Katherine Teh-White, Kelly Parkinson and David McCallum

Waverley Park Powerlines Consultation Report September 2016

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Futureye Pty Ltd ACN 081 569 413 Level 8, 342 Flinders St Melbourne Victoria 3000

Telephone: +61 3 8636 1111 Facsimile: +61 3 9642 1033 Email: info@futureye.com Website: www.futureye.com

Authors: Katherine Teh-White, Kelly Parkinson, David McCallum

© 2016

Futureye is a consultancy which facilitates real solutions to real dilemmas around the world.

We build highly innovative leaders, organisations and societies so they may identify, manage and resolve issues collaboratively for sustainable outcomes.

We offer a set of services which enable our clients earn and maintain a social licence to operate. To do this we: track the issues that might undermine or enhance the tacit approval for an industry; assess the changing values of society; develop strategy, plans and deliver sustainable outcomes through engagement.

Our methodology for understanding dilemmas and building real solutions is unique and highly effective. We employ a diverse team of experts including management consultants, risk communicators, sustainability strategists, public policymakers, foresight practitioners, community engagement specialists and anthropologists. We strive to create enduring relationships with our clients and stakeholders.

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Contents

1 Executive Summary .............................................................................................................................. 4

2 Introduction ........................................................................................................................................... 6

2.1 Futureye’s appointment ................................................................................................................... 6

2.2 Background ...................................................................................................................................... 6

2.3 Scope of community’s decision ....................................................................................................... 8

2.4 Engagement process ..................................................................................................................... 10

3 Findings ............................................................................................................................................... 13

3.1 Community impacts ....................................................................................................................... 13

3.2 Community desires ........................................................................................................................ 14

4 Recommendations .............................................................................................................................. 16

4.1 Disparate views prevent consensus outcome ............................................................................... 16

4.2 Timeliness of resolution is critical .................................................................................................. 16

4.3 The recommendation should be based on Mirvac’s existing proposal for public works as supported by the Advisory Committee .................................................................................................................... 16

5 Appendix 1: Timeline........................................................................................................................... 17

6 Appendix 2: Minister’s letter regarding Futureye ................................................................................ 23

7 Appendix 3: Futureye’s letter of invitation to the community meeting ................................................ 24

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1 Executive Summary

This document outlines the process, findings, and recommendations of the engagement process carried out by Futureye to understand the community’s views of a proposed community benefits package.

Community reaction to the Minister’s letter of 17 December 2015

The Minister’s letter of 17 December 2015 was met with a great deal of community concern. Consultation with the community through calls, emails, and meetings indicated that the community did not feel it was fair that the powerlines remain above ground after Mirvac had made representations through their marketing materials that they would be placed underground. The impacts, and the time it had taken to resolve the issue, were felt widely across the community. Additionally, the complexity of the planning process and the requirements around how decisions about permit amendments are judged was not widely understood by the community, which added to the community’s frustration.

The engagement process

After its appointment, a letter was sent by the Hon Richard Wynne MP, Minister for Planning inviting residents to contact Futureye. Futureye engaged with residents through phone calls and emails, as well as meeting with the Waverley Park Residents Action Group (WPRAG), a group of concerned citizens who are active in opposing the amendment to the permit. Futureye focussed specific attention on WPRAG given their high regard in the community and their long-standing efforts relating to the powerlines. After an initial period of engaging with this group, a broader community meeting was held to allow residents to voice their views.

Disparate views related to the powerlines

From early in the engagement process, it was clear to Futureye that the community held a diverse range of views in relation to the powerlines. Residents contacting Futureye ranged from those who had had enough of the process and wanted to negotiate an outcome to see it come to an end, to those who were not yet ready to discuss a community benefits package and did not accept that the Minister’s position was final. These views were echoed in the community meeting, in which residents expressed differing opinions on a range of topics, from acceptance of the powerlines remaining above ground to how to assess the most impacted residents.

Emphasis on financial payments rather than public works

The engagement process identified that the vast majority of residents who contacted Futureye and attended meetings were more concerned about ex gratia payments than possible additional public works and facilities as part of the proposed community benefits package. For this reason, Futureye recommends the original proposed public works be undertaken without further delay, and that Mirvac consider the community’s feedback regarding the adequacy of the ex gratia payments.

Outcomes of the community meeting

The community meeting sought to discuss and decide with the community a process and framework to determine the desired outcome of the community benefits package. However, the diverse range of disparate views expressed in the meeting led to the conclusion that a consensus agreement on a benefits package is extremely unlikely. Participants at the meeting expressed concern at the number of residents who had been contacted, suggesting a registered mail-out to all property owners should be considered, as well as a desire for an independent assessment of the properties to re-consider the distribution of ex-gratia payments.

Findings

The outcomes of the engagement process suggest disparate views in the community leading to a very unlikely chance of the community reaching consensus.

Nearly all of the residents involved in the process expressed the belief that the best-case scenario would be for the powerlines to be placed below ground, as had been originally intended. However, the community is divided over its acceptance of the fact that this is not a possibility. Some in the community have accepted that the powerlines will remain above ground and were open to the process of discussing the package, while others are still not ready to discuss any outcome that does not involve

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the powerlines being placed under ground, and some have expressed plans to exercise their right to challenge the decision in court.

Where discussions did turn towards offsetting the impact of the powerlines, the main focus of conversation was that of financial payment, and the fairness of the ex gratia payments as determined by Mirvac. While some residents contributed suggestions for improved public works through emails and other conversations, it became clear in the community meeting that financial payments were generally considered much more important. Discussions of the impact on amenity were generally directed to the parklands and lake that were originally planned never having been completed, and the area being left a mess.

Recommendations

A decision should be made as soon as possible

Regardless of views regarding fighting the decision to allow the powerlines to remain aboveground or accepting the decision, the residents of Waverley Park overwhelmingly indicated a desire for action to be taken quickly.

The community benefits package put forward by the Advisory Committee should be adopted

The engagement process sought to understand the community’s views about the scope and shape of the community benefits package. The process undertaken has indicated that the residents are more concerned with ex gratia payments than reshaping the public works element of the proposed community benefits package, and that there is a desire for the originally planned works to be completed. The ex gratia payment is outside of the Minister’s powers.

While the community expressed a desire for a mail-out to all property owners to discuss possible options for redistribution of the ex gratia payments, the issue of the ex gratia payments is outside of the Minister’s scope. The Minister could provide a copy of this report to Mirvac and encourage them to negotiate with the community to agree the distribution of ex gratia payments. It is recommended that the Minister require Mirvac to complete the public works outlined in the proposed community benefits package in a timely manner.

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2 Introduction

2.1 Futureye’s appointment

Futureye was appointed on 22 February 2016 to facilitate an engagement process with Waverley Park residents. This followed the Minister reaching the conclusion that he was compelled to recommend an amendment to Mirvac’s permit for the Waverley Park estate to allow for the existing high voltage power lines to remain above ground.

The decision, based on the findings of the Advisory Committee appointed by then-Planning Minister Matthew Guy, had created a significant level of concern from residents, which was expressed through letters to the Minister as well as through social and traditional media, particularly through the Waverley Park Residents Action Group (WPRAG). Through these channels, a number of residents made it abundantly clear that they staunchly opposed any decision to keep the powerlines above ground.

In response to the concern raised, Futureye was appointed to gain a greater understanding of the community’s concerns to feed into discussion of the community’s wants and needs in relation to the form of the community benefits package to offset the negative impacts of the decision for the powerlines to remind above ground. This process sought to engage and consult the community on their views related to the benefits.

2.2 Background

Mirvac’s original permit to rezone Waverley Park as a residential housing estate included a condition to place existing above-ground, high-voltage transmission lines underground. While Mirvac did not support the condition at the time the permit was granted, many residents purchased land based on indications from Mirvac, both contractual and through marketing, that this would be the case.

Mirvac sought to amend the permit, which was refused by former Minister Matthew Guy. This decision was appealed by Mirvac to VCAT, which the then-Minister then ‘called in’. In order to inform his recommendation, the former Minister appointed the Waverley Park Transmission Lines Advisory Committee to provide advice on relevant matters associated with Mirvac’s application to amend the permit condition.

Following the state election in November of 2014, and the appointment of the new Planning Minister Richard Wynne, a public hearing was held over 7 days in December 2014 to consider the matter with parties including the Minister for Planning (through the Department of Transport, Planning and Local Infrastructure), Mirvac, Monash City Council, local residents and AusNet Services. Importantly, some residents felt their views were dismissed, and that they were not taken seriously during this process.

As part of its submission to the Advisory Committee, Mirvac proposed a community benefits package to offset the impact of the decision on the community. This was made up of a combination of ex gratia payments to individual homeowners, distributed based on Mirvac’s assessment of who would be the most impacted, as well as public works to a total value of $15m. The proposed package included:

Ex‐gratia payments to eligible home owners.

Significant upgrade of existing open space within the estate.

Additional spending on the lake and wetlands corridor, including significantly larger open spaces, walking tracks and sporting facilities.

Contribution to further public amenity within the City of Monash subject to agreement with the Council.

The Advisory Committee report, submitted in February 2015, found that:

The amendment was consistent with the expectations provided by the Monash Planning Scheme;

The original proposals for undergrounding the transmission lines were poorly conceived and based on inadequate costing and technical assumptions;

There is a significant advantage with the above ground option from a health and safety perspective because of Earth Potential Rise and reliability risks with undergrounding;

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The above ground option using slimline posts would produce acceptable visual outcomes for Waverley Park residents and the broader community;

The above ground option provides significantly greater open space opportunities (through not having to provide transition enclosures and by freeing up extra funding) and provides the opportunity for improvements to be delivered in an acceptable time frame (by 2018).

The planning system is a system for the making and enforcement of public laws, not for the enforcement of private or contractual obligations.

o This is why the ex gratia payments by Mirvac were not taken into consideration in the Committee’s analysis of the Community Benefits Package.

Ultimately, the Advisory Committee supported Mirvac’s request to amend the permit, concluding that Condition 50 of the permit should be amended to allow for the replacement of the existing transmission towers and lines with an above ground option.

In considering the net community benefit, the Advisory Committee concluded that:

“Due to engineering issues, health and safety risk factors, economics, visual amenity, and open space reasons, (the condition) should be amended to allow for the replacement of the existing transmission towers and lines with an above ground option…

…the latest undergrounding solution is so significantly different in cost, scope, construction time and infrastructure risk that it constitutes a significant change in circumstances and undergrounding is no longer feasible”

While there was ongoing advocacy by a number of groups and individuals to place the powerlines underground, the recommendation to the Governor in Council rested with the Planning Minister Richard Wynne.

Futureye was appointed to facilitate engagement with the community as per the Minister’s letter of 17 December 2015.

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2.3 Scope of community’s decision

The scope of the community’s decision was to decide on the shape of the proposed community benefits package.

Mirvac’s originally proposed package was based on surveys and other research into the community’s view of how the package should be distributed, taking a ‘consult’ or ‘involve’ level of engagement (see figure 1: Levels of engagement).

Figure 1: Levels of engagement. Source: Victorian Auditor General Office’s Public Participation in Government Decision-making Better practice guide, adapted from the International Association for Public Participation’s Public Participation Spectrum

Inform Consult Involve Collaborate Empower

Levels

Obje

ctive

To provide balanced and objective information to support understanding by the public.

To obtain public feedback on analysis, alternatives and/or decisions.

To work with the public to ensure concerns and aspirations are understood and considered.

To engage with the public on each aspect of the decision, including the development of alternatives and a preferred solution.

To create governance structures to delegate decision-making and/or work directly with the public.

Com

mitm

ent

To keep the public informed.

To listen to and acknowledge the public’s concerns.

To work with the public to exchange information, ideas and concerns.

To seek advice and innovations from and amongst various public parties.

To work with the public to implement agreed-upon decisions.

Description

Participation

The first two public participation levels— Inform and Consult—typically occur when a decision has already been made, and government wants to either communicate that decision to the public, or seek opinions on the decision.

Engagement

The third and fourth public participation levels— Involve and Collaborate—have two way information flows, and include sharing information within and across stakeholder communities during the decision-making process.

When undertaking Engagement, decision makers commit to using stakeholder feedback to inform the decision and shape the outcome.

Activity that occurs at the Collaboration level is also sometimes referred to as partnering.

Empowerment

The fifth public participation level—Empower—is also often referred to as co-production, where decisions are made jointly between government and the community.

This is typically when decision-making authority has been delegated to a group including members from both the government and the community/industry.

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The purpose of the engagement process undertaken by Futureye was to go beyond ‘inform’, ‘consult’, and ‘involve’ consultation to collaborate with or empower the community to make the decision as to what shape any benefits package should take, including what public works should be undertaken, and how much should be spent on public works as opposed to ex gratia payments.

With community input

Advisory Committee recommendations – without community input

Original master plan amended for above-ground option

Mirvac’s proposed community benefits package

Completion of lake and wetlands corridor

Public works and/or payments to a total of $6,502,000.00

In addition to ex gratia payments of $8,500,000.00

Plus

Original master plan amended for above-ground option

Community-informed community benefits package

Completion of lake and wetlands corridor

To be shaped through consultation process

Plus

Figure 2: Scope of community's decision

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2.4 Engagement process

Initial invitation for engagement

The Minister’s letter sent to residents on 25 February 2016 invited residents to contact Futureye to provide views or nominate themselves to be a part of discussions regarding the powerlines and benefits package. The letter was sent to about 400 residents based on proximity to the powerlines, as well as those that made submissions to the Advisory Committee process.

The engagement process also generated media interest, and Futureye Managing Director Katherine Teh-White was interviewed for an article in the Monash Leader1 regarding the engagement process, which also provided details for residents to contact Futureye.

Following this, Futureye received calls and emails from a number of residents wishing to share their views, or to register interest in attending a public meeting. Residents who contacted Futureye represented a diverse range of views, from those who maintained strict opposition to the powerlines remaining above ground, to those who were wanting to move on and see the issue resolved.

Understandably, many residents were still unwilling to discuss the benefits package or any scenario in which the powerlines remained above ground. Residents expressed anger that this conclusion had been reached, confusion as to why the government had appeared to ‘change its mind’, and why the Minister felt he should follow the findings of the Advisory Committee report.

Additionally, it was felt by many in the community that it was too early to discuss a benefits package given the final decision to amend the permit had not been formalised by the Governor in Council, while the Minister felt it was essential to gain the community’s inputs before his recommendation could be made, in order for them to shape the final outcome.

Engagement with the Waverley Park Residents Action Group (WPRAG)

The Waverley Park Residents Action Group is a group of concerned citizens opposed to the powerlines remaining above ground. The group was formed in 2011 with a mission to “ensure that the high-voltage power lines are placed underground in accordance with both the 2002 Planning Permit covering the estate, and the contracts of sale entered into by Waverley Park homeowners and Mirvac.”2

Since 2011, WPRAG has been active in co-ordinating efforts to mobilise the community to oppose the amendment of the permit to allow the powerlines to remain above ground. This has included organising petitions, facilitating community meetings, speaking with the media and seeking legal advice on the possibility of a class action lawsuit.

After the letter was sent out, WPRAG published a post via its Facebook page discouraging people from contacting Futureye as it was felt that this may suggest agreement that the powerlines would remain above ground. Given the significance of the group in the debate and the respected position its members hold within the community, it was felt that efforts should be focussed on the WPRAG group, with the hope that engaging with them on the rationale for the decision may assist in informing the broader community of the reasons for the decision, which if accepted may have led to a discussion of the possible options to offset the negatives of the decision.

Initial discussions with WPRAG and other community members made it clear that the community didn’t fully understand the Minister’s position and how this position could have been reached, considering the contractual and marketing commitments Mirvac had made to place the powerlines underground.

After initial phone calls with some members of WPRAG, a meeting between the group with Futureye was organised, followed by a meeting with the Minister for Planning. While initial discussions with WPRAG went well, and the group expressed a willingness to engage on the rationale for the Minister’s decision, the meeting was unfortunately hampered by uncertainties related to legal implications

1 McGinn, C. (2016, February 29). Consultants at Futureye hired to talk to Waverley Park estate residents about high tension powerlines. The Monash Leader. Retrieved from http://www.heraldsun.com.au/leader/east/consultants-at-futureye-hired-to-talk-to-waverley-park-estate-residents-about-high-tension-powerlines/news-story/9416b077ba773c6cd19cc7420fbba39c 2Frequently asked questions. Retrieved from https://waverleyparkpowerlines.com/faq/

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preventing the Minister from answering some of the group’s questions to their satisfaction. The Minister urged the group to engage in the process with Futureye to achieve the best outcome.

In the meantime, Futureye continued to register the details of residents wishing to be kept informed of the process, and maintained contact through phone and email communications with residents who continued to express their views. Futureye also began developing a draft decision-making framework for discussion and application in a meeting with the broader community.

Futureye organised a second meeting for WPRAG with the Deputy Secretary Planning, Christine Wyatt, to answer a number of questions posed by WPRAG around the broader process which would lead to the decision being made.

Notably, members of WPRAG felt that their inputs had been dismissed based on its apparent membership numbers, and that their concerns had not been taken seriously during the process. Ms Wyatt apologised that the group felt that the Advisory Committee’s comments were dismissive, and explained that from her reading of the report, the comments were mainly about clarifying the structure of WPRAG.

At the end of the meeting, Ms. Wyatt encouraged the group to take part in the consultation process ‘in good faith’ and ‘without prejudice’ to prevent any impact on potential future legal action, to demonstrate a willingness to engage without compromising their position that the powerlines be placed underground.

Community meeting

Following the meeting between WPRAG and the Deputy Secretary, the decision was made to move forward with a community meeting with a broader community group. Futureye sent a letter (see appendix 3) to the same residents who received the Minister’s letter of 29 February, inviting them to take part in a community meeting at the Mulgrave Country Club at 7:30pm on Monday 6 June 2016. The letter invited residents to register interest for the event and to receive the draft decision-making framework for discussion at the meeting.

The draft framework had been developed based on the inputs from the community through emails, calls, and meetings. The framework sought to summarize the background of the issue and highlight the community’s concerns, while seeking to find shared values between various stakeholders to feed into a process to reach a decision about how a community benefits package could best be shaped to address the needs and wants of the community.

The objective of the meeting was to agree on a decision-making process based on these inputs. This would include the selection of who would be involved in the process – a self-selected group, or a representative selection, and how the decision should be made - through a ‘fishbowl’ negotiation, or a multi-criteria decision-making process.

Ahead of the meeting, Futureye was contacted by a number of residents who had not received letters, and had not been aware of the engagement process to date, having heard only by word of mouth about the upcoming meeting. This was due to the database being focussed on the most impacted residents, including those close to the powerlines and those who had submitted to the Advisory Committee hearing, though residents made it clear that they felt the whole estate should have been directly contacted.

A total of 67 residents registered online for the event, and 63 residents attended on the evening. The residents attending represented a diverse range of views, with some refusing to accept that the powerlines would remain above-ground, and others who were ready to move on and reach a conclusion. The passion and frustration of many residents attending the meeting meant that Futureye’s process was not able to be executed in the manner intended.

Katherine Teh-White, the meeting facilitator, answered questions from the floor and attempted to steer discussion back to the presentation of decision-making tools as much as possible. David McCallum presented on the topic of Multi-Criteria Decision Making and Kelly Parkinson took questions from the floor.

Some of the key matters of concern from residents to arise from the meeting were:

The limited scope of residents contacted through the mail-out process

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o Some attendees complained that they had not received notice of the meeting, nor any previous communication throughout the engagement process, and had only found out through neighbours

concern that the process had taken too long to date

concern over lack of amenities (parkland, lake)

perceived reduced house values due to powerlines and lack of amenities

ex-gratia payments

the future timeline of action

a general sense of being misled or lied to by Mirvac

a desire for objective assessment of housing prices by independent adviser

compensation for emotional stress floated.

While there was little consensus in the meeting with many conflicting views being represented, a number of suggestions gained traction and received significant support. These included:

Conducting a survey/questionnaire of all 1000 estate residents about their interests and desired criteria

appointment of an independent valuer to assess the property value loss of the powerlines and other losses

design an objective rather than subjective process to assess all these inputs

a consensus that a letter (by registered mail) should be sent to every home owner giving them the opportunity to indicate their interest in being involved in the decision, their desire to be compensated, and what criteria were important to them. The findings of this survey were to then be reported back to the broadest group interested.

Overall, many at the meeting expressed a sense of distrust and lack of confidence in an equitable community consultation to resolve the issue moving forward. Some of these negative assumptions were reflected back in the meeting evaluation forms, of which 43 were competed and returned at the end of the meeting. While the questions were not specifically related to the powerlines, the responses are indicative of the outrage felt by residents.

Discontent with the engagement and meeting process came from both those who are completely against the powerlines remaining above ground, and those who are ready to move on.

A number of responses referred to the meeting as not being constructive, with people talking over each other and lack of control from the chair. This was partly due to the process taken, which allowed people to express their frustrations. This led to relatively little conversation around the practical next steps. Others commented that the meeting was well-run considering the emotions of the residents.

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3 Findings

Based on interactions with the community through phone calls, emails and meetings, Futureye has identified a number of the community’s key concerns and needs for finding a solution that would offset the negatives of the decision to keep the powerlines above ground.

Given the diverse views of the community, these concerns and needs cannot be said to apply to each individual, but demonstrate an overall picture of the impact of the decision on the community.

Nearly all of the residents involved in the process expressed the belief that the best-case scenario would be for the powerlines to be placed below ground, as had been originally intended. However, the community is divided over its acceptance of the fact that this is not a possibility. Some in the community have accepted that the powerlines will remain above ground and were open to the process of discussing the package, while others are still not ready to discuss any outcome that does not involve the powerlines being placed under ground, and some have expressed plans to exercise their right to challenge the decision in court.

Where discussions did turn towards offsetting the impact of the powerlines, the main focus of conversation was that of financial payment, and the fairness of the ex gratia payments as determined by Mirvac. While some residents contributed suggestions for improved public works through emails and other conversations, it became clear in the community meeting that financial payments were generally considered much more important. Discussions of the impact on amenity were generally directed to the parklands and lake that were originally planned never having been completed, and the area being left a mess.

3.1 Community impacts

The following reflect the key concerns voiced by the community related to the decision to keep the powerlines above ground, as well as the overall impact of the broken promises made by Mirvac and the time taken to resolve the issue.

Family

When residents first bought their homes at Waverly Park, the parkland was not yet finished, but they were under the impression that it would be completed in a timely manner. Some of the residents had small children and believed that they would grow up with parkland to play with their kids in. Residents that have been there for 10+ years have now missed that opportunity as their kids have grown up past an age where they can play in it. For these residents, no community benefits package can give them back time with their children. For them, the community benefits package must consider more than just the proximity to powerlines and how affected they are by other situational factors. It must also consider the lost opportunities that they believed they were buying in to.

Amenity

Community members are concerned with the mess that Mirvac has left behind. Aside from not rejuvenating the park lands, it has actually made it worse. Residents claim the Mirvac is using the space as a dumping ground for building materials and waste. Community members see this as a sign of a lack of respect from Mirvac, not only that it failed in fulfilling its promise, but it has then rubbed it in by disrespecting the land.

Stress and anguish

Over the past few years, residents have been in constant communication with Mirvac and the government trying to get a resolution. It has caused them stress and anguish. Some residents believe that Mirvac has been intentionally increasing this stress, by dumping dirt near their houses which the wind blows in, as punishment for their complaints and unwillingness to accept Mirvac’s offer.

Lack of recognition

Residents believe that they have been ignored on the issue for a long time. The original community benefits package was developed without any input from the residents and they do not believe that it accurately represented the impacts they have faced. Mirvac has still failed to acknowledge that it misled residents and has adversely impacted them in more ways than just financially. For the

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community, being recognised and being heard by both Mirvac and the government is key to alleviating concerns that the government is not trying to do what is best by its citizens, and Mirvac its customers.

Length of time

Most residents are sick of the process and the time it is taking for any results. They have been there for up to 12 years and are yet to see a resolution. However, there is tension between residents, who are split into two camps. Some are sick of the process and want a decision made and to receive their community benefits package. Others want to continue negotiating until they receive what they see as a fair package and are not willing to compromise to expedite the process.

Accountability

While not all residents purchased their property under the understanding that Mirvac would be removing the overhead transmission lines, a significant group did. Others believed that they would soon have parklands for their children to play in, instead of the mess left behind. These residents feel that Mirvac needs to be held accountable for what it promised. If it cannot deliver on its promise, it needs to be punished.

Area premium

Owners bought in to Waverley Park as they felt it was a premium estate. With the powerlines remaining, residents believe that the value of their properties will be reduced and their area less premium.

Property values/sense of value

The impact on property prices of the powerlines remaining above ground is of great importance to community members, given the sense that they paid a premium to Mirvac because of this. A number of residents expressed their frustration that they chose to build in Waverley Park because they were told the powerlines would be placed under ground, and that if they had bought in another area, the value of their property today would be significantly higher.

Health and safety

The area that was to be developed into a parkland is still under construction and presents as a building site. This is an area that is supposed to be safe for children to play in, yet has been left a mess in the minds of community members. For a resolution to be successful, it is necessary that community members see quick progress on the development of the area as originally promised.

3.2 Community desires

The following represent the key elements which the community see as the most important to be addressed by the community benefits package.

Trust/accountability

Residents have lost trust in Mirvac and the government throughout this process. They feel that they have been failed by the relevant government departments and that Mirvac is not being held accountable. Any final solution needs to include a mechanism by which Mirvac can be held accountable to the community for delivering on their community benefits package, and other agreements with the community, including rejuvenating parklands, developing the lake and providing playgrounds. Only through this will the community be able to gain trust in Mirvac and the government again.

Ex gratia payments

The engagement process identified ex gratia payments as a key issue of concern to the community. The majority of residents were much more concerned with payments than discussing possible public works elements of the community benefits package. This may be in part due to the original proposed package including ‘contribution to further public amenity within the Monash City Council’, rather than directly benefiting the Waverley Park residents. There was also a significant view that the payments should be equal to or more than the cost of undergrounding the powerlines.

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Timeliness of action/resolution

Two of the community concerns that Futureye identified from consultations are “we want a resolution” and “we want reduction of stress and anguish”. Community members have been dealing with this ongoing issue for up to 12 years and want it to be over. Therefore, in order for the community to be satisfied with Mirvac, the government and the outcome, there is a need for any remaining processes to be completed in a timely manner and not drag on.

Acknowledgement that they have been misled

Many of the Waverly Park residents bought their homes with the belief that they would have the transmission lines removed and parklands to play with their kids in or to add value to their property. Regardless of the community benefits package that is settled upon, Mirvac must acknowledge that the residents, intentionally or unintentionally, were misled. They need to see Mirvac taking responsibility for this.

Social justice – desire for ‘what is beneficial to the most’

Three major concepts have been identified to represent a fair distribution or social justice (Davy 1996):

1. Justice is what is beneficial to the strong, or: maximise liberty!

2. Justice is what is beneficial to the most, or: maximise happiness!

3. Justice is what is beneficial to the poor, or: minimise pain!

Generally in situations where some members of the community are arguably more affected by a decision than others (ie. proximity and visibility of the powerlines), the most acceptable solution in terms of social justice is for those most affected to be the most compensated; the ‘minimise pain’ solution.

The engagement process in Waverley Park, however, suggested that the ‘maximise happiness’ scenario was considered to be more appropriate, due to the amount of time taken to resolve the issue, and the sense that everyone in the community had suffered significantly.

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4 Recommendations

4.1 Disparate views prevent consensus outcome

The consulting process undertaken revealed the true extent of some of the residents’ unhappiness with the decision to amend the permit and allow for the powerlines to remain above ground, Mirvac’s current offer of ex gratia payments, as well as Mirvac and the government’s handling of the process.

The results of the process, specifically relating to the outcomes of meetings with WPRAG and the broader community meeting, indicate a range of disparate views that are unlikely to result in a consensus agreement as to a preferred community benefits package.

While some residents are at the stage at which they are sick of the stress and anguish and would like to negotiate a package to bring the issue to a close, many are still extremely unhappy with, and refuse to accept, the decision to amend the permit and as such are unwilling to discuss any options or any process to reach an agreed option.

Along with this are widely varied opinions of how to determine the most affected – whether it be based on contractual obligations, marketing promises, distance from the powerlines, or a combination of these, as well as how the process should go about. There are also varied opinions on whether anyone is ‘most affected’ and if anyone deserves a greater offset.

While ideally, the whole community would be satisfied with the solution, given the widely disparate opinions identified, it is unlikely that a solution can be reached that makes all parties, or even all residents, happy.

4.2 Timeliness of resolution is critical

Regardless of views regarding fighting the decision to allow the powerlines to remain aboveground or accepting the decision, the residents of Waverley Park overwhelmingly indicated a desire for action to be taken quickly.

Recommendation: A decision should be made as soon as possible

4.3 The recommendation should be based on Mirvac’s existing proposal for public works as supported by the Advisory Committee

The engagement process sought to understand the community’s views about the scope and shape of the community benefits package. The process undertaken has indicated that the residents are more concerned with ex gratia payments than reshaping the public works element of the proposed community benefits package, and that there is a desire for the originally planned works to be completed as soon as possible.

While the community expressed a desire for a mail-out to all property owners to discuss possible options for redistribution of the ex gratia payments, which is outside of the Minister’s scope. The Minister could provide a copy of this report to Mirvac and encourage them to negotiate with the community to agree on the distribution of ex gratia payments. However, this could lead to further lengthy delays in resolving the matter. It is recommended that the Minister require Mirvac to complete the public works outlined in the proposed community benefits package in a timely manner.

The community benefits package put forward by the Advisory Committee should be adopted

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5 Appendix 1: Timeline

Original permit

14 August 2002 Original permit granted Then Minister for Planning approved Amendment C20 to the Monash Planning Scheme and issued Planning Permit No. STA/2001/000714 for the subdivision and development of Waverley Park.

Condition 50 of Planning Permit No. STA/2001/000714 required that:

The existing powerline easement through the land must be removed and the high voltage electricity transmission lines must be placed underground in a location and via a route which is to the satisfaction of SP/ Powernet or the relevant electricity authority.3

Scoping

Pre - December 2008

Mirvac continues to investigate logistics and detailed designs regarding undergrounding powerlines.

Ongoing consultations with SP AusNet re: options and commercial aspects of delivery. Negative impact on some households resulting from transition stations emerges in addition to concerns from SPA relating to potential safety risks in the vicinity of these enclosures.

Mirvac completes a review of the options relating to the powerlines (above and below). Mirvac’s assessment indicates that the most appropriate outcome is for the powerlines to remain above ground.

Flagging

December 2008 Information to prospective purchasers is that despite Condition 50 of the Permit the powerlines may be retained above ground.

Mirvac informs purchasers in three key ways:

a large model – depicting powerlines remaining above ground – is created and displayed in the sales office

sales staff advise prospective purchasers of Mirvac’s position regarding the Planning Permit; and

the Contract of Sale includes a Special Condition acknowledging the possibility of Mirvac seeking an amendment to the Permit to allow the powerlines to remain above ground (note the Contracts of Sale up to this date did not contain a Special Condition that Mirvac would underground the powerlines).

No contract with any purchaser contained any clause obliging the Vendor (Mirvac) to undertake an underground diversion of the powerlines. Mirvac asserts that from this point it

3 DTPLI http://www.dtpli.vic.gov.au/planning/panels-and-committees/current-panels-and-committees/waverley-park-transmission-lines-advisory-committee

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does not have any contractual obligations to purchasers in relation to this issue. Notwithstanding Mirvac’s position it should be noted that no purchaser is giving up any right to take legal proceedings against Mirvac in relation to this issue if they believe that Mirvac has a contractual obligation to them. Enforcement of any such private rights, however, should be disconnected from the planning system which is a system for the making and enforcement of public laws.

September 2009 Mirvac writes to all existing owners to advise them that Mirvac is seeking an amendment to Condition 50 of the Permit to allow the powerlines to remain above ground.

Consulting – Mirvac undertakes consultation with the Waverley Park community and other

stakeholders

September 2009 In the letter to existing residents, Mirvac includes imagery of the above and below ground designs and offers residents face to face meetings to discuss in more detail. No owners took up the offer.

2010-13 In forming its position on this issue, Mirvac undertook extensive consultation, including:

regular meetings with the Waverley Park Residents Action Group (WPRAG)

Resident surveys undertaken on impact of powerlines remaining above ground

three separate sessions of public consultation which included advice from town planners and SP Ausnet

briefings of Government and Opposition personnel, including Minister; local members

ongoing discussions with Monash Council

June 2011 Mirvac submits its application to amend Condition 50 to allow the powerlines to remain above ground. The application is generally consistent with the application heard at the Advisory Committee with the exception of the Community Benefits Package

At Mirvac’s request, the application was later placed on hold to allow Mirvac time to develop a Community Benefits Package (CBP)

Researching - Mirvac undertakes widespread consultation with the Waverley Park community and other stakeholders

2011/12 Mirvac completes detailed valuation assessments and engages with the Victorian Valuer General to seek independent validation of the findings

Mirvac obtains expert valuation advice which considers a broad range of information to assess the impacts of high voltage power lines on property values. This advice concludes;

- the impact of high voltage transmission lines dissipates within 100m such that there is no adverse impact beyond 100m

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- the impact within 100m depends on the location and aspect of the property and views to the towers and lines

- over time the impact on value will diminish as views are built out and vegetation matures.

Mirvac approaches the VG’s office to seek independent validation of the valuation principles for use in communication of the CBP to eligible home owners. The VG’s office advises that they are not prepared to undertake a review of the principles but may be willing to participate in a valuers conference to mediate where there is a dispute in terms of value.

April-May 2013 Mirvac commissions a peer review of the technical, legal and valuation principles associated with the above vs. below ground option. Upon completion of the review Mirvac determines that amending the application was the best outcome. It is decided that a CBP should be included to address any residents perceived valuation impacts or broken promises as a result of retaining the powerlines above ground.

In order to help inform the CBP, research was conducted by Empirica Research;

Research identifies key principals that residents believe should be considered when framing a benefits package, being:

Promise – those who purchased with the promise of undergrounding should be recognized; and

Proximity – that recognition should be more significant for those who met the promise threshold and bought in close proximity to the powerlines

The strong appetite for broader amenity enhancements was also established through this research.

Overwhelmingly, the strongest feedback was simply to have the matter resolved as soon as possible to allow the Parklands to be completed and the sound barrier constructed.

Informing

June 2013 Mirvac announces its Community Benefits Package (including offers of ex-gratia payments to individual owners) – to the Waverley Park community.

Mirvac stages a series of community information sessions to explain its decision to apply to amend the Permit, and to launch its Community Benefits Package.

The sessions are well attended.

Mirvac engages with residents, including active objectors (WPRAG).

Mirvac establishes a dedicated website to promote the CBP and invites residents to register

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their interest in accepting the CBP. NOTE: residents were informed that if they chose not to register for the CBP payment at this point, it would not negatively affect their ability to claim the payment later in the process.

Approximately 30% of the residents registered to accept the offer.

28 April 2014 Permit amendment refused Then Minister for Planning Matthew Guy issued a Refusal to Grant an Amendment to a Permit, with reasons for the refusal, in regard to Planning Permit Application No. STA/2001/000714B.4

14 May 2014 Mirvac appeal to VCAT Mirvac lodged an application for review at VCAT of the Minister for Planning's decision5

14 August 2014 Call-in to VCAT The former Minister for Planning called in the VCAT proceeding under clause 58 of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.6

6 October 2014 Terms of reference provided to Advisory Committee

The Terms of Reference note at Clause 3:

The purpose of the Advisory Committee is to consider matters raised in the Victorian Civil and Administrative Tribunal (VCAT) proceeding of Mirvac Victoria Pty Ltd v Minister for Planning and others (VCAT reference P768/2014) and to provide advice to the Minister for Planning on all relevant matters associated with Mirvac’s application to amend Condition 50 of Planning Permit STA/2001/000714 to enable retention of the electricity transmission lines aboveground at Waverley Park.

At Clause 16, the Terms of Reference note that the Advisory Committee may inform itself in any way it sees fit, and must consider all relevant matters, including but not limited to:

a. Relevant provisions of the Planning and Environment Act 1987 and the Monash Planning Scheme;

b. All relevant material prepared by or for the applicant; and

c. All material filed in VCAT in the proceeding P768/2014; and

d. The views of Mirvac and Monash City Council; and

e. The views of SP AusNet or any relevant electricity authority.

4 DTPLI 5 DTPLI 6 DTPLI

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The Terms of Reference note that the Committee is bound by the rules of natural justice andthat it may regulate its own proceedings.7

18 November 2014

Directions Hearing held At the Directions Hearing, the Committee tabled a number of matters which it sought a response from the relevant parties to assist in its consideration of the matter before it.8

29 November 2014

Victorian state election The Victorian State election leads to a change in Government and the appointment of Richard Wynne as the new Planning Minister

8-17 December 2014

Advisory Committee Hearings The Committee met in the offices of Planning Panels Victoria to hear submissions and evidence in respect of the matter.9

February 2015 Advisory Committee Report provided to State Government

The Waverley Park Transmission Lines Advisory Committee provided its report to the State Government in early 2015 for consideration by the Minister.

The report recommends that the permit be amended so that Mirvac is no longer required to put the powerlines underground. It said the existing transmission towers should be replaced with above ground poles.

March – November 2015

Government assessment of report

Government considers the recommendations of the report in light of its obligations regarding the consideration of amending planning permits.

December 2015 Advisory Committee Report released to the public

December 2015 Minister sends letter to residents

Minister for Planning Richard Wynne sends letter to Waverley Park residents expressing his intention to make a recommendation that the permit should be amended to release Mirvac from its obligation to place the power lines underground.

February 2016 Minister initiates consultation process

Open invitation to contact Futureye to discuss Community Benefits Package (CBP).

March /2016 Initial Contact with WPRAG Agreement to discuss rationale for Government's position to amend permit.

Early April 2016 Meeting with WPRAG Members and Futureye

Agreement to discuss issues with Futureye as a group.

April 2016 Meeting with WPRAG and Minister

WPRAG meet with Minister to discuss the basis for the Minister’s position.

May 2016 Meeting with WPRAG and Department Secretary

WPRAG meet with the Deputy Secretary Planning to discuss the position.

7 Advisory Committee Report 8 Advisory Committee Report 9 Advisory Committee Report

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6 June 2016 Community meeting Meeting with members of the Waverley Park Community to discuss the decision-making framework for the community benefits package.

June – August 2016

Futureye conclude consultation and submit report to Government with recommendations

Appendix 2: Minister’s letter

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6 Appendix 2: Minister’s letter regarding Futureye

Appendix 3: Futureye’s letter of invitation to the community meeting

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7 Appendix 3: Futureye’s letter of invitation to the community meeting

Appendix 3: Futureye’s letter of invitation to the community meeting

25 | © 2016 COMMERCIAL IN CONFIDENCE

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