VPELA Revue (March 2021)

revue

Smart Cities

Victoria embraces 3D data

Planning Reform

Funding and implementation

Planning graduates

Two journeys into the profession

Housing

The pandemic as a catalyst for change

Limitation game

10 common mistakes with Permits

Newsletter editor:

Bernard McNamara

M: 0418 326 447

E: bernard.mcnamara@bmda.com.au

T: 9699 7025

VPELA

PO Box 1291 Camberwell 3124

www.vpela.org.au

E: admin@vpela.org.au

T: 9813 2801

The President It’s all about the future

As the anniversary of Covid-related work from home practices fall upon us, I have found myself reflecting upon the ways in which we communicate with each other within the planning and legal professions and how we have had to adapt and shift over the past 12 months. Of course there is the obvious shift to videoconferencing which required much improved IT literacy for many in the first part of 2020, and we’ve certainly all had to spend many more hours on the phone and in front of a screen as a result. But there are other, more intangible, shifts that have had to occur. It seems to me that we’ve had to develop vast new skills to do what otherwise comes reasonably naturally to many who have trained in planning and related professions – and that is, to communicate.

Whilewe’veallsuccessfully adoptedthetechnology and soldiered on, what has beenprovenisthatthe moreintangiblequalities, efficiencies and benefits of conductinghearingsinperson ormeetinginpersontodiscuss solutions,aresimplylostin an online forum.

It’s often been said that planning, and planning law, distinguish themselves from other professional disciplines and jurisdictions because they are areas of interest that are essentially about the future. Lawyers within this jurisdiction are more rarely advocating concerning historical events or contractual disputes than they are about a proposal, or some future event. This inherent requirement to persuade concerning something that is yet to be created, such as a new building, or yet to be implemented or tested, such as a proposed policy direction, requires the professions to deliver a compelling vision and to give comfort as to a suite of unknowns.

That being the case, the transition from in person meetings and hearings to purely online forums has presented its challenges. While we’ve all successfully adopted the technology and soldiered on, what has been proven is that the more intangible qualities, efficiencies and benefits of conducting hearings in person or meeting in person to discuss solutions, are simply lost in an online forum. One is left with a sense that one is making do, rather than operating within a forum that is able to deliver optimum outcomes.

Having said that, the online forum has facilitated access to hearings for the public and for those who would not otherwise be available to attend an in person hearing and that has very positive consequences for the engagement that the community is able to have with planning projects and processes.

I have been pleasantly surprised about the inclination of so many to return to their offices in recent months, perhaps highlighting the rewarding nature of in person communication and engagement which was lost to us for most of 2020.

Tamara Brezzi President, VPELA

As the year progresses, there will be a need to once again reinvent the ways in which we communicate with each other as the hybrid models evolve. In my view this will require almost as much reinvention as the shift to full time online communication required in March 2020. We’ve no doubt all sat in meetings where a number of people are together in a room, but some participants are on a videoconference facility. If not managed well, the videoconference facility participants can be left to feel that they are merely observing the meeting being conducted by those in the room, rather than feeling very much a part of the meeting. With an inclination to retain all of the access benefits that have arisen from the online forum, such as being able to access hearings and documents without having to be physically present in the hearing room, these are factors that will need to be thought through carefully as the hybrid model evolves.

There’s a fine balance to be struck between resisting the permanent loss of the intangible qualities of in person meetings and hearings on the one hand, and the access to justice benefits on the other. We would all do well to check in about the ways in which our communication methods and styles have had to change, and will have to continue to evolve, particularly where that communication is concerned with the profession’s engagement with community about planning ideas, concepts and proposals.

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

26 & 27 August, Mantra Lorne Planning is well underway for this fabulous event. Watch for program details which will be released shortly.

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Editorial licence

Bernard McNamara Editor and Director, BMDA Development Advisory

Welcome to, hopefully, a very different year in 2021. Before writing this, I looked back at my March 2020 editorial which focused heavily on the devastating and widespread bushfires that ravaged our lands in the Spring and Summer of 2019-20. Who could have foreseen then that the emerging virus would have changed so abruptly and significantly our way of interacting, working and living?

We are now pandemic veterans. Zooming, M-Teaming and other platforms are what we do.

Around Christmas 2019, I was reading Richard Florida’s treatise on the importance of the concentration of knowledge workers. In less than 12 months, detached houses with gardens are now preferred over apartments, with their shared lifts and facilities.

In our sector, incomes have generally continued at varying levels, although in our community and social circles, we’ve no doubt all observed good businesses being forced to close due to the long lockdown.

The arts and hospitality sectors have been particularly vulnerable.

Melbourne’s arts, food and bar scenes are Australian leaders in my view, but I’m giving Sydney a gong for its transport system.

The rail network is clean, well interconnected and fast. Using all the various pt modes involves a simple tap of a credit card, rather than an equivalent of the disastrous Myki. (Apparently Melbourne was at the time of Myki’s introduction, the only large city in the world with a dedicated Ticket ‘Authority’… go figure.)

The bus network is taken seriously and has an undertone of quiet civility. Everyone tapped on at the fare scanner (!) and on several morning peak-hour trips, I witnessed large groups of schoolchildren waiting patiently until adult passengers boarded before them. Most of those same children thanked the bus driver when leaving the bus.

after the lockdowns, the challengeVictoriafaces is to build back local and international business confidence.

For various reasons, Victorians were impacted more than other states. It has been interesting to observe some of the processes that operated across our state and elsewhere. Even an important contact tracing tool such as a statewide QR code, that was operating in NSW and SA, could not be managed in Victoria, where at different venues, we encountered all varieties of codes, plus the exercise book and pen!

It made me reflect on the operation of our planning and building approvals systems which are the subject of Better Regulation Victoria’s, Planning and Building Regulations Process Review Report. At the end of the 1990s, Victoria’s planning approval system was highly regarded nationally. But in 2021, is the performance of our planning approvals systems reflected in our other systems? In this edition, Anna Cronin, the Commissioner for Better Regulation sets out the positive steps that the State Government is now implementing.

Tale of Two Cities

While I’m a Melbourne man through and through, I had cause to reflect on the positives of Sydney during a recent trip with my partner, including through the Feb 13-17 Victorian lockdown.

I am not seeking to emulate the famous de Tocqueville observations – contrasting systems in Europe and America in the 1830s – but I noticed some (uncomfortable) differences in livability and productivity between ‘Coathanger city’ and our own.

Traffic appears to move fast, with expectations that everybody should do the same. (Road rage? Well, I didn’t see any.)

And unlike in Melbourne, I did not see any graffiti on various buildings, or on the hoardings of the new underground railway lines being constructed in North and Central Sydney.

In visiting a sick relative, we observed NSW’s well organized health system working very effectively at a district level. To the casual observer, Sydney takes a ‘no fuss/ ‘get on with it’ approach. A bit brash, but there is a detectable entrepreneurial air in city.

Comparing Sydney with our own area of practice, it has invested real powers in the Sydney Planning Commission, unlike the VPA. The implementation of the planning system reforms is welcome and necessary.

More broadly after the lockdowns, the challenge Victoria faces is to build back local and international business confidence, requiring highly efficient operating systems (including health), plus new infrastructure. How we engender some behavioral changes is a separate and more difficult challenge.

A two-speed planning system?

Notable over December and January, the Victorian Government has ramped up its commitment to social housing through the funding commitments under the Big Build housing program. The Government has allocated $5bn to produce 12,000 much needed new homes over 4 years. A controversial part of the program has been the introduction of Cl 52.20 and Cl 52.22, each with over 22 pages of non-mandatory provisions that are to apply to applications. Basically, the Clauses pick up various

provisions from Cl 54 ,55 and 58 (residential design) and Cl 52.06 (car parking), plus other items so that there is no need to address other sections of the Planning Scheme. All applications are exempt from notification, objections, and appeal rights. The responsible authority is the State Government. Recently this exemption provision was unsuccessfully challenged in Parliament.

The motive behind the exemptions is very understandable, given the difficulties that are often faced by applications for development of social housing within neighbourhoods. (Even the folks at Yarra CC refused a community housing project which is seen as a poster project on Page43 of Plan Melbourne 2017-2050.)

What resonates with me is that the Minister for Planning strongly ruled out at the commencement of the Planning Reform work, any change to third party rights.

In my practice, we act for independent not-for-profit housing providers who have no such protection. Objector rights etc apply. And no ‘free rides’ are on offer for the important housing role played by the private sector (with the rise of the Build to Rent sector being implemented).

So increasingly with road, rail, housing, and other projects, (with their huge scale of investment), are we moving to a State where

maybe half of all construction is exempt from third party rights. Two speed… how can we get our projects into the fast lane?

And to this edition

The Revue continues to provide an outlet for Housing for all Australians, a project being steered by Rob Pradolin. On a related note, Sam D’Amico identifies a glitch in the VPPs which is causing unintended consequence on the provision of social housing.

I also commend to you the DELWP article setting out the advances in its Smart Cities 3D mapping and documentation program. We meet the new members of the VPELA Committee, and our future leaders, (the new team leading the Young Planners Group).

Victorian Planning Authority, CEO, Stuart Mosely, updates us on the work occurring by way of fast-tracking planning approvals, growth areas planning and urban renewal projects.

And from the editor’s office, we have included a somewhat lighthearted list of the 10 most common errors/mistakes that applicants continue to make on the pathway to a development approval. Readers may have others.

Happy reading. As usual, comments/contributions to: e: bernard.mcnamara@bmda.com.au

Minister

Working together to build our recovery

What kind of future do we want?

That’s the fundamental question we need to keep asking each other as the Australian community and economy recovers from the initial shock of the COVID-19 pandemic.

This is an opportunity to make a real difference in the lives of Victorians right here and now through prioritising practical actions through the planning system – actions that create jobs, housing and infrastructure.

Actions that improve affordability and liveability and build the foundations for a fairer, greener, healthier future.

That’s why, last year, we delivered a State Budget of unprecedented scope and ambition – with heavy investments in every part of our economy and community.

At its heart was a $5.3 billion social and affordable housing program. That program, Big Housing Build, is unlike anything else any Australian jurisdiction has seen.

In just four years, the Big Housing Build will deliver more than 12,000 new homes across metro and regional Victoria – creating more than 10,000 jobs each year and changing countless lives.

In recent weeks we announced $948 million will be invested through the Big Housing Build to spot-purchase properties and buy new homes in construction projects that are either in progress or ready to build.

Not only will this investment secure 1,600 social housing properties and 200 affordable homes – it will bolster the construction industry and support jobs.

We also need to focus on the details and partnerships to make that future a reality.

Just as building back better from the pandemic requires unprecedented investment and vision – it requires a new sense of respect and collaboration at every level of our planning and development system.

Just as conflict, disagreement and distrust doesn’t help fight this virus – it won’t help us recover from the significant impacts it has had.

We can’t sit back and wait for the rollout of COVID-19 vaccines. We have to keep planning and building a better future.

That’s why, in 2021, Victoria will look for ways to improve the building and construction sector and help facilitate construction across the State.

We will continue to modernise planning, environmental and heritage processes in practical ways that will create the future we really want.

By striking the right balance – and focusing on the public interest – we will fast-track Victoria’s recovery as we stay safe, stay open and build a better future.

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The Hon. Richard Wynne MP Victorian Minister for Planning

Crown Palladium

The Business Planning reform gets funding and impetus

Despite the disruption caused by the COVID-19 pandemic last year, the Victorian Government has made substantial advances in the delivery of planning reform in Victoria. The Government prioritised planning reforms in its plan for economic recovery, with the allocation of $111 million funding in the 2020-21 State Budget to enable implementation.

Better Regulation Victoria Review 2019-20

As your readers may recall, in March 2019, the Treasurer and the Minister for Planning commissioned a review led by Better Regulation Victoria (BRV) into planning and building approvals. BRV was supported by an Advisory Board comprising Bill Kusznirczuk, Radley de Silva and Kate Roffey, each of whom brought specific expertise to the review. The review looked at the root causes of why planning and building approvals have become so complex and time consuming and, in many cases, less effective than they should be.

The benefits of reducing unnecessary costs and delays is significant. Work that we commissioned as part of the review estimated that the economic cost of avoidable delays in planning are in the order of $400 to $600 million a year – or up to 2% of the value of the construction sector’s annual output of $33 billion. Reducing these avoidable costs – which our planning review sought to do – will have significant beneficial impacts on housing affordability and investment certainty as well as supporting economic recovery and jobs growth.

BRV received over 100 submissions in response to the Discussion Paper, released in October 2019. The consultation process confirmed strong support for the proposals contained in the Discussion Paper and we received a lot of practical and valuable suggestions from expert stakeholders, including VPELA, about how better outcomes and faster approvals could be delivered.

Our final recommendations focussed on steps which can be taken along the entire approvals chain – from strategic planning to permits to the post-permit stage and in building approvals – to ensure the adoption of best practices, reform of the rules and the simplification of processes.

In addition to the BRV work, the Government established the Building Victoria’s Recovery Taskforce in April 2020 to provide urgent advice (including on planning) on how to support economic recovery.

Victorian Government response

The Government has responded to both the BRV review and the Taskforce report by announcing the implementation of important

reforms, including the setting up of the new Development Facilitation unit in DELWP. Other reforms, including those from the BRV report, are being delivered in three packages:

• $52.2 million over 4 years to improve planning processes and streamline decision-making. This includes funding for a Better Approvals program to be delivered through every Council and a Better Reporting framework to improve accountability for timeframes.

• $43.2 million over 4 years to make the approvals process simpler and quicker for developments, giving investors even more confidence to build more projects in Victoria. This includes $3.86 million to streamline the approval pathway for social and affordable housing in private developments. It also includes $7 million for the VPA to advance planning for its 19 Priority Projects; $7 million for the Streamlining for Growth program to assist councils to plan for local developments and $4 million for Councils to upgrade their digital systems to enable more applications to be lodged and processed on line.

• $15.8 million in asset funding to enable the Department of Environment, Land, Water and Planning (DELWP) to improve its digital systems for processing permits and planning scheme amendments.

Separately, a further $9.3 million over 3 years has been allocated to VCAT to improve its registry processes and staffing to reduce the backlog and achieve a faster turnaround in cases.

DELWP is moving swiftly to ensure effective implementation of these planning reforms – with work being coordinated by Matt Vincent who is the Executive Director of Planning Implementation. Matt is currently finalising implementation plans and is commencing consultation on each of the reform streams with peak bodies, Councils (through the Municipal Association of Victoria) and the planning sector more broadly. It is expected that many reforms will be rolled out by mid-year and legislative amendments introduced in two groups during the course of 2021.

The importance of bedding down all of these planning reforms streams cannot be over-stated: they are vital to streamlining the system and reducing delays and costs, while ensuring that the integrity of planning objectives is maintained and that our planning system is effective. The economic recovery task which Victoria currently faces make these reforms even more critical.

Commissioner for Better Regulation

Thebenefitsofreducing unnecessarycostsand delaysissignificant

The Business Smart Government, Smart Cities: Land

Use Victoria embraces 3D data

The Department of Environment, Land, Water, and Planning (DELWP) has been supplying authoritative foundation spatial datasets under its Vicmap™ brand for over 45 years. This supports accurate and up-to-date mapping for a range of users across the public and private sector. Over its history, Vicmap has evolved from paper-based cartographic techniques in the 1970s to digital maps in the 1990s and is now enabling near-survey accurate positioning of its property and parcel layers through the $45 million Digital Cadastre Modernisation project.

As emerging cross-over technologies from the realms of gaming, digital engineering, remote sensing and AI have advanced three dimensional (3D) mapping over the past several years, DELWP has been exploring how 3D spatial datasets can be created from and add value to Victoria’s rich and growing archive of high-resolution photography and elevation data. Through exploratory work in 3D, advanced visualisations, and digital twins, DELWP has matured its capability to create full three-dimensional (3D) models of our natural and built environments encompassing the built form, streetscapes, and vegetation. The department is now sharing these outputs to fuel further innovation throughout Victoria’s planning sector and to inform the future development of Vicmap.

In 2019 Land Use Victoria (LUV), which is part of DELWP, began work on a proof-of-concept project to acquire and assess 3D building object models, photomesh models and elevation data (LiDAR point clouds) covering 20 regional towns across Victoria. The project builds on over two decades of public sector investment in high-resolution elevation and imagery data

Callum McClure, Project Officer at Department of Environment, Land, Water and Planning

across Victoria and harnesses 3D capabilities to create exciting new spatial data products. DELWP’s focus on regional towns enabled an exploration of a variety of landscapes and types of built-form, as well as promoting equitable access to high-quality data for regional town planners, community services, property developers and investors to support decision-making.

Victoria’s urban environment is changing rapidly, with both industry and government needing fresh approaches to adapt to increasing risks from bushfires, to enable the social and community benefits of 20-minute “smart” cities, and to ensure the State’s investment in the Big Build extends opportunities and growth throughout regional areas. These 3D datasets have already provided significant benefits, cost savings and efficiencies for Government programs, being re-used in DELWP’s Vic3D planning application as well as providing a foundational dataset for the Digital Twin project.

The potential benefits of 3D spatial data are enormous, and include:

• faster, more robust regulatory assessments and compliance monitoring

• improved community-centric design and engagement

• opportunities for new products, services, jobs, and industries

• improving understanding of the changes in built-form over time

• 3-dimensional scenario testing for town planning and precincts

• improved decision-making and community outcomes.

The datasets were acquired in late 2020 and include:

• elevation point clouds (8ppm2 and 40ppm2 LiDAR) and imagery data over 18 regional towns

• textured photomesh datasets in a range of resolutions (2cm, 5cm, 10cm pixel size)

• textured and untextured Building Object Models at varying levels of detail over commercial, industrial, education and health zones

• Machine Learning Building Footprint Models (LOD1).

Different approaches were used to create them – including machine learning/deep learning – each achieving a different level of detail, quality, and accuracy. This has enabled DELWP to test the benefits of various options and improve its elevation and imagery survey specifications.

Figure 1: 3D POC Project Areas: Anglesea, Ararat, Ballarat, Bendigo, Bright, Castlemaine, Echuca, Horsham, Kilmore, Latrobe Valley Corridor, Mildura, Sale, Seymour, Shepparton, Swan Hill, Traralgon, Wangaratta, Warracknabeal, Warrnambool, Wonthaggi

DELWP is now seeking your feedback on the benefits and challenges of using 3D data and is making these datasets freely available in exchange for valuable feedback that will guide future investment and collaboration on 3D mapping products.

LIDAR DOWNLOAD PORTAL (link: tinyurl.com/a7q1sype)

3D MODEL DOWNLOAD PORTAL (link: tinyurl.com/3f9x2rfx)

DELWP has also released the data for visualisation and exploration through a web-based platform called Geocirrus. This allows

users to interrogate and compare 3D models, including 3D analysis such as line-of-sight and shadowing.

Geocirrus 3D-GIS Web Application (Link: tinyurl.com/5xk8v2fz)

available until June 30, 2021

We would like to acknowledge our project partners for their role in the delivery of this project: AAM, Aerometrex, Player Piano Data Analytics and RPS Australia East.

something entirely new and exciting for visualising towns and cities. You can view the video at the link https://www.youtube.com/watch?v=ztlTZu9wPZM

Figure 2: Bendigo aerial and street level 2cm Photomesh. One DELWP’s flagship 3D outputs is a 2cm aerial and street-level photomesh for Bendigo, which delivery partner Aerometrex value-added to with a stunning Unreal Engine visualisation. The convergence of gaming technologies and spatial data is

Figure 4: Kilmore LOD0 building footprint outlines

Figure 3: LOD2 Object model over Sale created from 5cm aerial imagery

Figure 5: Ballarat LOD2 buildings created from 5cm oblique imagery and LOD1 footprints extruded to eave heights extracted from elevation (LiDAR) point clouds

Figure 6: Geocirrus 3D-GIS Web Application in use over Ballarat

Shadow Minister

Minister’s decision-making raises questions

At last, the illegal demolition of the heritage listed Corkman Hotel in Parkville has intensified focus on consequences for rogue developers.

Initially, the Corkman Cowboys were slapped on the wrist and ordered to build a park for community use, as an interim measure,before rebuilding the pub. Then, the Planning Minister granted a permit for a tower development, which with the stroke of his pen, significantly increased the value of the land. When I called for the site to be compulsorily acquired and used for community housing, so that the developers would not make a cent from their contemptible actions, we were informed it would be too expensive as the site value was now far too high. (Hopefully their recent stint in gaol will have given the cowboys plenty of time to reflect on their reckless and avaricious misdeed.)

So, I am somewhat bemused – and pleased – to see the recently introduced Planning and Environment Amendment Bill 2021, which seems to reflect a re-posturing of Planning Minister Wynne, to adopt my stance on similar debacles.

This Bill will prohibit redevelopment of a site on which a heritage building has been illegally demolished or allowed to fall into a state of neglect and disrepair. It will prevent the issuance of a permit under the planning scheme for any development, other then reconstruction, reinstatement or repair, and will also provide that the Minister may order the land not be used for up to 10 years if the land owner is convicted for unlawful demolition of a heritage building. I am delighted to see local heritage protections are finally being strengthened, it is only a pity it wasn’t much sooner, and the Corkman might still be standing.

In other news, Planning Minister Wynne called in an application for a used acid lead battery recycling plant in Hazelwood, just 1.3km from the Hazelwood North Primary School. Unsurprisingly, the locals are vehemently opposed to this smelter and the risk is poses.

The plant will be owned and operated by the Chinese Communist state-owned Chunxing Corporation, funded under the China One Belt One Road Initiative (BRI). It has been approved as a project under the Andrews Labor government’s Development Facilitation Program, which has been set up to fast track projects that can help repair the economic downturn caused by the government’s coronavirus lockdowns. The lockdowns are, of course, the result of the government’s failure to manage the hotel quarantine program and a completely inadequate contact tracing system.

The elected Councillors of LaTrobe Valley Council had refused a permit for this recycling smelter. The matter was taken to VCAT and there was a five-day hearing. Before the decision could be

Tim Smith MP Victorian Shadow Minister for Planning

handed down, the Minister intervened and unilaterally approved the permit without requiring an independent Environmental Effects Statement, completely disregarding the Council decision and whatever finding might result from VCAT.

Bizarrely, the Chunxing Corporation was permitted to self-assess the environmental impact of the smelter, and unsurprisingly, they produced a glowing report of themselves.

In Parliament’s Question Time on 2 February, I asked Minister Wynne about him waving through an approval for this smelter. He informed the chamber that the officers at LaTrobe Council supported the smelter.

It is a fact that the site has an as-of-right use in an industrial zone and permitted under the current zoning. But it is also a fact that the community has been ignored by the Planning Minister. Why didn’t Wynne allow the process to run its course to VCAT? Naturally, locals are outraged, with deep concerns about the toxicity of the smelter, and the effect it could have on their lives. A compelling community petition of 1,670 signatures demanding the government withdraw its approval has been tabled in the Parliament.

One member of the community is a single mother from Hazelwood South who plans to send her young daughter to the Primary School a kilometre away from the site and is very worried about any associated health risk to her child.

Another local resident, who lives 1.7Km from the site, expressed her fears, saying “Lead is toxic, persistent (it does not degrade), bio-accumulative and is internationally recognised as a carcinogen… Toxic emissions from the proposed technology will be unavoidable … Super-fine lead dusts can affect workers, their family and the community.”

In responding to my question about this, the Minister rejected the contention of any risk being posed.

For a Minister who is well known for very rarely intervening in local planning matters, his intervention in the LaTrobe Valley is surprising. Is this a sweetheart deal under Labor’s controversial Belt and Road agreement with communist China to build a lead smelter 1.3 kilometres from a primary school?

Would anyone like to have a lead smelter foisted upon them, near where they live and where their children go to school?

I seriously doubt that if this company was owned by any other nation-state that it would be given the same treatment.

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The Business

The limitation game:

As we work into another year, we had cause to reflect on some recurring (and seemingly timeless) issues that can thwart the progress of a planning approval. Here are 10 myths that in our experience unnecessarily delay developments.

1. The world is flat

Since the Middle Ages, only flat-Earthers have disputed that the world is round but that doesn’t stop this myth regularly finding its way into the planning process. Not only is the world not flat but it isn’t smooth either. Too often concept plans hit major issues once the levels and contours of a site are considered in detail. The earlier the physical constraints are understood – including level changes, water flow paths, geo-tech, and services infrastructure– the quicker workable design solutions can be found; (or amended).

2. The world ends at the lot boundary

While context plans (read ‘Design Response plans”) are always prepared, (but sometimes with only with lip service), the detail of development on surrounding land is often overlooked during the design process. A thorough contextual analysis allows for all opportunities and constraints of a site to be considered and enables a qualify design response to the features, constraints and development on adjacent lands.

3. It’s OK to leave application documents to the RFI stage

Seeing supporting reports pushed to the RFI stage is a classic ‘robbing Peter to pay Paul’ move when it comes to securing a planning permit in a timely manner. The application only has one first impression, so make it a good (and professionally prepared) one.

4. Just tell me the zone!

For better or worse, the Victorian Planning System is policy based and largely discretionary by nature. For clients relying on zone controls as the answer to all or most questions is fraught with risk. While a zone might guide land use, the intensity of development outcome is increasingly more nuanced and complicated, with a smorgasbord of overlay controls, planning policy frameworks and amenity impacts which can’t be summarised by a land use table.

5. A pretty render will save the day

While renders are useful tools to make a first impression, it is no longer 2001 and Councils are not basing assessments on renders that approximate Garden of Eden landscaping.

6. Referral Authorities will be fine …won’t they?

While the Responsible Authority is always the main game, an objection from a Referral Authority can derail a project just as quickly. The best way to mitigate risk is to engage with Referral Authorities early in the application process, to understand their perspectives and concerns and offer a solution; to avoid further requests for information, lengthy delays, additional permit conditions or an objection.

7. Just make it a Permit condition

20 years ago, planning permits ran to a few pages. Now they can be the length of a novella. Meaning that you can receive a Permit which, because of the multiple conditions, is not actually a Permit. As more and more issues are ‘handballed/dealt with via Permit conditions, the risk of an unworkable permit

10 common mistakes that make the planning application process harder than it already is

Bernard McNamara and Matthew Crisfield, BMDA Development Advisory

condition being included has also increased. So, next step, the amended Permit application. The smart play is to have a detailed understanding of how the conditions might be satisfied and, to the extent possible, work closely with the authority planner on the specific wording. It will pay off.

8. Third-party objections won’t matter

Third party objectors have more appeal rights in Victoria than in other states of Australia. As anyone who has attended a Council forum meeting will know, the merits of objections are likely to be a mixed bag (at best). Given this potential risk, all objections should be considered rather than discarded with little thought.

9. VCAT applications are a fix-all

If you can avoid the risk of an adverse VCAT decision, do so! Believing that VCAT can solve your problems is myth and instead it can be a pathway to delays and procrastination. These days, a multitude of design issues – many without sufficient focus –are being handballed to the preparation of amended plans for

VCAT. While VCAT hearings are a reality of our industry, the more refined a proposal can be made prior to VCAT, the more tightly focussed VCAT mediations and hearings can be, with flow-on benefits in terms of issues being resolved more quickly.

10. Ignore a planner’s advice until a barrister requires it

This one is perhaps a gripe more for planners than lawyers, but the number of legal conferences which end with planners saying amongst themselves: ‘That’s what we’ve said for the last three months” is legion. It can make the process way too close to Ground Hog Day, without the joy of waking up as Bill Murray!

Good luck with your projects!

BernardMcNamara,(whennoteditingtheVPELARevue) is Principal and founder of BMDA Development Advisory. Matthew Crisfield is a Senior Planner at BMDA. E: Bernard.mcnamara@bmda.com.au; matthew.crisfileld@bmda.com.au

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Director: Transport

Email: aaronw@ratio.com.au

Maryam Alizadeh

Senior Associate: Planning & Urban Design

Email: maryama@ratio.com.au

The Business A small change can make a big difference

Improving the community care accommodation provisions

As the cliché goes, ‘don’t sweat the small stuff’. But often small stuff can make a big difference. Take the Community Care Accommodation provisions at Clause 52.22 as an example. A small change can reduce red tape, which reduces cost and is able to provide housing sooner for those most in need.

I write this article not long after the Victorian government announced a $5.3 billion spend over 4 years for 12,000 new social housing units. This represents a 10% increase to existing stocks. Fantastic stuff and long overdue.

Governments have long recognised that social housing is able to be provided by private entities, generally by not-for-profit organisations. In fact, Homes for Victorians (2017), which underpinned Amendment VC152 that introduced the current Clause 52.22, defines community housing and social housing as:

Community Housing

Housing owned or managed by community housing agencies for low income people, including those eligible for public housing. Community housing agencies are regulated by the Government.

Social Housing

Social housing is an umbrella term that includes both public housing and community housing. Its provision usually involves some degree of subsidy.1

Community Care Accommodation is defined by the Planning Scheme as ‘land used to provide accommodation and care services. It includes permanent, temporary and emergency accommodation. It may include supervisory staff and support services for residents and visitors’.

Amendment VC152 replaced the old crisis accommodation and rooming house provisions. It introduced planning permit exemption criteria for the use and development of community care accommodation.

The Minister’s reasons for providing the exemptions nominate ‘streamlining renewal and development of these facilities’. The Consultation Information prepared by the Department of Environment, Land, Water and Planning (DELWP) for the purpose of VC152 reference the need to:

a) reduce discrimination against disabled or disadvantaged people seeking housing; and

b) to avoid objections to permit applications based on the physical, mental or social characteristics for the residents to be accommodated.

Sam D’Amico Director, Ratio Consultants

The introduction of the exemptions was clearly directed towards removing ‘red tape’ and facilitating housing for those most vulnerable.

Again, fantastic stuff, so what’s the issue? Well, one of the exemption criteria for buildings and works associated with community care accommodation is:

The development is funded by, or carried out by or on behalf of, a government department or public authority, including a public authority established for a public purpose under a Commonwealth Act.

In a declaration proceeding before VCAT, Senior Member Martin determined in the matter of St John of God Health Care v Melton CC [2021] VCAT 1263 (11 November 2020)2 that:

32. Following this approach, and with particular reference to the text in the first bullet point of the ‘building and works’ exemption, the gist of the applicant’s case here is that the development of the two proposed buildings would be ‘relevantly funded’ by the National Disability Insurance Agency (NDIA) and any other relevant public funding sources, such that the exemption applies. I refer here to the various submissions made about the ‘funding of the development’, as set out in the Appendix to this decision.

33. The essence of same is that there is in practice no other way for the applicant to source the funds to construct the two proposed buildings, other than for the applicant to initially essentially meet the cost of same, then gradually pay off that debt through the cash flow from the NDIS or other relevant public funding sources. In particular, at paragraph 41 of the applicant’s primary submissions, it is stated (with my highlighting) that:

The proposed use and development is funded by and would not occur but for the funding from the NDIS and other Commonwealth funding sources. Although SJGHC is a ‘middle person’ in terms of facilitating the development of the housing which Marillac provided, there is clear and uncontroversial nexus to the funding through the NDIA and NDIS program and Commonwealth funding sources.

Essentially, because the NDIS funding comes after the development is finalised, Senior Member Martin found that the development component of the concept does not meet the exemption criteria of Clause 52.22 and requires a planning permit. I do not know whether the decision will be appealed to the Supreme Court, so I will leave it to the lawyers to debate whether the decision was correct.

Whether the decision was right or wrong, I’m suggesting the system needs refining to avoid future debate in relation to the provision of this form of housing in the future.

In relation to the application referred to in the declaration proceeding, the application for planning permit was lodged with Council on 5 January 2020; come the start of February 2021, a decision was still pending from the Tribunal on the merits of the application. Despite being exempt from notice due to the express purpose of Clause 52.22 to ‘support the confidentiality of community care accommodation’, Council ‘informally’ notified surrounding property owners and occupiers of the application. More than 100 objections were received, which no doubt informed the Councillors’ decision to refuse the application, contrary to the Council Planner recommendation to support the proposal. The matter proceeded to a declaration proceeding referred to above and a subsequent merits hearing, with a decision being issued in mid-February 2021.

So not only has over a year been lost before a decision has been made, there is also the obvious delay in commencing the development. Not to mention the cost to a not-for-profit

organisation through holding costs, legal fees, planning fees, expert fees and hearing fees. This is the principal issue. Time and money that would be better spent on providing housing for those in need is wasted, which goes directly against the purpose of VC152.

A small change to Clause 52.22 to recognise that funding for community care accommodation may come in different forms and stages of the development would remove this red tape, reduce costs for not-for-profits, and enable them to do what is most important – provide housing for those most vulnerable.

1 Homes for Victorians (2017)

2 I must declare that I was engaged as an independent expert town planner by St John of God for the merits hearing of the aforementioned matter, but had no involvement in the application to Council or the declaration proceeding.

Sam D’Amico, Director of ratio: has 20 years’ experience as a town planner at both local government and in private practice. samd@ratio.com.au

If you missed the fantastic range of conference presentations in November last year you can still access all or parts of the conference online in your own time. Full recordings are now available for viewing on our online platform. We have put together some pricing options below, so that the conference is accessible to everyone.

Total conference includes all webinars and keynotes/panels

Member $225, Non Member $255

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One webinar – Member $30, Non member $50

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All webinars – Member $90, Non member $110

Keynotes/Panels

The conference brochure can be viewed here.

For full information go to our website here. To purchase any or all of these presentations please email admin@vpela.org.au providing details of your requirements or phone 9813 2801.

The Business

VPA – Steering a way through a disrupted planning landscape

As we move into 2021 we are all no doubt making plans while also wondering when and how they might be disrupted! For the VPA, this will be a year in which we continue to prioritise our role in supporting economic recovery, but also a year in which we look to our future strategy and pipeline in shaping urban Victoria.

Our business plan for this year – the timing of which has been impacted by our COVID response and the recognition that the VPA’s resources have been overwhelmingly focused on our priority Fast Track program – has now been approved by the Minister for Planning, Hon Richard Wynne MP. It sets a work program that will see us double down on delivering priority projects and starting a limited number of new projects while also working on our forward pipeline for the years ahead.

We are planning for a residential market that, despite some pessimism last year, looks remarkably strong as does the broader economy in our state. Land markets in the regions and greenfields Melbourne appear particularly resilient, no doubt responding in large part to COVID-driven lifestyle choices as households find themselves less tethered to one specific work location.

In our new Business Plan, eight Precinct Structure Plans (PSPs) in Melbourne’s greenfield growth corridors have been identified in our new ‘pre-commencement’ gateway phase for preliminary investigations prior to planned transition onto the program in a future year (pending future decision making processes), with five of these new PSPs to be trialled through our new Partnered Delivery Pilot – which will be testing a new alternate PSP delivery pathway.

We will also be continuing our push to improve planning outcomes and increase residential densities in outer Melbourne (by finalising and delivering our new PSP Guidelines), to streamline our process (using our PSP2.o methodology and the new VPA Projects Standing Advisory Committee) and to improve infrastructure coordination across Government.

Stuart Moseley CEO, Victorian Planning Authority

We will also be starting work on a new volume of our Small Lot Housing Code, aiming to streamline approvals of more innovative and better designed micro-lot products. We will be preparing a manual and automated template to streamline delivery of infrastructure contributions plans (ICPs) in outer Melbourne, and we will be automating our GAIC staged payment system.

In the regions we will continue to prioritise Fast Track projects in Ballarat, Wonthaggi and Bannockburn. We will also continue our work on supporting the rollout of ICPs to suitable regional settings and partnering with Councils to deliver a range of projects funded under the Government’s Streamlining for Growth Program.

Beyond this, we will be working with the key regional cities and peri-urban towns to understand where the supply of land is under particular pressure and identify where and how the VPA can play a role in unlocking land for housing and jobs.

The vibrancy of the outer suburban and regional markets highlights the challenge of achieving the Plan Melbourne ambition of “getting to 70%” of Melbourne’s growth in established areas. While there is a pronounced slowdown in the apartment market, COVID-driven localism is underpinning still-healthy levels of demand for mid-rise suburban living – the challenge will be where and how to unlock this growth in ways that communities support.

This year we have important projects to complete in established Melbourne – supporting redevelopment at Arden, PMP Printing site, Preston Market and more. While we continue to report to the Minister for Planning, we also now have a relationship with the Minister for Business Precincts, the Minister for Transport Infrastructure and the Minister for the Suburban Rail Loop, enabling the VPA to help identify and help deliver planned change in transport precincts and business precincts. We will also be evaluating what increased role there could be for targeted growth in activity centres more broadly.

Gerhana Waty - Hansen Partnership Director

With over 15 years experience, Gerhana is a highly sought after urban designer who has led award winning transit oriented development and public realm improvement projects.

Gerhana is available to provide expert witness services for VCAT and Planning Panels. Specialist areas include built form reviews, structure plans, strategic planning and public realm oriented urban design. Contact Gerhana at gwaty@hansenpartnership.com.au or 03 9654 9841

And underpinning all this will be the opportunity – which we share with all contemporary organisations – of transitioning to a post-COVID future working environment.

Perhaps the most enduring legacy of COVID 19 for the planning fraternity will be the ability to work from anywhere enabled by the use of digital communications and engagement platforms that have been around for years now but never truly tested as an alternative to the office.

For anyone wanting to be an “employer of choice”, 2021 will be the year in which we will need to make the most of the COVID “work from anywhere” legacy. 2020 has proved that the vast majority office-based work can be done remotely – and there will be no return to pre-COVID normality.

We will be investing in the people, tools, technology and skills we need to ensure we can do business remotely as well as reinstating face-to-face engagement for the functions and tasks that require it.

We are mindful too that the urban implications of COVID will become clearer during 2021. Some will be positive – vibrant regional towns, thriving suburban centres, more “living locally”

– while some will be challenging – in particular, working for the recovery of our CBD.

Transport choices are also changing. The implementation of more bike lanes by councils for active transport and State Government incentives to encourage off-peak commuting through the public transport fare structure are already in place.

The Victorian Planning Authority, as the lead agency for planning designated urban growth areas across Victoria, will be at the forefront of mapping these changes into place – giving effect to State Government policy in real places where people can live, work and play.

Stuart Moseley has more than 30 years’ of experience in urban management and project delivery, and has held senior positions in three State Governments, the private sector and local government. Stuart is a reformer and a strong advocate for outstanding urban environments and practical planning solutions. In his VPA role he has driven the repositioning of the Authority as a broad-based State-wide growth planning agency and is now working to deliver the organisation’s largest-ever project portfolio.

Nat Anson Urbis

Claire Betteridge Urbis

Jackie Bernoth City of Moreland

Matthew Butler Clement Stone Town Planners

Christopher Cawkwell Tract Consultants

Peter Cybula University of Melbourne

Julia Duffy Corrs Chambers Westgarth

Jessica Greenwood Urbis

Amber Hille* Student

Michael Hurst* Student

Tarquin Leaver Pace Development Group

Andrew Low Arnold Bloch Leibler

Victoria Miller Melbourne City Council

Daniella Natautama* East Gippsland Shire Council

Nicholas Peters Renzo Tonin & Assoc.

Dean Savage Ratio Consultants

Joel Silver Victorian Bar

Rebecca Tang Rail Projects Victoria

Paul Vassiliadis* Student

Michelle Warren Surf Coast Shire Council

Elizabeth Zorondo Goldwind Australia

People

Reflections on the planning graduate journey

The Science and Planning Graduate program is a two-year program with three eight-month rotations including at least one regional placement.

Ellen Ryan and Sarah Burger were the only two planning graduates in the 2019-2020 cohort. With February 2021 marking the end of their graduate journey and the start of the next phase of their careers, Ellen and Sarah ponder the planning world from a graduate’s point of view and share their reflections.

Ellen: I studied architecture at the University of Sydney and the brief taste of urban planning I had made me want to work more closely with communities to improve how they live and work through built form. After I graduated, I packed up my aspirations and moved to Melbourne where a year later I landed a job in the graduate program where I spent my three rotations at DELWP. My veteran public servant uncle tells me to get a job in the government you first need a job in the government!

I went from zero to 100 fast in my first rotation in Planning Systems, working on state-wide bushfire planning policy. If you want to know why and how a Bushfire Management Overlay is applied to your property, I’m your gal! My second rotation was processing local planning scheme amendments in Barwon South West, so I packed up and moved to Geelong – and never left! I take pride in helping to get a whiskey distillery in Colac through the system. My third rotation was at Planning Panels Victoria and I loved being behind the scenes of major strategic planning issues and working with the team. I am now working as a Project Officer for Revitalising Central Geelong, helping to manage million dollar projects in central Geelong.

I never fully appreciated the role of policy in almost everything prior to joining government. I have learnt that policy is where you can make the greatest change for good (rather than through one sustainably designed building at a time) and that it’s about solving problems creatively, purposefully and innovatively. Policy needs creative people and all it takes is one person to show confidence in your ideas or to role model the attitude and ideas you want to pursue. I’m not currently in a policy role but when I do return to it, I’d like to bring my skills in visual communication and prototyping to an interactive and collaborative policy process. I’ll have to continue to work on my ability to advocate for my ideas, which is a skill I’m keen to develop more and will serve me well throughout my career.

I’m still not sure what the future holds but my experience with the graduate program has been invaluable. I certainly have an appreciation of the many cogs that turn to keep the Victorian planning system functioning and I have experienced personal growth, most notably in self-confidence. And if I ever return to architecture or go down the urban design path, I will be all the better for it.

Ellen Ryan and Sarah Burger

Sarah: Many moons ago, after finishing the box set of David Attenborough’s Blue Planet, I began an undergraduate degree in marine biology and then a Master of Environment at the University of Melbourne. Although foundationally, my knowledge is in science and quantitative data, I learnt the value of different knowledge bases, alternative perspectives, and the relationships between them. My professional career began in the not-for-profit world before being offered a role in the ‘promised land’ (the public service) as part of the graduate program.

In my first rotation in environmental impact assessment at DELWP I hit the ground running, assessing the environmental impact of major projects ranging from mining to wind farms, as well as learning how to survive and thrive in government. My second rotation was at Aboriginal Victoria in the Department of Premier and Cabinet where I worked in policy, assessments and engagement with Traditional Owners. This intergovernmental experience was a real cross-pollination of knowledge and I feel so grateful to have had such an incredible opportunity. My third rotation was back in DELWP in the statutory planning team in Loddon-Mallee where I gained an understanding of the nuanced work and context of the region, which is something I don’t think I would be able to learn anywhere else.

During my time in the graduate program, I had the opportunity to be exposed to a wide variety of work and to so many different people, and I was given such freedom to drive my work and energy into interesting and impactful projects.

One of the biggest things I will take away from the last two years is that genuine and proper engagement is crucial to create relevant and useful outcomes. Relationships are what drive me, and, in my view, it is worth being late on a deadline to understand perspectives, opportunities, costs, and outcomes.

My career so far has been a real ‘zig zag.’ I fully expect this to be the pattern for the rest of my life.

A fellow planner recently gave me some of the best career advice I have ever received – she told me to find my fire and what drives me, rather than focus on the title or the salary. If I do that then the jobs, promotions and everything else will follow. For me, this certainly holds true in my current role as a Native Title Coordinator - I am working with legislation and people to embed Aboriginal voices in decision-making processes and to promote visibility and respect for Aboriginal culture and heritage.

Ellen Ryan is a Project Officer in the Revitalising Central Geelong team at the Department of Environment, Land, Water and Planning. Sarah Burger is a Native Title Coordinator in Earth Resources Regulation at the Department of Jobs, Precincts and Regions.

Places Rory’s Ramble

I was speaking in a property Council of Australia forum recently about the residential housing outlook for 2021 as the arrival of vaccines suggest we’re finally emerging from the COVID-19 phenomenon.

Two clear scenarios were evident at the outset: firstly, how the market might unfold up until 30 June when HomeBuilder finishes, with JobKeeper cutting out at the end of March; and, secondly, how the market might behave for the rest of the year.

Hearing the perspectives of those people in the forum, from their different market angles, made for an illuminating exercise. I’ll touch on some of the more interesting points we raised.

First up, the PCA’s Matthew Kandelaars pointed to ABS figures showing the recent strength of the market, with new loans in Victoria totalling more than $3bn from October to December last year. He equated this with 110,000 jobs and broader economic activity totalling $8.5bn.

Nerida Conisbee, Chief Economist with REA Group, went on to detail numerous other positives, among them:

Record levels of wealth, with savings rates climbing from 9% to 20% of household income

Record housing approvals in December, with record low interest rates

– Migration looking more likely to pick up this year; that is, earlier than expected

– Massive changes in regional demand, with many people relocating from cities

– Prices holding strong through the pandemic growth

– Demand for bigger homes as people opt to work from home

Nerida pointed out that the market has been lop-sided, with strong buyer demand while rental demand has weakened, especially in inner Melbourne as overseas student numbers fell away. Melbourne in fact hosted 85% of Australia’s total drop in vacant apartments.

While homebuyer performance has been very active – courtesy 5% deposits, HomeBuilder and other incentives – it has moderated a little in recent weeks.

That said, investors are back in the market: including US buyers eyeing luxury apartments; retirement living activity rising; and off-the-plan activity, while a bit of a mixed bag between the CBD and inner suburbs, on the rise again.

In short, the confidence factor is riding high at the moment.

I’ve certainly noticed this with Villawood, where business has barely missed a beat in Melbourne or the regions. Our Bendigo

Rory Costelloe Executive Director, Villawood Properties

regional activity is actually up as much as 300%. I attended a Lorne auction recently where a knock-down job fetched an incredible $4.5 million – $1.6 million more than the neighbours’ house 12 months ago.

The percentage of home ownership in Australia has been declining for many years. But this decline has been reversed with incentives of $60K in Geelong and $50K in Melbourne for first home buyers. All people need is a deposit, and maybe a bit of parental help, to get into the market. I have had three of my own team buy at our Armstrong since HomeBuilder was announced. There are not many upsides to COVID but this is certainly one. The question is: Will this trend continue? Fingers crossed!

The trick now, as ICD Property’s Alice Smith told the forum, is ensuring the government doesn’t just drop its JobKeeper and HomeBuilder off a cliff and shock the market.

We need a phased withdrawal and return to normal stimuli. We also need the Government to make stamp duty exemptions for off-the-plan purchasers.

Some stimuli have been hit or miss, says Alice, and other factors are at play such as COVID-related design changes. Buyers are seeking out one bedroom study apartments rather than twobedroom offerings.

I see market confidence as a curious thing. Like a football team that’s flying in the first two quarters, it can easily fall over in the second half of the game.

Assemble’s Kris Daff told the forum that while apartment activity might seem to be falling, underlying demand not related to overseas students or Air BNBs remains quite stable. Longerterm overseas interest would remain strong too, he said, and capital investor interest was presently running very strong.

He did say that falling immigration levels due to COVID highlighted the need to make up the shortfall it means for housing. He suggested our intake be lifted and hoped our politicians wouldn’t go weak at the knees about the idea.

I’ve previously suggested that some visa holders in Australia unable to return home – workers, students, travellers – might be offered permanent residency to help take up some of the shortfall. They can be a resilient lot and, if they are allowed to work 36 hours instead of their current 20-hour limit, within a year or two could enter the housing market.

We’re not feeling the full effect of falling migration yet. New immigrants generally rent for a year or two to decide where they want to live before entering the buyers’ market.Therefore the full vacuum effect of no immigration is yet to come.

continues page 27

The Business Legal World

Mason v Head, Transport for Victoria [2021] VSCA 19 (12 February 2021)

The Court of Appeal considered whether a landowner’s right to claim compensation for financial loss suffered upon the sale of land reserved for a public purpose died with him, or whether this right to compensation could pass to the beneficiaries of his estate. The Court ultimately found that the right survived the death of the landowner, and his beneficiaries were entitled to make a claim for loss upon the sale of the subject land.

In August 2010, part of the subject land was reserved by the Whittlesea Council for a public purpose as a transport corridor for the proposed outer Metropolitan Ring Road. The owner of the subject land passed away in November 2011, leaving a life interest in the subject land to his wife, with the interest in the remainder to his four children. These family members were the applicants in this proceeding.

Section 98(1) of the Act provides an owner or occupier with a right to compensation for financial loss suffered in connection with their land being reserved for a public purpose under a planning scheme. Section 99(b) of the Act specifies that this right to compensation arises upon sale of the land. Section 108(1) deems a person ineligible to claim for compensation if they were not the owner or occupier of the land at the time the right to claim compensation arose, and Section 108(2) deems the owner ineligible for loss on sale claims if they acquired the land after reservation or notice of proposed reservation.

Here, the Applicants gave notice to the Respondent, Transport for Victoria, of their intention to sell the subject land and make a claim for compensation under s 98 of the Act (‘loss on sale’ claim). In response, the Respondent advised the Applicants that they did not have a claim because they had acquired the land after the date of introduction of the Public Acquisition Overlay.

In this proceeding, the Respondent submitted that claims under s 98 are only available to those who were owners or occupiers of the subject land at the date of reservation pursuant to s 108 of the Act and Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 (leading authority for the position that s 98 compensation is only available to whomsoever owns the land at the date it is reserved for a public purpose).

The Court acknowledged that the statutory purpose behind s 98, 99 and 108 was to preclude the making of claims by persons who actively acquire land in the knowledge that it is proposed to be reserved.

The Court of Appeal held that the reasoning in Halwood was incorrect insofar as it held that only an owner or occupier at the date of the reservation of land could make a claim for compensation of the type which the applicants contemplate.

Tess Kerridge Senior Associate, Holding Redlich

The Court found that s 98 “provides the source of a right to compensation” which then arises via a s 99 event (sale of the land, in this situation). Regardless of who owned the subject land at the date of reservation, the Court held that what is relevant for s 98 and 99 is who owns the land when the right to compensation arises (in this proceeding, being when the land is sold).

Section 108(1) only requires ownership on the date the right to compensation arises and not when the reservation occurs. However, s 108(2) excludes those from compensation who ‘acquired’ the land after reservation or notice of proposed reservation. The Court held ‘acquired’ should be given “its active meaning”, being to obtain title or ownership in land, rather than its passive meaning whereby land is acquired by estate succession. This gives effect to the overarching objects of the Act by avoiding unfairness towards people who have inherited land found themselves barred from compensation and allows “orderly and economic use” of land by encouraging development.

The Applicants were found to have an entitlement to compensation under s 98 of the Act upon the sale of the subject land.

Mornington Peninsula SC v Premier Homes Pty Ltd (Red Dot) [2021] VCAT 94 (9 February 2021)

Mornington Peninsula Shire Council (Council) sought a declaration from the Tribunal, constituted by Deputy President Mark Dwyer and Member Claire Bennett, under s 149A(1)(a) of the Act with respect to the definition of ‘dependant person’s unit’ (DPU) under the Mornington Peninsula Planning Scheme (Scheme).

The Tribunal ultimately declined to make any declaration, as it was not persuaded either way as to whether the Buildings were designed to be moved. The difficulty lay with the emphasis on ‘design’ in the definition of DPU under the Scheme.

Clause 73.03 of the Scheme defines a DPU as “a movable building…”. At clause 73.01, the definition of a ‘moveable building’ requires the structure to be “designed to be moved on more than one occasion”. Both parties agreed that a moveable building must be designed to be moveable, and not just be able to be moved, and can be moveable in deconstructed segments. As the applicant, the Council had the burden of satisfying VCAT that the Buildings have not been ‘designed to be moved from place to place on more than one occasion’.

The Council argued that the Buildings were not a ‘moveable building’ because each building is required to be almost completely dismantled into its component parts before being moved. The Council led expert evidence to suggest the Buildings did not have discernible elements to facilitate future movability and building plans did not emphasise purpose-designed components to make the building moveable. Premier Homes argued that the design manual for the Buildings provided

for design features that pointed towards moveability, most significantly for the Tribunal – segmented wall modules, as well as wiring and plumbing to facilitate moveability.

The Tribunal noted that there are no universal principles to determine whether a building is designed to be moved or not. A definition engages statutory construction and applying “objective common sense” to specific facts. Ultimately, the Council failed to persuade the Tribunal that the Buildings were not ‘designed to be moved’. The Tribunal accordingly declined to make any declaration.

The Tribunal acknowledged that ‘the outcome in this case is somewhat unsatisfactory’, holding that the question of whether a planning permit is required needs to be simple to determine. The definition of a DPU turning on whether it was ‘designed to be moved on more than one occasion’ is hard to determine; exactly how much deconstruction and reconstruction is required before a building becomes permanent? The Tribunal declined to draw any firm conclusions as to this matter but remarked that the difficulty in applying the regulatory framework in this proceeding may provide a case for regulatory reform.

Melbourne CC v 160 Leicester Pty Ltd (No 2) [2020] VCAT 1435 (16 December 2020)

In the latest instalment of the Corkman Hotel saga, for their ‘deliberately defiant non-compliance’ with previous orders of the Tribunal, 160 Leicester Pty Ltd and its Directors were committed to prison, fined $150,000 and ordered to pay a $250,000 adverse costs order.

In 2016, 160 Leicester Pty Ltd (First Respondent) illegally demolished the heritage-listed Corkman Hotel in Carlton. In 2019, the Tribunal made orders that the site be made available to the public, amongst other things (2019 Orders).

In November 2020, a further proceeding took place before President Quigley, at which she found the First Respondent and its directors (the Second and Third Respondents) guilty of contempt of the Tribunal under s 137 Victorian Civil and Administrate Tribunal Act 1998 for wilful and deliberate noncompliance with the 2019 Orders. The latest proceeding sought to determine the penalty with respect to the finding of contempt.

President Quigley found that the First Respondent and its directors (Second and Third Respondents) were “dragged every step of the way to compliance” and “contrition [was] lacking”.

President Quigley noted factors which are relevant in determining which penalty is appropriate, such as: wider circumstances of the contempt, consequences, culpability, reasons for contempt, and whether a full and ample apology had been made. President Quigley identified that ‘the primary aim of bringing a contempt charge is to enforce compliance’ and cited Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 which states penalties should serve three purposes: specific deterrence, general deterrence and compelling obedience to court orders.

President Quigley imposed a fine of $150,000 on the First Respondent Company, a one month imprisonment for each of the First and Second Respondent directors and held that ‘imprisonment in all of the circumstances is the just and appropriate penalty.” The Respondents were also ordered to pay Council’s costs of $250,000.

President Quigley found the following circumstances justified the penalties:

§ The Respondents wilfully disregarded the 2019 Orders and only chose to take action ‘at the eleventh hour or not at all’;

§ The Respondents did not lack the ability to pay a financial penalty;

§ The Respondents did not provide an apology or explanation;

§ Breach of VCAT orders is separate and distinct from other breaches that give rise to adverse consequences, requiring separate penalty;

§ The breaches were part of a “saga” of separate and distinct breaches associated with the illegal demolition.

In handing down the ‘significant and unusual’ jail terms penalties to the Second and Third Respondents, President Quigley noted the overarching importance of compliance to the administration of justice and the rule of law. At [57], her Honour stated, ‘The community has a right to expect that all laws, including planning laws – which are intrinsically for community benefit – are complied with and that where there is a community impact that the entity which is responsible and benefits from the failure to comply with the Tribunal’s Orders enforcing the planning laws will be punished appropriately.’ President Quigley indicated that serious penalties were needed for “deterrence and denunciation” to work to protect these ideals.

The Business Public housing, the economic case for more investment

Continuing to provide outlets for Rob Pradolin’s Housing for all Australians series. The series of articles presents a range of views on the problem of providing both affordable and social housing across the markets what is said by others in order to find common ground. The founding principles is that the provision of shelter is a fundamental human need (not human right) and without that need being met, we have unintended social and economic consequences that will span generations. For further discussion etc, info@housingallaustralians.com.au

What is the economic cost compared to the financial or stimulus benefit of building more much needed public housing?

Clearly there is a societal cost of not housing people as evidenced by the burgeoning number of homeless people in this country but is this less important than finding the money to house those most in need?

The KPMG evaluation of the post GFC housing stimulus was every $1.00 spent generated $1.30 return in the community. This is the financial win. If by housing more people, we can also save money on welfare referrals, prisons, or mental health costs etc. there is likely an additional financial benefit. However, it’s more than just the economic argument.

The real value proposition is that we need more public housing for what it delivers in human terms to the individuals it houses and for the community benefit generally.

Perhaps the most important infrastructure spend the Government can engage in now and post the COVID-19 pandemic, is to invest in public housing and facilitate growth in social and affordable housing more generally. There is now a broad coalition calling for significant investment in social housing and this must be high on the list of Government priorities as we navigate through these very difficult times.

It is imperative that any infrastructure expenditure adds true value to peoples’ lives – we need to get the best bang for the money being invested. So, it must be about investing to generate outcomes now and for generations to come. Government Investment in housing is not just about economic stimulus but for all that housing provides, and what it leads to as a platform for life.

This is an opportunity to set people up for success. This challenge to Government requires true leadership and vision. Making life better for Australians must be the aim; party politics should not be the barrier. Balancing the competing priorities of government may be challenging but that is what we elect politicians to do. It is time for them to step up.

Government must be a conduit to helping people achieve their potential. Unfortunately, many people are missing out on the

Mark Feenane, Executive Officer, Victorian Public Tenants Association

basics and lack the opportunity and resources to change their situation. Housing is the main driver to the better more fulfilling life that everyone aspires to and provides a solid foundation for life and opens pathways to the future.

We all share some common needs - food, clothing, and shelter, without which you cannot really operate, engage, or participate at a higher level.

In Australia, most of us have access to adequate food and clothing, although situations and choices can sometimes impact on this. There are numerous agencies established to help bridge the gap by providing emergency relief and essentials for people experiencing tough times and financial hardship in the short term. Meeting the very significant cost to obtain or provide a safe and secure long-term home is a far more challenging ask.

The capital cost of housing, particularly in a market which wants and sees property prices increasing year on year, is seemingly prohibitive to Government/s from a budgetary perspective. That is despite the accompanying bonus of increases in sales tax and stamp duties and the ability of Government to borrow at record low interest rates.

Ensuring its citizens are adequately housed should be a not negotiable and expected priority and measure of Government.

Housing (shelter) is highly valued by Victorians based on a recent survey conducted by Essential Poll which showed that, regardless of whatever the demographic or political leaning, there was significant support across the board for increases in all forms of Social and affordable housing. More than three quarters of Victorians want the State Government to “build significantly more public and community housing” as part of its response to COVID-19.

Everyone needs a place to call home - having safe, secure, and affordable housing is the prize of highest value and the greatest cost benefit by any analysis. Housing is the major enabler of a valuable life.

The housing value proposition when framed in terms of human values, sits alongside notions of what is important to having a satisfying and rewarding life including:- health and well- being, safety and security, community participation and belonging, education and skills attainment, jobs and job security, personal validation and sense of identity, self- fulfilment, achieving potential etc, all leading to a positive valuable life well spent. The list goes on.

What is the cost in human terms of not having safe, secure, and affordable housing for everyone? We need to get the balance and investment right. The prize awaits.”

The Business The pandemic as the catalyst to reset housing policies

The Housing all Australians series draws on a range of perspectives centred around housing and homelessness. In this article Cameron Harvey, a Partner at lawyers Norton Rose Fulbright, shares his thoughts around why the objective around housing all Australians should be considered an economic imperative for Australia. info@housingallaustralians.com.au

There are many causes for homelessness in Australia but, to date, as a society we have been unable to force the right government policy settings to promote solutions to one of the most pernicious of conditions that plague our society.

The pandemic has shown us that we can move quickly to house the homeless when it is prioritised as a community concern. The speed with which Melbourne’s homeless community were temporarily housed in all manner of accommodation throughout the greater CBD, whether it be vacant hotels, emergency accommodation and the like, was revealing.

The drivers for this were a desire to protect a vulnerable group of people from infection, but also to meet the societal need of ensuring there were no gaps in the isolation and lockdown of our community in order to try and manage the spread of the virus.

Those short term measures are unravelling as I write, but that doesn’t mean we cannot still make progress. The government, private sector, local government and the community at large should combine to create solutions. This was shown, at least in the short term, by the response in Melbourne at the time of the pandemic taking hold. The challenge now is to create the appropriate conditions to allow the right government policy levers to be pulled and the engagement of the business community to be encouraged, such that long term, acceptable solutions to homelessness in this country can be implemented.

It is incumbent on any fair minded, reasonable and considerate community such as ours, to apply itself to delivering solutions to this problem.

To date it is apparent that:

1. The market has failed to provide affordable housing for those at the lower end of the income scale or who are unemployed;

2. There is a chronic shortage of government housing (particularly compared with countries such as the United Kingdom);

3. Data supports the proposition that long term homelessness creates a cost in excess of the cost of supporting these homeless people into affordable housing;

4. A stable and safe home environment creates a platform where support systems can be built and remunerative employment sought; and

5. There is a tension between the federal and state governments as to which government should bear the burden for funding major social housing projects.

Good communities, particularly those with relative high levels of wealth and education, should and must look after those within their community who, for whatever reason, find themselves without the most fundamental of needs, a safe home.

This is a unique moment in our history. We are starting to emerge from a pandemic, we have a government that appears to be willing to engage in Keynesian style intervention in the market place to force economic growth (in particular through the infrastructure sector) and we have historically low costs of finance which not only provides great investment incentive to the private sector but also allows the government to continue to spend and increase its deficit without major financial risk in the short to medium term.

A structured program between federal and state government should seek to:

1. Increase the stock of public housing;

2. Engage with the private sector to develop appropriately funded public/private partnerships for the construction of affordable blended housing projects which include public housing, the ‘build to rent’ apartment style market and private housing at secured long term rental fixed as a percentage of income (with tax incentive to smooth out a market return for private investors); and

3. Active government intervention in the reduction of regulatory delays in the conception and execution of the development of affordable housing projects.

In late November the Victorian Government announced a public housing program of some significance if it is delivered as promised. A substantial number of public houses supporting those on no income and those on low incomes in a regulatory fast tracked environment is certainly a positive step forward. The economic multiplier effect of this type of investment through the broader community will be very well received as well.

There has probably not been a time quite like this when the political, social and economic environments have collided in a way that allow an atmosphere of genuine collaboration between the public and private sector to ensure that major programs are undertaken to dramatically increase the supply of government and privately affordable housing for not just this generation but for generations to come. The benefits will impact every level of society.

Cameron Harvey, Partner at lawyers Norton Rose Fulbright

The Business Investing in social housing, in the era of working from home

The sixth of a 12-part series which will attempt to explore the role that housing can and should play within Australian society and why it is important to our economy that we house all Australians, rich or poor. info@housingallaustralians.com.au

As Australians continue to feel the impacts of COVID-19 and the rolling series of lockdowns, adequate housing for many members of the community is a barrier to maintaining productivity and avoiding social isolation.

With one in three workers still based at home as a result of the pandemic, and 10 per cent of the total workforce intending to continue working remotely into the future, the measure of adequacy for housing has shifted. So too, the importance of suitable and affordable broadband has grown.

This shift has created, for many workers, a new hurdle for accessing work. The home internet connection becomes the link to economic and social opportunity, the living room, the office, as well as the place for family, and the costs of utilities have shifted from employer to employee.

As we spend more time working from home, the pressure on those in an unstable or unsatisfactory housing situation has intensified. This risks further detaching those who are already vulnerable from economic and social opportunities, and risks pronouncing isolation.

Infrastructure Australia’s recent report Infrastructure beyond COVID-19 anticipates the value of face-to-face contact and agglomeration in CBDs is such that twothirds of those working remotely will return to the office and CBDs.

However, for those remaining at home, and those with reduced frequency in the office, optimising their productivity while working remotely is critical both to the economic performance of the nation and to avoid entrenching of financial disadvantage for individuals.

The pandemic, and the new needs of our workforce, should serve as a catalyst for the owners of housing for those on the fringe, including public, community and affordable housing, to rethink the economic value fit-for-purpose housing offer through enabling participation.

It is already widely understood that social housing is an economic enabler. As noted by KPMG in their evaluation of post-GFC

Peter Colacino, Chief of Policy & Research, Infrastructure Australia

investment in housing, social housing provides on average multiplier boost to the economy of $1.30 for every $1 spent.

However, just as the Commonwealth Treasury has noted, economic infrastructure provides an estimated $4 return for every $1 spent, although the impact of each project varies, and the benefits of good projects can be many times higher.

Defining housing quality and pinpointing its incremental benefits remains a key challenge. To secure appropriate prioritisation of housing it will be necessary to turn the focus from considerations of the macro impacts of housing, to gaining a deeper understanding of the specific benefits of tangible housing projects and interventions. It is now paramount to consider the role that investment in fit-for-purpose housing plays in connecting its residents to the workforce.

While it’s clear that many frontline roles cannot be undertaken remotely, research from the University of Sydney in September 2020 found the diversity of people working remotely is relatively high, both during and before the pandemic. While the transition to working from home has been most substantive in white collar roles, it extends beyond that. Clerical and administration roles shifted from 20% to more than 56% remote, while sales staff working remotely shifted from 22% to 30% of the workforce and more than 10% of the labourer and machine operator/driver workforce is also remote.

Figure: The workforce operating remote before and during COVID-19 has been diverse Source: ITLS (2020) Transport Opinion Survey September 2020

Analysis from McKinsey across nine countries has shown that many activities such as information gathering and processing, communicating with others, teaching and counselling, and coding data can theoretically be done remotely.

With much of the workforce operating at least intermittently from home, the challenge of meeting people’s housing needs has been complicated by the suitability of a person’s housing to allow them to work from home. Housing now has a resounding impact on the kind of employment people can access as a result of its location, physical and digital connectivity and configuration.

The challenge of housing inequity, with social housing failing to meet the modern needs of the community, was highlighted in the 2019 Australian Infrastructure Audit. In particular, social housing faces the dual challenges of ageing, inappropriate assets and long waiting lists. This is exemplified by many multibedroom dwellings remaining under-occupied, while there is overcrowding elsewhere.

While this inequity in access is not new, the pandemic has thrust it into the spotlight. The acceleration of the move of the workplace online has also accelerated the move of social housing from social policy to a paramount economic issue that could directly impact our economic recovery. If we are to hasten the economic recovery, address workforce constraints and boost workforce productivity, it is critical that every individual has the opportunity to participate. With as many as one in ten Australians now living in social housing, and two-thirds of that group employed, it is critical this substantial cohort is provided the opportunity to engage in the workforce.

Social housing tenants in the workforce are both more likely to exit social housing, and more likely to have access to higher incomes. The opportunity to achieve these two outcomes is now more closely tied to the nature of the property.

To encourage investment, we need more data and robust analysis of how public, community or affordable housing infrastructure

interventions have improved outcomes for individuals. It is well known that investing in social housing has benefits for residents and our national economy, but we understand less about how these benefits are impacted by the type of housing we invest in. We need to better define fit-for-purpose housing and the economic case for enabling interventions.

The other side of the coin from Australia’s property boom has been pronounced challenges in the delivery of affordable housing. While existing community housing appreciates in financial value, locking up the balance sheets of owners, these assets age, deteriorate and their service value erodes as they no longer meet the needs of residents. The costs of minor maintenance, the costs to heat, cool and digitally connect, all grow.

While there is an established and growing need to refresh existing social housing assets, the opportunity to use the sale of existing houses to fund new, higher-quality dwellings strengthens.

Despite the opportunity, well intentioned community attitudes to maintain the level of publicly supported housing can compound the challenges associated with inadequate housing stock. Perceived friction associated with recycling or transitioning of housing stock to private ownership to create a stream of revenue for investment in new housing assets is a major hindrance. It is incumbent on the owners of existing public housing to educate the community on the shortcomings of existing assets and the opportunity that right-sized, fit-for-purpose homes would unlock for their residents.

If we are to address the challenges of economic and social isolation that impact those in publicly supported housing, it is critical that we can support an informed public discussion about the contribution of housing and digital connectivity to our communities. COVID-19 provides a catalyst for this discussion, and a burning platform to build the data and knowledge to support modern, right-sized assets to meet the needs of the post-pandemic home-based workforce.

There is anecdotal evidence that returning Australian expats are buying on home ground now rather than overseas, further mitigating the migration fallout.

But the biggest thing the forum agreed on was market confidence and how it might be maintained, post 30 June. As Nerida pointed out, the market is pretty warm right now and first home buyers love a slow market, it gives them time to think, so we need to look closely at other purchasers as well.

Key possibilities that could help:

– Ease rather than abruptly chop JobKeeper and HomeBuilder

Tackle the looming impact of migration’s fall-off

– Stamp duty exemption for off-the-plan purchases

Maintain normal market stimuli

Enact home design changes to meet evolving market demand.

During this world-wide pandemic you must ask yourself: How good is Australia? I was watching The Drum the other night and most people answered: ‘The only place I want to be!’

That’s the reason Australia will continue its bounce-back when immigration eventually starts again. In fact, I believe the world will see Australia as the safest and best place to live, so we will be swamped once the Government devises a plan to safely allow immigration to resume.

That new demand could cause a property boom greater than the last 20 years.

People VPELA Committee 2020-21 new member profiles

The VPELA Committee welcomed three new members in the November 2020 elections: Mark Sheppard, Ellen Tarensenko, and Mia Zar. Here are short profiles.

Mark Sheppard, kinetica

Mark grew up in suburban Auckland, New Zealand, from which he escaped to the big smoke (London) as soon as he’d finished his architecture degree. After completing post-grad studies in urban design, he worked for David Lock Associates in the New Town of Milton Keynes (although he couldn’t bring himself to return to suburbia, so continued living in London). David and others taught him all about master planning and urban regeneration.

In London, he fell in love with the convenience and vibrancy of properly urban environments. He also fell in love with an Australian, which was lucky since he couldn’t afford to bring up a family in London but thought that returning to NZ would be a backward move.

So, having got the big OE thing out of his system (for now …), Mark settled in an inner suburb of Melbourne, where he could still enjoy the benefits of compact living but with better weather. He grew a planning and urban design consultancy (originally David Lock Associates, now kinetica), which has somehow survived. At the same time, he grew three kids whom he has so far failed to evict from the house.

Since hanging out his shingle in Australia, Mark has worked on a weird and wonderful range of urban renewal and growth projects for public and private sector clients all across the country (and, yes, back in NZ). After a while, he discovered that he could successfully argue that black is white, so lawyers snapped him up for expert evidence too (joke!)

Mark has an independent streak that belies his diminutive size. He has always felt a desire to challenge the status quo, if only to provoke debate and fresh thinking. One of his favourite things is applying ideas from other subjects to stimulate new approaches to urban design and development, and sharing his thoughts via articles, talks, the occasional book and even a computer game! (He is currently exploring how concepts of evolutionary and disruptive change, elasticity and redundancy, friction and complexity might inform a new, more targeted way of controlling development that maximises the emergence of innovative and diverse built form outcomes.)

Mark is passionate about shining a light on the planning elephant-in-the-room that is middle-ring Melbourne, and in particular the unrealised potential it offers to address the big

issues of housing affordability, sustainability, resilience, social inclusion and health, if we can just get over our obsession with neighbourhood character. Mark is a founding member of the Victorian chapter of Suburban Alliance, which aims to raise the level of debate about suburban issues.

He also enjoys helping to cultivate the careers of his younger colleagues.

When he is not thinking about cities, Mark scrapes the ’cello in a symphony orchestra, meddles in the development of the local high school, produces dodgy oil paintings of dead forebears, and dreams of being able to travel to overseas cities again.

Ellen Tarasenko, Herbert Smith Freehills

Ellen is a planning and environment lawyer with 12 years’ experience acting for a range of developer clients. Over that time, she can honestly say she’s been exposed to a lot of things ‘planning and environment’ – from mega towers and major transport projects to 2-lot subdivisions, and everything in between.

Career highlights include undertaking a site inspection in the client’s helicopter, seeing a project all the way through from an application to Council and refusal, to a win at the Court of Appeal, and all the learnings and laughs with the late and great Phil Bisset, which she deeply treasures. Lowlights include faceplanting in the middle of a VCAT hearing – she went to stand up but her foot had fallen asleep.

By far the best thing Ellen says she has done for her career was to move to London for 2 years. She worked in the planning team at a large UK law firm and did a lot of (the equivalent of) section 173 agreements, which are used very differently in the UK. The concept of affordable housing was completely new to her at the time, but it became a particular interest. Ellen informed her UK colleagues that, in Victoria, developers would be able to tell Councils to nick-off if they tried to impose a 30% affordable housing requirement or cap their profits at 20%, as is common with UK planning approvals. When she returned to Melbourne in 2017, there was a bill in Parliament to introduce principles of affordable housing in the PE Act. Ellen believes we are making slow progress in changing hearts and minds and while it is getting there, we still have a long way to go in the area of affordable and social housing.

She and her husband, Leigh, love to travel. While 2020 put a dampener on that, they have had 3 mini-trips to regional Victoria, plus a trip to Tasmania, since Christmas. Ellen is eagerly waiting for travel bubbles to open and is creating a pipeline of booked restaurants and events to keep her busy in the meantime.

Mia Zar, Tract

Mia hails from Perth, W.A. where she had no idea that planning existed until she was working as a receptionist at architecture firm Jones Coulter Young (JCY), where she was constantly overhearing colleagues complaining about “bloody planners” thwarting their grand visions.

After a few weeks of Friday night drinks, it became clear that these “bloody planners” had a great deal of power, being tasked with developing the framework within which architects and developers carried out their work and therefore having a real opportunity to influence environmental and social outcomes (or so it seemed to a naïve 18 year old!).

Mia began her urban planning studies at Curtin University in Perth whilst working in the CEO’s office at the East Perth Redevelopment Authority, gaining insight into urban renewal and placemaking (and the operation of quasi-government bodies!).

In 2009 (?), Mia moved to Melbourne and transferred to RMIT and (ever the multitasker) undertook a semester exchange at Ryerson University in Toronto, Canada as a way of fitting in a decent overseas trip whilst knocking off the last of her studies.

Her time at Ryerson fuelled Mia’s interest in social policy and affordable housing, with the redevelopment of Regent Park underway at the time (a 280,000sqm social housing public-private partnership project), and an eye-opening course in homelessness

which highlighted policy failings and discriminatory practices which are also evident in Australia.

Back in Melbourne, Mia began her planning career in local government; spending time at the cities of Banyule, Moreland and Melbourne before moving to Ratio Consultants where she was inspired by the willingness of the company to speak out publicly on issues impacting both the industry and society more broadly. After 5 years with Ratio Mia accepted an Associate role at Tract Consultants where she is working across a diverse range of projects including the Queen Victoria Market, CBD towers, a couple of schools, two museums and everything in between.

Mia uses her role as a consultant to gently nudge her clients towards more environmentally and socially sustainable outcomes. She is passionate about increasing the diversity of voices which shape our built environment and has tutored at RMIT in Professional Practice and Ethics, and mentors students and recent graduates.

Outside of the office Mia loves travelling (particularly within Australia), learning about Australia’s aboriginal history and traditional land management practices, reading (anything!) and spending time with her partner, son and cat. Living in an apartment on the edge of the city, she is proof that families do live in apartments and can talk at length about the trade off between space and location.

She bought a violin during lockdown #1 to encourage her son to keep up on his practice but is yet to play it.

Young Professionals Award 2021 $5000 Grant

VPELA is pleased to invite applications for the VPELA Young Professional’s Award for 2021. This highly prestigious award is open to VPELA members between the age of 18-35, who have been members of the Association for at least 12 months. The Award includes a trophy and cash grant of $5000 to support the recipient in undertaking independent research (domestic or international), or a course of study related to their industry, as well as opportunity to speak at our Fellows Dinner in 2022.

For details of qualifying criteria and an application form go to our website here or contact Jane Power, VPELA secretariat on 9813 2801 Applications close 9th April 2021.

People Meet the YPG Committee 2021

Eliza Minney (Convenor)

Eliza is a Senior Associate in the Planning and Environment team at Best Hooper Lawyers. She works on a range of planning and environmental matters and particularly enjoys the strategy and negotiation aspects of her practice. Outside of work Eliza tries to balance going to the gym, walking her dog and socialising but usually ends up on the couch watching a Netflix show about serial killers. This is Eliza’s third year as co-convenor of the YPG and her fourth year on the Committee.

Jack Chiodo (Convenor)

One of the YPG committee co-convenors for 2021, Jack is a town planner at Manningham Council. Working predominantly in the appeals space, he has an ever-growing passion for advocacy, negotiation and dealing with the more complex planning matters. Outside of work, Jack enjoys all things fitness, being social, the odd whiskey (or two) and staunchly (and stubbornly) supporting the Brisbane Lions and AC Milan. This is Jack’s fourth year on the YPG Committee and second year as co-convenor.

Vincent Pham

Vincent is a Principal Planner and urban designer at Yarra Ranges Council. Owing to his qualifications in both architecture, planning and urban design, Vincent is particularly passionate about advocating for positive urban design and built form outcomes through statutory planning process and mechanisms within the built environment. He is passionate in positively influencing planning and urban design outcomes across all scales throughout Victoria. Outside of work, Vincent enjoys a good burger with mates, and is always on the lookout for new burger restaurants in Melbourne and Victoria to add to his list.

Daniel Milder

Daniel is a Traffic Engineer at Traffix Group with 7 years’ experience. He has a significant experience in a large range of land use developments from small scale residential developments to shopping centre developments in regional locations. Outside of work Daniel enjoys eating a high quality steak, going to the football, and skiing in the winter months.

Isobell Vescovi

Isobell Vescovi is a senior planner at SJB Planning. Isobell has experience spanning across the public and private sector. Isobell has worked on an extensive range of commercial, residential and mixed use developments. She is outcome driven and is passionate about innovative, sustainable design. Outside of planning, Isobell enjoys travelling, keeping fit and spending time with family and friends. This is Isobell’s third year on the YPG committee.

Jennifer Lim

Jennifer is a Town Planner at Taylors and enjoys working in a multi-disciplinary team. She has an eye for detail, is passionate about delivering comprehensive planning outcomes at all scales throughout Victoria and is delighted when her projects come to life. Jennifer is also interested in understanding other industry standards and requirements, and how they influence planning decisions and outcomes such as child care centres, medical centres and pharmacies. When she is not planning communities, Jennifer enjoys planning her next getaway or culinary adventure.

Lina Inglis

Lina is a Senior Traffic Engineer at Ratio Consultants, her experience includes the preparation of VCAT expert evidence statements, traffic modelling of mixed use precincts and large residential estates in Greenfields areas. In her spare time Lina enjoys painting canvases and illustration.

Taryn Sobel

Taryn is a senior consultant in the planning team at Urbis and has spent the last year living in Israel with her partner. She is passionate about planning and is keen to dive back into her role and further her experience as a VCAT advocate. Taryn’s year in Israel has given her a new perspective and appreciation for the Victorian Planning System, which she looks forward to sharing with others. Outside of planning, Taryn is proud to report that she has converted her partner into a fullyfledged Carlton supporter (membership and all)!

Zina Teoh

Zina is an associate in the Public Law team at Maddocks. She specialises in planning and environmental law and has broad experience advising local government and private clients. Outside of work she enjoys playing netball and is an enthusiastic (but slow) cyclist. This is her second year on the YPG.

Charlie Wurm

Charlie is a lawyer in the Public Law group at Maddocks. He regularly advises and appears on behalf of local government clients on planning and environmental matters, including enforcement. Charlie also has experience acting on behalf of private clients and maintains a broad practice in prosecution, often appearing in the Magistrates Court of Victoria. In the colder months, you will find Charlie supporting the Blues on weekends, and exploring Victoria as the weather gets warmer.

Charlotte Phillips

Charlotte is a Planning Consultant at Urbis and has experience working as a planning consultant across several projects throughout Australia. The projects have ranged in scale and complexity, including state transport infrastructure projects, strategic precinct planning, statutory planning and stakeholder engagement processes. This is Charlotte’s second year on the YPG Committee. Outside work Charlotte enjoys a hit of tennis, beach walks and cooking delicious food.

Zac Van Grondelle

Zac is a Principal Statutory Planner at the City of Greater Geelong, working in a newly created Business Facilitation role. Experienced in a wide range of major development applications, Zac’s current position focuses on helping business owners navigate the planning system. With a facilitative mindset, he hopes to see the Geelong region continue to thrive because of good planning outcomes. Outside of work, Zac spends as much time as possible exploring all the great things his new home, Geelong and the Bellarine Peninsula, has to offer – always accompanied by his trusty sidekick, Elsie the rescue greyhound.

Emily Mignot

Emily is currently the Enquiries Planner at Monash City Council. Nominated for the PIA VIC Young Planner of the Year 2020, Emily is focussed on providing exceptional service and planning advice to the community and industry. She is passionate about community engagement, having worked on projects across the public and private sector from local community consultation to statewide citizen’s juries. When not immersed in planning issues, Emily loves performance and the arts. This is her first year on the YPG Committee, and is excited to see what 2021 will bring.

Amara Coleman

Amara is a lawyer in the Planning, Environment and Local Government team at Harwood Andrews Lawyers. Amara works across a variety of matters involving statutory planning, strategic planning, environmental protection and local government. Amara enjoys the diverse and dynamic nature of the planning and environment sphere, including the opportunity to collaborate with, and learn from, numerous different areas of expertise. Outside of work, Amara enjoys walking on the coast, drinking Tasmanian Riesling, and spending time with her ‘special’ chocolate lab.

Michael Pavlidis

Michael is a law graduate in the property team at Schembri & Co Lawyers. During his education he had the opportunity to conduct legal research for multiple planning barristers and also assist with pro bono legal work for Western Landcare alongside the Honourable Simon Molesworth AO QC on the ‘Greening the Hill mk2’ project. He is passionate about planning, property, environmental and administrative law and seeks to become an advocate in these areas. Most importantly though, he hopes to be cheering the mighty Hawks to yet another premiership in the near future. This is Michael’s first year on the YPG committee.

Stephanie Cimino

Stephanie is a first-year planning and environment lawyer at Equipe Lawyers. She works on a variety of environment and planning matters, ranging from residential development to extractive industry permits. Stephanie is particularly interested in administrative law, alternative dispute resolution processes and its increasing role in helping parties reach acceptable planning outcomes in a timely manner. This is Stephanie’s first year on the YPG Committee and she is looking forward to being a part of the team. Outside of work, Stephanie enjoys playing piano, reading (often more than one book simultaneously), spending time with her family and listening to true crime podcasts.

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 problem of Chapel Street

In his October 2020 “Fast Lane” Henry Turnbull foreshadowed a post-COVID-19 increase in bicycle use for commuting leading to a battle for road space.

Nowhere are the battlelines clearer than in the 2km strip of Chapel Street between Dandenong Road in Windsor and Alexandra Parade in South Yarra.

This stretch of pavement is one of Victoria’s most dangerous with approximately 200 injury collisions including two fatalities in the five years to 2019.

Yet Chapel Street was recently declared a Strategic Cycling Corridor by the Department of Transport, and it was declared part of the Principal Bicycle Network a decade ago.

This so-called ‘Problem of Chapel Street’ has been kicked down the road by successive councils at Stonnington, but COVID-19 and the success of outdoor dining has meant that some traders are now prepared to repurpose at least some of the parallel car parks that represent the greatest threat to cyclists via car “doorings”.

As can be seen in Figure 10 from Plan Melbourne this Cycling Danger was recognised back in 2013.

While cyclists tend to spend less per shopping trip than drivers, they also tend to make more trips, contributing more total money into the local economy over time.

For example, masters student Alison Lee looked at the retail spend of cyclists on Lygon St and found that while the average cyclist’s retail spending is only $16.20/hr compared to a car driver’s $27.00/hr, six bicycles can park in the space required for one car.

Therefore, while one car space equates to $27 per hour retail spending, six bicycle spaces (of the same total space) equate to $97.20 per hour.

Latent demand in Chapel Street is of particular significance given that as many as half of the residents in the new Forrest Hill precinct towards the Yarra River do not own a motor car, and have no convenient means of accessing shops and facilities to their south.

Many people avoid cycling along Chapel Street for fear of injury,2 and congestion at peak periods can sometimes mean the 78 tram is little quicker than walking.

The Chapel Street precinct is not short of parking. GTA Consultants found that there is ‘surplus capacity’ in nearby offstreet car parking facilities, including during peak periods—and this was before the 500 car spaces were recently constructed at Prahran Square.3

While the economic impact of removing kerbside parking in Chapel Street has long been a traders’ concern, research from other shopping strips suggest that such worries can be overstated.

A 2015 literature review published in Bloomberg1 concluded that wherever bike-lane plans emerge, the “studies on possible economic impacts” requested by retailers all reach a similar conclusion: replacing on-street parking with a bike lane has little to no impact on local business, and in some cases might even increase business.

The City of Stonnington can therefore offer reliable, cheap and convenient off-street parking while creating more space for pedestrians, more outdoor dining spaces and safer infrastructure for cyclists and people with disabilities.

1 The Complete Business Case for Converting Street Parking Into Bike Lanes, “An annotated, chart-filled review of 12 studies from around the world”, 13 March 2015

2 City of Stonnington, Cycling Strategy 2020-2025 (Report, 2019) at 14

3 City of Stonnington, Cycling Strategy 2020-2025 (Report, 2019) at 23

Matthew Townsend is a member of the Victorian Bar and runs “SaferCyclingforStonnington”@sstonningtononTwitter.

Matthew Townshend Barrister

The future of office space

On Wednesday 17 Feb 2021, Hall & Wilcox was proud to sponsor the VPELA Webinar - ‘The Future of Office Space’. Over 75 attendees zoomed in and we heard from Simon Pole – Global Director, Design, Unispace; Soren Trampedach – Founder, Work Club Global and Faculty: Singularity University; and Nicole Ward – Regional Portfolio Manager (Office): Charter Hall.

The panel provided a thought provoking discussion, and it was valuable to hear concurrently from designers of office space and landlords of office space.

Before reflecting on the key takeaways from the panellist’s conversation, it’s sage to remind ourselves how COVID-19 has accelerated the digital revolution timeline for most businesses, forcing organisations to maintain seamless business operations while maintaining social distancing in the office, or having employees work from home.

For many, COVID-19 has been the catalyst that has grabbed organisations by the ‘scruffs of their necks’ and pulled them though an operational technological revolution. This rapid need to innovate has made COVID-19 the undisputed ‘Chief Technology Officer of the Year’ for the past two years.

Regardless of where one has been working, the last 12 months have introduced stresses that may have made it more difficult for people to perform at their best. Instead of thriving in work environments optimised for job performance, many people are now juggling work, family commitments and home schooling from the one domestic space. Is this sustainable over the long term?

What is the purpose of large centralised office locations?

Use of large, centralised office locations facilitate in-person collaboration, foster teams and are the nurseries of organisational culture. They will always have these benefits. In-person collaboration will continue to be the key to long-term business success, culture building and team shaping.

These environments are critical for growth and talent development, particularly the development of graduates, on-boarding of new employees and training junior staff more generally.

Face-to-face office functions support knowledge transfer (deliberately or by osmosis), the retention/protection of institutional knowledge, and the relational social interactions that are the glue of any corporate culture.

In the webinar, we heard that it has been the younger demographic who have mainly been hampered by the closure of central offices and remote working. Generally speaking, this was due to:

• Younger workers on average living in smaller homes, with less space to import setups which would enable efficient means of working from home;

• Younger workers generally sharing their homes with housemates who also needed space for their remote set ups and quiet for calls and video meetings;

• Lost opportunities for impromptu mentoring and learning by others’ example;

• Lack of diverse social interaction (i.e. water cooler conversation); and perhaps

• Missed openings for learning, project on-boarding and knowledge transfer by not being able to place themselves ‘in the right place at the right time.’

The social element workers have been missing was stressed by the panellists. Pulse surveys undertaken by Unispace indicated a decline in the desire for office workers to work from home the longer we spent in lockdown. 83% of those surveyed in May 2020 wished to work from home three or more days per week. This was down to 55% by the end of July 2020, and then plateaued at around 41% of those surveyed between September and December 2020.

We were informed that predictive analytics suggested between 24% - 37% of the legal work force will wish to continue working remotely three or more days per week following the rollout of a COVID-19 vaccine (Q1 2022).

Has COVID-19 reset the thinking behind the centralised office?

There is an old adage –“never waste a crisis”.

Instead of maintaining the traditional view that the office is only the physical place where workers work, the panel challenged the attendees to think about whether now is the time to re-shuffle our thinking to better support employee performance and organisational resilience while contributing more to our local communities.

Whilst not a ‘reset’, perhaps COVID-19 is the opportunity to question long-held assumptions about how work should be done and the role of the office, more broadly. The panel raised the point that businesses should be moving to promote the office as an anchor for collaboration and promotion of business culture - almost like a mission control for the organisation.

There is ‘no one-size-fits-all’ solution. The answer, different for every organization, will be based on what talent is needed, which roles are most important, how much collaboration is necessary for excellence, and where offices are located today (among other factors).

Matt Hughes, Lawyer, Hall and Wilcox

Will the office ever disappear?

You can’t change a culture over Zoom.

Physical spaces where people come together is where culture is built. Physical interaction is so critical to building a culture and fostering a team.

The office is not going to disappear, but it will require a fresh, new approach. People will still need places where they can come together, connect, build relationships, and develop their careers. Junior staff, graduates, clerks and interns flourish with close supervision. There are some things that just can’t be communicated effectively and efficiently at distance.

Simon Pole (Unispace) presented a graphic comparing the city office vs home office both pre-COVID-19 and post-COVID-19 in terms of how people would consider each space best for ‘focus’, ‘collaboration’, ‘learning’ and ‘socialisation’. The office retained its supremacy for socialisation and collaboration. Somewhat surprisingly, the ‘focus’ metric swung dramatically:

City OfficeHome Office

A move to a different model?

One of the takeaways that all panellists agreed upon was that the CBD office market will survive the aftershock of COVID-19, but it may be the suburbs that prosper through an ‘urban shift’. This would look like a more evenly distributed model of office and workspace throughout cities and geographic regions, rather than an agglomerated CBD.

Soren Trampedach (Work Club Global) explored this idea in greater detail with the attendees. He identified that there is such an opportunity within ‘on the fringe’ locations in major cities. These opportunities materialise through the proximity of different kinds of people, industries and disciplines. The establishment of urban fringe workplaces, and co-locating diverse industries and workplaces together, has the potential to create an ecosystem of innovation.

However, Soren qualified this with reference to Melbourne, by saying this model is inherently limited by the lack of transport links in Melbourne as you move out of the inner ring of suburbs. For this urban shift to take place, there needs to be a focus on upgrading and diversifying transport planning to enable the smooth transition from city to urban to suburban.

This information highlighted the shift in thinking. It appears likely that home working will complement office work, not replace it. Perhaps the office layout as we are currently familiar with, that being a desk based layout designed to ‘sweat the asset’, will disappear, and there will be a perceptible shift towards an experience-centric layout that fosters collaboration through design and incidental learning opportunities through the clever use of space.

Well-designed meeting spaces can contribute to a culture of learning and knowledge sharing, while amenities, access to natural light, and other aesthetic features can promote feelings of vitality.

Personally, I miss the collaboration and social aspects of a full office. Being in a busy office firmly flips the switch in my mind that these four walls are for working, learning and contributing to something bigger than the individual. There have been times during the various Victorian lockdowns where the lack of separation between work and home life has led to me feeling like I have been ‘living-at-work’ rather than ‘working-from-home’.

An alternative model would revolve around larger businesses and/or government departments, transitioning to a ‘hub-andspoke’ model. This is where the organisation would retain its central CBD headquarters (perhaps with a reduced footprint) as the ‘hub’ and then compliment this with a network of suburban satellite offices (spokes) within fringe urban workspaces. The satellite suburban offices would not need to be large or accommodate many staff at once. They would just need to be of sufficient scale to function and establish a presence, plus allow opportunities for innovation.

Thank you to all the panellists that contributed their time and thinking to the industry, and to the attendees who made it so successful. For those that missed it, the webinar is available to watch. Contact the VPELA office to purchase.

Matt Hughes is a lawyer specialising in planning & environment law at Hall & Wilcox with experience in both local government and private consultancy. and regularly acts, advises and appears on behalf of private developers and both local and state government bodies before VCAT, Planning Panels Victoria and the Supreme Court of Victoria.

Email: Matthew.Hughes@hallandwilcox.com.au

Figure 1: Extract from slide show (credit: Simon Pole, Unispace)

People Planning & the obligation to integrity: Reflections on local government

This is a partial transcript of the presentation made at the VPELA State Planning Conference on 27 November 2020.

Firstly, thank you to the organisers for inviting me to speak at the conference today. Secondly, I would like to state that anything I say today should be understood to be comments made in a private capacity, for which I alone am responsible. I have not worked for Victoria’s anti-corruption agency IBAC for nearly a year now and I am conscious that my remarks come in the midst of public hearings, in IBAC’S Operation Sandon as it is known, which is examining allegations of corrupt conduct in relation to planning and property development decisions in the City of Casey. Neither do I speak in any capacity in my new role with the Federal Higher Education regulator known as Texa. Thirdly, I note that Harwood Andrews is sponsor of this segment. I should clarify that I have no relationship with Harwood Andrews, nor they with me.

I can now turn to matters of integrity in our system of urban planning and its interaction with local government in particular. Firstly, perhaps it is helpful to provide a context for IBAC. It commenced operation in 2013 and was the first independent statutory police oversight and anti-corruption body of its kind in the Victorian jurisdiction and it came years after other bodies such as ICAC in NSW, which was set up in the late 1980’s. In many respects the checks and balances in IBAC meant that it had weaker powers than other jurisdictions, with no real experience or acceptance of its function in in Victoria’s legal profession. or for that matter in the judiciary. That became quite relevant to the conduct of its work for the first few year of its existence. Moreover, and in my opinion, there was and remains a strong denial and exceptionalism here in Victoria. Public administration and policing here in Victoria is somehow “different”, and even superior, to other jurisdictions and it somehow hasn’t been tarnished by the cronyism, conflicts of interest and executive level interference, that have at least been perceived to have punctuated the history of other jurisdictions such as Queensland & NSW.

I remember being pulled aside by a very senior public servant, early on in my tenure at IBAC and being told “Alistair there is just one thing you need to remember, we’re not NSW and you’re not ICAC.” And Victoria Police kept reminding me that the Force had never been subject to a royal commission. Well hopefully some of those myths have been smashed in the last few years and of course Victoria Police is currently the subject of a royal commission. All of this in my view, was and is complete nonsense. To pretend that Victoria, which is part of the same federation and shares almost identical policies, systems, procedures and controls for public administration and policing as other jurisdictions, that it is somehow immune to corruption or other forms of misconduct, beggar’s belief. And in my experience, this sense of exceptionalism that dominated and

Alistair Maclean, former head, IBAC

characterised Victoria in 2013 has extended to local government as well, and our planning controls and in particular our systems and processes for permitting the built form in Melbourne and across the state. And with that has come some significant risk and we are seeing that very really in terms of the public hearings of Operation Sandon.

The business model for IBAC is built on two functions: exposing corrupt conduct and police misconduct mostly through investigations and preventing corrupt conduct through our education prevention campaigns. That is really about raising awareness of red flags for corrupt conduct and how to address and manage the risks. IBAC does this principally be receiving reports or complaints of suspected or actual misconduct, which it then triages to either dismiss, or refer whether it is to Police or back to council or to take up the matter itself for investigation.

Over time as we built the organisation and its capacity an intelligence picture of corruption risks in particular sectors, industries, and professions associated with the public sector built up. In our early years, local government rarely came across our radar, we were focussed on public transport, education and of course our police jurisdiction. The case load in local government for the first few years was restricted to fairly minor matters and they were mostly referred back to the councils for them to deal with. But we knew that there was likely to be a range of issues in local government associated with planning and we knew that the interface of local government and planning processes was likely to be a key area of high risk for corrupt conduct. Why did we know this? How did we know? Firstly, from the experience of our counterpart bodies in other states, in particular Qld, NSW & WA. And as I stated earlier, to pretend that Victoria, with very similar planning systems was immune was at best naïve in my view. Secondly, there was a slow burn of accumulated complaints and allegations most of which lacked substance and were plainly spurious, but some of which pointed to some significant problems that were very similar to other jurisdictions, which gave us the beginnings of a map of risks. I don’t think it will come as any surprise particularly in view of the current IBAC hearings, that planning processes and controls, or lack of them, emerged as a principal area of risk. The risks were characterised by things such as; a failure to declare and manage conflicts of interest, failure to manage the relationships between proponents and decision makers, failure to manage donations, gifts, pro- bono services, hospitality and the like, the misuse of information, often commercial in confidence, sometime inadvertent and sometimes deliberate, and poor cultures and systems for managing these risks at local councils… .

To hear the rest of Alistair Maclean’s presentation on integrity, as well as any other conference keynotes or sessions go to our website here where you will be able to purchase individual sessions or the whole conference to watch at your leisure.

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