Mr Terry Montebello, Maddocks Lawyers. He called the following expert witnesses -

• Mr Ernest Mensforth, traffic engineer, Cardno Victoria Pty Ltd
• Ms Catherine Heggen, town planner, Message Consultants Pty Ltd

The main components of the 4,373 sq m floor area centre are -

• Retention of parts of the buildings fronting Wilson Street, including the art gallery and Town Hall, and demolition of part of the buildings at the rear
• A refurbished two-storey art galley for a maximum of 100 visitors
• A refurbished Town Hall auditorium with ground (flat) floor and balcony seating for a maximum of 510 patrons
• Removal of the 39-space car park at the rear of the land
• A new theatre with two-level tiered seating for 531 patrons adjoining the rear of the auditorium
• A café fronting Pynsent Street with indoor and outdoor seating for 77 patrons
• Widening of the footpaths and removal of on-street car spaces in Wilson Street and Pynsent Street
• Removing the two crossovers and constructing a new ingress-only accessway on the east boundary in Pynsent Street to the Town Hall East car park, to a new art gallery loading dock, and to a modified egress-only accessway from the Town Hall East car park to Wilson Street
• A theatre loading dock on the west boundary in Pynsent Street
• New internal (corridor) and external (footpath on the west side) pedestrian connections between Pynsent Street and Wilson Street

Application under section 82 of the Planning and Environment Act 1987

Clause 34.01-1 (use of land for place of assembly in B1Z)

Clause 52.06 (reduction in car parking requirements)

Clauses 10, 11, 15, 17, 18, 19, 21.03, 21.04, 43.01, 52.06, 52.34 & 65

The land is on the north side of Wilson Street, Horsham, about 38 m east of Darlot Street. It is irregular in shape, with a frontage of about 36 m and a depth of about 101 m and an area of about 5,000 sq m. The rear boundary fronts Pynsent Street. On the land is the Horsham Town Hall (fronting Wilson Street), the Horsham Regional Art Gallery (although the gallery is currently relocated to temporary premises), a 39-space public car park and public toilet fronting Pynsent Street and a 32-space car park adjoining to the east. There is no vehicle access to the land from Wilson Street, but there are two crossovers to Pynsent Street.

McIntyre v Horsham RCC [2011] VCAT 187

McIntyre v Horsham RCC [2011] VCAT 630

1. On 12 April 2011, the Tribunal refused to grant a permit under the Horsham Planning Scheme (the scheme) to establish a Horsham Performing Arts Centre in Wilson Street, Horsham (the Tribunal's earlier decision).[1]
2. The Horsham Rural City Council subsequently considered a fresh application on the same land for a permit to establish a Horsham Performing Arts Centre (the centre). The main features of the centre in the plans and details included in the application are set out in the Information section at the start of these reasons.
3. The Council issued a notice of decision to grant a permit for the centre subject to conditions. The Applicants have applied to the Tribunal to review the Council's decision.
4. The main matters in dispute with the merits of the proposal are a reduction in car parking requirements and the loading arrangements.
5. I have carefully considered all the submissions (including many tendered documents) and the evidence of witnesses and have inspected the land and its surrounds and other land in Horsham.
6. I have decided the Council made the correct decision to grant a permit. Some of the proposed permit conditions in the notice of decision must be amended. I have therefore decided to vary the Council's decision. My reasons follow.

1. There has been confusion about the address and boundaries of the subject land.
2. The permit application specified the address of the land as 78-80 Wilson Street and 63-67 Pynsent Street. The documents attached to the application show this to be the main rectangular piece extending between the two streets, plus the Town Hall East car park (the east car park) adjoining the rectangular piece to the east and at the rear of business premises fronting both streets. The east car park has an area of about 1,400 sq m. In the application, planning report and notice of decision, there is inconsistent identification of the up to nine certificates of title.
3. The substantive issue is whether the subject land should include the east car park. The parties did not have firm views on this, but were content to allow the Tribunal to decide. I have decided to include the east car park because the plans show some works to be carried out in the east car park and the Council's notice of decision includes conditions relating to the east car park. As well, some conditions relate to construction and traffic arrangements for the 'site' and it is possible that some of those arrangements (eg storage and construction parking) may affect the east car park.
4. At the hearing, Mr Neilson confirmed the correct street address for the subject land (including the east car park) is 78-80 Wilson Street & 67-69 Pynsent Street. Mr Montebello confirmed that the folio number for one of the titles specified in the notice of decision was incorrect. I will therefore grant a permit only in respect of 78-80 Wilson Street & 67-69 Pynsent Street and, to avoid doubt, will specify the nine relevant certificates of title with corrected details.

What has changed since the Tribunal's earlier decision?

1. The scheme and the proposal have both changed.
2. The provisions of the Design & Development Overlay Schedule 5 no longer affect the land. Heritage Overlay Schedule 28 now applies to the land. The car parking provisions of clause 52.06 have been amended.
3. The key change to the proposed centre is the retention and refurbishment of the flat-floor Town Hall and its proscenium stage, primarily as a function centre. This space holds 510 patrons, or about 130 more people than the function room in the previous application. This has led to the following main further changes -
   • The new tiered-seating theatre is relocated from the front to the rear of the land. There is seating for 531 patrons, or 10 more patrons than the theatre in the previous application.
   • Separate loading docks for the art gallery and the theatre. The art gallery loading dock is off the Town Hall East carpark. The theatre loading dock is directly off Pynsent Street.
   • A harder building edge to Pynsent Street but one that is more activated with the 77-seat café.
4. Although the key elements of the proposal are re-arranged, the changes are not so significant as to be a transformation of the proposal.

1. In the Tribunal's earlier decision, the Tribunal was not satisfied about heritage issues. The centre is now different from a heritage perspective and the scheme's heritage provisions have changed. The centre now retains and refurbishes the Town Hall auditorium and stage. DDO5 has been removed and HO28 introduced.
2. The rectangular-shaped part of the subject land on which the buildings and rear car park sit is now a registered place under the Heritage Act 1995. Heritage Victoria has granted a permit under that Act for the works comprised in the current application. The effect of the scheme is that a permit is no longer required under HO28.
3. The permit granted by Heritage Victoria removes heritage issues as a relevant consideration in this proceeding. The Applicants do not rely on heritage grounds. Heritage is now not a reason for the Tribunal to refuse a permit.

1. The proposal is consistent with State and local policy for improving cultural facilities in a principal activity centre for a region such as the Wimmera. Policy issues were not in dispute at the hearing.

1. The centre generates a statutory car parking requirement of 373 spaces. The centre in the previous application generated a statutory car parking requirement of 303 spaces because the centre now includes the larger refurbished Town Hall and the cafe. Car parking credits are 300 spaces for the Town Hall. There are 55 car spaces (including 39 spaces in the rear car park) lost on or adjoining the subject land. Virtually the same number were lost in the centre in the previous application.
2. The Council's notice of decision waives the 131 required spaces.
3. The notice of Council's decision for the previous proposal waived the 61 required spaces. In the Tribunal's earlier decision, the Tribunal agreed to waive the required car spaces.
4. The Applicants are opposed to any reduction in car spaces, mainly because -
   • Any reduction is inconsistent with recent permits for developments in the central activities district.
   • No or a lesser reduction would be required if other larger sites adjoining the central activities district had been chosen for the centre.
   • Available off-site car parking is not accessible because most of it is over 100 m away from the subject land.
   • A similar performing arts centre in Bendigo was refused a permit by the Tribunal in 2002 and no on-site parking was provided in the application.[2]
   • It will force other car park users to other central activities district fringe car parks and will therefore damage and be unfair to existing nearby businesses who have financially contributed to the creation of nearby car parks.
   • Offset areas for peak event parking are uncertain.
5. I will deal quickly with the first four of these main reasons. Recent permits for other nearby developments carry no weight as precedents. Whether other land may be better for the centre on car parking grounds is an irrelevant consideration. The 100 m distance is a guideline (or 'general rule') specified in a practice note and is not a requirement in the scheme.[3] It has limited application, as a guideline, for the centre because much of the parking demand is likely to be out of ordinary business hours and unlikely to be short stay. The Bendigo decision can be distinguished, as Mr Montebello submitted, because there were no centre-based parking studies assessing parking availability.
6. With the fifth of the reasons, the Applicants, by implication, oppose a centre-based approach because they want persons developing land in the central activities district to supply required parking on the land or nearby.
7. In the Tribunal's earlier decision, the Council's evidence that the demands generated by the centre 'can be accommodated without absorbing an unreasonable proportion of the available parking supply' was accepted.[4] The Tribunal also referred to the parking strategies for the central activities district prepared for the Council by TTM Consulting and endorsed the centre-based approach in that work as 'an appropriate way to manage parking supply ...'.[5]
8. I endorse the Tribunal's support for a centre-based approach. It is consistent with contemporary planning practice, especially for higher order activity centres such as Horsham. It offers a more efficient use of land resources and is authorised under the scheme's parking provisions. I do not accept the Applicant's submission that the land must be subject to a parking overlay in the scheme before a reduction could be authorised.
9. I nonetheless need to be satisfied that the additional demand of about 61 spaces (compared to the centre in the previous application) can also be reasonably met by the available supply.
10. The additional demand is conservative and actual demand is likely be less because -
    • It is based on a statutory and not an empirical assessment.
    • It assumes all activities in the centre will be operating at capacity at the same time. I accept this will rarely be the case.
    • It assumes peak demands will coincide with peak demands in the central activities district. I accept that peak demand is more likely to be in the evening when most businesses in the central activities district will be closed. It is well after the peak demand time of 2 pm on weekdays for two-hour or more spaces within 400 m of the centre. Hence, at the time of the centre's peak demand, there will be more parking supply.
    • It assumes no transport of patrons by buses. In fact, for larger productions that attract patrons from a wider catchment, there is greater likelihood of bus transport of groups of patrons.
11. Mr Mensforth's evidence is that, within 400 m of the centre, there are 1,976 publicly available one-hour or more parking spaces (791 on-street and 1,185 off-street) and 1,860 two-hour or more parking spaces (280 on-street and 1,580 off-street). Based on surveys in the peak pre-Christmas period last year, 468 of the one-hour or more spaces and 431 of the two-hour or more spaces were available.
12. I therefore accept Mr Mensforth's evidence that the reduction of 131 spaces for the centre (being an additional reduction of about 61 spaces from that in the previous application) can be met without absorbing an unreasonable proportion of the available peak parking supply. I therefore support the proposed reduction in the car parking requirement.
13. I also rely on the Council's past and proposed efforts to manage car parking in the central activities district on a centre-based approach. The Council has taken steps to increase on-street supply in and around the central activities district. It is pursuing a sensible policy of managing restrictions so that more longer-stay demand (eg for employees) is moved to the periphery, thus freeing more short-term spaces near businesses.
14. The Council's notice of decision requires parking offset areas with shuttle buses to be available for peak weekday daytime use when patron numbers exceed 500. The Council has not yet identified or established these areas. The Council will need to do this after the issue of the permit and before an event or combination of events triggered the requirement.
15. The Applicants submitted that the condition is too vague and that the areas should be identified and established before a permit is granted. The Council identified three possible offset areas before issuing the notice of decision and I have inspected those areas with the parties. There is no reason apparent to me why those areas could not successfully operate in the manner proposed.
16. The concept of offset areas is, strictly, unnecessary given the amount of available parking in closer proximity to the centre. However, I do not oppose, in principle, the proposed condition. The details can be finalised after the grant of the permit. The condition needs various technical amendments, particularly to deal with simultaneous events that individually do not cross, but collectively do cross, the 200 or 500 patron threshold.

1. The key difference between this application and the previous application is that the Town Hall auditorium and stage is now wholly retained, on heritage grounds. This has meant relocating the theatre to the rear of the land into a somewhat smaller part of land. Consequentially, there are now two separately-located loading bays, rather than one centrally-located loading bay.
2. Based on the new floor area in the centre, the scheme require a loading bay of 45 sq m. The plans show a loading bay of about 54 sq m for the theatre and Town Hall. The requirement is therefore met and a permit to reduce the requirement is not required.[6]
3. However, the picture is more complex having regard to the type and size of vehicle likely to be used for loading at the centre.
4. For the art gallery, the typical delivery vehicle will a 9.2 m long rigid truck, and an occasional rigid truck up to 11 m. The vehicle will enter the land from Pynsent Street, and reverse up to a loading dock facing east in the south-west corner of the east car park. It will remain in the car park during loading and unloading. Swept path diagrams show that access for other users through the east car park will not be affected during loading and unloading. The diagrams show the vehicle exiting the east car park to Wilson Street.
5. The two nearest car spaces to the loading bay in the east car park will not be useable during loading and unloading and bollards will need to be put in place to prevent occupation of those two spaces before the vehicle arrives. While regrettable that two car spaces will be occasionally be temporarily lost, these arrangements are not unreasonable in the 32-space car park, except in relation to one detail.
6. The plans propose an additional corner car space near the loading dock that replaces an existing traffic island that is currently landscaped with a mature tree. The proposed space will also not able to be used if a vehicle is in the loading bay. To avoid this conflict, I accept Mr Mensforth's opinion that it would be better, on balance, to retain the existing traffic island. A condition to this effect will be included.
7. In addition, I accept Mr Mensforth's opinion that it is unnecessary for traffic islands in the east car park to be replaced with semi-mountable kerbs or painted islands. The condition requiring this change will be omitted.
8. For the theatre, Town Hall and cafe, a 11 m long loading bay is proposed directly off Pynsent Street next to the west boundary. Vehicles will need to reverse into the bay. The typical delivery vehicle will be vans or various rigid trucks up to 12.5 m long. The reversing manoeuvre will not be problematic per se. This type of manoeuvre is not unusual in a central activities district. The removal of some on-street angled spaces and their replacement with a 7 m wide extended footpath on Pynsent Street will improve the ease and safety in the use of the bay lines. With a 12.5 m long vehicle, the vehicle will project 3 m across the footpath. In an extended 7 m wide footpath this is not an unreasonable obstacle for pedestrians.
9. For an estimated two to three times per year, larger performances in the theatre (eg opera or ballet) will require deliveries from larger 19 m long semi-trailers. The swept path diagrams shows there is space in Pynsent Street for one-point ingress and egress manoeuvres, albeit with traffic control to stop through traffic.
10. The problem identified by the Applicants is that more of the footpath will be blocked by the in-bay 19 m long vehicle. The trailer will project about 4.6 m into the footpath. The cabin will project a further 5.3 m (total of 9.9 m) and hence project into the roadway beyond the extended footpath by 2.9 m. This complete blocking of the footpath to pedestrians is unacceptable and contrary to the purposes of the loading provisions in the scheme.[7]
11. Mr Montebello submitted that the Respondent's architect's advice is that there is not the space to lengthen the loading bay, given the theatre's new location behind the retained Town Hall.
12. In Mr Mensforth's opinion, the arrangement is satisfactory if the traffic management plan proposed in the notice of decision conditions provides for cabin de-coupling and removal during loading and unloading of a 19 m long semi-trailer. This will ensure at least 2.4 m of the 7 m wide footpath remains available for pedestrian to detour around.
13. My task is to weigh up whether this is acceptable. The broader context is the need to fit the theatre at the rear of the land behind the retained heritage-listed Town Hall. The risks and inconvenience to the public of vehicles parked partly on the footpath during loading and unloading need to be balanced against the broader benefits of the centre.
14. The 19 m long vehicles are likely to be used only a few times per year and the traffic management plan could provide for deliveries to be made as far as possible out of business hours. I am aware that loading and unloading of equipment (including props) for major productions in older theatres in Melbourne (eg the Regent Theatre) is done out of business hours and with elaborate traffic control to minimise disruption and risks. While accepting that Horsham may involve additional travel time, I fail to see why deliveries for the centre could not be largely out of business hours.
15. Taking all these matters into account, I find the theatre loading and unloading arrangements satisfactory subject to appropriate conditions.

1. The Applicants oppose closing of a short vehicle access from the southwest corner of rear car park to the rear of business premises to the west fronting Wilson Street. There is existing publicly available access to these businesses from laneways off Pynsent Street. The Applicants state public use of these laneways is unlawful. This is a private matter that I do not need to consider in reviewing the Council's decision.

1. Bicycle parking hoops are provided on the footpath in both Wilson Street and Pynsent Street. The Applicants criticise use of the footpath and the absence of shower facilities, but do not have standing to challenge the bicycle facilities.[8] Mr Montebello correctly stated that the provision of bicycle spaces on the footpath meets the scheme's requirements in respect of the new floor area except that they are not on the subject land. Accordingly, the permit must grant a waiver, even though the spaces are provided nearby.

1. The Applicants made extensive submissions about the conditions in the notice of decision. In this part of the reasons, I deal with the main issues that have not been addressed elsewhere in these reasons.

1. The notice of decision includes a number of secondary consent powers. For example, the Responsible Authority will be required to endorse plans, and approve a construction management plan, a traffic management plan and various other documents before construction starts or the buildings are occupied.
2. The Applicants oppose inclusion of these powers in the conditions mainly because they submit -
   • Those documents should be prepared and available to consider and assess when deciding the permit application. They submit, in effect, that those documents are needed to properly consider the application.
   • The Council owns the subject land and is the permit applicant and this will conflict with its duty to decide a secondary consent.
   • A number of the secondary consents have vague provisions requiring consultation with the community before deciding a secondary consent, and clear and mandatory consultation must be included.
3. I disagree with these concerns, except the final one in part.
4. It is part of normal planning practice, and more so for major projects, that some important matters of detail must be resolved with a Responsible Authority after the grant of the permit. A balance needs to be struck with ensuring there is sufficient material to grant a primary consent and, if so, appropriate conditions are included to deal properly with the later detail by way of secondary consent. In most cases, the scheme itself directs the preparation of the material on which to consider the granting of primary consent.
5. The legislation accommodates the possibility that a Council, as a Responsible Authority, may be the owner or occupier of part or all of the land in a permit application. It requires notice of the permit application be given to owners and occupiers of adjoining land.[9] A Council is not an ordinary permit applicant. It is an entity accountable to and subject to the scrutiny of the community. As a Responsible Authority it must set a high example as a permit applicant or person with an interest in all or part of the subject land.
6. The legislation does not require notice of an application for a secondary consent to be given to third persons. Often the secondary consent is a matter of detail and it is unreasonable and unnecessary to incur the delay associated with consultation. A third party cannot apply to the Tribunal to review a Council's secondary consent decision.[10] The proposed consultation provisions are contrary to the spirit of the legislation. I agree with the Applicants they are vague and that it is unclear who needs to be consulted and when and how they must be consulted. The Applicants seek greater formality and specification in the provisions.
7. It is inappropriate to include mandatory consultation for a secondary consent as an enforceable requirement of a permit.[11] Consultation may be appropriate and useful for some secondary consents but, if there is to be consultation, the form of that consultation is best left to informal arrangements to be decided by the Council on a case by case basis. I will remove requirements for consultation in the notice of decision. If the Council has already decided to consult on specified secondary consents in the notice of decision, the Applicants and others have a reasonable expectation that such consultation will still occur, albeit on an informal basis and outside of an enforceable permit obligation.

1. Condition 3 of the notice of decision requires 'construction of laneways'. The Applicants correctly submitted this was vague and it was unclear whether it included laneways outside the subject land. The Council's intention was to only refer to the new vehicle accessway off Pynsent Street connecting to the east car park and the footpath on the subject land adjoining the existing laneway off Pynsent Street on the west side. I will amend the condition to confine it to the accessway and the footpath.

1. Condition 10 of the notice of decision confines construction activities to specified hours except if it is 'unavoidable' and provided notice is first given to adjoining owners and occupiers.
2. The Applicants are opposed to this exception and want adjoining owners and occupiers to be more broadly consulted so they can be satisfied it is unavoidable. I do not support broader consultation for the reasons already set out in these reasons.
3. Condition 10 refers to 'construction activities' and this is not defined but is unlikely to include mere entry of construction personnel onto the land but is likely to include loading and unloading activities. The hours specified are generous but I accept there may be occasional times when those activities (eg a particular delivery) must start before or continue beyond the hours specified.
4. The condition allows this if, in effect, the construction personnel involved in the activity consider it 'unavoidable'. The need for prior notice to adjoining owners and occupiers needs to be workable. It needs to be in writing. Some activities may arise at short notice so the builder will need to be able to send email messages to the relevant people once his or her personnel are aware of the unavoidable need for an out of hours activity.
5. The purpose of the provision is give persons directly affected by the consequences of early or late activities some warning of those activities. I therefore do not agree that an owner needs to be notified and will amend the condition accordingly. The occupier is the relevant person. That person could also be the owner in a particular case.
6. The builder and occupiers need to be aware that the Tribunal has previously held that 'adjoining' land, for notice purposes under the legislation, is land that touches the subject land.[12] In this case, the subject land includes the east car park. If land is beyond land that touches the subject land, the builder may include notice to the occupier of that more distant land by agreement, but not by operation of the condition.
7. Identifying occupiers of adjoining land may be difficult because it may involve resolving whether the leased area touches the subject land. The identity of an occupier may also change during the construction process. The area of occupation in a lease may also change from time to time. I expect the Council will be able to help the builder resolve these issues and help identify all relevant occupiers from time to time.
8. If the builder fails to notify one relevant occupier, there is a potential contravention of the condition for which the Council, as owner of the subject land, may be liable. Accordingly, I think it reasonable that the Council, as Responsible Authority, be also notified of any out of hours activities. This will also allow the Council, as Responsible Authority, to monitor the use of the exception and help resolve any problems with an occupier.
9. The condition makes provision for emission of dust and noise during construction as well as construction hours. I do not see the need for the condition to refer to dust and noise because these matters are satisfactorily addressed in conditions 4 & 19. The condition will be amended accordingly.

1. Condition 13 of the notice of decision require a traffic management plan to be submitted to and approved by the Responsible Authority before the building is occupied. The Applicants submit this is too late and it should be prepared and approved before development starts. I consider the Applicants may be confusing the traffic referred to in this condition with construction traffic. Condition 13 only deals with traffic associated with the operating centre. Accordingly, it is reasonable that it be approved before the centre is operating.

1. A document approved under a secondary consent may be amended by the Responsible Authority from time to time, even if the permit does not expressly provide for that power of amendment. Often documents need to be corrected or updated in uncontroversial ways. Condition 17 of the notice of decision includes an unusual condition requiring review of the approved traffic management plan within 12 months and a requirement to consult 'surrounding owners and occupiers' about the review recommendations.
2. I have already referred to the need to exclude consultation requirements.
3. There is no particular difficulty in a condition requiring a review per se. The Applicants are critical that it does not state who must conduct the review. Conditions do not usually state who is responsible because the legislation provides that the owner and occupier must comply with all conditions, otherwise they may be liable for enforcement action. In practical terms, the Council as owner of the land would carry out the review.
4. The condition must not include a requirement that 'appropriate measures are to be undertaken to address the [review] recommendations' because, although vaguely worded, it impinges on the need to provide the Council, as Responsible Authority, with an unfettered ability to consider the recommendations. It suffices that the review be conducted to the Responsible Authority's satisfaction (eg it is conducted by appropriately qualified personnel) and that the Responsible Authority consider the recommendations before approving any amendments.

1. Condition 18 of the notice of decision requires a study to be carried out before development starts of 'parking arrangements and controls' in the central activities district and the study to be reviewed within 12 months. It requires there to be community consultation on the study and the review. I have already referred to the need to exclude consultation requirements.
2. The Applicants are unsure whether Mr Mensforth's evidence statement constitutes the study. I do not need to make a finding about that to decide the Application. They also submit the condition should state who must carry out the review and when it must be carried out.
3. As I have previously stated, the Council as owner of the land must ensure the review is carried out. It suffices that the review starts within 12 months after occupation and then be completed within three months.
4. For reasons already outlined, I will remove any requirement that suggests the Council, as Responsible Authority, must implement the review recommendations. This is particularly applicable in this condition because the subject matter is parking arrangements and controls across the whole of the central activities district. A review required by condition of this permit cannot direct future policy decisions by the Council, as municipal council, about a centre-based approach to parking supply and restrictions.

1. Conditions 31 and 37 are repetitive. Condition 31 requires 'access lanes' be made available at all times. Condition 37 requires 'car parking spaces, access lanes and driveways' be made available at all times. The Applicants query whether the condition applies to lanes outside the subject land.
2. I will delete condition 31 and amend condition 37 so that the new driveway/accessway off Pynsent Street on the subject land that leads to the east car park, the new footpath on the west side off Pynsent Street, the car spaces and accessways in the east car park are available at all times. In a practical sense, this needs to be subject to the approved traffic management plan, construction management plan and traffic management and contractor parking plan.

1. The Council included 16 notes beneath the conditions in the notice of decision. It well settled law that the Tribunal has no jurisdiction to include, amend or enforce notes in a permit. Notes are administrative additions to a permit that a Responsible Authority may include to inform a permit holder about specified matters. They impose no enforceable obligations.
2. Mr Neilson invited me to include the 16 notes in any permit I decide to grant. He particularly drew my attention to note 16 which provides -
   1. In accordance with Council minutes of 21 November 2011 and the Council adopted Central Activity District Parking Strategy, Council is to continue to develop alternative parking options within the Central Activity District over the next 5 years, prioritising improvements to parking and systems of parking from the CBD/Car Parking Reserve.
3. I will decline his invitation, in accordance with settled practice. The intention of the Council in note 16 is one of a policy nature and not suitable for inclusion in a legally binding permit for one development in the central activities district.

1. Condition 54 provides for permit expiry. It illogically allow development to be completed within four years but requires the use (of the theatre) to start within two years. I do not see the need to require expiry if the use (of the theatre) is discontinued for two years. If a two-year discontinuance occurs in the unlikely event that there is no further use of the theatre, a new use is likely to require a permit. The condition will be amended accordingly.

1. The heritage-related problems with the earlier proposal for the centre no longer apply to the centre proposed in this application.
2. There is strong policy support in the scheme for the centre, given the role and function of the Horsham central activities district.
3. The design response for the centre in this application provides for the theatre to be located close to Pynsent Street. The theatre and the café (and its outdoor seating area on a widened footpath) provides a harder and more activated edge to Pynsent Street. There is an improved streetscape outcome to Wilson Street and the overall heritage and built form response is worthy of a permit.
4. The main issues raised in this proceeding concern car parking and delivery vehicle loading and unloading. For the reasons outlined, a reduction in car parking is supported. Although the loading arrangements are not ideal, they are acceptable subject to appropriate conditions.
5. I will therefore grant a permit subject to modified conditions.

1. The plans to be endorsed and which will then form part of the permit are the plans submitted with the application.
2. The use or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. In this condition -
   • The 'accessway' is the vehicle and pedestrian accessway between Pynsent Street and the Town Hall East car park along the east boundary.
   • The 'footpath' is the public footpath between Pynsent Street and the Town Hall Auditorium along the west boundary.

The accessway and the footpath must both be constructed to the satisfaction of the Responsible Authority. Before the development starts, plans to the satisfaction of the Responsible Authority for the construction of the accessway and footpath must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit.

1. A Construction Management Plan must be submitted to and approved by the Responsible Authority before the development starts. The plan must address, but is not restricted to, the following -

(b) The storage of materials related to the development.

The development must, at all times, be carried out in accordance with the approved construction management plan.

1. For condition 10, substitute -
   1. Construction activities must not take place outside the hours of 7.00 am to 6.00 pm Monday to Friday (excluding public holidays) and 8.00 am to 1.00 pm Saturday (excluding public holidays), except if -
      • The building contractor reasonably considers the activities to be unavoidable.
      • Prior written notice is given to the occupiers of land that adjoins the land to which this permit applies and to the Responsible Authority.
2. For condition 13, substitute -
   1. A Traffic Management Plan must be submitted to and approved by the Responsible Authority before the building is occupied. The plan must address, but is not restricted to, the following -
      • Access and egress of delivery vehicles.
      • Arrangements for loading and unloading of vehicles. The Plan must ensure the widened footpath on Pynsent Street is not wholly blocked to pedestrians during loading and unloading and, if necessary, it must require the cabin of a 19 m long semi-trailer to be de-coupled and parked elsewhere. The Plan must also ensure pedestrians can safely detour around any part of a vehicle that projects onto the footpath during loading and unloading.
      • Delivery times. As far as practicable, deliveries must be avoided during peak traffic times. As far as practicable, semi-trailer deliveries to the loading bay on Pynsent Street must be avoided during business hours.
      • Traffic control details during deliveries to the loading bay on Pynsent Street and the Art Gallery loading bay.

Traffic must be managed at all times in accordance with the approved traffic management plan.

1. By no later than one year after the use starts, the Traffic Management Plan approved under condition 13 must be reviewed to the satisfaction of the Responsible Authority. The Responsible Authority must consider the review findings and any recommendations for amendment to the approved Traffic Management Plan. Any amendments made to the approved Traffic Management Plan must be to the satisfaction of the Responsible Authority.

1. Before the use starts, an assessment of the availability of parking arrangements and controls within the central activities district and its immediate surrounds must be undertaken by an experienced traffic engineering consultant to the satisfaction of the Responsible Authority. The assessment must benchmark the current status of parking in the central activities district. Within one year after the development is completed and the building is occupied, a review of the assessment must be started and thereafter undertaken and completed within three months of the date it starts (or within such extended period that the Responsible Authority permits) to the satisfaction of the Responsible Authority.
2. For conditions 24 & 25, substitute -

Weekday daytime events with 200 or more patrons

1. For a weekday event in the Town Hall auditorium or theatre that is scheduled to start after 9.00 am and to finish before 5.30 pm and -
   • that is expected to have 200 or more patrons present, or
   • if it will be conducted at the same time (in whole or part) as one or more other events in the art gallery, Town Hall auditorium or theatre, that is expected to have a total of 200 patrons or more present,

the Horsham Performing Arts Centre venue management must advertise with ticket sales the location of available car parking.

Weekday daytime events with 500 or more patrons

1. For a weekday event in the Town Hall auditorium or theatre that is scheduled to start after 9.00 am and to finish before 5.30 pm and -
   • that is expected to have 500 or more patrons present, or
   • if it will be conducted at the same time (in whole or part) as one or more other events in the art gallery, Town Hall auditorium or theatre, that is expected to have a total of 500 patrons or more present,

the Horsham Performing Arts Centre venue management must require the venue hirer of the single event or the venue hirers of the multiple events to -

• arrange for one or more car parking areas away from the Horsham central activities district to be available for use by patrons,
• provide a shuttle bus to transport patrons from the car parking areas to and the Centre and back again, and
• ensure that ticker holders are given reasonable notice of the availability of the shuttle bus,

and the location of the parking area, the provision of the shuttle bus, and the notice to patrons must all be to the satisfaction of the Responsible Authority.

1. Omit condition 31.
2. For condition 34, substitute -
   1. The existing traffic island in the Town Hall East car park closest to the Art Gallery loading dock must be retained and not set aside for an additional car space.

1. For condition 37, substitute -
   1. The car spaces and accessways in the Town Hall East car park, the driveway/accessway to the Town Hall East car park off Pynsent Street, and the footpath off Pynsent Street, all as shown on the endorsed plans, must be kept available for those purposes at all times, subject to the traffic management plan approved under condition 13, the traffic management and contractor parking plan approved under condition 6 and the construction management plan approved under condition 4.
2. For condition 54 and the heading, substitute -

1. This permit will expire if one of the following circumstances applies -
   • The development is not started within two years of the date of this permit.
   • The development is not completed within four years of the date of this permit.
   • The use does not start within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] McIntyre v Horsham RCC [2011] VCAT 630 (Baird SM, 12 April 2011); McIntyre v Horsham RCC [2011] VCAT 187 (Baird SM, 10 February 2011).

[2] McClure v Greater Bendigo CC [2002] VCAT 910.

[3] Department of Planning and Community Development, Using the Car Parking Provisions, Practice Note 22, June 2012.

[4] McIntyre v Horsham RCC [2011] VCAT 187 at [72].

[5] McIntyre v Horsham RCC [2011] VCAT 187 at [73].

[6] As well, arguably clause 52.07 of the scheme does not strictly apply because the Town Hall/function centre and theatre is not for the specified purposes of the 'manufacture, servicing, storage or sale of goods or materials'. I do not need to make a finding about this matter.

[8] The scheme cl 52.34-2 (notice and review exemption).

[10] Planning and Environment Act 1987 s 149.

[11] For example, if a third party cannot apply to review a secondary consent decision, it would be inconsistent for a third party to seek to enforce a permit condition requiring consultation before a secondary consent decision was made.

[12] Graham v Stonnington CC [2010] VCAT 1224 at [13].