1. In context of the decision making framework set out above, I find the key questions to be determined are:
   • Will the demolition of the building adversely affect the significance of the heritage place, being HO16, Kelly Park?
   • Will the demolition lead to an adverse impact on trees protected under HO16?
   • Will the proposal conserve and enhance the heritage place HO16?
2. I address these questions below.

Will the demolition of the building adversely affect the significance of the heritage place?

1. The responsible authority and respondent submit the building to be demolished is a 'recent building' and is therefore non-contributory. The applicant contends the building has social significance due to its establishment by the community and therefore should be protected.
2. Both Dr Paul and Ms Redden provided detailed heritage evidence in context of the heritage overlay and the heritage significance of HO16. These statements confirm the building, as a structure, is not contributing to the significance of the heritage place as identified in the planning scheme. This is having regard to the significance attributed through the 1997 study.
3. The evidence of both experts is that the building currently adversely impacts the heritage significance which is in the park. Its demolition will assist in restoring the heritage place, that is the park.
4. The evidence is consistent with a heritage impact statement that was prepared for the earlier permit application, and relodged with the current permit application. This sets out that the demolition was considered to have a 'positive' impact as 'the demolition will enhance the ability to understand and appreciate the identified cultural heritage significance of Kelly Park'.[6]
5. Based on the statement of significance, that is the basis of the listing of Kelly Park in HO16, I am satisfied the building structure is not a contributory element HO16. It is the park and its trees that form the basis of significance that is identified in the scheme. As a non-contributory element of the significance identified in HO16, demolition of the hall will not adversely affect the significance of the place, being the park.

1. In context of section 60 of the Act, I have had some regard to the issues raised by the applicant as part of 'other relevant matters'.
2. The applicant submits that Kelly Park Hall has stand-alone social heritage value. This is firstly because, unlike many public buildings, its construction was funded through a collaboration between the State Government and the citizens of Wyndham. The applicant submits 'this model of community-led funding and construction is a powerful testament to the hall's deep-rooted social significance. It represents a living history of local pride, self-reliance, and collective action - values that are central to the identity of the Wyndham community.'
3. Ms Redden's evidence is that 'it is possible' that the building may meet the threshold for social significance when tested against draft criteria for the consideration of heritage significance set out by Heritage Victoria. Ms Redden's expert opinion, however, is that:

I am of the option that even if the Kelly Park Centre had formally recognised historical and social value, it would not likely meet the threshold for aesthetic significance and therefore demolition with the conditions of archival recording, the development of an interpretation strategy and a more appropriate replacement building would be an appropriate planning response.[7]

1. Apart from the planning permit sought, the council has separately determined in its December 2024 meeting to undertake an interpretation strategy and a draft strategy has been prepared in April 2025. Ms Redden's evidence is that this report should be finalised. The respondent submits that they would accept a permit condition for this work to be finalised. However, the respondent also submits that such a condition is not necessary as the council has already committed to undertake the work, as set out in its December 2024 council resolution.
2. Dr Paul's evidence is that identifying a heritage social significance to a physical building is complex. His evidence comments that the objections to the permit application refer to a 'loss of a very important and well used community space', 'a unique space that is easily accessible' and its use by groups 'in need of a meeting space'. The reason for the objection is stated as a lack of consultation and the need for a 'space like it'. His comments concur with evidence of Ms Redden that such matters are not about the loss of the physical building, but the services that were undertaken within the building.
3. On this issue, Ms Redden's evidence is then that:

I do not believe that the Kelly Centre would meet the threshold for architectural or aesthetic significance, or that potential social significance of the Kelly Park Centre would be so significant that it would override the cultural heritage significance of the broader Kelly Park precinct.

In keeping with article 15.4 of the Burra Charter, emphasising the landscape and aesthetic significance of Kelly Park, and interpreting the potential historical and social significance of the Kelly Park Centre could be justified as the building fabric is of potential slight (or no) cultural heritage significance, and that which is conserved and interpreted (the landscape elements and social history respectively) is of much greater cultural significance.

1. If there is some social heritage significance in the building from its establishment as a community space and continued use, I concur with the expert evidence that this does not outweigh the defining elements of HO16 which seek to conserve and enhance the park elements. The proposed demolition goes beyond not impacting the identified heritage of HO16, but enhancing it by removing a building that is contrary to the identified heritage of the place as set out in the statement of significance.
2. For the permission sought and granted, being demolition of a non-contributory building, I also find the finalisation of the interpretation strategy is not necessary to be imposed as a permit condition. It is a matter for the council to address as part of implementing its December 2024 council resolution.

1. The review applicant submits that the council did not appropriately assess the cost of retaining the building against its demolition. Cost generally is not a matter relevant to the questions to be determined under the planning scheme and the Act.
2. The relevant questions are whether the building is of heritage significance that warrants retention, or not. For reasons set out above I find the appropriate planning finding is that the building is not significant and that the heritage significance of Kelly Park can be enhanced by its demolition. Had I formed a different view about these matters then it may have been relevant to consider if the cost of reconstruction was warranted on balance of the loss of heritage significance. However, in this instance I find there is no such loss of heritage significance.

Will the demolition lead to an adverse impact on trees protected under HO16?

1. HO16 includes a requirement to not lop, damage or remove trees of heritage significance. The proposal does not include removal of any trees. The works to demolish the building, however, will sit close to some trees on the park and the demolition works may therefore damage the trees.
2. An arboricultural impact assessment was prepared by the permit applicant and conditions in the NOD require works close to trees to accord to a tree protection management plan.
3. Neither heritage expert statement, or material provided with the application identify if all, or only some of the trees in the park are of heritage significance. Regardless, no trees are proposed to be removed and with the NOD conditions to protect trees close to the proposed works, reasonable assurance that the demolition will not lead to the loss of any trees is provided.
4. As such I am satisfied that there is no loss of trees on the land that have heritage significance. I have made a minor change to the tree protection condition to refer to the updated Australian Standard for tree protection on development sites.

Will the proposal conserve and enhance the heritage place HO16?

1. The applicant submits that demolishing the building will lead to an adverse impact as the park. They submit the park will be less used, due to the loss of the cultural relationship between the use of the building and the associated park.
2. The heritage evidence is that the removal of the building will allow the aspects of the park that are identified as having heritage significance to be enhanced, being the park, not the recent buildings.
3. Whether the removal of the building leads to less use of the park, is not a heritage matter, relevant to the requirements and considerations of clause 43.01-1 under which a permit is required.
4. How the park is re-established is a matter for the council to address as provider of park services. It is in that role that consideration to public and community needs for the park, that is in a PPRZ, can be addressed. These matters do not require a planning permit so are beyond the scope for me to consider.

Loss of a community service and social impact

1. The applicant submits that it is relevant to consider the social impact of the loss of the building in accordance with section 60 of the Act and the number of original objections to the proposal when considered by the responsible authority. The applicant comments that:

There were over 50 objections lodged to the application. These objections were, as we understand it, overwhelmingly from users (and former users) of the Hall, who made arguments about the significant social effects of losing important community infrastructure.

1. I accept that the loss of the use of the building may have had a social impact on the community as a loss of place that could be used for social and community engagement. However, as the respondent correctly noted, the use of the land is not before me. The use of the land is directed by the PPRZ provisions and there is no permit sought or required for the change in use to park purposes. It would be beyond my power to make findings that the building structure, which is what is controlled by the HO16, should be maintained so as to maintain or reinstate a use of the land when there is no permit trigger before me for the use of the land.
2. In the same context, consideration of relevant policy of the scheme, including the planning policy framework and Municipal Planning Statement, needs to relate to the permit being considered, being demolition under the HO16.
3. It is a long held planning principle in planning determinations that in considering if a permit should be granted, the scope of consideration must be limited to the power for which a decision is conferred. This has been recently reaffirmed in findings of the Supreme Court of Victoria in Viva Energy Australia Pty Ltd v City of Greater Geelong & Anor.[8] This decision affirmed that the planning policies to be taken into account in the exercise of any discretion under the scheme are those that are relevant when viewing the permission sought through the lens of the purpose of the permission and its decision guidelines. That is, the decision-maker should ask 'what is the purpose of that permission and what decision guidelines are to be taken into account in assessing that permission?'
4. In the case before me the permit sought is to demolish a building in accordance with clause 43.01-1. Consideration of the loss of community services that may have been provided from within the building is not a relevant matter in this context. It is the heritage value of the building, and indeed only the external fabric of the building, as well as the heritage value of any impacted trees, that is to be considered under the HO16 provisions.
5. I accept there may have been a social impact from the loss of services previously undertaken on the land. This, however, is a matter beyond the scope of the permission sought which is demolition of a building in a heritage overlay.

1. For the reasons given above, I find the demolition of the building, in context of the provisions of clause 43.01-1 and HO16, acceptable. A permit is granted subject to conditions generally the same as set out in the NOD.
2. I have made two minor variations to the council's NOD:
   • In condition 5, I have removed the reference to the very outdated 'Construction Techniques for Sediment Pollution Control (EPA 1991)'. I have replaced it with the current EPA document the Civil construction building and demolition guide (EPA publication 1834.2 September 2025). This document is both current and more encompassing of relevant issues for protection of the land, notably the trees protected by HO16.
   • Similarly, I have updated reference in condition 4 to AS4970-2025, being the current Australian Standard for tree protection on development sites.

1. The works permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the responsible authority.

1. The works permitted by this permit must not, in the opinion of the responsible authority, adversely affect the amenity of the locality by reason of the processes carried on, the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, grit, or oil, or otherwise.

1. All activities associated with the demolition permitted by this permit must be carried out to the satisfaction of the responsible authority and all care must be taken to minimise the effect of such activities on the amenity of the locality. Measures must be taken to suppress dust, noise or other emissions during construction to prevent nuisance to surrounding neighbours.

1. Before the demolition works commence, tree protection measures in accordance with AS4970-2025 (Protection of trees on Development Sites) must be erected around the surrounding trees. The tree protection works must remain in place until works are completed.

1. Prior to the commencement of any works, including any vegetation removal and works required by other authorities, a Site Environmental Management Plan must be submitted to and approved by the responsible authority. When approved, the Site Management Plan will be endorsed and will then form part of the permit.

The SEMP must be in accordance with Council's SEMP template and guidelines. The approved SEMP must be implemented at all times to the satisfaction of the Responsible Authority. Any non-compliance may be enforced under the Planning and Environment Act and other related legislation.

Access to the site must be available at all times for Council representatives to monitor implementation of the SEMP.

The SEMP applies for all works approved in this Permit up to the completion of all works to the satisfaction of the responsible authority.

(a) Prior to commencement of works, contractors must be inducted into the SEMP and all flora and fauna conservation requirements.

(b) Prior to commencement of works, the works zone must be enclosed by secure and obvious temporary fencing. The work zone fence must remain in place until works are completed. Fill, machinery and building materials must not be placed outside of the works zone.

(c) All litter and building waste must be contained on the site and must not be allowed to leave the site until the time it is correctly disposed of.

(d) All works must be undertaken in a manner that adheres to the Civil construction building and demolition guide (EPA publication 1834.2 September 2025) or updated version.

(e) Any construction stockpiles, fill and machinery must be placed away from areas supporting native vegetation and drainage lines to the satisfaction of the responsible authority.

(f) Noxious weeds and serious threat environmental weeds must be controlled. Any weed infestations resulting from soil disturbance and/or the importation of sand, gravel and other material used in the construction process must be controlled. Weed control must be at no cost to and to the satisfaction of the responsible authority.

1. All works must be undertaken in accordance with the Arboricultural Impact Assessment and Tree Protection Management Plan prepared by Homewood Consulting Pty Ltd, Rev 0, dated 21 February 2024, to the satisfaction of the Responsible Authority. No alterations to the Revegetation Plan may occur without the prior written consent of the responsible authority.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the date of this permit;

(b) The development is not completed within four (4) years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing whereby either of the following instances apply:

(a) before or within six (6) months after the permit expiry date, where the use or development allowed by the permit has not yet started; or

(b) within twelve (12) months after the permit expiry date, where the proposal allowed by the permit has lawfully started before the permit expires.

[1] Returned and Services League of Australia.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of VCAT, not all of this material will be cited or referred to in these reasons.

1. [5] Noting park furniture including seating, tables, shelters, rubbish bins, playground equipment, barbeques, shade sails, drinking fountains and public toilets are exempt buildings and works under clause 62.02-2 and no permit is triggered in clause 43.01-1 for these works.

[6] Extent Heritage Pty Ltd, Kelly Park Heritage Impact Statement 25 March 2024: Page 18.

[8] [2023] VSC 586.