1. The application for permit and applications for review are varied to include buildings and works comprising temporary sound barriers.
2. The Minister for Planning is confirmed as being the correct description of the Responsible Authority.
3. The decision of the Responsible Authority is varied.
4. In permit application 2008/0789 a permit is granted and directed to be issued for the land at Royal Melbourne Showgrounds, 300 Epsom Road, Ascot Vale. The permit allows use of the land for three (3) additional outdoor musical events in excess of 55dB(A) per year and construction of sound barriers in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit issued by the Minister for Planning dated 31 December 2008 but modified as follows:
   1. The description of what the permit will allow modified to the following:

The use of the land for three (3) additional outdoor musical events in excess of 55dB(A) per year and construction of temporary sound barriers in accordance with the endorsed plans.

Before any additional outdoor musical event authorised by this permit takes place the following must be completed. If only one area referred to is being used for the event only the works relating to that area is required.

Provision of barrier walling to a height of at least 8 metres above the arena level to the north side of the main arena extending from the northeastern corner to the grandstand. The barrier must continue to the northwestern corner of the tiered seating with a return along the rear of the tiered seating for a distance of approximately 22 metres. The walling to be constructed of timber similar to a barrier to the edge of freeway or other materials to the satisfaction of the responsible authority. Any pedestrian access through the barrier is to be via a 'dog leg' passage and a roller door must be provided for truck access.

Provision of a wall linking the RASV building to the Town Square Hoecker. The wall must extend to the eaves line of the Hoecker building and include solid doors as necessary for escape purposes.

Provision of a wall extending from the south western corner of the RASV building for at least 20 metres along the roadway to the east. This wall to take the form of tightly packed containers with an effective height of approximately 5.5 metres.

Speaker stack heights at a level of at least 1.5 metres below the top of the barrier or building. The barrier(s) must be erected no more than one week before the musical event and must be removed within one week after that event.

(iv) Implementation of the recommendations contained with in the Acoustic report prepared by Mr Andrew Rogers, dated 8 August 2008, implemented at no cost to the City of Melbourne or Moonee Valley City Council and to the satisfaction of the responsible authority.

(v) Arrangements made to ensure that the operator of the event has one person in control of music outputs and for that person to be in continual radio contact with the acoustic monitor so as to be able to immediately monitor sound emissions and respond to complaints.

1. Conditions 6 and 7 deleted and replaced with the following:
   1. A management plan must be prepared to the satisfaction of the responsible authority for each outdoor musical event and before the event takes place. The responsible authority must notify the Royal Melbourne Showgrounds Consultative Group (or any other replacement group) of each proposed event and consider any response from that Group before deciding whether the management plan is to its satisfaction.
   2. The loading and unloading of goods from a vehicle must be carried out within the boundaries of the site. Before 8.00am and after 6.00pm all such vehicles must only enter or leave the site by the Epsom Road entrance.

Mr Peter O'Farrell, barrister instructed by the Victorian Government Solicitor's Office

Mr Robert Burton, acoustic engineer from Burton Acoustic Group

Mr Robert Green, Operations Manager, of City Wide Services Solutions

1. These applications for review relate to use of the Royal Melbourne Showgrounds for three additional outdoor musical events in excess of 55dB(A) per year. The Minister for Planning has determined to grant a permit for the use subject to conditions. An objector seeks a review of that decision largely on the basis that the additional events would have a negative impact on amenity of nearby residents. The applicant for permit seeks a review of two of the conditions proposed to be included on the permit.
2. The issues to be determined are:
   • Is there support in the applicable planning policy and provisions for additional concerts at the showgrounds?
   • Will the amenity impacts of additional concerts be unreasonable?
3. Our findings on these issues support the grant of a permit subject to additional sound attenuation measures and modified conditions of permit.

1. The review site is the Royal Melbourne Showgrounds (the 'Showgrounds') that is generally bordered by Epsom Road to the east, Langs Road to the north, a railway line to the south and Flemington Racecourse to the west. There are three main areas within the showgrounds comprising:
   • The Showgrounds 'core' area used for the Royal Melbourne Show and other events during the year. This portion of the land is in the southern part of the site and contains the main arena, the town square area and a number of new buildings separated from Langs Road by car parking areas.
   • The eastern non-core land located south of the main Epsom Road entry that is currently being developed for commercial uses including shops and other facilities.
   • The western non-core land that is used for car parking to support Showground events. This land has frontage to Leonards Crescent and adjoins the Flemington Racecourse to the west.
2. Currently the applicable planning controls allow the Showgrounds to hold up to three outdoor musical events that exceed a noise level of 55dB(A) in any financial year. It is proposed to use the land for three additional music events that exceed 55dB(A) per year. The events are proposed to be conducted in the core area that contains originally restored pavilions and grandstands, new buildings and open air spaces including the Town Square and the Main Arena.
3. To the north of the Showgrounds across Langs Road is Victory Park and the Ascot Vale leisure centre beyond. West of the park is the Ascot Vale West primary school with residential development further west and north.
4. To the east across Epsom Road is residential land. To the west and south is Flemington Racecourse and the railway line.

1. The Showgrounds is zoned Special Use - Schedule 2 Royal Melbourne Showgrounds (SUZ2) in the Melbourne Planning Scheme (the 'Scheme').
2. The use proposed falls within the definition of a place of assembly[1] which (other than a drive in theatre) is not subject to a permit in the zone.
3. A permit is triggered under Clause 2.1 of Schedule 2 that relates to noise and includes the following statement:

A permit is required to use land (unless exempt under Clause 2.5) for the purpose of musical events (outdoor) where the number of such events in any financial year exceeding 55 dB(A) measured outside any residence exceeds three. The views of the Environment Protection Authority shall be sought.

1. Decision guidelines are provided at clause 2.7 of Schedule 2.
2. Preparation and approval of a Land Management Plan (LMP) setting out arrangements for management of noise, traffic, parking and events prior to use of the land for place of assembly is a requirement of Schedule 2. A revised version of the LMP was approved by the Minister for Planning in December 2008.
3. Schedule 2 requires a Consultative Group to be established comprising representatives from the Royal Agricultural Society of Victoria Limited, the Melbourne City Council, the Moonee Valley City Council, the Environment Protection Authority and a local community representative. The Consultative Group is required to consider management arrangements prepared in accordance with the Schedule 2 requirements. Mr Pitt provided minutes of several meetings of the Consultative Group during 2008 and 2009 and advised that he was aware of meetings prior to 2008 but could not provide details of these.
4. There are a number of State and local planning policy provisions relevant to the application including clauses 11, 12.04, 12.05, 21.03, 21.04. 21.05 and 21.08.
5. There is a Heritage Overlay that covers the entire site and one that covers a tree on the site. No permit is required for the proposed use under these overlays.[2]
6. Other provisions that relate to the site include clause 52.03, 52.06 and 81.

1. The responsible authority has been listed as the Department of Planning and Community Development by the Tribunal. This is an administrative error and our order will confirm that the Minister for Planning is the correct description of Responsible Authority.
2. Following our inspection of the review site and surrounds we issued an interim order dated 6 August 2009 that sought additional acoustic advice. That advice was provided on 17 August 2009.

1. As referred to in the summary above, our decision to support the proposal is based on the considerable support we find in the Scheme for utilisation of the Showgrounds as a year round venue for entertainment and other purposes and amenity impacts that we consider acceptably limited. We address these matters in detail as follows.

1. The provisions of the Special Use Zone Schedule 2 specifically encourage the use of the Showgrounds for activities of the type proposed. The purpose of Schedule 2 includes the following:

To recognise that the Royal Melbourne Showgrounds is a major educational, recreational and entertainment resource of State and Metropolitan significance.

To encourage the use and development of the Royal Melbourne Showgrounds for the Royal Melbourne Show and in the non-Show period for a range of entertainment, recreational, commercial and community events and activities.

To encourage the multiple use of land and buildings within the Royal Melbourne Showgrounds in order to facilitate its usage throughout the year for events and other activities.

To ensure that the future use and development of the Royal Melbourne Showgrounds occurs in a planned and orderly manner generally in accordance with the Royal Melbourne Showgrounds Redevelopment Master Plan - December 2004 which is an incorporated document in this Scheme.

1. Melbourne 2030[3] includes the following initiative:

Redevelop the Royal Melbourne Showgrounds as a year-round venue for major events and activities including those requiring special train services.

1. The Royal Melbourne Showgrounds Redevelopment Master Plan - December 2004 is an incorporated document in the Scheme. This plan provided the basis for the broad scale redevelopment of the Showgrounds resulting in the current layout. The use of outdoor areas for the events proposed is in accordance with the Master Plan that included multi purpose areas specifically designed to allow flexibility in the type of event that can be held.
2. Local policy in the Scheme relating to Flemington and Kensington acknowledge that the Showgrounds are Capital City facilities of significant in Victoria and support their ongoing operation including ancillary activities and revitalization to enhance capacity as a recreation facility.
3. It is our view that use of the Showgrounds for three additional music events of the type proposed is strongly supported by Scheme provisions that recognise the venue as one of State significance and seek to encourage increased use for entertainment purposes. The Scheme provisions also seek to ensure that such use does not prejudice the amenity of surrounding areas and it is to that matter we now turn.

1. Ms Bannister submitted that in assessing amenity impact it is critical to consider the context within which the additional concerts are sought. The context, in her submission, includes events that attract thousands of people and traffic and comprise the following:
   • Use of the showgrounds for a wide range of events which generate noise and traffic year round.
   • The Royal Melbourne Show which is held over 10 days every year and includes one or more concerts per day.
   • Three as-of-right concerts over 55d(B)A per year.
   • Events held at nearby Flemington Racecourse including racing, markets and concerts.
2. Ms Bannister also submitted that the Royal Agricultural Society has a history of non-compliance with requirements and this creates circumstances where allowing an expansion of use that could further impact on amenity should be treated cautiously. It was her submission that the existing level and variety of use of the Showgrounds extends far beyond the site's traditional use and residents' reasonable expectations and new events will add to the adverse amenity impact to neighbours.
3. The location of the main arenas and open spaces suitable for outdoor music concerts towards Langs Road, in Ms Bannister's submission, was an unfortunate result of the Showgrounds redevelopment that occurred in 2007 and 2008 and one that is in direct contraction to the recommendations of the Panel in Amendment L268. The acoustic evidence provided by Mr Burton demonstrates, in Ms Bannister's view, the 'retro fit' required to address weakness in terms of acoustic performance and is a typical example of the Showgrounds failure to plan ahead.

1. We preface our findings on amenity impact with the following comments.
2. It needs to be kept in mind that the showgrounds have been operating on this site for over 100 years and it is not our role to be reviewing the whole of the approval regime for the showgrounds. To extent that Ms Bannister queried whether musical activities provided during each year's Royal Show exceed maximum noise levels, no actual proof of this was provided.
3. Whilst we acknowledge that local residents may be frustrated at the inconvenience that might periodically arise if the showgrounds site is used more actively, we also see it as reasonable that there is some degree of "shifting of the goalposts" over time with how the showgrounds site is used. In other words, we do not think it is reasonable for residents who choose to live nearby to expect a "maintaining of the status quo" situation over the longer term.
4. We can understand at a personal level Ms Bannister's frustration if she has been the main person actively pursuing the enforcement of the existing controls. We find it surprising that the responsible authority chose not to include Ms Bannister in the persons to be notified of the application given her evident interest in activities at the Showgrounds and given that approximately 739 owners and occupiers of nearby land were notified.
5. At the same time it seems to us that the six objections lodged to the application arising from the extensive notice given (that also included four public notices on the site) of which only one is party to the review proceedings suggests that Ms Bannister's significant concerns about amenity may not be universally held in the nearby area.
6. There are no enforcement proceedings or request to cancel an existing permit relevant to this site. Whilst there may have been previous non compliances with permit conditions, it is our role to consider the merit of the proposal before us.

1. The key amenity impact is noise and it was Mr Pitt's submission that this is the only matter that we are required to consider given the permit trigger is solely concerned with noise. [4] We note that evidence in relation to traffic management was provided by the applicant for permit for information purposes and we make some findings in relation to that matter.
2. We find that the three additional concerts exceeding 55dB(A) will be an acceptable outcome for this site having regard to noise impacts. We say this for the following reasons.
3. Firstly we consider the context must influence reasonable expectations of amenity. The owners of residential properties proximate to the Showgrounds and the Racecourse (both being recognised in the Scheme[5] as major recreational and entertainment resources of State and Metropolitan significance) cannot expect the same level of amenity as might be found in an entirely residential area.
4. Secondly, it is our view that there is in place a relatively comprehensive planning regime addressing noise emissions, amongst other things. This includes the Land Management Plan[6] that identifies outdoor venues for entertainment, nominates noise mitigation and monitoring measures and sets acceptable noise levels measured at the mixing desk in each of the two outdoor areas. A Consultative Group exists consisting of the Royal Agricultural Society of Victoria Limited, the Melbourne City Council, the Moonee Valley City Council, the Environment Protection Authority and local community representative. This Consultative Group is required to operate in accordance with protocols[7] for liaison and consultation with public agencies and the local community in developing management arrangements for specified uses. In addition, there will be conditions attached to the permit issued for specified events that will add another layer of control, a matter we deal with in detail shortly.
5. Our third reason for considering the additional events of the type sought are acceptable is that there is a legal requirement for compliance with State Environment Protection Policy (Control of Noise from Public Premises) N-2 (SEPP N-2) that includes control over operating times and level of noise. The provision in SEPP N-2 for up to six concerts in an outdoor venue in a financial year, in our view, supports the current application as does the lack of objection to the proposal by the Environment Protection Authority.

• Provision of barrier walling to the north western side of the main arena extending from the northeastern corner to the grandstand. The barrier would continue to the northwestern corner of the tiered seating with a return along the rear of the tiered seating for a distance of approximately 22 metres.
• The walling could take the form of a barrier similar to the edge of freeway timber barrier or part of a building structure.
• The height of the wall would need to be at least 8 metres above the arena level.
• A 'dog leg' pedestrian access and a roller door to allow access should be provided for truck access.

• Provision of a wall linking the RASV building to the Town Square Hoecker.
• The wall to extend to the eaves line of the Hoecker building and include solid doors as necessary for escape purposes.
• Provision of walling extending from the south western corner of the RASV building for at least 20 metres along the roadway to the east. This walling to take the form of tightly packed containers with an effective height of approximately 5.5 metres.

• Speaker stack heights at a level of at least 1.5 metres below the top of the barrier or building.
• The sub license to the agreements to be strictly enforced and fines imposed to ensure a quick response to noise reduction requests from the supervising acoustic consultant.

1. The matters referred to by Mr Burton can and should be incorporated as conditions of the permit. In achieving the quick response to noise reduction requests from the supervising acoustic consultant, we find the management techniques used for the V Festival in April 2009[10] appropriate and should be required by a condition of permit. This technique required the operator to have one person in control of music outputs and for that person to be in continual radio contact with the acoustic monitor so as to be able to immediately monitor and respond to complaints.
2. Our final rationale for finding, on balance, the noise impacts acceptable are the permit conditions set out in the Notice of Decision. Condition 6 requires a management plan to be prepared for each event and condition 5 requires that prior to the commencement of each event the RASV identify the nearest sensitive receptor to each relevant venue; determine noise limits at these locations and regularly monitor such locations during the permitted event to ensure compliance with set noise limits to the satisfaction of the EPA and the responsible authority. We consider these and other conditions of the permit will provide a specific layer of management and monitoring of noise to an extent that provides an acceptable balance between protecting nearby residents from unreasonable noise and utilizing the Showgrounds as a major, year round entertainment venue, as supported by policy.
3. In regard to traffic management we find persuasive Mr Pitt's argument that there is in fact no permit trigger for traffic issues, following the Shalit decision. However, even if it was established that a traffic trigger exists, we are satisfied, on the evidence of Mr Green, that appropriate approval by the relevant authorities, public notice of the event and the altered traffic conditions and management on the day of the additional event can provide local residents access to their houses as well as manage the substantial increased traffic flows. We accept that these events result in disruption to resident access but with proper management and notice find it an acceptable consequence of a location in proximity to a major venue.

1. Ms Bannister argued that the approval for three additional concerts each year results in a de facto planning scheme amendment. In her view the intention of the Scheme provisions is to provide a cap on the number of events while still allowing some flexibility for the Showgrounds to seek permits on a case by case basis where the circumstances warrant an exception to the general position. We do not agree. The current planning provisions do not require a planning scheme amendment to allow consideration of the application before us. Any additional events will be subject to the requirements of Schedule 2 to the Special Use zone and the SEPP N-2 in addition to any conditions imposed upon the permit.
2. A number of Tribunal decisions[11] on music events were referred to by Ms Bannister. We have read these cases and find them of limited relevance to the case before us for various reasons. The main distinguishing feature in this case is that the venue is included in a zone where the purpose specifically seeks a range of entertainment, recreational, commercial and community events and activities and the venue is an established entertainment facility.
3. Panel reports[12] relating to planning scheme amendments affecting the Showgrounds were referred to by Ms Bannister. These panel reports are relatively old and the redeveloped showgrounds create a different context to some degree. We give only modest weight to comments from panel reports that are more than 10 years old.
4. Ms Bannister argued that a "concert", as defined under SEPP N-2, included any outdoor event that exceeded 55dB(A) at any measurement point in a noise sensitive area and as such would include concerts during the Show and other events. This means, in her submission, that there may already be existing non-compliance with SEPP N-2. The definition of concert in SEPP N-2 does not mention music but Clause 2.1 of Schedule 2 refers to 'musical events'. Reading the two together suggests to us that a common sense interpretation would be that concert is directed to musical events. In any event Clause 2.5 of the Schedule specifically excludes any permit requirement for the purpose of events held during the Show and further there has been no proof provided that other events exceed the 55dB(A).

1. In regard to the application for review of permit conditions we note that the Minister for Planning has agreed to modify the wording of Conditions 6 and 7 and the applicant for permit has agreed to the changes. Other parties did not contest the altered wording and, subject to minor modification, we find it acceptable.
2. Schedule 2 to the Special Use Zone requires a permit be obtained for buildings and works. As our findings require works to be undertaken we consider it necessary that the application for permit be amended to include that permission.
3. Ms Bannister submitted that the sound attenuation barriers recommended by Mr Burton should be permanent as this would provide protection from noise generated by other events at the Showgrounds, including the 10 days of the Royal Melbourne Show. We are considering three additional events and it is inappropriate to impose a requirement that addresses matters that are not before us. We consider that the relatively high barriers we are seeking may have implications on heritage matters[13] that have not been addressed, plus we accept that requiring all new noise barriers to be permanent might compromise the day to day operation of this section of the facility. We therefore will require that the barriers be temporary and remain in place no more than one week before or after the event. The applicant has the option of applying for permanent barriers.
4. It was suggested by Ms Banister that we contemplate a separate permit for each event or that the three additional events be allowed for only 1 year. We agree with Mr Pitt that the type of events being catered for would be difficult to operate practically on an annual basis or by individual permit due to third party objection rights that effectively create a lengthy process for decision making. It is our view that a major venue such as the Showgrounds can accommodate the additional three events proposed on a permanent basis subject to the layers of control including conditions proposed under the permit. We expect conditions to be complied with and if a breach occurs there are enforcement mechanisms available not only to the Responsible Authority but also to affected third parties.

1. For the above reasons we find the proposal represents an acceptable outcome in terms of the provisions of the Melbourne Planning Scheme and we will direct that a permit issue subject to variations that accord with our findings.

[1] Defined in the Scheme as 'Land where people congregate for religious or cultural activities, entertainment or meetings.'

[2] Proposed sound attenuation barriers may be subject to approval under HO221, a matter we address later in this decision.

[3] A reference document referred to at Clause 12.09 of the Scheme.

[4] Mr Pitt cited Shalit & Faine v Boroondara CC &Ors [2002] VSC 528 in support of his submission.

[5] At clause 37.01 Schedule 1 Flemington Racecourse and Schedule 2 Royal Melbourne Showgrounds.

[6] Revision 4 approved by the Minister for Planning on 31 December 2008.

[7] Revision 2 approved by the Minister for Planning on 31 December 2008.

[8] Where 'concert' is defined in SEPP N-2 as '... any operation of an outdoor venue where the effective noise level exceeds 55dB(A) (or 45dB(A) if measured indoors) at any measurement point in a noise sensitive area.'

[9] Both as part of original expert evidence and addendum No 1 dated 13 August 2009 provided in response to our interim order.

[10] This was the most recent major music event in 2009 and we were advised that it met the requirements of SEPP N-2.

[11] Including Carey v Pyrenees SC [2006[ VCAT 2618, Good Trix Pty Ltd v Greater Shepparton CC [ 2005 ] VCAT 2009, Totem Industries Pty Ltd v Mornington Peninsula SC [2007] VCAT 2283, Victorian Arts Centre Trust v Melbourne CC [2005] VCAT 2842 , Hancock & Ors v Bass Coast SC [2009] VCAT 801

[12] Report of a Panel Hearing on Amendment L30, Essendon Planning Scheme Royal Agricultural Society Showgrounds July 1993 and Report of the Panel on Amendment L268 Melbourne Planning Scheme Royal Agricultural Society Showgrounds February 1998.

[13] The Showgrounds is on the Victorian Heritage Register and the temporary barriers may require approval by Heritage Victoria.