Day 2: The LMA enjoys its time in the sun

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By Andrew Herington

Today was the day when the Linking Melbourne Authority could present its case uninterrupted.

Taking it in turns, three barristers read a massive 76 page submission, occasionally adding asides that underlined their core message. They argued this is a narrow inquiry, tightly constrained by the terms of reference.

According to the LMA, the assessment committee has limited powers to examine issues and no power to question existing standards. They held tightly to the idea that only one option could be considered for the freeway route, but conceded that “ancillary” elements could be amended so they were outside the proposed project boundary. There was then a confused discussion about what an “ancillary element” was, but it appears to include access ramps.

It was put that the committee’s task was reduced to ticking off on the “performance requirements” to which the LMA would graciously discuss minor revisions.

Over six hours of  tightly orchestrated presentation, the LMA set up a series of “straw man” arguments and knocked them over with relish.

There are no constraints on removing trees in Royal Park because the planning scheme provisions don’t apply to trees; air pollution will be no worse than currently and the committee wasn’t entitled to require any higher standard; there is no standard for noise in open space so the committee was not entitled to recommend one; the State Environment Policies didn’t apply to the Moonee Ponds and Merri creeks because they were already polluted. In each case a tightly defined legal argument was laid down – designed to repel opponents and have their arguments struck out.

Challenged by the barrister for Yarra to demonstrate the benefits the freeway would bring, the LMA sought poetic comparisons. The tunnel would be an icon like the Sydney Harbour Bridge; the Kensington viaduct would be “like a bypass to a country town” re-invigorating the sleepy Arden precinct.

The impressive Urban Circus computer model was given a demonstration run and the assessment committee used it to zero in on key issues, measuring the 37 metre separation from the Flemington public housing estate to the proposed viaduct, watching the overshadowing of the children’s playground and taking a human level look at both the eastern and western portals.

Two significant announcements were made during the day. The LMA said it would make a “substantial financial commitment” to the Memorandum of Understanding with the City of Melbourne regarding displacement of sports groups. It also “ruled in” the purchase of properties affected by the freeway but outside the defined project area. Stuart Morris QC invited the committee to examine the submissions raising compensation issues and to make recommendations about worthy cases.

The LMA also confirmed the ultimate capacity of the Eastern Freeway is 200,000 vehicles a day (after being challenged to check the figure). The CIS figure of 80-100,000 vehicles per day for the tunnel was only a starting point and it was expected to rise to 120,000 after 2031.

The committee asked a lot of questions and appeared sceptical of many claims.

At the end of the day the Chair asked the Minister’s barrister to seek some clarification of the terms of reference which listed nine specific “hearing matters” but omitted business and social impacts and discussion of the economic impacts. She pointed out that despite this, the LMA itself had introduced evidence on all three matters and many submissions had raised these matters.

The committee has decided that all submissions had been “properly made” but wanted clarification of what the committee can consider.

Stuart Morris QC said that the LMA welcomed a broad approach and supported all submitters having an opportunity to say what they wanted to say – adding that where submissions included matters beyond the LMA’s interpretation of the terms of reference the committee should hear it but then disregard it.

The LMA has also drawn a distinction between the matters the committee should consider and the things they are allowed to hear evidence on. This confusion is unlikely to be resolved anytime soon.

Tomorrow, the focus will shift to the cross examination phase. Over the next six days, the LMA’s expert witnesses will be cross examined by the counsel assisting and the four council’s barristers.

Community proposals for questions are being submitted two days in advance and are to be wrapped up in the counsel assisting’s cross examination.

From next Friday, the councils get their turn and the Community finally take centre stage from 1st April.

The inquiry has only just begun.

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