Reasons for Decision to Exercise Power of Intervention

REASONS FOR DECISION TO EXERCISE POWER OF INTERVENTION

UNDER SECTION 20(4) OF THE
PLANNING AND ENVIRONMENT ACT 1987

Brimbank PLANNING SCHEME

Hobsons Bay PLANNING SCHEME

Maribyrnong Planning scheme

Melbourne planning scheme

Port of Melbourne planning scheme

Wyndham PLANNING SCHEME

AMENDMENT GC65

The Planning and Environment Act 1987 (the Act), the Heritage Act 1995 and the Victorian Civil and Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in planning and heritage processes.

In exercising my powers of intervention, I have agreed to:

§  Make publicly available written reasons for each decision; and

§  Provide a report to Parliament at least every twelve months detailing the nature of each intervention.

REQUEST FOR INTERVENTION

1.  The Western Distribution Authority (WDA) has requested this intervention to facilitate the delivery of the West Gate Tunnel Project (project).

WHAT POWER OF INTERVENTION IS BEING USED?

2.  I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect to Amendment GC65 (amendment) to the Brimbank, Hobsons Bay, Maribyrnong, Melbourne, Port of Melbourne, Wyndham planning schemes (planning schemes).

3.  Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations. In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

4.  I have decided to exercise this power for two independent reasons: first, I consider that the interests of Victoria make such an exemption appropriate; and second, I consider that compliance with the requirements is not warranted in all the circumstances.

BACKGROUND

5.  The project was initially proposed by Transurban in March 2015 pursuant to the Victorian Government’s Market-Led Proposal Guideline. This proposal led to discussions with the Victorian Government and key stakeholders, and the preparation of a business case and reference design. The Victorian Government released the business case in December 2015 and announced that it would proceed with the project.

6.  In late 2016 and early 2017, the Victorian Government conducted a competitive tender process for the design and construction of the project informed by the reference design. CPB John Holland Joint Venture was selected to design and construct the project and its design has been the subject of the Environment Effects Statement (EES).

7.  The project includes the following key components:

·  Upgrading and widening of the West Gate Freeway from eight to 12 lanes between the M80 Ring Road interchange and Williamstown Road.

·  Two tunnels extending from two separate southern portals on the West Gate Freeway to a northern portal near the Maribyrnong River and the Port of Melbourne.

·  A bridge crossing of the Maribyrnong River, connections to the Port of Melbourne, CityLink, Footscray Road and Dynon Road, and an extended Wurundjeri Way.

8.  The project will:

·  Contribute to significant improvements across the freeway network by delivering an alternative to the West Gate Bridge, providing a much needed second river crossing, increasing capacity and reducing travel times and congestion.

·  Improve freight efficiency and cater for predicted growth at the Port of Melbourne by providing direct access from the freeway to the Port of Melbourne.

·  Improve safety and amenity by reducing truck traffic from residential areas on many local roads.

·  Improve pedestrian and cycling linkages and provide several new open spaces.

9.  The amendment is required to:

·  Facilitate the delivery of the project in a timely, coordinated and consistent manner.

·  Establish a transparent framework to manage environmental effects associated with both the construction and operational phases of the project.

·  Protect project infrastructure from new development that may compromise the structural integrity of that infrastructure or adversely affect the operation of that infrastructure.

·  Ensure the main works for the project can be planned with certainty and commence without delay.

10.  The amendment will allow the use and development of the land in the project area for the project in accordance with the West Gate Tunnel Project Incorporated Document, December 2017 (incorporated document).

11.  The amendment will also:

·  Make the Minister for Planning the responsible authority for administering and enforcing the provisions of the Brimbank, Hobsons Bay, Maribyrnong, Melbourne and Wyndham planning schemes as they relate to the use and development of land for the project.

·  Apply a Design and Development Overlay to land in Hobsons Bay and Maribyrnong that is above and adjacent to project infrastructure to ensure new development does not compromise the structural integrity or operation of that infrastructure.

·  Make the Secretary to the Department of Economic Development, Jobs, Transport and Resources (and the Roads Corporation from 31 December 2026) the determining referral authority for applications under the Design and Development Overlay.

12.  To the extent the new provisions allow the land to be used and developed for the project, the incorporated document will:

·  require the project to be carried out generally in accordance with the West Gate Tunnel Project Development and Urban Design Plans, December 2017 (DUDPs) and in accordance with the West Gate Tunnel Project Environmental Performance Requirements, December 2017 (EPRs);

·  include a condition requiring an environmental management strategy to be approved by the Minister for Planning prior to the commencement of main works; and

·  include conditions relating to the provision of native vegetation offsets, preparatory buildings and works, and the public availability of approved plans.

13.  On 18 May 2017, I appointed an inquiry under section 9(1) of the Environment Effects Act 1978 and an advisory committee under section 151 of the Planning and Environment Act 1987, to jointly consider and report on the project. The joint inquiry and advisory committee is known as the West Gate Tunnel Project Inquiry and Advisory Committee (IAC). The terms of reference (TOR) for the IAC were approved on 26 May 2017.

14.  Among other things, the TOR required the advisory committee to review the draft amendment prepared by the WDA to facilitate the delivery of the project and any submissions received in relation to the draft amendment, conduct a public hearing, and provide a report to me on the appropriateness of the proposed planning controls.

15.  The WDA prepared the EES and its appendices, including the draft amendment to facilitate the delivery of the project.

16.  The EES and its appendices were exhibited for a period of 30 business days from 29 May to 10 July 2017 with submissions invited during this time. The WDA was responsible for consulting with key stakeholders during this exhibition process and the following engagement activities were undertaken:

a.  The EES, including the draft amendment, was published on the West Gate Tunnel Project website and was available for viewing at 12 locations in Melbourne’s west as well as Geelong and Ballarat.

b.  A community update was sent to nearly 64,000 residences along the project alignment advising of the exhibition process for the EES.

c.  A notice was published in The Age, The Australian, Herald Sun, Geelong Leader, Ballarat Courier, local newspapers and non-English print newspapers advising of the exhibition process for the EES.

d.  An e-news bulletin was sent to over 2,000 subscribers on the West Gate Tunnel Project mailing list.

e.  A door knock was carried out along Millers Road, north of the West Gate Freeway to advise residents about the exhibition process for the EES.

f.  Thirteen information sessions were held in June 2017 to provide an opportunity for interested parties to speak with specialists who prepared the EES.

g.  Stakeholders briefings were held with over 60 different groups and businesses.

h.  Regular project updates were provided on social media.

17.  A total of 504 submissions were received during the exhibition process and all submitters were provided with an opportunity to be heard at the public hearing. The public hearing for the advisory committee was held jointly with the Inquiry into the EES and was convened from 14 August to 19 September 2017.

18.  The IAC considered a wide range of matters including:

·  Policy and legislative support for the project (including policy support under the applicable planning schemes)

·  Business, land use and social impacts

·  Traffic and transport impacts

·  Heritage impacts

·  Noise and vibration impacts

·  Air quality impacts

·  Urban design impacts

·  Environmental impacts such a vegetation removal and impacts on flora and fauna.

·  The draft amendment.

19.  The IAC provided its report to me on 23 October 2017.

20.  I made my assessment of the environmental effects of the project pursuant to section 4(1) of the Environmental Effects Act 1978 on 23 November 2017.

21.  The Minister for Roads and Road Safety considered this assessment and wrote to me on 1 December 2017 to:

·  Accept each of the responses to the IAC recommendations set out in section 6 of my assessment.

·  Accept the recommended EPRs contained in Appendix A of my assessment with a correction to NVP1.

·  Confirm that WDA is working to revise the DUDPs and EPRs to satisfy the recommendations of my assessment.

22.  On 1 December 2017, WDA requested that I amend the planning schemes and provided the following documents:

a.  A full set of amended DUDPs.

b.  Amended EPRs in accordance with the recommended EPRs contained in Appendix A of the assessment with a correction to NVP1.

c.  A full set of amended project area plans.

23.  The amended DUDPs include the following changes consistent with the recommendations in my assessment:

a.  The lowering of sections of the Wurundjeri Way extension and a new signalised intersection at the Dynon Road link.

b.  Increases in the heights of noise walls.

c.  The addition of transparent panels on the Mackenzie Road ramps across the Maribyrnong River.

d.  The addition of a notation about further design refinement to optimise traffic performance around the southern portal.

24.  WDA also made further changes to the DUDPs beyond what was required by my assessment. These further changes include:

a.  Modifications to the design of the Hyde Street ramp from west of Melbourne Road to west of the Williamstown Railway Line.

b.  Changes to the boundary of the project area at the corner of Primula Avenue and Millers Road, Brooklyn and near Dynon Road, West Melbourne.

c.  Identification of the location of the incident response staging area near Millers Road and its interaction with the shared use path network.

d.  Administrative changes to address inconsistencies in the DUDPs exhibited in the EES.

25.  The IAC report and my subsequent assessment have informed the preparation of this amendment.

Benefits of exemption

26.  The main benefit of the exemption is that it will enable a prompt decision to be made on the adoption and approval of an amendment which facilitates the timely delivery of a project that will contribute to significant improvements across the freeway network, improve freight efficiency and cater for predicted growth at the Port of Melbourne, and improve safety and amenity on local roads.

27.  The exemption of the amendment from the requirements of section 17, 18 and 19 of the Act and the regulations will mean the benefits of the project are able to be delivered sooner, and the social and economic consequences of delaying the delivery of the project are avoided.

Effects of Exemption on Third Parties

28.  The effect of the exemption is that third parties will not receive formal statutory notice of the amendment and will not have the opportunity to make a submission or be heard by a panel appointed under Part 8 of the Act in relation to the amendment.

29.  Third parties who may be affected by the amendment were provided with the opportunity to make a submission and be heard at the public hearing as part of the IAC process. This process provided submitters an opportunity to address, amongst other things, the planning merits of the project and the appropriateness of the draft amendment. The IAC report, and my subsequent assessment of the environment effects of the project, informed the preparation of this amendment.

30.  To the extent this amendment includes changes to the DUDPs beyond what was publicly exhibited and considered as part of the IAC process, I am satisfied that further notification and consultation is not required on the basis that:

a.  People who may be affected by the project were provided with the opportunity to make a submission and be heard at the public hearing as part of the IAC process. Submissions and other evidence were considered by the IAC, and this, together with the IAC report and my assessment, informed the preparation of the amendment. This process is broadly equivalent to that which would be conducted by any panel under Part 8.

b.  the changes to the DUDPs can generally be characterised as changes that respond to submissions made by third parties during the public hearing process or other matters that arose during the course of the IAC hearing.

c.  further, the changes are either relatively minor or will generally result in lesser impacts on third parties.

d.  in all cases, the changes to the project will be subject to EPRs which were the subject of public submissions before the IAC, and which will ensure that appropriate environmental outcomes will be achieved.

e.  Transport for Victoria and VicRoads, have been consulted with and have provided written support for the lowering of Wurundjeri Way and the at-grade intersection between the Dynon Road connection and the Wurundjeri Way extension.

31.  The incorporated document has been amended since the IAC process to include additional conditions associated with the use and development of the project. In addition, the EPRs have been amended to reflect the recommendations set out in my assessment.

32.  To the extent this amendment includes additional land in the project area beyond what was publicly exhibited and considered as part of the IAC process, I am satisfied that: