VPELA Revue (June 2020)

President

The last time I wrote this column, coronavirus was something being experienced only in China, we were able to physically attend Council meetings, VCAT hearings, Panel hearings and meetings with clients; many were returning from summer holidays and looking forward to another year of strong economic growth…, and I had never heard of Zoom.

Wow. What a quarter

While so much of the last few months has presented us with huge seemingly insurmountable challenges, there are also so many positives to reflect upon – even at this relatively early stage of what looks like being something we’ll have to settle into for the long haul. I have heard lots of people talk about feeling more connected with their teams and workplaces. For example, because during isolation, their workplaces have set up regular meetings with the team, run trivia quizzes and have shared, sometimes daily; perhaps, stories about their pets/children/ houses/cooking/hobbies.

Within the planning profession, some leaps forward have been possible as a consequence of these grossly unusual circumstances. Some municipalities have received electronic permit applications for the first time, others have embarked upon streamed, virtual Council meetings, requiring a show of hands over zoom as Councillors cast their votes concerning proposals.

VCAT has had to contemplate bringing forward years of digital strategy to enable the workings of the Planning and Environment Division to continue, following VCAT’s closure at the outset of the distancing requirements in March.

At VPELA, we have also fronted up to the need for a digital revolution. We had been talking for some time about filming our seminars for reproduction on our website, but we had generally found the technology to be awkward and cost prohibitive.

VPELA’s adoption of the Zoom online platform has enabled us to reach a much wider community of members than our traditional on-site seminar series, and enabled us to bring together panellists from a variety of locations in circumstances where distance may have prevented us from bringing regional members of our community physically together in the past.

The issue of online hearings has been widely canvassed since the requirements for working from home and social distancing have largely prevented face to face hearings from taking place. In particular, the new arrangements for hearings being conducted via an online platform have caused many practitioners to reflect on what it is about face to face hearings that deliver on the principles of natural justice and procedural fairness that perhaps can’t be delivered in an online format.

Tamara Brezzi President, VPELA

Certainly there are obvious immediate limitations in circumstances where one or more of the parties is unable to access the technology; either due to limitations about the necessary infrastructure (such as having a laptop with a camera and reliable and affordable access to the internet), or the inability to see all the parties in the ‘hearing room’.

Difficulties arise in the inability to properly test expert evidence having regard to the limitations imposed by conducting a hearing online or the desire to constrain the time taken to present evidence in chief. And, there are of course inefficiencies and uncertainties that arise in presenting documents to witnesses and decision-makers and the need for confidence that they are looking at the same document as the crossexaminer or the advocate.

We are finding that the capacity of an advocate or an expert witness to really engage with the decision-maker is also affected and less than ideal. When only the head of a decision maker is in view, it’s very difficult to know when to pause to allow the decision maker to take notes and it’s harder to engage freely in exchanges with the decision-maker and other parties without the feeling that one is interrupting or spending much of the hearing interrupting and talking over one another.

Most planning hearings are public hearings and the idea that it’s necessary for someone to have a link sent to them personally to be able to attend the hearing is also something that requires a new way of thinking about why our hearings are public and the benefits to society of that principle being maintained.

I am also finding that hearings are taking longer as participants grapple with finding documents electronically, sharing screens and the like. Some of that will become more efficient and seamless as people become more proficient with the technology, but a dodgy internet connection, poor video or sound quality and limitations on access and participation are not problems that will be solved with time.

Time will also not re-introduce the more intangible qualities of face to face hearings that deliver adherence to the principles of natural justice. It’s more difficult, for example, to engage with an expert witness, advocate or decision-maker when all you can see is their head and face. And, given the need for non-speakers to turn video off to preserve call and video quality in some instances, the online platform does not allow one to observe other participants as would be possible in the hearing room. So much of the art of persuasion and informed decision making lies in the capacity to observe and respond to the subtleties that arise in the hearing room, and that opportunity is obviously lost in an online platform.

The

e-Business… not so usual!

Having said that, the ability to observe parts of a hearing without having to physically be present in the hearing room has certain time efficiencies associated with it for people who only need to observe parts of the hearing. Perhaps the future lies in a combination of face to face hearings and online streaming of hearings once face to face is once again available; acknowledging the benefits of access that the online platform is delivering.

It seems that a slightly philosophical approach works with the need to recognise that while the online hearing platform is far from perfect, (and there are real questions raised about the capacity of the online hearing platform to deliver on principles of natural justice and procedural fairness), it is an adequate, imperfect solution to fill a gap that arises from these most unusual circumstances.

I want to take this opportunity to thank you all for supporting VPELA so strongly during this time. So many of you have agreed at short notice to participate in webinars and hundreds have joined us online for our various events and webinars in recent months. We are always open to suggestions about how we can best serve the membership. VPELA was born of the recession in 1989 and so it’s in our DNA to find ways to keep the professions connected and supported, particular in times of such great uncertainty.

Please do get in touch if you have any suggestions about more that we can do for you. Stay safe.

Tamara Brezzi is President of VPELA and a Partner at Norton Rose Fulbright

Editorial licence

Bernard McNamara, Editor and Director, BMDA Development Advisory

A socially distant greeting to all.

There is no doubt that for current generations spared the agony (to date) of a major world or regional war, the ‘Great Lockdown’ will be a defining moment in our history. The social and economic impacts will play out over years. For some, the impacts are proving mild; for others, substantial.

My great respect goes to the many VPELA parents who have needed to juggle workloads and home schooling. For my part, I know at least three people in this world (my adult daughters) who will be very content knowing they weren’t exposed to my attempts at that task.

And an observation… I find it close to incomprehensible the contrast in the way we are honouring the evidence and predictions of our health scientists as they guide public responses; when seen against the way we listen to our climate scientists on their dire forecasts. On the latter’s’ concerns, it seems that any shock jock view or other partisan voice carries more weight.

A post-pandemic world

In our profession, we now need to face step changes in social interaction and the impacts they might have on urban futures.

Planning writers globally are already turning their minds to this, particularly in terms of cities struggling with large populations and insufficient housing or basic urban services. An example I read recently is insightful for any planner:

Rogier van den Berg, Director of Urban Development at WRI Ross Center for Sustainable Cities:

How we plan our cities has always been a reflection of prevailing cultural and technological trends and even major crises. The cholera epidemics in the 19th century sparked the introduction of modern urban sanitation systems. Housing regulations around light and air were introduced as a measure against respiratory diseases in overcrowded slums in Europe during industrialization. The introduction of railroads had an immense impact on national urban systems, and the mass production of the car has led to cities that bleed seamlessly into sprawling suburbs, creating vast city regions. In recent years, digitalization and data have changed the way we navigate cities and how communities mobilize and advocate for change.

As lockdowns stretch on in many places, we are only beginning to understand how COVID-19 will affect how we approach urban planning. Planned for properly, density is a good thing for cities, and it will be again. But will we do more to protect the most vulnerable? Will we make cities more resilient to future crises? Will we make green and blue

spaces front and center of our infrastructure investments? And will we seriously address the fact that it’s not just physically, but economically, socially and environmentally that cities are connected to their surrounding regions? It’s our decision to rebuild better.

In Australian cities, the (relative) absence of density has probably been a contributor to our low infection rate. But the future cannot be about abandoning the things that make a city vibrant and workable. It is about (as quoted) ‘getting density right’, in its place-making form, rather than site by site.

What might the future look like?

For this edition on what impacts the COVID-19 pandemic might have on Australian urban environments, I sought responses from five highly experienced members across different areas of our professions.

My thanks to architect, Sarah Buckeridge, Helen Gibson AO (former deputy president of VCAT), Peter Seamer AO (urban writer and former CEO of VPA), Mark Sheppard (urban designer) and, Geoff Underwood (town planner and sometime government committee chair). Their perspectives identify emerging trends but also reinforce the wisdom of some past and current policy settings.

Peter Seamer reminds us to “never waste a crisis”, arguing a more polycentric city form will be economically and socially stronger. He challenges us to make changes to diversify away from a city dependent upon a centre. Helen Gibson is satisfied that our policy setting of ‘net community benefit’ can underpin the emergence of new dwelling/complex designs and how public space is used and will be provisioned.

Sarah Buckeridge remembers the early 1990s and its impacts on the design professions, and the confluences of finance, banking, government responses on housing and project types. Encouragingly, being an architect, she considers that much of what we have been designing in recent times will be adaptable and deliver safe shared spaces, with many projects being more inclusive and ensuring local living resilience.

Geoff Underwood sees our metropolis and its structure as resilient and proven over nearly a century, taking us back to our foundations in the 1929 General Plan for Melbourne. He foresees behavioural changes being the outcome, particularly social distancing; changes to the way we congregate and work, and the further rise of online communication.

Mark Sheppard presents an ‘icing on the cake’ analogy, suggesting we have allowed the comfort of excess to divert our attention away from what really matters to most people. Have our priorities

become so inverted and overburdened with objectives, guidelines and overlays that we have lost sight of what is important? In this context, the State Government’s Planning and Building Approval Review is timely.

Speaking of which, co-contributors Anna Cronin, Victoria’s Better Regulation/Red Tape Commissioner, and Danni Hunter, Victorian CEO of the Urban Development Institute of Australia, focus in this issue on the benefits that will flow from regulation reform.

These reform recommendations might now be accelerated through the work of the Building Victoria’s’ Recovery Taskforce which is working on interim measures (and project approvals) that might keep the building and development sector operating. But the terms of reference also require the Taskforce to identify more sustained long term system improvements.

Zoom out, zoom out!

And how have you enjoyed remote working?

In my own case, I have been alarmed to find on video calls that I have somehow aged about 10 years!? Perhaps Aldous Huxley got it right: “Reality is something from which people feel the need of taking pretty frequent holidays!”

The processes of engaging with authorities, staff (and especially cross-examining lawyers) are also different.

VEPLA webinars have tracked this change in work practices, with contributions in this issue from Tim McBride Burgess from Contour and Marjorie Kennedy from Boroondara City Council. Plus, on a partly lighter note, two of our YPG members – Jack Chiodo and Zac van den Grondelle – provide their experiences of being remote from the team and their senior colleagues.

I will close by paying tribute to two true leaders in our professions, David Turnbull and Phil Bissett, whose deaths created feelings in me of sadness and shock. I had the pleasure of working closely with each of them at different times over the decades and there are tributes in this edition.

David’s dedication to guiding urban changes in Mitchell Shire was clear, and further enriched by his legacy at Whittlesea municipality. Phil was a true professional; generous and highly competent, bringing a planner’s training to his advocate’s role. This is the first real online edition of VPELA Revue, so allow me to mark the occasion with extra thanks to all contributors and a rallying call to others. Ensuring our professions are strong and active into the future will rely on hearing many voices.

As always, comments, criticisms etc to: Bernard.mcnamara@bmda.com.au

VPELA played key role in approvals work

As readers have been advised previously, at the beginning of 2019 the Government commissioned a review into planning and building approvals. Working with our Advisory Board – Bill Kusznirczuk, Kate Roffey and Radley de Silva – and the project team, Better Regulation Victoria completed our final report in December, which has been submitted to the Government.

Overall, the review looked at the root causes for why planning and building approvals have become so complex and time consuming and, in many cases, less effective than they should be. We explored options to improve the efficiency of the approvals processes without undermining regulatory effectiveness.

During the course of our consultation, we received over 100 submissions and held meetings and workshops with key stakeholders such as local councils, referral authorities, regulators and planning professionals and experts.

VPELA members were closely involved in consultations before and after our Discussion Paper was released. Overall, there was strong support from stakeholders for the proposals contained therein and a lot of good suggestions were made in consultations about how better outcomes and faster approvals could be achieved. The final report contains many recommendations about changing practices and systems across the approvals spectrum from strategic and statutory planning to the postpermit stage and finally building approvals.

Many of the factors which contribute to delays and unnecessary costs have been identified in the past. And there are many examples of local councils and other decision-makers along the approvals chain improving their operations in terms of approvals times. What is needed is to turn ‘best practice’ into ‘common practice’.

Economic modelling undertaken by consultants to the review suggests that the economic cost of avoidable delays could be in the order of between $400 million and $600 million per year – or about 2% of the annual output of the construction sector. The impacts of reducing delays all along the approvals chain is therefore likely to be very significant.

As the Government responds to the COVID-19 emergency, it is considering further opportunities to support the construction industry going forward and BRV’s final report is part of that consideration.

I look forward to updating VPELA about the implementation of the final report in your next edition.

Anna

Cronin,

Commissioner for Better Regulation

Copies of the Discussion paper and some background material are available on the BRV website –https://www.vic.gov.au/planning-and-building-approvalsprocess-review

The Business Building Victoria’s road to recovery

Danni Hunter, Victorian CEO, Urban Development Institute of Australia (UDIA)

The centrepiece of Victoria’s road to economic recovery from COVID-19 depends on radical change that supports home buyers and the building, construction and development industry. Fortunately, the great work done through the Planning and Building Approvals Process Review means Government can feasibly implement systematic changes now, that will help pave the road to recovery for industry and for Victoria.

The building, construction and development industry employs around 300,000 Victorians, generates billions of dollars for the Victorian economy and funds almost half of the State Government’s tax revenue. The industry is an economic power-house that builds and pays for our most important infrastructure including housing, hospitals, schools and transport. Right now, our economic contribution will be helping government to fund some of the amazing commitments being announced to help Victorians deal with COVID-19.

Like most other industries in our economy, our industry will take a big hit. But there are options available to Government that will ensure the sector can continue to employ hundreds of thousands of Victorians, deliver homes and community infrastructure, and help stabilise the Victorian economy. Many of these options have been examined, assessed and recommended by the Commissioner for Better Regulation in her review of Victoria’s Building and Planning Approvals Systems and Early Building Works Infrastructure.

UDIA Victoria worked closely with the Commissioner for Better Regulation and the Review Team during this process to demonstrate the issues with the current system and the benefits

that would be gained from improving existing processes. The ensuing Discussion Paper and Proposed Improvements demonstrated a strong understanding of the complexity of the issues plaguing the planning approvals process and put forward a range of improvements that would have an immediate and significant impact on streamlining planning approvals, reducing the overall cost of delivering residential land or dwellings to market, and stimulating the residential development sector.

Specifically, UDIA Victoria has highlighted the following recommendations as critical for the Victorian Government to implement:

• Move to online planning permit processing and tracking;

• Reduce response times for referrals;

• Streamline compliance with permit conditions;

• Reduce timelines for electricity connections; and

• Simplify the infrastructure contributions system across government agencies.

These are the kinds of actions that will make a difference.

They would also allow Victoria to continue delivering on its growth strategy; because when the coronavirus threat subsides, Victorians will still need the homes, services, infrastructure and economic contribution that our industry delivers.

Now is the time to prioritise efficiency and productivity. If the Victorian Government can swiftly and decisively implement the key recommendations from the review of Victoria’s Building and Planning Approvals Systems and Early Building Works Infrastructure, then we will be much better placed to weather the storm upon us.

Hansen Partnership

The team at Hansen Partnership continue to work on a range of exciting planning and design projects.

Working remotely, we are staying in touch and producing the same quality results. Find us on Zoom and Microsoft teams, or the other usual channels to talk about how our team can assist your next project.

Urban Planning I Urban Design I Landscape Architecture

The Business HIA welcomed Victoria’s review of planning and building approvals processes

An effective planning and building approvals system is fundamental for the operation of the residential construction industry. The Housing Industry Association (HIA) welcomed the opportunity to contribute to the Review of the “Planning and Building Approvals Processes” in 2019 and put forward a number of suggestions to improve the operation of the system from a home building perspective. HIA viewed this process as a significant opportunity to reform matters and participated extensively throughout the Review process.

The planning system does not require a complete overhaul. There are particular operational elements that could be improved within the current framework. The Review presented a significant opportunity to examine matters that currently result in a number of roadblocks that are the source of many delays and costs for builders and home owners.

Whilst presenting a full set of recommendations to the Review on statutory and strategic planning measures and building matters, the following provides some insights into the reforms HIA pursued around home building and dwellings approvals and the Commissioners final recommendations.

Simplifying planning approval requirements for single and small multi-unit dwellings

Planning approval for single dwellings should be a simple matter and applications should move through the planning system relatively smoothly, together with small multi-unit developments. Removing the lot size trigger for single dwellings on residentially zoned land and using the Building Regulations as the assessment tool is one measure that could help. Standards specific to small lots could be included and councils could approve any minor variations through existing processes.

HIA also examined other ways that small multi-unit developments applications could work better exploring a subdivision approval only – with siting and design matters to be dealt with under the Building Regulations. Also, an expanded VicSmart Plus assessment pathway which could allow for two dwellings per lot in a shorter timeframe.

The procedures around Requests for Further Information (RFI) with options for an agreed lists of basic information for all applicants and a quick appeals process for any unreasonable RFIs were also examined by HIA.

With post permit processes, HIA suggested that the processes for minor amendments could be improved. Particularly around amended plans to be approved in a shorter timeframe and suggestions were put forward to enable processes for potentially a quicker appeals pathway around this. Process improvements

Fiona Nield, Executive Director, Housing Industry Association Ltd

such as these would enable people to move forward with their home building projects once a permit has been issued without having to experience often costly unnecessary protracted delays during construction.

Some pre and post permit processes could benefit from some use of private certification - even if the use of private certifers was limited to pre-lodgement certification or post permit endorsement of plans. This could be utilised for those elements of the planning process that require very little or no discretion.

Smart Planning Program benefits

HIA highlighted to the Commissioner the positive outcomes for Victoria’s planning system as a result of the Smart Planning Program and the need for this to be integrated as part of the Commissioners ‘Planning and Building Approvals Process Review’. HIA also highlighted the need for further funding of Smart Planning Program to continue the rollout of system improvements.

Building approvals reforms

In terms of the building approvals system, HIA examined the differing asset protection and management plan requirements between councils and suggested that standardising these requirements together with model local laws would be a way forward. Also, even though the Building Act and Regulations have a system of building surveyors and inspectors, HIA has examined the large number of other private building inspectors and how to best ensure they are well qualified to work with builders and consumers. Finally HIA’s also looked at how to promote building surveying choice with more new entrants into this career path.

With the Commissioner extensively involving industry in this review, there is real cause for optimism. Many of the recommendations put forward by HIA were acknowledged in the recommendations suggested by the Commissioner including:

• Considerations which would provide for single dwelling applications to process through the planning system more smoothly. Including measures which would result in the removal of the lot sized trigger for single dwellings and the utilisation of faster planning processes for minor matters and small medium density housing applications;

• Expansion of the proposed VicSmart Plus assessment pathway to allow two dwellings per lot;

• Reducing requests for further information, including an agreed list of basic information for applications and the ‘pause the clock recommendation’;

• Streamlining the Planning Scheme Amendment process by reducing the embargo councils currently have over Panel

Reports from 28 days down to 7 days;

• Assisting councils to improve online planning permit application processing and tracking to increase transparency and reporting capabilities;

• Detailed reporting of various stages of a planning permit application to determine if there are common holds ups at a particular stage of an application;

• Reduce the time taken for response times from referral authorities;

• Better information and streamlined processes on secondary consent and planning permit amendment applications;

• Standardisation of construction management plans across municipalities and consistent model local laws and guidelines; and

• Establishing a new class of building surveyor for low-risk building work.

HIA is hopeful that this Review will lead to more effective and efficient outcomes from Victoria’s Planning and Building Approvals systems.

Fiona Nield is the Executive Director of the Housing Industry Association Victoria. Fiona has a background in town planning, regulatory systems and policy development

Obituary: David Turnbull

David Turnbull was an outstanding and visionary planner who was always way ahead of his time. Unfortunately his life was taken far too soon late March, when his cancer got the better of him and he passed away unexpectedly.

David was a contemporary of mine and others, a peer to many and a leader to all.

He always had the highest level of integrity and commitment in everything he did.

He was a junior planner at the Shire of Bulla when I first met him and together we worked on the then emerging outpost of Greenvale– a new subdivision that was exemplified by its very large lots and opulent houses. From those early days, I am very proud to have walked the journey of his career with him.

After local government amalgamations, David moved to Whittlesea as Director of Planning where he spent many years shaping new communities, including Mernda, which developed through the former CEO Graeme Brennan, his and Chris de Silva’s commitment and passion for ensuring it would be a great place to live. They led the planning for Mernda in a visionary way and would not allow anything through until they were completely satisfied it would work. In particular, they led the way in implementing development contributions for growth areas, and the Mernda Structure Plan has always been held up as the exemplar in that regard.

David then became CEO at Whittlesea, which he led with distinction until he moved on from there. Soon after, David became CEO of Mitchell Shire.

It is difficult to think of a planner who has been more committed to local government than David.

This was deservedly recognised by VPELA when David became the second recipient of the Paul Jerome Award in 2006 for excellence in service to local and State Government.

David never stood still and he was passionate about exploring new ideas from other cities, where he did extensive study and research. He would return from such trips full of enthusiasm and energised to try and do things differently, and his energy was all encompassing – he would inspire others to think outside the box with him.

David spoke at various VPELA conferences and seminars and for all, he always gave so freely of his time to share his visions for planning in Victoria.

I recall one conference when he urged us all not to think of planning for Melbourne 2030 as it was back then in the early 2000s, but to think more broadly to 2050 and to think big about getting the right infrastructure in place before anything else. Wise words indeed.

David was committed to good strategic planning in a way that was raw, it was honest and it was just great common sense.

On behalf of VPELA, we offer our most sincere and deepest condolences to Suzanne, his children, family, friends and colleagues on the tragic loss of one who has had such a powerful and positive influence in the urban morphology of Melbourne. Rest forever in peace David, and thank you.

Kathy Mitchell, Immediate Past President

Minister for Planning Planning: Supporting economic recovery in Victoria

We are only five months in but already 2020 is proving to be our most challenging year in recent times with this summer’s bushfires and now the coronavirus pandemic causing significant health, social and economic impacts on families, communities and businesses.

This has led to all of us being asked and in some cases required by law to conduct ourselves in extraordinary ways in order to remain as safe and healthy as possible. Adapting to this new normal hasn’t been easy but the majority of Victorians have done incredibly well and that’s why so far we’ve been able to keep our case numbers relatively low and avoid the horrendous figures seen overseas.

Sadly we’ve seen many Victorians lose their jobs and their livelihoods as result of the lockdown restrictions necessary to slow the spread of the virus and we know many industries and businesses will not fully recover from these impacts. That’s why our Government is implementing measures to stimulate the economy, create jobs and get us through and to the other side of this pandemic.

A key driver of our economy is the building and development industry and so in late April I announced the establishment of Building Victoria’s Recovery Taskforce – dedicated to identifying and accelerating shovel-ready priority projects to deliver short and long-term jobs.

Our Taskforce will focus on five key areas:

• Project Pipeline – identify and triage development approval applications and planning scheme amendments that could be considered for ‘call in’ or fast tracked

• Government Projects – identify current infrastructure projects and recommend to government ways to enable procurement processes to continue

• Housing – identify residential, social, affordable and buildto-rent initiatives that will stimulate demand and provide a pipeline of work to industry

• Planning System – recommend streamlining the system leveraging the Red Tape Commissioner Report and categorising interventions into immediate, medium and longterm system reform

• Government Stimulus Measures – recommendations to government on immediate measures to stimulate demand for housing.

Myself and Treasurer Tim Pallas will oversee the Taskforce’s work led by our co-chairs, former Lend Lease senior executive Roger Teale, Victorian Planning Authority chair Jude Munro and Victorian Public Service CEO Stan Krpan. Our purpose is to recommend planning and economic investment facilitation options to help stimulate the Victorian economy and signal clearly that here in Victoria, we are still open for business.

Further to the establishment of the Taskforce, I am continuing with approvals that will support the economic recovery needed to counter the impacts of coronavirus.

Earlier this year I signed off on preparing planning provisions that will allow appropriate development applications to be fasttracked. VicSmart Plus is a new planning permit assessment pathway to accommodate applications that are too complex for the current VicSmart process but sufficiently straightforward not to warrant consideration through the standard assessment pathway. VicSmart Plus will facilitate economic benefit from appropriate development, enable local government to spend time assessing planning applications proportionate to their complexity and will make planning assessment and approvals more efficient, with a continuing focus on residential and business development. This initiative is proposed to be introduced later this year.

I have also signed off on a Secondary Dwellings Code that will facilitate the development of small-scale secondary dwellings, on the same lots as an existing dwelling in residential areas. The code will be introduced through a pilot program with five coun-

The Hon. Richard Wynne MP, Victorian Minister for Planning

“While the public health emergency has been at the forefront of most if not all levels of government planning, we must not forget the many Victorians impacted by the summer’s devastating bushfires”.

cils: Greater Bendigo, Kingston, Maroondah, Moreland and Murrindindi. The pilot program will trial the codified approval process and assessment timeframe. Ultimately, council participation in this process will enable the implementation of a new housing product that will help deliver housing choice and diversity and make planning assessment and approval more efficient.

While the public health emergency has been at the forefront of most if not all levels of government planning, we must of course not forget the many Victorians impacted by this summer’s devastating bushfires. The Victorian Government has developed new planning provisions to support these impacted communities through the recovery and rebuilding process.

The introduction of Clause 52.07 into all planning schemes across Victoria back in March this year has allowed people who have lost their homes in the fires to set up temporary housing on their land without a planning permit. This clause also applies to damaged or destroyed businesses, meaning owners can set up temporary premises without having to apply for a planning permit. In addition to these provisions, we have been supporting affected landowners by undertaking preliminary bushfire hazard assessments and environmental assessments for their proper-

ties. These assessments will inform owners about development constraints and will greatly assist in facilitating rebuilding. Bushfire Recovery Victoria has set up Community Recovery Hubs to help landowners obtain specialist advice in order to navigate their way through these processes.

In early May, I introduced Clause 52.10 into all Victorian planning schemes which will exempt some parts of the planning permit process and help to streamline bushfire reconstruction. This new provision will help landowners to rebuild their homes and property and re-establish businesses and services. Through Bushfire Recovery Victoria, our government continues to work with bushfire affected communities to complete a range of technical land assessments so these communities can start designing their new homes.

As we move into the second half of 2020, our Government will continue to be guided by the medical experts to keep everyone as safe and healthy as possible while also creating jobs and driving the economy through and beyond this pandemic.

Richard Wynne can be contacted at richard.wynne@parliament.vic.gov.au

Obituary: Phil Bisset

We were devastated by the news on Friday 3 April that our dear friend and industry colleague, Phil Bisset, Partner at Minter Ellison, unexpectedly passed away. Our deepest sympathies are with his wife Marianne, his three children Christopher, Andy and Adrienne and with the staff and partners of the Minter Ellison family.

Phil was a town planner and lawyer. Over his 40 year career he held positions at the Westernport Regional Authority, Deacons Graham & James (now Norton Rose Fulbright) and, for the last 20 years, at Minter Ellison.

For so many of us in the planning and legal professions, Phil was a mentor, friend, confidant, leader and a reliable source of wise counsel. Phil’s great skill as a lawyer was as a strategy tactician. His thorough preparation and calm style consistently resulted in highly regarded and respected advocacy in the hearing room. He was funny – we could always rely on him to make hilarious, dry, witty and eloquently expressed observations about an obscure angle in a situation or a funny story (and, not uncommonly, during a hearing)!

Phil’s skills and respect in the industry were formally recognised by VPELA in 2009 when he was made a Fellow of the Association.

He was acknowledged even back then as being one of the great solicitor advocates of the profession with a particular talent for distilling complex problems into succinct, simple propositions.

For me, well, quite frankly, Phil is the reason I became a lawyer. I met Phil while working as a planner in the 1990’s. He talked to me about how he had gone back to study law after also practising as a planner for some years. In that era, he was one of only a couple of people practising in Victoria to have done so. And since, so many of us have followed in his career path footsteps. He was generous with his time and encouraged me to also embark upon a career in the law. That conversation inspired me to return to university to study law and a few years later I commenced my own legal career, articled to Phil, at Deacons Graham and James. I’m so grateful to have had that opportunity to learn from and work with him. I know many others who were also inspired by him to embark upon the same professionally rewarding dual qualification path. They credit his intellect, his skills and his passion for his work as a planning lawyer as the foundations for their own ability to strategically and critically analyse planning and legal problems. He was always a trusted advisor for his clients and a friend to so many of them as well. He will be so missed by so many.

Vale Phil Bisset.

Tamara Brezzi, President

Shadow Minister for Planning Combustible cladding action needed urgently

Over a year ago, the Summardai apartment complex in Frankston South was identified as one of Victoria’s most at-risk of cladding fire. Residents had been complaining to the VBA for years by this point. They were waiting for action then, and they’re still waiting now.

For the residents of this building, being told to stay at home during a global pandemic means spending even more time in apartments that are potential death-traps.

This Frankston South building was one of 500 buildings identified by the Andrews government’s Cladding Taskforce as being of substantial risk of cladding fire, and further selected as one of 15 on the highest priority list that is to be rectified by new entity Cladding Safety Victoria. This building poses a ‘danger to life arising out of the condition of building’, according to an emergency order issued by Frankston City Council. The risk to the occupants ‘life and safety’ is in part due to the use of highly combustible expanded polystyrene.

Apartment owners were initially given seven days to carry out extensive building works, with failure to comply leading to threats of fines of up to $80,000 each. The Victorian Building Authority(VBA) and Frankston Council posted a 24/7 fire warden at the property, to ensure it didn’t ignite. That’s how serious the risk is to residents.

Only after intense pressure, and with great fanfare, did the State Labor Government finally announce its $600 million cladding rectification fund, following its protracted Cladding Audit.

At the time Daniel Andrews said, “this world-first program will fix the buildings most at risk and keep Victorians safe.’

The State Government should have followed the precedent set by the British government and done the right thing by footing the entire bill to remove the cladding, rather than increasing permit

Tim Smith, Victorian Shadow Minister for Planning

fees to cover $300 million of the $600 million bill. Then British Prime Minister Theresa May said, “It is of paramount importance that everybody is able to feel and be safe in their homes.”

This issue only arose because of the failure of the State Government’s regulator, the VBA. The unsuspecting purchasers of these dodgy buildings relied on the VBA to properly regulate the industry to ensure safety standards were met.

Planning Minister Dick Wynne said work to fix the cladding on the 15 highest priority buildings (the Frankston South building included) was expected to start by the end of last year. It shouldn’t surprise any of us that it hasn’t happened.

It’s now late May, and Dick Wynne is still refusing to help these people. Announcements are of little value if they aren’t followed by action.

If the apartment block in Frankston South was deemed an extremely high priority building, what about those languishing at the bottom of the list off 500? I’d hate to imagine how long they’ll have to wait. In among the list of the 15 highest priority properties, were buildings found to be riddled with a host of other construction problems. All were built in the past 20 years. Inspections show that a failure of regulation has led to a whole range of fire safety issues that must be dealt with before these apartments are safe to live in.

The VBA is a failed entity, and I have no confidence in it to regulate the building industry in Victoria. It’s leadership has failed, largely in part because the Minster, Dick Wynne, failed to bring them into line. The performance of Wynne’s Victorian Building Authority has been woeful.

Instead, there’s inaction during a pandemic, when people are locked inside these firetraps. When will their homes be made safe?

https://www.youtube.com/watch?v=isiCuiW1JH0

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Frankston South Apartments.

Five views on a (post) COVID-19 planning and environmental world

In view of the ‘no longer normal ‘COVID-19 operating environment in our (lucky) piece of the world that we inhabit, the Revue asked five senior practitioners two questions:

What impacts will the COVID-19 pandemic have on the urban environments that we have and are planning to create?

Will there be a return to adopted plans and policies or will there be new approaches required?

Our commentators are: Sarah Buckeridge, Director, Hassell Architects; Helen Gibson AO,. Former Deputy president of VCAT and Chair of multiple planning panels; Peter Seamer, Former CEO of the Victorian Planning Authority; Mark Sheppard, urban designer and Principal of Kinetica and Geoff Underwood, town planner and sometime government committee chair

Planning for the housing we need

Architects are acutely aware of the influence of economic conditions and public policy on the design of our places and spaces. As a profession, we are famously, the ‘canary in the coal mine’ when the economy weakens, and expensive capital works projects get moved to the ‘non-essential’ list for businesses and industries under pressure.

This time will be no different – the post COVID-19 economy will be starkly different and we are yet to fully understand what will emerge as viable and fundable.

As an architectural student in the 1990’s I had a formative experience of what recession can mean—In 1993, Australia’s unemployment peaked at 12% and was far higher for architects. Consequently, my architectural course had to reduce our ‘year out’ experience requirement to six months as even unpaid placements became scarse. I graduated in 1995 but economic conditions were still very weak and I headed to Singapore where more buoyant conditions were enjoyed until the late 1990’s Asian financial crisis.

This Singaporean stint was a catalyst for my career in residential architecture, a sector I have consistently worked in for nearly 25 years. Perhaps, more so, than other typologies, the design and delivery of multi-residential housing over this period has mirrored economic and public policy settings such as bank lending criteria, taxation, foreign investment regulations and population and immigration policy.

Changes to planning policy during this period have also played a part, however, have been relatively consistent in the ambition

to densify around transport infrastructure and services. More recently, attention given to apartment amenity has undoubtedly influenced design, but has not been a fundamental driver of what has been built and where.

The pandemic has radically refocussed the experience of our cities back to our local areas, with the sudden retreat to our home offices highlighting the importance of healthy buildings and walkable, green neighbourhoods.

Interestingly, there had already been a shift towards apartments and housing models which promote the idea of community and placemaking at a neighbourhood level.

Weaker investment, particularly from international investors who represented approximately 16% of the residential market in 2018, indicates that multi-residential development had already refocussed and shifted towards owner-occupiers and smaller, more fundable developments.

Conversely, institutional investors have increasingly focussed on specialist and managed housing such as senior living models or student accommodation and more recently, are looking to the build-to-rent sector as an emerging asset class in Australia. The build-to-rent model emphasises shared facilities and amenity, often incorporating mixed uses such as co-working spaces which may offer a flexible and affordable alternative for businesses in the post COVID-19 economy.

Hayball has embraced this placemaking and community-based approach through new housing models such as Nightingale Housing and Assemble Communities.

Sarah Buckeridge, Director, Hayball Architects

These projects prioritise smaller clusters of apartments to build social engagement, invest in high quality communal spaces such as productive gardens and embed sustainable design features.

For owner occupiers and long term renters, building resilience will become more critical, with robust materials and higher environmental performance lowering operating costs and creating healthier environments.

These projects offer clues about new approaches that may be required, where ground plane activation can allow the buildings to operate as an integrated part of the local economy.

By providing wi-fi enabled shared or bookable spaces, cafes and co-working spaces, rather than exclusive resident facilities, meaningful interaction can occur with the surrounding neighbourhood. In a post COVID-19 economy, these hybrid uses may offer greater options to work where you live, beyond the CBD.

We are also designing several mixed tenure projects which bring together social and community housing with the private market to provide more integrated affordable housing. This pandemic

has reinforced this critical need for safe and secure housing for the vulnerable members of our community and greater emphasis on shared facilities and public realm quality should support healthier neighbourhoods.

Future development will need to be nimble and creative – as we navigate the slow road to economic recovery, it is likely that smaller stages of development, new financial and delivery models and in some cases government support, will be required to progress viable projects, whether through the planned expedited approval processes or direct stimulus funding.

During the GFC, we saw the immediate benefit from investment in education projects and the NRAS affordable housing program to the planning, design and construction industry and ultimately to the community.

We are hopeful that in the post COVID-19 economy, private investment and government stimulus will underpin the next multiresidential cycle to create resilient and socially sustaining housing models that the community needs now more than ever.

Sarah Buckeridge is a Director at Hayball.

Sara has 25 years’ architectural experience working with the public and private sector in multi-residential and mixed use precinct design and has contributed to several government strategic planning projects. E: Sarah Buckeridge sbuckeridge@hayball.com.au

Endnotes

1 4102.0 - Australian Social Trends, 1994, Australian Bureau of Statistics [website], https://www.abs.gov.au/ AUSSTATS/abs@.nsf/2f762f95845417aeca25706c00834efa/ e620f529f1c25637ca2570ec007868d6!OpenDocument, (accessed 5 May, 2020)

1 Foreign Investment, Property Council of Australia [website], https://research.propertycouncil.com.au/data-room/foreign-investment, (accessed 5 May, 2020)

Assemble’s build-to-rent development Kensington.

Reflections on a post-COVID-19 environment

All our behaviours have changed as a result of the COVID-19 pandemic. Confinement to home, working from home, schooling at home have all placed new pressures on the way in which we use our dwellings. When leaving home for exercise is one of the few legitimate reasons for going out, our public parks, footpaths, walking trails and other open spaces have seen a surge in use. By contrast, road usage has dwindled. Permitted activities outside the home have contracted the radius within which we operate to shop and recreate.

Once restrictions on our movement are lifted, will our behaviours revert back to pre-COVID-19 modes or will there be lasting modifications? How will we re-imagine our living, working and recreation spaces as a result of COVID-19?

Net community benefit has long been a principle embedded in our planning schemes:

Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations (clause 71.02-3).

Responses to the COVID-19 pandemic in Australia have demonstrated the community’s willingness to accept restrictions on individuals’ behaviour, and indeed dramatic impacts on their economic wellbeing, in the interests of net community benefit. There has been a heightened awareness of the sense and importance of community, and articulation of its virtues during the pandemic.

As planners and planning decision makers, we ought to be reflecting post-COVID-19 on how our built environments have stood up to the demands placed on them during the pandemic. At this stage, it is too early to say what changes in behaviour will be permanent. However, the potential for more working from home, IMP026_Impact_VEPLA_60mm H X 184.5mm_Campaign 2019.pdf 2

Helen Gibson AM

on-line learning, and electronic meetings are likely to influence the nature of workplaces, education facilities and the need for travel in the future. As any changes in behaviours consolidate, so demand for any changes in built environments will emerge. It will be important for the market to be alert to such demand and for decision makers to be flexible in accommodating responses. Likewise, reflection about the functioning of public spaces in the light of changed patterns of behaviours may lead to changes in the detailing of our urban environments.

But, so far as adopted plans and policies are concerned, the COVID-19 pandemic has reinforced the basic soundness that underlies Victoria’s Planning Policy Framework, such as:

• Developing settlements that will support resilient communities and their ability to adapt and change (clause 11.01-1S).

• Develop compact urban areas that are based around existing or planned activity centres to maximise accessibility to facilities and services (clause 11.01-1S).

Principles of urban consolidation and walkable neighbourhoods serve the community well in times of constraint on personal movement, although more generous and flexible private living spaces may be required if individual dwellings are to be utilised for work and learning activities more frequently and for longer periods.

Nothing that I can see would necessarily suggest that adopted plans and policies based on Victoria’s Planning Policy Framework require dramatic new approaches post-COVID-19. Rather, the dominant need, as society struggles to re-establish its economic wellbeing, will be to ensure that processes to streamline decision making are implemented, which ensure that the principle of net community benefit is given full weight.

Helen Gibson AM

am

Never waste a crisis

We know that COVID-19 is impacting us massively, but will it teach us something about how our cities operate?

Most importantly, many people will be very ill, have permanent lung damage and sadly some will die. But it is the economic issues that will have the greatest effect on us in the long term: on business closure, unemployment, mental health and homelessness.

There will be a long-term upheaval in businesses and jobs. Many will cease to exist by the time the pandemic is over. While some activities will grow, particularly anything online, some businesses that are not very profitable now will probably disappear altogether.

In Victoria in particular there is likely to be a significant drop in overseas students. This will result in empty lecture theatres, financial problems for universities and schools and vacancies in inner-city low-end apartments.

But is there something in the nature of our cities that has resulted in our cities being vulnerable to crises?

Latest research by the Brookings Institute show that in the USA the dense, and often economically powerful cities are the ones most hit by the virus. In Australia and the UK, the story is probably much the same.

For decades we have been making our cities denser, particularly to reduce travel distance. But some would argue that this has left us more vulnerable than we need be.

Will there be a shift in our preferences for housing? Will residents see the tight confines of an inner-city apartment more of a risk than a house in the suburbs? Will we change the way we get around, particularly on public transport? An English study found a significant association between respiratory symptoms and public transport use. Presumably private cars are a safer option to avoid infection, but our inner-city roads do not have the capacity to cope with more cars once things settle to the new normal. Will there be a greater focus and demand for localised employment in the suburbs, enabling more people to walk and ride to work from home?

Australian cities, and Melbourne in particular, are heavily centralised. The inner professional and retail job-rich areas are the only ones serviced well by public transport, but they are also heavily dependent on these services. To avoid some of the drawbacks of dense inner-city life: some businesses may choose more flexible suburban locations.

Moving towards a city which doesn’t have all its eggs in one basket and has a better spread of employment will reduce the impact of our overly centralised metropolis. Developing major business clusters such as Monash, will allow more to live closer to where they work. They can have more transport flexibility.

Many retirees will lose substantially, with the state of the share market and possible inflation as the Government seeks to cover their massive expenditure. However, the biggest impact will be the swelling numbers of unemployed and some suburbs will be much more affected than others. Less well-off and growth area suburbs will presumably suffer most as their residents probably have mortgage stress, often jobs that cannot be done from home and have less financial capacity to ride out the bumps that will be coming their way.

We will have a different society when this is through. But it can be a better one. We might make some changes in the way we live, perhaps being closer to our family and neighbours, preparing our own food, better hygiene and exercise habits, less reliance on environmentally disastrous overseas travel and more sustainable ways to get to work.

In a similar vein, in the last couple of weeks we have seen the rapid acceleration of videoconferencing for work and pleasure. It is likely this shift to Zoom rather than roads and trains will continue once the outbreak is over.

The current crisis may be the catalyst that delivers a more sustainable city. One where employment and amenity are more decentralised and closer to where the majority of us live. The Government can assist in this process by supporting projects and businesses in the areas that will be most hard hit and rearranging some of their infrastructure priorities.

A more localised city will be less reliant on long expensive, unsustainable commutes, and will cope better with emergencies as they arise. We will get to know our neighbours, shop locally and work closer to home. This outcome not only promotes resilience in a time of crisis such as COVID-19 but also will give us a diminished carbon footprint to tackle the other emergency of our time: climate change.

But we humans, and our political leaders, have very short attention spans. If our media is anything to go by, we have, at least temporarily, forgotten the all-consuming issues of late last year: bushfires, climate change, and Brexit. When the pandemic passes will its ramifications soon be forgotten, or will we learn lessons from it and make more sustainable and resilient cities?

Peter Seamer’s career has included the planning of new towns in the UK and Australia. He is the former CEO, City of Sydney, Federation Square and the Victorian Planning Authority.

Peterhaswritten“BreakingPoint:TheFutureofAustralian Cities” looking at the need to make Australian cities truly polycentric.

Peter’s website is: howtobuildacity.com peter@seamer.me

Peter Seamer AO

What is the cost of icing?

Urban designers are dangerous. At times we ‘get away with murder’ because of the intangible nature of our field, which makes it difficult to scrutinise recommendations and weigh them up against other aspirations.

In our pre-pandemic society, we allowed ourselves the luxury of intangible urban design goods such as neighbourhood character, a ‘sense of openness’ and limitations on ‘visual bulk’. And we turned a blind eye to the consequences of those luxuries which, fettered development by fettered development, have contributed to Melbourne becoming an increasingly two-tier society like that other much-lauded ‘liveable city’, Vancouver.

The pandemic has forced us and our politicians to focus on what’s really important: human welfare (physical and mental). Populist policies have taken second place to initiatives based on science and expert opinion.

If we were to draw up a hierarchy of human welfare needs that are influenced by built form policies, we would put affordable housing firmly at the bottom of the pyramid—the human need that must be satisfied before moving onto a higher pursuit. This would be closely followed by access to employment, medical facilities, education and social infrastructure, all of which are directly influenced by built form density. (Of course, satisfying these needs for individuals also benefits the community as a whole through a productive workforce.)

Amenities such as access to natural light and fresh air, open space, and sunlight would occupy the next few levels of the pyramid

Mark Sheppard, Managing Principal, Kinetica

Neighbourhood character and visual bulk (which is a subset of character) would be perched at the top—the icing on the cake: something that sweetens the experience but cannot replace the need for the cake.

Yet our current planning schemes prioritise neighbourhood character above all else when it comes to residential development. Restricting development for character reasons has a direct and adverse impact on housing affordability. Left unfettered, the market would better optimise housing affordability and access to employment, with interference limited to the need to support the most vulnerable. Of course, unacceptable amenity impacts must still be avoided, but this can be achieved with much less constraint on development.

Housing close to Central Melbourne has the best access to employment because it has the maximum number of jobs within a commutable distance. Even if we work from home more than we did before the pandemic, we are likely to be going to work at least 2-3 days per week.

Yet we limit the inner suburbs to the favoured few by limiting height or density to protect the existing or preferred neighbourhood character. Even opportunities to provide housing and jobs as strategically valuable as Fishermans Bend and West Melbourne have built form controls based primarily on a desired character with vague and arguable benefits, rather than welfare.

In the post-pandemic world, housing affordability and access to employment will be even more important, as we seek to survive a recession. Will we continue to preference intangible ‘sweeteners’ like neighbourhood character in municipalities like Stonnington, rich in infrastructure and central to Melbourne’s job market, or extend our newfound focus on human welfare to ensuring that they optimise their contribution to the wellbeing of our broader community?

Mark Sheppard is Managing Principal of kinetica. Heisa(dangerous)urbandesignerandcanbecontactedat marks@kinetica.net.au

A hierarchy of human needs influenced by built form policy (with apologies to Maslow)

The general pattern of housing in Melbourne has been set for many years

That conclusion from the 1929 General Plan of Melbourne was based on the dominance in housing style of the single family dwelling along with the extent of private owner-occupation of those houses. The authors concluded that for the planning period ahead, single family type housing will be the predominant form. Almost a century later, both statements remain true.

Reactions to Covid-19 will change the way people behave but will not change any of the critical structures like

• the shape of the city – its layout and patterns;

• the way people live – as in 1929, a single detached dwelling will still be the popular form of housing;

• the way people get around the city – private road transport will continue to be the dominant form with its dominance increased by the older demographic more careful about using public transport, and despite an increasing number of cyclists;

• the use of public space for interaction – people will want face to face engagement with an increased use of technology.

I say:

• Robert Hoddle’s 1837 grid layout for the city and surrounds will not change. It cannot: notwithstanding changes to the purpose or function of the streets.

• The fundamentals of outward growth the 1929 plan for Melbourne are as entrenched as the transport routes it advocated as lines of development. Interesting that the 1929 plan was based on growth at 3.5% per annum.

• The planning scheme prepared by the Melbourne Metropolitan Board of Works (MMBW) from 1954, when it was appointed the planning agency, to 1958 reinforced a century old pattern of development along train and tram lines (thanks to Premier Tommy Bent for his devotion to building many routes around the turn of the 20th century).

• The principles underlying the expansion of the metropolis proposed by the MMBW in 1971 will remain because, eventually, they were supported by implementation strategies and complementary policies for suburbs and particular parts like activity centres that gave us the café society.

Geoff Underwood, Director, Underwood & Hume

• Melbourne 2030, with its manifestation of many of the MMBW philosophies based on objectives of how to control the continuing growth of the metropolis, later spawned policy like growth area policy to shape and fashion that growth.

• The built form born of these policies is fixed. Unlike in 1929, there is higher density development including residential towers in the city area and apartments along the transport routes built on the Adams philosophy. In the growth areas, Precinct Structure Plans set the future for 20 years built on the Seamer philosophy. Under both approaches, both new and renew, the shape of the city is as presented in 1929.

Plan Melbourne 2017-2050 is the current ‘statement of planning policy’. It has outcomes worth pursuing and actions to achieve them. The 1971 changes took 7 years to finalise and much longer before the outcomes were on the ground. That’s the nature of planning. It takes time to achieve and see the outcomes.

A look back helps a look forward. Where we have been directs where we are going. A look back to 1929 gives more than a glimpse of 2050. The bones are strong. The skeleton of the city will not change. If that’s so, what comes from Covid-19?

There will be calls to pause and review what’s happening. It makes sense to take time for review. Maybe there will be calls to rethink the plan. Do all that, but I say the changes from Covid-19 will be behavioural rather than structural. We can’t and won’t change the Hoddle grid nor will we move away from the standardised approach to suburban layouts. We are increasing open space allocations both private and public and there will be more connectivity through walking and cycling but the fundamentals will stay the same. I say, they can’t change.

The way we use the spatial layout of our city will change. There will be more pop-ups to fit uses [only where allowed because no matter how Smart we might get with our planning, zoning will still be the measure and red tape will be red tape]. There will be a reversion to local rather than the centre [supporting the strip centre over the mall for small things, especially the coffee]. Apartment living will lessen in favour because of a perception that living in dense locations is a threat to health [and that means detached housing will still dominate and growing suburbs will be the preferred locations for family living].

The more we change, the more things stay the same.

Geoff Underwood has been at the forefront of planning for over 40 years, serving as Chair on numerous ministerial advisory bodies including: The Victorian Government Urban Development Programme; Victorian Planning System Ministerial Advisory Committee, Zone Review Advisory Committee and the SPPF Advisory Committee. He was also on the VPELA Board for more than 10 years.

Hoddle’s Melbourne Grid Map 1837.

The Business Legal World

In this edition, we look at three cases from VCAT covering a proposed solar energy facility in Stanhope, a decision by President Quigley as to the standing of an objector to an application exempt from third party notice, and a costs application in connection with the Tribunal’s decision to overturn a Council’s refusal of an apartment development.

Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343

In the case of Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343, Senior Member Margaret Baird and Member Graeme David considered an application under s 77 of the Planning and Environment Act 1987 (P&E Act) to review the refusal of Campaspe Shire Council to grant a permit to use and develop 3799 Midland Highway Stanhope for a renewable (solar) energy facility.

The Tribunal overturned the permit refusal of the Campaspe Shire Council. Despite Council determining that the subject land was not an appropriate location for the facility, the Tribunal considered conflicting policy outcomes and found that the proposed facility would not cause detriment to the surrounding agricultural uses or the future use of the land for agricultural purposes. The Tribunal issued the permit subject to conditions.

The Council’s grounds for refusal focussed on the loss of agricultural land and the effect of the proposal on the amenity of the surrounding agricultural area. Whilst recognising there existed policy support for renewable energy facilities, the Council argued the subject land was not appropriately located.

The concerns of two local community groups of objectors included noise, the heat island effect, visual impact, traffic, drainage, and glint and glare of the solar panels.

The determinative issue was the conflicting policy objectives that sought to protect agricultural land while supporting the development of renewable energy facilities in appropriate locations.

Although the subject land contained good quality soil, it was not found to be high quality productive agricultural land. The Tribunal found that the applicant’s proposed facility would not change or degrade the soil condition, did not subdivide or further fragment agricultural land, and the infrastructure to service the facility could be removed so the land could be re-used for agricultural pursuits in future. In regards to the heat island effect (a policy basis for which existed for an urban heat island effect, but not a rural heat island effect), the Tribunal dismissed this objection, as the respondents failed to provide a proper basis for it. The Tribunal found that the noise, drainage, traffic, glint and glare, and visual impact did not warrant a refusal of the applicant’s permit. These issues could be addressed by management plans and other conditions within the permit.

Tess Kerridge, Senior Associate, Holding Redlich

The subject land was deemed to be an appropriate location for the proposed solar renewable energy facility due to it being small and within an area fragmented with rural living properties. The Tribunal found it could offer diversification without unreasonable negative impacts on the surrounding area. The fact that the subject land benefited from irrigation was taken into consideration, however this was not determinative in and of itself as multiple adjacent and nearby properties also possessed this benefit yet did not utilise it in their various rural operations.

Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 555

In the matter of Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 555, President Quigley determined an application under s 87 of the Planning and Environment Act 1987 (P&E Act) by Maddingley Brown Coal Pty Ltd (MBC) to cancel a planning permit that had been issued to Fisken Bacchus Marsh Pty Ltd (FBM) by the Moorabool Shire Council for a 53-lot subdivision of a 7.9 hectare parcel of land at 30 Fisken Street, Maddingley.

In response to the cancellation application by MBC, FBM made an application for summary dismissal pursuant to s 75 (1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). FBM submitted that MBC lacked standing to bring the cancellation application because the subject planning permit application was exempt from third party notice. The objection submitted by MBC could therefore not properly be characterised as a formal objection, and consequently MBC was not able to enjoy the third party review rights available to any person ‘who objected or would have been entitled to object to the issue of a permit’ under section 89(1) of the P&E Act.

President Quigley found that MBC did not have standing to bring the cancellation request and summarily dismissed MBC’s application.

Pursuant to clause 32.04-12 of the Moorabool Planning Scheme, Council was not required to and did not advertise FBM’s planning permit application. Despite this, MBC lodged an objection, which Council took into consideration notwithstanding s 60(3) of the P&E Act, which provides that a Council is not required to consider any objection or submission received in respect of an application if no notice is required to be given under ss 52(1) or 57B of the P&E Act.

The essential element of which the Tribunal had to be satisfied was whether the Applicant had standing to bring the cancellation request. If it was found that MBC did not have standing, this would be a fatal flaw in the application and it would be bound to fail. The Tribunal had to decide whether MBC could be found to be one of the class of entities who may seek relief pursuant to s 87(3)(b) of the P&E Act. Necessarily, this rested on whether MBC could be

properly characterised as ‘any person under s 89’ (per s87(3)(b)). Particularly, whether MBC could be properly characterised as a person ‘who objected or would have been entitled to object to the issue of a permit’.

President Quigley stated that the words in s 89 should not be read in isolation. In order to ascertain their intent and meaning, the words must be considered in relation to the legislation as a whole. Her Honour supported the findings of Justice Garde P in Colonial Range Pty Ltd v Minister for Planning [2015] VCAT 196, that the effect of the Act is that, in the case of applications exempt from third party review rights, third parties have no right to object. They may lodge submissions or make objections but they have no right to object or seek review of a decision to grant a permit as a result of any objection. As such, they cannot be said to be ‘entitled to object’.

It was found that MBC did not have standing to bring its application to cancel the permit. The Tribunal dismissed MBC’s cancellation application on the basis that it was misconceived.

3DickensStreetPtyLtdvBoroondaraCC(Costs)

[2020] VCAT 390

Senior Member Geoffrey Code considered two applications by 3 Dickens Street Pty Ltd, which was the successful applicant in an earlier section 77 application to review the refusal of the Boroondara City Council to grant a permit to develop the subject land for dwellings in an apartment building (‘the section 77 proceeding’). The first was an application for the responsible authority to pay the applicant’s costs for the preliminary hearing in 2017 and a practice day hearing in 2018, and the second was an application that the responsible authority reimburse its hearing fees in relation to the preliminary hearing. The Tribunal determined that none of the grounds relied upon by the applicant were met for either application, and both were refused.

In the section 77 proceeding, Council had refused to grant a permit on grounds that related to its assessment that the application had lost the benefit of transitional provisions in the Boroondara Planning Scheme and that, consequently, there was no discretion to grant a permit. The facts were that the permit applicant had varied the proposal description on the application form from ‘apartment building development’ by adding ‘and alteration of access to a Road Zone Category 1’ (at the request of the Council). This variation to the permit description was deemed by Council to be an amendment to the permit. At the preliminary hearing, the Tribunal determined that the amendment was not an amendment to the application for the purposes of section 50 the P&E Act and, consequently, the application had not lost the benefit of the transitional provisions.

In seeking an award for reimbursement of its costs incurred, the applicant relied on four grounds: vexatious conduct; relative strengths; failure to clarify requests for amendment; and failure to warn.

The Tribunal determined that none of the four grounds relied upon by the applicant had been met.

Boroondara City Council’s conduct was not found to be vexatious in the relevant sense.

Before the Council decided the application, the applicant put the Council on notice that the applicant’s amendment of the application was not an amendment for the purposes of section 50 of the PE Act. Despite this, the Council’s conduct was not found to be vexatious, nor were the Council’s grounds of refusal found to be of the requisite standard of “utterly hopeless”.

Their conduct at the practice day hearing was also not characterised as vexatious.

The applicant then submitted that the relative strengths of its claims supported a finding that it would be fair to make it an award for costs. The Tribunal found that this of itself was not enough to support a costs order. With respect to the strength of the Council’s claims, it could not be said that its claims “had no tenable basis in fact or law” as submitted by the applicant. The Tribunal confirmed that this is a high bar, which was not met by the applicant.

The applicant’s reliance on their third ground of ‘failure to clarify request for amendment’ was also not made out. There was no evidence that the responsible authority’s request to amend the permit application was deliberate or made for an ulterior purpose.

Lastly, the fourth ground of ‘failure to warn of the consequences of the amendment before requesting the amendment’ was not made out. The conduct of both parties was weighed together. It was found that the Council had no duty to alert or warn the applicant of the consequences of the amendments. Furthermore, the applicant’s representative gave very little consideration to the applicant’s request for amendment.

In considering whether to make an order to reimburse all or part of the applicant’s hearing fees, the Tribunal considered the nature of the proceeding; the responsible authority’s conduct; and the result of the proceeding.

In relation to the nature of the preliminary hearing held to determine questions of law, it was found that it was a benefit to both parties that those issues were determined outside of a final merits hearing. The conduct of the responsible authority before and during the proceeding was not found to support an order for reimbursement of hearing fees. With respect to the third ground, ‘result of the proceeding’, the Tribunal reaffirmed the position that success alone does not support an award of costs nor does it support an award for reimbursing hearing fees. The applicant was unsuccessful in making out any of their three grounds.

The applicant’s application for reimbursement of both costs and hearing fee reimbursement was refused.

Tess Kerridge is a Senior Associate at Holding Redlich in the Planning, Environment and Sustainability group, who specialises in planning, development and environmental law, compulsory acquisition, planning litigation and property matters. Tess has extensive experience in planning permit appeals and various environmental law appeals before the Victorian Civil and Administrative Tribunal as well as appeals to the Supreme Court. She can be contacted at tess.kerridge@holdingredlich.com

The Business Municipal Matters

In this edition, the ongoing subject of one dwelling restrictive covenants shows no let up. Shifting sands might be detected in the latest decision of the Supreme Court. There is a follow up mention regarding the hot topic of neighbourhood tree disputes, and potentially yet another jurisdiction for VCAT to look after; and a Policy Statement of the Law Council of Australia recognises the principles described in a decision of the Land and Environment Court of NSW.

Three dwellings detrimental to amenity

In a very recent decision of the Supreme Court of Victoria Hivance Pty Ltd v Moscatiello & Ors ([2020] VSC 183, 17 April 2020) Macaulay J was not persuaded that the beneficiaries of a single dwelling covenant would not suffer a “substantial injury” if a multi-dwelling development was to be permitted on the land burdened by the covenant.

The proposal was of the type that has been developed all around suburban Melbourne - three two-storey townhouses in Reservoir on a “quarter acre block’.

The decision is interesting because of the emphasis the Court placed on the evidence of the defendant beneficiaries with respect to the amenity they enjoyed in the area within which they lived; and the precedent effect of modifying the covenant.

The Court summarised the critical questions in the case to be [3]:

(a) Does the neighbourhood retain a special distinctive character engendered and sustained by the singledwelling covenant?

(b) (b) If so has the plaintiff shown that a relaxation of the single –dwelling restriction on the property will not diminish that distinctive character either –

(i) directly (immediately), because of the construction of the proposed three-dwelling development, or

(ii) in the longer term, by establishing or contributing to a body of precedent that allows more multi-dwelling in the area?

As readers will be aware section 84 of the Property Law Act provides that the court has power to modify a restrictive covenant if satisfied, amongst other things, that “the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction” (s.84 (1) (c )).

What was meant by ‘substantial injury’ was considered in Randell v Uhl [2019] VSC 668 at par [85] (Derham AsJ).

“…. The dichotomy in the section is not between vexatious and non-vexatious claims but is between cases involving some genuinely felt but insubstantial injury, on the one hand, and cases where the injury may truly be described as substantial, on the other”.

“the substantial injury relates to practical benefits, being any real benefits to the person entitled to the benefit of the covenant”.

Assessing whether there will be a substantial injury requires a comparison between: (Randell [85] (d))

The benefits initially intended to be conferred and the benefits actually conferred by the covenant; and

The benefits, if any, which would remain after the covenant has been discharged or modified.

If the evidence establishes that the difference between the two will not be substantial, the plaintiff has established a case for the exercise of the courts discretion under s 84 (1) (c ) of the PLA.

The question to be decided when considering neighbourhood character in Hivance was:

“Does a distinctive character of the area, intended by and supported through the single-dwelling covenant, remain intact and, if so, would the relaxation of that restriction realistically harm that character and cause an injury of substance to the beneficiaries of the covenant?”

In answer to that question, the Court considered the evidence that had been given by the Beneficiaries under the covenant, who described the characteristics of the area within which they lived, and which led them to purchase their homes there.

[21] Such an amenity or ambiance of an area is sometimes hard to put into words. Nonetheless, with remarkable

Julie Davis, Barrister

consistency, the defendants highlighted the large and generous proportions of the blocks of land, the sense of open space and privacy; the predominance of family homes….; and the absence of congestion.….. In my opinion, the ‘lived experience’ of those who dwell in the neighbourhood, those who have an occupant’s sense of the environment, is not only relevant but weight may be given to it.”

The Court determined that the whole of the evidence was found to indicate that the distinctive character of the area remained intact; and that character amounted to a real and practical benefit for the members of the neighbourhood, including the beneficiaries of the covenant on the property.

o Address existing harm to anyone on the affected neighbour’s land that is caused by a tree;

o Prevent harm that is likely to occur within the next 12 months.

The Court in Randell also referred to the ‘precedent value’ of a modification. That is where a modification could be used to support further applications resulting in further encroachment, thus defeating the object sought to be achieved when the covenant was imposed. This reasoning was adopted and referred to in Hivance

[41] “Perhaps the more significant form of potential injury to the beneficiaries, however, would arise from the precedential effect of relaxing the covenant…. [43] “Each further relaxation of a restriction either cements the particular precedent as the acceptable norm rather than the exception or, logically, heightens the risk that the next application will bring the situation closer to the flood-gate scenario”.

Following up – neighbourhood tree disputes – report

Following on from my article in the October 2019 edition of VPELA Revue, the Victorian Law Reform Commission has released its report into Neighbourhood Tree Disputes (VPELA Revue October 2019). At 330 plus pages, the report is very comprehensive. Given the pressure it is under, VCAT will no doubt raise an eyebrow at the suggestions that a new Act “is the best way to ensure that disputes are resolved in a quick, inexpensive and effective way [(par 16]”; and that under the proposed Act an affected neighbour would be able to bring a matter in VCAT to:

o Prevent or remedy damage to the affected neighbour’s land or property that is caused by a tree

o Prevent damage that is likely to occur within the next 12 months

The report acknowledges that there is a myriad of levels and complexities associated with tree disputes; and there is no one clear law. Chapter 10 of the report notes that the management and removal of trees on private land is affected by numerous laws and policies, including:

Planning and Environment Act 1987; Local Laws made under the Local Government Act 1989, Heritage Act 2017, Aboriginal Heritage Act 2006, Fences Act 1968, Catchment and Land Protection Act 1994, Victorian Conservation Trust Act 1972, Conservation, Forests and Lands Act 1987, Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

There is also legislation which relates to the management of vegetation for fire prevention, to minimise interference with power lines and to protect public health and wellbeing and the environment.

Given the current circumstances we are dealing with, a new Act is likely to be a long way off.

Law council of australia policy on sustainable development

In September 2019, the LCA released its Policy on Sustainable Development. Pursuant to its Rule of Law Principles, the LCA provides that “States must comply with their international legal obligations whether created by treaty or arising under customary international law”.

Key Principles are drawn from the principles set out in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (approved by the NSW Court of Appeal in subsequent cases). Those Key Principles are:

1 Sustainable use

Natural resources should be exploited in a manner which is sustainable or prudent or rational or wise or appropriate.

2 Integration

Effective integration of economic, environmental and social consideratons in the decision-making process.

3 Precautionary principle

If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(see Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (24 March 2006; and WOTCH v VicForests (No 3) [2020] VSC 220 (29 April 2020))

4 Intergeneratioal equity

The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhance for the benefit of future generations.

5 Intragenerational equity

People within the present generation have equal rights to benefit from the expoloitation of resources and from the enjoyment of a clean and healthy environment.

6 Conservation of biological diversity and ecological integrity

Conservation of biological diversity and ecological integrity should be a fundamental consideration in all resource management and planning decisions.

7 Internatlisation of environmental costs

Environmental costs should be internalised into decisionmaking for economic and other development plans, programs and projects likely to affect the environment.

8 Global dimension to implementation

The global dimension of environmental impacts of policies and actions should be considered.

(Go to hansard.parliament.vic.gov.au)

JulieDavisLLB;MasterofBusiness(CorporateGovernance Barrister experienced in Environment, Land, Water, Planning and Local Government Law. Email: julie.r.davis@vicbar.com.au

Adapting to a COVID-19 workplace

When I reflect on the last few months I keep coming back to how incredibly lucky the Boroondara Statutory Planning Department was to have completed our paperless planning process before the word Coronavirus was a part of our vocabulary. Rather than needing to create band aid fixes, we had the benefit of having completed a process that gave us the time and space to implement, test and improve our entire planning process. This enabled a relatively smooth transition in a very short timeframe.

Benefits of the Paperless Process

Some of the benefits that were key in facilitating our transition were:

- Use of a program which allows us to electronically assess, stamp and sign endorsed plans. This eliminated issues with lodging plans when the counter was closed, and planners did not require any physical files or plans at home.

- Virtual dashboards which allow us to allocate, review and monitor workloads. These real time workload monitoring systems allows transparency and monitoring of trends.

- Use of a file storage program which allows us to replicate a physical file, including subfolders for each stage of the planning process.

- An online planning register which enables community members to review advertised plans online.

The first hurdle

However, having to transition and adapt 1200 staff and their roles Council wide, and 40 staff within the Statutory Planning Department from the office to home was not without its challenges.

The biggest physical challenge was needing to source laptop computers and docks for two thirds of our planning staff, set them up with SIMs and VPNs to allow access to our network from home and deliver two monitors and an office chair to every staff members home.

This was a huge personal and professional challenge. I needed to manage staff concerns and anxiety, whilst also assessing the known risk at that time and ensuring that we provided a planned and co-ordinated approach. We couldn’t simply shut down the planning counter on day one. Here were very different approaches in different Councils, which created more uncertainty both for community and our staff.

What services have needed to adapt?

On Monday 16 March 2020 the Victorian Government declared a state of emergency and Boroondara Council formally activated its Crisis Management Plan and Municipality Pandemic Response Plan to protect our community and staff. Two days later all public counters, recreation centres and libraries were closed and no public access was permitted to Council buildings.

Marjorie Kennedy

In order to adapt to this change we (amongst many other things):

- Transitioned all meetings to webex a virtual meeting program;

- Set up all the laptops to be able to receive calls from our work phones and a remote hunt group for calls to our general number;

- Changed the planning pre-application and heritage advice service to be by phone only;

- No longer made advertised plans available for physical viewing at Council Offices. Plans were made available online and copies can be mailed out on request. To help facilitate this advertising was extended to 28 days;

- Have proactively approached VCAT applicants and objectors to facilitate consent orders where possible and request the matter to be dealt with on the papers; and Participated in ‘immediation’ compulsory conferences and hearings at VCAT.

It has been fantastic how these measures have been embraced.

Council meetings

Boroondara Council makes on average over 1200 planning permit decisions per year, with only a small handful of those decisions being required to be presented to an Urban Planning Special Committee Meeting of the Council.

In April, Council meetings continued to be run in the Council Chamber. Social distancing measures were put in place for Councillors and a live stream for the public, with speakers provided a timeslot to present. By May, thanks to the State Government Omnibus measures, we were able to transition to a virtual Council meeting, live streamed on the Boroondara website.

Whats next?

Whilst this has been an incredibly challenging time both professionally and personally, I believe there is a real sense of optimism. We have been forced to change, to adapt how we lead and communicate, had our perspectives on workplace flexibility challenged and been forced to try new technologies. I have been amazed at how resilient our staff are and how creative and adaptive they are when confronted with challenges.

These lessons will have lasting impacts on the way our industry operates and I look forward to seeing the continuation of these adaptive and creative solutions we have created together.

Marjorie Kennedy is Statutory Planning Co-Ordinator at Boroondara Council with experience in both Local Government and private consultancy.

Email: Marjorie.Kennedy@boroondara.vic.gov.au

The Business Working from home with the Young Professionals Group

Most, if not all, of our industry is currently working from home. For most of us, this is unchartered territory, as our home becomes our office, our family becomes our colleagues and personal and professional lives sit somewhat uncomfortably close together. The challenges are wide-ranging and extend anywhere from missing social interactions and reduced productivity to overcoming the monotony of a less-stimulating routine.

Whilst these issues are cross-generational, young professionals may be feeling the burn of this as we are more likely to be dependent on our colleagues for professional or personal support and are, arguably, less disciplined to stay on task. On the flip side, the young professional cohort may have an inherent advantage in this situation with a greater understanding of the necessary technology and therefore greater options for maintaining our productivity and social networks.

Let’s have a lighthearted look at the positives:

• Forget 20 minute neighbourhoods! Let’s talk about 1 minute neighbourhoods – the commute to work has never been quicker or better for the environment (if my manager is reading this, yes I will still be late to work).

• No more noisy desk neighbours or loud office banter means extended quiet time where work that requires a more concerted effort can be readily done.

• Lunch and break times are no longer dead time and can be used more productively, such as for small jobs around the house.

• No unnecessary travel to unnecessary meetings.

• No more getting stuck in conversations with your colleagues that you’re not overly interested in.

But of course, where there are positives, there are usually also negatives:

• We’re not surrounded by our colleagues for office banter, social support and most importantly, to have a whinge (if a planner or lawyer whinges while in isolation do they actually make a sound?).

• Separating our home lives from our work lives is more difficult than ever.

• The loss of incidental and passive exercise, whether that is from your commute, or moving around the office.

• Slow internet access or other tech issues.

So how can we make working from home a more palatable and enjoyable experience?

To start with, get yourself properly set up. Have a well organised work space that is well ventilated, has plenty of natural light and is preferably doesn’t have sightline to a TV or arms reach of a fridge. A room with a closable door is ideal. And, of course, a coffee machine is a must have item.

Try and maintain your social interactions for both professional and personal benefit. On the professional side, make time to call your colleagues each day, either individually or as a group. Provide time for junior staff to ask questions of senior staff. On the more fun side, schedule team catch ups with a strictly social agenda. Try some trivia, story time or even a meet my pet (child). These initiatives are more important now than ever to ensure that everyone remains connected and engaged with their team.

Find a routine that works for you and try and stick to it. Schedule times for breaks for breakfast, lunch and exercise. Find a way to mark the transition between work and non-work time. Avoid dressing like a slob so you feel like you’re in work mode and in case someone important springs a surprise video conference on you (or at least avoid dressing like a slob from the waist up).

Whilst routine is important, find ways to make sure every day is not exactly the same. If you share a house with a number of people, you might like to try a new ‘theme’ every day - ‘I was thinking more like… funny hat day!’

Lastly, be actively conscious of how you are spending your time and how you are feeling on a day-to-day basis. It’s important to readjust your expectations, don’t over commit yourself as time moves very differently at home. Be realistic about what you can get done and don’t be too hard on yourself about not achieving it. Most importantly, if you’re not coping, tell someone. Let a colleague or your manager know that you’re finding this situation challenging. You might find they’re also struggling and have suggestions on how to work through it.

If you are struggling working from home, our take-away tip is to simply write your own list of positives and negatives. Relish in the positives it has brought you and think about how to offset the negatives. For example:

• Not being surrounded by colleagues truly enlightens us to the benefit of having good colleagues;

• Having work and home life so close can really make us more efficient in both realms;

• Loss of incidental exercise could force us to start new habits of deliberate exercise.

So what are your tips on working from home?

Jack Chiodo is the Statutory Planning Appeals Advisor at Manningham City Council and is a co-convenor of the VPELA’s YPG committee. Zac Van Grondelle is a Senior Urban Planner at Glen Eira City Council and member of the VPELA’s YPG committee.

continues over page

Zac Van Grondelle Jack Chiodo

VPELA Webinar

Business as (un)usual & COVID-19

Omnibus Emergency Response Measures Webinars

The release of the COVID-19 Omnibus (Emergency Measures)

Bill 2020 on the 24 April 2020 followed unprecedented upheaval across the world. Here in Victoria, employees were sent home with little warning or preparation. Local Council’s sent their staff home, business were suddenly working remotely, and VCAT and Panels Hearing were unable to proceed. It quickly became evident that, whilst many business within the built environment industries were able to continue operating, others were facing some significant hurdles. Face to face Council Meetings, preapplication meetings, committee consultation meetings, as well as VCAT and Panel Hearings were unable to proceed and many ‘normal’ steps in the typical planning permit application process were unable to occur in the specified manner required by the Planning and Environment Act 1987.

The release of the COVID-19 Omnibus Bill generated significant industry interest and VPELA was fortunate to have Stuart Menzies (Director State Planning Services at DWELP) appear as a key speaker at two recent VPELA webinars.

Firstly, Stuart briefed us on the immediate challenges facing State Government and Councils as a result of Covid-19 during the Business as (un)usual - How Councils are responding to the Coronavirus webinar on 8th April 2020. Stuart briefed us on various facilitation initiatives under investigation by DWELP at that time including Amendment VC181 and also the establishment of the Crisis Council of Cabinet. Secondary, following the Omnibus Bill receiving Royal Assent, Stuart provided us with a summary of the key legislative changes relevant to our broader industry during the Government Emergency Response Measures webinar on 30th April 2020.

We were also privileged to have the opportunity to hear from Cathy Mitchell and Justice Michelle Quigley about how Planning Panels Victoria and VCAT were managing the procedural and

ARE YOU INTERESTED IN SUBMITTING AN ARTICLE FOR THE VPELA REVUE?

Members are invited to submit articles for publication in the VPELA Revue. If you have a topic that you are passionate about, why not share your view with others? We are always happy to stimulate debate over any issue.

Suggested article length is 1000-2000 words and photos are always a good inclusion.

Just forward your submission to our editorial team at admin@vpela.org.au or call 9813 2801 to discuss.

Tim McBride-Burgess, Director Contour Consultants

practical challenges associated with the social distancing measures implemented by the declared Victorian State of Emergency. Susan Brenan SC then provided some acute insights into the ‘procedural fairness’ considerations which may arise from the Onmibus Bill amendments.

Sarah Griffiths (City of Yarra), Brett Davis (Moyne Shire) and Phillip Priest (City of Moreland) also provided an update on how their respective Councils were coping during these unusual times. This represented a follow-up to the earlier presentations during the Business as (un)usual webinar by Marjorie Kennedy (City of Boroondara), Jodi Kennedy (Bass Coast Shire), LauraJo Mellan (City of Melton), Paul Wood (City of Glen Eira) and Matt Cohen (DELWP). The insight provided by these presenters about the successes and challenges faced by each Council was valuable for applicants, consultants and other Councils alike.

The key takes out from the sessions were:

• The Omnibus Bill allows Council Meetings by electronic means, and that live-streaming of a Council Meeting amounts to it being conducted in public.

• The Omnibus Bill allows for a document required to be made available for inspection free of charge to be made available on the Council’s website.

• VCAT and Panels can now conduct proceedings and hearings through electronic means.

• The above mentioned changes will be repealed 6 months after commencement.

• Where appropriate PPV Hearings are now being conducted in a video conference format. The last face-to-face hearing was held on the March 25th. PPV does not have preferred video conference format and has used both Skype and Microsoft Teams.

• All VCAT matters which were adjourned between March and May 15th and all matters after May are being ‘triaged’ to identify the most appropriate method of proceeding, either by telephone, teleconference, video conference or ‘on the papers’. If the matter is not capable of proceeding in one of those ways and requires a ‘face to face’ hearing it will be adjourned until that means is available.

• New VCAT matters are being listed for hearing from February 2021.

• Thank you again to the all participants that contributed these two fabulous and informative webinars. For those that missed them, they along with all recent VPELA webinars remain available to watch on the VPELA website.

Tim is a director of Contour Consultants and a proud and passionate town planner. His balanced approach to planning means that he is a valued and in demand expert at VCAT. He has been a member of VPELA since April 2005 and a Board member since 2019.

The Business Solar and wind energy facilities Planning and environment update

Victoria’s renewable energy transition will need to continue apace to ensure that the legislated target of 50% renewable energy by 2030 can be achieved. Grid connection hiccups due to Australia’s ageing transmission infrastructure, financing challenges with the current marginal loss factor framework, and other regulatory and political factors have hampered the flow of new projects in recent times.

The Building Victoria’s Recovery Taskforce, set up by the Victorian Government to look at planning and investment options to provide stimulus to the Victorian economy in the wake of the COVID-19 pandemic, has a focus on planning options to facilitate shovel ready projects which specifically includes those which will deliver reduced greenhouse gas emissions.

Increased regulation is trying to address a number of matters related to the role renewable energy will continue to play in Victoria and nationally, such as:

• Changes to the Renewable Energy (Jobs and Investment) Act 2017 will commence by August 2020, to increase Victoria’s renewable energy target to 50% renewable energy by 2030. The legislation now recognises hydro projects as contributing to this

• Amendment VC157 (March 2019) regulates the manner in which renewable energy generators can be connected to transmission infrastructure, given the growing need to connect large scale electricity generation facilities over substantial distances to existing networks

• The National Electricity (Victoria) Amendment Act 2020 enables the Victorian Energy Minister to override aspects of the National Electricity Law and National Electricity Rules to accelerate the development of transmission system upgrades and augmentations

• At the federal level, an approvals and regulatory framework for offshore clean energy infrastructure is currently being developed, allowing some marine areas as suitable for clean energy generation

At a policy level, planning applications for solar and wind projects consistently need to address the tension between conflicting polices for the promotion of renewable energy and the protection of agricultural land and amenity in rural areas. This tension is inevitable given such projects are inherently attracted to farming zoned land due to, amongst other reasons, the need for large land requirements. An increasing need for guidance in the sector has become evident, with the Policy and Planning Guidelines for the Development of Wind Energy Facilities in Victoria being updated in March 2019 and the Solar Energy Facilities Design and Development Guideline (Solar Guidelines) being approved in September 2019.

Solar energy facilities

Solar Guidelines

The introduction of the Solar Guidelines brings Victoria in line with other jurisdictions, including Queensland and New South Wales, which also have solar farm planning guidelines in place.

Amendment VC161 (September 2019) introduced the Solar Guidelines as well as the following:

• A new State planning policy (Clause 14.02-3S) for the protection of declared irrigation districts, with applications for renewable energy facilities within such districts required to be referred to the Secretary of the Department administering the Water Act 1989.

• The Minister for Planning is now the responsible authority in relation to the use and development of land for a renewable energy facility or an associated utility installation with an installed capacity of 1 megawatt or greater (the Minister was already the responsible authority for wind energy facilities).

The Solar Guidelines outline a number of factors to assess appropriate site selection, design outcomes and consultation and engagement. They also address several planning considerations pertaining specifically to solar farms, including those foreshadowed by the Greater Shepparton Solar Farm Panel (July 2018) such as minimum setbacks, landscape screening, glint and glare management, design security, traffic impacts, noise, earthworks and dust management, electromagnetic radiation and interference and heat island effect. Flood and drainage management is also an area of focus in the Solar Guidelines, which was a primary reason for the refusal of a solar farm permit in Bookaar1

Agricultural land considerations

The new decision guidelines in Clause 53.13, the new policy at Clause 14.02-3S as well as the Solar Guidelines place emphasis on the protection of significant agricultural and irrigated land. Separately, an assessment to identify strategic agricultural land currently being undertaken by DELWP will see those areas being recognised in the VPPs in a future amendment, expected by 2021.

VCAT has provided insights into this issue in some recent decisions.

Ellen Tarasenko and Thomas Ellicott, Herbert Smith Freehills

The refusal of two projects in Powervault 2 was due to the inability of those projects to overcome the strong policy position in the Mildura planning scheme for the protection of agricultural land that is productive and significant in the regional and local sense which, in particular, includes irrigated land. This is despite:

• the sites being vacant and not used for the past ten years for any agricultural purpose

• one site only having allocation under a water use licence to irrigate less than half the site

• no objection to the proposals from Lower Murray Water

• expert evidence that the loss of the sites from horticultural production would not be noticeable from an economic perspective, given that there are already over 3,600 hectares of vacant land not being used for any agricultural purposes in the Mildura Older Irrigation Area

The Tribunal found that these sites have the potential for production in the future and so should be protected for this overriding purpose. This is in contrast to the Stanhope solar farm3, which was granted a permit by the Tribunal despite the site being within an irrigation district (albeit not actively irrigated), holding a water entitlement, bore and water access and the proposal being objected to by Goulburn Murray Water.

While renewable energy projects have strong policy support in the VPPs and the Victorian government’s renewable energy target, the location of these facilities within irrigated agricultural farmland raises a number of competing considerations. Equally, three of the four solar projects considered by the Greater Shepparton Solar Farm Panel waited over 12 months to receive planning approval, due to the further work undertaken regarding the region’s irrigation infrastructure.

It should be noted that each of the above decisions were issued either prior to the approval of Amendment VC161, or with the relevant transitional provisions applying – as a result the Solar Guidelines and other provisions now established within the VPPs were not considered.

Wind energy facilities

Local community considerations

While wind energy facilities have been established in Victoria for some time, some facilities are experiencing complaints or claims from surrounding local communities. These commonly relate to noise, nuisance or other amenity impacts (including during construction phase). Nuisance complaints under the Public Health and Wellbeing Act 2008 are not necessarily resolved by assessing whether a wind farm is compliant with planning permit conditions and the mandatory NZ Noise Standard4).

Impacts to local biodiversity may also be a focus and remain a key issue for project approvals.

The Clean Energy Council has updated its Best Practice Charter for Renewable Energy Developments and Guide to Benefit Sharing Options, demonstrating the industry’s increased proactive engagement with local communities. Robust stakeholder engagement through the various project stages, and the use of bespoke neighbour agreements where appropriate, are strongly encouraged.

New noise regulation

Amendment VC160 (24 January 2020) has clarified that applications to amend wind farm permits do not need to resubmit mandatory noise assessments, if the amendments sought would not alter the findings of the earlier assessments submitted.

Separately, amendments to the Environment Protection Act 2017 (EP Act), now expected to commence on 1 July 2021 (or 1 December 2021 at the latest), will require wind energy facilities to comply with the new general environmental duty (GED) (along with a whole suite of other reforms). The GED will operate separately from planning permit requirements.

The GED will require that ‘a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable’. Significantly, ‘human health’ is defined to include ‘psychological health’. The GED will require management of noise impacts from operations, given that the definition of ‘pollution’ includes noise pollution. A person commits an offence if they contravene the GED in the course of conducting a business undertaking.

Further, section 166 of the EP Act prohibits the emission of ‘unreasonable noise’ from non-residential premises. ‘Unreasonable noise’ is defined to include noise that is unreasonable having regard to certain listed factors:

• its volume, intensity or duration;

• its character;

• its time, place and other circumstances in which it is emitted;

• how often it is emitted; and

• frequency spectrum (a prescribed factor under the draft Regulations).

Wind energy facilities will need to assess whether their operational noise remains reasonable for the purposes of section 166 once it comes into effect, including by reference to adherence to planning permit noise conditions.

Ellen and Tom are Senior Associates in the Environment, Planning and Communities team at Herbert Smith Freehills. You can subscribe for blog updates at https://hsfnotes.com/environmentaustralia/.

The authors would like to thank Tanya Wesseik, Paralegal, for her contributions to this article.

Endnotes

1. Bookaar Renewables Pty Ltd v Corangamite SC [2019] VCAT 1244.

2. Powervault Mildura Generator One Pty Ltd v Mildura Rural CC [2019] VCAT 1473 (23 September 2019).

3. Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343.

4. New Zealand Standard Acoustics – Wind farm noise NZS 6808:2010.

The Business Environmental news and views

Understanding Preliminary Aboriginal Heritage Tests (PAHTs)

Cultural Heritage Management Plans (CHMPs) are recognised as best practice for protecting and managing Aboriginal cultural heritage before, during and after development. There are specific triggers under the Aboriginal Heritage Regulations 2018 (the Regulations) for the mandatory requirement for a CHMP (such as a proposed “high impact activity” occurring in an “area of sensitivity”). Where there is uncertainty as to the requirement for a CHMP, a Preliminary Aboriginal Heritage Test or PAHT (pronounced “part”) can provide some certainty at the outset of a project.

The PAHT offered under the Aboriginal Heritage Act 2006 (the Act) was introduced to give greater clarity as to whether a CHMP is mandatory for an activity. If the PAHT is “certified”, statutory exemption for the preparation of a CHMP is provided.

As at 31 May 2020, 138 PAHTs have been certified, and 25 PAHTs refused. Unlike VCAT red-dot decisions, PAHT decisions do not set precedent; each is considered on a case-by-case basis. Previous PAHTs are lodged on the Victorian Aboriginal Heritage Register (VAHR) and accessible for the purposes of s.146 of the Act.

Here we present some common questions put to us by clients.

What is the intention of the PAHT?

PAHTs are designed to provide certainty to Sponsors as to whether a CHMP is mandatory for a proposed activity under the Act and the Regulations. The PAHT process determines early on if a mandatory CHMP is triggered or exempt. Commonly, a PAHT is used for certification of the finding of Significant Ground Disturbance (SGD) (as defined under r.5), but the process can be used wherever there is any uncertainty as to the requirement for a CHMP.

Should the PAHT be prepared for the common use of demonstrating SGD, once certified, it is a statutory agreement that the area of cultural heritage sensitivity within an activity area has been significantly disturbed (as per the specific definition), which in turn removes that sensitivity. Once all the area of cultural heritage sensitivity is removed, a mandatory CHMP is no longer triggered. Note that fill placed over natural ground surface is not SGD, nor is the presence of sludge from gold mining.

Ecology and Heritage Partners have been engaged to prepare PAHTs for reasons other than proving SGD. One example was to seek certification on whether an activity was a high impact activity. Opinions were divided, so the question was put to the “test”. While the outcome determined it was not a high impact activity, there were still grounds to believe that Aboriginal heritage may be impacted by the activity. As a result, the PAHT was refused and therefore, the best practice for management of potential heritage was the preparation of a voluntary CHMP.

Is a PAHT required prior to a CHMP?

Undertaking a PAHT is generally a voluntary decision made by the Sponsor. A statutory approval authority such as a Council can require a certified PAHT be presented if there is uncertainty as to whether a CHMP is mandatory.

If it’s voluntary, why do a PAHT?

If a developer believes they have a strong case, for example, of SGD being present in their activity area, and therefore there is little to no chance for Aboriginal cultural heritage to be present, then a PAHT can assist in progressing a planning application and project. While CHMPs are best practice, there is no doubt that they take time to prepare (usually many months) and come with associated costs. If it is likely no harm will come to Aboriginal heritage, as none is considered to be present, then a CHMP may not be the most appropriate mechanism for your project. The PAHT process can have a positive impact on project timelines and budget being more like a due diligence assessment and less onerous than a CHMP. A site visit may be required to document the condition of the property, particularly if the PAHT seeks to prove SGD. Geotechnical testing results can also provide solid evidence of soil disturbance and the results can be included in the PAHT.

How do I know if a PAHT is the best option?

Undertaking a due diligence assessment can help determine whether a PAHT will be a viable and recommended option. A qualified Heritage Advisor or Registered Aboriginal Party can advise on this.

How is a PAHT conducted?

Any persons, including the Sponsor, can prepare and submit a PAHT but a Heritage Advisor or Registered Aboriginal Party usually need to be engaged to access the Victorian Aboriginal Heritage Register (VAHR). Expert assistance in preparing the documentation may lead to a smoother evaluation process.

Preparation of a PAHT will need to include details on relevant background assessments, ground inspection or surveys, existing Aboriginal cultural heritage, the nature of the proposed activity and a conclusion as to whether a CHMP is mandatory. The details form the basis of the PAHT to be submitted for certification.

Who evaluates the PAHT?

The Secretary to the Department of Premier and Cabinet (DPC; Aboriginal Victoria) is responsible for the assessment of PAHTs in Victoria. The Regulations set out a prescribed level of information that must be provided including a search of the VAHR.

Annie Ayres and Tyler Whitmarsh, Ecology Heritage Partners

Once a PAHT has been submitted and the fee paid, the Secretary has 21 days to evaluate the PAHT. The evaluation period ceases to run if the Secretary requests further information and recommences when such information has been provided.

If the Secretary finds that the supporting information in the PAHT sufficiently demonstrates that a CHMP is not required, the PAHT will be certified. Certification of a PAHT provides a statutory exemption from preparing a CHMP and can be included with permit applications. Refusal of a PAHT does not provide exemption and a CHMP (or the appropriate measures for protection and management of Aboriginal heritage) must be prepared for the proposed activity. As a voluntary process there is no appeal provision to the Secretary. Should a PAHT be refused, while the decision cannot be appealed to the Secretary, the matter can still be considered by VCAT, noting that the Secretary does not replace the courts. A statutory approval such as a planning permit cannot be issued without an approved CHMP if it is deemed mandatory.

How much does a PAHT cost?

Fees are dependent on the size of the proposed activity area. Currently evaluation of a PAHT for a small activity area is $355.44;

a medium activity area is $696.07; and a large activity area is $1,051.51. Other costs include access to the VAHR ($266.58), and additional fees if you engage a specialist to prepare the PAHT on your behalf.

The best outcome for your project

Whilst a PAHT can have a positive impact on project timelines and budget, it is not always the best course of action or appropriate for your project. Early due diligence assessment by a Heritage Advisor determines the legislative requirements regarding cultural heritage for your project, and the likelihood of a PAHT being an option.

For further information, see aboriginalvictoria.vic.gov.au/ preliminary-aboriginal-heritage-test; or contact a registered Heritage Advisor.

Annie Ayres is Senior Heritage Advisor and Cultural HeritageTeamLeader(aayres@ehpartners.com.au),and Tyler Whitmarsh is Cultural Heritage Technical Officer (twhitmarsh@ehpartners.com.au)withEcologyHeritage Partners(ehpartners.com.au/1300839325).

Young Professionals Innovation Awards

Each month for the rest of 2020, a Young Professional member of VPELA will be recognised for their ability to respond to COVID 19 and the changes to work practices in the wider context of the industry moving forward post COVID.

The monthly recipient of this award will receive a gift card to the value of $150, as well as recognition through the VPELA Update and on the website each month.

Criteria

Nominees must have been a member of VPELA for over 12 months and aged under 35.

Nominees should demonstrate adaptiveness, positivity and teamwork in response to the current situation and as we move from lockdown, a willingness to continue with the evolution of industry procedures.

Nomination

Employers are asked to nominate their outstanding Young Professionals in 250 words or less, detailing why their Young professional should receive this award.

You can download the nomination form from our website here

The YPG Innovation Awards are proudly sponsored by

The Business Sound Bites

A good night’s sleep with BADS

The Better Apartments Design Standards (BADS) were implemented in the Victoria Planning Provisions and all planning schemes via Amendment VC136 on 13 April 2017.

One of the objectives of BADS is to protect residents from external noise sources.

External noise requirements for BADS –traffic and transport noise

BADS specifies that apartments must be designed to achieve specific noise levels if they are located within a Noise Influence Area.

The Noise Influence Area is defined in Table 1 of the Planning Practice Note 83 and reproduced below.

If an apartment falls within a Noise Influence Area then it must be designed to achieve the following internal noise levels:

• Not greater than 35 dB for bedrooms, assessed as an LAeq, 8 hour from 10 pm to 6 am

• Not greater than 40 dB for living areas, assessed as an LAeq, 16 hour from 6 am to 10 pm

Edward Griffen, Consultant, Marshall Day Acoustics

Does the BADS noise standard work?

How does the BADS noise standard compare with design guidelines that are used by acoustic consultants?

Will meeting BADS provide acceptable internal amenity?

The AAAC (Association of Australasian Acoustic Consultants) provides a guideline for apartment acoustic ratings. The rating system is based on a star rating where a 6 star rating provides the highest level of acoustic quality and a 2 star provides the bare minimum.

For external noise intrusion, the star rating guideline is as follows in Table2 (following page):

The BADS criteria adopts the period of 2200-0600 hrs for measuring noise in bedrooms, while the AAAC standard nominated a longer time period of 2200-0700 hrs which includes the morning peak traffic period between 06000700 hrs.

Notwithstanding this difference, meeting the BADS criteria would result in an apartment with a rating of 2-3 stars. This is at the lower end of the star rating range and is considered to represent a minimum to just acceptable quality level. In addition, BADS does not assess intermittent noises such as the maximum noise levels of train or vehicle pass-bys.

Developers wishing to provide a higher level of amenity should adopt criteria based on achieving 4-6 stars and also include an assessment of intermittent noise.

Will future residents get a good night sleep in an apartment that just meets the BADS criteria? The jury is still out but as more apartments built to BADS standards are completed, there will be an opportunity to assess the result both objectively and subjectively.

Edward is a consultant based in Marshall Day’s Melbourne Office. He graduated with a Bachelor of Mechanical and Sustainable Energy Engineering from the University of Adelaide in 2015 and is part of the Marshall Day environmental team.

Edward Griffen EGriffen@marshallday.com

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Reference Documents

(https://www.planning.vic.gov.au/policy-and-strategy/betterapartments#documents)

The following guideline documents are available:

Planning Advisory Note 66 (April 2017)

• Provides information regarding Amendment VC136

• Defines an “apartment”

• Explains new apartment provisions in relation to Objectives, standards and decision guidelines

Better Apartment Design Standards (December 2016)

• Provides design standards for new apartments

• Includes noise objectives, standards and decision guidelines

• Standard B40 and D16 refer to noise impacts

Apartment Design Guidelines for Victoria (2017)

• Provides guidelines for design and assessment of apartments

• Provides design guidelines for meeting standards D16 and B40 (pages 38-43)

Planning Practice Note 83: Assessing external noise impacts for apartments

• Specific guidance for assessing external noise to apartment

• Provides methodology for measuring noise levels

• Includes standard treatments for building façade design

Better Apartment Living: Buyers and Renters Guide

• Includes amenity issues to consider when buying or renting an apartment

• Highlights items related to noise amenity

The Business Tribunal Talk

From 18 May 2020, VCAT will be progressing currently listed matters using telephone or video conferencing where they can reasonably proceed.

If a matter is currently listed to be heard on or after 18 May 2020, VCAT will contact parties to confirm whether their matter will progress on the listed date and by which technology.

The technology used will depend on the requirements of the matters such as their length, complexity and the number of parties.

Matters that can be determined ‘on the papers’ will continue to be determined in that way.

VCAT will advise when face-to-face hearings resume.

All listed matters which can only proceed face-to-face either have or will be adjourned until a future date to be fixed. Mediations conducted by VCAT Panel Mediators will resume.

VCAT appreciates the challenges presented by our response to the pandemic, and thanks you for your patience. We are still accepting all relevant matters and will contact you to discuss potential hearing dates.

Visit our website for further information. www.vcat.vic.gov.au

Welcome to our new members…

Georgie Birch City of Stonnington

Nicholas Bunney Tract

Courtney Campbell Development Solutions Victoria

Roshan Chaile Victorian Bar

Philippa Crone Crone Architects

Julia Gillies Clayton Utz

Angelika Kons Ratio Consultants

Nathaniel Man Yarra Ranges Council

Kate O’Reilly SD Planning

Tanner Redden Harwood Andrews

Kristen Saul Urbis

Tiffany Scott Moonee Valley City Council

Tegan Smith Groundwork Plus

Georgia Tsebelis SD Planning

Francesca Wiseman Student Member

Don’t forget to check out VPELA’s facebook page. This is a great way to keep in touch with what’s on. You can find us at VPELA 1

The Business Rory’s Ramble

Post-COVID-19: the way ahead

After 10 weeks at home running a business by Zoom and getting lots of odd jobs done around the house, I had my first dinner at a restaurant last night. It was nice to be out but odd sitting isolated in the middle of an empty room. It looks like our office life is still a while away.

The construction industry has been fortunate to be allowed to continue throughout the crisis, as it’s seen as an essential service and the major employer in the Victorian economy, and particularly as an economic generator of the State. It took a lot of co-operation between HIA, UDIA, MBA, PCA and unions to assure Government that we could safely conduct our business, which we have successfully done.

Property has been a rollercoaster the last few years in terms of demand, supply and prices.

Firstly, we experienced major price rises in 2017-18 – due to high population increases, low interest rates and a shortage of properties available for sale thanks to a lack of PSP-approved land. Lot sales peaked at 23,000 in 2017 compared to a sustainable annual average of 15,000 lots. The average greenfield house and land package tipped over $700,000.

The word ‘Affordability’ became the topic on everyone’s lips.

The problem is, the cost of producing a block of land also increased with the rising price of land. It was fuelled by a supply shortage and competition from overseas buyers; the raw landowner put their hand out for exorbitant prices. Correspondingly, construction prices spiralled due a lack of skilled workers and materials, particularly with the State’s major infrastructure projects absorbing our capacity.

The knock-on effect of all these caused the ICPs and Responsible Authority charges to spiral – everybody in the food chain had their hand out – and the end result was that prices got out of control.

The spiralling of prices in 2017-18 came to a halt with the introduction of the Banking Royal Commission, creating a credit squeeze on developers’ funding to produce stock and also buyers’ ability to get a housing loan. Banks basically reduced household borrowing capacity by 20%, so developers and builders had to scramble to produce smaller lots and homes with reduced floor space to meet the new sub $500,000-$600,000. The credit squeeze caused 2019 greenfield lots sales to crash to 8,500 lots. Then, just as things were getting back to normal in early 2020, COVID-19 struck and sales, and jobs, plummeted.

The attached chart shows where greenfield sales are now – at the lowest rates they’ve been for a short period since late 2011 at 400 per month (annualised to only 4800 per annum).

To compound our future recovery, 50% of our population increase is by immigration, which has obviously stopped, so our current local demand has dramatically decreased. The real effect of the stoppage in immigration normally has a lag of two years, so we will feel its effect for some time to come.

All industry groups are now campaigning all levels of Government to suggest means of stimulating public confidence to spend money in the economy again.

Besides fiscal stimulus announced across all sectors of our economy, now is the opportunity for the planning industry to do its bit and to introduce reform, particularly with red tape, to assist our industry to get back on its feet. Reform is needed across inner, middle ring and greenfield planning. SUPPLY = DEMAND = AFFORDABILITY into our future.

Most industry groups are looking forward to Red Tape Commissioner Anna Cronin’s findings which, hopefully, will be released imminently, and hopefully contain meaningful recommendations that will be implemented.

The whole industry also needs a re-set. Everyone in the industry must take a haircut on their margins – all the way from the original landowner through contractors, authorities, developers and builders. We need affordability restored if the economy is to recover.

It’s critical that developers keep building product, building lots, because land is the start of the supply chain. Whilst a land development program might employ tens of thousands of workers, when the housing construction starts, employment blossoms into hundreds of thousands of employees across our growth corridors.

It is also critical that banks continue to support those existing buyers who bought the 8500 greenfield lots last year. They must be allowed to settle this year, when their titles issue, otherwise there’ll be no stock for builders to begin house-starts. The Australian Financial Review quoted me on the topic on Monday 1 June.

At the moment, everybody’s treading water with the JobKeeper lifeline but, once that finishes, we’re going to be really relying on activity resuming to keep the Victorian economy going.

The chart also shows where sales are at now, and two lines of possibility going forward:

One is continued no Government Building stimulus and continued very slow sales with potentially increased unemployment postJobKeeper;

Rory Costelloe, Executive Director, Villawood Properties

Two is a housing stimulus package which would create more optimism. The key to it all working, is people having confidence in their job to build their home. The banks also need to participate and make home loans available to fulfil existing contracts.

Surprisingly, we’re still making reasonable sales. Inquiry has dropped dramatically but those who do inquire are quite serious about buying a house, so the conversion of sales is much stronger. I recently asked a buyer in a greenfield project why he was so keen to buy now. He said that titling was 12 months away and figured that by then builders should be far more competitive with their prices

When people wonder about immigration, it’s important to remember that Australia needs immigration to keep its economic growth going. This is widely recognised by most economists and politicians. The question is when and how. I believe immigration could be resumed earlier rather than later if people were given a definitive virus test – before they jumped on the plane – to ensure they arrive in our country healthy.

The Government’s attempting to get the economy back to the new normal by September, but by then we’ll be in a state of really high unemployment and we’ll really need demand and spending to underpin the recovery.

So when the time comes, the question is: Will people still want to immigrate and will the general population of Australia want them to come?

Victoria effectively had a five to six-year recession from 1989 to 1995 where there was high unemployment and very little

economic activity. Unemployment peaked at 11.2 per cent in 1992 and the population was calling for cuts in immigration on the grounds newcomers would be competing for our jobs.

But in reality, the average immigrant who comes to Australia must pass an asset test. They in fact come to Australia ready to spend money, whether starting a business or buying a house or both. Whilst some parts of the population won’t understand the benefits, immigration is essential to the recovery of the economy.

The question is: Will people come? I believe they will come. I believe they will want to come in droves. Australia was previously seen as a great destination but now it will be seen as an even stronger and safer destination.

It will be seen as a destination with a great health system and strong government – as a destination where our cases of coronavirus and deaths have been miniscule compared to many other Western countries in the world.

Our business has taken the situation seriously, Directors have not been drawing income to ensure cashflow to keep our staff employed long term. Staff have been working from home on slightly reduced hours.

We have been working with buyers, assisting them to settle their lots.

Everyone in the industry must roll up their sleeves and do their bit to get our economy functioning again and avoid a seven-year recovery experienced in the last recession.

Keep safe.

OMNIBUS BILL

VPELA’s Government Emergency Response Measures Webinar

Our Panel in action!

VPELA – A MULTI-DISCIPLINARY PROFESSIONAL ASSOCIATION

Established in 1989, the Association holds regular seminars, social events and a conference annually. It also reviews legislation, provides high level advice to Government and makes submissions to all aspects of land use planning. If you have any questions or are interested in joining the Association, contact Jane Power, Executive Officer.