the Looking Glass

SAVE THE DATE

VPELA CHRISTMAS PARTY 13th December 6.00pm

Q Events by Metropolis 123 Queen Street, Melbourne

Bookings open soon!

Proudly sponsored by

People All the ‘Best’ Ian Pitt KC

I still vividly recall the telephone call I received, quite unexpectedly, from Mr Ian Pitt (not then KC). In his inimitable way and tone, he got straight to the point. Would I like to join him as a Partner at Best Hooper.

At that time, I was nearing the end of my 5 years sabbatical in the suburbs and the opportunity to join the preeminent planning lawyer was to use an often-repeated cliché “an offer too good to refuse”. Ian and I were soon joined by Dominic Scally and the planning team has organically grown to a point where today we have 14 lawyers, practicing exclusively in the planning jurisdiction.

The strength of the Best Hooper team is, in a very significant part, due to the stewardship, mentoring and the knowledge that Ian has imparted to all of us. One of his outstanding traits is that he always had time to talk to you, even if he was in the middle of doing something.

It was no surprise that in 2002 Ian was appointed silk, making him only the fourth solicitor advocate to be appointed as either Queens Counsel or Senior Counsel in Victoria. This significant honour was recognition by the legal industry of Ian’s outstanding advocacy skills and dedication to the jurisdiction.

John Cicero, Best Hooper

Ian joined Best Hooper in 1966 and in his 60 years as a planning lawyer, many attempts were made to poach him from Best Hooper, but he remained loyal to the firm. Again, a testament to his character and dedication to the Best Hooper Team.

Ian has left a legacy of the highest standard of legal skills, tenacity, mentoring and measured temperament. I do not think I recall Ian departing from his measured temperament with any employee or with an opposing advocate or dare I say Tribunal Member in the heat of an argument or exchange. Those qualities have made him a remarkable contributor to Best Hooper and to the legal industry.

We will miss him, his dry sense of humour, his wit, his everpresent presence but his contribution to Best Hooper will remain for the current and future generations of planning lawyers. We wish Ian and his wife Helen a retiring and peaceful quieter life and thank you Ian for the irreplaceable contribution that you have made to Best Hooper for the present generation of lawyers and generations of lawyers to come.

John Cicero is a Partner at Best Hooper and has extensive experience in town planning law, Local Government law, environmental planning law, property development and liquor licensing.

reputation, leading expertise.

Zina Teoh Senior Associate

Thy Nguyen Senior Associate

Jessica Orsman Senior Associate

Jeremy Wilson Senior Associate

Briana Eastaugh Partner

Kristin Richardson Special Counsel

John Rantino Special Counsel

Terry Montebello Partner

Maria Marshall Partner

Michael Barlow, visionary planner retires from Urbis

After more than 40 years in private practice and local government, the profession is losing one of its truly great and visionary town planners, Michael Barlow, who is retiring to a quieter life in the country.

Michael’s career has followed a unique path, beginning as a young planner at the City of Doncaster before establishing himself in the early 80s as the City of Melbourne’s most talented appeals advocate (boasting an unbeaten record of 75 straight appeal wins in a row!). And when he wasn’t winning cases, he was working side by side with Rob Adams writing the 1985 Strategy Plan for Melbourne, which laid the foundations for the city’s renewal. It was perhaps through this work that Michael’s unparalleled understanding of cities and what makes them tick was first honed.

In 1985 Michael was persuaded by the eminent Terry Cocks to join him in growing what was then a small boutique valuation and planning practice, AT Cocks. Not long after Michael joined, Terry Cocks left the firm, and the remaining partners had their work cut out to reshape and rebuild the business under their own steam.

Over the next 15 years under Michael’s visionary business leadership, the firm was transformed into a nationally integrated multi-disciplinary practice, with offices in every major capital city and a presence in the Middle East. Urbis today is absolutely and

rescue the project, and then spent the next 12 months in Dubai leading an insanely difficult project during the working week and continuing his Managing Partner role for the Australian business on Saturdays and Sundays. He made an unparalleled leadership contribution to both roles throughout, and taught so many of us how great cities are made.

On returning to Melbourne, Michael once again rejoined the planning team within Urbis and picked up where he left off as one of the most authoritative, strategic, intellectual planners and expert witnesses in Australia. He was and remains the unanimous choice across the legal profession for all of the most complex, city shaping projects that come under examination in the planning system– from Melbourne Metro, to North East Link, to Suburban Rail Loop – all are projects where Michael’s ideas, evidence and thinking have been profoundly influential.

Indeed he has left a profound imprint on all who have been privileged to work for him and alongside him over decades. He has inspired generations of young professionals, both inside and outside Urbis, with his gentle powers of persuasion, his integrity and deep intellect. Personally, it has been the single greatest privilege of my career to work with, strategise and learn from Michael over my 20 years at Urbis.

In 2020 Michael’s outstanding contribution to the evolution

Michael Barlow

Julia Bell Principal

Jane Witham Associate

David Ferris Junior Consultant

Kinetica congratulates our latest promotions and welcomes David Ferris to the team!

Conference

Planning as an ‘economic enabler’ through the pandemic period

This is an edited transcript from Julian Lyngcoln’ s conference presentation

Planning as an Economic Enabler, was actually a topic chosen a year ago in the midst of the pandemic. But a year on and three months out from a State election, plus, welcoming a new Planning Minister, it was a good time to reflect on the significant role that planning has played through the pandemic.

We’ve helped to keep industries like construction running, helped businesses to keep their doors open (and footpaths in many cases) and keep staff employed. Economic analysis shows the work that we did assisted development activity to the value of 18 and a half billion dollars at a time where the economy most needed it and generated 436 million of state gross value.

We like to talk about the things that planning delivers in terms of outcomes, sustainability, livability, good urban form, heritage. There was a real task for the government to use its planning functions to keep the economy going at a very difficult time. So, what did we achieve over that period, and what can we learn from that; to bring to our ‘business as usual’ mode? And as we move into the next phase, can we build on the efficiencies we implemented, without losing those outcomes that are so important?

Population and growth in the regions

Victoria continues to demonstrate each year that it’s a great place to live, but the pandemic had an impact on our population growth. For the very first time in a very long time, we saw a minor decrease in population compared to the previous year. With international borders reopening, we will return to our previous growth rates.

Our budget papers are projecting Victoria’s population growth rate to return to normal by ‘23, ‘24, at 1.6% per annum. Overseas migration ‘ticked’ back over into the positive again, in the first half of this year. This supports the projection that we’ll return to growth in the coming year.

From Melbourne, people moved out to our regions. We also saw huge demand in Melbourne’s growth areas, with record land sales, at least partly driven by pandemic-era of financial stimulus.

Population movement from Melbourne to the regions was strong before the pandemic and remains so now. In the year up to March ‘21, around 20,000 people moved from Melbourne to regional Victoria. Around 45% of that regional growth was concentrated in our regional cities of Geelong, Ballarat and Bendigo. Geelong grew by about 2.3%, Ballarat by 1.7% and Bendigo by 1.6%.

We also saw about 45% of our regional growth found in the periurban areas. So, Surf Coast Shire up over 4%, along with Bass

Julian Lyngcoln, Deputy Secretary, DELWP

Coast Shire, and Baw Baw. People headed for the coast during the pandemic. Dwelling approvals in regional cities remain at record levels of almost 10,000 in the 12 months to March ‘22, pretty similar to the previous 12 months. We also saw growth in our smaller centres with over 400 approvals in Wodonga, and 300 in Warrnambool.

Supporting Councils through regional planning hubs

In response to the growth in regional Victoria, DELWP provided direct support to councils through the regional planning hubs. That was a program that provided statutory and strategic planning support and resources to the 48 rural and regional councils, to help them plan and develop their municipalities.

We found that handing money over to regional councils wasn’t necessarily the answer. Many councils struggled even if they’ve got the cash, to get professional people in. Councils were looking for staff that could come in and do the work. Through this program we were able to support and provide professional development. The funding included accredited training courses and attendance at conferences.

We have assisted 43 of the 48 rural councils through the program. As of May, we’d received 129 requests from 43 councils. We have completed 13 statutory planning contracts and have another 10 underway. The statutory planning support team has assisted decision making on development applications with an estimated value of a hundred million dollars.

Development Facilitation Program (DFP)

The DFP applies generally across the State. This program is an outcome of the Building Victoria’s Recovery Taskforce. It was set up early in the pandemic to advise government on emergency response to the COVID pandemic. Following the success of a pilot program, the Minister for Planning established a development facilitation program within DELWP in late 2020, to support investment in jobs growth and to drive the economy.

Since 2020, 39 projects have been approved, worth over 4 billion dollars being brought forward. That will create almost 18,000 jobs, create a couple of thousand dwellings. Sixteen of those projects have now commenced construction. A key criterion for that program was for ‘shovel-ready’ projects.

The average approval time for projects under the DFP is about four months. This compares to an average of around 12 months were these projects required to go through a traditional permit process. As well as being shovel-ready projects, we were looking for projects that also delivered on some government policy outcomes as well. So, in sectors such as health, education, regional housing and employment, visitor economy, arts, and

recreation. And, they had to meet minimum thresholds of value or scale.

A few examples are redevelopment of the Caulfield Racecourse, the Jewish Arts Quarter facility in Elsternwick, a major sports recreation facility in La Trobe University’s Bundoora campus, the Akenhead Center for Medical Discovery in Fitzroy, Warringal Private Hospital in Heidelberg and Australia’s first education and therapeutic support facility for children with autism and their families.

Approval pathways re-engineering

In addition, we have looked at policy and process reforms that we can make to really bring efficiency to the planning system, i.e., how we take time out of the processes?

We put new pathways in place for key infrastructure facilities, for transport projects, renewable energy projects and others. We have reduced timeframes for considering planning scheme amendments and we are facilitating apartment housing.

The State projects assessment pathway in Cl. 52.30 has facilitated ambulance stations, public sector aged care facilities, along with multiple transport projects. There is also a Local Government projects exemption in Cl.52.31 for councils, from planning requirements on things like upgrading parks, creating new sporting and community facilities and providing new libraries and town halls. And given how important housing is, we have a significant new assessment pathway to support the 5.3 billion dollar big housing build.

CELEBRATING HERITAGE FOR FUTURE GENERATIONS

These changes have not been without contention, with the removal of third party appeal rights, particularly in regard to the social and affordable housing applications. There’s a lot of community concern, often at times, about being located close to these projects. Actually, the experience is that these have run reasonably smoothly. It is an incredibly important program. Victoria’s stock of social and affordable housing is pretty low. We’re probably heading towards that being about 3% of the overall stock on the trajectory we’re on, so it is a critical program. We are also working with the federal government as well, to see what can be done further.

We have new approvals pathways for non-government schools, and that’s had huge demand. Non-government schools play a large role in educating Victorian students, with over a third of all primary and secondary students now enrolled in independent schools in 2020. Population projections suggests that schools will need to accommodate more than 97,500 additional students by 2025. It is a big task to keep up with that population growth in terms of education facilities. Since those provisions were introduced, DELWP has approved 81 planning permits with a combined development value of 765 million.

New exemptions and pathways have also been introduced within the Victorian planning provisions. For major road and rail projects, for state transport projects, level crossings, state car parks for commuters, new tram depots, railway stations, and bike paths. We’ve also updated State planning policy for transport to support a more integrated transport system, including introduction of a new Transport Zone.

At Urbis, we shape cities and communities for a better future, while achieving the best heritage outcome for our communities.

We offer innovative, professional solutions to help you negotiate heritage frameworks for development, and understand the opportunities your heritage places offer.

State Library

Victoria

History lives on when the buildings of the past shape the places of the future.

Carolynne Baker Director, Heritage carolynne.baker@urbis.com.au urbis.com.au

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Renewable energy

The government has an incredibly ambitious target around renewable energy. The Minister for Planning became the decision maker for all new planning permit applications for large-scale electricity generation facilities. And that includes not just wind farms and solar farms and the like, but batteries, transmission lines, generation facilities, and things like thermal gas and coal. Previously, the Minister for Planning was only responsible for wind and solar. The changes that have been made will ensure that Victoria’s energy transition is appropriately coordinated. The government has granted over 1600 megawatts of wind power, 700 megawatts of solar power and 1500 megawatts of battery storage as a result. And that’s roughly enough power to power approximately 1.36 million homes.

The amendment process

We know that one of the biggest pain points for councils is the time it takes to get through planning scheme amendments. Our performance as a department, on amendments over the last few years, hasn’t been where it needed to be. We are committed to bring those timeframes down. Pleasingly, we have reduced the amount of time to authorize amendments by two thirds since 2020. This will have a big impact on reducing holding costs for landowners and increase certainty for councils. We’ve set about repositioning the department as the premier statutory planning team for amendments, with active case management using digital work and re-allocating resources.

Apartment design incentives

I want to talk a little bit about facilitating apartment housing. Accommodating population growth and the need to really do that in a smarter way rather than just sprawling out further and further out beyond the boundaries of the current suburbs. We have the Better Apartments Standard in place. We are now working on our Future Homes program, an extension on the Better Apartments program. It is looking to combine the aspirations of the design standards to deliver high quality livable and sustainable apartment design. We’ve been working in partnership with the Office of the Victorian Government Architect and have produced

four high quality apartment designs or blueprints that include gardens, energy efficiency, and adaptability.

Developers who purchase one of these high-quality designs will be rewarded by receiving access to new simplified planning pathways. That process could halve the usual planning timeframes while creating added planning certainty. The future home designs can be recreated and are scalable. We don’t want it to be too cookie cutter. The designs will need to be adapted to a site. All Future Home apartments will have high sustainability performance, seven and a half star rating, cross ventilation, high levels of daylight, family friendly circulation spaces for prams, and adaptability for changing needs.

Closing

This is a great time to reflect on the significant role that the planning industry has played in helping Victoria respond and recover from the pandemic, and the value that planning contributes to the state.

Moving to the next phase, Victoria’s recovery, we hope to build on the efficiencies we’ve implemented. DELWP will continue to focus on post-pandemic economic recovery, looking at the operation of Rescode, to improving heritage processes, further protecting the green wedges and Victoria’s Distinctive Areas and Landscapes. We will continue to focus on the environmentally sustainable design roadmap, waste and recycling, water, sustainable transport, energy, and climate, designing and implementing the new Victorian Planning Vic website for rollout in 2023, and expanding the Better Planning Approvals program to another 10 councils.

Come November with the State election, we stand ready to work with the incoming government; on what priorities they have to improve Victoria’s planning system and ensure it continues to deliver for all Victorians.

Julian Lyngcoln is Deputy Secretary in the Department of Environment Land, Water and Planning with nearly 20 years experience in State government. Julian is responsible for leading the State’s planning, building and heritage systems.

Conference

The importance of people and place

This is an edited transcript of the conversation between Stuart Harrison and Kerstin Thompson at the VPELA State Planning Conference

Stuart: What we want to do today is really try and talk a little bit around some of the key themes of place and people and how architects interact with the planning system as a whole.

This is a little walk I did a few weeks ago from the city to Fitzroy. It’s a rough walk kind of east, from the city through Carlton and then into Fitzroy. The first image is in the city opposite the Royal Exhibition Building site on Exhibition Street, is the new Sapphire by the Gardens project. It’s a collaboration between Fender Katsalidis and Cox Architecture, good large architectural practices. And I guess what this shows us is a very large project, residentially focused, notionally mixed use, activated podium, I guess in some ways it’s a sculptural version of what you might call the standard densification response in a city area where the planning scheme is loose and certainly encourages density.

In Melbourne, we’ve been through a collective experience, of highly densified streetscape towers, which increasingly continue to occur. And you can’t necessarily blame the previous government now, given we’re at the end of the second term of the current government. This scheme, Sapphire, was approved well within the first term of the current government. I’m sure it wasn’t easy getting it through and there was a taller version of this scheme, initially. It was, obviously, a ministerial direct referral large project, but it’s opposite a World Heritage Site, I guess, is the point I wanted to make. And so, in a very significant part of Melbourne, which is the grounds of Carlton Gardens, the scheme supports this activity, and I’m not saying it shouldn’t. But if we walk, as I did, up to Station Street, Carlton, where we did a project a few years ago, that’s buried in this middle shot, we see a highly protected streetscape, the sort of heritage overlay constraint which, to the frustration of many of us as architects, prevents densification occurring in places like this, where there is potential given the large width of streets. This middle slide maybe represents these opportunities to rethink how the planning system constrains things happening in this type of place.

Part of my walk was to continue over to Fitzroy, and I probably should talk about the image on the extreme right, which is a beautiful little BKK project finished a couple of years ago. I have no idea who designed this project, but I do recall it being built in the late 1990s. It’s a pre-cast concrete project. It was wildly disliked by Fitzroy locals at the time and I recall the term yuppie dog boxes being graffitied on the side of it quite largely, and that stayed there for some time. I think it was seen, probably by design professionals and concerned local residents, as the beginning of the end of society. But then you look back at it 20 or so years later and you go, “It’s actually pretty good. It’s probably got too many crossovers, but it’s got some relationship to the

street. It’s got shaded windows. Windows you can open more than 125 millimeters. It’s got vegetation growing on it and it’s three storeys. Actually, maybe that’s not such a bad form of urbanism.” And so, in contrast to Carlton, Fitzroy has now, for over 20 years, supported some reasonably good interventions.

The loose argument is that the planning scheme has supported some reasonable stuff, particularly in areas like Fitzroy that are not less subjected to the kind of restraints we see in that middle slide. That finishes my provocations, and I’m sure Kerstin’s also going to talk a little bit about Fitzroy, because it is a place dear to her heart where she’s worked and lived for many years

Kerstin: Thank you, Stuart. That has raised lots of good conversation pieces. The first of my three images is the Melbourne Holocaust Museum, which we’ve recently completed in Selwyn Street in Elsternwick. I put this up as part of a bigger question, why setbacks? It is an invitation for us to contemplate different sorts of ways in which we might relate heritage buildings or existing buildings with new buildings, and really as an urge for us to expand our repertoire for how we relate existing fabric with new fabric. I think we have been stuck in a very binary idea about either juxtaposition and massive differentiation of new and old or perhaps, a while back, straightforward imitation.

The other thing I want to challenge, which this building does, is this idea of heritage always having to trump the new. And by that I mean to urge us to move from the deferential model that new buildings must always be deferential to heritage and say, “Actually, what we want is equal quality for peer-to-peer rather than one being subservient to the other.” For us to stop being apologists, having a confidence in our current capacities to deliver buildings.

The next image in the middle, is the Broadmeadows Town Hall, which we worked on a few years ago with Hume council. This is to say that, look, there is no such thing as a site outside of heritage. I would say heritage is always a question. There’s nothing outside of space and time. Everything we do is responding to an existing set of conditions. The second point is that something may not have architectural merit, it may not be listed, which is the case in point with the Broadmeadows Town Hall, but it was of great value, social, cultural value to that community in all of its diversity.

So, its retention, its reuse, its recycling, and adaptation for now was really important, because it was a repository of community memories, events, debutante balls, car clubs, you name it, things that have happened there. And the loss of that would’ve been the loss or erasure of those memories. So even how we treated interior palettes, was to keep that link with the past through the architecture. It’s also a suggestion in our consideration of heritage, to understand the more performative aspects of

Kerstin Thompson

Stuart Harrison

attachments to place, not just a visual one about architectural styles. Finally, it represented the need for us to be resourceful and get better use out of what already exists before we start advocating for tearing things down and new buildings.

The last project is Kerr Street Housing. This is officially the longest standing project we’ve ever had in the office. I think it’s been going for close to 15 years, and I will say right now what is interesting about this project was at the time it had a heritage base, and we advocated to council to dump the usual default of a setback from the base and put the new form in the middle of the site. We said that’s not consistent with the morphology, the forms, of Fitzroy, there is no pattern of this approach, so from a site responsiveness point of view, it doesn’t make sense. It’s actually not site responsive. That was the first point. And secondly, that in adopting a perimeter and adopting zero setback, we got a courtyard in the middle, so mutual benefit for our future occupants and the neighbors next door.

It went before council because of the number of objections, but interestingly, this got through. This is not uncommon anymore, the zero setback, but at the time we like to think we set a precedent. Good design, what we try to practice every day, is our way of advocating and changing and setting new precedents and exemplars through the work that we do.

Stuart: I think it’s worth picking up on a couple of themes there. Maybe we’ll dive into the issue of elected heritage first. This is a term I’ve been using the last few years, and it comes out of experience of hanging around restoration people a little bit. But the Broadmeadows Town Hall is almost a defining project in this idea of elective heritage. To elaborate what that means, it’s where you choose, you elect, to keep a building whereas you could knock it down.

What is interesting about the Broadie Town Hall is there was an existing master plan for the center of Broadmeadows, and the Broadmeadows Town Hall had been demolished in that plan. A long time later, the council obviously came to a position around keeping the building, electing to keep it. By the time you got involved Kerstin, had that decision been made to keep it, or did you have to advocate for its retention?

Kerstin: A bit of everything, actually. But it’s fair to say that I think some councillors would have liked a new building, partly because they felt that this was a second rate, sixties, dated building. We saw its value as an interesting piece of suburban civic. But the thing that really clinched it was just a simple question of money, and impact, and value for money in reusing what we had. But it also seemed like it was the importance of keeping it, because of the attachments that the community had. So really it became a project with a lot of community support.

The thing that was also interesting was that it wasn’t formally listed in terms of any heritage overlay. We did have the freedom to do what we thought were the right moves for the building to reactivate it. And interestingly, when we received an award from the Heritage Jury for the institute, there was an awareness that the outcome was as strong as it was, perhaps because it hadn’t had an overlay which might have prevented some of the moves that they most respected.

Stuart: And just to elaborate, I think it’s what I call the benefits, the privileges of working in the elective heritage space is you can

still barrel things. We worked on the RMIT New Academic Street project buildings, which were not widely loved, and we wanted to treat them carefully, but we were able to knock enormous holes in them. And certainly, with Broadie, you really knocked the whole back of the building down, and there’s a great essay in all different kinds of conservation techniques going from the front to the back. I want to talk a little bit about this setback issue, because you’ve brought it up on really the other two slides.

Kerstin: I must say too, that’s a pre BADS one, and that was the other point I meant to make, which we can come to. When you walk through it now, the quality of those spaces, you think, “Gee, these feel so comfortable and it’s great. The proportions and the idiosyncrasies,” and then you realize it is pre BADS.

Stuart: I’m sure everyone in this room’s familiar with the BADS, and it’s an unfortunate acronym. I recall being involved in some of the stakeholder processes to set up apartment design guidelines equivalent to the well-trodden Sydney SEPP 65 ones. Do you think, Kerstin, that generally those apartment guidelines have been good at the stuff I was talking about before in terms of this theory of the tide lifting all the boats at the less designfocused end? Do you think it’s useful in that end or isn’t it?

Kerstin: I’m sure we’ve all heard people say this before, but it may lift up the bottom, but what it’s also doing is suppressing the top, and I think is dampening innovation, especially in housing diversity and choices. In the social housing work we’ve been doing, we’ve noticed some really interesting tensions in what certain sorts of regulations, like BADS, should be doing. It has effectively de-incentivized any innovation in the sorts of housing products you might be developing and at the level of the individual apartment layout, it’s very prescriptive. Kerr Street being pre that, I think shows a level of innovation, which we couldn’t adopt.

This question of proportion being mandated, I think, is really problematic in terms of building in sometimes slightly more flexible types of spaces. Or for instance, the idea of a second or a third bedroom you might design with a certain degree of openness or open ability to be a living space, to get that flex of how it might be used, for instance. Whereas under BADDS, that would have to be a full bedroom with direct access to natural light. And the proportion thing comes out of the distance from facade as well.

What you’re seeing is, at the level of the apartment design, is very prescriptive. And there is no incentive for people to vary from it, that’s the other thing, because it becomes a default minimum. But the other point is what it’s doing on an urban level in terms of the formation of our cityscapes. We are getting this pattern book of one typology stamped across our city. It’s also a loss of the variation you might get from suburb to suburb. And if there’s one thing we try to do in our work it’s to say that every building we do is an opportunity to speak of that place. When you have some of these sorts of highly prescriptive codes, I do think it is counter to that whole quest for site responsiveness that are supposedly embedded in these codes.

Stuart: We have been hearing about the renewed importance of the local. I think that’s something that, as architects, we are always looking for the specificity of how you embed that. I guess, by definition, planning schemes are trying to control things at a very broad level, although there are often local controls. How do

you think you could get that specificity into a planning system, Kerstin, in terms of things like making a project of a place? You sit on design review panels in Victoria and have had projects go through that process. Is that a mechanism that could be used more broadly? Is it scalable? Could you opt out of the BADS and into design review at a local level?

Kerstin: I mean, it’s certainly an idea. Of course, these things always come to resourcing, and it’s the number one impediment to a more nuanced way of assessing the pros and cons of first principles thinking, if you like, around a proposal, and its relationship to place. But yes I certainly think that’s one way. I also do wonder what rules are useful. You get a very particular outcome, a very predictable outcome, and as I say, there’s no incentive to go beyond that unless you get an unusual client or developer who’s prepared to go above and beyond.

Stuart: Whereas if you would incentivize the design excellence pathway, you could then have floor area benefits for going through such a process, but it is an issue of resourcing. Because design review, for example, as one mechanism in design excellence takes a lot of people, and cost. You can charge for that model, and there are some jurisdictions that charge for it, and if there’s incentives, then developers will pay to go through that model.

I want to also touch on this issue of setbacks, which you’ve raised in a couple projects here. I was fortunate enough to have a guided tour of the Melbourne Holocaust Museum recently as part of Open House Melbourne’s open weekend. It was really interesting to learn that the facade, the original building had no heritage protection either. And I think, as a result, you were able to, again, work with it in a way that you wouldn’t be able to if it had had some heritage listing, certainly.

Kerstin: It was the original building previously known as the Jewish Holocaust Center. It was again of cultural significance as the beginnings of that center in Melbourne, and hence why we thought it was definitely worth retaining. And in fact, our position on it was to almost treat the heritage building like the original artifact of the museum, and well and truly embed it and integrate it with its new and future facility.

At a council level, the heritage advisor was clearly advocating for a substantial setback. We felt that apart from the fact that it really diminished an already very restricted building envelope because of recent residential development, the other issue was just the loss of the building’s presence as a civic building on the streetscape. Another thing that gets lost sometimes in these conversations is about bigness. The council was really keen to support this initiative, because of the education and programming and all sorts of possibilities of the museum. I think the small matter of a heritage setback was seen as a smaller problem in the greater merits of the project.

Stuart: I think what’s also really interesting about the museum is if you put a heritage lens on it, it transgresses so many kinds of rules, but is such a beautiful outcome. And just at the level of coloration, the building comes across as a white cube and under normal Burra Charter ways of thinking about things, you might go, “Well, the new bit, setback or no setback, might be a clearly different color”.

Kerstin: Absolutely. It used to be clear, black and white difference between new and old. And we would sledgehammer

architectures that slam dunked what was there before. And so really what we’ve been trying to do with our work over many years is get this interesting, more complex relationship, where there’s a resonance, there’s a connection, there’s a conversation, and it’s, perhaps, more subtle at times. It is quite an interesting intrigue for people to think where does this new and old begin and end? There are signs there if you look carefully. So even that change, I think, from the original permit, the clarification from the planning department, shouldn’t the new and the old be greater color difference. And that’s where we said, “Actually, this is about a unified response. All of these moments are being brought together in this proposal.”

Stuart: People is the other theme of this session. There has been a big focus over the last 10-20 years on both stakeholder engagement and user experience. As architects, putting yourself in the mind of people using the building seems like common sense but, to some architects, it’s still a revolutionary idea. How do you think that’s been useful in your own work, and how do you do that when you have the unknown client? The person you never meet, who’s going to move in, whether that’s in private, multi-res or social housing.

Kerstin: You touched on part of it, which I think is fundamental to making decent buildings, and that is for us to try very hard to put ourselves in the shoes of future users. They are both the occupants of the building that we know about, they’re the ones we can only speculate about, but there are also the people who are not formally the users of that building, but will pass by it, might pass through it, and so there’s a multitude of people and uses that we have to anticipate. I would say we need to be highly anticipatory too, understanding and anticipating of these other needs.

I often talk about the kind of ethics of design, and that is where ethics comes into it, which is about our responsibility to others and the making of buildings. I think in many spheres, we need to remind ourselves of the ethical component of what we do every day. It is really, really, important. In terms of our planning sphere, it’s a challenge to both be protective of current amenity and users, but also without precluding the benefits for future users, and that’s probably the big challenge with planning. The way in which we navigate those different users and their different needs, because I often describe architecture as the kind of meat in sandwich or the negotiator between these various competing interests, if you like. Ethics is about navigating competing interests.

Then the point is to have fairly clear intentions. There’s a lot of ways you might come up with a solution that meets those intentions, but you do need that clarity of what the building is doing, who it’s doing it for, how it’s doing it. And so, clarity of purpose, I think, is huge, because there are a lot of things to take us off course along the length of time it takes to make buildings. The idea of mutual benefit, which is something we talk a lot about, especially with private sector work, has a public impact. And so, you’re always thinking how can we do more than simply meet the brief itself and deliver some greater positive impact.

Stuart: I’d be interested to hear about some projects where you think that the planning scheme has worked quite well in supporting what you’ve proposed to do, and are there some projects where it has basically prevented something good from happening?

Kerstin: We recently finished a housing scheme in Balfe Park in Brunswick and Moreland had their own guidelines for multires as well. It was a case of where some of the regulations, if we applied them, we did think we would get a less than ideal outcome, but there was a way in which, for instance, one of the clauses around setbacks, primary, secondary frontages, enabled us to actually introduce a lane way through the site, which had this greater neighborhood benefit. So, one of our things is always to find the ways in which the codes can be pushed to deliver those sorts of extra benefits. Mutual benefits of both proposal and greater neighborhood.

Stuart: Assumedly, that project required an enormous amount of advocacy to get to that point.

Kerstin: It did. And it was an interesting one where we actually demonstrated that we could deliver a smaller footprint through some greater height, and the smaller footprint would enable this more porous and permeable site. The public lanes, for instance. As it turned out, we still delivered on the porous, and the lane ways, and the smaller footprint, but with a lower height. I think height was not the problem it’s just how well you manage it.

Stuart: So, height controls there weren’t that useful in terms of good outcome?

Kerstin: I think height controls are a real questionable device and it should be volume controls. The capacity to introduce negative space, or voids, which have this other greater benefit in civic scale and so forth, they’re the things that get knocked out when you are limited by height, because of land values, all of those things that we’re all aware of.

Stuart: I think that issue of getting that lane way through, it proves that all projects are urban design projects, really. We have time for a couple of questions.

Question: I think this question of how we avoid the kind of lowest common denominator architecture without preventing the top, that’s such an important question. I just wanted to ask, I love this idea of protecting buildings that aren’t listed, or aren’t in the HO. I presume there’s an embodied energy argument for that as well, so there’s a kind of multi-layered argument as to why we should do that.

Stuart: Absolutely. I forgot to mention that with elective heritage or with heritage generally, what you’re seeing is the merging of two spheres, sustainability and heritage, that have often been very different worlds with very different people in them. And now, particularly with elective heritage, part of the argument that you can mount for retaining a building is the embodied energy. As we move towards a carbon-priced future, you could make an argument that you might not need any heritage controls, because it’ll be insane to knock a building down.

Kerstin: I think a really good starting point with any project is if there’s an existing building, the first question you have to ask is can we reuse this, and to properly interrogate that. How much change do you really need to make to it to adapt it? And you start from the premise of a light touch as your starting point. And the smart strategic edit can be a really powerful way to transform with what you have. Additions are the last thing you resort to when you know you can’t get any more out of what you already

have, but it’s really that scaling up of intervention that we think is critical.

Stuart: And if I could add to that, what’s happened in consultancy culture, historically, is the reverse. So particularly in the big end of town, the default position has been a clean slate, because it’s easier, and you make more money delivering it. Now we’ve all worked on existing building projects, they’re hard, they’re complicated, you’ve got to deal with a lot of latent conditions. It’s not easy and often fees don’t necessarily support it. But it has been for a long time, the default position to say, well, as soon as we can get this knocked down, the better, because then we can do a new building. But as the Broadmeadows Town Hall proves that, actually, to replicate a building of that quality-

Question: Kerstin, I wanted to ask you a question about a project where you turned an ugly duckling in Fitzroy into a success. The George Street apartments.

Kerstin: That’s a nice case in point. It was a pretty ordinary sixpack, and it was a brown brick. If you can think of chocolate ripple biscuits, that is the brick type. And the clients said to us, “We were wondering whether to knock down, start again, redevelop, or refurbish. Hate those brown bricks.” And we looked at it and we thought, honestly, this is a really good set of bones. The bricks are not going anywhere. They’re enduring really well, and that’s more than you can say from a lot of more recent buildings. So, we decided to do was refurbish, change plans a little bit to get better amenity now. But the other value is that apart from reusing and recycling, it was a much better use of resources that were existing. The building envelope was already there. The setbacks were really generous with a beautiful, established, semi-tropical garden. You would’ve lost all of that. You would’ve had an absolute barney at VCAT. It was just, why would you not work with what you have? So, on so many levels, economic, planning, comfort for neighbors, amenity outcomes in the end, it was the right decision and now it’s a really delightful place to live.

Stuart Harrison, Founding Director, Harrison & White, Urban Design & Architecture, President of Open House Melbourne. Kerstin Thompson AM, Principal, Kerstin Thompson Architects

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Conference

Why you should be optimistic about our future

This is an edited transcript of Sophie Renton’s conference presentation

The world that we live in is a world that is full of change. As leaders, as organizations, as people, we need to learn to respond to this change well.

As researchers, we typically get to see two typical responses to change. The first is ‘change fatigue’. Change fatigue is when you typically remove distraction and just focus on what you need to do to get through. With change fatigue, you’re too overwhelmed to deal with everything else so you block out and just focus on what you need to focus on.

The second key response that we see to change is ‘Change apathy’. Change apathy looks a little bit more like where we continue on as we’ve always done, regardless of the change in circumstances around us.

Neither of these responses to change truly works. To respond to change well, we need to take in our context, our environment, to lift up our eyes, and not get so stuck in the weeds, that we miss out what’s happening in the trees, and to take a step back.

And as leaders, we actually need to lead that change to make decisions that can lead our organizations forward, because we believe at McCrindle that much of what we had pre-COVID, we’re actually never going to see again. We’re not moving to the ‘next’, but to the ‘new’. It’s not a continuation of how things were, but it truly is the start of a whole new reality. For some, that can feel a little bit overwhelming. But within this change, there’s also this new desire and opportunity for something better, let’s not just do what we’ve always done. And it’s in that space that there is quite an exciting future ahead for Australia, as we think about the demographics and the social changes.

The demographic transitions of our nation that are really important when we think about planning, is firstly around our population. When we think about population growth in Australia, 38% of our growth comes through natural increase, which is essentially just our births minus our deaths. But typically, 62% of our growth comes from net overseas migration. Now, we know that in 2020, our borders closed. So, what the heck happens when 62% of our growth comes from people coming into our country? Instead of reaching a population of 30 million in 2030, it is now projected to reach 29 million.

With that growth, there is still a need to figure out where are these people going to live. How we are going to have cities that can have the right infrastructure to cope with them. And maybe for once, we can actually get ahead of the boom so that we can be thinking strategically. Because Australia as a country has not lost its appeal through COVID.

Sophie Renton, Research Director, McCrindle Research

The challenge of creating communities

Australia has twice as many people born overseas as the US or the UK, making us one of the most culturally diverse developed nations on the planet.

But do we really understand all the flow-on effects of that? Almost half of our population have a parent born overseas. And when we zero that into Victoria, that goes to more than half. So, 52% of Victorians actually have at least one parent born overseas. Within that cultural diversity, there is the lesser talked about concept of linguistic diversity. Across Australia, just over one in five Australians use a non-English language when at home. And it highlights the different ways that people are actually communicating within their home.

For Victoria, that goes from 22.3% up to 28%. For Greater Melbourne, that goes up to more than a third. For the Melbourne CBD suburb, it goes up to more than half use a non-English language when at home. How are we actually creating communities? How are we operating as organizations that are engaging with people whose English might not be their first language, or might not be their primary language? How easy is it for them to engage with us? And how easy is it for people coming from overseas to embed and implant themselves in communities? Are we creating built environments that actually facilitate human and community connection with people from diverse cultures, with diverse expectations?

Adapting housing to our demographic

We are also aging as a population. By 2031, our population starts to become inverted with more people aged over 60 than under 18. This has significant ramifications on our workforce, but also it leans into our housing.

Are we creating spaces for people to age in place? We are starting to see the rise of intergenerational housing, where people are looking after elderly parents, parents are helping to provide care for younger children as the cost of living grows. We ‘silo’ generations and we ‘silo’ ages. How can we use our built environment to actually facilitate intergenerational connection?

We did a study on 16 to 24 year old students last year. It was around education and exploring what their hopes and dreams were for the future. We asked, “what are your main hopes for the future?”; The number one hope is actually owning their own home. The Australian dream of a house and a backyard is still alive and well. They also aspire to full financial freedom and independence; they want to excel in their career, and they want to travel and see the world.

They also want to live in alignment with their values, have a sustainable life. But this generation coming through, that

VPELA Conference Reflect, Reconnect & Renew

Our conference at Lorne on 1 & 2 September, kicked off with a smoking ceremony and welcome by Lee Morgan, representing the Eastern Maar people, one of the traditional owner groups for the region. Lee told us that the herbal smoke is believed to have both spiritual and physical cleansing properties and is a wonderful custom bringing people together in celebration. And that is what the whole conference was about! After the 2 year hiatus caused by the pandemic, it was most certainly a celebration of the profession and friendships. Delegates relished being able to meet face to face again and the photos capture the joy of our return to the traditional VPELA Conference. As always, the program had something for everyone and a few presentations have been included in this issue.

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housing desire is still on their mind despite being a highly mobile and agile generation. You can move inter-state, you can move internationally, you can move anywhere, and you can just stay in your bedroom and work from home. You’ve got an immense number of options open to you. And that’s great, but in it, we’ve also removed these boundaries. And there’s this desire and expectation for mobility, but it can also come with challenge. But for this generation, Gen Z, they’re actually expected to have 18 jobs across six careers in their lifetime. So, they’re an incredibly mobile and agile generation, not just changing jobs, but significantly changing careers.

To give you a little bit more of an indication into this issue around intergenerational living, I want to highlight family households with adult children aged 25 plus, have increased from16% to 20% from 1991 to 2016. There are a number of reasons for this intergenerational living, but one that is very significant is the cost of living and the cost of housing.

Social insights: Local living, climate, lifestyle

The key thing is that we are re-emerging with new priorities around ‘people’, ‘planet’ and ‘lifestyle’. We are seeing this growing collectivist mindset where people are viewing themselves as global citizens, where they’re looking at this sense of community and this sense of being connected and together. And as planners and people in our environment, we need to ask how can we use our built environment to help facilitate that sense of connection?

We asked, “what did you experience in lockdown that you want to continue?” The number one thing was time spent with household members. People got time back and they’re not willing to let it go. There’s also been this sense of return to the local community. People actually engaged. They acknowledged each other. People increasingly value shopping locally, having that walkable community, and having that strong local community, having that sense of being connected.

But what helps create that strong local community? What can we do to help facilitate that? What we found when we look at what’s extremely or very important to people is that public transport access is key. That sense of ease of connection. Local businesses that are active in the community, green spaces that encourage that community gathering.

Circular economy is the second piece, with that sense of people and then planet. The number one thing we are detecting is reducing environmental impact, followed by building stronger connections with local community, rebuilding economic activity, increasing social and environmental impact reporting, and addressing supply chain issues. So, this sense of an awareness around sustainability, of knowing where things came from, how I’m using them, and where they’re going after me, is driving consumer decisions. And that’s important as we think about building, designing; how are we actually tapping into the desires of this consumer that’s coming through?

The last is lifestyle. And that has seen the rise of the regions. The tree change and sea change has happened in COVID and is likely here to stay. We need to think cities, not just capital cities. We saw that the population of regional Australia grew by almost 71,000

and cities declined by 26,000. The desire is to not just move to a regional area, but to retain a city job. COVID decoupled work from the workplace with work from home, which has brought in the greatest transformation to work in a century. Those areas that are in that one hour and a half commute to the CBD are going to be the strongest growth areas, because offices are calling people back in, but people are still wanting the lifestyle. How do we create those hubs of community and have the building and infrastructure in place to let people live that intentional lifestyle that they’re trying to create? Because we know that people love hybrid work now. We know 62% of Australians’ ideal working situation is hybrid. What does the future generation expect? Not 62% but 82%. Looking to the future, the emerging generation coming through, their ideal working situation is a hybrid one. They will increasingly be prioritizing lifestyle and that livability with their work.

But what happens to our cities? What do they become? Because historically they’ve been the central business district. And we would say that going forward, they could look like the CLD, which becomes the central lifestyle district. We asked Australians ‘what do you think the future of our cities will be?’ And 85% said that city centers will be the epicenter of arts and culture, hub of main events. They’ll remain a source of social connection or a gathering place.

Some people think they’ll house more people than ever before, but they’ll become the destination retail hubs. So, our cities aren’t dead. They will remain, they become their central gathering points. We just need to rethink why people are coming. And it’s no longer about business, but it’s about lifestyle.

The four keys that I would leave with you today is: first, to be real in everything we do as organizations and as people. We need to be real, and our actions and our words need to align. Second is being relevant. Being relevant is absolutely crucial. If our approach and processes have stayed the same for a number of years, we might need to rethink those.

Third, we need to be responsive. If COVID taught us anything, we need to be responsive. The 2020 business strategy went out the window. We had to respond to the lay of the land that was in front of us. And I encourage you to continue to not lose that.

And the last is to be relational. Business, life, revolves around relationships. It revolves around people. And in everything that we do, we need to not just engage with the head. We need to not just plan with the head, but we also need to plan with the heart, because we’re planning for places that people will live, that people will create memories.

The future is not an inevitable destination, but something that is shaped by the trends. And these can be influenced and responded to. The future is really in your hands.

Conference

Strengthening our mental health and mindfulness in a post pandemic world

This is an edited transcript of Adrian Medhurst’s conference presentation

Today we’re going to be talking about mental health and mindfulness, and our mindsets, and practices that can help us to be at our best and navigating through the uncertainty and the challenges of the last few years.

Why is mindfulness such an important topic and practice, and how does it relate to mental health over the last few years? I think it’s fair to say that it has been quite a roller coaster ride of ups and downs and twists and turns, all of the disruption and ongoing challenges that have been happening to all of us

To talk about precursors to mental health events is to talk about what is happening when it comes to the slippery slope towards burning out, because we are seeing that a high number of people, this is from a Gallup poll in 2021, nearly half of the working population are feeling burnt out sometimes and for a further third, it’s very often or almost always.

Burnout has been recognized as a syndrome, and it is a precursor to mental health events, but we can recognize the signs and learn how to detect and work with that for ourselves, and to identify and support each other as well.

The importance of Engagement

What we really value when it comes to our experiences in work and life, is being engaged. Feeling like we’re charged up with a full battery and ready to be at our best. There are three components that are helpful when it comes to engagement:

energy, that positive sense of physical and emotional energy that helps us to work through the challenges that come our way, · the ability to work effectively towards the goals and · the ability to confidently focus on what we need to do.

Engagement allows us to persevere through the difficult times to get where we want to go. Now, this type of engagement has been eroding, so let’s look at the warning signs and understand the dimensions of burnout. I’ve been hearing feelings of ineffectiveness and losing confidence in getting the job done. This is one of the warning signs of the onset of burnout. Feeling that we can’t actually be at our best.

That sense of determination to persevere also starts to degrade and we become that ‘disgruntled person’. You just don’t feel yourself. Another symptom of burnout is this overwhelming exhaustion. This is not just ‘I’m tired’. This is real exhaustion set in over an excessive period of time, and we find it tough to get up and look after ourselves.

Adrian Medhurst, Organisational Psychologist

The ‘oxygen mask’ metaphor is a good one. We’re told, in the event of an increase in pressure, fit your own oxygen mask first, before helping others. It tells us that we deserve to look after ourselves first. It is going to help us to be at our best for others as well.

Wellbeing and Performance

The model looked at our capacity for feeling and functioning at our best. We fall into different zones at different times. The lower left zone is the burn out zone. The risk when we’re pushing to perform, we’re pushing to contribute to the best of our ability in work and life, but there’s a neglect or sacrificing of wellbeing in the process. This is a real risk when it comes to burning out. High performance level is unsustainable without wellbeing. We can see some people sliding into this bottom left zone. This is where we are seeing the highly prevalent physical and mental health issues. People feeling highly disengaged.

We also see people with high levels of wellbeing, but untapped performance potential. People with unfulfilled potential are a flight risk, or their wellbeing starts to suffer as they feel ineffective. It’s probably no surprise where we want to spend as much of our waking life as possible, is in the top right zone, simultaneously investing in, and keeping in sync, our wellbeing and performance in work and life.

We will looked at why mindfulness is so important, and how it relates to mental health and wellbeing. Our brain is an incredibly energy-hungry thing. It consumes 25% of our energy. Now, even though it’s so energy-hungry, it actually wants to be efficient. Mindfulness helps us to understand where our attention and energy is going. Whether it’s serving us, or whether it’s leading to suffering.

Mindfulness in the internet and technology time

William James a former engineer at Google, is exploring how the internet and technology is disrupting our ability to focus our attention. This is coming at a significant cost when it comes to our wellbeing, our performance and our mental health.

James has identified the traps that we’re falling into, that have an impact on our mindfulness. These can lead to the onset of psychological and mental health struggles.

Our attention ability has been degrading. The effects of a hyperkinetic environment, an overstimulating environment, the way in which technology and screens are impacting on how we can focus, and how we function are all significant.

We are engaged with our computers. We spend a lot of time on our devices. Our brains can feel like they’ve got far too many tabs open at any one time. We need to talk about the habits that we are forming associated with multitasking, switching between tasks, and distractibility. We used to believe that multitasking was some productivity hack. Now we know that we don’t really do multiple things at once. What we do is ‘switch’, and often quite rapidly, between tasks.

That means we’re not actually bringing a high level of quality attention to any task at any given time, before it’s disrupted and moved onto something else. Now add to that the switching cost, which is, if you are doing a task and then another task, and they’re very different, context switching has an impact on our ability to perform as well. You’ve got the rational, logical, sequential work in a spreadsheet, and then you need to interact with a human being that involves some emotionality, some language and some expressiveness. Very different task contexts that mean that we need to let go of the rules of spreadsheets and data and upload the rules of connecting with a human being, and that comes not only at a performance cost, but at a stress cost. This constant distraction and multitasking leads to activated stress levels, and that has a wear and tear effect on our wellbeing. This pattern is making us dumber.

Research shows us that when we’re multitasking, trying to do multiple things at once, our intelligence drops by 10 IQ points. To give you a point of comparison, that is twice the drop that you experience smoking marijuana. You heard it here, you are literally dumber multitasking, than you are stoned. We need to

look at these habits because they are detrimental not only to performance, but to wellbeing as well.

We are losing a lot of time. Switching costs are estimated at 2.1 hours every day. There’s a 40% productivity drop when we’re multitasking. Switching, distraction, and multitasking are traps that do have an impact on our ability to be mindful, and that compromises our wellbeing and performance.

No one’s going to fix this for us. We need to tune into these traps and work on it ourselves, but we often know better, without being better We need to put effort into turning around some of these habits that are no longer serving us. We are going to talk about what mindfulness is and how we can do it.

Mindfulness explained

I am going to give you some words to build up our mindset of what mindfulness is all about. It is a state of active attention. Mindfulness is not some ‘zenned out’ bliss. It is active attention that we invest in a particular way. We are choosing where we focus, and if our mind gets distracted, we notice that, and we bring our mind back. Every time we do that, that is literally a ‘bicep curl’ for your attention skills.

How do we build mindfulness as a state? We have two core forms of practice. The first is what we call ‘structured practice’. This is the formal training, where there’s instructions and techniques that we learn, and we apply. Mindfulness meditation like yoga, How do we build mindfulness as a state? We have two core forms of practice. The first is what we call ‘structured practice’. This is

the formal training, where there’s instructions and techniques that we learn, and we apply. Mindfulness meditation like yoga, tai chi, qigong, pilates. Numerous forms of structured mindfulness practice that help us to train these skills.

Then we have what are called ‘informal mindfulness practices’, or situational practices, where we bring intentional attention to the present moment to experience openly, curiously, and receptively, to any daily activity that we might choose. Bringing mindfulness to the most mundane of tasks; to release our mind from thinking about work and other stresses.

A simple pathway to Mindfulness: Breathing

The top practice for mental health and wellbeing, is right under our nose. It’s our breathing. Mindfulness and breathing practices help us to build the skills of attention management. Our learning and memory get a lift when we can focus our attention better and notice and overcome distractibility. We can be more aware of ourselves and what’s going on around us, and with access to all of the available information, we can make better decisions. Our reasoning gets a lift. We overcome the impact of biases on our judgments. We can come up with more creative solutions to problems, and it is the very foundation of self-discipline. It’s also critical for our mental health.

We are going to do some mindful breathing today. If you get distracted from this mindfulness practice, bring yourself back to the task at hand. Sitting with your legs uncrossed, we’re going to rest the backs of our hands on our thighs so that the palms are

face up. The breath is such a subtle and automatic experience, that we’re going to bring attention to our breathing by engaging with the physical experience of tapping our thumbs to our fingers on our hands.

With our right hand at our inhale breath, we tap the thumb to the index, middle, ring, pinky, and open the palm. That’s a five count for the inhale. Our attention then goes over to our left hand for our exhale breath. One, two, three, four, and five. We get into a rhythm where the attention goes from right hand to left hand. Breathe into your belly. You will have thoughts, but you can notice that and bring your mind back to the task at hand. Breathe for a few minutes. Feel free to suspend the tapping and just follow the even flow of your breath, collecting in your awareness what you notice about your mind and how your body’s feeling.

This practice and improved mindfulness are at your fingertips. Practice makes progress. You might feel a little wobbly at first, but we can get better with these exercises over time, with practice. Mindfulness must be engaged. There are so many traps that we fall into, and with the challenges on our plate, moving into the future in a post-pandemic world, mindfulness is going to be a critical skill. Once there is seeing, there must be acting. Otherwise, what’s the use of seeing?

Dr Adrian Medhurst is a speaker, author, educator, and thought leader specialising in performance psychology, wellbeing science, stress mastery, mindfulness, behavioural change, and innovation.

We recognise that to be at our best we must build on our diversity, foster belonging, and support our team to learn, lead and develop in all areas of life.

We proudly welcome new staff and celebrate promotions across our Melbourne Planning team.

Conference Grassroot water activism in São Paulo, Brazil:

My PhD research investigates how the disruptive actions of grassroots initiatives might be challenging and reshaping urban waterscapes – the ways that urban society relates with water. Situated within urban political ecology, the research focuses on a case study of São Paulo, Brazil. Disrupting the power relations shaping São Paulo’s urban water system is the centre of this work, critically framed through the lens of urban waterscapes (Swyngedouw 2004; Acharya 2015) and care infrastructures (Power et al. 2022). I focus on how urban water agendas are re-politicized by grassroots groups who actively resist and fight back against the dominant discourses framing water access, supply, drainage and distribution in São Paulo. The discourses by the dominant elites shaping the social appropriation of water (Swyngedouw, 1999) in Brazil are setting the scene for the ascension of neofascism, threatening Brazilian democracy and with serious effects on people’s lives including the genocide of oppressed populations through the coupling of necropolitical and ultra-neoliberal practices (Rosario 2020; Santos 2020; Hur 2021), worsened in times of global pandemic and climate change.

The central problem I seek to address revolves around the political dimension and the power asymmetries of how water is disputed within São Paulo’s context. To this end the primary research question is to explore how, in what ways and to what effect, grassroots community initiatives are reshaping São Paulo’s waterscapes. One of my case studies dramatically encompasses the constraints of the historical pressures imposed by the colonial western logic of dominance over land, people and water access, and at the same time illustrate ways of resistance. The indigenous Guarani Mbya community of Jaraguá has approximately 800 members and is one of the two few indigenous communities living within São Paulo’s city limits.

Through co-creative processes, they have been working to restore the springs at the Jaraguá region and build ponds for the community’s use, including bathing, fishing and rituals. Another diverse array of interventions happened through the Aldeias program, which supported the installation of decentralized natured based solutions for treating sewage and waters that were polluting the creeks that run through their lands. The program emerged in 2014 as an initiative from the Culture Secretary of Sao Paulo’s municipal government aimed to support the cultural practices of local Guarani communities.

The stories of Guarani people from Jaraguá highlight the significance of the collective dimension on how relations were shaped, how problems have been experienced and socialised, and

how responses have been imagined and pursued. Collaboration and solidarity were central elements to change the materiality of Guarani waterscape and the hydrosocial imaginary and agency of urban dwellers. There were crucial elements that underpinned community-lead and grassroots actions that emerged from Jaraguá context. It is a key strategy that allows marginalised and oppressed individual agencies to re-emerge as stronger voices with legitim access to institutional stages of power, and to reclaim sovereignty over their territories or a leading role in the transformations there executed. This collective dimension is a fundamental component of the hydro-social fabric of relations from which powerful transformative capacities can be organised towards a shared goal.

Alexandre da Silva Faustino is a PhD student – School of Global, Urban and Social Studies, RMIT University, Australia; alexandre.mog@gmail.com/s37626603@student.rmit.edu.au

References:

Acharya, A. 2015. The cultural politics of waterscapes. In: Bryant, R. L. ed. The International Handbook of Political Ecology. Cheltenham, UK: Edward Elgar Publishing, pp. 373–386. doi: 10.4337/9780857936172.00036.

Hur, D.U. 2021. Discursos sobre a retórica governamental de Bolsonaro: louco, genocida, necroliberal ou cortina de fumaça? Lugar Comum–Estudos de mídia, cultura e democracia (61), pp. 190–210.

Power, E.R., Wiesel, I., Mitchell, E. and Mee, K.J. 2022. Shadow care infrastructures: Sustaining life in post-welfare cities. Progress in Human Geography 0(0), pp. 1–20. Available at: https://doi. org/10.1177/03091325221109837.

Rosario, L. 2020. The Genocidic Necropolitics of Bolsonaro In Pandemic Times and the Ultra-Neoliberal Project. Rev. Interd. em Cult. e Soc. (RICS) 6(2), pp. 28–49. Available at: https://oglobo.globo.com/sociedade/educacao/ negros-sao-maioria-pela-primeira-vez-nas-universidades-. Santos, G.V. dos 2020. Governo Bolsonaro: o retorno da velha política genocida indígena. Revista da ANPEGE 16(29), pp. 420–451. Available at: https://ojs.ufgd.edu.br/index.php/anpege/article/view/12527.

Swyngedouw, E. 1999. Modernity and hybridity: Nature, regeneracionismo, and the production of the Spanish waterscape, 1890-1930. Annals of the Association of American Geographers 89(3), pp. 443–465. doi: 10.1111/00045608.00157.

Swyngedouw, E. 2004. Social Power and the Urbanization of Water: Flows of Power. Oxford: Oxford University Press Inc

How marginalised communities mobilise territorial resistance and ecological regeneration through activist practices

Alexandre da Silva Faustino

Conference Using Biodiversity Sensitive Urban Design to coexist with Nature in Cities

Incorporating consideration for other species’ requirements in planning and design

Katherine is an urban ecologist working for RMIT on integrating Biodiversity Sensitive Urban Design into urban planning. She recently completed her PhD investigating the flower preferences of pollinators in Melbourne CBD to improve greenspace design recommendations.

Urban areas present unique opportunities and challenges for biodiversity conservation. While urbanisation is a leading cause of habitat destruction via land conversion, many animals and plants can persist in urban areas, including species that are threatened elsewhere. In some cases, cities are the last place that these species exist, making these habitats crucial for their survival.

Encouraging biodiversity in urban areas is also beneficial for our health, with more biodiverse greenspaces providing greater health and well-being benefits to urban populations. However, without intentional design and consideration of other species’ requirements we are in danger of creating a ‘sea of useless green’ that does not support a biodiverse and thriving ecology in cities.

Biodiversity Sensitive Urban Design (BSUD) is an approach to urban biodiversity conservation that aims to embed biodiversity considerations within planning and design frameworks in order to create built environments that support nature. BSUD is applied as a 5-step process that is best targeted at early stages of developing policy, planning or project design (Figure 1).

Katherine Berthon

Figure 1. The Biodiversity Sensitive Urban Design (BSUD)

In order to design spaces or infrastructure that will benefit biodiversity, the critical needs of the species/habitats involved need to be considered, and interventions implemented at different scales to meet those needs. For example, flowerloving insects, like bees, butterflies, and beetles, depend on provision of plant resources for food and shelter in cities. Their small size allows us to create habitat in the most unlikely of places and fulfilling their need for flowers also adds beauty that we can appreciate – a win-win for humans and nature.

Figure 2 Some flowering plants that Melbourne’s insects love.

But, just like us, insects can be picky with their flower choices. Planting a flowering garden bed for insects is a bit like putting out a flower buffet, if we don’t account for individual preferences, then we won’t get the picky eaters to come to the table.

If we want to apply BSUD to encourage more flower loving insects into a site, we have to consider the context in which the garden beds are being planted and whether insects will be able to access the site (Step 1). The kinds of flowers we choose are then dependent on our primary objective (Step 2) and we can choose plants by assessing how effectively they will support our objectives (Step 3-5).

To maximise insect diversity, planting a diverse range of native plants is a good choice. Native plants are more likely to provide useful resources and the more kinds we include, the higher

the likelihood of picking something for everyone. However, not all native plants provide the right resources, and there are several plants like native daisies (Brachyscome) and bluebells (Wahlenbergia) that provide for a larger number of species than you expect based on their floral density.

So, if we are trying to attract a particular species, we might still miss the mark if we don’t consider what exactly they prefer to eat, or the complex interactions they have with other species. Considering these requirements at the early stages of development allows us to set the right priorities and ensure we are building cities that allow for people and nature to thrive.

1 Garrard et al. “Biodiversity sensitive urban design.” Conservation Letters 11.2 (2018): e12411.

Katherine is an urban ecologist working for RMIT on integrating Biodiversity Sensitive Urban Design into urban planning. She recently completed her PhD investigating the flower preferences of pollinators in Melbourne CBD to improve greenspace design recommendations. Twitter: @CityKat | E-mail: Katherine.berthon@rmit.edu.au

Figure 2. Some flowering plants that Melbourne’s insects love

Conference

Applying an intangible heritage framework to socio-spatial use of built form

What makes a city feel ‘lived in’ and contributes to an ‘urban atmosphere’? And what role does built form, heritage and urban governance play in managing this? In addressing these questions, this research focuses on how people subvert and repurpose built form from its primary function into a place to sit, gather, hang out, rest, socialize, loiter and more.

Take for instances street curbs in a busy Melbourne laneway, the function of which can be that of its original, intended purpose – to separate the road from the footpath and control water runoff – as well as being (re)adapted into a place to sit and drink a coffee or hang out (see fig 1), inadvertently contributing to the liveliness of the laneway in the process. Likewise, at Melbourne’s Flinders Street station (see fig 2), the steps serve their primary function of moving people up the passage way, as well as being (re) purposed by people for generations as a place to sit, wait for a friend, protest, sleep etc. Instances of people subverting and repurposing built forms can be seen happening all over the city, and this process plays a significant (yet arguably, subtle) role in the urban atmosphere, contributing to the feeling of a city that is ‘lived in’.

Governing informal and adaptive socio-spatial practices (particularly those occurring within informal spaces and sites) requires, however, mediating competing interests that lay claim to that space. Heritage preservation is one of the key mechanisms that is designed to intersect this process and represent the informal cultural practices in need of preservation.

If we look however at contemporary heritage frameworks, cultural heritage is often split into a binary category of tangible and intangible heritage. Yet if we apply this to the case of spatial adaptation, such a process does not fit neatly into either category: the space that is being adapted could be classed as tangible, while the process of adapting the form is largely intangible

Yet the cultural output of repurposing the laneway curb however, or taking part in the quintessential Melbourne pass-time of ‘meeting a friend under the clocks’ exists at the nexus of both its tangible and intangible elements.

While it has long been understood that malleability and adaptability of public space, particularly intentionally built civic spaces, is very important, there is value in extending this thinking to include informal spaces and/or spaces that are informally readapted. This becomes particularly important when we think about spatial malleability from the lens of spatial justice. For canonical theorist David Harvey for example, the right to the city is “far more than the individual liberty to access urban resources: it is a right to change ourselves by changing the city” (Harvey 2008, emphasis added). To this end, the seemingly tacit or background process of adapting built form for alternative socio-spatial use is significant not only in terms of urban atmosphere, but also in terms of spatial justice.

How can we then safeguard informal use of space (and improve rights to the city through the use of built form)? We need to first further push and nuance heritage protection frameworks to better acknowledge the intersection between tangible and intangible heritage. Further, in considering the heritage of a site, planners, heritage professionals and city managers aught to consider how spaces are informally used and adapted (what else is a space beyond its original intended function?), particularly from the lens of spatial justice and equitable socio-spatial use type. Lastly, while we can, and should, ask ourselves when we design public spaces, why these sites are at times less appealing to parts of the public who then seek out alternative spaces to hang out (and adjust our approach to designing public spaces accordingly), we need to also acknowledge the value that these alternative, informal spaces hold often lies in their opposition to formal spaces. And as such the governance and planning approach should be about responding to these sites with flexibility and adaptability, aiming to maximise ones rights to (defining) the city and its spatial cultural heritage.

Reference: Harvey, D. (2008). The Right to the City. New Left Review, 53, 23-40.

Rachel is completing a PhD in urban geography at the Centre for Urban Research at RMIT University. She currently works at RMIT PlaceLab, a new living lab as well as research consultant and as a creative producer with a focus on tactical urbanism. E: Rachel.iampolski@rmit.edu.au

Rachel Iampolski

Figure 1. Drewery Lane and Figure 2. Flinders Street Station Steps. Source: Authors images

The Business Building in flood affected areas – why risk it?

David Ferris, Junior Consultant, kinetica

climate change, we need to see beyond this immediate aesthetic and consider it across multiple scales temporally and spatially.

Climate change has been described by ecologist and philosopher Timothy Morton as a hyperobject, an object so vast that it’s beyond our tangible understanding and can only be experienced indirectly through its effects, catastrophic events like the 2019 bushfires or the 2021 Queensland floods. This can lead us to a misguided aesthetic of climate change as being something that happens “over there” in discrete moments, when it needs to be understood as an omnipresent consistent force that extends to affect the lives of everyone at all times. To effectively plan for

The City of Melbourne is currently proposing to update its response to increased flood risk via Planning Scheme Amendment C384, which greatly increases the area affected by the Land Subject to Inundation Overlay (LSIO) and addresses how flood risk varies across the city. The previous modelling was based on a 1% Annual Exceedance Probability (AED) flood event, commonly known as a 1-in-100 year flood, an over-simplified metric that’s very limiting in how much flexibility is available when planning for flooding. With our city seeking increased development in flood risk areas, such as urban renewal precincts like Fishermans Bend, Arden and Macaulay which are projected to house up to 105,000 more residents and 123,500 workers by 2050, there needs to be a more responsive approach to climate change. The wholesale application of a 1-in-100 year event included the assumption that this metric does and should apply to all types of development across flood risk areas. This was limiting because the whole concept of climate change planning is about risk. With the formula for risk being likelihood X impact, our planning at a city-wide level only took likelihood into account, and only one likelihood

According to the Office of the Queensland Chief Scientist “There are often strong social and economic reasons for considering a higher standard than the 1% AEP flood. For example, in some locations flood levels associated with rarer floods are significantly higher and are likely to cause significant devastation”.

This more nuanced understanding has led some planning authorities to be more sensitive to the impact part of the formula, with some vulnerable areas of London moving to a 1-in-500 year flood metric, and the Netherlands adopting a 1-in-1000 year condition. At the other end of the time-scale, it might be more appropriate for some types of development to respond to less catastrophic floods and require different intervention strategies.

Over the time in which the 1% AED has been employed, design philosophies have shifted away from preventative design that tries to avoid climate change’s effects and toward more adaptive approaches that manage extreme weather and mitigate damages. Writing on new strategies being implemented in Mumbai, Anuradha Mathur and Dilip da Cunha suggest “An estuary demands gradients, not walls, fluid occupancies not defined land uses, negotiated moments not hard edges. It demands the accommodation of water, not a war against it.”

This shift has led Amendment C384 to include 10% AED modelling across areas of Melbourne that require a realistic understanding of how flooding will occur in places like Fishermans Bend, Macauley and Arden, with more frequent and comparatively less severe flooding.

Questions have been raised about the mechanism of these changes: requiring developments to have flood-risk evaluations individually will safeguard those specific buildings, but there’s scepticism that good planning can function at such a myopic level. Recent objections to Amendment C384 have highlighted that it pushes the responsibility of mitigating climate change effects onto the developer, when the issue needs to be addressed at a broader scale. Idealising having fully functioning buildings during floods doesn’t see the forest for the trees when considering how a flood impacts an entire district, with huge interruptions to transport and services leading Melbourne Water to estimate a $735 million annual cost from floods.

When considering the area covered by the LSIO, we need to prioritize planning for flooding at the macro level. A case-bycase assessment of permits asks the wrong question: it asks “How should a building perform in land subject to inundation?” instead of “How should land subject to inundation perform in relation to its buildings?” This change in perspective can open up conversations about how we organise coherent streetscape environments in urban renewal precincts that takes functionality during all events of flooding into account, and how these events effect everyone on a city-wide systemic level.

David is a graphic designer and landscape architect, with a focus on urban design.

A GROWING PRESENCE IN THE MELBOURNE LEGAL MARKET

MELBOURNE | SYDNEY | BRISBANE

Colin Biggers & Paisley strengthens its presence in the Melbourne market with the appointments of some of Australia’s top talent across a number of practice areas.

cbp.com.au

David Passarella is leading the Melbourne division of the national Planning and Environment Group who are pro-development and provide an end-to-end service for private developers and corporate clients.

The Business

The crisis in growth area development, and how to end it

Australia’s cities and regional centres are expanding at an alarming rate as low density urban sprawl condemns residents to inadequately serviced neighborhoods, long commutes, social isolation and environmentally inefficient housing. New residents are suffering the brunt of poor planning. There is no excuse for this.

Charter 29, a group of planning professionals, believes that the Precinct Structure Planning Guidelines released by the Victorian Planning Authority in October 2021 are inadequate to achieve the government’s objective to create new liveable suburbs and this will have profound consequences for the future functioning of Melbourne and regional cities. (The VPA is the statutory authority charged with overseeing the development of new outer urban suburbs in growth areas. It is responsible for producing Precinct Structure Planning Guidelines and the Precinct Structure Plans for new suburbs.)

In the March 2022 issue of VPELA Revue, Rachel Dapiran of VPA discussed recent work of the Authority and its role in enhancing the provision of infrastructure of their PSPs. Charter 29 acknowledges the co-operative relationship it has had with senior staff of VPA and the willingness of staff to have regard for Charter 29’s position and recommendations.

Charter 29 has prepared three reports on the topic of outer urban growth and development (see www.charter29.com). The third Report “Alternative Precinct Structure Planning Guidelines – how to create sustainable communities in Victoria’s growth areas” released in June this year describes an alternative set of guidelines along with a streamlined process for design, approval and development.

This third Report describes a set of guidelines aimed at stimulating debate on the future planning of growth area suburbs around Melbourne and in regional Victoria. These alternative guidelines are intended to assist local government, the development industry, architects, planners, the State government and communities in planning for better neighbourhoods.

The VPA’s Precinct Structure Plan Guidelines

Charter 29 believes that the 2021 PSP guidelines address some failures of earlier versions, but many problems remain. The Guidelines omit much that remains essential, particularly mandatory requirements for density, housing types in different locations, solar orientation, and for movement and place. The need for street focused activity centre design and relationships with workplace, transport and housing is absent, undermining existing policy and a particular provision which seeks to achieve street-based centres.

Positively, the Guidelines increase residential densities slightly, three types of housing are proposed, some ‘movement principles’

are included, and other elements such as sequencing, infrastructure and service provisions are mentioned. The layout incorporates a hierarchical order, from structure plans, policies, principles, application to PSPs and performance targets. Also, some quantified, measurable standards are included. However, none are mandatory and many important issues are noticeably absent, particularly mandatory housing and lot design and orientation standards, retail street-based centres and requirements for road networks integrated with housing, retail centres and community hubs.

A well-designed house with zero lot lines has north-facing living and outdoor areas on a smaller site. (sketch by Geoff Falk, architect).

Jim Holdsworth

ALTERNATIVE PRECINCT STRUCTURE PLANNING GUIDELINES

How to create sustainable communities in Victoria’s growth areas

Townhouses face a multi-purpose communal space (sketch by Geoff Falk, architect).

It is evident that development companies have shown a propensity to capitalise on the use of vague and discretionary language in state government intentions, and the new Guidelines continue this practice. For example, that a PSP ‘should facilitate’, “set a minimum target” to achieve objectives; that measures “should provide” for outcomes, and “provide a supportive context” for preferred land uses, and leave the door open for a developer to have greater design control.

Similarly, PSPs are ‘deliberately flexible’ but ‘provide certainty’ as a guide to subdivision and the delivery of other structural elements. The new guidelines do not show how flexibility can be certain.

Charter 29 acknowledges that there is much value in the new PSP guidelines outside the urban form issues which are the primary focus of Charter 29. Examples aimed at achieving ‘liveable suburbs’ include the provision of walkable and safe cycling networks through ‘a high amenity, safe accessible direct and comfortable walking and cycling environment’; local recreation spaces and facilities to provide a ‘high-quality public realm’; and areas of environmental and biodiversity value. However these often require much more detail on implementation and coordination with other structural elements to be useful.

Charter 29 has three main concerns with these Guidelines

The first is the urban form of new outer urban areas, with particular emphasis on design and subdivision layout.

Key issues in the two Charter 29 reports prepared to date are the need for: diverse and affordable housing; streetbased activity centres; housing design oriented north for sunlight access; improved road design better linking people to activity centres and services; public transport that connects people to centres, services, employment and rail stations.

The second is the need for mandated requirements to replace the discretionary approach in the current PSP Guidelines to ensure compliance with acceptable standards by a development industry which has consistently built some of the world’s worst performing outer urban suburbs.

Effective governance procedures for ensuring compliance of subdivision plans with provisions are also omitted. The guidelines rely on the current failed statutory tools such as clause 11.03-25 and Direction 12. They continue with the ‘Generally in accordance Guidelines April 2020’ for compliance of subdivisions with the PSPs. However, the VPA is working on a ‘new amenity-based density model’, how to ‘best guide’ town centres, and how to ultimately reach a density of 25 dwellings per hectare ‘when it is ready’.

The Guidelines include an ‘Innovation Pathway’ which will be considered for PSPs ‘when there is a place-specific opportunity to achieve a significantly enhanced outcome that requires substantial deviation from either a performance target/s or approval process or both’. While a positive step, no methods are provided to assess whether such an approach will achieve superior outcomes to the provision of mandatory requirements.

The third is the fragmented and ineffective strategic and statutory approvals process for new outer suburbs.

The current process ultimately transfers power and control to development companies and planning panels, disempowering the VPA and local government while ultimately transferring control away from strong policy and regulation to legal practitioners. Charter 29 believes that the VPA should be made responsible for integrating all elements of the strategic and statutory planning of new suburbs in ways that redress the imbalance of power between the State government and local government.

The current approval process, from land zoned for urban growth to a fully developed and occupied community, is clumsy and inefficient and leads to a sub-optimal outcome for new residents. The multi-step process results in increased costs to

Precinct Structure Plans in action: Mickleham (source: Nearmap).

Urban Structure Diagram (Charter 29).

developers, higher house and land prices and a lack of essential services such as local shops, effective public transport at the time of occupancy, schools and a completed road network when residents move in. The media has recently highlighted the distress of residents in new estates where these shortcomings are all too evident. The sequencing of development and the absence of essential services in new estates are failing these people.

A less contorted process, overseen by a single agency charged with managing the co-ordination of all players, would produce less costly land quicker.

The use of discretionary controls is becoming more common in planning in Victoria. This leads to lowest common denominator outcomes on the ground. Clauses 54, 55 and 58 of planning schemes include mandatory requirements; these and Objectives serve as precedents for the use of mandatory requirements. A similar structure, of mandatory and measurable Objectives and Standards should be applied to the PSP Requirements.

What’s going wrong in the growth areas, and what Charter 29 believes needs to happen

Overall, development in growth areas continues to be rolled out with scant regard for the multiplicity of government policies, objectives, strategies and guidelines. Solution: Introduce a shortlist of essential, mandatory rules, and monitor compliance and implementation.

In terms of Urban Structure and Transport, growth areas are mostly built around a 1.6km grid of multilane highways with little provision for inter-suburb public transport and too few walkable destinations. Solution: Plan growth areas around a grid of high frequency, highspeed inter-suburb bus routes and locate a wider variety of activities in concentrated town centres.

In terms of Activity Centres, these provide only a limited range of retail and other services, are not true and comprehensive community centres, and are disconnected from their residential catchments. Solution: Change the development model of drive-to centres with street-based town centres which provide a full range of jobs, services and facilities and are accessible by other than car and bus.

In terms of Residential Areas, most dwellings lack a decent back yard, are not readily accessible to essential daily needs and fail to meet best practice environmental, solar and energy efficiency standards. Solution: Provide greater housing choice, increase densities close to town and local centres, link site orientation to dwelling type and design, and strengthen mandatory environmental requirements.

In terms of Co-ordination, no government agency is responsible for co-ordinating the planning and development of growth areas, and local government is left to work with that is built. Solution: give a single government agency full co-ordinating powers,

simplify the planning and development process through fewer and mandatory requirements, and give real power to local government.

Finally

Charter 29 continues to promote its research and findings and welcomes debate and feedback. The November State election provides the opportunity for a new start in the design and development of new communities, and a significant change in the way Government approaches the challenges of delivering high quality outer urban living.

The members of Charter 29 are:

Michael Buxton BA, DipEd, BEd, PhD, Hon Fellow PIA

Michael is Emeritus Professor Environment and Planning, RMIT University, and former head of the RMIT planning and environment program.

GeoffreyFalkBArch,Reg’dArch(Vic),MAIA, MAustAssnArchIllustrators

Geoffrey has been a practicing architect since the early seventies, designing climate-sensitive, sustainable buildings. He is also a practicing artist and illustrator.

JimHoldsworthBArch,Reg’dArch(Vic),HonFellowPIA

Jim is an architect and urban designer with wide-ranging experience as a consultant to the private sector and to State and local governments, and as a senior officer in local government.

MikeScottBA(TP)Hons,FPIA

Mike has had senior positions in Victorian Councils, including the City of Melbourne at the time of the 1985 Strategy Plan. In 2001 he co-founded the consultancy Planisphere.

SteveThorneBA,BAS,BArch(Hons),MA(UD),MPIA

Steve is Director of Design Urban Pty Ltd. He has worked in the private and public sectors and held various positions including Director of Urban Design (Victorian State Government) and Principal Urban Designer (City of Melbourne).

Charter 29’s three Reports are on the website: www.charter29.com

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VPELA Masterclass Sessions

The annual YPG three part masterclass series was held over June and July this year, and happily for the first time since 2019, all three masterclasses were held in person.

On top of catching up over wine and classic VPELA arancini while enjoying the views of the city lights over the Birrarung Yarra River from the Tract offices, the masterclass series was a great opportunity to hear from industry professionals on lessons learned, highlights and advice from their varied careers.

Masterclass #1

The masterclass series commenced with a discussion on ‘working in a team – communication and building trust’ by a panel made up of Ann-Maree Drakos (Legal Counsel – Planning, City of Melbourne), Eliza Minney (Principal Lawyer, Best Hooper) and Mia Zar (Principal Planner, Tract) and chaired by Zac Von Grondelle (Co-ordinator – Statutory Planning, Surf Coast Shire).

Sharing stories from days as junior planners and lawyers up to leaders in their organisations, the Panel emphasized the importance of communicating thoughtfully not only with your colleagues and clients, but also your ‘opposition’. While much of planning is inherently adversarial, being able to cooperate with your industry colleagues will always make the process smoother.

The panel’s willingness to share stories of their mistakes or times where they have felt out of their depth was appreciated. As young professionals it can sometimes feel like if a client asks you a question you should be able to answer it, but the panel showed that you can build trust not through pretending you know all the answers, but instead being a person who shows that they can find someone who does.

Further, sometimes it can feel like mistakes are the end of the world, but the panel showed that in the end can be way of building trust as a team. One way to do this is having regular team sessions where ‘what went wrong’ is discussed, not as an exercise in naming and shaming, but instead as a way of promoting mistakes as a learning opportunity rather than an individual’s failure.

Masterclass #2

The second of our three-part series tackled the tricky topic of “Dealing with failure: learning from constructive criticism”. Led by our trusty panel of industry experts – Colleen Peterson (CEO, Ratio Consultants) Carlo Morello (Director, Traffix Group), and Hubert Algie, Solicitor, King & Wood Mallesons, and chaired by Emily Mignot (Senior Town Planner, Tract Consultants); the panel navigated these challenging themes with aplomb, authenticity and humour.

Sharing insights from their own experiences finding their way in the professional world; the panel were united that developing an ability to take on feedback in a meaningful and constructive way was at the core to genuine growth. When receiving feedback, the panel reflected on the importance of remembering where it might be coming from, and putting comments into context.

To start the session, Carlo guided us through a mindfulness exercise, to bring us back into the present and remind us of the importance of being present and keeping a healthy perspective. Tools like mindfulness practice and exercise (and trying to keep some balance in life) are helpful to manage the stresses and challenges we can face at work, build resilience, and put ourselves in a better position to respond effectively.

Key takeaways from masterclass 2 were:

· Everyone is human, no matter whether they are a Director or a CEO, and sometimes if you are unsure or confronted in the first instance, taking time to let things settle can be the best approach. This allows any initial emotion to subside, and clarity to return to approach things in the right frame of mind.

· Mistakes happen and this is a natural part of your career journey. Learning how to deal with mistakes and move on from these experiences is the key, and if you are able to develop techniques to listen well and apply feedback this will provide a robust foundation for professional growth.

· If you need to follow up on something that was said to help better understand, give the person some notice and schedule a time to discuss. This will give them time to prepare – giving feedback is difficult, too!

· When receiving feedback, keep in mind that someone is ultimately trying to impart knowledge which will help you improve. Although it might feel uncomfortable, and can be easy to slip into taking things personally, looking at these times as ‘opportunities’ through the lens of professional development can be helpful to maintain perspective.

· Develop mentors. When you face challenges, it can be helpful to have someone to talk things through, and hear an outside view to see things more clearly. They can be from within or outside your industry. Find someone you trust, who is able to be objective, and can allow you to hear things in a different way so you can process more productively, rather than getting stuck in the ‘venting’ stage.

· There is a time for feedback and a time for action. Finding a balance between the two is key to improving, and showing someone (rather than telling them) to demonstrate you have understood can be the most powerful way to pick yourself back up and move forward. Coupled with active listening – this is the key to working through the mistake cycle and getting back on track.

Emily Mignot, James Cossins, Zina Teoh

Masterclass #3

The third and final of our three-part series delved into the topic of “Climbing the Ladder – Mentoring and Delegating”. The session was run panel of industry experts including Matt Hughes (Senior Associate, Hall & Wilcox), Natasha Swan (Director of City Development, Banyule City Council) and Vicky Grillakis (Associate Director, Urbis). Chaired by Lina Inglis (Associate, Ratio) the panel ran through tips for transitioning into a more senior role and the process of delegating and mentoring junior staff.

Throughout the session the panel ran through a number of topics for that transition into a more senior role. The panel shared a number of different stories through their own experiences as both junior staff and once they had transitioned to senior roles within their own fields.

Some key takeaways from the session were:

· Delegating is not a one-way street – be prepared and ask pointed questions. It is important to have an understanding behind what and why you’re delegating. Why is it important and why does it need to be done?

· Treat an internal promotion like an external interview for a new job. Make sure you are prepared and never assume the interview is just a ‘formality’.

· Don’t just seek feedback from seniors in your workplace. Although it can be tough, 360-degree feedback can be so important. Seeks feedback from seniors, peers and juniors to get the whole picture of your leadership style and where you can improve.

Our panel left a closing message for attendees: “If you want to go fast, go alone. If you want to go far go as a team”

Final thoughts

While each of the topics of the series prompted lively discussions, advice and reflections from the panellists, the best part of the sessions was definitely the honesty and candidness of the panellists. It’s this kind openness from leaders that helps young professionals to understand what it takes to become leaders throughout their careers, and something that has likely been lost a bit in the virtual world of the last 2.5 years. That, and the opportunity to see friends and colleagues in 3D.

EmilyMignot(SeniorTownPlanner,Tract),JamesCossins (SeniorTrafficEngineer,TraffixGroup)andZinaTeoh(Senior Associate, Maddocks)

The Business Planning compensation after the Brompton Lodge decisions

The Victorian Supreme Court’s decisions in recent litigation involving a planning compensation claim under sections 98(1)(a) and 106 of the Planning and Environment Act 1987 (Vic) (PE Act) by Brompton Lodge Pty Ltd1 (Brompton Lodge Cases) emphasise the need for caution when drafting contracts of sale involving the allocation of planning compensation.

The Brompton Lodge Cases also demonstrate that where planning compensation is allocated to a purchaser, before awarding planning compensation, Acquiring Authorities and Courts will interrogate all the circumstances surrounding the sale, including contracts of sale and related agreements, the actual sale price and the negotiations between the contracting parties.

Background

The Claimants owned approximately 103 hectares of land at Cranbourne South (Brompton Land) purchased between 1966 and 1984.

In January 2016, a strip of the Brompton Land was reserved for future widening of the Western Port Highway under a Public Acquisition Overlay (PAO) in the City of Casey Planning Scheme.

In January 2018, the Claimants sold the Brompton Land to 1050 Western Port Highway Pty Ltd (Purchaser). The Purchaser was a company closely associated with development company Urban Development Investments Australia Pty Ltd (UrbanD). The claimants had previously entered into a Development Agreement with UrbanD in 2013 for the development of the Brompton Land following its re-zoning into the Urban Growth Boundary.

The Brompton Land was sold to the Purchaser for $55 million under a contract of sale signed on 8 January 2018. The contract released the Claimants and UrbanD from their previous

obligations under the Development Agreement and assigned all the proceeds of any compensation claim for the reservation to the Purchaser.

The Claimants claimed planning compensation for a loss on sale for approximately $25 million. This was rejected by the Acquiring Authority. The Claimants lodged a disputed claim in the Supreme Court.

Link between reservation and financial loss on sale

The PE Act provides rights for some owners and occupiers of land to claim ‘planning compensation’ prior to the actual acquisition of land for a public purpose.

Under section 98(1)(a), compensation is claimable where an owner or occupier has suffered financial loss as the “natural, direct, and reasonable consequence” of land being reserved for a public purpose.

Section 106 of the PE Act provides that compensation is payable under section 98 after the sale of land, if the land has sold at a lower price than would reasonably have been expected if the land had not been affected by its inclusion, or proposed inclusion, in a PAO. Brompton Lodge’s claim was made under these provisions, so the Claimants were required to demonstrate that –

· their financial loss was suffered as the natural, direct and reasonable consequence of the land being reserved for a public purpose; and

they sold the land at a lower price than they might reasonably have expected to get if the land had not been reserved.

Tom Crompton and Kian Rafie, King Wood Mallesons

Garde J’s rejection of the claim

Justice Garde acknowledged the land was sold substantially below market value but rejected the claim on the basis that the necessary causal link between the reservation and the financial loss had been broken.

The Court of Appeal’s decision

The Claimants appealed to the Court of Appeal, which upheld Justice Garde’s decision and confirmed that -

· the right to compensation under s 98(1)(a) is governed by whether an actual financial loss was suffered at the date of the refusal of the planning permit application, as a natural, direct and reasonable consequence of the reservation;

· the financial loss must have “a very close and limited connection” to the event giving rise to compensation, which requires consideration of the proper cause of the actual loss;

· the measure of loss must be referenced by all the circumstances, including any agreements relevant to the sale, the surrounding commercial negotiations and the actual sale price of the land, rather than hypothetical valuations.

The Court of Appeal confirmed that the Claimants had sold their right to planning compensation to the Purchaser. Therefore, there was no ‘loss on sale’ to the Claimants under section 106(1) of the PE Act.

Key implications from the Brompton Lodge decisions

Often, the vendor will be the only party entitled to make a claim for planning compensation.2 As the compulsory acquisition of the reserved land may be some years away, the parties to a land sale transaction may see commercial value in triggering a planning compensation claim in the vendor’s name and the vendor assigning the proceeds of that planning compensation to the purchaser.

Following the Brompton Lodge Cases, vendors and purchasers engaged in those kinds of negotiations should be mindful that Acquiring Authorities will use their document inspection powers to investigate whether this has resulted in the vendor effectively selling its right to planning compensation to the purchaser, such that no loss has been suffered and there is no entitlement to planning compensation for either party.3

Therefore, where planning compensation is allocated under a contract of sale, the parties should be aware that the Brompton Lodge Cases may affect the validity and utility of these kinds of compensation allocation provisions.

Tom Crompton is a Special Counsel and Kian Rafie is a solicitor in the Planning and Environment team of King & Wood Mallesons.e Rafie, Kian (AU) Kian.Rafie@au.kwm.com

Footnotes

1 Brompton Lodge Pty Ltd (in administration) & Ors v Head, Transport for Victoria & Anor [2020] VSC 797 (Garde J) and Brompton Lodge Pty Ltd v Head, Transport For Victoria [2021] VSCA 302 (Court of Appeal).

2 As owner when the reservation is imposed.

3 Under s 106 of the LAC Act.

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The Business

One person’s heritage is almost always another person’s property

Heritage controls, the question of who should pay for the diminution of property value and for the landowner’s responsibilities

1. The following is a synopsis of a Paper delivered to the Law Institute of Victoria in March 2020 dealing with the tension between heritage conservation and individual property rights based on my involvement with Festival Hall.

2. Festival Hall, as it has been known since the 60’s, was constructed in 1955 following an electrical fire in its predecessor “the Stadium”. The Stadium was built by Snowy Baker in 1913 on behalf of a Sydney based sporting and theatrical entrepreneur, H.D. McIntosh. Baker had played rugby, rowed, and boxed at Olympic and elite levels and became involved with McIntosh as a referee after he purchased Rushcutters Bay Stadium in 1912. In May 1915, Stadiums Limited, a company formed by my grandfather John Wren, purchased three venues from McIntosh being the Melbourne, Sydney and Brisbane stadiums.

3. The Melbourne stadium was described at the time of its opening in October 1913 by The Age newspaper:-

“The building is oblong in shape, its dimensions of 165 feet x 300 feet, and seating accommodation is provided for 12,000 people. The outer walls are of brick, within which, on the four sides are tiers of seats sloping down to the area, and so arranged that an unobstructed view of the ring is obtained from any part … the entire building will, when finally completed, be covered by a louvred roof, which will afford excellent ventilation … Everything has been carried out on the same complete lines that has made the Sydney stadium so popular.”

The construction took six weeks and was opened with a boxing match between Huey Mehegan and Matt Wells in front of a crowd of 10,000 people. Interestingly, between 1917 and 1921 the Stadium remained unused for boxing and was used for the storage of wool. Over its lifetime, it saw a number of world famous fighters and performers including Johnny Ray, Gracie Fields, Frank Sinatra, Nat King Cole and Ella Fitzgerald. It was used for political rallies and stop-work meetings for engineers, building workers, waterside workers and the Tramways Union.

4. In January 1955 the Stadium was burned to the ground. The building was uninsured. My grandfather died in October 1953 following the magnificent grand final victory over Geelong of his beloved Collingwood. He died in the same week as Jock McHale Senior – they both suffered heart attacks after attending the game. My uncle, John Wren II and my father Joseph were the then directors of Stadiums Pty. Ltd. My father wanted to sell the property after the fire but was overruled by his older brother who was the chairman of the company and a larger shareholder.

5. The new building was completed in October 1956 in time for the Olympic Games. It was built along the lines of the earlier building as with the location and footprint of the stage on the north side. The plain and utilitarian design was no doubt influenced by the short construction period as it was completed 20 months after the fire. At its opening, “thousands of eager fight fans stormed the new West Melbourne Stadium … but many of them did not get in”, with 8,000 patrons inside for the bout between George Barnes and Italian Champion, Bruno Visintin. The Stadium was the venue for the 1956 Melbourne Olympics with boxing and gymnastics events held in November and December.

6. Festival Hall hosted musical and theatrical performances as well as sporting events from its opening. It was one of a small number of venues that could accommodate larger local and international tours with the Sidney Myer Music Bowl and Dallas Brooks Hall also hosting live musical acts. It also held tennis matches, had American evangelists preaching and has been used for political meetings including strikes by General Holden employees and a rally as part of Gough Whitlam’s campaign in 1975.

7. It has seen Liberace, Johnny Cash, The Beatles, Bill Halley, Billy Joel, Sherbet, Queen, Frank Sinatra and many more.

8. As a venue the Hall can accommodate approximately 5,500 patrons standing with a lesser number in seated configurations. With the advent of mega stars touring Australia, venues such as the MCG, Kooyong and Docklands started to draw large crowds rather than having the multiple shows that The Beatles performed in 1964.

9. With the Rod Laver Arena and then the Margaret Court Arena (capacity 7,500) being constructed and funded by the public purse, Festival Hall ceased being the main venue promoters could use. Margaret Court Arena opened in 2014 and the following year Stadiums recorded a significant loss. Since then, Stadiums just managed to stay afloat, but had to seriously look at the longevity of the business.

10. That led to the making a permit application in 2017 for the redevelopment of the site having concluded it was no longer viable. Stadiums faced rates and land tax expenses in the order of $350,000.00 per annum, whilst having to compete with publicly funded venues that are new, airconditioned, larger and have trams running directly out the front. I drew the analogy with an old boxer being beaten to the canvas by his younger, bigger, stronger and faster opponent.

11. Following the permit application, Festival Hall was nominated to be registered on the Heritage Register whilst concurrently the City of Melbourne was considering the West Melbourne Heritage Overlay Amendment that included the site.

Chris Wren KC

12. In May 2018, the Executive Director advised that he was recommending to the Heritage Council to including Festival Hall on the Victorian Heritage Register as a place of Statelevel cultural heritage significance. On the same morning, the Minister for Planning hastily convened a press conference at Festival Hall and in front of Channel 9 television cameras gleefully announced to the world what a wonderful thing had occurred and that Festival Hall had been “saved”. The Premier’s social media carried similar joyous sentiments about one of “Melbourne’s icons”

13. The recommendation contained the following descriptions:-

“What is at the Place?

Festival Hall is a large, unadorned, rectangular indoor sporting and entertainment stadium in West Melbourne. The building is constructed of steel frame infilled with brick and precast concrete panels. Internally, the stadium comprises a central timber floor with a simple stage to the north, tiers of seating to the west and east, and a balcony to the south.”

Statement of cultural heritage significance –

What is significant?

Festival Hall at 272 – 306 Dudley Street, West Melbourne, including the external form and fabric and the following internal features:-

• the volume of the internal space.

• the central timber floor.

• the tiered seating to the west and east, including the early rows of steel-frame timber bleachers to the east and west and rows of theatre-like balcony seats to the south.

• the location of the northern stage.

• the balcony to the south.

• highly intact original amenity areas.

How is it significant?

Festival Hall is of historical and social significance to the State of Victoria. It satisfies the following criteria for inclusion in the Victorian Heritage Register:

Criteria A –

Importance to the course, or pattern, of Victoria’s cultural history.

Criteria G –

Strong or specialist association with a particular community or cultural group for social, cultural or spiritual reasons. This includes a significance of a place to Indigenous peoples as part of their continuing and developing cultural traditions.

Why is it significant?

Festival Hall is significant at the State level for the following reasons:

Festival Hall is historically significant as Victoria’s principal purpose-built boxing and wrestling venue. Since the late nineteenth century, boxing has been a highly popular

spectator sport in Australia attracting crowds in the thousands with many more watching televised matches since the 1960’s.

Festival Hall – and the 1913 West Melbourne Stadium that it replaced – was the home of Victorian boxing throughout much of the twentieth century, earning it the name “The House of Stoush”. Festival Hall hosted the boxing and gymnastics for the 1956 Olympic Games and was the venue for bouts of key national and international athletes including Lionel Rose, Johnny Famechon, Anthony Mundine, Lester Ellis and Barry Michaels. Festival Hall was the venue for the televised “TV Ringside” (1966 – 1975) and “World Championship Wrestling” (1964 – 1978) and hosted Lionel Rose’s State Funeral in 2011. Festival Hall remains as the only purpose-built boxing and wrestling venue in Victoria. [Criteria A].”

Festival Hall is historically significant as one of Victoria’s primary live music venues since its opening in 1955 and is the principal venue in Victoria for large-scale music performances from the late 1950’s until the 1980’s. Festival Hall played a key role in the social evolution of Victoria’s society in the post-war period by exposing thousands of patrons to the “new wave” of big production live music. Festival Hall hosted some of the biggest national and international acts of the day including The Beatles, Buddy Holly, Neil Young, The Kinks and Frank Sinatra. [Criteria A]

Festival Hall is socially significant for its association with the live music industry in Victoria. The Association between Festival Hall and the Victorian live music community is particularly strong due to the length of the association and close relationship between the place, the live music community and the establishment and growth of the live music industry in the State. [Criteria G]

Festival Hall is socially significant for its association with the boxing and wrestling community in Victoria. As the site of Victoria’s principal boxing and wrestling venue since 1913, the association between Festival Hall and the boxing and wrestling communities in Victoria is particularly strong. While the use of the place for boxing and wrestling has declined since the 1970’s, it remains affectionately known as “The House of Stoush” and continues to be used by the wrestling community for events. The association between the place and boxing community has more recently been celebrated with Festival Hall being the venue for champion boxer Lionel Rose’s State Funeral in 2011. [Criteria G]”.

14. Stadiums Pty. Ltd. then had to compete with State funded bigger venues (Margaret Court Arena etc.). The building was then 65 years old. Some less kind reviewers referred to as “Festering Hall”. Michael Gudinski called it a “loveable shithole”. Its acoustics can’t be said to be great. Its comfort level is spartan. Its air-conditioning is questionable. Its plumbing requires the attendance of a plumber at each concert. It was not included in the Register because of any suggestion of architectural splendour or aesthetic quality – indeed the Executive Director concluded that it did not display any aesthetic characteristics. It has no car parking. It is some distance from public transport. It is increasingly being surrounded by residential development and is starting

to receive noise complaints from those residents. Is it likely that council would grant a planning permit for its use today based on those qualities? I doubt it.

15. Apart from some minor building works that the Executive Director has exempted from requiring a permit, Stadiums could not do anything to the Hall without Heritage Victoria’s consent. Once a place is registered Part 5 of the Act provides that a permit can be issued for works. Sections 87 and 88 prescribe undertaking any removal, relocation, demolition, damage, development or alteration to any part of a registered place either knowingly, recklessly or negligently. The penalty for a natural person of knowingly undertaking such works is 4,800 penalty units or approximately $800,000.00 fine, whilst a body corporate would be up for approximately $1.6M.

16. For what? It is said that this building, with no aesthetic characteristics or architectural merit, represents a cultural and historic icon for the public. At whose cost? Stadiums Pty. Ltd. was then the custodian and guardian of the public’s asset and couldn’t do anything with the building unless it could persuade the Executive Director that such works would not diminish the cultural significance of the place.

17. The mechanism of imposing heritage controls either via the Overlay process at a local level or via the Heritage Register is the imposition of a restriction on development and to some extent use of private property without compensation being provided to the owners. This is said to be “in the public interest”. It is the equivalent to the imposition of a restrictive covenant.

18. Section 51(xxxi) of the Constitution confers upon the Commonwealth Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to:-

“The acquisition of property on just terms for any State or person for any purpose in respect of which the Parliament has power to make laws.”

No such provision applies to the States.

19. What happens when proprietary rights of a person are restricted but not acquired?

20. The High Court considered the Commonwealth’s taxation powers in Mutual Pools and Staff Pty. Ltd. v Commonwealth of Australia (1994) 179 CLR 155. Deane and Gaudron JJ made the following observations:-

“For there to be an “acquisition of property”, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of property. On the other hand, it is possible to envisage circumstances in which an extinguishment, modification or deprivation of the proprietary rights of one person would involve an acquisition of property by another by reason of some identifiable and measurable countervailing benefit or advantage accruing to that other person as a result. See, generally, the Tasmania Dam case (1983) 158 CLR at 283 – 284. Indeed, the extinguishment of a chose in action could, depending on the circumstances, assume the substance of an acquisition of the chose in action by the obligee.

21. Then Chief Justice Robert French AC in a paper delivered to the Planning Institute of Australia’s National Conference in March 2013 dealt with “Property, Planning and Human Rights”:-

“Property rights in Australia are protected by the Constitution to the extent that acquisition of property by the Commonwealth must be on just terms. There is no such Constitutional protection in respect of the acquisition of property by State Governments or authorities under State law. Nevertheless, each of the States and Territories has laws providing for the acquisition of land for public purposes or public works and for compensation to be paid to the owners of acquired land.

Acquisition is not the only way in which property rights can be affected by the exercise of public power. They may also be affected by “acts of government that do not directly or formally touch the property in question, but which nevertheless damage its value and enjoyment”. This is what is sometimes called “injurious affection”.1

Compensation for compulsory acquisition and injurious affection by State or Territory governmental action depends upon statute law. The question arises why is such compensation provided for by parliamentary enactment when it is not constitutionally required? One answer is that respect for property rights is a deeply embedded aspect of our legal tradition. It is also an aspect of our culture. It was reflected in the film “The Castle” and the immortal line “Tell them they’re dreaming”.”

22. Ian Callinan QC in an article in The Australian newspaper of 3 January, 2008 entitled “For the sake of heritage, the buck must stop somewhere” observed:-

“… what might be the major new legal issue in the coming years, and the capacity of our system to deal with it.

I see the cost, and who should bear it, of environmental, town planning and heritage measures as the most likely candidate. I have heard it said that if you wish to do your neighbour a bad turn, apply to have their property heritagelisted. This, I emphasise is not an argument against heritage listing. It is just a plea for sharing its financial burden. A heritage listing can only be made in an actual or supposed public interest. As the listing comes at a cost, the public, as the beneficiary, should logically bear it.

Increasingly, planning laws are highly restrictive. No doubt some of them are in the enlightened self-interest of the landowners affected by them. But this is usually not so. Those landowners are precluded from unlocking the financial potential of their property. Rarely are they given any right to compensation.

It is a legitimate question: would proper compensation be available for the consequential involuntarily reduction in value to freehold owners? I rather fear it will not. Yet I have heard it suggested that financial incentives will be available to those who plant trees.

The reluctance of governments to provide for compensation, and of the High Court to acknowledge that an erosion of property rights for the benefit of others does constitute a taking in an era of increasingly intrusive legislation, is a matter that urgently needs addressing.

Not just adjacent people but also the public generally always do acquire something of value when another person’s right to use their property in a way that would not cause a legal nuisance is reduced. English law has long recognised restrictive covenants, agreements by which an owner agrees not to exercise a lawful proprietary right in order that a neighbour may have an enhanced enjoyment of their property.

Not surprisingly, restrictive covenants can be worth a great deal of money. There is a clear analogy between the legislatively imposed involuntary restriction on a landowner and one given for value and noted on the title.

Each is equally a matter of public record and has all other relevant qualifications in common. Yet under Australian law rarely does the former give rise to a right to compensation.

If, as heritage and other authorities often contend, a listed property does have economic potential as such, and the owner thinks differently, why should not the owner have the right to require the authority to buy the property and then make good its contentions of valuable utility, either itself or by leasing it to someone who can?

Laws to that effect have the further salutary result of discouraging excessive and indiscriminate listings.

Restrictions on reasonable usage, obligations of preservation, insistence on expenditure for no or little return, and on planting or replanting, are all potentially expensive. I see the crafting of a means of ensuring a fair and equitable sharing of this expense as a real challenge to the legislatures and the courts, including the High Court as the constitutional court, for 2008 and beyond.”

23. The Heritage Act 2017 unfortunately did not take up the former High Court Justice’s invitation.

24. In a case dealing with the partial demolition of The Palace Theatre in Bourke Street, the Tribunal consisting of Senior Member Wright QC and Member Wilson observed:“126. Acknowledging the value of the live music industry to the Victorian economy, we question whether it is appropriate to use heritage controls to preserve a venue that contributes to the viability of an industry. We agree with the findings of the Tribunal in Hunt Club Commercial Pty. Ltd. v Casey CC [2013] VCAT 725, that town planning does not, subject to a locational and spatial perspective, involve itself in the operation of a competitive market economy in which property can be lawfully used and developed.”2

25. The State has spent hundreds of millions of dollars in developing the Tennis Centre including the Margaret Court Arena with its lovely roof. No such offer of expenditure or indeed acquisition of the site was forthcoming from this government, who so gleefully welcomed its inclusion on the Register. Its demise as a music venue was imminent having regard to the Directors responsibilities under the Corporations Act. The government funded Festival Hall’s opposition whilst charging land tax whilst one of its instrumentalities now dictates how this site may be redeveloped.

26. Stadiums Pty. Ltd. had a number of valuations undertaken by the leading valuers and agents. Each valuation considered the property with the above heritage restriction and without it. The difference was in the order of $10M.

27. Hence the cost to shareholders of having to “conserve” this “loveable shithole” is borne, not by the public, not by the State government nor the Heritage Council but the landowners. The State government has not put an e-tag toll across Dudley Street in front of the premises as a “memory toll” for everyone going pass to celebrate their experiences within the shell of the building they are passing. Do ordinary people really give a toss? Do they feel warm and fuzzy every time they go pass the blank façade of the building? I think it is highly unlikely.

28. I share Callinan J’s view that Heritage is out of control. It is a contagion not dissimilar to the current coronavirus and is unchecked. The weaponization of heritage is said to be in the “public good” and yet the public makes no contribution to the appropriation of the heritage restrictions it seeks to impose on other persons properties.

Chris Wren KC, retired, VPELA Fellow and past Vice President and Richard J Evans Award winner.

Footnotes

1 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 at 622 [33 – 34].

2 Jinshan Investment Group Pty. Ltd. v Melbourne CC & Ors. [2016] VCAT 726.

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