Victorian civil and administrative tribunal

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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

vcat reference No. P44/2012

CATCHWORDS

Section 149(1)(a) of the Planning & Environment Act 1987; Moreland Planning Scheme; Business 1 & Business 2 Zones; Development Plan Overlay Schedule 11; Design & Development Overlay Schedule 20; Major mixed use development on large inner-suburban site; Review of failure to determine Development Plan; Affordable housing; Traffic; Environmentally sustainable design

APPLICANT	East Brunswick Village Pty Ltd
RESPONSIBLE AUTHORITY	Moreland City Council
RESPONDENTs	VicRoads & Director of Public Transport
SUBJECT LAND	127-137, 139 & 149 Nicholson Street, 2 Elm Grove & 98 John Street, Brunswick East
WHERE HELD	Melbourne
BEFORE	Geoffrey Code, Member (Presiding) & Michael Nelthorpe, Member
HEARING TYPE	Hearing
DATE OF HEARING	13 & 14 August 2012
DATE OF ORDER	3 September 2012
CITATION	East Brunswick Village Pty Ltd v Moreland CC [2012] VCAT 1307

Order

For all the documents included in the Application comprising the East Brunswick Village Development Plan, substitute the documents set out in Appendix A.
The failure by the Responsible Authority to decide within the prescribed period that the East Brunswick Village Development Plan has been prepared to its satisfaction is set aside.
The East Brunswick Village Development Plan is prepared to the Responsible Authority’s satisfaction under clause 43.04-1 of the Moreland Planning Scheme, subject to the following modifications—

In section 2.1 of page 3 of document 3, omit the five paragraphs from the paragraph starting with the words ‘An alternative option for tram measures … ’ to (and including) the paragraph ending with the words ‘ … might be required to implement their preferred tram stop measures.’
In section 2.3 on page 2 of document 8, for—

substitute—

At the end of section 2.12 on page 15 of document 3, insert—

The Responsible Authority is directed to amend and endorse the East Brunswick Village Development Plan as having been prepared to its satisfaction and to forward a copy of the endorsed East Brunswick Village Development Plan to the Applicant.

Geoffrey Code

Member (Presiding)

Michael Nelthorpe

Member

APPEARANCES

For Applicant	Mr John Cicero, Best Hooper Lawyers. He called the following expert witnesses: Mr Chris Butler, traffic engineer, Cardno Victoria Pty Ltd Mr Robert Papaleo, property economist, Charter Keck Cramer A statement of evidence by Ms Ania Hampton, ESD consultant, Hampton Sustainability was also filed on behalf of the Applicant but she was not called to give evidence.
For Responsible Authority	Ms Jane Sharp of counsel. She called the following expert witnesses: Dr Marcus Spiller, economist & town planner, Spiller Gibbins Swan Pty Ltd Ms Vany Gunaratnam, environmental engineer, Moreland City Council
For Respondents	Mr Simon Lanza, Team Leader, Planning North Central, VicRoads

INFORMATION

Description of Proposal	Mixed use development comprising about 1,000 dwellings, about 7,000 sq m of retail floor space (including a supermarket of 3,000 sq m), up to 7,000 sq of office space, and about 850 car spaces
Nature of Proceeding	Application under section 149(1)(a) of the Planning and Environment Act 1987
Zone and Overlays	Business 1 Zone (B1Z) Business 2 Zone (B2Z) Development Plan Overlay Schedule 11 (DPO11) Design & Development Overlay Schedule 20 (DDO20) (expired 10 May 2012) The land adjoins land in a Road Zone Category 1 (RDZ1) (Nicholson Street)
Relevant Scheme policies and provisions	Clauses 11, 16, 18, 21.04-2, 21.05-1 & 65
Land Description	The subject land is 4 km north of the Melbourne CBD and is on the east side of Nicholson Street, East Brunswick, between Glenlyon Road and Albert Street. It comprises four sites. The largest one is 127-129 and 139 Nicholson Street and has a frontage to Nicholson Street of 102 m and a frontage to John Street (to the west) of 90 m and an area of 2.1 ha. This site is controlled by the Applicant. The three other parcels are smaller in area and are separately owned. Overall, the subject land has an area of 3.12 ha. The land is either vacant industrial land (including the former Tontine factory) or current industrial land. Nicholson Street is a main arterial road with two traffic lanes in each direction, with the central traffic lanes overlaying tram lines. Sumner Street is opposite the proposed Main Street. Rickard Street, Gamble Street, John Street, Albert Street and Elm Grove are local streets that adjoin the subject land. Nicholson Street is a declared State Arterial Road and a Tram Priority Route.

REASONS

What is this proceeding about?

East Brunswick Village Pty Ltd (EBV) is proposing to carry out a major mixed-use development of the subject land.
EBV prepared and submitted to the Moreland City Council the East Brunswick Village Development Plan (the DP) for approval in accordance with the provisions of clause 43.04 of the Moreland Planning Scheme (the scheme).
The DP affects the subject land. The subject land is a major part of the overall land affected by Development Plan Overlay Schedule 11 (DPO11) in the scheme. DPO11 authorises the mixed-use development of the subject land subject to, among other things, the approval of a development plan.
The DP comprises the documents identified as documents 1 to 11 in Appendix A to these reasons.
EBV owns most of the subject land. The owners of the three land parcels comprising the subject land that are not owned by EBV are not parties to this proceeding. However, EBV filed letters of consent by those owners to the approval of the DP.^¹
The Council failed to decide the DP within the prescribed period. EBV has applied to the Tribunal to review the Council’s deemed refusal to approve the DP.
The dispute between the parties is relatively narrow in compass because it concerns only some features of the DP. The dispute may be reduced to the following questions—

Does the DP satisfy the DPO11 requirements for affordable housing?
Does the DP satisfy the DPO11 requirements in relation to traffic matters?
Does the DP satisfy the DPO11 requirements for environmentally sustainable design in relation to offices?

We have decided to set aside the Council’s decision and approve the DP subject to changes.

Affordable housing

The provision of affordable housing in areas is a complex matter. Having regard to the flexible nature of the DPO11 requirements, the DP meets those requirements.
Background
The gentrification of Brunswick has been occurring for some time. Housing costs in Brunswick have been increasing at above average rates. The Council has been concerned about these trends for some time. In 2006, it adopted a strategy to address the problem.^² One measure in the strategy was to incorporate affordable housing into large development projects. Affordable housing was defined in the strategy as ‘well located housing, where the cost of housing (whether mortgage repayment or rent) is not more than 30% of the household’s income.’
Statutory requirement
DPO11 relevantly requires that—
Any development plan … must show or include the following:

… Details showing how affordable housing will be distributed through the site and how the proposed mix and type of housing responds to local housing needs.^³

Policy
The scheme requires the Council and, on review, the Tribunal to consider State policy for housing affordability. That policy relevantly provides—

Objective

To deliver more affordable housing closer to jobs, transport and services.

Strategies

Improve housing affordability by:

…
Encouraging a significant proportion of new development, including development at activity centres and strategic redevelopment sites to be affordable for households on low to moderate incomes.

Increase the supply of well-located affordable housing by:

Facilitating a mix of private, affordable and social housing in activity centres, strategic redevelopment sites. … ^⁴

Reference document

The Council’s Draft Brunswick Strategy Plan 2008 (the Strategy Plan) is a reference document under DPO11. ‘Affordable housing’ is defined as ‘housing that can be purchased or rented by payment of 30 per cent or less of the average household’s gross income’.^⁵ It states that Brunswick has high percentage of households paying more than 30% mainly due to shortage of ‘affordable public and community housing’. An objective of the Strategy Plan is to ‘encourage development to incorporate at least 20 per cent affordable housing’. A strategy of the plan is to ‘work with developers [and the Commonwealth rental affordability initiative] to achieve 20 per cent affordable housing in new and refurbished larger developments’.^⁶
The DP
The DP states ‘many’ of the approximately 650 dwellings that EBV proposes to construct will be affordable because many of them ‘will retail for less than $400,000’ at 2012 prices, which is in the ‘affordable price range’.^⁷ It also states that ‘the developer’ will ‘use its best endeavours to investigate options [for] affordable housing including approaching the National Rental Affordability Scheme (NRAS) and other Community housing provider to discuss the provision of such housing within the development’.^⁸
EBV submits the DP therefore meets the DPO11 requirements.
Council’s submissions
The Council submitted the DP does not meet the DPO11 requirement.
It submits that the purpose of the affordable housing policy can only be met and that the DPO11 requirements can only be met if the DP requires the setting aside of 2.36% of total dwellings for permanent rental accommodation that is affordable to households in the lowest 40% of the Victorian income distribution. The Council states that 2.36% of dwellings in Brunswick in 2006 were such dwellings. Consequently, the requirement would operate to help maintain or restore the 2006 ‘social mix’ in Brunswick.
Accordingly, the Council opposes the DP unless it is amended so that EBV is required to—

Set aside 15 dwellings (ie 2.36% of its maximum 650 dwellings) for permanent rental by households in the lowest 40% of the overall income distribution.
Partner a registered housing association in making this provision, with the association meeting 50% of EBV’s costs in supplying those dwellings.

In Dr Spiller’s opinion, for all practical purposes affordable housing is social housing. Social housing is housing owned by the State or community housing provider that are permanently available at an affordable rent to metropolitan households in the bottom 40% of household income. While some private housing is or may be made available at an affordable rent to such households, it is a minor component and is not permanent.
He supports using the planning system to help retain the ‘social mix’ on environmental (and not social justice) grounds in a suburb by requiring developers in that suburb to contribute to the provision of social housing.
In his opinion, the development contributions plan provisions of the planning system are not the correct tool to impose affordable housing contributions. He therefore supports a policy on a suburb basis that sets a dwelling mix target and imposes permit conditions so that developers include a share of affordable dwellings in their projects or make an equivalent cash contribution. In all cases, the dwellings must be social housing in that they would vest in an affordable housing provider.
He does not support the strategy in the Strategy Plan of requiring developers to set aside 20% of dwellings as affordable housing.
He does support permit conditions that apply to residential and non-residential development that ‘materially affects the social mix’ in the suburb. He estimates 206 new social housing dwellings at a cost of about $64 m are needed by 2036 to maintain the 2006 proportion of social housing dwellings in Brunswick. If 100% cost recovery is adopted, EBV would be required to provide 15 dwellings to a community housing provider or pay the Council $4.7 m for social housing purposes. He favours conditions based on 50% cost recovery, which means that EBV should be required under the DP to provide 8 dwellings or pay $2.3 m and to partner a community housing provider that meets the other 50%.
Evidence of Mr Papaleo
While Dr Spiller focuses on measures to maintain the proportion of social housing dwellings in Brunswick, Mr Papaleo has a more market-driven approach to affordability. He examines the proportion of dwellings in the EBV project that could be purchased or rented by households currently renting in the nearby area using no more than 30% of their household income.
His study area is the suburbs of East Brunswick, Brunswick, Fitzroy North, Carlton North and Princes Hill. The Nicholson Street tram is central to this area. He argues buyers are less likely to be drawn from suburbs further north that have generally lower housing costs.
For his calculations, he assumes 1,000 total proposed dwellings in the DPO11 area. He also assumes 45% (or 450) are 50 sq m one-bedroom dwellings priced at $375,000 and a weekly rent of $324 and 45% (or 450) are 65 sq m two-bedroom dwellings priced at $471,000 and a weekly rent of $410.^⁹ He notes 90% of all dwellings priced below $500,000 is much higher than the 35% of dwellings in the study area that were sold in 2011 below that figure.
At the 2011 Census, there were about 10,000 households (lone person or families) renting in the study area. For family households, the median weekly income was $1,921 (all households in public or private rental homes) or $2,035 (households in private rental homes). For lone person households, the median weekly income was $741 (all households in public or private rental homes) or $1,006 (households in private rental homes, adjusted).
These study area incomes are about 50% above the metropolitan median for renters and increased at a rate about 50% faster than the metropolitan average between 2006 and 2011, confirming the gentrification trend in East Brunswick and the nearby areas.
Purchase or rental of an EBV one-bedroom dwelling is beyond median lone person private-renting household income. Only 11% of these households in the study area would be able to buy an EBV one-bedroom dwelling.^¹⁰ Only 30% of these households would be able to rent an EBV one-bedroom apartment.
He concedes the more likely purchasers or renters are family households (ie mainly double income couples).
50% of family private-renting households in the study area (ie all households with median or higher income) would be able to buy an EBV one or two-bedroom dwelling. 63% of these households would be able to rent an EBV one or two-bedroom dwelling.
In Mr Papaleo’s opinion, the EBV dwellings are affordable housing because 90% of them can be purchased or rented by a local family on a median household income. He also considers the 450 EBV one-bedroom dwellings will be a significant addition to the supply of affordable housing because only 185 dwellings sold at or below $400,000 in the study area in 2011.
Assessment
The provision of affordable housing in rapidly gentrifying inner suburbs is a difficult social and economic problem. There are limits to the extent to which the planning system can make a useful contribution to addressing the problem.
In this scheme, State policy and DPO11 are the main relevant considerations. The State policy ‘strategy’ for affordable housing in new development particularly applies because the subject land is a strategic redevelopment site. DPO11 focuses on the provision of affordable housing on the subject land and how it responds to local housing needs.
The scheme does not define affordable housing. The Strategy Plan definition is of some assistance but is not conclusive. The scheme does not refer to social housing. State policy refers to affordable housing and social housing as if they are mutually exclusive. Other divisions of the Tribunal have found social housing to be an unclear term.^¹¹
Dr Spiller urges us to adopt social housing as, in effect, the only true form of affordable housing. The lack of clarity around the concept means that it is probably unsurprising that Mr Papaleo takes a completely different approach to what is affordable housing. The scheme does not expressly or impliedly direct us to only consider social housing as affordable housing. We are therefore unable to agree with Dr Spiller about what is affordable housing.
The experts are also divided on the people for whom housing should be affordable. Dr Spiller prefers a broader approach in that, ultimately, the social housing he supports would be affordable by any household. Mr Papaleo prefers affordability as measured by median household incomes in the surrounding area. We find Mr Papaleo’s approach closer to State policy reference to ‘households on low to moderate incomes’ and, while there could be debate about the boundaries of the area he chose, we think it better reflects the DPO11 concept of ‘local housing needs’.^¹²
We do not find Dr Spiller’s objective of seeking to restore Brunswick’s 2006 social mix, as measured by the proportion of social housing dwellings, is the affordability objective sought by the scheme.
Hence, we are unable to support the amendments to the DP sought by the Council. There are conceptual and practical issues with the amendments. Dr Spiller’s approach may be the most effective approach to the problem. However, we could only support the mandated inclusion of dwellings in partnership with housing associations or mandatory cash contributions if there was a clearer framework to do so in the Planning and Environment Act 1987 and the scheme. It is an approach the Government may wish to further consider.
Even if there were not these difficulties, there was no evidence of a housing association that was ready to partner EBV. The amendments could therefore require something that was beyond EBV’s ability to meet, if no housing association was ready or willing to participate.
In construing DPO11, it is relevant and valid to consider the history of the provision. The exhibited version of DPO11 emphasised a social housing approach. It stated—
[The affordable housing] details should demonstrate how developable land or dwellings could be allocated to a nominated Housing Association or an appropriate alternative for an affordable and/or social housing project.
By the time the provision was considered by the panel considering Amendment C92 (the panel), it had been modified in a more prescriptive manner, as follows—
[The affordable housing] details should demonstrate how a minimum of 10% of either developable land or dwellings could be allocated to a nominated Housing Association or an appropriate alternative for an affordable and/or social housing project.
In its approved form, as set out earlier in these reasons, the provision is more flexible in that all references to social housing and proportions of total dwellings have been omitted.
The history of the provision therefore militates against interpreting the provision in the way supported by the Council and Dr Spiller.
Ultimately, we rely on Mr Papaleo’s evidence in finding that the project in the DP contributes to the provision of affordable housing for the following main reasons—

The subject land is a brownfields site that contains no housing, let alone affordable housing. There is no displacement of affordable housing.
The 450 one-bedroom dwellings available for purchase at less than $400,000 will materially increase the supply of affordable housing. It is a material increase because, in 2011, there were only 185 dwellings sold in this price segment in the surrounding area.
We accept Mr Papaleo’s opinion that 900 (or 90%) of the dwellings allowed under the DP will be affordable to buy or rent by 50% or more of family households in the surrounding area that are already privately renting dwellings.

In conclusion, the DP satisfies the requirements of DPO11 in relation to affordable housing..

Traffic

The public and private sector must share the costs of providing the ultimate Nicolson Street/Main Street intersection and Disability Discrimination Act 1992 (Cth) (DDA) compliant tram stop. As DPO11 envisages interim outcomes, as is proposed here, the DP is acceptable.
Traffic calming works on local streets are required given approval of the DP will increase traffic volumes on local streets.
Background
The development of the DP area is anticipated to generate 7,000 vehicle movements per day onto Nicholson Street. The Number 96 tram service runs on Nicholson Street.
The transport authorities are undertaking a study of all tram stops along Nicholson Street from Victoria Parade, East Melbourne to Blyth Street, East Brunswick to plan for DDA compliant tram stops and tram stop rationalisation.
Before DPO11 was introduced, the parties agreed that the Nicholson Street/Main Street intersection would be a controlled intersection with a DDA compliant tram stop. Implementation was unresolved. The transport authorities expect to construct the DDA compliant tram stop, at an unspecified future time and upon resolution of the above study. EBV will construct the interim intersection works, including the signalised intersection.
The dispute before us is whether EBV must transfer at no cost the land required for the ultimate intersection treatment.
The local streets in the DPO11 area carry low traffic volumes associated with the mix of industrial and residential uses in the immediate vicinity. The panel was concerned about the impact on local amenity of traffic generated by development permitted under DPO11. It was concerned that insufficient information was available because no third party rights are available for a DP and a permit application under DPO11.
Statutory requirement
The DPO envisages a DP may be prepared and implemented in stages, as in this case.^¹³ Primary access to the DPO11 area must be via the Nicholson Street/Main intersection.^¹⁴ DPO11 also requires that any DP includes an Integrated Transport Plan (ITP) showing, amongst other things—

A site layout plan showing convenient and safe access to and from Nicholson Street generally opposite Sumner Street, which includes development setback from Nicholson Street if this is required to facilitate staged and/or final site access arrangements to the satisfaction of the Director of Public Transport and VicRoads. This must include:
A traffic signalised intersection; and
A fully accessible (Disability Discrimination Act 1992 compliant) tram stop.
How the cost for the provision of the traffic signalised intersection and fully accessible tram stop will be distributed between parties.
…
Any necessary treatment of intersections to surrounding streets, and/or any upgrades or modifications to existing roads, and the process for works and/or costs proportionate to the scale and impact of development.
The location of any proposed traffic management devices.
…
How development will retain adjoining residential area amenity by traffic management measures to limit traffic volumes in adjoining residential streets to their designated performance capacities.^¹⁵

The panel summarised the most relevant State policy as follows—

such as community facilities

^¹⁶

DPO11 has the effect of making the DPO11 area, in local policy terms, an urban village. In an urban village, street networks and bicycle and pedestrian linkages are to be improved.^¹⁷
Panel report
The panel’s most significant concerns related to the amenity impact of traffic on local streets. It resolved this matter in the main by directing 80% of traffic generated to the Main Street/Nicholson Street intersection.^¹⁸ The panel noted that EBV (or its predecessor) and the transport authorities agreed a DDA compliant tram stop should be installed and DPO11 must include a site layout plan showing development setback to facilitate final site access arrangements.^¹⁹ It also noted that potential redevelopment of other brownfield sites along the Nicholson Street tram corridor would result in increased tram patronage and the erosion of service levels, given the corridor’s existing heavy patronage. It supported further public transport investment but recognised that was outside the scope of DPO11.
The panel stated—

[T]he revision of the DPO11 wording, generally as put forward at the Panel hearing, would be sufficient to ensure the implementation of an appropriate treatment of the signalised intersection and a [DDA] compliant tram stop in a way that is acceptable to the relevant agencies. The material presented as part of this panel process documents the nature of treatments contemplated and, although all parties acknowledged that these treatments may well change as the design process progresses, these plans establish the basis for subsequent processes. The Panel also notes that, while the plans are not yet sufficiently advanced to specifically define a Public Acquisition Overlay or specific setbacks along the Nicholson Street frontage for traffic/tram management treatments, the proposed revisions to DPO11 foreshadow the need to address the issue.^²⁰

Transport arrangements in the DP are found in the drawings (document 1) and the ITP (document 4). They show primary access via a signalised intersection at Main Street/Nicholson Street. This intersection is an interim arrangement and includes phasing of traffic lights and other measures to prioritise tram movements. It does not include a tram stop. But Mr Butler states it could accommodate DDA compliant ‘easy access’ tram platforms.
An ultimate intersection treatment forms part of the ITP. This can accommodate a fully accessible, DDA compliant tram super stop. All buildings are setback from the alignment of this ultimate treatment. The ITP refers to the transport authorities or their agents acquiring land for the ultimate intersection works and by implication, appropriately compensating the relevant owners.^²¹
Traffic generated by the DP is primarily to John Street from the 250-space west basement car park. This will generate 1,000 additional movements to the existing daily volumes of 967 movements. These vehicles will then enter Glenlyon Road or Albert Street.
In the DPO11 area, 1,200 additional daily movements are anticipated on John Street, 700 additional movements are anticipated on both Albert Street and Elm Grove and 70 additional movements are anticipated on Rickard Street. The ITP states that, in the post development scenario, these streets will operate within the acceptable ranges identified in clause 56 of the scheme and, accordingly, no traffic calming works in these streets are required to comply with DDO11.
EBV submits the DP meets the DPO11 requirement with respect to the Nicholson Street intersection.
Transport authorities
The transport authorities seek amendment of the ITP to ensure that they are not required to compensate EBV for acquiring the additional part of its land to construct the ultimate intersection, and to incorporate a number of minor changes are required to reflect the commitment to a DDA compliant tram stop at this intersection.
The Council
The Council seeks amendment of the ITP to require EBV to install traffic calming measures comprising road humps and intersection threshold treatments on Albert and John Streets. It submitted this was reasonable having regard to the panel report, the anticipated increases of about 100% and 50% in John Street and Albert Street (respectively), and the need to improve the pedestrian profile at these intersections.
Mr Butler’s evidence
In Mr Butler’s opinion, the ITP fully complies with DPO11 mainly because—

There was agreement with the transport authorities on the ultimate and interim intersection treatments.
The development was setback behind the alignment of the ultimate treatment.
The development was directed away from local streets through measures including closing the western end of Main Street, not providing vehicle access from Rickard or Gamble Street, restricting access to John Street to residential vehicles and limiting vehicle access to Elm Grove to abutting properties. Consequently, all traffic volumes are expected to remain within the ranges identified in the scheme.

DPO11 anticipates further planning will occur through the DP process for the Nicholson/Main Street intersection. It anticipates the ultimate treatment, including a DDA compliant tram stop, will be settled through the ITP. It requires any new development to be set behind the ultimate alignment.
These steps follow in a logical sequence. They reflect the process under a Public Acquisition Overlay (PAO). A PAO sets aside those parts of privately owned land required for a future public purpose and, under a permit, requires development of private land either to be setback from the PAO boundary or to be able to be removed at no cost to the acquiring authority. The acquisition of the land affected by the PAO and the consequent compensation of the private land owner occurs under a separate process.
DDO11 applies in this way for the following main reasons
First, DPO11 allows for preparation of a DP for part or all of a DPO area. It therefore contemplates staged development, including the staging of this intersection. The interim intersection should meet the needs generated by the staged development. There is no basis for requiring the ultimate intersection ahead of the full development of the DPO11 area. DPO11 requires the ultimate intersection to be designed prior to approval of a DP yet does not require the ultimate intersection to be implemented at this time.
Second, DPO11 foreshadows both public and private sector investment. Its purpose is to ensure the precinct is developed in an integrated manner, notwithstanding that public and private sector investments may occur at different times in the future. There is no expectation the DDA compliant tram stop will be built as part of this DP. Rather, it is still the subject of a study of tram stops along the 96 Tram Route. As such, DPO11 is designed to ensure land is set aside for the ultimate tram stop with acquisition occurring as part of the implementation of the tram stop.
Third, the panel anticipated a PAO was an option for the implementation of DPO11. It was aware that a staged development was likely, mainly because C92 was led by the owner of the Tontine site, where Main Street and abutting development is located. This land (now the EBV land) would likely to be developed before other land in the DPO11 area, as envisaged under the DP.^²² We previously referred to the panels’ remarks in recognising the need to define the ultimate alignment and setback development in the DP and in anticipating a PAO once the alignment was settled.
We are not persuaded by the transport authorities submission that, had the DP included land to the south, the ultimate intersection treatment would have been constructed now. The land sought by the transport authorities may have vested in them as a matter of course if the ultimate intersection was constructed as part of this DP. But that is simply a consequence of the timing of the works. If the transport authorities had committed to constructing a tram super stop before approval of the DP, they would have been required to acquire all the land necessary for these works, including the land that will be vested in them for the interim treatment.
We agree with the transport authorities that the ultimate intersection treatment ensures better traffic management and less tram delay than the interim treatment. However, the ultimate intersection results from the combination of the public and private works. Given that the DDA compliant tram stop at this intersection is part of a larger public benefit, we find there is not the ‘larger nexus’ between the DP and the ultimate intersection that the authorities contend.
As a result, we find the nexus between this DP and the intersection is limited to the interim works (including the controlled intersection) and the ‘development loss’ of setting buildings back behind the ultimate alignment.
The DP includes a satisfactory ‘cost distribution strategy’ because the parties have agreed to a satisfactory ‘in kind’ distribution of costs. In effect, EBV will bear the cost of the interim intersection and the authorities have agreed to bear the costs of the DDA compliant tram stop.
The circumstances are different with regard to the local works. The additional traffic volumes on John Street are a direct result of this DP. The panel anticipated that works would be undertaken on local roads to minimise amenity impacts on residential areas. Accordingly, additional works on John Street are reasonable, given they result directly and solely from this DP.
We cannot say the same about the works proposed on Albert Street. A number of developments will increase traffic volumes on Albert Street and it is unreasonable to require works only of this DP. We expect the Council will need to consider other approaches to ensure its objectives for Albert Street are met. We will require amendment of the DP to provide for one hump in John Street and an intersection thresholds at Glenlyon Road/John Street and John Street/Albert Street.
It is reasonable to amend the ITP to remove references to tram stops being retained or upgraded at either Glenlyon Road or Albert Street as these are matters for the transport authorities.

ESD

The Applicant and the Council reached agreement during the hearing about amending the Environmental Management Plan so that its criteria will also be applied to office spaces. No office space is provided in the DP but is allowed in other parts of the DPO11 area.

Format of the DP

We have some concern that the DP is a potentially unwieldy document comprising 23 sheets of drawings plus over 240 pages in 11 separate documents. Documents of this size may require further later amendment and there may be costs and delays with amendments. The Council initially preferred a single and shorter consolidated document, but ultimately accepted that the range of documents is a result of the drafting of DPO11 and further document assembly would create its own risks and costs. We therefore do not oppose the final form of the DP.

Conclusion

For the reasons set out above, the decision of the Council will be set aside and the DP approved subject to changes.

Geoffrey Code

Member (Presiding)

Michael Nelthorpe

Member

APPENDIX A

The drawings prepared by Jam Architects entitled East Brunswick Village Development Plan drawing nos 1050 DA 2 to 1050 DA 23 (inc), SD1 & SD2 (all Revision S) and all bearing the ‘plot date’ of 27 July 2012 (25 sheets).

Document 2

Development Plan Report - East Brunswick Village, prepared by G2 Urban Planning and dated 30 July 2012 (44 pages) plus Appendix 1 (landowners’ consents) & Appendix 2 (land titles).

Document 3

Integrated Transport Plan - Tontine Site, Brunswick East

Document 4

Assessment under the Activity Centre Design Guidelines – East Brunswick Village

Document 5

Community Infrastructure Assessment Final Report – Former Tontine Site, Brunswick East

Document 6

Infrastructure Report for 127-129, 139 & 149 Nicholson Street, 98 John Street & 2 Elm Grove, Brunswick East

Document 7

Adverse Amenity Impact Assessment for 127-139 & 149 Nicholson Street, Brunswick, 98 John Street & 2 Elm Grove, Brunswick

Document 8

Environmental Management Plan for

127-139 & 149 Nicholson Street, 98 John Street & 2 Elm Grove, Brunswick

Document 9

Landscape Proposal Concept Design – East Brunswick Village

Document 10

Urban Design Assessment - 127- 149 Nicholson Street, 98 John Street & 2 Elm Grove, East Brunswick, prepared by David Lock Associates and dated 4 October 2011 (5 pages).

Document 11

--- End of Appendix ---

1 The letters of support were by Geraldine & Diana Braida on 13 June 2012 (for land at 98-100 John Street), Chris Broadhead on behalf of Broadworks Pty Ltd on 30 May 2012 (for land at 2 Elm Grove) and Barry Landau on behalf of Eldene Pty Ltd & Barbara Landau Family Pty Ltd on 21 June 2012 (for land at 149 Nicholson Street).

2 Moreland City Council, Moreland Affordable Housing Strategy 2006.

3 The scheme cl 43.04 schedule 11 cl 3.0

4 The scheme cl 16.01-5.

5 Moreland City Council, Draft Brunswick Strategy Plan 2008, p 61.

6 Moreland City Council, Draft Brunswick Strategy Plan 2008, p 58.

7 DP, document 2, section 4.5.1, p 41.

8 DP, document 2, section 4.5.1, p 41.

9 These figures are derived from comparable sales in the area and assuming a gross investment yield of 4.5%. He also assumed a loan to value ratio of 80%, an average long term interest rate of 7% and a loan term of 30 years

10 This is based on the 30% affordability threshold. With a threshold of 40%, 31% of households could afford that dwelling.

11 Merri Merri Developments Pty Ltd v Darebin CC [2010] VCAT 1045 at [44].

12 We do recognise that Mr Papaleo’s approach relates more to the local housing market as opposed to local housing needs, however that concept is defined and measured.

13 The scheme cl 43.04-3.

14 Clause 3.0 of DDO11 requires any DP must be ‘generally in accordance with the Concept Plan for the Precinct’ at clause 6.0 of DPO11.

15 DDO11 cl 3.0 under the heading ‘Access and Transport’.

16 C92 panel report p 25.

17 The scheme cl 22.02.

18 C92 panel report p 5.

19 C92 panel report p 40.

20 C92 panel report p 41 (our emphasis).

21 ITP cl 2.1.

22 C92 panel report p 12.

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