PPV Volume 10 No 4

1. More heritage retention required for Preston Market redevelopment

The redevelopment of Preston Market has been a controversial project and was a major issue in the last state election in the seat of Preston.

In Victorian Planning Authority SAC Referral 7 (AC) [2022] PPV 86, an advisory committee was appointed to consider the redevelopment of Preston Market.

A structure plan has been prepared for the site (Preston Market Structure Plan – PMSP. Its core elements include:

  • retaining a fresh food and variety market in the precinct but in a different spatial arrangement centred around the retention of the existing fruit and vegetable shed
  • a mixed use precinct including up to 1,200 dwellings accommodating over 2,000 residents, including up to 10 per cent affordable housing, retail and commercial floor space target of 27,500 square metres of gross leasable floor area (GLA), and an office floorspace target of 5,000 square metres GLA
  • buildings varying in height from 3 to 14 storeys
  • up to 10 per cent public open space contribution (land and cash equivalent) including areas adjacent to the market area and the station corridor
  • environmentally sustainable development with high quality building and public realm design
  • an internal traffic and movement circulation network
  • walking and cycling connections
  • support for underground carparking.

The PMSP is to be implemented into the Darebin Planning Scheme via Amendment C182dare.

The Committee supported the redevelopment, but only if a better balance was struck by more retention of the heritage fabric. It stated:

The question of where the balance lies for this precinct is at the heart of this Amendment. This was the consistent message of submissions of the VPA, Council and PMD and many of the experts. The key difference for Council was that heritage was a threshold question rather than one of balancing the competing policy elements. 

The Committee agrees, as discussed further in Chapter 5, that heritage is a threshold issue and that the PSP and ACZ1 rely on an outcome that assumes removal of 80 per cent of the market.

There is a risk associated with removing so much fabric, of impacting the social and other intangible cultural values attributed to the market by the local community although the level of risk is difficult to determine with any precision. While useful in understanding the social and community values both tangible and intangible about the market (its fabric, form and interactions which take place within it) the Committee did not find social evidence determinative. The potential social effects (as well as the economic effects) are matters to be taken into account in the balancing exercise. This is not to say that in time it is possible, through a transition plan as proposed by PMD, that many of the existing values, experiences and sense of community and attachment could be found in a new market arrangement. The current ‘market place’ and experience is the result of an ever changing community and retail dynamic.

On balance the Committee considers that the right policy balance has not been struck with the PSP and Amendment in relation to heritage impact as discussed in Chapter 5. More of the existing market complex footprint needs to be retained because of its heritage significance. The extent of fabric assumed to be removed will dramatically compromise its significance to the point that the retained element is subsumed and tokenistic. This has not been adequately addressed in the PSP and ACZ1. This loss of heritage significance is not diminished in a balance of policy consideration just because the site is of local significance.

As a result of the Committee findings on heritage, it recommended that the PMSP and ACZ1 objectives, strategies, guidelines and requirements be reviewed without the assumption that only 20 per cent of the market will be retained and to reflect more retained market fabric to respond to technical, aesthetic and social significance as outlined in the Statement of Significance.

With the release of the Committee’s report, the Minister for Planning announced new planning controls for the site, including a Heritage Overlay and a Development Plan Overlay with heights generally in accordance with the amended Precinct Structure Plan. The proponents were seeking a maximum height of 19 storeys.

See also:

  • Guide to Planning Panels: Heritage

2. Further work required on Latrobe’s bushfire amendment

Clause 13.02-1S (Bushfire Planning) of the Victoria Planning Provisions includes an objective to strengthen the resilience of communities to bushfire through risk-based planning that prioritises the protection of human life. Strategies relate to:

  • protection of human life
  • bushfire hazard identification and assessment
  • settlement planning
  • areas of biodiversity conservation value
  • use and development control in a Bushfire Prone Area (BPA).

In Latrobe C126latr and C127latr (PSA) [2022] PPV 83, it was proposed to implement the findings of the Latrobe City Municipal Bushfire Risk Assessment 2020 (MBRA) and the Latrobe City Rural Living Strategy 2020, through the application of local policy and overlays and rezoning of land. With respect to C126latr, it was specifically proposed to:

  • introduce the Municipal Landscape Bushfire Risk Map in the Municipal Planning Strategy
  • introduce new local policy
  • rezone land in accordance with the Rural Living Strategy
  • apply overlays to increase bushfire protection.

The Amendment was opposed by the Country Fire Authority (CFA) which considered the MBRA had understated risk and failed to adequately respond to the requirements of Clauses 13.02 and 71.02-3 of the Planning Scheme, including to prioritise the protection of human life above all other policy considerations. At the core of the CFA’s opposition was a serious concern about the methodology.

Council engaged Terramatrix to undertake an independent peer review of the MBRA. Terramatrix also identified significant concerns with the MBRA methodology, and concluded it may be better used to support a risk assessment process required by Clause 13.02-1S rather than be considered a risk assessment in its own right. Council’s expert witness agreed that the MBRA should not be considered or described as a bushfire risk assessment.

Council submitted the MBRA provided a sound assessment of bushfire risk at a municipal wide and township scale, and represented the most comprehensive view of bushfire risk and hazard across the municipality. It advised the Panel that the MBRA was prepared as a multi-purpose, multi-disciplinary document to be used for bushfire planning and management across all the functions of Council. It was intended to inform long term strategic land use planning in combination with fuel management prioritisation and decision making. Council considered it appropriate for the MBRA to be introduced to the Planning Scheme as a background document.

Council provided an overview of the purpose and methodology used to compile the Bushfire Risk Map. It was prepared with consideration of CFA Guideline FSG LUP 008 – Strategic Land Use Planning – Bushfire (CFA Fire Service Guideline), and amongst other things, it intended to identify areas of the municipality “where development should be avoided, where development can proceed following in-depth analysis of bushfire risk and areas where development can proceed with no or little restrictions”.

The three risk levels on the Bushfire Risk Map are specified in the policies included in Amendment C127latr, generally directing growth towards the green areas, and only allowing for growth in higher risk areas if a site specific assessment demonstrates the risk is acceptable or can be managed to an acceptable level.

Council noted the Bushfire Risk Map showed an increase in the bushfire risk profile when compared to previous information available on bushfire risk in the municipality.

Council was of the view that the MBRA, Bushfire Risk Map, and the precinct scale bushfire risk assessments in combination responded to the requirements of Clause 13.02, Planning Practice Notes and relevant guidelines.

Council emphasised there were no existing precedents for landscape-scale bushfire risk assessments elsewhere, and “in the absence of an established method to follow, Council made extensive efforts to collaborate and consult with the CFA and other government agencies to draw on their bushfire expertise in preparing the MBRA”.

Council considered the CFA had confused the role of the MBRA and misunderstood that planning decisions need to be made in the context of residential growth and other policy considerations.

The Panel considered the lack of agreement between Council and the CFA was problematic and presented a significant dilemma.

It noted that whilst there is no agreed State government methodology for a municipal wide bushfire risk assessment, useful guidance exists including:

  • the BMO Technical Guide which explains the approach to a bushfire hazard landscape assessment. It states a landscape assessment:
    • provides factual information on the bushfire hazard (vegetation extent and slope)
    • provides information on key features of the general locality that are relevant to better understanding the protection provided by the location
    • provides contextual information on a site.
  • PPN64 which explains how to identify bushfire hazard. It states:
    • identifying bushfire hazard is a factual and evidence-based process
    • local planning for bushfire protection should consider all bushfire hazards that can be potentially harmful, including grasslands and vegetation outside of land subject to the BMO
    • bushfire hazard should be considered when undertaking strategic planning and when considering development proposals
    • considering bushfire during strategic planning ensures that strategies and direction embed bushfire considerations.

The Panel noted the CFA’s advice that planning based landscape scale bushfire mapping is an evolving area of research.

The Panel accepted the CFA’s advice that there are three determinative factors in land use planning decisions:

  • landscape bushfire considerations – the scale of bushfire anticipated and the effect this may have on future development
  • alternative locations for growth – a critical consideration for land use planning considerations but less relevant to fire prevention planning as the risk is already present
  • a greater emphasis on existing low fuel areas for shelter (safe areas) when identifying acceptable locations for growth.

On each of the three above issues the Panel concluded as follows:

Landscape bushfire considerations

The Panel agreed with the CFA that the combined evidenced-based and subjective indicators may have resulted in the level of risk being understated. The assessment of fire management and prevention indicators may indicate risk was reduced, however ongoing implementation could not be guaranteed. The CFA explicitly stated it could not commit to the level of anticipated works.

According to Clause 13.02-1S a bushfire risk assessment intended to be relied on in directing future growth must be based on an assessment of hazard and risk using the best information and science available at the time. The Panel was concerned the inclusion of subjective and variable indicators, including of fire management and prevention indicators, was not consistent with planning policy requirements and should not be relied on for bushfire planning purposes.

Additionally, the scoring of many of the indicators was subjective. The Panel was concerned the scores and thresholds between different risk levels had no evidentiary base and were therefore unreliable. The Panel was also concerned there were discrepancies in the MBRA between allocated risk levels for the detailed locality risk assessments and the municipal wide Bushfire Risk Map.

The Panel considered the MBRA should be based on evidence based indicators, ideally agreed with the CFA, and a consistent approach to risk assessment to avoid discrepancies between local and municipal scale assessment.

As such, the Panel held that before Amendment C127latr proceeds, further work should be undertaken to the satisfaction of the CFA that is consistent with Clause 13.02 bushfire hazard identification and assessment requirements.

Alternative locations for growth

Whilst the MBRA may be a useful document for other functions of Council and other agencies, the Panel considered that in its current form it was not a suitable guide for settlement planning that prioritises the protection of human life.

The Panel was not satisfied the MBRA had adequately addressed the three determinative factors identified by the CFA in land use planning decisions, or adequately considered and responded to the requirements of Clause 13.02-1S (Bushfire planning). The methodology based on combined risk indicators was confusing and the purpose of the MBRA was unclear; it was not clear what is intended or how it should be implemented, particularly how it should be applied to planning decision making.

The Panel concluded that the MBRA was not strategically justified with regard to planning policy and was not suitable to include in the Planning Scheme. That said, it contained a significant amount of valuable information that would be useful in developing a bushfire risk assessment that responds to Clause 13.02-1S (Bushfire planning) and this should be done before the Amendment proceeds.

Greater emphasis on existing low fuel areas for shelter (safe areas) when identifying acceptable locations for growth

This matter was addressed by the Panel in its assessment of the Rural Living Strategy.

In order to prioritise protection of human life, the Panel considered a relative assessment of risk areas must be undertaken in accordance with an accepted landscape scale bushfire risk assessment. Clause 13.02-1S settlement planning strategy requires assessment of alternative lower risk locations for settlement growth at a range of scales. As discussed earlier in the Panel’s report, a bushfire risk assessment that responds to Clause 13.02-1S was needed to determine acceptable risk, and to inform settlement planning, development controls and specific bushfire protection measures if required.

The Panel considered this had not occurred as part of the MBRA or the Rural Living Strategy, which have missed the opportunity to strategically plan for settlement growth across Latrobe that directs development to the lowest risk locations based on a proper risk assessment. This was an important step in assessing acceptable risk.

The Panel further considered that lower risk locations within the municipality need to be properly identified on the basis of a proper bushfire risk assessment that responds to the requirements of Clause 13.02. Further consideration should also be given to identifying alternative locations for growth and directing development toward lower risk locations within the municipality and this required a greater emphasis on existing low fuel areas for shelter when identifying acceptable locations for growth.

The Panel concluded that rural living zone rezonings should not proceed without further work relating to a strategic settlement plan in the context of a municipal wide bushfire risk assessment.

See also:

  • Guide to Planning Panels: Bushfire Management Overlay

3. Does the removal of a Special Controls Overlay circumvent the planning process?

The purpose of the Specific Controls Overlay is:

To apply specific controls designed to achieve a particular land use and development outcome in extraordinary circumstances.

Specific Controls Overlay Schedule 4 (SCO4) in the Merri-bek Planning Scheme restricts development and use of the subject land to one dwelling. The subject land is currently developed with a double storey dwelling and outbuildings.

In Merri-Bek C219more (PSA) [2023] PPV 11, it was proposed to remove the SCO4 applying to the subject land.

In background information provided to the Panel, it was noted that:

  • The SCO4 was applied by Moreland Planning Scheme Amendment C44, gazetted in May 2003.
  • Before Amendment C44 was approved, the owners of the subject land (who remain the owners today) sought a permit for two dwellings on the subject land, which was then in two separate titles with each lot being less than 300 square metres.
  • Council refused the application for two dwellings. The Victorian Civil and Administrative Tribunal (VCAT) upheld Council’s refusal, primarily on neighbourhood character and amenity grounds.
  • The owners subsequently consolidated the land into a single lot of 563 square metres and constructed a single dwelling on the consolidated lot.
  • The single dwelling did not require a planning permit (only a building permit). Therefore there was no consideration of neighbourhood character or offsite amenity under the planning scheme (only the building permit).

Council submitted that, having regard to the purpose of the SCO, it is designed to achieve a particular land use and development outcome in extraordinary circumstances. It submitted the SCO4 was unnecessary given:

  • the subject land is zoned Neighbourhood Residential Zone, and any application for more than one dwelling on the subject land would be considered against the zone, relevant planning policy and decision guidelines
  • current policy supports increased housing growth and diversity in appropriate locations and on appropriate sites.

The Proponent submitted the Amendment was strategically justified in the context of the Planning Scheme, and there was no particular land development outcome or extraordinary circumstance applying to the subject land to warrant the continued application of the SCO4.

A number of submitters opposed the removal of SCO4. It was contended that SCO4 should be retained because:

  • it was applied in response to a perceived attempt by the Proponent to circumvent the planning controls that applied at the time
  • it acts as a deterrent for others who may seek to circumvent planning controls
  • its removal would set a precedent for removing other single dwelling covenants and restrictions
  • it protects neighbourhood character and amenity.

In supporting the removal of SCO4, the Panel stated:

There is nothing in the SCO parent provision or A Practitioner’s Guide to the Victorian Planning System to suggest that ‘closing loopholes’ or addressing a perceived circumvention of the planning rules is a legitimate use of the SCO. Further, it is not clear that this was the purpose of the SCO4 (while the reasons for intervention suggest that this may have been a factor, the Incorporated Document has no statement of purpose).

In any event, the original purpose of the control is of limited relevance. The more pertinent question is whether the continued application of the SCO4 remains consistent with the contemporary planning framework applying to the subject land. For the reasons set out in Chapter 2, the Panel finds that its continued application is not consistent with the contemporary planning framework.

The planning system does not regulate the construction of single dwellings on larger lots. The owners were entitled to build the existing dwelling without a planning permit. No neighbourhood character assessment was (or is) required in these circumstances. The Panel does not consider this is a ‘loophole’ – it is a feature of the planning system. It is one of the many forms of use and development of residentially zoned land that the planning system does not regulate.

The Panel does not consider that the continued application of the SCO4 constitutes fair and orderly planning. It was neither unfair nor disorderly to consolidate the lots and lawfully construct the single dwelling without a planning permit. Nor would it be fair and orderly to continue to restrict the development of a second dwelling on the subject land in the absence of any strategic justification for doing so, and in circumstances where no other land in the municipality is subject to a similar restriction (at least in the form of a SCO).

In response to the other issues raised by the objecting submitters, the Panel held that:

  • it was not appropriate for the SCO4 to continue to apply on the basis that it may deter others who may be considering circumventing the applicable planning controls – the single dwelling on the land was lawfully constructed and there was no justification for a specific control that seeks to deter a lawful action.
  • the removal of the SCO4 would not set a precedent for the removal of single dwelling covenants that are registered on title and the processes for removing registered covenants are governed by strict legislative criteria, or principles developed by successive panels.
  • neighbourhood character and offsite amenity impacts would be thoroughly considered in any future proposal for two dwellings on the subject land, pursuant to the zone, local policies and particular provisions.

See also:

  • Guide to Planning Panels: Specific sites and exclusions

4. Applying the precautionary principle to City of Melbourne’s flood controls

At about the time parts of Victoria and metropolitan Melbourne, including the Maribyrnong River, were hit by major riverine floods, a Panel was conducting a public hearing on Amendment C384melb, which proposed either to update or introduce schedules to the Land Subject to Inundation Overlay (LSIO) and Special Building Overlay (SBO) to land identified as being prone to riverine flooding and drainage flooding (Melbourne C384melb (PSA) [2022] PPV 89).

Specifically, the Amendment applies to land identified as being subject to inundation from riverine flooding in the Moonee Ponds Creek and Lower Yarra River waterways, and drainage flooding in the Arden, Macaulay and Moonee Ponds Creek, Elizabeth Street, Fishermans Bend, Hobsons Road and Southbank catchments.

The Amendment proposes to either update the mapped extents of those catchments or introduce the LSIO and SBO through specific schedules to land identified as being prone to riverine and drainage flooding, thereby triggering the requirement for a planning permit assessment for development in flood-prone areas.

The Amendment received 43 submissions. Key issues raised in submissions were:

  • the accuracy of the flood modelling and whether it is fit for purpose
  • the accuracy of the LSIO mapped areas
  • whether it is appropriate to consider urban design outcomes when assessing planning permit applications triggered by the LSIO and SSBO
  • whether it is appropriate for urban design requirements to be in the LSIO and SBO schedules
  • the status of the Good Design Guide for Buildings in Flood Affected Areas in Fishermans Bend, Arden and Macaulay in the Melbourne Planning Scheme
  • Melbourne Water’s exercise of discretion as a referral authority
  • the relationship between the proposed LSIO and SBO schedules and existing mandatory Design and Development provisions
  • whether transitional provisions are appropriate
  • impacts on property values, rates, land tax and insurance costs
  • planning and building processes and costs.

With respect to the flood modelling, which was perhaps the most controversial aspect of the Amendment, some submitters who called expert hydrology witnesses criticised the modelling on the basis that:

  • tide levels used in the flood studies were too high
  • the pumps off scenario was unjustified
  • lack of a joint probability assessment
  • flood models were not calibrated with historic floods.

The Panel reached the ultimate view that the shortcomings identified by the parties and experts in relation to the acceptability or adequacy of the Flood Studies were significant, but not fatal to the Amendment.

As to tidal behaviour, pumps off scenario, joint probability, the Panel held whilst the modelling may be conservative, this did not mean the modelling was not fit for purpose or inaccurate. The Panel referred to one of the critics of the modelling, whose own conclusion was that “from a risk perspective, the adoption of an overlay that is likely to be larger than the real flood extent is considered acceptable provided it is not significantly outside the realms of likely inundation”. The Panel did not consider the assumptions adopted would result in a flood extent which was significantly outside the realms of likely inundation.

As to calibration, the Panel noted the five experts agreed in the conclave that where appropriate data exists, good practice modelling requires calibration, and they agreed this data existed for Moonee Ponds Creek and the Lower Yarra River.

Melbourne Water submitted that calibration of a limited number of events could lead to systemic errors in model estimates. However, the Panel considered this was contrary to the statement in Australian Rainfall and Runoff (ARR) 2019 that model calibration is typically carried out on the single largest flood for which reliable water level data is available.

The Panel considered the lack of calibration missed an opportunity to carry out a ’reality check’ on the model and could undermine confidence in the modelled results. During the calibration stage, when the modelled flood differs from the measured historic flood, key parameters in the model, notably the roughness of the channel, are typically adjusted until the modelled flood more closely matches the historic flood.

Whilst a fulsome calibration exercise was not undertaken, the Panel was comforted by the ‘validation’ undertaken by Melbourne Water against known information.

As to fit for purpose, the Panel, whilst critical of some elements of the modelling and noting the level of conservatism, was satisfied the modelling adequately identifies the 1% AEP flood event for translation into the proposed LSIO3.

The Panel concluded that whilst the Flood Studies might be conservative because of the assumptions adopted, it did not mean the LSIO3 was founded on unreliable or inaccurate data. The Panel appreciated the scrutiny the Flood Studies have attracted but was cognisant of the need to not lose sight of the big picture, the importance of the Amendment and the practical realities for Melbourne Water. It stated:

Importantly, flood studies and models are not perfect. They are sophisticated estimates of the likely extent of the 1% AEP flood. Predictive modelling is inherently uncertain and imprecise. Independent qualified experts may legitimately disagree about the weight to be given to modelling and reliability of certain inputs. Regardless of the methodology adopted this will commonly be the case because experts may have differing views on the impact and reliability of certain inputs.

In coming to its conclusions, the Panel had regard to the following:

  • the fact the Amendment did not set flood levels for any parcel of land – Melbourne Water will assess the relevant flood level when a planning permit is sought under the LSIO3 or SBO2 and SBO3
  • the LSIO3, SBO2 and SBO3 provide the trigger for the assessment of a relevant flood level
  • without the overlays, land could be developed in a way that is inconsistent with the safety and protection of life and property
  • application the LSIO3, SBO2 and SBO3 to land notifies landowners or purchasers an assessment of flood risk will be required for any proposed development of their land
  • Melbourne Water will apply the Flood Guidelines, which provide discretion primarily in relation to the extent of freeboard to be applied to a particular site (whether the application of this discretion is a relevant consideration is discussed in Chapter 8.1) – it was open to the landowner/developer to prepare a risk assessment and to provide an evidentiary basis to Melbourne Water that would justify it concluding a departure from the Guidelines.

The Panel’s acceptance of the flood modelling’s conservative approach is understandable having regard to the precautionary approach that is adopted for planning and environmental controls that address risk to life and property. Such issues would no doubt be front of many people’s minds given the impacts of recent flood events.

See also:

  • Guide to Planning Panels: Environmental policies: Inundation