mcdonalds appeal - day 8

The early starters for the VCAT hearing, David from TVAG,
Ros - one of our community submitters who came
along to watch in the gallery, Karl - who's been doing
some great cross examination, myself - Lyster Ward
Councillor, Claire - traffic guru, community presenter
and cross examiner and Kate - wily assistant to our
community cross examiners. Some of the team who've
played a part in this enormous effort to stop McDonalds
developing the site in Tecoma.

A glorious spring day greeted those headed for a long day in VCAT for the last day of the McDonalds appeal.

Tribunal Member and hearing chair Geoff Rundell opened proceedings by asking that cross examination be confined to any new matters that arise from evidence and not the wider road network issues.

As part of preliminary matters Claire Ferres-Miles raised the issue of a plan of the finished levels across the site and whether this was now available (the lack of this has been a constant issue throughout the hearing). Whilst Tim Radisich (Town Planner Tim) raised the issue of details as to whether the car park will be fully reconstructed. Chris Townshend SC replied that there’s always design detail that won’t be answered as part of tribunal hearings.

After some clarifying questions from Ms Mimi Marcus (representing council) Mr Tim Radisich commenced cross examination of Mr Tim DeYoung of GTA Consultants, the second traffic expert presented by McDonalds.

Mr Radisich commenced by raising the issue of the most convenient car parking to the site, to which Mr DeYoung confirmed that the parking at 1527 Burwood Hwy (the location of Mr TMan pizza and various businesses) and Burwood Hwy itself might be the most convenient. Mr DeYoung went on to say that it was an acceptable outcome that people use the carparks at 1527 Burwood Hwy, he also said the McDonalds site was self sufficient when it came to carparking.

Mr Radisich went on to ask Mr DeYoung how he would feel if people were parking in his carparking spaces, Mr DeYoung replied with he can’t possibly give evidence on what the tenants of 1527 would be thinking and then went on to say you may be frustrated, you may be happy.

As part of cross examination Mr De Young revealed he did not turn his mind to the swept path of front loading garbage trucks. Mr Radisich went on to raise issues around regrading of the car parks to which Mr Townshend SC interjected saying that Mr Radisich had asked 3 questions in one.

In reframing his questions Mr Radisich asked questions around the revised drive through plan, where Mr DeYoung confirmed that the stack lane had been reduced to 4 vehicles and that on occasion the access to carparking may be impeded but wouldn’t have substantial impact on the operation of the area. Mr DeYoung went on to say he hadn’t made an assessment of the queue and time delays and that this was not a critical issue. He also confirmed that the queue of the drive through may encroach on the carriageway easement (this is the common driveway) for 2 or 3 minutes but he hadn’t assessed this.

Mr David Hall (one of the owners of 1527 Burwood Hwy) commenced his cross examination saying it was not desirable that McDonalds customers park in other premises car parks to which Mr DeYoung replied that it appears as a public car park but could be restricted or fenced. Mr Hall also raised the issue of maintenance given the bulk of use would come from McDonalds customers and McDonalds delivery/garbage collection vehicles. Mr DeYoung said it was not unreasonable for a permit condition that protects easements.

Next up was community member, Karl Williams. Mr Williams queried that relevance of stores used for data in Mr DeYoung’s evidence as they did not seem to be selected on the basis of their similarity to Tecoma. Mr Williams began a line of questioning and used data based on assumptions from McDonalds annual reports. Mr Townshend SC objected, saying Mr Williams can’t use assumptions to comment on GTA survey results. Member Rundell reminded that Mr Williams had put similar propositions to Mr Hunt (yesterday). Mr Williams decided to take a different tack.

Mr Williams went on to query the difference between the original GTA report (submitted as part of the application to council) and the one submitted as evidence. He also queried the need for tandem Customer Order Devices, to which Mr DeYoung said it was about convenience to customers. At this point Mr Townshend SC interjected again.

Mr Williams went on to query the diagram submitted as part of evidence showing two through lanes on Burwood Highway (from Glenfern right through to Sandells Rd) and signalisation of McNicol Rd and Burwood Highway. Mr DeYoung said they were only there for consideration of others (VicRoads and Council) and were not required as part of this application but may be an option.

At 11am Ms Claire Ferres-Miles commenced her cross examination. Mr DeYoung confirmed that he had visited the site once during peak hour but reviewed the video traffic survey material. He agreed that it was difficult for fixed cameras to see around the bend beyond Rutherford Rd to assess the queue length. Mr DeYoung confirmed to Ms Ferres-Miles that he believed the queues to be made up of two queues, one queuing back from the traffic signals at Sandells Rd, the other the queue made from the merge of two lanes down to one. Mr Townshend SC interjected asking what time. Mr DeYoung agreed that drivers would see it as one queue of traffic.

Mr DeYoung also said he was a little bit surprised that the same amount of cars turn left into Sophia Grove as they do into Sandells Rd and raised the proposition of rat runs through residential streets. He also agreed that diversion into residential streets has amenity impacts, but this was difficult to predict.

As part of her cross examination Ms Ferres-Miles asked Mr DeYoung to clarify in what way Tecoma was similar to Sydney CBD (Mr DeYoung had said yesterday that there were similarities), he stated that the similarity was the grades that are acceptable in Sydney and that no other characteristics were the same.

The only similarity we can see between Sydney CBD
and Tecoma is this splendid replica of the harbour
bridge!

Mr DeYoung restated that maintenance of the accessway was typically handled with permit conditions as well as ensuring public access through the construction period.

When asked about the timing of the signals at Sandells Rd Mr DeYoung said he’d observed 80-95second timing and had called VicRoads who advised a 90-95 second timing, Ms Ferres-Miles reiterated it was inconsistent with what she had recorded and evidence she’d provided to the tribunal from VicRoads.

Ms Ferres-Miles went on to ask about the disabled carpark to which Mr DeYoung confirmed that it technically doesn’t comply with Australian Standards but does comply with planning scheme requirements. At this point Mr Townshend SC interjected saying he was comfortable with splay, the carpark is located in the best most logical position in a constrained site and that there might be minor tweaks for acceptable design conditions.

After some questions and interjections around pedestrian circulation Ms Ferres-Miles went on to ask how Mr DeYoung thought 2 lanes could fit into a 5.4 width on Burwood Highway, to which Mr DeYoung said there could be a reduction in the footpath reserve to fit two lanes in. He said his plan was a concept based on an aerial plan of the area, it was theoretically possible but there were pros and cons, he also confirmed he had not modelled his concept plan in SIDRA.

Ms Ferres-Miles went on to ask about the right hand queuing into McNicol Rd from Burwood Hwy, to which Mr DeYoung confirmed he did not know the queuing capacity of the right hand lane, and on talking about the signalisation of McNicol Rd suggested that the right hand turn into McDonalds from Burwood Hwy may have to be the “sacrificial lamb” and McDonalds might have to lose that access point if the signalised intersection went in.

Mr DeYoung went on to say he had not completed a swept path diagram for buses entering Sandells Rd and said it was a matter that will need attention at the functional layout stage and it was too early to contemplate.

On questions around shower facilities for employees Mr DeYoung said there were specific McDonalds OH&S issues on site, given the age of the their worker populations and issues of young boys and girls in change rooms together. With this Mr DeYoung was excused and Ms Elizabeth Hui took the stand to present the acoustic evidence for McDonalds.

Ms Mimi Marcus was first to cross examine on behalf of council and raised issues around meeting the noise level guidelines outlined in SEPP-N1 (this provides guidance around acceptable noise levels). As part of the examination Ms Hui revealed that it was necessary for McDonalds to make deliveries between 6am and 7am and in doing so meet SEPP-N1 but not the guidelines. Ms Marcus also raised questions around the elevation of the terrace and the noise impacts on the surrounding area. Ms Hui conceded that the terraced area will need to be assessed in the summer months to ascertain noise levels.

At this point Mr Townshend SC interjected saying he client had accepted the condition to close the terrace at 10pm.

At 12:25 David Jewell commenced his cross examination of Ms Hui. Mr Jewell questioned the position of the noise source to inform the results of Ms Hui’s evidence. Mr Townshend SC interjected. Mr Jewell went on to ask about how many voices contribute to “voices” as outlined in evidence, the fencing and how gaps would be addressed between the various fence treatments, the height of the Customer Ordering Devices (CODs) in relation to the acoustic fences as well as the view line and bulk of acoustic fences at 89 Sandells Rd.

After a hefty morning, we were all pleased to break for lunch, where upon resumption Mr Jewell finished his cross examination and Mr Radisich commenced his. He opened by taking about impact on general amenity and asked if the new plan for the loading bay had been modelled for amenity impacts. Mr Townshend SC objected saying this was a Business 1 Zone and this was an appropriate use. Mr Radisich highlighted clause 34.01 (the amenity provisions) that applies regardless of the zoning of the land and that this application seeks to change the characteristics of the area.

In relation to the grades on site Ms Hui conceded that a localised treatment may be required to attenuate noise impacts. Mr Radisich then presented an earlier mock up drawing he had completed to which Mr Townshend SC interjected disagreeing with the diagram prepared by Mr Radisich. Mr Radisich went on to question the impact of CODs and why in the initial assessment of noise impacts 2-4 Sophia Grove was included but was no longer included in the more recent report.

At the finish of Mr Radisich’s cross examination Member Rundell said he was reluctant to allow Mr Williams to cross examine and said he should focus or right of reply and permit conditions. Member Carew asked questions around the construction detail of the fence, Mr Townshend SC confirmed it was timber paling. Member Carew also reconfirmed that SEPP-N1 was based on objective criteria.

At 3:47pm Mr Townshend SC commenced his summing up on behalf of McDonalds. He said we’d heard about traffic and ‘regional hierarchy network issues’ (nb: objectors didn’t think that extending evidence to traffic at Glenfern Rd, 400m away would be considered regional), that the existing conditions on the road network are the existing conditions. He went on to talk about the there was no escaping the sheer realities of the planning scheme and that Business 1 zoning was about intensive development, that it was not reasonable to criticise built form on requirements for use (nb: the use is as of right), that there’s no overlays and the land is unconstrained except by notions of character and built form.

He went on to talk about in all places in the Dandenongs, which is about conservation and recreation, this was where this development should be. With that he produced aerial photos of a host of other McDonalds stores, to prove that pedestrians and cars share lanes and that it works just fine and you won’t see designated pedestrian areas.

Mr Townshend SC said the cross examination had gone to a level of detail not necessary, as these were design detail matters and with regard to the easements he would leave that for final resolution in draft conditions.  Member Rundell called for a short break and after that a levels and section plan was presented by Mr Townshend SC.

At this point Member Rundell queried the availability of a cross section of the loading bay, carriageway easement and disabled car park so the tribunal could get a picture of how precisely the corkscrew would work. Mr Townshend SC confirmed that he could provide this for the tribunal.

At this point Member Rundell asked Mr Townshend SC to run through the draft conditions. Member Rundell assured the gallery that this was part and parcel of a VCAT hearing and we shouldn’t think that the tribunal had already made a decision.

After Mr Townshend SC spoke to the draft conditions we heard right of replies from Ms Marcus (for council), Mr Jewell, Ms Ferres-Miles, Mr Radisich and Mr Hall. All of them highlighting the constraints of the site to accommodate the proposal whilst others detailed the lack of matters considered in the original council officer’s report.  As part of Ms Ferres-Miles right of reply she referred to the 9 examples of McDonalds stores presented earlier by Mr Townshend SC and pointed out that in every case they included painted pedestrian crossings and speed humps, so were more pedestrian friendly than the current application which has been designed for cars not people.

Finally after the right of replies we heard from the various parties in relation to draft permit conditions. Ms Marcus opened, followed by Mr Hall who reiterated the need for McDonalds to be responsible for the upkeep of the easements (the driveway). At that point Member Rundell said that the permit applies to McDonalds land and a permit condition might not be the best way to achieve this outcome (on someone else’s land). To which Mr Townshend SC snapped back you could talk to your neighbours, it was clear by Mr Townshend SC’s comments that McDonalds haven’t talked to their neighbours about these key issues around impact. Mr Hall also advocated for a more active security system not just cameras as they are too passive.

Ms Ferres-Miles was next in presenting comments in relation to draft conditions which included a range of different issues. These included the relocation of the disabled car park and appropriate disability access to the building, a pedestrian walkway along the driveway, a safe pedestrian crossing point at the rear of the building, no right turns into the site from Burwood Hwy, the addition of traffic signals at McNicol Rd, rearticulation of the frontage of the building to provide a finer grain built form, deletion of numerous signs, additions of timber finishes, levelling of areas where CODs are located, closure of the store between 11pm and 6am, consolidating all light sources to calculate lighting spill, a curfew of signage between 9pm and 7am, shutting the rear drive through area and car parking adjacent to residential properties between 9pm and 7am, extension of the litter patrol to 500m (not the 100m suggested), no deliveries between 9pm and 7am, how public access will be maintained along the carriageway easements during construction and the inclusion of a Bushfire Management Plan.

Member Carew asked how could installing speed humps at the rear of DVD Destination be facilitated legally through a planning permit given this land is not part of the application. Mr Townshend SC suggested that the best way for a sensible outcome is to have a discussion with the neighbours and have permit conditions that include ‘subject to the consent of landowners’. He went on to ask Member Carew if the tribunal would like him to draft an enabling document and sent it through.

After a very long and intense day the hearing had come to an end. Member Rundell thanked the professional advocates, said that resident advocates had done an exceptional job putting forward their views and covered a huge amount of material. He also thanked the people who sat through the hearing saying they were remarkable resilient and assured all in the gallery that the tribunal members had seen and heard you.

Member Rundell said that the tribunal were going to be angels and demons at decision time and the decision would be made in 6 weeks time.

The hearing finished at 5:47pm, what an enormous community effort, I have been impressed by the way the community has worked together to form an incredibly cohesive team to put forward the case for the Dandenong Ranges.

I have been proud to be a part of this enormous community campaign which has been an exhausting process for many people involved.

We live in a place of great beauty, with a wonderful community who bring with them a range remarkable and diverse skills and these have truly been showcased over the 8 days of this hearing. I thank each and every one of you for your efforts. Let’s hope we get the right decision.