In April this year we saw the release of the VPA Projects Standing Advisory Committee (Committee) report in relation to the Victorian Planning Authority’s (VPA) draft planning controls for the Preston Market.^[1] Further, the Minister for Planning^[2] announced that, after considering the recommendations of the Committee, the VPA’s draft planning controls would be amended to protect the historic, aesthetic, technical and social significance of the market.

The report and Minister’s announcement come as a result of years of campaigning by Darebin City Council (Council) to save the market. It follows a six week Committee hearing that ran in October 2022 in which Maddocks represented Council, along with barristers Stuart Morris KC and Kate Lyle and a team of experts.

This article highlights the key takeaways from the Committee’s report, and lessons learned from Council’s case.

Background

Preston Market is a privately owned market which has formed an integral part of the Darebin community since the 1970s. The market is surrounded by open carparks on a large site next to Preston station and is considered a strategic redevelopment site^[3] as part of the Preston High Street Major Activity Centre.

The VPA prepared a set of draft planning controls that were considered by the Committee at the hearing. The draft controls were based on a framework where 80 per cent of the existing Preston Market would be demolished and relocated to another part of the site to allow for the development of 1200 dwellings. It included the following controls (in summary):

• Activity Centre Zone – Schedule 1 (ACZ1), informed by the Preston Market Precinct Structure Plan (PSP) and framework plan;
• Heritage Overlay (HO315) – to identify Preston Market as a heritage place on the basis of the market having historical (A), technical (F) and social (G) significance;
• Parking Overlay, Development Contributions Plan Overlay, Environmental Audit Overlay and various consequential changes to the planning policy framework.

Key Parties' positions

The key issue for the parties, and ultimately the Committee, was the extent to which the existing market fabric is to be retained in the draft planning controls. In summary:

• Council (and community submitters) sought to retain the existing Preston Market, on the basis that the market is at the heart of the Preston community.
• The developer supported the demolition of 80 per cent of the market and relocation to another part of the site, but proposed a different framework plan which would provide for a greater dwelling yield.

The Committee's key findings

The Committee considered the cultural heritage significance and identity of the market to be a threshold issue when determining the extent to which the market should be retained in the proposed controls. It made various recommendations in relation to heritage and identity, including recognising the aesthetic significance (E) of the market form and the elements of the market fabric that contribute to its social significance (G) for the community.

The Committee then went on to consider the extent to which the market fabric should be retained in the draft planning controls. Council had submitted that there was a problematic tension between the draft ACZ1 and Heritage Overlay, because the ACZ1 was drafted on an assumption that the majority of the market would be demolished:

Council submitted that the conflict stems from the fact that the ACZ1 and the PSP are based on the assumption that, under the Heritage Overly, over 80 per cent of the market would be permitted to be demolished which was inappropriate. This tension needed to be resolved at this stage of the planning process, either by reducing the extent of the Heritage Overlay (to include only those parts proposed to be retained under the ACZ1) or until a permit is granted for demolition under the Heritage Overlay. Planning for the precinct must be based on the retention of the market otherwise “the planning controls are jumping the heritage gun.”^[4]

The Committee agreed with Council that the ACZ1 and PSP did not strike the balance between heritage and planning for urban consolidation and should be redrafted to show a substantially retained market:

Net community benefit is not served by an Amendment that acknowledges that the majority of the market has heritage significance and a PSP and ACZ1 that assumes up to 80 per cent of it is to be removed. The benefits of the PSP do not outweigh or justify the extent of heritage impact and fabric loss and tips the balance away from a net community benefit being achieved, particularly when there is no clear reason why the critical fabric elements cannot be retained. The Committee considers, in the absence of a development application or heritage impact assessment, that the PSP needs to be redrafted based on substantially retaining the critical elements of the market.^[5]

The Minister’s announcement appears to be aligned with the Committee’s recommendation in ensuring the controls adequately recognise the significance of, and seek to protect, the market.

Lessons learned and where to from here

The Committee’s recommendation and Minister’s announcement marks an important achievement for Council and the community which has been campaigning for years to save the market.

A key part of Council’s advocacy at the hearing was the ‘alternate plan’, which was carefully prepared to show that the VPA’s proposed yield of 1200 dwellings on the site could be achieved while retaining the market.

The alternate plan was informed and supported by expert advice, demonstrating that aside from protecting heritage, it would also achieve positive urban design, traffic and car parking outcomes and that market operations could continue during appropriately staged construction.

The Committee found Council’s (and other parties’) alternate plans to be important in reaching its conclusion that the market could be retained while also achieving the other urban consolidation objectives for the site:

None of the plans presented to the Committee were perfect but what they do show is that the site is large enough and has the flexibility to achieve various configurations. In light of the heritage and cultural values of the market, the Committee sees that there is no compelling reason to remove 80 per cent of its physical fabric….^[6]

Council’s achievement at the hearing demonstrates that when looking to advance a position to a Panel or Advisory Committee, being able to demonstrate your position through a credible alternative (supported by expert evidence) is an invaluable part of the case strategy.

As to what is next, although the outcome of the Committee hearing is now known, the form of the controls which will ultimately apply to the precinct are by no means clear. The Minister’s announcement indicates that the VPA will be revising the controls to better protect the market. This change will no doubt have flow-on effects to the balance of the draft controls which are proposed for the site. On top of this, the Minister has indicated a Development Plan Overlay will be added to the suite of controls. More recently there have been media reports of further property issues between the market stall holders and the developer. The future of the market is still in play and we expect to see more unfold in this space later this year.