By Andrew Herington

Week four started with a distinct change of tone.  Adrian Finanzio, counsel for the City of Yarra delivered a comprehensive analysis of the merits of the LMA case for the freeway and the weakness of the legal arguments on which they have relied.

Summarising the arguments presented over the last 15 days, the opening statement for Yarra’s case focused on:

  • The use of the reference project approach is at best inappropriate and at worst unlawful
  • The net community benefit test should be the basis for the assessment committee its decision
  • The benefits claimed for the project are exaggerated and  not supported by evidence
  • The decision making process is not robust, transparent and evidence based as required by the Department of Treasury and Finance guidelines – and similar policies  expressed by other treasuries around Australia, the Productivity Commission and Infrastructure Australia.

The City of Yarra forensically dissected the LMA case by highlighting the lack of hard evidence submitted and its dependence on:

  • Unsubstantiated submissions by counsel
  • Late addition of evidence to overcome deficiencies in the CIS
  • Assertions claiming consequences such as urban redevelopment opportunities as positive benefits and systematically downplaying the negative impacts.
  • Withholding information and witnesses that did not support their case

The LMA took another beating for their efforts to depict Professor Edward Glaeser as a pro-freeway advocate. His recent article in the New York Times “How to discourage driving” was cited to rebut the way his book Triumph of the City had been misrepresented.

The absence of consideration of any alternative designs and the refusal to introduce evidence on how the reference design was developed is the potentially fatal dimension to the LMA case. The assessment committee has the power to seek additional work and to recommend that a supplementary CIS be prepared before any approvals are given.  The impact of the Hoddle St flyover was used effectively to make this point.

The submission concluded by quoting the Productivity Commission in their recent report on taking the politics out of infrastructure decision making: “delaying a major investment decision until more information becomes available can lead to a better decision”.

Mr Finanzio emphasised the hearings had reached a critical turning point. “This is where the rubber hits the road” on the legal arguments.

The afternoon’s testimony started to test the concentration of the most enthusiastic of the community observers. Yarra called as their traffic expert, Peter Thompson of Pitt and Sherry. He made a very good impression nailing some critical issues about the weaknesses in the way the traffic forecasting had been done and the increasing inaccuracy of projections made for roads leading to and parallel to the freeway.

He was subjected to a lengthy, and for the uninitiated, largely incomprehensible cross examination on the issue of convergence (whether you get the same result every time you run the computer model). It boiled down to most Australian agencies use a weak standard because it is easier and the NZ roads authority may have misapplied the strong standard that is used in the UK.

However, as the LMA keep reminding the committee, their job is not to set the best or most appropriate standard – it is just to see whether the design complies with whatever standard currently exists in Victoria.

After a similar long diversion into the types of induced traffic and how it can be measured, the hearing came to a welcome and relatively early end at 4:30.

With rumours of a debilitating bug threatening to decimate the bar table, anxious questions were being asked about the actual quorum of members needed to continue the hearings. There is an absolute statutory requirement to conclude within 30 days – and today marked the halfway point.

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