The decision of the Responsible Authority is set aside. A permit must not be granted.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST

Mr D. McClure and Ms J. Ridge, the Applicants for Review appeared on their own behalf.

Mr E. Stokans of Russell Kennedy Solicitors, appeared on behalf of the Responsible Authority.

Mr K. McMahon, Manager Land Victoria, North West appeared on behalf of the Department of Natural Resources and Environment.

3. This is an Application under Section 82 of the Planning and Environment Act 1987 ("The Act") brought by D. McClure and J. Ridge to review a decision by the City of Greater Bendigo ("The Council") to grant a permit in Application no. 529/01.

4. It is proposed to construct an extension to the existing Bendigo Performing Arts Centre and to construct a new auditorium to the rear of the existing centre with a seating capacity of 950 people.

3. Mr Stokans provided the following description of the proposed development which we adopt:

"The proposed development incorporates a new performance space, dressing rooms, auditorium, multi-function foyer, loading dock, service area including toilets, kitchens and storeroom.

A two-storey partially glazed wing will connect the new building to the north of the existing theatre. Works to historic fabric are generally minor and are associated with breaking through existing walls to provide access to the new building and improved access to the link from the main foyer of the existing theatre. This will result in improved circulation within the existing complex and links to the proposed new building.

The new auditorium and link are proposed to be contemporary in style expressed through modern materials and structure. The fly tower (used to accommodate stage scenery above the stage) is the most prominent element of the development. The materials and colour of the fly tower are yet to be finalised in consultation with Heritage Victoria, and to their satisfaction.

The new structure will be partially located in the area of Rosalind Park which is proposed to be excised from the park for this purpose."

4. No car parking has been provided as part of the proposed development. Conditions on the planning permit however obligate the Council to develop a temporary car park for a maximum of 140 car spaces within Rosalind Park or other suitable location prior to the commencement of the use (condition 3). This temporary arrangement is intended to apply for five years after the commencement of the use until sufficient funds are raised to develop a permanent car parking facility, and condition 4 of the Notice of Decision obligates the Council to provide permanent car parking facilities for a minimum of 285 car parking spaces within Rosalind Park or other suitable location to be commenced within five years of completion of construction of the Theatre extensions and completed within 2 years thereafter.

5. We will return subsequently in this decision to consideration of the adequacy of these conditions and the proposed car parking arrangements in general, however it is significant that there is currently no proposal before the Tribunal relating to the provision of car parking for the proposed extension to the Theatre.

6. The review site is located to the rear or north of the Capital Theatre and abuts Rosalind Park which is a significant crown land reserve of approximately 26 hectares situated in the heart of the Bendigo City and which is the site of the original Government Camp of the Bendigo goldfield. Rosalind Park is listed on the Registrar of the National Estate by the Australian Heritage Commission.

7. The Capital Theatre forms part of the Bendigo Capital Performing Arts Centre which is located within a cluster of buildings collectively known as the Bendigo Arts Precinct. As we have indicated above the proposed extension to the theatre is to be constructed on part of Rosalind Park which is proposed to be excised from the park.

8. The review site not only forms part of a significant arts precinct, it is also part of a very significant heritage precinct. The Bendigo Performing Arts Theatre comprises two existing buildings - the former Masonic Hall (Capital Theatre Building) and the former Bendigo Fire Station which are both listed on the Victorian Heritage register, as is Rosalind Park. The adjacent Dudley House is also listed on the Victorian Heritage Register. These three buildings and Rosalind Park are also included on the register of the National Estate, maintained by the Australian Heritage Commission, as historic or indicative places.

9. The review site is zoned Business 1 and Public Park and Recreation. The purpose of the Business 1 zone is, in addition to implementing the State and Local Planning Policy Frameworks, to encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses. The use of the land for a purpose of a Place of Assembly is a Section 2 Permit Required Use in the zone. A permit is also required to construct a building or construct or carry out works.

10. The purpose of the Public Park and Recreation Zone is:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To recognise areas for public recreation and open space.

* To protect and conserve areas of significance where appropriate.

* To provide for commercial uses where appropriate."

11. A Place of Assembly is also a Section 2 Use in the Public Park and Recreation Zone. A permit is also required to construct a building or construct or carry out works. Decision guidelines are at clause 36.02-5.

12. Pursuant to Clause 36.02-3, an application for a permit by a person other than the relevant Public Land Manager must be accompanied by the written consent of the Public Land Manager, indicating that the Public Land Manager consents generally or conditionally to either the application for permit being and to the proposed use or development. The City of Greater Bendigo is the Committee of Management for the Reserve and has consented to the application being made.

13. We were also advised that consent from the Crown (Department of Natural Resources and Environment) is required where the development encroaches into Rosalind Park. The Department advised the Council by letter dated 9 July 2001 that it did not object to the permit being granted.

14. The review site is also affected by a Heritage Overlay (HO3) and the Heritage Place is defined in the Schedule to the Overlay as the Bendigo Civic Precinct, Littleton Terrace, Bendigo. A permit is required to construct a building and to construct or carry out works. As indicated above however the heritage place identified in the schedule to this overlay is a place which is included on the Victorian Heritage Register and no permit is required under this overlay if a permit for the development has been granted under the Heritage Act 1995. Heritage Victoria permit numbers P5771, P5946, P5950, P05951 were issued for the proposal on 13 March 2002 and 11 February 2002.

15. Clause 52.06 contains provisions relating to car parking for specified uses. Clause 52.06-1 provides that a new use must not commence or the floor area of an existing use must not be increased until the required car spaces have been provided on the land. The table at Clause 52.06-5 sets out the number of parking spaces required for uses not covered by a Parking Precinct Plan or another clause. With respect to the proposed use, 0.3 parking spaces must be provided to each seat or to each square metre of net floor area whichever is the greater. A total of 285 car parking spaces are therefore required to be provided pursuant to this clause.

16. A permit may be granted to reduce or to waive the number of parking spaces required by the table and before a requirement for car spaces is reduced or waived, the Applicant must satisfy the Responsible Authority that the reduced provision is justified due to:

* any relevant parking precinct plan, the availability of car parking in the locality.

* the availability of public transport in the locality.

* any reduction of car parking demand due to the sharing of car spaces by multiple uses, either because of variation of car parking demand over time or because of efficiencies gained from the consolidation of shared car parking spaces.

* any car parking deficiency or surplus associated with the existing use of the land.

* any credit which will be allowed for a car parking demand deemed to have been provided in association with a use which existed before the change of parking requirement.

* an empirical assessment of car parking demand.

17. With respect to the State and Local Planning Policy frameworks the following clauses are applicable to the consideration of this application:

19. Section 96(1) of the Act states that a Responsible Authority must obtain a permit from the Minister before carrying out any use or development for which a permit is required unless the planning scheme exempts such use from this subsection.

20. Clause 67.01 of the planning scheme exempts land used as a Place of Assembly from the provisions of Section 96(1) of the Act.

Council consideration and the Application for Review

21. We were advised that planning for the extension to the Capital Theatre commenced in April 1997 when the facilities at the existing Capital Theatre were identified by a State Government Audit as being inadequate for modern performance requirements and recommended an upgrade to the theatre. There then followed what was described as a rigorous process culminating in the preparation in December 1999 of a master plan for the Bendigo Regional Arts Centre and this has formed the basis of the preparation of the current proposal which is before us.

22. We were advised that the Council views the proposal as a major cultural and recreational development for the community of Bendigo and one which is strategically important in terms of attracting first class touring productions, thereby enhancing lifestyle opportunities for residents of the region and contributing to the development of the increasingly important tourist industry.

23. We think it is important at this stage to record that these issues were not in dispute during the hearing and the objectors indicated their support for the proposed development, subject to the appropriate provision of car parking.

24. An application for planning permit was submitted in June 2001 and we note that concurrent applications were submitted with Heritage Victoria which lead to the issue of the permits to which we have previously referred.

25. Notice of the planning permit application was required to be given and three objections to the application were received. We were advised that the objections raised a number of issues including concerns about the provision of car parking, the impact of the proposal on existing over utilised car parking facilities, the impact of the proposal on Rosalind Park and the heritage place.

26. The application was referred to the Department of Natural Resources and Environment, Vic Roads and Heritage Victoria. No objections to the proposal were submitted by these authorities.

27. The planning permit application was considered by the Council in February 2002 and, having read the officer's report on the application, it is clear that while the issue of the adequate provision of car parking was canvassed at that time, we were not provided with any information to indicate that any quantifiable assessment of the demand for parking generated by this proposal, or the capacity of existing parking facilities to accommodate that demand, had been carried out. It is worth reiterating at this point that the proposal before us makes no provision for car parking and indeed an existing 57 space car park located in Rosalind Park will be lost as a consequence of the construction of the proposed extension to the theatre.

28. The Council resolved to issue a Notice of Decision and sought to address the issue of car parking through the imposition of the following conditions 3, 4 and 5:

"3. The uses permitted by this permit must not be commenced until:

(i) a comprehensive traffic management plan has been prepared to the satisfaction of the Responsible Authority.

(ii) a maximum of 140 temporary car spaces are provided as an interim measure within Rosalind Park or in a location suitably accessible and located in close proximity to the theatre outside Rosalind Park.

(iii) the temporary car parking plan and development shall be the subject of further exhibition (public consultation) and separate planning permit process prior to endorsement.

4. Permanent car parking facilities containing a minimum of 285 car spaces in Rosalind Park (possibly underground) or an alternative car park suitably accessible and located in close proximity to the theatre outside of Rosalind Park shall be commenced within five (5) years of completion of construction of the Capital Theatre and must be completed within two years thereafter.

5. Temporary car parking established as an interim measure to address the requirement of condition 3(ii) (including remaining existing car parking impinging on Rosalind Park) shall be removed as one (1) year of completion of the permanent car parking works and parkland rectified in accordance with the Rosalind Park master plan."

29. An application for review was subsequently commenced on grounds which focussed primarily on the inadequate provision of car parking, the inadequate assessment of car parking impacts and the adverse impact on the heritage values of Rosalind Park of the location of parking within the Park.

30. At the review hearing, all parties tabled and read from written submissions and made oral presentations.

31. Mr Stokans was assisted in the presentation of his submission by two council officers, Mr Krumins and Mr Hannah. Mr Krumins outlined the nature of the proposal and presented a series of photographs of the site and surrounding area depicting the visual impact of the proposal. Mr Hannah tabled a series of plans which, while not part of the current application, purported to represent the various options for the provision of both temporary and permanent car parking which the Council was exploring in accordance with conditions on the notice of decision.

32. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports or as separate items. The evidence submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.

33. Following the completion of the hearing, we inspected the land and locality, unaccompanied by the parties.

34. The principle issues which are in front of us in this application relate to the adequacy of the proposed provisions of car parking which are encompassed within the requirements of conditions 3 and 4 of the Notice of Decision issued by the Council.

35. It was Mr Stokans submission that the approach taken by the Council is that it is capable of providing temporary car parking for up to 140 spaces, possibly within Rosalind Park, and that this will be sufficient for a period of five years, thereby enabling it to fund the project out of its annual capital expenditure allocation. Mr Stokans advised that the Council had estimated that the deferment of the construction of a permanent car park will result in a saving of $1.17 million when compared to building the car park now.

36. Mr Stokans further advised that a degree of urgency existed with respect to obtaining a planning permit as State and Federal Government funding to the value of $6 million is dependent upon the issue of a permit. It was Mr Stokan's submission that the overwhelming community benefit associated with the grant of a permit facilitating the commencement of this project is sufficient justification for the approach taken by the Council in deferring provision of permanent car parking for this project.

37. In forming our view that the approach taken by the Council will not lead to an acceptable planning outcome we are influenced by a number of considerations. Firstly, while we appreciate the Council's desire to secure State and Federal government funding for what is clearly an important and meritorious development, it is a concern which is completely irrelevant to our consideration of the relevant issues to which we are required to have regard under the planning scheme. We are also sceptical that the grant of a permit which, by virtue of the conditions in it, places very considerable barriers in front of the commencement and on going operation of the use, can be of any significant benefit in terms of negotiating the release of the State and Federal Government funding. In this respect we emphasise that the permit has no force or effect until such time as the Council can provide 140 temporary car parking spaces. The permit further obligates the Council to provide 285 car parking spaces on a permanent basis within five years of the completion of the development, failing which use of the theatre will be in breach of permit conditions. We are inclined to agree with Mr McClure that the availability of such funding is unlikely to be dependent upon the issue of a planning permit containing the conditions outlined above.

38. With respect to the provision of temporary carparking specifically, we were advised that the most likely location for this temporary car park is within Rosalind Park adjacent to the existing swimming pool. We were not provided with any information in the form of submissions or evidence upon which we can rely in forming a view that 140 car parking spaces are either required for the proposed use, or alternatively that such a number would be sufficient in terms of meeting the parking demand generated by the use. It is unclear where the figure of 140 spaces is in fact derived other than it appears to be based upon an assessment that this is the number of spaces which can be fitted on the preferred site in Rosalind Park.

39. The objector's concerns with respect to the provision of the temporary car parking are twofold. Firstly it was submitted that the quantum of parking to be provided will not be adequate to service this use and that the provision of an inadequate number of spaces will exacerbate existing parking difficulties being encountered in Rosalind Park and surrounding areas. Secondly it was submitted that the provision of a car park, temporary or otherwise, within Rosalind Park is an inappropriate use of an important public open space and heritage asset and that it would continue an undesirable trend toward the erosion of this park through the incremental intrusion of car parking facilities.

40. In support of their submission that the temporary car parking arrangements would be satisfactory, the Council referred us to the draft Rosalind Park Traffic Management Study which shows that within 400 metres of the Capital Theatre there is extensive on street car parking at times when theatre demands will be at their greatest (that is in the evenings). We were further advised that parking spaces are located at the rear of the existing theatre complex within Rosalind Park and that these spaces are used by the general public for long term parking during weekdays, by theatre goers by night, and by patrons of nearby facilities on weekends. The Council also submitted that it is its intention to produce a shuttle service from a multi deck car park located 655 metres away in Hargraves Street. It was further submitted that the existing Capital Theatre and the proposed new theatre will not operate simultaneously, thereby minimising demands on existing car parking facilities.

41. The difficulty with which we are confronted is that we have not been provided with any evidence upon which we can rely to determine the likely car parking demands generated by this use and the capacity of existing and proposed car parking facilities to accommodate that demand. Similarly, while it is apparent that an opportunity may exist for the shared use of existing car parking facilities, we were not presented with any material demonstrating to us that there had been meaningful consideration of the opportunities available. For example, while it was submitted that the existing and the proposed theatre would not operate at the same time as each other, Mr McClure referred us to material which indicated that efforts would be made to maximise the use of the new theatre and, given the significant financial commitment needed to facilitate this development, we think that that is a likely occurrence. We note that there is no condition in the Notice of Decision which seeks to regulate the use of the proposed theatre in a manner which would match its use to the availability of car parking.

42. We also share Mr McClure's reservations about the use of Rosalind Park for the provision of car parking. We recognise that the location of the temporary car park is not a matter which is currently before us and any proposal to locate it within Rosalind Park will need to be subject to a further planning permit application. An application will need to be considered under the zone provisions and also under the heritage overlay which applies to Rosalind Park. We were also advised that the reserve regulations which apply to Rosalind Park will need to be amended to enable car parking to be provided within the park. Mr Stokans referred us to correspondence from the Department of Natural Resources and Environment indicating "in principle" support for such an amendment. However neither the proposed temporary car park or the permanent car park within Rosalind Park have been considered by Heritage Victoria and it would appear that neither of these proposals have been formally canvassed with Heritage Victoria.

43. It is our view that there is a degree of uncertainty about the Council's ability to comply with condition 3 and we also have reservations about the merits of seeking to do so by using Rosalind Park.

44. We think it is surprising that for a development of this magnitude the car parking issue has not been considered in a comprehensive manner as part of the planning for the overall project and that we have not been presented with any evidence upon which we can rely in forming a view on likely parking demands and the capacity of existing facilities to accommodate that demand. We also think that it is surprising that the Council is prepared to commit substantial public funds to the construction of this major development on the basis that it might obtain a permit to provide a temporary car park within a public park which is listed on the Victorian Heritage Register.

45. Our observations concerning the proposed temporary car park apply equally to condition 4 concerning the provisions of a permanent car park for at least 285 spaces. The location of this car park is, like the temporary car park, not a matter which is before us, and would need to be the subject of further planning approvals. We were advised that one option being considered by the Council is the construction of an underground car park to the rear of the proposed new theatre within Rosalind Park.

46. While we acknowledge that parts of Rosalind Park have been devoted to car parking and that the master plan for the Park to which we were referred, recognises the need for car parking to be provided for the various uses which occupy it, the issue that is of concern to us is that the Council has failed to make any assessment of the car parking impacts of the proposed theatre extensions. A comprehensive and competently conducted car parking analysis would form the basis upon which decisions about how much car parking needs to be provided could reasonably be made. It maybe for example that a combination of shared use of existing car parking, improved management of existing car parking and the preparation of a management plan for the theatre to maximise the opportunity for shared use of car parking, would negate or at least minimise the need to provide additional car parking. This would in turn have the potential to minimise the further intrusion of car parking facilities into Rosalind Park. The point that we seek to make here is that these are decisions which need to be based on the results of a rigorous analysis of the car parking demand characteristics of the proposal, an assessment of the capacity of existing car parking facilities to accommodate that demand and the preparation of a plan which ensures that sufficient car parking is provided. While it is essential that a development does make adequate provision for car parking we think that it is equally important that unnecessary resources are not devoted towards the oversupply of parking. This latter point is especially relevant in this case because of the desirability of minimising the further erosion of a significant public asset in the form of Rosalind Park.

47. We reiterate that our concerns with respect to these matters is that we are not in a position to form a view as to what the appropriate car parking arrangements for this proposal ought to be because the analysis upon which such a view needs to be formed has not been carried out. In the absence of such information, we are not prepared to authorise the grant of a permit in the form proposed by the Council.

48. We wish to make a final observation about these matters. It is inconceivable in our view that a developer of a project of this magnitude and significance would submit an application without having been required to carry out a car parking study of the type we have referred to, or that a developer would have any realistic expectation of obtaining a permit incorporating the vague and uncertain conditions which the Council has sought to impose. The fact that the applicant in this case is the Council is irrelevant to our consideration of the relevant issues under the planning scheme. We can see no reason why the Council ought to be exempted from preparing an application of a standard which it would require to be prepared by anyone else.

49. We have given consideration to providing the Council with the opportunity to address the matters which are of concern to us. On balance however, we have concluded that the application is so lacking with respect to the car parking issues and that the conditions upon which the Council seek to rely to address the car parking issues are so vague and uncertain, that we think that the application ought to be refused and the Council ought to start again, conduct the necessary research and analysis which we have identified and prepare a competent application incorporating sufficient information to enable informed decisions to be made.

50. For the foregoing reasons, the decision of the Responsible Authority is set aside and no permit shall issue.

PLANNING AND ENVIRONMENT LIST PLANNING AND ENVIRONMENT LIST