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IN TIIE VICTORIAI\ CIVI AND ADMINISTRATIVE TRIBUNAL P*'A/4)
'(,-{"*f/
VCAT Proceeding No P623l2011
BETWEEN:

RICHMOND ICON PTY LTD

Applicant
and

YARRA CITY COUNCIL & OTHERS

Respondent

PROPERTY: 140-160 SWAN STREET, RICHMOND VIC 3121

SUBMISSIONS FOR THE DIRECTOR OF PUBLIC TRANSPORT

Date of Document: 31 May 2011
Filed on behalf of: Solicitor's Code:7977
Prepared by: Telephone: +6T 3 9032 3012
Victorian Government Solicitor's Office Facsimile: +61 3 8684 0449
Level25 DX 300077 Melbourne
121 Exhibition Street Ref:1111442
Melbourne VIC 3000 Attention: Eliza Bergin

Introduction

1. The Director of Public Transport submits that the proposed development at 140-
160 Swan Street Richmond (Prooerty) before the Tribunal in this Proceeding must

take into account the requirements of the Director of Public Transport in relation to
protecting future options for development of the rail corridor located to the south of
the Property.

2. Under the Yarra Planning Scheme (Scheme), new developments are required to be
planned in such a way that protects options for future enhancements to the transport

system in the short and long term.

a
J. The Director of Public Transport does not object to the re-development of the
Property subject to inclusion of conditions of approval that protect options for the
potential future development of the rail corridor.

4. This Submission is broken into four parts:

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 4.1 Part One: Summary of the object and functions of the Director of Public
Transport which provide the statutory basis for the Director's proposed
conditions;

4.2 Part Two: Outline of relevant provisions of the Scheme in respect of public
transport;

4.3 Part Three: Overview of the position of the Director of Public Transport in
relation to the Application for Permit;

4.4 Part Four: Issues raised by the Tribunal.

Part One: Object and functions of the Director of Public Transport

5. First, I will provide an overview of my client's statutory objects and functions for the
assistance of the Tribunal.

The public transport system

6. The primary object of the Director of Public Transport is to provide, operate and
maintain the public transport system consistent with the vision statement and the
transport system objectives under s 66(1) of the Transport Integration Act 2010 (Yic)
(the Act).

7 . The vision statement, set out in s 6 of the Act, recognises the aspirations of
Victorians for an integrated and sustainable transport system that contributes to an
inclusive prosperous and environmentally responsible State. The transport system
objectives, set out in Division 2 of Part2 of theAct, include:

7.1 Provide for the effective integration of transport and land use and facilitate
access to social and economic opportunities (s 11(1)):

(a) Transport and land use should be effectively integrated so as to

improve accessibility and transport efficiency with a focus on
planning and developing the transport system more effectively
(s 11(2)(b)); and

(b) Transport system and land use should be aligned, complementary

and supportive and ensure that land use decisions are made having
regard for the current and future development and operation of the
transport system (s 11(3)(b)).

7.2 Facilitate network-wide efTicient, coordinated and reliable movements of

persons and goods at all times (s 12(1)):

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 (a) Balance efficiency across the network so as to optimise the network
capacity of all modes of transport and reduce journey times
(s 12(2)(a)); and

O) Maximise the efficient use of resources including infrastructure,

land, services and energy.

8. The Department is charged with the responsibiliiy of assisting the Minister in the
administration of the Act under s 33. The functions of the Department include to:

8.1 Lead in the improvement of the transport systern, including the development
and construction of new transport infrastructure and the provision of new
transport services (s 33(2Xc));

8.2 Develop strategies, plans, standards, performance indicators, programs and

projects relating to the transport system and related matters (s 33(2Xd)); ana

8.3 Provide assistance to public entities and private bodies to construct or

improve transport facilities and to provide services ancillary to those
facilities (s 33(2)(j).

The Director of Public Transport

9. The objects and functions of the Director of Public Transport under the Act
relevantly include the following:

9.1 to ensure, in collaboration with other transport bodies and public entities,
that the public transport system operates as part ofan integrated transport
system which seeks to meet the needs of all transport system users

(s 66(2)(a));

9.2 to construct, maintain or vary, or assist other transport bodies to construct,

maintain or vary, public transport infrastructure, including rail
infrastructure, roads, road-related infrastructure, road sides and other
transport assets (s 67(1Xa));

9.3 to plan for the public transport system as part of an integrated transport
system (s 67(1)(b));

9.4 to develop and implement operational policies, plans, guidelines, standards,

limits and practices for the public transport system and related matters
consistent with strategic policies and plans of the Department (s 67(l)(d));
and

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 9.5 to protect future options for the improvement of the transport system
including holding, retaining and reserving land for future rail corridors for
passenger and rail freight services (s 67(1)(i)).

10. In performing his functions, the Director of Public Transport must engage with
stakeholders so as to ensure better outcomes for all Victorians (s 67(2)(a)).

11. The powers of the Director of Public Transport include the power to do all things
necessary or convenient to be done for or in connection with, or as incidental to, the

achievement of the object of the Director of Public Transport and the performance of
his or her functions. This includes acquiring, owning, building, maintaining and
operating public transport infrastructure and related infrastructure (s 68(2)(d)).

12. It is therefore within the scope of the functions of the Director of Public Transport
under the Act to protect the future options for further development of,the rail corridor
located to the south of the Property (Rail Corridor).

13. We must then turn to the planning scheme to identify the how the Director's

responsibilities are relevant to planning and development proposals.

Part Two: Yarra Planning Scheme

Referral function

14. The Director of Public Transport is a referral authority under clause 52.36 of the
Scheme.

15. The referral authority function is triggered by the proposal to construct a building or

to construct or carry out works at the Property for:

. a residential development comprising 60 or more dwellings or Iots.

16. The exceptions do not applyhere.

17. Clause 66 of the Scheme confirms that an application of the kind listed in
clause 52.36-01must be referred to the Director of Public Transport.

18. The Director also raises its concerns regarding the proposed development as
neighbouring property owner in addition to its role as a referral authority.

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Relevant transport provisions of the Scheme

19. Clause 18 in the State Planning Policy Framework under the Scheme provides that
planning should ensure an integrated and sustainable transport system that provides
access to social and economic opportunities, facilitates economic prosperity,

contributes to environmental sustainability, coordinates reliable movements of people

and goods and is safe.

20. The Policy Guidelines of clause 18 require planning to consider the Activity Centres
and Public Transport Network Plan (2010) in addition to the Public Transport

Guidelines for Land (Jse and Developmenl (2008).

21. The objectives of integrated transport (clause 18.01-1) include:

2l.T Co-ordinating improvements to public transport, walking and cycling

networks with the ongoing development and redevelopment of the urban
area.

22. The objectives of the transport system (clause 18.01-2) include the following
strategies:

22.I Reserve land for strategic transport infrastructure;

22.2 Locate and design new transport routes and adjoining land uses to minimise
disruption of residential communities and their amenity;

22.3 Plan or regulate new uses or development of land near an existing or

proposed transport route to avoid detriment to, and where possible enhance
the service, safety and amenity desirable for that transport route in the short
and long terms.

23. The Decision Guidelines of the applicable Business I Zone (buildings and works)
requires consideration by the responsible authority of:

"The movement of pedestrians and cyclists, and vehicles providing for

supplies, waste removal, emergency services and public transport"

24. It is therefore clear that the overriding State Planning Policy Framework and the
applicable Decision Guidelines require public transport implications of the
development proposal for the Property to be taken into account.

25. Furthermore, the Scheme and the Act together require that not only implications for
the existing operations of public transport are taken into account, but also that future
operations of public transport are considered.

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26. Furthermore, an "interface body" is required to have regard to the transport system
objectives when exercising powers and performing functions under any "interface
legislation" which is likely to have a significant impact on the transport system
(s 25(1) of the Act). "Interface body" is defined as meaning a "planning authority"
such as the Tribunal and the Planning and Environment Act 1987 (Yic) is interface

legislation (s 3). Accordingly, the Council and Tribunal must have regard to theAct
on the basis that the development proposal before it may have a significant impact on
the rail corridor in the event that risk mitigation strategies described in the Director's
draft conditions are not included as conditions of approval.

27. In addition, guidelines incorporated into the Scheme should be implernented.

The Guidelines

28. Public transport services and infrastrucfure are required to be integrated into new
development having regard to the Public Transport Guidelines for Land Use and
Developmerzl (Department of Transporl2008) prepared by the Director of Public
Transport in accordance with s 67(1)(d) of the Act (the Guidelines). The Guidelines
are an incorporated document under clause 81 of the Scheme.

29. The Guidelines are intended to assist addressing the public transport access aspects
of layout of major development (page 1).

30. The Guidelines are designed to assist local government authorities, developers,
operators, agencies and consultants in relation to the likely requirements of the
Director of Public Transport when performing a referral authority role.

31. The Guidelines aim to ensure that new developments are designed and implemented
in ways that support public transport operations.

32. In relation to trains, the Guidelines note atpage35:

Opportunities to build new rail lines and stations and extend railway lines
are being investigated and planning continues for the introduction of new
heary rail services. Developers should liaise with PTD on potential
network exten'sions that ma), need to be accommodated in the design of
the development.

In the past, service and network improvements for railways tended to

focus largely on capital infrastructure investment. Land use planning
should support, complement and build on these investments, so as to
optimise land use and transport integration.

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 Proponents are responsible for the interface between a private
development and the train network and should consult with PTD.

-r-r- The Guidelines therefore confirm that the opportunity to develop the rail corridor to
the rear of the Property should be accommodated in the design of the Property.

Part Three: Draft conditions of approval by Director of Public Transport

34. The application for permit by Richmond Icon Pty Ltd submitted to Council triggered
the referral requirement under clause 52.36 of the Scheme to the Director of Public
Transport because the proposed number of dwellings exceeds 60.

35. The application was duly referred to the Director of Public Transport.

36. Draft conditions of approval were submitted by the Director of Public Transport to
Council. The Director of Public Transport does not object to the development of the
Property. Rather, he wishes to protect options for future development of the Rail
Corridor.

37. Following filing of the appeal, the Director has revised his draft conditions of
approval. A revised draft has been circulated and a further revision is attached to this
submission.

38. It is the Director of Public Transport's submission that if the Tribunal is minded to
approve the use and development proposal which is before it in this Proceeding, the
Tribunal should apply conditions of approval to protect redevelopment options for
the Rail Corridor in the future.

Forward tltinking

39. Future-proofing is one of the responsibilities that the Director and the Department
are charged with under the Act. It is not sufficient for the Director and the

Department to examine the current impacts of a development proposal. They are

charged with the responsibility of ensuring that the public transport network will be

effective moving into the future, in 10 years and in 50 years time.

40. Use of Melbourne's public transport network is increasing. Following a dip in the
1 980s through to the recession of the 1990s, patronage is now at an all time high.

41. According to The Victorian Transport Plan (2008), the metropolitan public transport
network cumently carries about 450 million passengers each year, with more than
200 million of these trips occuring on trains (p 62). By 2012113, Government

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 forecasts predict more than 600 million public transport trips per year, with about
300 million trips on trains (p 62). Melbourne's land use and public transport will
continue to be developed in tandem. This will ensure an adequate supply of land for

new development is maintained and public transport services are planned to service
new developments (p 83).

42. The Rail Corridor services the Lilydale, Belgrave and Glen Waverley lines. This is
referred to as the Burnley group. The Rail Corridor was the subject of an upgrade
proposal at the time that the re-development of Richmond Station was last

considered in 2000-2001.

43. I am instructed that the Rail Corridor carries 530 trains per day. During peak times,
it carries a train every 3 minutes.

44. It is Government policy for Richmond Station to be upgraded. The proposed Urban
Renewal Authority may be charged with this responsibility, in addition to
redeveloping Fisherman's Bend and E-Gate.

45. When Richmond Station is redeveloped, it will be necessary to develop the Rail
Corridor and increase the number of train lines located to the rear of the Property.
The upgrade of Richmond Station is referred to as a long term project in Government
policy (refer p 40 of Meeting Our Transport Challenges (2006) and p 83 of The
Victorian Transport Plan (2008)).

46. For this reason, the Victorian Rail Industry Operators' Group Standards (VRIOS)
(2005) includes the Richmond to Camberwell line in the long term clearance

forecasts for the Victorian Network. Appendix 1 sets out options to be retained to
support future track forecasts. It states

Any new, or alteration to existing, Infrastructure on the following routes

must take into account the following forecasts for additional track(s).
This infrastructure must be constructed in such a way as to allow for the
forecasted track(s) to be built through, at a later date, with as little impact
as is reasonably possible.

Richmond to Camberwell I x additional BG Track

47. I am instructed that the VRIOS future tracks are indicative only and specific advice

is encouraged for individual projects. Requirements and desirable future provisions

change as the size and nature of emerging problems clarify. In tum, proposals

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 become modified by practical options and new solutions are considered. In short,
there are no easy answers.

48. One extra track is currently contemplated behind the Property. Development of an
additional track, and the timing of that development, will be heavily dependent on
the design for a re-developed Richmond Station. One of the options that the
Director of Public Transport will consider is a new track running at ground level
along the northern boundary of the rail corridor, to the north of the existing tracks.

49. For that reason, the Director of Public Transport anticipates that it would be
preferable for the protection of future owners of units at the Property for the

development to include contingency measures to ensure that the structure at the

Property is not interfered with.

50. The Director of Public Transport recommends conditions of approval to assist the
developer to minimise risk associated with its long term track forecast for an
additional broad gauge track to the rear of the Property.

51. The Director recommends the appointment of a suitably qualified engineer to advise

on a preferred design option in order to ensure that redevelopment of the Rail

Corridor will not affect the structural integrity of the proposed development.

52. The Director of Public Transport does not currently propose to acquire any of the
Property. However, it is required to protect the option of railway re-development
including building up to the boundary of the Rail Corridor. This may require
excavation of the Rail Corridor, possibly up to the Property boundary. Accordingly,
structures such as permanent soil anchors are not permitted to be installed on railway
land under the proposed conditions.

53. It is not clear from the plans submitted with the application whether or not the
derailment loadings and clearance requirements from Australian Standard AS 5100
and VROIS 001 2005 will be complied with. This provides further support for the
appointment of a suitably qualified engineer. Again, the beneficiary of compliance
with these standards will be the future owners and occupiers at the Property.

54. Once constructed, the track will be required to comply with the collision load
standards in AS 5100:

Any part of any structure specified in Clause 10.4.1, including the

superstructure, within 10 rn horizontally and 5 m vertically of the centre-

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58. In my submission, the Tribunal must consider the risk of significant impact on the
transport system which may arise from the application for permit. These risks
include:

o damage to rail infrastructure arising during construction due to the

proximity of the development site to the Rail Corridor;
. obstruction to the future development of the Rail Corridor in the event that
the development includes below surface concrete pillars that protrude into
the Rail Corridor;
o risk to any future development on the Property when development of rail
infrastructure within the rail corridor occurs;
. delay to the operation of public transport in the vicinity of the Property
during construction; and
. distraction to train drivers in the event that lighting interferes with driver
operations.

59. My client is concerned to ensure that Australian and Victorian standards for
derailment loadings and clearance requirements are met.

60. As noted above, the Director is charged with responsibilities under the Act including:

o Protecting future options for the improvement of the transport system

(s 67(2)(i);
o Planning for the public transport system (s 67(lXb)); and
o Developing and implementing operations policies, plans and guidelines
(s 67(1Xd)).
61. Further, my client is the registered proprietor of neighbouring land and raises
concerns legitimately as a property owner.

Conclusion

62. For all of these reasons, the Director of Public Transport submits that it is essential
that the Tribunal apply all of its draft conditions, in the event that the Tribunal is
minded to approve the use and development proposal before it.

Dated 3l May 2010

Victorian Government So licitor's Office

Solicitors for the Director of Public Transport

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 ANNEXURE ONE

Director of Public Transport

Draft perntit co nditions

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