Mees v M-Tram [2004] VCAT 369

(a) Adding the following as an additional condition to the permit to issue:

`Before the development starts plans to the satisfaction of the Responsible Authority must be submitted to and be approved by the Responsible Authority. When approved the plans will be endorsed as evidence of their approval. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) the southern pedestrian crossing moved by approximately 4m;

(b) the road kerbing in front of the Dental Hospital being lowered to an appropriate level to enable easier access for ambulance services;

(c) an additional car parking space provided on the east side of Swanston Street immediately north of the two existing car parks north of Grattan Street;

(d) the vehicle crossing from Lynch Street into Swanston Street being left turn only and designed with additional splaying of the kerb to cater for a 10m long vehicle.'

(b) Amending the use/development allowed by the permit to read:

`Construct a tram superstop, including a new platform and shelters and associated trackwork for tram shunting and to use the tram superstop as a light rail station.'

The Tribunal directs the issue of a permit in accordance with the Responsible Authority's determination to grant subject to the above variations.

Mr Adrian Finanzio of Counsel, instructed by Minter Ellison

1 The University of Melbourne has occupied its main campus in Parkville, Melbourne, since the University's institution in the mid-1850's. The campus is located between Parkville and Carlton, to the north of the Central Business District. It is bounded on the southern or city side by Grattan Street; on the west by the tree-lined boulevard, Royal Parade and on the east by Swanston Street. An east-west road, across the campus known as Tin Alley represents the northern boundary of the campus proper. The central area to the north of Tin Alley is taken up with sporting facilities and ovals. The perimeter of the area to the north of Tin Alley is taken up with a number of residential colleges. The northernmost point of the campus is delineated by a curve or crescent shaped thoroughfare known as College Crescent which joins Swanston Street and Royal Parade.

2 This proceeding concerns tram services in Swanston Street on the eastern boundary of the campus. Swanston Street terminates in the north at the south-eastern end of College Crescent. It runs from there southwards through Carlton and the Central Business District past the city's major suburban station, Flinders Street, and across Princes Bridge. It then becomes the Metropolis's major tree-lined boulevard, St Kilda Road, travelling several kilometres in that form to the site of the former St Kilda Junction where a number of roads break-off to the south-east including Dandenong Road and Brighton Road (Nepean Highway). Swanston Street is rightly described in the Melbourne Planning Scheme as the city's `civic spine'.

3 Swanston Street is also in many respects the major route in Melbourne's tram system. The trams run north along St Kilda Road from the former St Kilda Junction across Princess Bridge, through the Central Business District, through Carlton and turn off to the east at Elgin Street which is one block short of the northern end of Swanston Street and on an alignment opposite Tin Alley. Many tram routes join St Kilda Road and then Swanston Street from the major roads leading into St Kilda Road such as High Street, Domain Road, Commercial Road, Dandenong Road and Brighton Road. These come from the south and the east of the Metropolitan area and terminate in the City. In addition there are a number of services operated from the Brunswick Depot which run north from the city and from the turn-off point at Elgin Street join Lygon Street, Carlton and head into the northern suburbs. The vast bulk of the large number of trams on Swanston Street need to turn and shunt at or near the city to return to their points of origin in southern and south-eastern suburbs. The percentage of services which head north via Elgin Street and Lygon Street, Carlton, is relatively small. Until 1997 the Swanston Street services terminating in the city turned or shunted at a complex of tracks and a tram signal box at the triangular intersection of Swanston Street, Victoria Street and Franklin Street on the northern edge of the Central Business District. In 1996 there was a passenger fatality at the complex. It seems as a result of this event that the tram operators decided to move the shunting point for the southern suburban services on Swanston Street north from this location to the area between the intersection of Faraday Street and Swanston Street and the intersection of Elgin Street and Swanston Street. Both these streets form `T' intersections with Swanston Street meeting it opposite the eastern boundary of the University of Melbourne's campus. Elgin Street as previously noted is approximately opposite the internal university road known as Tin Alley and Faraday Street is approximately opposite the internal university road known as Monash Road. Until 1997 only a relatively small number of the southern suburban trams had been shunted at this location and only at peak hour.

4 Today, Swanston Street at this point is characterised as a secondary arterial road which according to Mrs Kate Partenio, a Traffic Engineer, carries of the order of 13,500 vehicles per day. There are traffic signals at Grattan Street aligned with the southern boundary of the University campus and at the intersections of Faraday and Elgin Streets. According to Mrs Partenio between Grattan Street and Faraday Street

`Swanston Street is typically configured as a single traffic lane in each direction with restricted kerbside parking on both sides of the road. North of the signalised Faraday Street intersection Swanston Street is configured with two traffic lanes in each direction with no stopping restrictions in place.'

5 The major tram service to that part of the University campus is provided by a northbound tram stop with safety zone on the south of Faraday Street and a southbound tram stop with safety zone to the north of Faraday Street. Both include the typical yellow painted concrete tapering car deflector barrier between the safety zone and the oncoming traffic. The zone itself is 1.3m wide protected by metal barriers on the kerbside. The stops are approximately 65m in length. Mr Greer the Manager, Depots and Operations for M>Tram said that the tram terminus now at the University of Melbourne is `M>Tram's fourth highest patronaged tram stop'. He said that 650 trams approximately terminated and shunted to return to the south at this location.

6 A simple terminus that might be found at the end of a single route would typically entail a crossover approximately one tram's length from the end of the outbound track. The crossover track would lead in the inbound direction joining the outbound track to the inbound track enabling a double-ended tramcar to turn around and return to the city or the other end of its route. The present terminus serving so many routes is more elaborate. Just north of the existing southbound tram stop the north and southbound tracks spread out so that a third track terminating at Elgin Street can join the southbound track. There is one crossover enabling tramcars to enter this third track from the northbound track but there are two crossovers which would enable a shunting tramcar to head south and enter the southbound track returning to the central city and beyond. There is a low concrete shelf on either side of the track area in this section approximately half the height of an orthodox kerb. Presumably the intention is to deter motor vehicle traffic from riding over the tracks and obstructing them. It would provide no obstacle to a pedestrian seeking to cross in this area; however fencing has been erected on the outer edge of the footpath running between the western edge of Swanston Street and the eastern edge of the University campus from Faraday Street north almost to Elgin Street. This fencing is intended to stop pedestrians crossing in this area from the heavily trafficked footpath adjacent to the University campus. Pedestrians on the eastern footpath of this section of Swanston Street would also be prevented or deterred from crossing because having crossed the carriageway they would be unable to gain access to the footpath without scaling the fence. According to Mr Greer of M>Trams

"At present the existing terminus can hold three `Z' class trams at any one time. However the entrance is set up in such a way that if one tram is stored at the front of the shunt, no other tram can enter or leave the terminus. This stop is the largest delay point in the network."

7 M>Tram proposes to reconstruct the terminus and shunting facilities so as to replace the existing orthodox northbound and southbound tram stops located respectively south and north of the Faraday Street intersection by a single island platform which will be in compliance with the Disability Discrimination Act of the Commonwealth providing at-grade access to trams rather than the present arrangements which require passengers to step up to the vehicle effectively rendering them inaccessible to the wheelchair bound and difficult for persons with orthopaedic disabilities to board. This proposed new platform would be 84m in length (an original design of 88m length was modified to meet concerns expressed by the Royal Dental Hospital, an adjacent land owner.) The island platform would be some 7m wide and would include an amenities block at the Faraday Street end.

8 Meanwhile the tracks north of Faraday Street would be reconstructed so as to provide three distinct shunting areas with three entrances and three exits. According to Mr Greer

`Automatic signalling controls the movement into each tram shunt and signals control the movement out of the tram shunts onto the down main lines.'

9 The proposal also entails the removal of kerbside power and tramline poles and their replacement with centrally located poles to enhance the streetscape. The power cables for the tram and lights would be hung from the centrally located poles and other services would be placed in an underground duct. The kerbside fence between Faraday Street and Elgin Street would be removed and replaced with fencing for the entire distance of the shunting area between Faraday Street and Elgin Street and around the island tram stop itself. According to Mr Greer the island platform will include the following features:

* An information/operational booth for ticket sales and operational supervision. The booth will also incorporate a tea making and driver toilet facility;

The fencing next to the island platform itself is introduced to deter passengers from disembarking on the wrong side of the tram should the doors on that side be open. There would then be access for one lane each northbound and southbound for motor traffic together with bicycle lanes in both directions.

10 A firm of architects lodged an application for a permit for `tram terminus and stop' under the terms of the Melbourne Planning Scheme. The Melbourne City Council as Responsible Authority for that scheme designated the application TP03/1035. It issued a Notice of Decision to Grant a Permit to `construct a tram superstop, including a new platform and shelters' subject to some five conditions.

11 In association with the proposal Council took action pursuant to the terms of the Local Government Act 1989 to prohibit right-hand turns into and out of Faraday Street. Whilst no particular statutory action is required, we were informed in the course of the hearing by Ms Bannister of Blake Dawson Waldron, appearing on behalf of the City, that it would take action to restrict turns into Monash Road on the University of Melbourne campus so as to prohibit right-hand turns into and out of its intersection with Swanston Street.

12 Four objections were lodged to the grant of the permit from Mrs Joanna Pace of 163 Lygon Street, Carlton; Dr Paul Mees of the Faculty of Architecture, Building and Planning in the University of Melbourne; Dr T. Batten of Dental Health Services Victoria, 720 Swanston Street, Carlton (the Royal Dental Hospital) and the Carlton Resident's Association. The Association withdrew its objection subject to:

`Landscaping condition to the permit for the undergrounding of overhead cables in Swanston Street between Elgin and Grattan Streets and Council commits to the planting of trees ...'.

13 Dental Health Services Victoria lodged an application to review Council's decision on 24 December 2003 but subsequently withdrew its objection subject to a design modification to the `superstop'. The matter had come before the President of the Tribunal on 19 December 2003. On that day he gave leave to Dental Services Victoria pursuant to Section 82B of the Planning and Environment Act to:

`Apply for review of the decision of the Melbourne City Council in relation to a tram superstop at the corner of Swanston Street and Faraday Streets, Carlton.'

`To join with Mr Paul Mees as an applicant for review of the decision of Melbourne City Council to grant a permit in relation to a tram super stop at the corner of Swanston and Faraday Street, Carlton.'

14 The President directed that the matter be heard and determined on 12 January. Dr Mees commenced proceedings in the Supreme Court of Victoria seeking orders delaying the hearing. Ultimately those Court proceedings were settled on the basis that the hearing was deferred and it came on before us on 23 February 2004.

15 The site of the proposed works and development is primarily within a Public Use Zone in land listed for Public Uses 2 (Education) and 3 (Health and Community). A small portion of the land on the south side of Faraday Street is within a Mixed Use Zone. This latter zone covers the eastern half of the Swanston Street carriageway to the south of Faraday Street. The balance of the site of the proposed works and development is in the Public Use Zone. Again, the western half of the Swanston Street carriageway, south of the mid-point of Faraday Street is affected by Design and Development Overlay No. 45. The eastern half of Swanston Street to the north of the mid-point of Faraday Street is affected by Design and Development Overlay No. 46.

16 Ms Bannister of Blake Dawson Waldron appeared for the City of Melbourne. She submitted that the proper characterisation of the proposed land use was as a `tramway', this she said was a Section 1 Use (as of right) under both relevant zones. She observed however that the Design and Development Overlay No. 45 requires that a permit be obtained for the development. She said that `the design criteria contained within the relevant schedule to the overlay are clearly not infringed by this proposal.'

17 She said however that if the tram terminus fell within the definition of `railway station' or `transport' terminal `the small part of it which is included in the Mixed Use Zone would require a use approval'. She said the Victorian Planning Provisions included no definition of tramway and therefore it bore its ordinary or popular meaning. She referred to a definition in the Macquarie Dictionary, Federation Edition which defines tramway as follows:

`1. Usually a system of grooved tracks laid in urban streets, forming routes for the conveyance of passengers and trams;

`This definition clearly conceives of a tramway as a whole co-ordinated system for the movement of passengers in trams. In our submission, the land use term "tramway" should be taken to mean the entire system of physical tramway infrastructure required to support the movement of persons in trams. It follows that things such as tram stops, shelters, safety fencing, shunting areas, ticket vending machines and staff amenity facilities would be included in the definition of tramway.'

She referred to a decision of the Supreme Court of Victoria in Hourigan v Bendigo Tramway Co Ltd [1897] VicLawRp 52; (1896) 22 VLR 273 which she said decided that `tramway' for the purposes of the Tramways Act 1890 included the `whole work which the specification and the plans provide for'. She observed that the Rail Corporations Act 1996 separately defined rail infrastructure and tram infrastructure. She said that neither definition referred to shunting areas `but these would appear to be captured by reference to track structures and works, or by, yard and depots.' She said that the Rail Corporations Act' which provides `for the establishment of certain passenger transport corporations and ... for the transfer of property rights and liabilities to them' was the source of M>Tram's statutory power to construct the tramstop. She said that the Act `clearly conceives of rail and tram infrastructure operations as distinct and independent uses of land, subject to different contractual and statutory frameworks.'

18 She said that a tram superstop such as was proposed here could fall within the definition in the Victorian Planning Provisions of railway station which is as follows:

`Land used to assemble and distribute goods and passengers and includes facilities to park and manoeuvre vehicles. It includes a light rail station. It may include the selling of food, drinks and other convenience goods and services.'

She said that this definition supported her client's characterisation `given that it incudes an express reference to light rail station but contains no express reference to tram stops or other tram infrastructure.'

`A permit is not required to use or develop land for a tramway within a Mixed Use Zone, however, if the use was characterised as a railway station, it would be under Section 2, and require a permit.'

She said a permit was not required to use or develop land for a tramway or a railway station within a Public Use Zone. She submitted that:

`The design and built form objectives of Schedules 45 and 46 [that is the ones relating to the Design and Development Overlays so numbered] relate only to building height and setback and are intended to reinforce the importance of Swanston Street as a major thoroughfare and pedestrian and public transport route.'

She noted however that a permit was required under these Design and Development Overlays to construct a building or carry out works.

20 She referred to Clause 4.5.4 of the City's Municipal Strategic Statement which set out as an aim to:

`Promote improvements to public transport services and facilities, including an expansion of free public transport services in the CBD and increased interconnection between tram, train and bus services.'

21 A draft of a new Municipal Strategic Statement now under consideration by a Ministerial Panel stated, according to Ms Bannister at Clause 21.07-1 that the Council should:

`Support the upgrade and sensitive development of key tram routes such as Collins Street, Bourke Street, Swanston Street and St Kilda Road.'

22 She said that Council's policy document `Carlton 2010' favoured the development of Swanston Street as being a civic spine and a tree-lined avenue. She said that Clause 22.13 of the Local Planning Policy for Carlton's Mixed Use Zone required consideration of the following matters:

`* Land uses which contribute to or support a balance between the educational, commercial and residential role or that serve the major institutions of the area and CBD ...

* Land uses that support the continued revitalisation of Lygon and Elgin Streets as a broad-based retail and commercial centre servicing local needs, visitors and tourists ...

* Interaction and surveillance between the public domain should be encouraged in the design and layout of uses and activities along important pedestrian networks.'

23 She then referred to the State Planning Policy Framework submitting that in relation to declared highways, railways and tramways the objective of the SPPF was:

`To integrate land use and transport planning around existing and planned highways, railways, principal bus routes and tram lines.'

She said the policy stated with regard to the implementation of that objective:

`Transport routes should be located to achieve the greatest overall benefit to the community and with regard to making the best use of existing social, cultural and economic infrastructure, minimising impacts on the environment and optimising accessibility, safety, emergency access, service and amenity.

The design of transport routes and nearby areas should be planned and regulated to achieve visual standards appropriate to the importance of the route with particular reference to landscaping, the control of outdoor advertising and, where appropriate, the provision of buffer zones and resting places.'

She also referred to the objective of integrating educational facilities, referring to Clause 18.07-2 of the State Planning Policy Framework which provides:

`Secondary and tertiary education facilities should be located in areas which are highly accessible to public transport.'

24 Next she referred to Initiative 8.2.1 appearing in the Metropolitan Strategy document `Melbourne 2030' which states that planners should:

`Identify and develop strategies to deal with on-road public transport "red spots" that delay services across the network, through a co-operative program between VicRoads, the Department of Infrastructure and private transport providers.'

She said that the proposed superstop's provision for the disabled facilitates the objectives set out in the strategy to make the infrastructure more accessible to the disabled.

25 She submitted that the proposal was also in conformity with the 2000 edition of the University of Melbourne's Master Plan.

26 With regard to the submissions foreshadowed by Dr Mees in his statement of grounds, she rejected any case which he might make for locating the proposed new stop on an alignment with the campus access route known as Masson Way, located approximately half-way between the alignment of Elgin and Faraday Streets. She said that to relocate a stop of the dimensions necessary to comply with the Disability Discrimination Act and to cope with larger trams proposed for the M>Tram fleet would not allow the location of an adequate shunting yard. She noted that in the area of Swanston, Monash and Faraday Streets there had been `11 casualty clashes in the past five years'.

27 She submitted in any event that the availability of alternative sites was not relevant to the Tribunal's proper responsibilities in determining this proceeding.

28 Under cover of that objection, she said that the relocation of the shunting area to Swanston Street north of Elgin Street was inappropriate because it was zoned Residential 1 and would require significant pruning of mature Elm Trees on both sides of the road. Further, it would increase tram delays by requiring the trams to negotiate another set of traffic lights.

29 She also ruled out Elgin Street as a site for the shunting yard. She said it was zoned Residential 1 and a large scale shunting there would require a partial closure of an intersecting street known as Cardigan Street to through traffic. That proposal would remove all 30 on-street car parks servicing hotel, residential and business properties; would increase delays by requiring trams to negotiate another set of traffic lights and in any event the street and buildings on the north side were subject to a heritage overlay.

30 She concluded that no potential alternative canvassed was satisfactory.

31 In so far as an element in the University Master Plan 2000 provided for the creation of a forecourt and ceremonial entrance at Masson Way it should be regarded as visionary. In any event she said implementation of this plan which would require a partial demolition of the Richard Berry building which now reaches the western alignment of Swanston Street and therefore narrows the footpath between Masson Way in the north and Monash Road in the south would alleviate pedestrian congestion.

32 She said that the proposed restrictions on traffic in Faraday Street were authorised by the Local Government Act 1989 and so were not subject to review by the Tribunal. She said however that a report obtained by M>Tram from John Piper Traffic showed that in concert with the total traffic flows in Swanston Street, the restrictions on Faraday Street were not unreasonable.

33 Ms Bannister noted that 21 car spaces in Swanston Street, 17 on the east side and four on the west side would be lost. Nevertheless she said that this loss was balanced by the improvement to the public transport system and also by the `ready access to on and off street parking in the Carlton area'. Ms Bannister submitted:

`The visual amenity of Swanston Street will be improved by M>Tram paying for the undergrounding of the overhead electrical cables running along the western footpath of Swanston Street. This will enable the introduction of additional elm trees along the Swanston Street footpath, reinforcing the Council's vision for Swanston Street as a major civic spine and tree lined thoroughfare. The proposal also involves the removal of the catenary lines and their replacement with a central pole.'

34 These matters together with the increase in public transport efficiency and compliance with the Disability Discrimination Act justified the proposal.

35 Ms Bannister called evidence from the City's Senior Urban Designer, Mr Moore.

36 Dr Mees submitted that in each of the two relevant zones, namely Mixed Use Zone and the Public Use Zone, tramway was listed as a use as of right. He said nevertheless:

`That this term should be interpreted by analogy with "road" use, and would therefore not cover the proposed tram terminus or shunting yards, which therefore require a permit.'

He said, as to the Design and Development Overlays, that both sought to encourage pedestrian traffic in the precinct. As to the City's Municipal Strategic Statement he referred to Aims 6.2 and 6.3 as follows:

`Traffic impact on the environment will be reduced. To contribute to this, Council will ... promote integration and connection of public transport ...

Travel methods other than car encouraged. To contribute to this, Council will facilitate use of bicycles, motor-cycles and walking [and] increase safety and amenity for walkers and cyclists.'

As to the Strategic Statement, Melbourne 2030, he noted that Policy 8.1 advocated an increase of public transport's share of travel from 9 percent to 20 percent. Policy 8.3 incorporated a requirement that proposals for change to the transport system should be tested for consistency with Melbourne 2030's sustainability objectives. Policy 8.7 stated `give more priority to cycling and walking...'. He said the effect of these policies was

"To elevate the safety and convenience of pedestrians and public transport users to a dominant position: the needs of these users must be given higher priority than those of motorists.'

37 He said that in contrast the Council had made its determination `exclusively, or mainly, on the basis of its effects on tram operations and motor traffic'. He said that it conducted no or no adequate assessment on the effects on pedestrians, nor he said had Council considered the proposal in conjunction with the University's 2000 edition Master Plan. He concluded:

The result is the approval of a proposal that will be unsafe and inconvenient for pedestrians and will compromise the urban design of the area. Such an outcome cannot be defended by arguing that the outcome is no worse than the current arrangements (which are also unsafe and inconvenient); it could only be defended if there was no prudent or feasible alternative. In fact, a range of superior alternatives exist, but appear to have been cursorily dismissed without adequate investigation because they may inconvenience a relatively small number of motorists. The planning policies and controls make it clear that inconvenience to motorists is not a basis for rejecting measures that will promote walking and public transport safety and usage.'

38 Dr Mees called evidence from Professor Kim Dovey, Professor of Architecture and Urban Design at the University of Melbourne; Dr Andrew Norton of the Department of Civil Engineering at Monash University. Dr Mees also gave expert evidence as the holder of a doctorate in transport planning from the University of Melbourne and a Senior Lecturer in the Faculty of Architecture, Building and Planning on Transport Planning.

39 Dr Mees said the new stop should be located approximately opposite Masson Way an internal university roadway crossing the campus midway between Tin Alley and Monash Road. This, he said, was the major exit point for undergraduates at the evening peak approximately 5.15 pm following the end of 4.15 pm lectures. He said this would be consistent with the University's Master Plan for Masson Way and its suggestion for a pedestrian link via an extension of Tyne Street and would avoid the dangers and inconvenience of thousands of students at peak time moving at once along the Swanston Street footpath south from Masson Way to Monash Road to cross to the new superstop south of Faraday Street.

40 Ms Pace was critical of the present proposal as being an obstacle not only to the safe and convenient pedestrian access by the members of the University community to southbound trams in Swanston Street but also pedestrian accessibility by the wider inner-suburban community.

41 The proponent, M>Trams was represented by Mr Finanzio of Counsel. According to Mr Finanzio key issues arise in the proceeding:

`(a) whether the design and layout of the terminus is appropriate having regard to vehicular, pedestrian and public transport traffic and operations;

(b) whether the design and layout of the proposed commuter shelter is appropriate in urban design terms; and

(c) whether the general location of the proposed terminus and tram stop is appropriate in strategic planning terms.'

42 He submitted that the objectors' case was based upon a comparison of the proposal with what they suggested was an ideal solution rather than on a comparison with current conditions.

`it is not for the Tribunal to entertain alternative locations or configurations as a starting point. In other words it is not for the Tribunal to adopt some hypothetical proposal as benchmark or best solution and work backwards, as is typified by the approach of Dr Mees'.

44 He submitted this submission was made good by the following decisions of the Town Planning Appeals Tribunal and Planning Appeals Board, namely Spong v Minister for Planning (1985) 15 APAD, 418; Guest v City of St Kilda (1985) 17 APAD 288, 296; General Television Corporation Pty Ltd v City of Richmond (1985) 16 APAD 2875, 289; Finlay v Shire of Alexandra (1983) 11 APAD 264, 270 and Briant v City of Knox (1985) 15 APAD 443. He noted that a decision taking a contrary line, namely Metropolitan Transit Authority v Ministry for Planning and Environment (1986) 25 APAD 218, a decision of Dr Renata Howe in the Planning Appeals Board was inconsistent with the other decisions. He referred to an editorial note by the Editor of the Australian Planning Appeal Decisions, Mr K.H. Gifford, QC at page 219 which described Dr Howe's decision as `out of step with the view hitherto taken by the Victorian Planning Appeals Board'. Mr Finanzio also relied upon a decision of Jacobs J of the Supreme Court of South Australia in Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 1616, 176. Mr Finanzio submitted that the alternative solutions proposed by the objectors `had their own set of disbenefits'. He concluded `this case is about whether the system that is on the table is acceptable.' According to Mr Finanzio the evidence showed that whilst the present proposal was not ideal it was clearly superior to the existing situation and was on balance acceptable. He placed particular reliance as to these matters on the evidence of Mr Moore, the Urban Designer from the City of Melbourne. According to Mr Finanzio to ensure the most efficient tram operation as possible in Swanston Street the arrangements must establish conditions such that:

`(a) trams can manoeuvre unhindered by the vehicular and pedestrian traffic in order to ensure efficient operation of a major Melbourne public transport terminal;

(b) pedestrians travelling through the zone are able to undertake their trip safely, and without interrupting the public transport service;

(c) all passengers of the tram service are able to access the service in a safe manner; and

(d) individual motorists who continue to use the road network in this area are able to drive through this zone safely, without interrupting the operation of the public transport service.'

45 According to Mr Finanzio it would be unrealistic to expect pedestrian and tram traffic to mingle in the same way as it did in the Bourke Street Mall. He said the existing arrangements had the following efficiencies:

`(a) there are more trams that must return to the south than are required to continue north;

(b) the existing shunting facilities do not allow for all current and anticipated rolling stock;

(c) while it is possible for trams continuing north to pass a tram diverted into the shunt, northbound traffic is currently blocked when a tram is in the shunt and a second tram is waiting to perform the shunt;

(d) the location of the southbound tram stop is opposite the main entrance to the University and has the effect of necessarily attracting the largest number of passengers using the stop across the shunting lines;

(e) the effect of pedestrians in and around the shunting area has the effect of slowing down the shunting process;

(f) similarly, cars seeking to execute right turn manoeuvres into Faraday Street also have the effect of delaying the shunting manoeuvres and/or the flow of motor vehicle traffic in Swanston Street.'

46 According to Mr Finanzio this proposal had the following desirable features in that it would:

`(a) increase the capacity of the shunting area to facilitate greater time efficiency in trams changing direction;

(b) segregate pedestrian activity from the shunting operation; and

(c) remove the potential for motor vehicles to hinder the shunting operation.'

47 He said that the performance of the tram terminus had a significance to the Metropolis going far beyond Carlton. He submitted that there were no unreasonable affects on vehicular traffic.

48 He noted the objectors' main criticisms were upon the proposal's effect on pedestrians. He said the relocation of the pedestrian crossing from the north to the south side of Faraday Street would have a negligible effect on the convenience of pedestrians in the general area.

49 He noted that two concerns were raised with regard to pedestrian flow:

`(a) the capacity of the pavement to accommodate the peak demand of pedestrians - the crowding point; and

(b) the additional distance that pedestrians would be required to walk - the diversion point.'

50 The evidence of Dr Mees and his witnesses was that 5.15 pm during University semester represented a peak time for pedestrian flows. According to Dr Mees, within a few minutes, according to one of his estimates, as short a period as three minutes, approximately 2,000 undergraduates pour out of lecture theatres in the vicinity of Masson Way. Under the present arrangements they must then move along the fenced 3m footpath on the west side of Swanston Street southwards to enable them to cross to the existing southbound pedestrian stop located to the north of Faraday Street. Dr Mees and his witnesses said that this created a situation which was neither safe, comfortable nor efficient. According to Dr Mees the removal of the fence on the western kerb of Swanston Street ran the risk that students at such times would spill out into the traffic.

51 In response to these concerns, Mr Finanzio said:

`At peak times, some pedestrian queuing and delay is to be reasonably expected. Public transport patrons all over the metropolitan [area] are required to do the same. University students are no different.'

`The relocation of the tram stop and the formalisation of new access arrangements to it will influence pedestrians and lead to increased use of Monash Road as a pedestrian route through the tram stop.'

He said there was no evidence that the current situation was a disincentive to people using the tramway or the pathway as a pedestrian access. He noted that a traffic engineer called on behalf of his client, a Mrs Partenio, said she anticipated that under the new arrangements more students moving towards the tram stop would use walkways within the University campus to move further south and join Monash Road rather than simply following Masson Way to Swanston Street.

52 Mr Finanzio said that the plan provided for an opening up of more space for pedestrians to be marshalled waiting for the Faraday Street lights at the mouth of Monash Road. Moreover, if the University implemented its plan for a partial demolition of the Richard Berry building the footpath area would be opened up. (The partial demolition of the Richard Berry building as it abuts Swanston Street near Masson Way is proposed in the University Master Plan to open up a pedestrian forecourt between Masson Way and the proposed ceremonial entrance at Monash Road.) The only inconvenience of the present proposal relative to existing circumstances was that students would be required to walk an extra distance to reach the southbound tram stop.

53 He said that independent of shunting arrangements it would be necessary to fence a new superstop `otherwise the old problem of students (and some lecturers) being drawn at risk of life and limb across the functioning tram tracks and vehicular traffic will be brought back to life.'

He said the extra walk for a student going to the southbound tram stop is no more than 25 to 30m, something conceded in cross-examination by Dr Mees. Likewise, Dr Mees conceded that there is no increase in distance covered for a student travelling to catch a northbound tram.

54 Mr Finanzio concluded that the proposal would be as safe as the current conditions or safer and would `produce increased efficiency in the public transport service for the area and given the importance of the terminus in metropolitan terms, for the greater metropolis as a whole'. If there was disadvantage for pedestrians he said it was either negligible or not unreasonable. He submitted that the design of the superstop was appropriate. In so far as Dr Mees' cross-examination of M>Tram's Depot Operations Manager, Mr Greer suggested that under a coming reorganisation of tramways the longest five section tramcars which are planned to enter service soon would be operated on non-Swanston Street lines, Mr Finanzio said that this cross-examination was speculative.

55 Mr Finanzio said that the University of Melbourne's Master Plan could be implemented only so far as the University controlled the relevant areas. It did not control Swanston Street and in any event he produced correspondence from the University administration in which it expressed support for the current proposal. Mr Finanzio said:

`The question is, having regard to the existing urban context (which already includes a substantial amount of fencing and tramway infrastructure), and having regard to the need for tram stop of the kind proposed, whether the extent of fencing is unreasonable.'

56 Likewise, Mr Finanzio submitted that considerations of strategic planning supported this proposal. He said `there can be no doubt that this general location is a proper place for a transport node'.

57 He denied that planning policy required the interest of pedestrians to be given predominant weight

`Nothing in the current Sate or Local Planning Policy Framework requires that the best pedestrian solution must be achieved at all cost, or indeed at the cost of other forms of transport. Nothing in Metro 2030 can be read to mean that pedestrian movements are to be given priority over other forms of transport in all circumstances.'

`Does little more than identify the need to "give more priority to ... walking". That is, implying the need to identify and take account of pedestrian issues in the mix in a more substantial way than perhaps has been the case to date.'

It was he said, still a matter of weighing relevant factors to achieve the proper strategic result. He said this was what Council's Urban Designer Mr Moore had done. According to Mr Finanzio in weighing a community disbenefit based on delay we must take into account

`the quality of time lost - 30 second to one minute periods over a journey ranging between 10 minutes and half an hour.'

`The magnitude of this disbenefit is decreased when the basis of comparison is between the existing situation and the proposed location, rather than between the hypothetical scenario advanced by Dr Mees and proposed location.'

58 The present situation is clearly unsatisfactory. Our inspection of the site and its environs even although not at the time identified by Dr Mees and his witnesses as the point of critical pedestrian congestion, namely shortly after 5.15 pm on a business day during semester, disclosed a situation of passenger congestion at the existing tram stop and tram congestion at the existing shunts. Dr Mees without being able to quote specific figures, asserted a doubling in University enrolments in the relatively recent past and he said that the thinning out effect on the Carlton/Parkville campus achieved by measures such as moving the Law School south to Carlton proper had been overtaken by yet more enrolment increases on the main campus. The scene of pedestrian congestion could be surprising to a graduate of the University of a decade's standing, much less to one of nearly 30 years. We accept Mr Finanzio's principal submission that our duty is to consider the merits of the proposal that is put before us, not to consider alternatives. Dr Mees' response to this was that accepting this is a general rule, it is appropriate to consider possible alternatives when a proposal is advanced on the basis that it is:

as this present proposal is. Assuming without deciding that Dr Mees' contention on this point is correct, we remain unpersuaded that any of the other options suggested by him represents an improvement upon the present one. Mr Moore considered the possibility of moving the shunts to an area of Swanston Street with no tram track on it now, namely between Elgin Street and the beginning of College Crescent to the north of the Elgin Street intersection. Council's objection to that was the effect upon an area zoned Residential 1 and the need for severe pruning of mature Elm Trees. This pruning would be necessary it seems to us even with the use of central poles as the present proposal entails. Ms Bannister noted that an aerial photograph shows the canopies of the Elms on each side of this section of Swanston Street virtually meet. Furthermore, our site inspection confirmed that the road pavement narrows considerably to provide a grassed nature strip to accommodate these trees. In fairness Dr Mees did not seriously advance this option. Another option would be to move all of the tramway shunts around the Elgin Street corner into Elgin Street itself between Swanston Street and Lygon Street. Again, this was not an option either advocated at all or very much by Dr Mees. Mr Greer the Operations Manager of M>Tram said that this would entail too great a delay to trams because of the lengthy period needed for them to clear the tram signals at Elgin Street and complete a right turn. Dr Mees solution was to introduce a traffic control system employed in Zurich whereby tram cycles giving tram priority were tripped as a tram approached traffic lights even before it stopped. We do not doubt that this system if introduced would represent a substantial improvement over the current system which according to Mr Greer activated a special tram cycle only once the tram had stopped at the intersection, needing an entire cycle to run before a tram sequence was activated. Nevertheless, having regard to the large numbers of trams (over 600) that have to shunt and turn around at this location, we accept Mr Greer's evidence that the volume of tram traffic would require virtually continuous priority to be given to trams turning right and returning from a shunt at the intersection of Swanston Street and Elgin Street. This would make the maintenance of Swanston Street as an arterial road at present volumes impracticable. It would also prevent at grade pedestrian movements from Elgin Street to Tin Alley. There was no proposal to cut traffic to the degree that would be necessary to accommodate this proposal.

59 What Dr Mees advocated was that perhaps two tram shunts should be kept in Swanston Street and one tram shunt moved to Elgin Street or perhaps reversed, with one tram shunt being kept in Swanston Street and another two in Elgin Street. This would of course cut back on the traffic signal problem just described but in our view not sufficiently to remove the very large disadvantage already described. Mr Greer observed that safety requirements limit trams to a speed of 10 kilometres per hour when rounding a corner. Hence whatever traffic signals are used there are substantial delays for trams turning from Swanston Street to Elgin Street and then repeating the manoeuvre in reverse after shunting.

60 In any event even if the signal problems at the Elgin Street corner are put aside entirely, the existence of an 84m `superstop' at the Masson Way exit from the University campus would constitute a substantial barrier across Swanston Street. Once shunting facilities were maintained in Swanston Street some form of additional barrier beyond the superstop would be required to keep pedestrians out of the shunting area. This would mean either a barrier along the lines of the one proposed here or a barrier such as the existing one at the kerbside. The arrangement would become more complicated and less advantageous for tram operations without bestowing a manifest benefit on pedestrians.

61 We are unable to attach much weight to the University of Melbourne's Master Plan 2000. Dr Mees and his witnesses, in particular Professor Dovey observed that the Master Plan proposed the creation of a forecourt between Monash Road and Masson Way's abuttal to Swanston Street. One of the figures in the Master Plan depicted Swanston Street as a semi-pedestrianised mall with pedestrian and vehicular traffic mingling perhaps as they do in Bourke Street and Swanston Street in the Central Business District. Dr Mees and Professor Dovey said that the present proposal was destructive of the objectives of the Master Plan. Professor Dovey said that he was convinced that this element of the Master Plan would be implemented in due course, though this has not yet occurred. One material step to be taken to give effect to the Master Plan on campus would be the partial demolition of the Richard Berry building to create the pedestrian forecourt.

62 We accept the submission made by Mr Finanzio for M>Tram that the Master Plan represents a vision by the University of Melbourne which has no standing, statutory or otherwise, outside its own campus. It is beyond the authority of the University of Melbourne to make the sort of radical modification to traffic levels on this section of Swanston Street which would be necessary to give effect to this element of the University's Master Plan. It would also be beyond the authority of this Tribunal or any of the parties before it, even the Melbourne City Council. Accordingly we cannot give any significant weight to the Master Plan as an obstacle to the approval of the present proposal. We note however that the present proposal is in some ways a positive for the Master Plan because it entails removing the existing barrier fence at the edge of the western kerb of Swanston Street across the mouth of Masson Way. We also think it would be unwise to use the Master Plan in so far as it entailed a partial demolition of the Richard Berry building as a plus for the present proposal. Certainly this demolition, if it proceeds, would substantially alleviate the pedestrian congestion problems which now exist at peak hours on the relevant section of the pavement of Swanston Street abutting the campus, nevertheless it would be wrong for us to decide this matter upon the confident assumption that this demolition will take place at or prior to the implementation of this proposal, if it is approved. The University's Master Plan is dated June 2000. The forecourt element has not yet been implemented almost four years on and there is no firm adopted timeline for its implementation according to any evidence that is before us. If Dr Mees and Professor Dovey are correct in saying that the present proposal is fundamentally inimical to this element of the Master Plan, the support of the present proposal by the University's central administration might be indicative of an abandonment of it.

64 We also put to one side another element of the Maser Plan which was pressed upon us, namely a proposal for a large complex of student housing on the eastern side of Swanston Street at the corner of Faraday Street. A proposal for such a project by the developer Becton came before the Tribunal last year and was rejected. A new and revised proposal is now being considered by the Minister for Planning. Dr Mees said that this project in whatever form it appeared entailed a proposal for increased pedestrian permeability across Swanston Street and was inconsistent with the further tightening of pedestrian routes across Swanston Street and the movement of the pedestrian crossing from the north side of Faraday Street, adjacent to where the proposed complex would be located, to the south side.

65 We agree that this proposal compounds the pedestrian issues which exist in this area. No doubt these pedestrian issues will be amongst the matters considered by the Minister. Mrs Partenio, the Traffic Engineer called on behalf of M>Trams said that despite the movement of the pedestrian crossing to the southern side of Faraday Street, in practice, pedestrians using it would be able in a single crossing to cross both Swanston Street, Monash Road and Faraday Street in the manner that people using the pedestrian crossing at the T intersection of Elizabeth Street and Flinders Street opposite Flinders Street Railway Station are able to cross both Flinders and Elizabeth Street on a single pedestrian cycle. In our view this consideration will alleviate the pedestrian problems that will inevitably be associated with any student housing complex erected on the Becton site and will go a long way toward alleviating other pedestrian problems in the location associated with those travelling to and from the southbound tram stop.

66 We return to the specific effect of the implementation of this proposal for pedestrians. For students leaving campus and wishing to catch a southbound tram as it seems most students leaving the campus at this point are seeking to do with a view to catching other public transport in the CBD, in particular trains at the Melbourne Central Station, the increased walking distance is 25 to 30m. For those seeking to catch northbound trams there is no additional walking distance at all. Dr Mees and his witnesses conceded the correctness of these figures. We agree with Mr Finanzio that these are reasonable `trade-offs' to achieve the positive objectives of this proposal.

67 Further, we accept the evidence of Mrs Partenio that assuming the correctness of Dr Mees' concerns as to peak hour congestion on the Swanston Street footpath, students leaving campus will ease this problem by choosing alternative routes across campus and using Monash Road as their exit point.

68 We should also say something with regard to a persistent theme in Dr Mees' submissions and the evidence of his witnesses that:

(a) This proposal entails a sacrifice of the interests of pedestrians and public transport users to the interests of vehicular traffic; but

(b) The planning policy applicable to this decision require the interests of public transport users and pedestrians to be given predominant weight.

In our view the passages referred to and relied upon by Dr Mees mean no more that that public transport users and pedestrians should be given greater attention in policy making than they have been in the past. We do not read these passages as requiring that they be given predominant interest over vehicular traffic. Professor Dovey made reference to corralling fences in certain Asian third world cities aimed at keeping the poor off the major roads which were devoted to the motor traffic of the rich. In our view analysing traffic conflicts in Metropolitan Melbourne by reference to an alleged conflict between a motorised plutocracy and a pedestrian proletariat would be a severe distortion of reality. To take a wider view of the effect of a public policy in the Metropolis in the last generation one would have to accept that in the planning and development of arterial roads, freeways and tollways, motorised vehicular traffic has been given a very substantial preference; but that is only part of the story. Over the same period subdivision designs in developing areas have given greater consideration to pedestrian permeability - even at the expense of motor vehicle access. In inner suburbs laid out on the classic grid pattern systems of street closures, speed humps, road narrowings and so forth have been employed to redirect through traffic to enable pedestrians to claim back residential streets. On a statewide basis the speed limit for motor traffic in all but arterial roads has been cut from 60 kmh to 50kmh. On arterial routes however it is clear that motor traffic has been preferred. Separation measures such as barriers, traffic signals and so forth have been adopted aimed at achieving free flows as far as possible for vehicular traffic. As previously noted neither the Tribunal nor any of the parties before us have the power to take the sorts of radical measures necessary to scale back drastically the vehicle flows in this section of Swanston Street to the degree necessary to enable a pedestrian friendly environment such as the one contemplated by the University of Melbourne's Master Plan and so that the admitted negatives for pedestrian traffic inherent in the present proposal could be ameliorated.

69 Finally, we should mention the planning controls. We accept Dr Mees' submission that the words from the relevant schedules relating to Design and Development Overlays 45 and 46 are wide enough to raise for consideration the issues which were argued and which we have dealt with. We believe those overlays go beyond merely controlling building heights as Ms Bannister submitted.

70 More difficult issues arise with regard to the characterisation of the uses and developments entailed here. If the land use term `tramway' stood alone we would accept the submission based on the authority referred to by Ms Bannister that a tramway entails not only the tracks upon which the trams run and therefore the shunting yard component of this proposal but also all associated installations including the superstop. As it is however, the scheme includes a definition of `transport terminal' within which is included the definition `railway station'. That expression is defined to include

`Land used to assemble and distribute goods and passengers and includes facilities to park and manoeuvre vehicles. It includes a light rail station. It may include the selling of food, drinks and other convenience goods and services.' (our emphasis)

Light rail station is not itself a defined land use term and so it would bear its ordinary meaning. In Metropolitan Melbourne the only system described as `light rail' is the service from the City to St Kilda and Port Melbourne. This service was until the 1980s provided by an electric suburban train. That train service was abolished and replaced with trams running along Collins Street, across the Spencer Street bridge, along Clarendon Street and eventually joining the route of the old permanent way used by the train service. On this latter section, the old railway stations take the place of tram stops. Presumably one of these would be an example in the context of Metropolitan Melbourne of a `light rail station'. It would have a clear resemblance to the proposed superstop in that it includes a platform and perhaps ticket selling facilities enabling passengers to board and alight from a tramcar at grade. For these reasons we believe the superstop constitutes a `transport terminal' and that to the extent that the superstop extends to a Mixed Use Zone a permit would be required for the use. Given that the Mixed Use Zone appears to extend to the northern section viz. primarily the shunting yard rather than the superstop this issue is problematic and marginal. For the avoidance of doubt however we believe it is appropriate to direct that the permit to issue should provide for the `light rail station' use as well. The use and development allowed by the permit should also be amended so as to make specific reference to the trackwork construction involved with the shunting yard.

71 Subject to this amendment and the inclusion of one additional condition which the proponent and Responsible Authority agreed to at the request of the Royal Dental Hospital, the Responsible Authority's determination should be affirmed.

72 All questions of law have been determined by the Presiding Deputy President.