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					MORELAND PLANNING SCHEME
     AMENDMENT C92




       PANEL REPORT
FEBRUARY 2010
MORELAND PLANNING SCHEME
     AMENDMENT C92




       PANEL REPORT




        Cathie McRobert, Chair




        Stephen Sully, Member
FEBRUARY 2010
                                                                                                                                                1


Contents
OVERALL CONCLUSIONS AND RECOMMENDATIONS ..................................................................7
Overall Conclusions .............................................................................................................................7

Consolidated Recommendations ........................................................................................................8

       The Amendment                                                                                                                            8

       Other                                                                                                                                  10

1. INTRODUCTION .............................................................................................................. 11
1.1 The Site and Context ................................................................................................................11

1.2 The Proponent’s Plans ..............................................................................................................12

       1.2.1 Post-Exhibition Changes Supported by Council                                                                                     14

1.3 Procedural Matters...................................................................................................................15

1.4 The Issues .................................................................................................................................16

2. THE ADEQUACY OF NOTICE ............................................................................................. 17
2.1 The Extent of Notice of the Amendment .................................................................................17

2.2 Did The Information Provided Enable Informed Participation? ...............................................17

       2.2.1 Discussion                                                                                                                       21

3.  DOES PLANNING POLICY SUPPORT REDEVELOPMENT AS A NEIGHBOURHOOD ACTIVITY
    CENTRE?......................................................................................................................... 26
3.1 The Loss of Industrial Land .......................................................................................................26

3.2 Urban Consolidation Policy ......................................................................................................27

3.3 Activity Centre Policy ................................................................................................................28

       3.3.1 Impacts on Other Activity Centres and Nodes                                                                                      30

4. URBAN DESIGN AND BUILT FORM ................................................................................... 34
4.1 Scale and Configuration of the Built Form ...............................................................................34

4.2 Design and Configuration of ‘Main Street’ ...............................................................................36

4.3 Streetscape Design ...................................................................................................................37

4.4 Public Open Space ....................................................................................................................38

4.5 Impacts of Built Form on Residential Amenity .........................................................................39

4.6 Panel Recommendations ..........................................................................................................40

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5. TRANSPORT AND TRAFFIC MANAGEMENT ...................................................................... 41
5.1 Nicholson Street Public Transport Infrastructure ....................................................................41

        5.1.1 Discussion                                                                                                                        42

        5.1.2 Panel Recommendation                                                                                                              43

5.2 Anticipated Traffic Generation .................................................................................................43

        5.2.1 Discussion                                                                                                                        44

5.3 Distribution of Traffic Generated by Development of the Site ................................................46

        5.3.1 Discussion                                                                                                                        49

        5.3.2 Panel Recommendation                                                                                                              52

5.4 Parking ......................................................................................................................................52

        5.4.1 Panel Recommendation                                                                                                              54

5.5 The Bicycle Network .................................................................................................................54

        5.5.1 Panel Recommendation                                                                                                              55

6. OTHER MATTERS ............................................................................................................ 56
6.1 Residential Amenity..................................................................................................................56

        6.1.1 Residential Amenity and Landuse                                                                                                   56

6.2 Existing Business Operations ....................................................................................................58

6.3 Affordable Housing, Community Facilities and Services ..........................................................59

6.4 Environmental Sustainability and Social Responsibility ...........................................................60

6.5 Development Contributions .....................................................................................................61

7. THE EXTENT AND FORM OF DPO11 ................................................................................. 63
7.1 Is the DPO the Right Tool? ........................................................................................................63

7.2 DPO 11 and Certainty about the Form of Development ..........................................................63

7.3 The Extent of DPO11 ................................................................................................................65

        7.3.1 Panel Recommendation                                                                                                              66




Appendices
APPENDIX A:                 LIST OF SUBMITTERS ................................................................................... 67

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APPENDIX B:           TABLED REVISIONS TO DPO11 ..................................................................... 68




List of Figures
Figure 1      Exhibited Rezoning ........................................................................................................3

Figure 2      Indicative Concept Plan (August 2008) ........................................................................12

Figure 3      Concept Plan (Version 4) (Tabled at hearing) ..............................................................13

Figure 4      Site Generated Traffic at Completion ...........................................................................47




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                             Moreland Planning Scheme Amendment C92
Existing          Zones: The majority of the area is currently zoned as ‘Industrial 1’ with a small area of
Zones &           ‘Industrial 3’ zoned land fronting Nicholson Street along the eastern boundary and ‘Mixed
Overlays          Use’ zoned (MUZ) land fronting Albert Street along the northern boundary. The Site abuts
                  a Road Zone Category 1 (Nicholson Street).
                  Overlays: The Special Building Overlay applies in the south-east of the precinct.




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                             Moreland Planning Scheme Amendment C92
Purpose of        Amendment C92 relates to the area in Brunswick East generally bound by Nicholson Street,
the               Albert Street, Glenlyon Road and John Street1. It proposes to:
Amendment:         amend Clauses 21.04-2 and 21.05-1 to nominate the Amendment area as an urban
                      village;
                   rezone land from Industrial 1 & 3 Zones to Business 1 (with a 7,000m2 permit trigger for
                      shop) & Business 2 Zone (with a maximum 1000 m2 shop floor area).




                                               Figure 1 Exhibited Rezoning
                      apply the Development Plan Overlay (DPO) to the Site (including Albert Street
                       properties in the Mixed Use Zone); and
                      introduce schedule 11 to the DPO (DPO11) which establishes, amongst other things:
                             Design objectives and design guidelines
                             Preferred heights
                             A requirement for active frontages along public spaces
                             Guidelines for the integration of new and existing development
                             Requirements to prepare an Integrated Transport Plan, a Community Facilities
                                Audit, an Adverse Amenity Impacts Assessment; an Environmental
                                Management Plan, a landscape master plan, and economic impact
                                assessment.
                             A requirement to include a minimum 5,000m2 office space across the precinct.
                                Apply the Environmental Audit Overlay (EAO) to the land being rezoned.
Planning          City of Moreland
Authority:
Proponent:        Bridgehead Properties



1
    The properties affected by the amendment: 2 Elm Grove, Brunswick East; 80, 82, 98-100, 102, 104-106
    John Street, Brunswick East; 115, 119 - 121, 123, 125, 127 – 137, 139, 149, 153, 153A, 155, 157
    Nicholson Street, Brunswick East; 6-8 Gamble Street, Brunswick East; 257a, 257b Glenlyon Road,
    Brunswick East; and 18, 1-7/20, 22, 24, 26, 28, 30, 32, 40, 42 Albert Street, Brunswick East.

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                             Moreland Planning Scheme Amendment C92
Authorisation: The Minister for Planning’s authorisation to prepare and exhibit the amendment (17 August
               2009) requested Council to review the amendment prior to adoption to determine whether:
                ‘The prescriptive requirements (for environmentally sustainable development in
                   particular) are still warranted.
                Other tools from the VPPs can be utilised.’
Submissions:      Council received 48 submissions (Listed in Appendix A) of which 40 objected or requested
                  changes to the proposed amendment.
Ministerial       The Panel is satisfied the following Ministerial Directions have been met:
Directions:        Direction No 1 Potentially Contaminated Land is addressed by the proposed
                      application of the EAO to land formally in an Industrial zone that may be developed for
                      a sensitive use under the proposed business zones.
                   Ministerial Direction No 9 requires planning authorities to have regard to Metropolitan
                      Strategy (Melbourne 2030 – Planning for Sustainable Growth) when Planning Scheme
                      Amendments are prepared and for the associated Explanatory Report to respond to a
                      series of questions relating to whether the Amendment supports Metropolitan Strategy.
                   Ministerial Direction No 11 requires the Strategic Assessment Guidelines to be
                      addressed by planning authorities and in explanatory reports.
The Panel:        Cathie McRobert (Chair)
                  Stephen Sully
Panel             Directions Hearing: 23 November 2009.
Hearings:         Public Hearing: 15, 17, 22 and 23 December 2009.
Appearances:      Moreland City represented by Kim Giaquinta and Zoran Jovanovski.
                  The Proponent represented by Dominique Scally of Best Hooper who called expert
                  evidence as follows:
                       Planning - Andrew Robertson of Tract
                       Architecture/Urban Design – Robert McGuaran of McGuaran Soon
                       Economist – Justin Ganly of Deep End Services
                       Acoustics – Doug Growcott of Watson Moss Growcott
                       Traffic Engineer – Christian Griffiths of GTA Consultants
                  Joint submission by VicRoads and the Department of Transport represented by Ms Kim
                  Piskuric of Maddocks Lawyers who called expert evidence as follows:
                       Traffic Engineer – Henry Turnbull of Traffix Group
                  Cameron Tate and Lucas White represented by Cameron Tate
                  Wendy Larcombe, R. Lansdowne and K. Dally
                  Chris Ryan
                  Augustine Dall’ava
                  John Beckwith
Site              The Panel made unaccompanied inspections of the Site and surrounds before and after the
Inspections:      hearing.




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Overall Conclusions and Recommendations

Overall Conclusions
The Panel is satisfied that there is a sound strategic planning basis for the development of
a Neighbourhood Activity Centre with a broad land use base in this location. This large
site which is well served by public transport presents a rare opportunity to advance urban
consolidation policy, add to employment opportunities in the locality and improve retail
options, including a full line supermarket, serving the Nicholson Street corridor. The
Panel accepts the economic justification for the development of additional retail
floorspace up to 7,000 square metres. Existing centres will need to respond to affects of
the proposed centre but the impact is unlikely to threaten the viability or function of the
established centres.

The Panel is conscious that: the proposed DPO would remove the statutory rights of
affected third parties to participate in subsequent development planning and permit
processes; the exhibition of Amendment C92 was not accompanied by the information
needed for effective participation by those who may be affected; only those at the hearing
were in a position to present their views on conceptual plans and revisions of DPO11 put
forward during the Panel process; and the planning authority had not adopted a position
on the options presented which include significant departures from the form of
development envisaged in the Draft Brunswick Structure Plan (BSP). The Panel seriously
considered but decided against submitting an interim report and reconvening after
further consultation and formal advice from Council of its views on the plans presented to
the Panel. However, those representing residents’ interests did so very effectively and the
Panel is satisfied that key issues were ventilated at the hearing and it is in a position to
form a view on the substantive planning issues. During the course of the hearing a
number of revisions to text of DPO 11 were put forward. The incorporation of a concept
plan in DPO11 was explored as a means of providing greater certainty about key planning
parameters for future development of the Site. The Panel sees these changes as important
measures that provide a level of assurance about the management of potential off-site
impacts and therefore justify the redevelopment processes proceeding without the third
party rights that would otherwise apply.

The Panel’s most significant concerns related to impacts from activity centre traffic on
local streets, notably John, Gamble and Albert Streets. The redevelopment of the subject
land provides an opportunity to enhance the amenity of these streets and the role of John
Street in the north-south bicycle route. It is recommended that the planning framework
establish clear expectations about the distribution of traffic from the proposed
Neighbourhood Activity Centre, with the signalised intersection on Nicholson being
designated as the primary access point and indicating that 80% of traffic generated by the
Precinct will be directed to the arterial road network.



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Evidence and the Proponent’s submissions provided a level of comfort that appropriate
responses to urban design and built form are envisaged. The Panel has made a number of
recommendations to clarify urban design parameters and has endorsed a departure from
both the Draft BSP and documents submitted in support of the Amendment to enable
consideration of development of 4-6 storeys along the Nicholson Street interface (rather
than 3-4 storeys).

The Panel is also satisfied that the planning framework proposed will address the
potential for complaint about business operations by incorporating measures, if necessary,
to protect the amenity of future residents in the Precinct. However, the Panel considers
further protection of the amenity of residential properties at interfaces with the precinct
should be provided and have made recommendations relating to limits on the hours of
operation of licensed premises, residential and office uses addressing the John Street
interface, the incorporation of existing industrial built fabric at interfaces and
overshadowing.

The Panel considers the Amendment will facilitate a significant urban revitalisation
project with strongly positive benefits to the broader community. This overall conclusion
is dependant on revisions to the proposed planning framework to provide greater
certainty that subsequent planning processes will limit adverse impacts from the
proposed Neighbourhood Activity Centre on the immediate area.


Consolidated Recommendations
Based on the reasons set out in this Report, the Panel makes the following
Recommendations.

The Amendment

1. Amendment C92 to the Moreland Planning Scheme should adopted subject to the
   changes to Schedule 11 to the Development Plan Overlay shown in Appendix B of
   this report and the further additional changes in subsequent recommendations.

2. Include under ‘conditions and requirements for permits’ requirements to the
   following effect:
        Development permits should only provide for residential and office use
         frontages to John Street frontage.
        Permits relating to restaurants within 50 metres of a residential zone and all
         licensed premises to cease operation by 11pm.

3. Indicate the desirability of establishing residential uses along John Street in the
   urban design principles.

4. Provide for development of 4-6 storeys adjacent to Nicholson Street.




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5. Specify that the design of ‘Main Street’ and other recreation focal spaces in the
   public realm elsewhere in the precinct must be designed to have appropriate access
   to sunlight.

6. Specifically address interface treatments, including requiring development at an
   interface with a residential zone, including a Mixed Use Zone, to:
        Either maintain the existing access to sunlight to private open space and
         habitable rooms or satisfy Clause 55 overshadowing standards.
        Satisfy the Clause 22.11 overlooking standard.
        Adopt design responses to:
              incorporate existing industrial building fabric on boundaries at
                 residential interfaces (as appropriate); and
              ensure upper levels of new elements of buildings in the interface areas
                 will be largely concealed or recessive in appearance to minimise the
                 visual mass and bulk when viewed from adjoining residential properties
                 and streets.

7. Specify that the Integrated Transport Plan must demonstrate that:
        Approximately 80% of vehicle traffic will gain access to and from the activity
         centre via Nicholson Street and Glenlyon Road;
        The primary access point to the Neighbourhood Activity Centre is via a
         signalised intersection in Nicholson Street opposite Sumner Street;
        Access via Nicholson Street from the northern unsignalised point should be
         left-in/left out only;
        No vehicle access to or from the activity centre will be provided via Gamble
         Street;
        The vehicular traffic role in the Main Street west of Rickard Street will be
         subservient to the pedestrian and bicycle roles;
        Vehicular access to John Street from the Precinct central car park will be limited
         to cars from residential properties.

8. Require the Integrated Transport Plan to include a Parking Plan which:
        Promotes the use of other modes of transport;
        Provides centralised parking areas to serve the activity centre;
        Locates and designs parking to ensure safety in parking areas while avoiding
         car parking being visually dominant; and
        Incorporates measures to preclude visitors, employees and residents from the
         proposed B1Z and B2Z from parking in the adjoining and nearby street.

9. Specify that the streetscape improvements in Albert and John Streets must
   recognise the role of these streets as bicycle routes.

10. The recommended changes should be reflected in the Concept Plan to be
    incorporated in Schedule 11 to the Development Plan Overlay the DPO11 through
    hatching, symbols, annotations on the plan or the description in the plan legend (as
    appropriate) including:

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        Appropriately proportioned areas with adequate sunlight access (created
         through the set back of adjacent buildings) to act as a pedestrian focal points
         along the Main Street link;
        The nature of connections to the local road network to show streetscape
         improvements along the streets adjoining the Site and along the length of John
         Street.
        Revise Development Plan Overlay Schedule 11 to specify that the streetscape
         improvements in Albert and John Streets must recognise the role of these streets
         as bicycle routes.

11. Specify in the schedule to the B1Z that a permit for restaurant is required where the
    land is subject to DPO 11 and is within 50 metres of a residential zone.

Other

12. Ensure that Planning Authorities and DPCD refer to the Practice Note Applying the
    Incorporated Plan Overlay and Development Plan Overlays before exhibition occurs
    to ensure selection of the overlay to be applied, the strategic framework presented
    in support the overlay and the explanatory report are adequately addressed.




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1.         Introduction

1.1        The Site and Context
The Site is generally bound by Nicholson Street, Albert Street, Glenlyon Road and John
Street, is less than 5 kilometres from
Melbourne’s CAD. The Site is well
serviced by public transport with the
No 96 Tram route along Nicholson
Street and Bus Route 506 (proposed
as a smartbus route) running along
Glenlyon Road.         pen spaces in the
immediate area also provide a
valuable resource. They include
Flemming Park to the north, Balfe
Park to the south and Merri Creek.

The Site has an area of approximately
4.7ha. The Amendment affects 32
properties but almost 60% of the land
proposed to be rezoned is in two
ownerships. The largest parcel is the
1.9ha site owned by Bridgehead
Properties (formerly leased by
Tontine). Older high bay industrial
buildings occupy most of the land
proposed to be rezoned. There are
high boundary walls at the interfaces
between existing industrial and
residential properties.

The Site is an industrial enclave in a residential area undergoing gentrification and
substantial redevelopment. The surrounding residential areas comprise of mix of one and
two storey dwellings built at various times during the 20th century. There has been
extensive recent redevelopment of Albert Street properties adjoining the Site (in the MUZ) in
the form of 3-4 storey medium density residential development. The ‘Sires Site’ on the
south-west corner of John and Albert Streets was also recently rezoned to MUZ
(Amendment C66) and a contentious application proposing a development of 7 storeys is
being considered by Council. In addition to these redevelopments, the likelihood of
significant further urban renewal in this locality is illustrated by the recent level of
amendment activity involving rezonings of industrial land which include:
     Amendment C99 proposes to rezone 219 - 221 Nicholson Street, Brunswick East and
      212-214 Blyth Street, Brunswick East to R1Z to B2Z. A Panel will be requested in 2010.

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     Amendment C107 proposes to rezone a precinct bound by Barkly Street, Nicholson
      Street and Brunswick Road, Brunswick East to B2Z, which includes the former Charles
      Parsons site (exhibited from 7 November to 10 December 2009).
     Combined Amendment C113 and permit application proposes to rezone land bound
      by Nicholson Street, Balfe Park, and Miller Street to MUZ and develop a 5 storey mixed
      use development at 85 Nicholson Street, Brunswick East. (lodged 3 December 2009)
     Amendment C115 proposes to rezone the precinct at the north-east intersection of
      Moreland and Nicholson Streets (including the former Tram Depot) in Coburg East to
      B2Z. The amendment was ‘called in’ in August 2009 to facilitate social housing under
      the Commonwealth’s Nation Building Economic Stimulus Plan and is currently being
      processed by the DPCD.
     Gale/Cross Precinct Brunswick East - DPCD in conjunction with Council have
      commenced a study to determine the future of the industrial precinct and to
      recommend the appropriate zone and other planning tools that could be applied. The
      project is scheduled to be completed by March 2010.


1.2        The Proponent’s Plans
The rezoning request to Council was supported by consultant reports relating to the town
planning, design principles, retail and economic impact, noise and vibration impacts,
affordable housing, access and movement. These reports were on the basis of a form of
development illustrated in the conceptual plan below but were not endorsed by Council,
exhibited with the Amendment or provided as information to potential submitters (See
discussion in Chapter 2). During the panel hearing four versions of the concept plan were
presented with the final version 4 providing a more ‘conceptual representation which could
be included in the proposed DPO11.’




Figure 2 Indicative Concept Plan (Source: McGauran Giannini Soon Architects August 2008)


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Figure 3 Concept Plan (Version 4) (Tabled at hearing)

The key elements of Concept Plan as it relates to the Tontine Site were summarised in
documents submitted by the Proponent in support of the Amendment as:
     a new generously proportioned ‘Main Street’ with landscaped public pedestrian areas
      and community spaces activated by retail frontages.
     a supermarket anchor tenancy of approximately 3,800 m2
     commercial Floor space of a further 3,000 m2
     a centralised multi-deck car park (approximately 690 parking spaces), which would act
      as visual and acoustic buffer to the existing foundry and laundry to the north.
     approximately 350 dwellings in the following configurations:
          adaptive re-use of existing warehouse walls to the south of the site to create
           transition to medium density warehouse style residential (2-3 storeys) at the
           interface to the existing single storey fine grain to the south of the site.
          higher density apartments (6 storeys) along ‘Main Street’ and the centre of the site
           with 10% affordable housing units allocated to a recognised not-for-dividend
           housing provider.
          single fronted live/work accommodation (3-5 storeys) wrapped around the south
           and west sides of the car park which would allow north light to the frontages of the
           apartments to the south of ‘Main Street’.
     provision of community facilities.
     a new super tram stop at the site entrance on Nicholson Street.

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The Proponent’s own the Tontine site (proposed for rezoning to B1Z) and it is anticipated
that this land is likely to be developed before the land proposed for rezoning to B2Z). The
remaining areas of the precinct have an indicative development capacity in the order of
4,000m2 of office space, 400 residential apartments and approximately 1000 m2 of retail
space.

The opportunity is also identified to improve existing streetscape of both John and Albert
Streets by increasing and continuing the tree lined street treatments to the north.

Much of the discussion of issues in subsequent Chapters of this report makes reference to
key features of the Proponent’s plans. The underlying development intentions remained
quite consistent throughout the panel process although the way these development
intentions were represented on the concept plans was revised.


1.2.1      Post-Exhibition Changes Supported by Council

In response to submissions received, Council supported a number of changes to the
exhibited DPO11. Council advised that the majority of changes were intended increase
development certainty while maintaining flexibility to adopt effective responses in the
development of design concepts. In summary, Council supported changes relating to:
     protection from unreasonable overlooking, overshadowing of existing secluded private
      open space and of solar access for power generation and food production.
     consideration of the residential nature and amenity of adjoining areas and any traffic
      related impacts to the street and the bicycle route on John Street.
     the delivery of a ‘central town square’ or significant public space that emphasises
      pedestrian and recreational use and creates a focal point from Nicholson Street.
     the Community Facilities Audit to detail developer contributions to include a range of
      costs or works proportionate to the scale and impact of development and require
      identification of measure to achieve a distinctive focal point or ‘arts hub’.
     the provision of active frontages and a high level of pedestrian amenity for John Street,
      Gamble Street and Elm Grove (in addition to Glenlyon Road, Nicholson Street, Albert
      Street and Rickard Street).
     consultation with VicRoads and the Department of Transport (DOT) as part of the
      preparation of the Integrated Transport Plan (ITP), and requirements relating to the
      Nicholson Street access and the provision of traffic signals and accessible tram stops.
     limits on the location of main entrances to larger retail uses to the centre of the precinct
      to minimise adverse amenity impacts.
     lighting and design measures to mitigate and minimise any safety concerns.
     refinement of the drafting of the schedule.

During the course of the hearing a number of iterations of DPO11 were put forward and
discussed. After initially opposing the introduction of a concept plan into the schedule, by
the end of the hearing both Council officers and the Proponent supported such a change to
provide greater certainty about development outcomes. This issue is discussed in Chapter 9.

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1.3        Procedural Matters
Request for Adjournment and Re- exhibition

At the Directions hearing Dr Larcombe, Ms Dally and Ms Lansdowne sought an
adjournment of the hearing. They sought directions from the Panel requiring Council to:
   1. Redraft the Amendment and its controls to reflect the development proposal before
      Council and to re-exhibit the revised Amendment for comment.
   2. Adopt in the redrafted Amendment a planning instrument that maintains third party
      notification and appeal rights.
   3. Seek peer review of key professional reports that were prepared as supporting
      documentation for the Amendment request. The ‘Access and Movement Strategy’ and
      the ‘Retail Need and Economic Assessment’ reports were highlighted for peer review.
   4. Consider the impact of this proposed development in conjunction with other
      developments proximate to the proposed development.

Council responded that the Amendment relates to revisions to policy, rezoning and the
introduction of a Development Plan Overlay, rather than a particular form of development.
It was argued that supporting documents prepared by the Proponent represent only one
development option if the Amendment proceeds and Council has not endorsed all elements
of these documents. Council advised that it adopts the practice of not exhibiting illustrative
concept plans or associated reports as the status of those documents can be misconstrued.
The proposed Development Plan Overlay would require the submission of these types of
documents in support of the plan that will actually be pursued. Relevant Council officers
have reviewed the supporting documents and this internal review process has informed
Council’s view on the Amendment. The Proponent endorsed the Council’s response.

The Panel did not agree to adjourn the hearing or to require the Amendment to be redrafted
to reflect a particular proposal. It noted that some planning authorities do exhibit
supporting documents illustrating a possible development outcome if an amendment is
adopted but acknowledged that such an approach carries some risk of the concepts being
interpreted as representing proposals under consideration whereas alternative options may
be put forward if an amendment is approved. It was also noted that the documents
submitted by the Proponent in support of the Amendment are likely to assist in the
assessment of the adequacy of the proposed planning framework as they illustrate one
possible proposal and address the implications associated with that form of redevelopment
(See discussion in Chapter 2).

The Panel indicated that it had not formed a view on substantive issues raised in
submissions such as third party rights, the adequacy of the analysis of access and economic
impacts or the cumulative impacts of this Amendment when other Amendments and
permits are taken into account. These were highlighted as matters to be addressed in
submissions to the Panel.




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Late Requests to Participate in the Panel Hearing

The Panel agreed to late requests to be heard at the panel hearing by:
     Cameron Tate and Lucas White, who live in Gamble Street and had lodge a written
      submission during exhibition of Amendment C92; and
     Mr Beckwith, who had not lodged a submission during exhibition but has been a trader
      in Brunswick for many years and is active in local trader organisations. His
      submissions were limited to the matters foreshadowed at the directions hearing which
      related to impacts on other centres.

At the commencement of the hearing the City of Yarra also foreshadowed an interest in
participating in the Panel hearing, although it had not lodged a written submission during
exhibition, but advised that it would not be in a position to obtain the necessary advice
relating to impacts on other centres prior to the hearing. The Council did not seek an
adjournment to enable that work to be commissioned.


1.4        The Issues
The key issues raised during the Panel process are addressed in subsequent Chapters. They
are briefly summarised as follows:
     Did the extent of notice and access to supporting information during the exhibition of
      Amendment C92 enable informed participation by those who may be affected.
     Does redevelopment of the Site as a neighbourhood activity centre have a sound
      strategic planning basis, having regard to policies to retain significant areas of
      industrial land, urban consolidation and activity centre policy; and impacts on other
      activity centres and nodes?
     Would the planning framework proposed ensure appropriate urban design and built
      form outcomes.
     The implications of redevelopment of the Site on public transport services, the local
      streets, parking and the bicycle network.
     Whether there would be adverse impacts on existing residents’ amenity from new uses
      on the Site.
     The protection both existing business operations and the amenity of residential
      properties in the Site.
     Whether the level of provision of affordable housing, community facilities and services
      would be appropriate.
     Whether the Amendment establishes a robust planning framework that ensures
      planning objectives are achieved while avoiding unacceptable adverse impacts.




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2.            The Adequacy of Notice

2.1           The Extent of Notice of the Amendment
The Amendment C92 exhibition process comprised:
         direct mail notification to prescribed Ministers and authorities and approximately 1,400
          landowners and residents within a 400-metre radius of the precinct.
         notice in the Moreland Leader and the Government Gazette.
         Amendment documents were made available at all Moreland City Council service
          centres, on the Moreland City Council website and on the DPCD website.

Mr Beckwith argued that the views of traders in established centres should be accorded
weight but they were not notified and were therefore unable to participate effectively in the
process. He also submitted that the views of the City of Yarra2 and work they may
undertake on economic impacts should be taken into account in the assessment of
Amendment C92. During the Panel hearing process Council confirmed that retail centres
were not directly notified as this is not standard procedure for a planning scheme
amendment and Council officers considered economic impact assessments did not indicate
unacceptable impacts on other centres (see Chapter 3.3.1).

The Panel was not presented with material to suggest that the extent and form of notice did
not satisfy the requirements of S 19 of the Act. The Panel accepts that the extent of notice
was acceptable.


2.2           Did The Information Provided Enable Informed Participation?
Residents submitted that the exhibition of Amendment C92 was not accompanied by the
necessary information to enable effective participation in the process. They argued the
Amendment is premature as there is no agreement or certainty about future plans for the
Site. Further, the Amendment process and the planning framework it establishes fail to
provide sufficient certainty that resident interests are protected to justify ‘locking out’
potentially affected third parties from subsequent planning processes through the
application of DPO11. Dr Larcombe, Ms Dally and Ms Lansdowne submitted ‘It seems
patently unfair to be told that we cannot participate in decisions about the proposal now (because it
has not been decided), when we will not be able to participate in decisions later (because the DPO
removes our rights)’ and further, ‘ if Council proposes to revoke citizens’ rights to be informed about
and participate in decision-making processes that may adversely affect their interests, it might be
expected that Council would have taken extra care and specific measures to ascertain the interests and
concerns of those who may be affected by the decision, and to bear an additional responsibility for



2
        The adjoining municipality.

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considering those interests through the decision-making processes. That has not occurred in this
instance.’

Council responded to submitter’s concerns that:
     the Amendment relates only to revisions to policy, rezoning and the introduction of
      DPO11, the supporting documents prepared by the Proponent represent only one
      development option if the Amendment proceeds, and Council has not endorsed all
      elements of these documents;
     it is not Council’s practice to exhibit illustrative concept plans or associated reports as
      the status of those documents can be misconstrued;
     the amendment process provides the appropriate level of assurance that the interests of
      those who may be affected by the redevelopment of the precinct are addressed;
     DPO 11 requires more stringent, specific requirements to be addressed than standard
      provisions for planning applications that focus on more individual site-specific
      outcomes; and
     having participated in the Amendment process ‘it seems unreasonable of submitters to
      expect to be involved in the development of subsequent details of architectural treatment’ and
      ‘It is also inappropriate to suggest that the Council may not give proper consideration to the
      DPO and other policy requirements when considering a DP or subsequent planning
      applications.’

The Proponent argued that in addition to formal exhibition, a pre-exhibition public
consultation forum it held presented the vision for the proposal, including Main Street and
Nicholson Street indicative design detail, and this material was distributed locally through
Nicholson Street Urban Renewal Brochure (the Brochure). It was submitted also that Draft
Brunswick Structure Plan, which has been the subject of extensive community consultation,
has established the strategic direction for this site. It was also noted that the Responsible
Authority ‘represents’ the community and is obliged to implement the objectives of
Planning Victoria ‘to provide for the fair, orderly economic and sustainable use and development of
land’. Further, in addition to complying with the Development Plan to be approved, in
considering any subsequent planning permit application the interests of residents will be
addressed as the Responsible Authority must have regard to a broad suite of controls and
guidelines expressed in Section 60 of the Act, clause 65.01, in the Business 1 and 2 Zones and
under ResCode.

Nevertheless, Council officers proposed to include an additional section in DPO11 that
requires the public display of the Development Plan in order to allay some of the submitters
concerns. This informal process, which has been adopted elsewhere, was not opposed by
the Proponent.

DPCD officers supported the use of the DPO but did not make specific comment about the
information presented during exhibition or third party rights.

The following discussion considers nature of information provided to those who may be
affected by Amendment C92.


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Brunswick Structure Plan (BSP) Consultation

The Draft BSP has been subject to an extensive community consultation process. The
Proponent argued that the Draft BSP establishes a sound strategic basis for the key strategic
direction implemented by Amendment C92, namely support for the establishment of an
activity centre in this location. However residents demonstrated that during the BSP
community consultative processes the concept of an activity node or activity cluster centred
on the Glenlyon/Nicholson intersection did not appear in the Structure Plan documentation
(and, presumably, the associated consultations) until the final stage of the Plan development
– that is, the Draft Brunswick Structure Plan (July 2008).

We accept that three points are relevant here. Firstly, that community consultation did not
canvass the concept of an activity centre in this location, secondly, the adopted version of the
Draft BSP has significant differences when compared with plans now being contemplated
for the Site (see Chapter 5), and, thirdly, the Draft BSP has not been through the exhibition
process (with potential review of the merits of its content) necessary for formal recognition
in the planning scheme (see Chapter 3.2).

Pre-exhibition Consultation

The Proponent held an informal information session at the former Tontine site on Friday 24
July. However, the Panel was advised that contractors were used to distribute notice of the
session and the brochure entitled ‘Nicholson Street: Urban Renewal’ to residents and many
residents did not receive the material. For example, two of the three submitters at the
hearing who lived in the precinct at the time did not receive this notice or the brochure.

The brochure, which was provided to the Panel, includes indicative images of streetscapes
and a justification for redevelopment. It refers to the development of public spaces and
streetscape upgrading. The brochure indicated the Amendment would enable ‘Commercial,
residential and retail development including a supermarket, specialty shops and offices focussed
towards meeting the needs of East Brunswick’ but did not provide detail about the proposed size
or scale of these uses or the extent of associated parking. The only references in the brochure
to vehicle traffic were to ‘the connection of previously dead end streets’ and ‘The proposal includes
a central street connecting Nicholson Street and John Street and a central plaza or square which will
act as a community focal point and give a sense of place to Nicholson Street. Streets have been
designed to encourage use by pedestrians and cyclists.’ The brochure indicated that, in addition
to the Amendment process, ‘A full and detailed consultation strategy is being prepared that will
include community sessions with a view to providing the public with an opportunity to comment.’

Exhibition

The Amendment C92 exhibition/notification process (see Chapter 2.1) included an
explanatory report and provided access to the Amendment documents, which comprised:
     copies of the revised MSS clauses 21.04 and 21.05 (without tracking of the changes
      proposed);


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     maps showing the proposed rezonings to B1Z and B2Z with the schedules to each zone
      setting out shop and office permit triggers/limits; and
     maps showing the extent of the proposed DPO and EAO.

The Explanatory report refers to the establishment of a new Neighbourhood Activity Centre
(NAC) but the specific information provided as part of the exhibition process was limited.

The Explanatory Report indicated the Amendment would rezone industrial land to
‘Business 1 and 2 Zone’; set limits for commercial and shop floorspace (without specifying
what the limits were), 10 per cent of dwellings to be offered to a housing association for
affordable adaptable housing; and a new public urban open space including an additional
pedestrian connection between Nicholson Street and John Street and central town square
would be provided. The Explanatory Report did not mention proponent plans for
development or the anticipated uses, scale, density and layout of the development (see
Chapter 1.2).

Residents advised the Panel that Ms Giaquinta reassured people that it would not be a
‘large’ development, that it would be mainly townhouses and apartments (mainly on the
Nicholson Street side) with a few shops and some office accommodation (especially on the
John Street side). People were given or formed the impression that the ‘supermaket’
mentioned in the Bridgehead brochure was likely to be a small IGA. It was emphasised that
the Bridgehead ‘concept’ was just an early proposal, that there were no plans before Council
and that Council had not ‘approved’ Bridgehead’s tentative proposal. Council confirmed
resident claims that the Proponent’s reports in support of the requested rezoning, including
the Concept Plan, were not publicly available during the exhibition process. It was also
clear that Council officers advised those who enquired during the exhibition process that
Council had not endorsed particular plans as part of the Amendment process and this
would occur during subsequent processes.

As the explanatory report made no mention of removal of third party rights under the
proposed Development Plan Overlay, residents submitted that those not familiar with the
intricacies of planning mechanisms would have had a reasonable expectation that they
would receive notice of planning applications for a nearby development in due course and
that they would be able to express concerns or lodge objections at that time.

The Panel Process

The Panel directed that Proponent’s submission and associated technical reports in support
of the Amendment be provided to all parties to the Panel process. Expert reports were also
circulated to parties to the Panel process prior to the hearing.

Residents submitted that it was only during the Panel process that:
     full information about the Proponent’s plans for the Amendment area became available
      to them; and
     the limits on their future participation in planning decisions for the precinct became
      apparent.

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2.2.1 Discussion

Effective participation in the Amendment process is dependant on the notice clearly
identifying the changes proposed and the Explanatory Report has a vital role in making the
nature of the changes clear3. Indeed the Practice Note Applying the Incorporated Plan Overlay
and Development Plan Overlays (the Practice Note) states ‘The explanatory report for the
amendment introducing an overlay without a plan should explain the effects of not preparing a plan
and the justification for taking this step. Care should be taken to ensure that the effects are
understood by landowners.’

In the case of Amendment C92 the Panel agrees with residents that it would be very difficult
for those affected to discern the nature and implications of the changes proposed without
detailed reading of the Amendment documentation. In addition, to understand the
implications of the Amendment it would be necessary to understand how the DPO operates
in relation to third party rights and how the schedules to the proposed business zones
operate.

While the Panel has major concerns about the limited information presented during the
Amendment process, the Panel feels that in practice the Panel hearing has allowed the
substantive issues and the merits of the Amendment to be explored and evaluated.

Despite the limited information presented, residents with a very strong capacity to interpret
the documents presented and then infer the possible implications resulted in an organised
response with submissions addressing key issues. Residents organised a meeting on 2
October 2009 and many of the residents in the immediate area lodged submissions in the
form of a sophisticated pro-forma. For example, only two residential properties in John
Street did not object and 4 of the 7 residential properties in Gamble Street objected. These
submissions anticipated many of the issues one would expect to arise if full information was
available.

Residents who appeared at the hearing had the skills to effectively present their views and
interrogate/challenge the material and evidence presented in support of the Amendment. It
was also apparent that views expressed by the residents who appeared were supported by
at least some of the other residents who attended the hearing but did not make a
presentation.


3
    For example, see the VCAT decision Freeman v Knox City Council, which related to whether the exhibition
    of Amendment C50 to the Knox Planning scheme satisfied the requirements of the Act and, in particular,
    whether the Amendment ‘Explanatory Report’ adequately described what the amendment sought to achieve.
    Justice Morris directed that the Minister for Planning must not approve Amendment C50 to the Knox
    Planning Scheme unless the City of Knox first gave a fresh notice of Amendment C50, after preparing a new
    explanatory report. While Justice Morris noted that the purpose of notice is to alert a person to the
    existence of the proposed amendment so that the person can choose whether or not to take the next step to
    participate in the planning process, with the purposes of an explanatory report being to introduce the
    detail of the amendment, to provide some context, and to highlight key changes to be made by the
    amendment.

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Third Party Rights

The DPO Clause 43.04-3 exempts proposals that are generally in accordance with the
development plan from notice and appeal provisions that would otherwise apply. At the
directions hearing the Panel highlighted the removal of third party rights, which was a key
concern to resident objectors, as a matter that should be specifically addressed in
submissions.

Residents argued that it is unfair to remove third party rights through the application of a
DPO to this site, when the community has not had an opportunity to consider and comment
on an agreed development proposal.

The Proponent referred us to the findings of other Panels where DPOs and the removal of
third party rights for major redevelopment sites was considered and accepted. For example:
     Amendments C38 and C41 to the Maribyrnong Planning Scheme where the inclusion
      after exhibition of a concept plan in the relevant schedules to the DPO was
      recommended. The Panel notes that in that instance the evidence indicated that the
      land was in a single landholding, it had limited abuttals to established residential use
      and, subject to managing the sensitive interfaces through the DPO, it was concluded
      that third party interests will not be unreasonably affected.
     Moreland C111 which related to the Kodak site and, being of a comparable size, it was
      submitted had similarities to the subject site. There was no Panel to consider the
      Amendment but the Panel notes that the extent of B1Z was limited (2,000m2 permit
      trigger for shop) and the site was expected to yield less than 400 dwellings. Further,
      the development plan was required to have regard to the adopted Objectives for the
      Redevelopment of the former Kodak Site (Sept 2006) which, although that document was
      not provided, the Panel suspects it may establish key parameters for redevelopment.

The Practice Note raises significant questions about the appropriateness of applying the
DPO in the current circumstances. It indicates DPOs should be underpinned by a strategic
framework but in this instance an agreed strategic framework was not been presented
during either the informal consultation processes or exhibition. The Practice Note states:
       The strategic framework should be prepared before the overlay is applied to:
       ·    identify and address any opportunities and constraints that will affect the
            development of the land
       ·    provide direction about the desired development outcomes and the overall form of
            development
       ·    provide certainty to landowners and third parties about the form of development
       ·    assist in choosing the appropriate planning tools to achieve the desired development
            outcomes and form of development
       ·    ensure the schedule to the overlay is drafted to achieve the desired development
            outcomes and facilitate the development.



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       The strategic framework should be set out in the planning scheme or form part of the
       amendment introducing the overlay into the planning scheme (Emphasis added)

The Practice Note does not envisage the use of the DPO where third parties are likely to be
affected and identifies the IPO as the appropriate tool in these circumstances. It states:
       Because the DPO has no public approval process for the plan, it should normally be
       applied to development proposals that are not likely to significantly affect third-party
       interests, self-contained sites where ownership is limited to one or two parties and sites
       that contain no existing residential population and do not adjoin established residential
       areas.
and:
       The IPO requirement for a planning scheme amendment to incorporate or change the
       plan enables third parties to be involved in the process of making or changing the plan.
       For this reason, the IPO should normally be used for sites that are likely to affect third-
       party interests and sites comprising multiple lots in different ownership. Most
       redevelopment of existing urban land will fall into this category, particularly where the
       surrounding land use is residential.

Further, the Practice Note specifically indicates that concerns about the removal of third
party rights under that the DPO should not be addressed through informal process, stating
‘Responsible authorities are discouraged from using non statutory consultation practices to assist in
deciding planning applications that are generally in accordance with the plan.’

The Panel has significant concerns about applying the DPO in areas such as this where there
are established uses and those affected have not had an opportunity to assess potential
impacts or present their views on those impacts. This concern is reinforced by the limited
specific content in DPO11 directing particular responses in subsequent development
planning and application processes to assure those affected that key issues affecting nearby
properties, such as vehicle access or operating hours, will be adequately addressed.

The planning framework that would be established by Amendment C92 (as exhibited)
identifies a series of reports to be submitted and sets out some broad intentions but includes
few specific requirements or specified responses. The most specific provisions in the
planning framework are:
      Shop floor area exceeding 1,000m2 in the B2Z is prohibited and a permit is required in
       the B1Z if shop floor area exceeds 7,000m2 (such an application could be expected to be
       exempt from third party rights to notice and to participate in review process).
      DPO11 expects the following to be achieved:
          A new east-west ‘Main Street’ connecting Nicholson Street and John Street as the
           focus of the centre with appropriate connections to other streets and laneways in
           the precinct;
          Graduated building heights, ranging from 3-4 storeys at the edges of the precinct to
           6 storeys near the centre of the precinct.



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Council submitted that it considers that the extensive discussions between Council and the
proponent; supporting information; direction from the Brunswick Structure Plan; and expert
input into the proposal, has extended to the development of an appropriate strategic
framework that has appropriately informed the proposed DPO11. However, as already
noted, none of this material was in the public domain during the exhibition process and
Council maintained the position that it has not endorsed the Proponent’s plans.

Council and the Proponent expect residents to trust the Council to ensure that residents’
interests are protected. The Panel is concerned that this may not be justified for such a major
planning decision when the broad strategic planning framework for the Brunswick activity
centre has not been subject to formal exhibition processes, the concepts provided by the
Proponent include significant departures from the Draft BSP and there has been so little
information presented as part of the current Amendment process about the form of
development that would be facilitated. Even minor developments with limited implications,
such as house extensions or dual occupancies, those who may be affected have greater rights
than is proposed in this instance.

Various other Panels have also grappled with the removal of third party rights under a DPO
when the form of development remains uncertain during the Amendment process. For
example the recent Panel that considered Darebin C91 commented:
       Where a draft Development Plan is available at the time of exhibition of a DPO, an
       opportunity is afforded for third parties to respond to a clearly defined proposal and have
       their submissions assessed by the Council and by a Panel if required. In this context the
       details of the plan can be debated and refined before it is put in place and third party
       rights are excluded.
       In the present case, as we have said, there remains a high degree of uncertainty about the
       outcomes that can be expected on the Meydan land.
       One option to redress the balance of certainty and public input to development outcomes
       for this land would be to exclude application of the DPO and utilise other Scheme
       controls which might allow further third party input.
       In so far as certain of the key development parameters for this land have been debated
       through the Panel process including by submitters, however, we think that an adequate
       response to the certainty/input dilemma is to ‘lock down’ certain key elements of the
       development to provide greater certainty concerning development outcomes4

The Panel is conscious that conceptual plans and revisions of DPO11 put forward during the
Panel process were not exhibited and only those at the hearing were in a position to present
their views on these options. Nevertheless, key issues and options to provide greater
certainty about development outcomes were ventilated at the hearing, and as the Panel has
already commented, those representing residents’ interests did so very effectively.



4
    That Panel proceeded to lock down certain provisions by including mandatory requirements in a DDO,
    which unlike elements of a Development plan cannot be varied by a permit.

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Subsequent chapters address substantive issues raised in relation development facilitated by
the Amendment in terms of proposals being contemplated by the Proponent and possible
measures to provide certainty that key issues will be addressed are then discussed in
Chapter 8.2.

At a broader level, we are concerned that Panels are being placed in the position of dealing
with DPOs where the exhibition process has not adhered to the guidance provided in the
Practice Note. Good practice, as clearly articulated in the Practice Note, indicates that the
exhibition process where a DPO is proposed should be supported by an established strategic
framework and the explanatory report should make the implications of the overlay clear.
The Panel urges Planning Authorities and DPCD to refer to the Practice Note before
exhibition occurs to ensure the strategic framework presented in support the overlay and
the explanatory report are adequately addressed.

Panel Recommendation

       Ensure Planning Authorities and DPCD to refer to the Practice Note Applying the
       Incorporated Plan Overlay and Development Plan Overlays before exhibition occurs
       to ensure selection of the overlay to be applied, the strategic framework presented
       in support the overlay and the explanatory report are adequately addressed.




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3.         Does Planning Policy Support Redevelopment
           as a Neighbourhood Activity Centre?

This Chapter addresses the fundamental question of whether it is sound strategic planning
to redevelop the Site for the purpose of an activity centre and subsequent chapters then
address the implications of the form of development facilitated by the planning framework
proposed in Amendment C92 and currently envisaged by the Proponent.


3.1        The Loss of Industrial Land
The Moreland Industrial Land Use Strategy 2004 (MILUS), which was implemented by
Amendment C75 (November 2006), guides decisions about land in Moreland’s Industrial,
Business 3 and 4 and Mixed Use Zones5. MILUS found that a range of factors such as
structural change in the manufacturing sector, development options in cheaper, more
accessible industrial estates and landuse conflict will result in numerous industrial sites
becoming vacant or underutilised. Management of the expected land use change to
maintain an ongoing mix of uses wherever possible and a strong local employment base was
advocated. MILUS adopted five strategic categories, ranging from core industry and
employment areas where no rezoning should be contemplated, to transitional areas where
residential rezoning would be supported. The Site, which is in MILUS Area 70, was
included in Category B: for secondary industry and employment uses which were
considered to be ‘relatively intact concentrations of industry and provide good opportunities for
smaller service industries and businesses to continue to operate in the long term.’ MILUS stated in
this category ‘Council should oppose non-industrial or associated intrusions that might impact on
the operation of industries in these areas in the future’ and ‘Council should not support residential or
mixed use rezonings of land included in the Secondary Industry and Employment Uses category.’

Council and the Proponent argued that the loss in mid-2006 of a key industrial operator in
the precinct, Tontine, created underutilised redundant industrial land, which, together with
more the recent work undertaken for the Draft Brunswick Structure Plan (BSP), justifies a
variation to the Precinct’s classification under MILUS. It was submitted that these
sentiments are reflected in Melbourne @ 5 Million and the findings of the pilot project6
assessment of public transport corridors in the southern parts of the Cities of Moreland and
Darebin which recommended freeing up surplus industrial land in and around activity
centres for more intensive redevelopment.

The Draft BSP was informed by a ‘confidential’ economic analysis relating to Nicholson
Street Brunswick East undertaken by Tim Nott (January 2008) which was tabled at the Panel


5
    Council advised that as a result of MILUS, 22 industrial rezonings have been completed, 8 are currently
    underway and Council continues to receive numerous rezoning inquiries.
6
    Referred to in Melbourne @ 5 Million

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hearing. This analysis occurred in the context of the recent closure of the Tontine enterprise
and a proposal to develop a neighbourhood shopping centre on the site. It found that, while
some existing businesses may wish to remain due to proximity/familiarity to markets, ‘The
Nicholson Street Precinct has no advantages for significant manufacturing, other than the industrial
zoning of the land. The building stock is largely old and inappropriate; access to the metropolitan
freeway network is via congested inner city arterial roads; and the existing manufacturing activities
are in declining sectors. There is also a perception ….that industrial space would not capture the
highest value for the land, particularly on Nicholson Street…’

Council considered Category C: multi use – employment would now be appropriate for the Site
as it would encourage a wider mix of uses, including retail, office, residential and other
employment uses, whilst allowing for existing uses to continue within the precinct. Mr
Robertson was of the view that Category ‘D’ Multi Use – Residential should apply with
consequential changes to clause 21.05-2 Map 5 Industry and Employment Framework Plan.

On the other hand, some residents questioned the point of adopting a strategy to maintain
industrial areas and jobs if it is so easily overturned.

This Panel, understands that MILUS reflected Council’s policy imperative to retain local jobs
while providing opportunities for urban revitalisation and development of higher skilled
and knowledge based local employment opportunities more suited to the municipality’s
changing population. The Panel accepts that the Site’s capacity to compete for traditional
industrial uses may be constrained. A limitation on redevelopment options through the
adoption of an industrial or B3Z may restrict the intensity of development and the
associated generation of employment opportunities. The Panel is satisfied that mixed use
development facilitated by the proposed B1Z and B2Z can support the achievement of the
policy intent to ensure employment opportunities are maintained in Moreland.


3.2        Urban Consolidation Policy
Urban consolidation policies (SPPF Clause 12.01) promote the development of a more
compact city that capitalises on locations where existing infrastructure such as community
facilities, roads and public transport are in place (Clause 18). These policies have been
reaffirmed in the Melbourne 2030 Audit and Melbourne @ 5 Million. Opportunities for
residential intensification in tramway corridors to implement these policies has been
research in the recent SGS Economics & Planning research report which specifically
considered the Tram Route 96 along Nicholson Street between Brunswick Road and Blyth
Street as one of two case study areas. The report concluded there are significant
opportunities for higher density housing, particularly on under-utilised industrial sites but
highlighted the desirability of establishing a clear planning framework that removes
uncertainty and ‘fast tracks’ development approvals in areas targeted for higher density
development.

We agree with Council that the rezoning proposed in Amendment C92 supports planning
policy to intensify development in established areas with established infrastructure. The
Panel also agrees that the planning framework for important redevelopment sites, such as

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the one being considered, should aim to maximise certainty and minimises red tape.
However, this certainty should not be at the expense of effective responses to key planning
issues, including those identified by affected residents in the locality.


3.3        Activity Centre Policy
State planning policy (Clause 12.01-2) defines the role and function of a network of activity
centres based on five classifications of centres ranging from the Central Activities District to
Neighbourhood Activity Centres (NAC). The Precinct is within the designated Brunswick
Major Activity Centre (MAC) under Melbourne 2030. Major Activity Centres are intended
to have a mix of activities that generate high number of trips including business, retail,
services and entertainment while NACs are intended to meet local convenience needs
(generally up to 10,000m2 retail floor area) and provide community focal points. Planning
policy provides for the development new NACs in the redevelopment of middle suburbs.

In the Moreland Planning Scheme local planning policy designates ‘urban villages’ to
identify local urban activity nodes which the MSS indicates are closely aligned to Melbourne
2030’s policies, including the hierarchy of activity centres. The MSS indicates that the
activity centre terms used by Melbourne 2030 are adopted to ensure consistency and further
strategic analysis will be undertaken to determine the future of Moreland’s other designated
urban villages.

Local planning policy currently indicates that retailing, commercial and community
activities will be consolidated in Glenroy and along Sydney Road in both Coburg and
Brunswick, with the dispersed local shopping centres being supported to maintain basic
convenience shopping within walking distance of most residential areas. Despite Brunswick
being a designated MAC under Melbourne 2030, the Strategic Framework Plan (Map 3
Clause 21.04) shows a series of urban villages in Brunswick rather than a ‘consolidated’
delineation of the MAC (See Clause 21.04-2).

The Draft BSP was as adopted in principle by Council on 8 October 2008. While the Draft
BSP has no statutory weight as it has only been subject to consultative processes rather than
any formal exhibition, it does present the Council’s most recent strategic planning for the
area. The Draft BSP maintains the mix of urban village and activity centre terminology
apparent in the MSS and comments ‘It is important to note that the 'activity centre’ concept
works most effectively as a planning tool when applied to a single node or discrete retail strip within
the urban fabric. Brunswick presents a more complex problem. The suburb comprises a series of
significant transport and activity corridors, which themselves are characterised by a number of nodes
with different characters, functions and infrastructure. For the purposes of this Structure Plan the
Brunswick Activity Centre is understood as ‘multi-nodal’.

Given the mix of terminology adopted, the Panel understands the resident submitters’
difficulty in interpreting the planning framework for the Brunswick MAC/Urban Villages.
Brunswick is certainly not a typical MAC and it is not usual planning practice to incorporate
NACs within MACs. However, the Panel accepts that Brunswick has an idiosyncratic



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planning framework that has evolved over time and it is the stated intention to reconcile
state and local planning language (although this is not apparent from the Draft BSP).

The economic analysis undertaken by Tim Nott (January 2008) during the preparation of the
Draft BSP supported comprehensive redevelopment within the corridor, including a multi-
functional neighbourhood activity centre on the Tontine site (See Chapter 3.2.1).

The Draft BSP makes little explicit reference to retailing beyond generic comments to,
amongst others, ‘Improved distribution of convenience shopping – the dominance of three large
supermarkets located in large car parks causes large numbers of short vehicle trips’ and indicates
that better distribution of convenience retailing is one of the key elements of the structure
plan. The Draft BSP makes various references to the development of a new NAC which is
focussed at the intersection of Nicholson Street and Glenlyon Road7. The precinct specific
guidelines in Volume 2 of the Draft BSP were adopted after Tontine vacated the Site and
notes that the redevelopment of this precinct (3B) will define the future role of Nicholson
Street. The Precinct 3B guidelines refer to a proposal for a neighbourhood shopping
function and comment this ‘would encourage investment in other employment activities such as
offices and showrooms.’ However, the issues, strategies and associated plans for Precinct 3B
do not then proceed to address this shopping function and only make general reference to a
‘potential large mixed-use development with pedestrian friendly environment will be well connected
to new transport interchange.’ This could be seen as ‘dodging’ a fundamental issue.

We have assumed that the use of the term NAC in the Draft BSP carries with it the
Melbourne 2030 meaning, which invariably involves a retailing component (generally up to
10.000m2) whereas an ‘urban village’ generally has a smaller catchment and does not
necessarily include shops8. Irrespective of the terminology used, the Panel accepts the
assessment in the Draft BSP which suggests there is a gap in the network of centres serving
the growing population in this part of Brunswick and that intensive redevelopment of this
precinct for a mix of uses should be supported (see further discussion in Chapter 3.2.1).

It was submitted a NAC here is also consistent with Council’s pre-BSP strategic planning
directions for Urban Villages. Council and the Proponent highlighted that existing urban
villages were established via a point system9 and the Site would rate as a ‘priority village’
(with 23 points) if the benchmarks and criteria established in the original report are
applied10. While the Panel recognises that the ‘post-redevelopment’ rating of the Site could
be seen as distorting the system as services not currently in place are assumed, nevertheless,


7
     For example BSP Vol1 pages 7, 8, 25,52.
8
     See discussion of the distinction between NAC’s and urban villages Moreland Urban Villages Review 2004
     pages 17-18.
9
     Addressing criteria such as Public Transport, Street Network, Land Use Mix, Development Intensity, Open
     Space.
10
     See ‘Urban Villages: a sustainable future for Moreland’ (23.6.07) (page 18 General Principles Checklist,
     Appendix B) and ‘Moreland Urban Villages Review (February 2004) at 5.3 and 5.4.

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it is indicative of the positive underlying locational characteristics of the Site as a focus for
activity.

We also adopt the view expressed in the Activity Centre Guidelines (Page 35) that large
stores such as supermarkets are essential to the vitality of many activity centres as they can
enhance the viability of other businesses and promote a high level of street activity. The
Panel has inferred from the Draft BSP Built Form Framework (Map 13) that a relatively
intensive form of redevelopment of Precinct 3B is envisaged and, at a broad policy level, in
an activity centre this is appropriate (See discussion in Chapter 4).

We are satisfied that there is a sound strategic planning basis for development of a
Neighbourhood Activity Centre with a broad land use base in this location which is well
served by public transport. The Site’s size presents a rare opportunity to advance urban
consolidation policy while adding to the retail and employment opportunities in the locality.


3.3.1      Impacts on Other Activity Centres and Nodes

The Proponent envisages the development of retail uses in the Business 1 Zone in the core of
the precinct with major frontage to the Main Street Link. The configuration of the retail offer
in the Business 1 Zone is proposed to be:

                                Element                  Floorspace (m2)

                 Supermarket                                  3,800

                 Retail Specialty                             2,500

                 Non Retail Specialty                          500

                 Total Retail                                 6,800


Mr Justin Ganly from Deep End Services provided expert evidence in support of the
proposal. No other economic evidence was called at the hearing, however, the Council
engaged Mr Tim Nott to provide a peer review of the Deep End Evidence and his report was
provided to the Panel. Council’s decision not to call Mr Nott as an expert or pursue Mr
Nott’s criticisms of the Deep End analysis in its submission is taken into account in the
weight the Panel accords to Mr Nott views.

Mr Ganly’s evidence indicated that:
     there is a deficiency of retail floorspace in the catchment area and specifically a
      deficiency of supermarket floorspace;
     the development would have an impact on existing retail areas in the region but all
      impacts would be lower than the generally accepted 10% threshold;
     the maximum assessed impact was 8% on the Lygon Street Brunswick-North and
      Lygon Street Brunswick East–North; and



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     the average reduction in sales for existing catchment area retailers was forecast as –
      4.3% with impact on food retailers forecast slightly higher at 5.3%.

Mr Ganly stated in his evidence that ‘ the average impact levels are sustainable and sit
comfortably within the levels to be expected by retailers operating in a freely operating competitive
market, particularly as this relatively affluent catchment area is well undersupplied with supermarket
(and quality retail) floorspace and average trading levels are therefore quite high.’

In his peer review Mr Nott considered that the proposal to establish a neighbourhood
activity centre within the precinct was consistent with the Draft BSP. He included in his
report a quote from a background economic analysis report that Mr Nott prepared for
Council in 2008 ‘the former Tontine factory has the potential to be redeveloped into a substantial
neighbourhood shopping centre. The impact on the development potential of Nicholson Street will
depend to some degree on the design of any new centre’. Mr Nott’s peer review states that ‘it
appears from the concept plan that the proposed activity centre will be developed around a Main
Street with housing above; that it will not be an enclosed centre and that it will integrate strongly
with the surrounding streets and properties. This appears to be precisely the type of centre that is
envisaged in Council’s structure plan’

Mr Nott agrees with the Deep End conclusions that the proposal is likely to result in a net
community benefit but was critical of the Deep End analysis in so far as it provided ‘an
enormous amount of detail about floorspace and spending in a large range of retail categories in many
retail strips, crucial detail is missing with regard to how the impact of the proposed centre will be
allocated amongst the neighbouring centres’.

Mr Nott identified from the Deep End report, that the largest impact of the proposed centre
is estimated to be 8% on food sales at Lygon Street North. He suggested that if food and
groceries were isolated from the broader range of food sales that the impact would be much
larger and could challenge the viability of the existing supermarket in Lygon Street North
and that the loss of the supermarket would change the whole nature of the shopping centre
and downgrade its role in the local retail hierarchy. Having raised this concern Mr Nott
suggests that this would not necessarily be a fatal flaw in the justification of the proposal
since it could be argued that local residents would be offered a much higher level of service
from the new centre than currently exists and hence there would be a net community
benefit.

Mr Ganly advised that his visits to all of the established centres in the catchment, especially
those where the projected impact was most significant, indicated that the centres were
healthy, with a low number of vacancies and a very high degree of specialisation and
boutique style operations, including bookstores, delicatessens, gourmet food outlets,
clothing stores, jewellers, cafes and restaurants. He noted that all the smaller centres had a
very limited supermarket style role, typically limited to a small grocery or licensed grocery
store.




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The economic analysis and the degree of impact on existing centres were strongly put in
submissions from Mr Beckwith11. He submitted that the development of a 3,800 m2
supermarket with extensive parking would have a disastrous impact on the small
established shopping centres in the region. He cited specifically the Nicholson Street
Village, a small established centre 800 metres south of the proposal, in the City of Yarra. He
argued that the proposal would eliminate several shops including a fish shop, supermarket,
cheese shop, licensed grocery and a wine retail business, from the Nicholson Street centre
and that the loss of these businesses would weaken the overall attractiveness of the
Nicholson Street Village. Mr Beckwith queried the validity of the economic assessment, the
catchment boundaries identified and the level of expenditure that could be anticipated. He
argued that the proposal would have a major impact on the City of Yarra’s ‘four villages
policy’. He suggested that a comprehensive economic analysis of the area should be
undertaken prior to any further development being approved. Mr Beckwith made an
impassioned plea for the protection of the established retail activities in the region citing
many examples of where traditional retailers were being displaced by large new retail
developments owned and operated by national chains.

Submissions from Dr Larcombe, Ms Dally and Ms Lansdowne also queried the economic
assessment of the centre and specifically the need for and appropriateness of a full line
supermarket. These submissions argued, on the basis of economic analysis provided by Mr
Nott that the area was already well served by retail floorspace and that any new facilities
would simply result in the relocation or demise of retail activities in existing centres. The
submissions also queried the definition of local shopping and whether a local shopping
centre should only cater for people within a walking distance of the centre. If Amendment
C92 proceeds, these residents sought:
          a maximum supermarket size of 2,000 m2 for local residents only i.e. without car
           parking (so as not to encourage out of catchment shoppers and the consequential
           traffic); and
          a reduction in the total floorspace for shop (retail) across the precinct to 4,000 m2 (to
           reflect the fact that the intent is to provide ‘local, convenience’ shopping only, not a
           sub-regional shopping centre). They argued that third party rights should be revived
           in full for an application to exceed the maximum retail floorspace of 4,000 m2.

The Panel considers that the economic justification for the development provided by Deep
End is sound and that there is a demand for additional retail floorspace in the catchment
area of the proposal. The proposed amendment seeks to establish a schedule to the Business
1 Zone to allow 7,000m2 of retail floorspace on the site. The Panel considers this to be
appropriate.


11
         Mr Beckwith indicated that he presented to the panel on behalf of a number of business interests in
         established retail centres in the northern part of the City of Yarra and drew on many decades of experience
         of retailing in this locality. Mr Beckwith did not make a formal submission to the planning scheme
         amendment; rather he attended the initial day of hearing with a planning officer from the City of Yarra
         seeking permission to present to the panel. The Panel agreed that Mr Beckwith could make a submission on
         the economic aspects of the proposal.

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Undoubtedly the proposal will have an impact on other centres, the Panel considers
however that these ‘one-off’ impacts are likely to be within the accepted level and that this
supermarket based centre is unlikely to threaten the viability of other established centres
that have and will continue to evolve over time as highly specialised centres, that are very
well supported by their communities.

Configuration of the Retail Centre and Supermarket Size

A key issue emerging from submissions was whether on not a full line supermarket (in the
order of 3,800 m2) is required or desirable as part of the redevelopment of the Site. Issues
were raised regarding what constitutes a local centre as against a neighbourhood centre and
to what degree was retailing, or more specifically a supermarket, is vital to the success of an
activity centre. Dr Lacombe, in cross examination of Mr Ganly asked whether it was
possible to have a NAC without a supermarket. Mr Ganly indicated that it was possible.
Mr Beckwith asked Mr Ganly whether a Target or Big W could be considered as an anchor
and Mr Ganly replied that it would not be appropriate.

The Panel, drawing on Mr Ganly’s evidence and its own experience beyond the current
hearing, considers that it very unlikely for a 7,000 m2 shopping centre to be viable without a
major ‘anchor’ tenant of some sort. A major tenant is typically a supermarket, homewares
store, discount department store or cinema complex. The anchor identified for this proposal
is a supermarket. The issue then becomes how big should the supermarket be? The
residents have advised the Panel that a small supermarket would be acceptable, a ‘small
IGA’ was cited as an example and Mr Beckwith suggested a ‘Thomas Dux’ supermarket.

The economic analysis indicates a deficiency in supermarket floorspace, and that additional
supermarket floorspace serving the East Brunswick corridor can be supported by the
catchment. Whilst this corridor is larger that the ‘walkable’ catchment for the proposed
supermarket, the Panel considers that the Site is in a good location to serve the broader
corridor area. The site has good access to public transport, the regional road network,
bicycle and pedestrian routes.

The Panel considers that as demand has been demonstrated for a supermarket then market
responses to consumer preferences provide an effective mechanism to determine the specific
size and style of retailing provided, within the various planning parameters established by
the planning framework. With regard to the retailing component, those parameters in this
case are the 7,000m2 proposed to be included as a schedule to the B1Z and the concept plan
that illustrates the specific location of the supermarket and a range of specialist retail
premises along the new ‘Main Street’.




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4.              Urban Design and Built Form

The proposed rezoning and provisions of the Development Plan Overlay will result in
significant redevelopment of the precinct, from primarily an industrial built form to a mixed
use, commercial and higher density residential built form.

The form of development was illustrated through the concept plan presented at the hearing
by the proponent was supported by expert evidence from Mr Rob McGauran.

Urban design issues raised through the panel process were:
          concern over the scale and configuration of the proposed built form, the impact of the
           new built form on existing dwellings at the interfaces and sunlight access for the
           proposed dwellings;
          the role, function and design of the ‘Main Street’ link;
          streetscape design and maintenance; and
          public open space within the precinct.


4.1             Scale and Configuration of the Built Form
The scale of built form envisaged by the Proponent12 provides for 3 and 4 storey
development around the parameter of the precinct except to the north of Nicholson Street-
Glenlyon Road intersection where 4 and 5 storey heights was proposed. A higher built
form, up to 6 storeys, was proposed for the core of the precinct. The Draft BSP13
contemplates a similar built form scale. Concept plan revisions during the hearing
suggested increased building heights of between 4 and 6 storeys along Nicholson Street.
Council officers did not endorse increasing in the height of development along Nicholson
Street because this scale of development had not been foreshadowed in the Draft BSP.

Submissions from residents raised concern about:
          the 6 storey element of the built form extends almost to John Street and hence is not
           consistent with the Draft BSP;
          the overshadowing of the Main Street and existing properties on Gamble Street;
          the concept plan wrapping the south face of the car park building (in the core of the
           precinct) with dwellings. It was submitted that these dwellings would have no access
           to northern light and that this is at odds with Planning Scheme objectives for housing
           (Clause 21.05-1); and



12
         Illustrated in Figure 6 (p14) of the planning submission in support of the rezoning and referred to in Mr
         McGauran’s expert evidence as the ‘design response plan’.
13
         Draft Brunswick Structure Plan Volume 1 Map 13 Built Form Framework

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     the proximity of the 6 storey element to residential uses immediately to the south-west
      in Gamble Street.

If Amendment C92 proceeds, residents sought ‘re-use of existing warehouse walls to the south of
the Tontine site to create medium density warehouse style (2-3 storeys) residential dwellings
providing an appropriate interface to the existing single/double storey residential development.’

Mr McGauran considered that the development principles for the site have sought to ensure
that the amenity of the existing residents is not unreasonably impacted on. He stated that
the existing industrial buildings are effectively 3 storeys high and hence any suggestion that
new development in the precinct should be limited to 2 storeys is unreasonable. He also
highlighted the development objective to retain some elements of the industrial architecture,
including the high boundary walls. Mr McGauran considered that the retention of these
walls would add character and diversity to the street form and would also maintain noise
and overlooking buffers to the neighbouring residential properties. He suggested that the
Development Plan should ensure that existing access to sunlight to private open space and
habitable rooms at the equinox should be maintained. In this regard he stated ‘I am
comfortable that the Planning scheme is sufficiently robust in its scope to deal with these amenity
issues fairly’.

The Panel considers that the heights proposed in the concept plan (version 4), tabled at the
completion of the hearing are appropriate for this precinct. The precinct has clearly been
identified as an area for intensification, it is well serviced by public transport and it is well
placed to assist in the achievement of the objectives of the Draft Brunswick Structure Plan,
M2030 and Melbourne @ 5 million objectives. The higher built form, up to six storeys, is
located along the Nicholson Street frontage and in the core of the precinct, with the scale of
development stepping down towards the edges provides an appropriate transition to the
surrounding areas. The Panel recognises that the building heights indicated are preferred
and will only be able to be achieved if all relevant planning provisions (eg overlooking,
sunlight access etc) can be met. The Panel discusses the approach proposed in Amendment
C92 to impacts on amenity of the existing residential properties at the site interface in
Chapter 4.1.5.

In regard to Environmentally Sustainable Design (ESD) concerns raised by residents about
the south facing premises created through the wrapping of the car park structure, Mr
McGauran noted that south facing dwellings, studios and offices could still achieve ESD
principles and he noted that the evenness of ‘south light’ was actually preferred for artists
and design studios that may be attracted to this area.

The Panel accepts that design processes invariably require a balancing of competing
objectives. This design response takes account of the benefits of wrapping the car parking
structure to reduce its physical presence and enable the provision of active, attractive edges
in this location. While ESD involves maximising development elements with a northern
orientation, the Panel considers it is not the only means of achieving sustainable outcomes
and both the Environmental Management Plan required under DPO11 and subsequent
permit processes should ensure that the range of techniques available to ensure more
sustainable development outcomes are addressed in the design process.
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4.2        Design and Configuration of ‘Main Street’
The exhibited DPO11 and all versions of the concept plan show ‘a new east-west ‘Main Street
connecting Nicholson Street and John Street as the focus of the centre’. The concept plan
envisaged that ‘Main Street’ will have activated frontages at ground floor providing access
to the supermarket, specialty retail and other commercial and community activities.

Discussions during the panel hearing raised may different interpretations of what a Main
Street was, how it would appear, be configured, be activated and what role it should play in
access to and circulation through the precinct. Submissions from Dr Larcombe, Ms Dally
and Ms Lansdowne highlighted the apparent confusion over the role, function,
configuration and design of Main Street and indicated that it was not consistent with the
plans in the Draft BSP. Their submission reiterated concern over the impact of the Main
Street traffic on John Street and queried whether six storey development either side of Main
Street would facilitate the establishment of a quality public space with adequate sunlight
access.

The Draft BSP (Map 3.4 Precinct 3B) indicates the route for a new east-west access way
through the middle of the precinct slightly to the south of Sumner Street. It illustrates this
link as comprising, somewhat confusingly, of a ‘pedestrian priority street’ between Nicholson
Street and Rickard Street, ‘a pedestrian link’ from Nicholson Street to Gamble Street and a
‘potential new street’ from Gamble Street to John Street. In the draft structure plan,
pedestrian emphasis is focused towards Nicholson Street and vehicular access focused
towards John Street.

The concept plan illustrates an east-west Main Street link, adjacent to Sumner Street with
vehicular access focused towards Nicholson Street and pedestrian priority rising towards
John Street. The role of Main Street as a vehicular access component has varied through the
process. The original planning report indicated that the road would operate as a two way
road between Nicholson Street and Rickard Street and then revert to a one way (west
bound) traffic route through to John Street. Subsequent iterations of the concept plan and
expert evidence supported a concept of a two way link from Nicholson through to John
Street.

The design and configuration of the Main Street, irrespective of its traffic access capabilities
was described by Mr McGauran as ‘a very low speed shared zone that ensures that rat running is
not encouraged’.

The traffic aspects of Main Street are discussed elsewhere in this report. In regards to the
urban design of the street the Panel considers that it is of paramount importance to create an
attractive east-west link that will encourage and facilitate pedestrian and bicycle movement
through the precinct and create attractive and inviting urban spaces within the precinct. The
Panel agrees that priority should be given to non-vehicular traffic in the Main Street west of
Rickard Street. The Panel agrees with Mr McGauran that some vehicular traffic travelling
through Main Street will improve safety and surveillance. The Panel however considers it
very important that the vehicular traffic role be subservient to the pedestrian and bicycle


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roles and that Main Street, from the West should not be seen as a significant vehicular access
point to the precinct and its commercial car parking areas.

To enable Main Street to fulfil these roles adequate sunlight access to Main Street is vital.
This can be achieved through appropriate setbacks of upper levels of adjoining development
on the north side of Main Street. It is considered appropriate for the Development Plan to
provide specific direction on the width of the Main Street link and the configuration of space
within the link for pedestrians, bicycles movement, public seating and community activities.
The concept plan identifies the need for active frontages along Main Street and John Street.

Whilst the ground floor activities along Main Street will be required to provide active,
accessible glazed retail / business frontages, the situation in John Street will require a
different approach. It will desirably comprise primarily residential frontages and some
small office / studio activities. As business zones are proposed for the frontages to John
Street and such zones have a predisposition against residential at ground level, the DPO will
need to establish the desirability of residential frontages at ground floor to John Street.


4.3        Streetscape Design
Specific issues regarding the streetscape design of specific streets in the precinct and the
immediate area were raised during the Panel process. The role of the streets from a traffic
and access perspective is dealt with elsewhere in this report.

From a streetscape design perspective the Panel considers that John Street should be
designed to provide access primarily for residential traffic, bicycles and pedestrians. The
Panel agrees with Mr McGauran’s evidence that with the removal of industry the
opportunity exists to invest the street with high quality amenity for cyclists and pedestrians,
avenue planting and water sensitive urban design road treatments. Whilst John Street may
have the capacity to accommodate additional vehicles it is not necessarily appropriate for
additional non residential traffic to be directed to the street, given the objectives to improve
the environment for residents, pedestrians and cyclists.

Rickard Street should be designed to enhance pedestrian amenity and provide for limited
vehicular access to Main Street.

Gamble Street should provide pedestrian and cycle access to Main Street but the Panel
agrees with Mr McGauran that Gamble Street should not form part of the broader vehicular
network. This should be clearly articulated in DPO11.

DPO11 (as revised after Council consideration of submissions) requires ‘A landscape
masterplan including proposed landscaping themes, lighting, street furniture and streetscape
improvements in and around the precinct.’ ….reflecting the roles and functions allocated to each of
the streets and spaces established in the concept plan.’ Submissions from Dr Larcombe, Ms Dally
and Ms Lansdowne questioned who would be responsible for the funding and maintenance
of the public realm within the precinct. If Amendment C92 proceeds, residents sought a
provision for contributions from developers to cover the cost of establishing and


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maintaining landscaping and street upgrades throughout the precinct and its bordering
streets (Albert, John, Glenlyon and Nicholson).

The Panel agrees that funding is an important issue and the responsibility for the cost of the
types of streetscape improvements to adjoining streets foreshadowed in Mr McGauran’s
evidence should be identified within the Development Plan. DPO11 only refers to
contributions towards community facilities (as an element of the Community Facilities
Audit) but does not address development contributions for other improvements in the
locality such as streetscape improvements (See discussion in Chapter 6.5).


4.4        Public Open Space
Ms Susan Rouse in her written submission to the Panel raised the need for the provision of
additional open space within the precinct. If Amendment C92 proceeds, residents sought a
requirement for existing open space in the area to be supplemented by new open spaces in
the precinct.

The Panel agrees with Mr McGauran that the area is well served by parklands and that the
most appropriate form of public space within the precinct would be in the form of urban
spaces and community activity areas, particularly areas located along and adjacent to the
Main Street link. The provision of an attractive, inviting and publicly accessible Main Street
link with safe urban meeting and gathering places is appropriate to compliment the nearby
public open spaces at Fleming Park, Balfe Park and the Merri Creek corridor.

The description of the precinct and its key features documented in background reports and
the brochure highlight the provision of ‘new community and public spaces’ or a ‘town square’
or, in Mr McGauran’s evidence a ‘centralised public amenity space’. The exhibited DPO11
required ‘Details on the provision of public open space within the precinct designed for intensive use
in an urban setting in accordance with the objectives of the Moreland Open Space Strategy.’

Revisions to DPO11 during the hearing added a new requirement for ‘public spaces that
deliver an inviting central town square or significant public space emphasising pedestrian and
recreational use and creating a focal point from Nicholson Street’ goes some way to addressing the
issue but the latest iteration of the concept plan does not identify any public space or focal
points. Whilst the Main Street is described by Mr McGauran as ‘inclusive of sunlit and
landscaped public pedestrian areas and community spaces’, the concept plan simply shows Main
Street as a continuous link. Further, the Panel questions the identification of ‘Centre of the
Urban Village/Neighbourhood Activity Centre’ on that plan at the Nicholson Street frontage (see
Figure 3). The intended meaning and purpose of this symbol should be clarified and
possibly revised.

The Panel considers that the concept plan in DPO11 should illustrate appropriately
proportioned areas with adequate sunlight access (created through the set back of adjacent
buildings) to act as a pedestrian focal points along the Main Street link. DPO11 should also
indicate other pedestrian focal points should be incorporated elsewhere in the precinct.



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4.5        Impacts of Built Form on Residential Amenity
As Mr Robertson stated in his evidence ‘The plans are conceptual and do not allow detailed
consideration of amenity impacts such as overlooking and overshadowing. This is normally reviewed
at planning permit stage when detailed plans and building forms are known.’

In regard to specific overshadowing issues Mr McGuaran noted that existing interfaces with
residential properties include relatively high walls on the boundary (often equivalent to
approximately 3 storeys) and suggested that the Development Plan should ensure that that
existing access to sunlight to private open space and habitable rooms at the equinox should
be maintained. In this regard he stated ‘I am comfortable that the Planning scheme is sufficiently
robust in its scope to deal with these amenity issues fairly’.

As the land is to be rezoned to a business zone, the level of protection to existing properties
from overshadowing and overlooking by development within the site is not explicitly
addressed in the planning framework for buildings of less than four storeys, beyond a
decision guideline in the B1Z and B2Z requiring consideration of ‘The interface with adjoining
zones, especially the relationship with residential areas.’ As Council highlighted, the Clause 22.11
policy would apply to buildings of four or more storeys. This policy adopts a comparable
requirements to address overlooking as would apply under ResCode but the
overshadowing standard is reduced in business zones (i.e. 50% rather than 75% of adjacent
residential private outdoor spaces and habitable room windows should receive a minimum
of 5 hours direct sunlight between 9am and 3pm at the equinox).

The revised DPO11 indicates development should include building techniques to avoid
unreasonable additional overshadowing of existing secluded private open space of adjacent
residential development or unreasonable views into existing secluded private open spaces
and habitable room windows. Further, the Indicative Concept Plan (version 4) identifies
locations for ‘Interface treatments’ but does not provide guidance on the nature of the
treatment of these areas.

The Panel recognises the Site’s history of industrial use and development and this is not a
‘pristine’ residential area. Further, the form of existing development on the Site with high
boundary walls means that adjoining properties are already subject to overshadowing.
Nevertheless, The Panel considers a conservative approach should be adopted to the
protection of existing residential properties in view of the removal of third party rights that
would otherwise apply to land in either an industrial or business zone at an interface with a
residential zone and the consequential reduction in affected residents’ capacity to influence
design responses to minimise amenity impacts on their properties.




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4.6        Panel Recommendations
       Revise DPO11 and reflect revisions in the concept plan to:
          Include the desirability of establishing residential uses along John Street in the
           urban design principles;
          Provide for development of 4-6 storeys adjacent to Nicholson Street;
          Ensure the design of ‘Main Street’ and other recreation focal spaces in the public
           realm elsewhere in the precinct have appropriate access to sunlight.
          Specifically address interface treatments, including requiring development at an
           interface with a residential zone to:
               Either provide for the maintenance of existing access to sunlight to private
                open space and habitable rooms at the equinox or satisfy Clause 55
                overshadowing standards.
               Satisfy the Clause 22.11 overlooking standard
               Ensure appropriate design responses to:
                    incorporate existing industrial building fabric on boundaries at
                     residential interfaces and
                    ensure upper levels of new elements of buildings in the interface areas
                     will be largely concealed or recessive in appearance to minimise the
                     visual mass and bulk when viewed from adjoining residential properties
                     and streets.
       The concept plan in DPO11 should be revised to indicate, either through
       annotations on the plan or the description in the plan legend:
          Appropriately proportioned areas with adequate sunlight access (created
           through the set back of adjacent buildings) to act as a pedestrian focal points
           along the Main Street link.
          The nature of connections to the local road network to show:
               Vehicular access to John Street from the Precinct being limited to cars from
                residential properties;
               Only pedestrian and bicycle access via Gamble Street.
           Streetscape improvements along the streets adjoining the Site, including along
            the length of John Street.




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5.         Transport and Traffic Management

Movement networks and the management of car traffic in local street networks in particular,
are invariably key issues in major redevelopment proposals where large numbers of trips
are generated. Therefore the Panel was most surprised at the passive role adopted by
Council in relation to the implications of the Amendment for the local road network.
Despite the Panel’s expectation at the directions hearing that Council would want to
participate in consultations between experts and agencies on traffic matters, Council’s
strategic planner opted to act as an observer only and Council’s traffic engineers did not
participate in the Panel process. Further, in response to questions from the Panel during the
hearing relating to traffic volumes on the local street network, Council responded that
comments on proposed traffic levels were premature and would be considered during
evaluation of the proposed Integrated Transport Plan (ITP) when more specific development
plans are in place. This has limited the advice available to the Panel on the implications of
the Amendment on the local road network.


5.1        Nicholson Street Public Transport Infrastructure
Residents emphasised that services on the No 96 tram are already crowded and none of the
traffic studies has assessed service levels on the public transport routes. Dr Larcombe, Ms
Dally and Ms Lansdowne highlighted that Mr Turnbull’s evidence anticipates that trams on
Nicholson Street are likely to be slowed due to redevelopment of the Site, even without
considering the other development planned in the locality. They submitted that the
inconvenience to residents and bike path users due to the removal of tram stops and a
signalised pedestrian crossing to compensate for slowed tram times would be
unsatisfactory. They advocated community consultation and analysis of the impacts on
existing use of these facilities before the adoption of these types of changes.

Neither VicRoads nor DoT objected to the Amendment subject to: satisfactory agreement
with VicRoads, DoT, Council and the developer’s representatives over Nicholson Street
access arrangements; tram improvement works including an accessible tram stop in the
vicinity of the NAC; and consideration of interchange between tram and bus routes.
VicRoads noted that the proposed signalised intersection of Nicholson/ Sumner/‘Main’
Streets will require further review, particularly with respect to facilitation of tram
improvement works, minimisation of tram/traffic impacts, and efficient operation of the
Nicholson Street route.

Mr Turnbull’s evidence reported modelling which showed tram travel times are likely to
increase due to traffic generated by the development increasing congestion at existing
nearby intersections, the additional signalised intersection on Nicholson Street, and
increased dwell time associated with increased tram patronage. However, tram stop
rationalisation would mitigate the impact of the proposed development, resulting in a
significant reduction in tram travel times between Glenlyon Road and Blyth Street for
northbound trams and southbound trams during the AM peak compared to existing
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conditions but an increased travel time for southbound trams in the PM peak hour. Mr
Turnbull supported the installation of a Disability Discrimination Act 1992 (DDA) compliant
accessible tram stop adjacent to the Site to offset the tram travel time impacts and to
accommodate the additional tram passengers. He noted that buildings may need to be set
back to allow any necessary widening (See Table 1).
Table 1:Tram Travel Time Blyth Street - Glenlyon Road
           (Source Turnbull evidence tables 11 – 14)

                     Direction                              Tram Travel Time (Seconds)
                                                 AM Peak Hour                    PM Peak Hour
          Existing Conditions Model
               Southbound Direction                   145                                143

               Northbound Direction                   122                                119
          Proposed Conditions Model (with New Signalised Intersection/without Tram Stop Optimisation)
               Southbound Direction                   149                                182
               Northbound Direction                   131                                185
          Proposed Conditions (with Tram Stop Optimisation)
               Southbound Direction                   122                                162
               Northbound Direction                    64                                63


The Panel directed that a statement of agreed and disputed matters in relation to traffic
matters. This resulted in agreement between the experts engaged by the Proponent and
DoT/VicRoads that the following changes to DPO11 under ‘Access and Transport’ (as the 1st
dot point) would address DoT/VicRoads concerns:
        • a site layout plan showing convenient and safe access to and from Nicholson Street
          generally opposite Sumner Street, which includes development set back 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
          which must include:
           · a traffic signalised intersection; and
           · a fully accessible (DDA compliant) tram stop.

These changes were endorsed by the agencies.


5.1.1      Discussion

Redevelopment in Brunswick East, including redevelopment of the Site, will increase the use
of existing public transport infrastructure and this outcome is consistent with urban
consolidation policy to promote more intensive development that capitalises on locations
with good access to public transport. However, the Panel also recognises that the No 96
tram is already heavily used and continual erosion of the level of service to public transport


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users is likely to undermine planning strategies. Ongoing investment in public transport
will be required but is beyond the scope of this Amendment process.

The Panel accepts that, despite the BSP showing a transport interchange to the south near
the intersection of Nicholson Street and Glenlyon Road, an accessible tram stop adjacent to
the Site would:
     be consistent with VicRoads and the DoT tram stop optimisation strategy;
     mitigate delays that would otherwise result from redevelopment of the Site; and
     provide convenient access to the proposed NAC, more comfortable waiting areas, and
      better access for those with impaired mobility.

The Panel acknowledges that the distance some existing residents and those changing
between bus and tram modes will need to walk to a stop will increase but the Panel defers to
the views of the traffic experts and DoT that the measures foreshadowed strike an
appropriate balance between walking distances to stops and tram travel times.

The Panel considers the 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 DDS compliant tram stop in a way that is acceptable to
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.


5.1.2      Panel Recommendation

        Revise DPO11 requirements for the Integrated Transport Plan to include, to the
        satisfaction of the Director of Public Transport and VicRoads:
         A signalised intersection and a fully accessible (DDA compliant) tram stop in
          Nicholson Street generally opposite Sumner Street; and
         Development set back from Nicholson Street (if required) to facilitate these
          treatments.


5.2        Anticipated Traffic Generation
Objecting submitters raised fundamental concerns about the volume of car traffic generated
by the ‘car focussed’ development foreshadowed for the precinct. They questioned whether
this is consistent with either planning policy or representations made to residents that the
redevelopment would serve local residents’ needs. Further, while there was a consensus
view that Nicholson Street should provide the major access route to the Precinct and only
pedestrian/cyclist traffic should use Gamble Street, the distribution of traffic to John and
Albert Streets was contentious.

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The Proponent’s traffic assessment estimated that the development of the Precinct would
generate 9580 vpd14 (see Table 2 below) and Mr Turnbull’s review was in general agreement
with this assessment.
Table 2 Summary Traffic Generation – Neighbourhood Activity Centre

                                   Use                                Daily (In & Out)

                       Residential (750 apartments)                        3000
                            Office (7,000sq.m)                              630
                         Supermarket (3,800sq.m)                           4,250
                            Retail (3,000sq.m)                             1700
                                  Total                                    9580


Dr Larcombe, Ms Dally and Ms Lansdowne queried the rigor of this assessment and
disputed the traffic generation estimates, arguing that the full cumulative impact of traffic
generated by other development in the locality was not taken into account (eg the Sires site,
the Cross/Gamble precinct, the Fleming Park Community Hub). For example, it was noted
that GTA estimates an additional 200 vpd on John Street and 500 vpd on Albert Street as a
result of current proposals for the Sires site, whereas Traffix figures suggest an additional
1,000vpd needs to be added to John Street and perhaps the same to Albert Street. Mr
Griffiths conceded under cross examination that:
          volumes may be a ‘few % higher’ as the purported updating of traffic volumes in
           October 2009 did not appear to have been reflected in the data presented;
          the interpretation of traffic volumes in John Street in 2006 had not recognised that the
           Tontine use had ceased; and
          the assessment had assumed that access to development on the Sires site would be
           from both Albert and John Street but current plans show access from John Street only.


5.2.1          Discussion

Although the Amendment does not result in an endorsement of a particular development, it
is necessary to consider at a strategic level the road network’s capacity to accommodate the
significant traffic generated by the uses and intensive form of development facilitated by
Amendment C92. Further, as the proposed DPO would remove third party rights to
participate in subsequent planning processes, more specific consideration of the traffic
implications of the potential forms of development, particularly on local streets, is also
warranted.




14
         Assuming 750 apartments, Office 7,000m2, Retail (supermarket) 3,800 m2, Retail (specialty/strip shopping)
         3,000 m2

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The Estimates

The Panel is reassured by the close correlation in the estimates of traffic generation
associated with the plans currently envisaged by the Proponent by the traffic experts using
different methodologies.

However, the anticipated traffic generation from other redevelopment in the locality is also
significant. The number of amendments and development proposals in the immediate area
is indicative of the conspicuous opportunities in the locality for redevelopment at higher
densities (see Chapter 1.1). The Panel agrees with submitters that the cumulative effect of
potential redevelopment has not been fully considered in the estimates presented in expert
evidence. While Mr Griffith’s evidence (table 2.3) noted a number of amendments and
applications in the area, the subsequent analysis only took account of the redevelopment of
three adjoining properties in Albert Street. Plans for the Sires Site were provided at the
hearing and indicate that all access to the parking for this proposal would be from John
Street whereas Mr Griffiths assumed access from both Albert and John Streets. The Panel
notes that:
     Mr Griffiths’ analysis assumed additional development would result in an additional
      200vpd using John Street and an additional 500 vpd using Albert Street (see table 3
      below) whereas the Panel was advised that the documentation in support of the
      current Sires application indicated the Traffix Group anticipate an additional 1254 vpd
      on John Street and these vehicles would then filter onto the arterial network via Albert
      Streets and Glenlyon Road; and
     redevelopment of Gale/Cross Precinct and the proposed Flemming Park ‘community
      hub’ may well have traffic implications for the local network, particularly Albert Street.

While the traffic generation from redevelopment in the locality is uncertain, it appears that
the analysis presented in support of Amendment C92 may well understate traffic volumes in
John and Albert Streets. This is particularly important as the environmental capacity of
individual roads in the network is approached (See discussion in Chapter 5.3).

Some increase in congestion is probably inevitable but there is merit in the submissions that
further evaluation of the traffic generation implications of more intensity of development in
the wider area is warranted. The Panel recognises that the proposed DPO11 sets out
information to be included in an Integrated Transport Plan and this broader analysis could
occur as part of that plan. This would be an acceptable approach where either there was a
high level of confidence that the environmental capacity of the road network could
accommodate the traffic generated or if specific parameters are in place to ensure effective
traffic management responses. The Panel considers these pre-conditions in Chapter 5.2.2.

The Major Traffic Generator – the Supermarket

The traffic evidence indicates that the main contributor to the projected car traffic generated
by redevelopment area is the proposed retail component and in particular the supermarket
(which contributes approximately 40-50% of the car traffic). Those working in offices are
also less likely to travel by public transport but are expected to contribute less than 10% of

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the car trips generated by the Precinct. As discussed in Chapter 3.3, the development of an
activity centre that includes a full line supermarket will benefit the community by enhancing
the retail choices available. While the Panel accepts that this form of retailing generates
significant traffic, the management and distribution of that and (other traffic) needs to be
considered.


5.3        Distribution of Traffic Generated by Development of the Site
The existing local road network comprises:
     Nicholson Street - a north-south arterial road and tram route.
     Glenlyon Road - a local road which functions as a major east-west traffic and bus route
      through to the west with a local access function to the east.
     Albert Street is a narrow local street (12 metre reservation with a 7 metre wide road
      pavement) with a number of speed humps along its length to reduce traffic speeds and
      to discourage through traffic. Parallel parking regularly occurs on both sides of the
      street leaving only a single lane for traffic.
     John Street is a minor local street with a relatively wide road reservation and
      pavement (15 metre reservation with a 9 metre wide road pavement) and speed humps
      in the southern residential part of the street. It limited connectivity in the road network
      for vehicles but forms part of a continuous north-south link for cyclists.
     Rickard Street, Gamble Street and Elm Grove are narrow ‘dead-end’ streets within or
      running into the Site.
     Nicholson, Albert and John Streets are designated as informal bicycle routes.

There was a high degree of consensus on the following matters:
     Nicholson Street should provide the primary access the Site;
     no additional vehicle traffic from the redevelopment should use Gamble Street,
      although residents noted that plans presented could make this intention clearer; and
     the Proponent did not challenge VicRoads view that the unsignalised access to
      Nicholson Street opposite Peers Street should be restricted to left-in/left-out
      movements.

The Concept Plan, the traffic distribution diagram from Mr Griffiths' evidence (see Figures 2,
3 and 4) and Table 3 illustrate the distribution of traffic anticipated by the Proponent.




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Figure 4 Site Generated Traffic at Completion (Source Griffiths evidence report)
Table 3 Anticipated Post Development Traffic Distribution

 Location         Existing         Other        Site        Total Traffic    Indicative Maximum
                  (vpd) [1]     Additional     Traffic(          @           vpd (Clause 56)
                                 (vpd) [2]      vpd)        Completion
 New Main            0              0           4,980          4,980         Connector street east of
 Street                                                                      the car park entry then
                                                                             access street further west
                                                                             to John Street
 John               500            200         +2,000         ~2,700
 Street                                                                      3000 vpd (Access Street
 Albert            1,000           500         +1,400         ~2,900         Level 2)
 Street
 Rickard           <300             0           +700          ~1,000
 Street                                                                     1,000 vpd (Access Place)
 Gamble            <300             0             0            ~300
 Street
 Elm Grove         <250             0           +700           ~950
[1] Based on October 2006 counts by GTA Consultants (validated in May 2009) assuming peak to daily ratio of 10%.
[2] Traffic generated by the Sires Site and 32 & 40 Albert Street, Brunswick.


Both experts agreed that the use of access points would be largely a function of their relative
convenience, with most traffic finding the main Nicholson Street access point most
convenient to the primary retail attractor and centralised car park. Secondary access points
are expected to largely serve traffic arriving from an easterly direction (approximately 20%




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of traffic15) or uses in the immediate vicinity of those internal access routes. However, there
was a significant discrepancy in the traffic evidence about:
          the proportion of traffic that would/should obtain access via Nicholson Street.
           Whereas Mr Griffith’s evidence showed a total 57.2% (5,480 vpd) of the traffic
           generated using this new signalised intersection and the northern access points to
           Nicholson Street, Mr Turnbull expects the car trips via the proposed traffic signals to be
           approximately 75% of the total daily car trips (7,392 of 9,856 vpd); and
          the capacity of secondary access routes. Mr Griffiths considered that each of these
           roads satisfies the Clause 56 standards relevant to the function and traffic volumes
           envisaged. On the other hand, Mr Turnbull did ‘not believe that it would be appropriate for
           significantly more than 25% of the total daily car trips (approximately 2,464 vehicle trips per
           day) to occur via the secondary access points given that they all result in travel along local
           streets that have either limited capacity due to their narrow width or would result in
           significantly reduced amenity for existing residents in the case of John Street.’

The Proponent also suggested that the relatively recent change in the function of John and
Albert Streets, from streets servicing a mix of residential and industrial traffic to primarily
providing access for residential traffic, should be taken into account.

Residents emphasised the contradictory information about access to the precinct and that
this uncertainty about ultimate access arrangements undermines confidence that resident
interests will be protected in subsequent processes. They highlighted the uncertainty about
intended access arrangements being contemplated, citing the following references to
Precinct access:
          the BSP identifies a ‘potential’ E-W road from John Street connecting to an N-S road
           between Gamble Street and Elm Grove, but only a pedestrian link through to
           Nicholson (Map 3.4, vol 2 part 3);
          the Amendment Explanatory Report refers to a ‘new public urban open space including an
           additional pedestrian connection between Nicholson Street and John Street and central town
           square’;
          the GTA Traffic Assessment (May 2009) report says ‘two-way road for the first 60m
           (approx) to its intersection with the Rickard Street extension and then revert to one-way
           (westbound) to John Street (p22);
          Mr Griffith’s evidence (November 2009) provided for two John Street access points;
           and
          Mr McGauran’s expert evidence (November 2009) suggested that the Main Street
           would be two-way for the full length with two vehicle access points to the precinct
           from John Street.

Dr Larcombe, Ms Dally and Ms Lansdowne questioned Mr Griffith’s rationale for
classification of streets under Clause 56 and whether road classifications were simply
‘upgraded’ according to projected traffic volumes rather than being determined according to


15
         Griffiths evidence Figure 6.1.

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planned functions. For example, projected volumes in Albert and John Streets only satisfy
clause 56.06-8 standards after ‘upgrading’ to ‘Access Street Level 2’ (2000vpd to 3000vpd).
Further, a more comprehensive assessment of the likely additional traffic generated from
other development in the immediate area that would use these streets could then be used
to upgrade the function further to ‘Connector Street – Level 1’ (3000vpd) or Collector Street –
Level 2 (3,000-7,000vpd). It was submitted that this approach is contrary to Council’s Urban
Villages policy which stipulates that planning for urban villages should not expect local
roads to carry more than 1,500 vpd (1997 adopted ‘Urban Villages Report’, p18).

If Amendment C92 proceeds, residents argued that specific provisions should be
incorporated to ensure that the street layouts are as provided in the Brunswick Structure
Plan, including the pedestrian only nature of the E-W connection between Gamble and
Nicholson.


5.3.1      Discussion

The Panel is sympathetic to submitters concern that the material provided and the planning
framework proposed have not established a clear basis for consultation or any certainty
about traffic impacts on local streets. If Amendment C92 is to proceed with a DPO that
removes third party rights, it is not sufficient to simply set out information that must be
included in an Integrated Transport Plan. Rather, the planning framework should clearly
establish effective responses to key issues with off-site impacts, such as traffic impacts on
local streets, and if those requirements are not satisfied then the usual third party rights
should apply.

The subsequent discussion considers traffic management implications of redevelopment
proposals being contemplated with a particular focus on the impacts on local streets.
However, before considering impacts on local streets measures to maximise the use of the
arterial road network are addressed.

The Panel does not agree with the Proponent that the Draft BSP provided a strategic basis
for the Amendment in terms of the traffic management measures put forward in support of
Amendment C92. The Draft BSP has a strong focus on integrating the movement network
and making pedestrian, cycling and public transport options more attractive. However, it
does not address car movements in terms of the ‘traditional’ road hierarchy and the Panel
has assumed that the established road hierarchy remains. The Draft BSP envisages a very
different access strategy for the Site than put forward in the proponent’s concept plans. In
particular, the Draft BSP does not appear to anticipate a significant role for Nicholson Street
in providing for vehicle access to the Precinct and suggests that Gamble Street, Elm Grove
and John Street should provide the primary vehicle access via new street connections.

Nicholson Street Access

The Panel sees merit in maximising direct access from the arterial road system and endorse
the consensus view that the primary access point to the Site should be the new signalised
Nicholson Street intersection. There also appears to be merit in planning for greater use of
the northern access point from Nicholson Street than foreshadowed in the current concept
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plans, albeit with the left in/left out restriction sought by VicRoads. While the Proponent
does not have control of this access point and, understandably would prefer to
accommodate the necessary access points on land they own, it is a function of development
planning to optimise access arrangements where land is in multiple ownerships.

If the northern access point is not available when the B1Z is developed, an interim
arrangement with greater reliance on the primary signalised access point or via Rickards
Street to Glenlyon Road would be preferable to dispersing significant amounts of activity
centre traffic via Albert and John Street.

Albert Street

The Draft BSP identifies Albert Street as part of the strategic Albert and Victoria Axis where
much of the urban renewal will occur. In the vicinity of the Site it is identified as a ‘catalyst
street’ which is intended to provide a high amenity east-west pedestrian link where
streetscape improvements will integrate urban renewal and other underutilised community
infrastructure such as parks and train stations.

Albert Street is a narrow street with limited capacity that is likely to be subject to increasing
traffic volumes as redevelopment occurs. As Mr Turnbull noted ‘Parallel parking regularly
occurs on both sides of the street leaving only a single lane for two-way traffic’.

Mr Griffith’s analysis indicated that 1,900 additional vpd would use Albert Street post
development (1,400vpd from the Site) resulting in a total of 2,00vpd against an indicative
maximum traffic volume of 3,000vpd for an Access Street level 2. It was his evidence that
‘following ultimate development of the Site, daily traffic volumes on the surrounding street network
will be consistent with the planning scheme classifications. This is conservative in that it also
considers the effect of adjacent developments such as the Sires Site and along Albert Street.’ The
Panel does not agree for the following reasons:
          as discussed in Chapter 5.2.1, the Panel is not convinced that the estimates are
           conservative as significant further redevelopment is envisaged along this axis; and
          it was assumed that upgrading of the street function to match the volumes anticipated
           is automatically appropriate. The Panel notes that the Albert Street is the road
           pavement is at the minimum specified in Clause 56.06 if its classification is upgraded to
           an Access Street level 216, and does not satisfy the standard for a Collector street level
           117 (3,000vpd).

We recognise that in established areas planning scheme provisions relating to road
standards need to be applied with some flexibility, having regard to the overall planning
objectives for the locality. However, the Panel is not convinced that the strategic planning


16
         A street providing local residential access where traffic is subservient, speed and volume are low and
         pedestrian and bicycle movements are facilitated.
17
         A street that carries higher volumes of traffic. It connects access places and access streets through and
         between neighbourhoods.

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role of this street is compatible with it accepting significant additional traffic from the
proposed activity centre (either directly or as a route from John Street) when Nicholson
Street and Glenlyon Roads offer better alternatives.

John Street

John Street is wider than Albert Street but planning does not identify it as other than a local
street and suggests a level of priority to preserve it appeal as part of the north-south bicycle
link.

The various iterations of the concept plan provide John Street as an access route connecting
to the Main Street (minor access point) and to the central car park. The Panel agrees with Mr
McGuaran that cars should not be completely excluded from the proposed Main Street but
street design should significantly reduce its appeal as either an east-west route for through
traffic, or as a route for west bound traffic from the centralised car park. This involves only
a limited vehicular access function for John Street.

Mr Griffiths' evidence indicated that the vehicle link between Nicholson and John Streets is
necessary to provide a ‘better level of connectivity and avoids large unsightly turning areas
associated with dead end streets.’ The Panel expects that the central car park would function as
a ‘turning area’ and access via John Street is not necessary to minimise the space used for
that purpose. With regard to connectivity, in this instance the Panel sees permeability and
connectivity as more important in terms of pedestrian and cyclist movement than to
disperse westbound cars through the local street network. As noted above, the Panel
considers direct car access to the arterial system should be preferred to reliance on local
streets. Only limited traffic from the Site should be provided from the car park to John
Street. For example, provision could be made for resident parking to gain access from the
car park via John Street, which could be achieved through restrictions at car park access
points.

Gamble Street

The concept plans presented and traffic evidence were on the basis that only pedestrian and
cyclist access would be provided between the activity centre and Gamble Street. This was
not contentious and the Panel endorses the option.

Overall Conclusion on Traffic Distribution

The material presented clearly establishes that Amendment C92 could have significant
implications for the local street network, notably in Albert and John Streets, with
unacceptable impacts on residential amenity and the planned priority to be accorded to the
movement network for cyclists and pedestrians in these streets. The Panel sees this as the
most significant potential offsite impact from that redevelopment proposals being
contemplated and the planning framework proposed in the exhibited Amendment C92
provides little assurance to residents that their interests would be protected. The Panel
considers that Amendment C92 should only proceed with a DPO applied to the Site if the


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schedule to the overlay clearly establishes the limits on traffic from the activity centre that
would disperse through the local street network.

In view of the limited information provided during the exhibition process, the absence of
advice from Council regarding traffic implications for the local street network and the
significant departures envisaged by the Draft BSP adopted by Council, the Panel seriously
considered providing an interim report with a final report submitted after the preparation of
specific traffic management provisions for inclusion in the schedule to DPO11, consultation
with the residents and consideration by Council.

However, in the end, the Panel was satisfied that it is in a position to recommend
development plan requirements to ensure effective traffic management responses are
achieved and that elongating the process through an interim report is unlikely to be
productive.

The Panel considers that specific requirements should apply to the Integrated Traffic
Management Plan required under DPO11 as set out in the recommendation below.


5.3.2      Panel Recommendation

        Revise Development Plan Overlay Schedule 11 to specify that the Integrated
        Transport Plan must demonstrate that:
               Approximately 80% of vehicle traffic will gain access to and from the activity
                centre via Nicholson Street and Glenlyon Road;
               The primary access point to the Neighbourhood Activity Centre to be via a
                signalised intersection in Nicholson Street opposite Sumner Street;
               Access via Nicholson Street from the northern unsignalised point should be
                left-in/left out only;
               No vehicle access to or from the activity centre will be provided via Gamble
                Street;
               The vehicular traffic role in the Main Street west of Rickard Street will be
                subservient to the pedestrian and bicycle roles;
               Vehicular access to John Street from the Precinct central car park will be
                limited to cars from residential properties.


5.4        Parking
On-street car parking is generally provided on both sides of roads in the vicinity of the Site
but clearways apply on Nicholson Street during the peak periods. Whilst not surveyed, Mr
Griffiths observed relatively high on-street car parking demands on Glenlyon Road, Albert
Road and John Street, whilst car parking demands on Nicholson Street were moderate
throughout the day.

Dr Larcombe, Ms Dally and Ms Lansdowne queried whether on-street resident parking in
John and Albert Streets will be permitted into the future or will it have to ‘give way’ to

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ensure that the traffic volumes can move through these streets efficiently? They noted that
the indicative treatments in the GTA Report (Dec 2009) show that some on-street parking on
John Street will be lost to accommodate the formal bike lanes as well as two-way traffic. If
the Amendment proceeds, Dr Larcombe, Ms Dally and Ms Lansdowne sought:
          a limit on the number of new dwellings to ensure that on-site car parking can be
           provided for all residents and visitors;
          retention of the current resident permit parking in John Street and extension to Albert
           Street, with an assurance that new residents are not eligible for on-street parking
           permits; and
          provision of on-site car parking that complies with levels recommended in the
           Moreland Planning Scheme.

The GTA Traffic Assessment recommended an approach whereby minimum practical
parking provision rates are adopted. This approach could be seen as consistent with ‘assess
and reduce demand18’ recommended by the Advisory Committee that reviewed parking
provisions but, as Mr Turnbull noted, the rates recommended are less than both the rates
currently in Clause 52.06 and the rates recommended by that Advisory Committee.

The proposed DPO11 makes no direct mention of car parking but the MSS and Clause 52.06
will apply in subsequent development planning and permit processes. Clause 21.05-3
indicates that car parking for retail uses should be provided in a strategic and coordinated
manner and Clause 21.05-10 promotes integrated transport planning which, amongst other
things, aims to reduce reliance on car travel and provides for reduced car parking
requirements where access to public transport is within easy walking distance.

The Panel does not support the application of the current Clause 52.06 rates of car parking
provision as these are widely recognised as resulting in levels of parking provision well in
excess of the actual requirements, particularly for an inner city location with good access to
public transport. The Panel does see a need for the provision and management of parking to
be specifically addressed as part of an integrated approach to traffic management, rather
than simply relying on the more generic rates of parking provision currently specified in the
planning scheme provisions.

While the Panel expects that the rates of car parking provision nominated by the Advisory
Committee should be a starting point for assessment of car parking provision to meet needs,
a range of factors can influence the level of car use and parking requirements. For example
Green Travel Plans can promote alternatives to car trips through measures such as improve
the awareness of non-car transport options, incorporation of flexi-car systems and car-share
spaces, provision of adequate cycle parking, home delivery services from shops, ensuring
long term flexibility through the maintenance of a pool of car spaces for allocation based on
user needs rather than ting all or most spaces to specific titles and the like. Site layout can
also achieve efficiencies by consolidating parking areas for multiple uses taking account of


18
         i.e. the aim to provide the minimum amount of parking needed for developments or activity centres, and
         introduce mechanisms, where possible, to reduce parking demand.

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different activity patterns. A consolidated car park is currently foreshadowed for the
Tontine site but this approach is also likely to be relevant elsewhere in the B2Z.

It is reasonable for the development planning and permit processes to address car parking
provision provided that key parameters are established in the schedule to the DPO. The
Panel recommends the Integrated Transport Plan required under the DPO should
specifically include an element that addresses car parking provision, layout and
management (See the recommendation below)

The Panel endorses the view that overflow parking from the precinct should not
compromise existing residents’ access to on-street parking and the residents’ request to
extend the existing resident parking scheme to Albert Street (and Gamble Street) with
residents of the redeveloped Precinct excluded from the scheme. While it is recognised that
this is a Council responsibility that is not implemented via the planning scheme, the Panel
considers it appropriate to explicitly foreshadow this mechanism as an element of a parking
plan under the Integrated Transport Plan that forms part of the Development Plan.

The Panel does not support nominating an upper limit on the number of new dwellings in
the redevelopment. Firstly, this would be contrary to urban consolidation policy and
secondly, many forms of development could meet planning objectives and the flexibility for
different landuse outcomes is not justified on car parking grounds.


5.4.1       Panel Recommendation

        Include in the Integrated Transport Plan required under DPO11 a new requirement
        for a Precinct Parking Plan which:
           Promotes the use of other modes of transport;
           Provides centralised parking areas to serve the activity centre;
           Locates and designs parking to ensure safety in parking areas while avoiding car
            parking being visually dominant;
           Incorporates measures to preclude visitors, employees and residents from the
            proposed B1Z and B2Z from parking in the adjoining and nearby street.


5.5         The Bicycle Network
Residents emphasised the importance of John and Albert Streets as links between Fleming
Park and the Merri Creek path. They questioned how cyclists will be given priority when
traffic volumes and turning movements will increase. The additional hazard to cyclists from
vehicles loading, rubbish removal and so on from both this Site and the Sires site was also
raised.

The Panel recognises the importance of enhancing bike route in the locality and the
recommended limits on traffic volumes in local streets (see Chapter 5.3) will limit adverse
impacts on these bicycle routes due to redevelopment of the Site. The Panel has also



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endorsed proposals for streetscape works in John and Albert Streets and these works should
be required to recognise the role of the streets as bicycle routes to the satisfaction of Council.


5.5.1      Panel Recommendation

        Revise Development Plan Overlay Schedule 11 to specify that the streetscape
        improvements in Albert and John Street must recognise the role of these streets as
        bicycle routes.




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6.         Other Matters

6.1        Residential Amenity

6.1.1      Residential Amenity and Landuse

Residents raised concerns about the impacts of new uses in the proposed activity centre
adversely impacting on the amenity of existing residential areas in the immediate area.
They sought:
     restriction of operating hours for commercial and retail businesses in the precinct to
      ‘normal’ business hours. Specifically, there should be no 24-hour businesses, and cafes
      and restaurants should be closed by 11pm or midnight;
     limits in the Development Plan on the number and type of licensed premises and that
      site design should ensure that all such premises are entered and exited via Nicholson
      Street (or the new Central Court only); and
     the maintenance of notice and review rights with respect to any applications for retail
      or commercial operation that fall outside the hours of 7am and 10pm and the sale or
      consumption of alcohol in public areas of the precinct.

Council responded that amenity issues, including licensed premises, their hours of
operation and other specific matters relating to future uses will be considered and addressed
through conditions on future planning permits. Access arrangements are required to be
identified through the Integrated Transport Plan as part of the preparation of the DP
including the road hierarchy envisaged relative to proposed use, built form outcomes and
impact on adjoining amenity. Council considered that the operation of uses after 5pm is
integral to the function, safety and success of an urban village/activity centre. The area has
been nominated for the creation of a new urban village and as an area designated for mixed
use development. DPO11 proposes to require an assessment on how the development will
comply with the Activity Centre Design Guidelines which encourage a diverse mix of shops
and services that extend the hours of activity within the centre and widen the use mix to
more than retail alone. However, Council also noted that the Activity Centre Design
Guidelines acknowledge that there may be existing residential uses nearby and suggest that
development with residential uses at ground-floor level are oriented towards these
adjoining residential streets.

Council and the Proponent submitted that revisions to DPO 11 put forward during the
hearing will ensure that use and development is managed to protect residential amenity.
The Proponent noted measures include:
     revisions to DPO11 include ‘retention of residential amenity for properties in John Street by
      locating main entrances to larger retail uses towards the core of the Precinct.’ Further, it is
      unlikely a large business land use (e.g. supermarket) would be permitted to present a
      back of house/sheer wall treatment to John Street;
     the Concept Plan at clause 4.0 of DPO11 directs the retail core away from John Street;
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     built form and layout guidelines would result in visually interesting street edge
      treatments and streetscapes, with appropriate lighting and safety measures; and
     John Street’s existing amenity is sufficiently robust to accommodate commercial land
      use at its interface but, given land value, it is more likely home office type development
      would front John Street.

The Panel recognises that shop use is as of right in the B1Z and that the DPO cannot change
the scope of the discretion provided in the zone. There was some discussion at the hearing
about the application of another zone along John Street, such as the MUZ, to better reflect
the planning intentions for this land. The Panel accepts submissions that this would have
the undesirable outcome of land being in two zones and an alternative of creating a separate
parcel of land for such a zoning is not practical at this stage. Nevertheless, a pragmatic
approach does allow management of development via the overlay to direct activity from
shops and associate car parking away from sensitive residential interfaces.

There is a clearer capacity to manage proposals for restaurants generally and licensed
premises under the DPO as there is capacity to establish discretion for restaurant uses via
the schedule to the B1Z and Clause 52.27 establishes discretion for licensed premises.

The Panel accepts that the documents provided by the Proponent in support of Amendment
C92 do not suggest that retail and car park uses would be directed to the residential
interface areas. The initial iteration of the concept plan (see figure 2) identified land in the
B1Z to the east of John Street for a supermarket and centralised car park and the final
iteration of the concept plan (see figure 3) also nominated this location as the ‘core retail’
area. However, given the implications of the DPO for third party rights, the Panel thinks the
planning framework should clearly indicate that the development design should ensure that
uses that generate high levels of activity are directed to the core of the Site and Nicholson
Street rather than interface areas.

Panel Recommendations

       Specify in the schedule to the B1Z that a permit for restaurant is required where the
       land is subject to DPO 11 and is within 50 metres of a residential zone.

       Include in DPO11 under ‘conditions and requirements for permits’ requirements to
       the following effect:
          Development permits should only provide for residential and office use
           frontages to John Street frontage.
          Permits relating to restaurants within 50 metres of a residential zone and all
           licensed premises to cease operation by 11pm.




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6.2             Existing Business Operations
Mr Dall’ava is a sculptor who is concerned that higher amenity expectations of a large
number of new residents, together with the change in the primary purpose of the zoning of
currently industrial land, would add to the constraints on his activities. Further, he
submitted that he would be subject to higher rates as a result of the rezoning but would not
realise any benefit from the new zone.

Mr Growcott’s evidence indicated that:
          most of the businesses currently operating on the Site do not emit significant noise or
           vibration and their continuing operations would have no adverse effects relating to
           noise and/or vibration;
          the Townley Drop Forge Company (operates weekdays 8:00am to 4:00pm) and the
           Commercial Laundry (operates Monday to Saturday 6:00am to 8:00pm)were the only
           businesses with intermittent noise values higher than the Permissible Limits (for some
           periods) derived from the State Environment Protection Policy No N-1 ‘Control of Noise
           from Commerce, Industry and Trade’ (SEPP N1);
          the design of dwellings at several locations in the Site may need modest conventional
           noise reduction treatments to comply with SEPP N-1 Noise Standards. Alternatively
           treatments could be applied closer to the particular noise sources. Treatments could
           include upgrading of factory building walls, roofs and doors, relocation of equipment,
           noise barrier screening, the installation of silencers to fans, and acoustic enclosures to
           items such as compressors, boilers and pumps;
          adverse impacts on residential development from vibration emissions19 from the drop
           forge could be addressed in the following ways:
               provision of a buffer zone of 50-60 metres from the forge to reduce vibrations to
                suitable levels for residential occupancy. It was noted that the location of a
                multilevel car park and supermarket in the Proponent’s current plans would likely
                provide the suitable buffer separation between the forge and residential uses; and
               conventional treatment methods could be applied closer to the forge to reduce
                vibration ‘at-source’ or vibration along the transfer path to nearby vibration
                sensitive locations. For example, a narrow, deep trench near the forge extending
                below the base of the forge by 5 – 6 metres.
          Many of the existing businesses, such as Mr Dall’ava business, are already proximate to
           residential uses and are obliged to take this into account in the way they operate.




19
         Mr Growcott's evidence indicated that during the forging process, the floor vibration in the Tontine factory
         was observed to be subjectively clearly feelable. Testing showed vibration levels decrease as the distance
         from the forge increases, with vibrations still feelable at 20 metres from the Tontine factory northern wall
         closest to the forge (approximately 30 metres from the forge).

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Mr Growcott noted that current development plans for the Tontine Site would result in
apartments with similar setbacks from noise/vibration emitting uses as recently constructed
residential developments on the corners of Elm Grove and Albert Street.

The Panel notes that the laundry is subject to planning permit conditions intended to
address amenity impacts on residential uses in the MUZ to the north and these conditions
would also influence amenity impacts on development on the Site.

The Panel is satisfied that amenity impacts on residential uses within the Site can be
managed through a combination of the Adverse Amenity Impacts Assessment to be
required under the DPO proposed and appropriate conditions under subsequent permits.

With regard to the continued operation of existing businesses, the Panel understands that
the introduction of a large number of new residents could increase the risk of complaints
and consequential constraints on business operations. However, it is relevant that this is an
area that has always had a mix of uses and many of these businesses already have interfaces
with residential uses. The proposed planning framework specifically addresses the
management of amenity impacts and this should minimise the potential for additional
sources of complaints about existing business operations. The risk of potential additional
complaints about existing business operations is not sufficient to outweigh the benefits of
the redevelopment of a currently underutilised site in a strategic location.

It is established planning law20 that effects on property values (and therefore consequential
effects on rates) are not relevant to the consideration of the planning merits.


6.3        Affordable Housing, Community Facilities and Services
Submissions from residents questioned how delivery of the ‘central town square’, the
creative focal point or ‘arts hub’ foreshadowed in the DPO could be assured. They also
queried whether the development would be required to include necessary community
facilities and services, such as a library, child care facility and other family focused facilities,
meeting rooms, active recreational areas, and passive recreational areas.

Council responded that the level of residential development, and therefore associated
community needs, have not been determined at this point but these concerns are addressed
by the extension of matters to be addressed in the Community Facilities Audit required by
DPO11 to include arts and cultural spaces and general needs within the area including open
space provision relative to community need. Council submitted ‘The DPO is considered to be
the most appropriate tool to provide unambiguous and specific information to guide future
development within the precinct and ensure investigation and appropriate provision of community
facilities as required.’


20
     VCAT has consistently held that land values as a result of a proposed development is not a planning ground
     (for example see Ross v Shire of Rutherglen (1981) APA 101; Ralphsmith v City of Nunawading (1983) 11
     APA 40; Briant v City of Knox (1985) 15 APA 443; Micaleff v City of Keilor (1993) 11 AATR 139, Zerbe v
     City of Doncaster and Templestowe (1984) 12 APA 201.

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The Panel sees the proposed Community Facilities Audit as one of the examples of DPO11
setting out information to be submitted but failing to provide any indication of what level of
performance (in this case facility provision) is expected. It is clearly beyond the scope of this
Panel to attempt to nominate an appropriate level of community facility provision.
However, as Council is both the responsible authority under the planning scheme and the
agency responsible for the delivery of many local services, it is reasonable to leave the
determination of facilities to be provided to Council. Either Council or the Proponent could
refer the matter to VCAT if a dispute arises.

The Panel recognises that there is no assurance that the nominated 10% affordable and
adaptable housing will eventuate but considers the requirement to specifically address the
issue supports state and local planning policy (eg Clauses 16.05, 21.05). It is also noted that
consultation is currently occurring in relation to state wide provisions relating to adaptable
housing and state wide measures and the proposed provisions could be overtaken by the
implementation of more widely applicable requirements.


6.4        Environmental Sustainability and Social Responsibility
The exhibited DPO11 requires applications for planning permits to include a Sustainable
Design Statement (SDS) which must be prepared in accordance with a whole-of-site
Environmental Management Plan that forms part of the Development Plan under DPO11.

The authorisation of the Amendment raised the issue of whether requirements for
environmentally sustainable development are warranted and the matter was highlighted by
the Panel at the directions hearing.

 Council submitted that the SDS for each development would demonstrate how the targets
or requirements established by the EMP are met. If the Environmental Management Plan
provides satisfactory details and an SDS is not required, Council may waive the requirement
for an SDS. It is current Council practice to encourage the use the STEPS and Sustainable
Design Scorecard tools to promote early integration of sustainable design initiatives into the
development process and large development (15 dwellings or more, 4 or more storeys, or
large non-residential proposals) are required to include an EMP in application
documentation. While the requirement for EMPs for larger developments has been
supported in some VCAT decisions, it is not a statutory requirement and DPO11 will
establish a clear statutory requirement for an EMP. Council referred to Amendments in
various stages of consideration21, highlighting its consistent efforts to ensuring planning
proposals incorporate ‘best practice’ ESD principles, rather than merely meeting minimum
standards through compliance with building regulations.


21
     For example, Council referred to support from the Panel considering Amendment C81 for the proposed EMP
     requirements; and the proposed inclusion of EMP requirements in DDOs and DPOs in Amendments C94
     and C111; Amendment C107 (recently exhibited) and Amendment C115 (with the Minister as RA). Council
     has also resolved (11 March 2009) to proceed with Amendment C71 which seeks to introduce a Local
     Planning Policy at Clause 22.14 to ensure consideration of ESD principles in the design phase of the
     planning permit process.

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In addition to concerns relating to the orientation of dwellings to the south of the proposed
central car park (see Chapter 4.1.1), submitters requested the inclusion of a range of
measures to achieve more sustainable outcomes. They included requirements for:
     restaurants and food and drink retail outlets to source local produce, promote
      vegetarian food, limit packaging and minimise energy use in the production, storage
      and distribution of food; and
     businesses to demonstrate that ‘environmental’ best practice in energy and resources
      use and socially inclusive employment practices are adopted.

The Panel agrees with Council that DPO11 does not have the capacity to impose
requirements on the sourcing of produce and business practices nor socially inclusive
employment practices.


6.5        Development Contributions
Amendment C02 foreshadows development contributions in relation to community facilities
and public open space. The Panel requested Council to address how contributions would be
secured and fairly apportioned in the absence of a Development Contributions Plan Overlay
(DCPO).

Council responded that:
     revisions to DPO11 require the Community Facilities Audit to include a range of costs
      or works proportionate to the scale and impact of development within the precinct or
      on individual sites. Council referred to the Community Facilities Audit process for the
      former Kodak development(under DPO10) and tabled the resulting document
      prepared by ASR Research which established monetary per square metre contribution
      for infrastructure provision based on an assessment of the supply and demand for
      additional community facilities in the area; and
     the Open Space and Landscape section of DPO11 requirement for details of the
      contributions towards the upgrading or extension of open space has been removed.
      Council considers that setting aside land for public open space or pay a percentage of
      the site value (or a combination of both) is appropriately addressed in section 18 of the
      Subdivision Act 1988.

During the course of the hearing Council proposed a further revision to DPO11 to add a
requirement that the ITP address ‘the process for works and/or costs proportionate to the scale and
impact of development must also be demonstrated.’

Development Contributions Plans (DCPs) prepared in accordance with published guidelines
have been introduced to establish a transparent and equitable basis for apportioning the cost
of meeting infrastructure needs generated by development proposals and DCPs are now the
preferred means of securing contributions. While Section 173 Agreements/permits remain
an alternative method of securing infrastructure contributions, where landownership is
fragmented DCP principles remain particularly relevant to avoid the piecemeal



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implementation and inequitable apportionment of costs associated with reliance on permits/
Section 173 Agreements.

The planning framework now proposed does provide for contributions towards upgrades of
infrastructure to meet needs generated by the redevelopment of the precinct as a whole,
although the quantum of these contributions has not been established. The usual site by site
contributions to meet the costs associated with mitigating adverse impacts from
development would also apply. The Panel notes that DPO11 does not provide certainty for
landowners or infrastructure providers about the level of contributions that are likely to
apply although it is recognised that recourse to VCAT is available if disputes arise.

Establishing the basis for contributions early in the planning process is likely to not only
increase transparency and reduce subsequent disputes but is also likely to result in more
effective infrastructure planning and provision. The Panel is not in a position to address this
issue in any detail but highlights contributions as an issue for further Council consideration
during subsequent processes.




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7.         The Extent and Form of DPO11

There have been various iterations of the schedule to DPO11 since Amendment C92 was
exhibited. The final iteration was circulated for ‘without prejudice’ discussion on the final
day of the Panel hearing included revisions put forward by the Council and the Proponent
to address identified concerns (see Appendix B). The Panel does not propose to discuss each
change individually but, overall considers the various drafting changes and additions
represent an improvement over the exhibited version. A number of drafting issues are
identified on version in Appendix B for consideration by Council.


7.1        Is the DPO the Right Tool?
The authorisation of Amendment C92 requested Council to review the amendment prior to
adoption to determine whether other tools from the VPPs can be utilised. DPCD officers
subsequently supported the use of the DPO, noting that the overlay is an appropriate
statutory tool to help address fragmented land ownership as it ‘pulls together all parcels of land
into the one requirement for a development plan that covers the entire area, which is effectively
similar to a structure plan for an activity centre’. However, this advice did not make specific
comment about the information presented during exhibition or third party rights.

The Panel will not repeat the discussion in Chapter 2 which made extensive reference to the
Practice note guidance about circumstances where the DPO and IPO should apply and
raised questions about the use of the DPO in the current circumstances. Chapter 2 also
considered the removal of third party right under the proposed DPO11 when those affected
had not been provided with information to enable informed participation in the
Amendment exhibition process.

Despite these significant concerns, the key planning issues have been ventilated through the
panel process and the Panel considers it is in a position to form a view on the central
planning issues. The Panel is satisfied that the DPO is an acceptable planning tool provided
the exhibited overlay is revised to incorporate a greater level of certainty about the key
development parameters.


7.2        DPO 11 and Certainty about the Form of Development
In its closing submission Council conditionally supported the inclusion of an indicative
concept plan in DPO11 but, like the Proponent, emphasised the need to maintain a level of
flexibility to enable innovative design responses for future building configuration and the
function of linkages within the precinct. It was also noted that flexibility is needed to take
account of unforseen circumstances; for example, remediation of any contaminated land
identified in an environmental audit may result in adjusted design solutions for the precinct.

The Panel is conscious that planning frameworks should build in flexibility to enable
optimum outcomes but this needs to be balanced against the need to provide an assurance
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to third parties who would be excluded from formal participation in subsequent processes
that the planning framework will continue to take their interests into account. The removal
of third party rights reduces the acceptable degree of flexibility compared to circumstances
where the opportunity for full participation in subsequent planning processes is maintained
– a more conservative approach to the development parameters is justified in these
circumstances. For example, the Panel has recommended the specification of limits in
DPO11 on traffic from the activity centre that may be directed to local streets whereas
reliance on a subsequent assessment of specific traffic impacts of proposals would have been
reasonable if those who may be affected were entitled to participate in those processes.

The exhibited DPO11 required the development plan to address a wide range of issues and
specified an extensive list of matters to be included but few development requirements were
specified. The Panel considers the revisions to the Schedule 11 to the DPO and in particular
the incorporation of an indicative plan, are vital to establish key development parameters.
The Panel has made recommendations in earlier chapters about the inclusion of additional
development parameters in DPO11 relating built form, urban design, traffic the location of
some uses with off-site amenity impacts.

The Panel recognises that revisions to DPO11 put forward at the hearing have the effect of a
‘hybrid’ of the DPO and the IPO. That is, the incorporation of a concept plan that establishes
key development parameters to manage potential impacts on the immediate area operates
along the lines of an IPO and a further Amendment of the planning scheme, with full third
party rights, would be necessary if departures from these parameters are proposed. Where
the specified parameters are met and off-site impacts are more limited, greater flexibility is
provided for planning and design responses to be resolved between the Council, applicant
and relevant referral authorities. The Panel is satisfied that the recommended mix of
certainty and flexibility is reasonable.

The Concept Plan

For the reasons set out above the Panel sees the Concept Plan as an important element of
DPO11 that should illustrate key parameters identified in the schedule text. While the
principle that the plan should be conceptual is endorsed, this does not mean it should be
stripped of important development parameters.

The Panel accepts that it is reasonable to remove internal linkages within the DPO area or
limit the internal roads identified to the ‘loop road’ linking the two Nicholson Street access
points and the central car park as they other internal connections can reasonably be
addressed through the development planning process. However the identification of urban
spaces along the ‘Main Street’ and a central location for the supermarket and car park (as
indicated in earlier iteration of development concepts) are important concepts that should be
shown on the plan. Various recommendations in earlier chapters should also be reflected on
the plan. This includes changing the representation of access points to the existing street
network with changes to the legend and/or annotations to clearly express the intended role
of access points to indicate, for example, that: 80% of activity centre traffic is to gain access
from Nicholson Street and Glenlyon Road, the signalised intersection on Nicholson Street
provides the primary access point, the representation of the access to John Street should be
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down graded, Gamble Street does not provide vehicle access to the Activity Centre and so
on.

Informal Consultation

The Panel accepts the revision to DPO 11 that provides for informal consultative
arrangements although this approach is are discouraged in the Practice Note relating the
DPO and IPO. The inclusion of a consultation in the development planning process (but not
subsequent permit processes) would allow residents to present their views on impacts and
measures to address those concerns and this input would inform Council’s decision making.
However, it should be made clear to third parties participating in the consultation that
approval of the development plan is a Council responsibility and there is no subsequent
right to independent review.


7.3        The Extent of DPO11
Given the extent of recent redevelopment of properties fronting Albert Street in the MUZ,
the Panel queried whether the application of DPO11 to these properties is necessary to
achieve planning objectives.

Council maintained that these properties should remain as part of DPO11 as exhibition did
not result in any objections to the application of the overlay from the affected property
owners; DPO11 will enable consideration of noise and other amenity impacts that are
currently not provided on any of the properties fronting Albert Street; the incorporation of
interface treatments to protect residential amenity and the continued operation of existing
businesses can be specifically addressed; and the overlay provides clear guidance about the
hierarchy and function of linkages from the core of the precinct through to Albert Street.

The Proponent endorsed Mr. Robertson’s support for this view but did not see the issue as a
critical concern.

The Panel is conscious that the inclusion of the Albert Street properties adds to the potential
complexity of the Development Planning process with limited potential gain. The extent of
recent development has established the form of development in this part of the MUZ and
issues relating to amenity and continued business operations can be addressed through
individual development applications for the properties that may still be redeveloped. The
north-south access linkages within the MUZ are substantially already determined and recent
development has precluded the option of upgrading the leg of the laneway between 18 and
20 Albert Street. However, the laneway to the south of the Albert Street properties may well
be upgraded as a more significant internal street. The Panel also agrees that the interface
treatment between the south of the MUZ and the north of the proposed B2Z is an important
consideration and application of the DPO, at least to the over the east-west laneway, would
facilitate a consistent approach.

Finally, it is noted that the inclusion of the Albert Street properties in DPO11 would
maintain the rights of property owners in the MUZ to formally participate in development


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planning processes with rights for review of Council’s decision (S149 Planning and
Environment Act).

On balance, the Panel accepts that the extent of the exhibited DPO11 is acceptable.


7.3.1 Panel Recommendation

       Revise DPO11 generally as set out in Appendix B, including the incorporation of a
       concept plan in Schedule 11 to the Development Plan Overlay, with further changes
       to reflect the recommendations in this report.




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Appendix A: List of Submitters
Statutory/Referral Authorities
Yarra Valley Water

Melbourne Water

Department of Sustainability and Environment

Department of Transport

VicRoads

Bicycle Victoria

Resident Submitters

Gordon Rennie                         Cameron Tait          Terrence Sneddon

Andrew Le Blanc                       Antonio Carneli       Angela Bottari

Jean Connell                          Nuala Tobin           Meg Tait

Theodoros Proimos                     Arrigo Vaccaro        Peter Ryan

David McCaw                           Frank Palumbo         Anthony Rush

Barry Landau                          Antje Dunn            Ken Flanagan

Don Anderson                          Wendy Larcombe        George Neale

MerrinMason                           Barbara Brook

Frank Di Dio                          F Interlandi

Lisa Bonamigo                         Phyllis Carneli

Stephen Nowicki                       John Carneli

Augusta Marton                        Michele Hosking

B Raban                               Augustine Dall'Ava

Krysia Birman                         Caitlin Murray

Chris Ryan                            Maria Marsicovetere

Judy Evans                            Leoni Phelan

Vicki Barmby                          Jane Cussen

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Appendix B: Tabled Revisions to DPO11
                                 TRACKED CHANGES VERSION 23/12/09

                             PREPARED FOR BRIDGEHEAD PROPERTIES PTY LTD

                                          AMENDMENT C92

                   PANEL ANNOTATIONS SHOWN IN ITALICS AND HIGHLIGHTED

              SCHEDULE 11 TO THE DEVELOPMENT PLAN OVERLAY
--/--/20--
C92           Shown on the planning scheme map as DPO11

              THIS SCHEDULE APPLIES TO THE MAJORITY OF LAND BOUND BY
              NICHOLSON STREET, GLENLYON ROAD, JOHN STREET AND ALBERT
              STREET, BRUNSWICK EAST DESCRIBED AS THE PRECINCT.

1.0           Requirement before a permit is granted

--/--/20--
C92           The responsible authority may consider an application to construct a building or construct
              or carry out works in the Precinct prior to the approval of a Development Plan, provided
              the buildings or works do not prejudice the preparation and approval of the Development
              Plan

2.0           Conditions and requirements for permits

--/--/20--    Any permit for a development must include a condition requiring the preparation of a
C92
              Sustainable Design Assessment (SDA) to the satisfaction of the Responsible Authority.
              The SDA must be in accordance with the whole-of-Precinct Environmental Management
              Plan (EMP) forming part of the approved Development Plan. An SDA must be prepared
              by a suitably qualified person(s) and it must demonstrate how the targets and
              requirements of the approved EMP will be met for each development within the Precinct.
              Where, in the opinion of the Responsible Authority, the EMP provides satisfactory detail
              in relation to a particular development, Council may waive the requirement for an SDA.

3.0           Requirements for development plan

--/--/20--
              A development plan, that may consist of plans or other documents, must be prepared for
C92           all of the Precinct and must be generally consistent with the Brunswick Structure Plan (as
              amended) (the Panel queries this element as concept plans presented do not accord
              with the structure plan) and must be generally in accordance with the Concept Plan for
              the Precinct at Clause 4.0, and must show or include the following:

              General

                   A site analysis that identifies the key attributes of the land, its context, the
                    surrounding area and its relationship with existing and/or proposed uses on
                    adjoining land.


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                   Details of any buildings to be demolished and reused.
                   An assessment of compliance with the Activity Centre Design Guidelines (DSE,
                    2005). Requires updating.
                   A Community Facilities Audit which identifies the following:
                      existing and planned services in the surrounding area and the impact the
                       development of the Precinct will have on these services;
                      the need to provide additional community facilities within the Precinct or whether
                       any existing community facilities in the local area should be upgraded or
                       extended, unless demonstrated that the development is adequately served by
                       existing facilities;
                      the location of any new community facilities to be located within the precinct or in
                       the surrounding area;
                      uses that support the local arts and creative industries by providing a distinctive
                       focal point or ‘arts hub’ :
                      details of the developer contributions (monetary or building) towards the
                       upgrading or extension of existing community facilities; or provision of new
                       facilities in the surrounding local area as a result of any new development unless
                       demonstrated that the development is adequately served by existing facilities
                       (this may include a range of costs, works and/or land proportionate to the scale
                       and impact of development within the precinct or on individual sites); and
                      timing of the provision of any required community facilities coordinated with the
                       development of the precinct and/or individual sites.
                   A servicing and infrastructure report, detailing how the development will be serviced,
                    having regard to the ESD management plan.
                                                       2
                   Details of how a minimum 5,000m of floor area within the Precinct can be allocated
                    for office use. The Panel queries how this will be implemented.
                   Consideration of all expert analyses and assessments in the preparation of the
                    Development Plan.
                   An Adverse Amenity Impacts Assessment(s), (‘AAIA’) prepared by a suitably
                    qualified person(s). The results of the AAIA must provide guidance for any further
                    staging, and development of the Precinct. The report must identify all potential
                    adverse amenity impacts from nearby uses and consider:
                            Whether the proposed use and development is likely to be affected by any
                             surrounding industrial properties;
                            Whether the proposed use and development is likely to be affected by any
                             remaining industrial uses within the Precinct;
                            Whether the proposed use and development is likely to be affected by any
                             odour, noise and dust sources from the existing industries; and
                            What ameliorative or remedial measures can and will be taken to minimise or
                             avoid adverse impacts identified in the report.

              Built Form and Layout




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               Details of urban design principles, including information on general streetscape
               treatments, architectural styles, interface treatments, building heights and setbacks,
               general materials and finishes, and building frontages. The urban design principles
               must detail how the development will achieve or deliver the following outcomes for the
               Precinct generally in accordance with the Indicative Concept Plan:
                        a safe shared vehicle and pedestrian environment within Main Street
                         connecting Nicholson Street and John Street, as the focus of the Precinct;
                        connections from Rickard Street, Gamble Street, Elm Grove and adjoining
                         laneways into the new Main Street as appropriate;
                        graduated building heights, ranging from 3-4 storeys at the edges of the
                         Precinct, to 6 storeys near the centre of the Precinct
                        articulated facades to the public realm utilising a diversity of materials and
                         finishes whilst providing active and passive surveillance;
                        active frontages to the public realm and a high level of pedestrian amenity,;
                        the proposed layout and use of each part of the Precinct, including building
                         footprints, lighting and safety measures, indicative floor areas of land uses,
                         streets and public places;

                        the location of parking with an emphasis on ensuring active facades and/or
                         visually interesting street edge treatments and streetscapes;
                        retention of residential amenity for properties in John Street by locating main
                         entrances to larger retail uses towards the core of the Precinct;
                        public spaces that deliver an inviting central town square or significant
                         public space emphasising pedestrian and recreational use and creating a
                         focal point from Nicholson Street;
                        building techniques to avoid unreasonable additional overshadowing to
                         existing secluded private open space of adjacent residential development; and
                        building techniques to avoid unreasonable views into existing secluded private
                         open spaces and habitable room windows.

              Access and Transport

              An Integrated Transport Plan prepared by a suitably qualified person(s). The views of
              the Department of Transport and VicRoads must be considered prior to the approval of
              the Integrated Transport Plan. The Integrated Transport Plan must include and
              demonstrate the following:
                        a site layout plan showing convenient and safe access to and from Nicholson
                         Street generally opposite Sumner Street which includes development set back
                         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 which must include:
                              a traffic signalised intersection; and
                              a fully accessible (Disability Discrimination Act 1992 compliant) tram stop
                        Provision of a traffic signal layout plan for the ultimate site Convenient and safe
                         access to and from Nicholson Street in the vicinity of Sumner Street which


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                         includes provision for traffic signals and accessible tram stops to the
                         satisfaction of the Director of Public Transport and VicRoads;
                        how development will support and integrate public transport and sustainable
                         transport options to and from the Precinct;
                        access and transport management showing the location and details of all
                         pedestrian, cycle, vehicle, truck and other traffic access ways, including ingress
                         and egress from the Precinct;
                        internal street functional hierarchy;
                        any necessary treatments 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 must also be
                         demonstrated;
                        the location of any proposed traffic management devices;
                        typical proposed road cross-sections to demonstrate that emergency and
                         service vehicles will be able to appropriately manoeuvre through the precinct;
                        how development will support and integrate the existing Nicholson Street tram
                         service and bus service on Glenlyon Road;
                        how development will support and integrate with the John Street bicycle route;
                        how development will retain adjoining residential area amenity by traffic
                         management measures to limit traffic volumes in adjoining residential streets to
                         their designed performance capacities;
                        the function of the new Main Street, including pedestrian, cycling, management
                         of vehicles through the street, access and egress information and parking
                         facilities; and
                        how development optimises accessibility for the mobility impaired.

              Environmentally Sustainable Design

               A comprehensive, whole-of-Precinct Environmental Management Plan prepared by a
               suitably qualified person(s) demonstrating best practice and addressing the following:
                        building energy management (conservation and generation);
                        water sensitive urban design/integrated water management;
                        construction materials selection;
                        indoor environment quality;
                        waste management and reduction;
                        public realm design for access and mobility;
                        transport;
                        demolition and construction phase; and
                        innovation.
                   The Environmental Management Plan must:
                        identify strategic or other documented sustainability targets or performance
                         standards for the Precinct; that the precinct is aiming to meet
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                        document the means by which the appropriate targets or performance
                         standards may will be met achieved;

                        identify responsibilities and a schedule for implementation, and ongoing
                         management, maintenance and monitoring where relevant under any permit;
                         and
                        demonstrate that the design element, technologies and operational practices
                         included in the Environmental Management Plan can be maintained over time.

              Affordable, Accessible and Adaptable Housing

                   Details showing how affordable housing will be provided and distributed throughout
                    the development Precinct. These 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.
                   Details showing how the development in the Precinct will incorporate adaptable,
                    accessible and visitable design features for at least 10% of dwellings.
                   The requirement that the affordable/adaptable housing component should not be
                    distinguishable from the remainder of the development and must should be spread
                    amongst various housing types and sizes as appropriate, should not be
                    concentrated in one location and must be accessible to people of all abilities.

              Open Space and Landscape

                   Details on the provision of public open space within the precinct designed for
                    intensive use in an urban setting in accordance with the objectives of the Moreland
                    Open Space Strategy.
                   Details on the contributions (monetary or works) towards the upgrading or extension
                    of existing public open space or provision of new public open space in the
                    surrounding area unless it can be demonstrated that existing open space provisions
                    adequately serve the development
                   A landscape masterplan including proposed landscaping themes appropriate to the
                    different context within parts of the Precinct, lighting, street furniture, and
                    streetscape improvements in and around the Precinct.

              Economic Impacts

                   An economic assessment that:
                   details and justifies the proposed commercial floor area, particularly retail with a
                    qualitative and quantitative analysis; and
                   considers the impact of any proposed commercial uses, particularly retail in the
                    precinct on existing commercial uses within a defined catchment area.
              recinct can be allocated for an

              Environmental Audit Requirements




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              The development plan must be consistent with and incorporate the requirements of any
              Statement of Environmental Audit issued for the site.

              Staging

              .An indication of the likely staging and anticipated timing of development for the precinct.

              Display of Development Plan

              The Responsible Authority may display the Development Plan at the Moreland Municipal
              Offices;
                   for at least 21 days;
                   by giving written notice of the display to the owners and occupiers of lots within the
                    Precinct and adjoining the land and anynay other person or agency that in the
                    opinion of the Responsible Authority may be materially affected.
              Before making a decision on the Development Plan, or any amendment to an approved
              Development Plan, the responsible authority may consider any submissions or
              documents received as a result of the display of the Development Plan.
              This provision does not provide an assurance that consultation will occur.

4.0           Indicative Concept Plan

               [insert Indicative Concept Plan for Precinct]




MORELAND PLANNING SCHEME AMENDMENT C92

PANEL REPORT: FEBRURY 2010

				
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