Community and Moreland Council win in VCAT against Bunnings development in Brunswick. This VCAT decision reinforces Council policies on sustainable development and supporting the shift to sustainable transport.
Glenlyon Road is an important East-West cycling route and the proposed development would have had a major impact on cycling on this arterial route and in the surrounding area. It also reduced pedestrian amenity in the area.
In 199 paragraphs VCAT outlined its rejection of an application by Bunnings to develop a Bunnings store at 145 Glenlyon Road and 6 Pitt Street in Brunswick near to Lygon street citing the developer had failed to take into account the “various competing policies in favour of sustainable development and net community benefit is not right in this case because the impacts are diminishing the quality of, and the opportunity for those alternative transport modes and is prejudicing a contribution to modal shift.”
Moreland Council had rejected the planning application and were represented at VCAT. Local residents and residents groups opposed the development, including Brunswick Residents Network, and raised money for representation and independant traffic experts.
Moreland Bicycle User Group and Walk on Moreland also intervened in VCAT proceedings opposing the development. A large number of Moreland residents had registered objections to this development.
The decision is a win for local residents and Moreland Council on sustainable development and supporting the shift to sustainable transport. See the Stop Bunnings campaign website. Paragraphs 193-195 outline the implications from the Planning scheme for wider implications across Melbourne and Victoria. This is a ground breaking case that has set an important precedent for sustainable development and including mode shift for sustainable transport.
In Paragrapg 198 of the decision the VCAT members explicitly say: “Some of the consequences of this proposal are functional and built form implications for Glenlyon Road as well as consequences for enhancing public transport and cycling as alternative transport modes. This proposal does not advance the policy objectives that encourage modal shift. The balancing of the various competing policies in favour of sustainable development and net community benefit is not right in this case because the impacts are diminishing the quality of, and the opportunity for those alternative transport modes and is prejudicing a contribution to modal shift.”
Unfortunately the tribunal did not accept evidence for net negative or positive social impacts (paragraph 63) and essentially disregarded this as contributing to their decision.
The following are excerpts from the full VCAT decision (PDF). Pargraphs 1 to 7 summarise the whole decision.
2 These reasons generally relate to the acceptability of the site for this proposal, including the detail of the proposed layout and design.
4 The applicant submits their objective is to provide a “Brunswick Bunnings” rather than a Bunnings located in Brunswick. Achieving this objective would contribute to achieving policies in the planning scheme that call for responsive development contributing to a desired future character with an emphasis on developing a pedestrian focussed activity centre environment. Unfortunately, this proposal has failed to achieve this outcome in an acceptable manner when all relevant policies are balanced in favour of sustainable development and net community benefit. Apart from some relatively minor adjustments to the façade of the proposal in the substituted amended plans that provide a canopy over the footpath, some bicycle storage accessible from the footpath, and views into the entrance lobby and the internal café, the proposal otherwise delivers a store that functions in an identical way to many other Bunnings stores across metropolitan Melbourne.
5 The frontage has poor interaction with the street. The café operates internally with no functional relationship to the street. The layout of the development is demonstrative of a car dependent store given the amount of frontage lost to accessways associated with car parking, trade supplies and loading. Whilst some of this will be a necessity, the overall layout does not persuade us that this proposal responds to the policies for a pedestrian focussed activity centre. The design should seek to achieve a predominantly active frontage along Glenlyon Road including views into the retail activity; a café that serves the street; a bicycle parking area that links directly to the entry and preferable allows for a wide range of bikes including large cargo/trailer and electric bikes; and a street elevation that draws upon the emerging character of the area.
6 The traffic generated by this proposal is in contention in this case, particularly for the respondents and the Council. Alternative modes of transport are encouraged in this municipality and throughout the transport policies in the planning scheme. There is general consensus amongst the parties and the traffic engineering expert witnesses that this inner urban area already experiences high traffic volumes. The submissions and materials provided by the respondents illustrate widespread use of bicycles and walking as modes of local transport. Within this existing context, new development is encouraged to minimise its traffic impact through the encouragement of alternative modes of transport over car-based travel. We are not persuaded this proposal acceptably contributes to such policy aspirations. The applicant’s case suggests that traffic will be generated at the anticipated car parking demand identified by the applicant’s expert traffic engineering witnesses regardless of whether car parking is accommodated on this site. Planning policy specifically encourages modal shift in transport, and this will not occur without encouragement of sustainable transport alternatives and design details that seek to protect and enhance existing alternative transport modes. This may require innovation in the functional arrangements of the proposed land uses (restricted retail and timber trade sales) to encourage a greater percentage of pedestrian, bicycle or public transport based customers. This proposal does not strike an acceptable balance in its encouragement of sustainable transport modes.
7 The reasons for our decision highlight the positive and acceptable aspects of this proposal as well as the reasons why we have decided that no permit shall issue. It is hoped that this will assist all parties in the event that a new planning permit application is proposed for a similar type of development and land uses.
63 As is no doubt evident from the above reasoning, the ground floor street frontage is a key concern and a reason why we have decided that no permit should issue. Achieving a design response that can balance the access requirements together with a contribution to a pedestrian friendly and invigorated street life is a design challenge.
73 In making these findings, we acknowledge there could be negative social impacts from this proposal. Whether they are significant has not been shown by Ms Boyce. Whether the identified social impacts are existing impacts or impacts specifically attributable to this proposal has not been shown. What positive social impacts there may be as a result of this proposal are not explored or acknowledged, hence there is no balancing of the net impact. Overall, the evidence is not independent or balanced and we have given little weight to this evidence.
154 The witnesses have all approached the anticipated traffic generation of this proposal differently, hence no agreement was reached at the conclave. Dr Bunting’s addendum submission endeavoured to summarise each witness’ traffic generation rates
155 Dr Bunting observes that all of the witnesses other than Mr Sellars have arrived at rates that are well below those: …commonly reported in previous appeals and panels relating to Bunnings which, as noted at paragraph 184 of our original submission, have been in the order of 3.6 and 7.1 spaces for weekday and weekend peaks, respectively. They are also below the survey data for the Hawthorn store, which showed rates of 2.9 and 8.7 in Mr Young’s evidence and 3.5 and 7 in Mr Sellars’ evidence.
157 These two tables illustrate variation across the stores as well as across the witnesses in terms of the traffic generation rates. In this case, each witness has taken a different approach in regard to how they have determined the P1683/2020 Page 57 of 77traffic generation. Given this, we are not in a position to say which evidence is preferred as they are not prepared in a similar manner.
158 We have taken a “best case scenario” that is derived from considering the evidence of Mr Walsh and Mr Kiriakidis as, overall, their traffic generation rates are lower than the other witnesses. Having done this, we have determined that the traffic impacts (to use a generalised term) are unacceptable. As such, applying the higher traffic generation rates of the other witnesses would result in a worsened outcome and would therefore also be unacceptable.
191 The future growth in metropolitan Melbourne is recognised in planning policy at a State and local level in Victoria’s planning schemes, with strategic policy directions for the metropolitan area also articulated in documents such as Plan Melbourne. Activity centre growth and the creation of 20 minute neighbourhoods are important aspects of the future growth aspirations. The Tribunal has, in previous decisions, commented on the implications of metropolitan growth for sustainable transport, such as in Ronge v Moreland CC:
We have already referred to what can only be described as the massive increase in Melbourne’s population projected through until 2050. Our roads are already congested and will be unimaginably so if a ‘business-as-usual’ approach is accepted through until 2050. The stark reality is that the way people move around Melbourne will have to radically change, particularly in suburbs so well served by different modes of public transport and where cycling and walking are practical alternatives to car based travel.
193 The planning scheme policies also provide particular aspirations to move away from car dependency and maximise alternative sustainable transport modes, including protecting and prioritising these sustainable transport modes. A range of relevant transport policies are summarised and contained in Appendix A to these reasons. They include, for example:
- i Improve access by walking, cycling and public transport to services and facilities;
ii Prioritising the use of sustainable personal transport;
iii Planning the transport system to be safe by separating pedestrians, bicycles and motor vehicles, where practicable;
iv Reducing the need for cyclists to mix with other road users;
v Designing development to promote walking, cycling and the use of public transport, in that order, and minimise car dependency; and
vi For metropolitan Melbourne, to improve local transport options for walking and cycling to support 20 minute neighbourhoods.
194 In regard to designing development to promote walking, cycling, public transport and minimise car dependency, this policy is consistent with the transport network user hierarchy priorities contained in the Moreland Integrated Transport Strategy (MITS). The applicant put to Mr Sellars that this approach in the MITS acknowledges congestion, so these priorities are about managing rather than stopping development, and he agrees. This aligns with the views of Mr Kiriakidis and Mr Walsh that the impact of a proposal such as this one needs to be managed rather than stopped. The fact that it needs to be managed returns to the question of whether the impacts are acceptable, even if in a managed way. During the hearing, the question was posed in differing ways through various submissions as to whether the scale and intensity of this proposed development and land uses is getting more than its fair share of the available transport and road network given how ‘saturated’ the traffic situation already is.
195 As mentioned earlier, these transport policies in the planning scheme were updated and changed by Amendment VC204 in December 2021. The applicant submits a close examination of the changes in the amendment show ‘their effect is not significant insofar as transport planning considerations are concerned’. We are not persuaded of this and prefer the submissions of the Council and community members. They emphasise the description in the Amendment’s Explanatory Report that the amendment updates the policies ‘to focus on integrated decision making that considers the transport system rather than a specific mode’ of transport. The planning scheme general decision guidelines now requires consideration of the current and future operation of the transport system. The strategy about designing development to promote walking, cycling, public transport and to minimise car dependency is clear and unambiguous about where development priorities regarding transport (including traffic) should focus.
Unacceptable traffic impacts
197 The applicant submits refusing a single planning application because of traffic issues is not appropriate, particularly as an inevitable consequence of consolidation is traffic. The applicant’s position is that traffic ought to be the servant and not the master of land use planning, and that outright refusal on traffic grounds is a very rare case, and not this case. We agree in general terms, however that does not mean that refusal on such grounds will never be appropriate. Rather, it depends upon the merits of the particular proposal in light of the relevant facts and circumstances of the site and its surrounds and the relevant planning policies and controls. Having regard to the factors that we are required to consider in the planning scheme including the discretion to be exercised in considering impacts associated with traffic generation, we are unable to conclude on balance that this proposal has acceptable impacts.
198 Accepting that a poor intersection (in some circumstances) still enables movement through it albeit delayed, the issue is the acceptability of the relative changes resulting from a development to that intersection. The impacts upon the saturation of the intersection, increased queue lengths, delays in public transport service times, and the need for changes to existing road conditions including keep clear space, loss of on-street parking, potential impacts on the design and safety of cycle lanes, the type of additional traffic ranging from private cars to heavy rigid vehicles, the access points for all of these vehicles all in combination fail to contribute to the advancement of the transport policies, particular the sustainable transport policies. Some of the consequences of this proposal are functional and built form implications for Glenlyon Road as well as consequences for enhancing public transport and cycling as alternative transport modes. This proposal does not advance the policy objectives that encourage modal shift. The balancing of the various competing policies in favour of sustainable development and net community benefit is not right in this case because the impacts are diminishing the quality of, and the opportunity for those alternative transport modes and is prejudicing a contribution to modal shift.
199 For these reasons, the decision of the Responsible Authority is affirmed. No permit is to issue.