1. Some of the Applicants oppose the removal of public car parking from the site and the failure of the proposal to provide for any car parking in the redevelopment of the review site. They also raised concerns about:
   • Flaws they contend in the parking analysis relied upon by the permit applicant and responsible authority (such as survey times, survey areas and no survey when the Hall was operational).
   • A loss of on-street parking that is heavily relied upon by nearby businesses.
   • The provision by the Council of alternative car parking at other on-street locations including some spaces within Residential 1 Zones.
   • The distance of some of those locations from the review site.
   • The fact that some of the new on-street parking has been installed.
   • The precedent that would be set for other developments to proceed without on-site parking.
   • The failure of the Council to enforce parking restrictions.
2. The proposal involves the removal of car parking from the northern part of the review site; variations to access aisles and parking in the adjacent Town Hall east car park; and a suite of revised on-street parking arrangements in locations such as O'Callaghans Parade and opposite dwellings in Wilson Street specified in Condition 30 (some of which have already been installed and some of which require revision following detailed design as identified by Mr Neilson). The permit applicant has agreed to Condition 22 that requires daytime events to be ticketed with details of car park locations and Condition 23 requiring the operation of a shuttle bus for daytime events with 500 or more people.
3. I appreciate the Applicants' comments as to the behaviour of the Horsham community about parking including reliance on cars and the desire, or expectation, of customers to be able to park in front of businesses.
4. This is not unusual to Horsham and is typical of other regional centres, as I know from my own experience living outside Melbourne, and commented upon in other proceedings. [39] It is typical of human behaviour to seek parking as close as possible to one's destination in metropolitan and non-metropolitan areas.
5. I do not consider the parking analysis relied upon the permit applicant and responsible authority is flawed (mindful of some minor corrections referred to through Ms Mensforth's evidence and being aware that some well used parking is associated with developments such as supermarkets/major traders). Rather, I accept the evidence that the demands generated by the proposal can be accommodated without absorbing an unreasonable proportion of the available public parking supply. While the provision of on-site parking could be desirable, that would most efficiently occur in a basement. That is not part of the current proposal and, based on some submissions presented, may have some structural difficulties (although I do not know if it would be impossible or unfeasible). I consider a waiver of parking is appropriate in the circumstances of this site and the existing context.
6. The proposed redevelopment has the potential to provide a boost to nearby businesses by increasing people activity in the area including into the evenings. Patrons to the gallery, performing arts centre and function centre would not be expected to walk for a kilometre or more as suggested in some submissions. Rather, the suite of parking measures is based on a sound strategy to provide more short term parking around the retail core and longer term parking further from the core. That is to free up parking for customers close to businesses with staff and employees given opportunities to park at a further distance. The revised parking arrangements are part of a wider parking strategy for the Horsham CBD prepared by TTM Consulting. While it is not my role to review that strategy, a centre-based approach is an appropriate way to manage parking supply including a rationalisation of spaces that can be achieved through a greater efficiency in the layout of parking bays.
7. The removal of a parking area for long vehicles, identified by Mr McIntyre, could be simply remedied if the Council desires.
8. Enforcement is a matter for the Council.
9. For these reasons, I find a waiver of parking is acceptable and revised on-street parking arrangements are, in principle, reasonable to increase the available parking supply.

WOULD THE PROPOSAL RESULT IN UNACCEPTABLE TRAFFIC IMPACTS?

1. This question is linked with changes in car parking arrangements such as in O'Callaghans Parade and at some intersections.
2. Based on the evidence of Mr Mensforth, consistent with the advice of the responsible authority's traffic engineers, I am satisfied the proposal will not give rise to unreasonable adverse traffic or safety issues. The revised parking and road layouts can be reviewed by the Council as road manager and any remedial action taken if required.

1. Some of the remaining issues raised by the Applicants may not be open to third party participation and review given the exemption provisions of Clause 34.01. They may be relevant under the decision guidelines in Clause 43.02 but are possibly not relevant to the purpose of Schedule 5. I have summarised my findings on them mindful that submissions on these matters were made by the responsible authority and permit applicant.
2. Loading. The permit applicant has made arrangements with some abutting land owners to deal with loading requirements for those businesses including some revisions to the layout of the Town Hall east car park and the land to the north-west. I observe that the revised car park layouts seem tight given the size of trucks required to access the rear of nearby properties and may require some revision to the detailed design.
3. Removal of public toilets. The existing toilets fronting Pynsent Street would be removed and replaced by publicly accessible toilets within the redevelopment. The facilities will meet current expectations including disabled access and baby change. While those facilities may not be available at certain times I do not consider the proposal fails because of the revised location or arrangements. There are other public toilets in the vicinity.
4. Concerns about security. Lighting would need to be considered as part of the detailed design. The Council would be responsible for additional security measures and I note Mr Neilson's submission that night security controls would continue.
5. Noise. The development would need to be designed to comply with relevant legislation such as State Environment Protection Policy N-2 controlling music noise.

1. If I determine to grant a permit, various changes would be required to the conditions contained in the Notice of Decision for example:
   • Plan changes would be needed to clarify some matters (such as retention of the front fence detailing on Wilson Street) and to provide for bicycle parking as recommended by Ms Heggen.
   • Condition 14 requires all loading and unloading on-site but it would be sensible for flexibility to allow some loading, such as small vans or vehicles, for the gallery to be on-street.
   • Condition 24 is unclear.
   • Condition 28 is unnecessary if a waiver of parking is granted.
   • Condition 30 would need to be varied to provide flexibility mindful of detailed design of the on-street parking and to take account of recommendations by Mr Mensforth with respect to the Town Hall east car park and loading for adjacent sites.
   • A new condition addressing photographic recording of the extant building fabric and interiors.
2. Mr Gerlach expressed concern about some conditions that include a secondary consent provision but such provision is often beneficial for practical reasons and may not be unreasonable in some circumstances.

1. For the above reasons, I will direct the parties to make further submissions with respect to the matters outlined in these reasons specifically paragraphs 11, 16, 51, 53 and 66 that focus on:
   • Consideration of whether permission is required for the use of the northern part of the site as a place of assembly or whether existing use rights apply to this part of the site.
   • If a permit is required for use, whether further notification of an amended permit application is required.
   • Whether the permit application achieves an acceptable outcome having regard to the reasons a permit is required, relevant design objectives, relevant decision guidelines and the purpose of Clause 43.02 and Schedule 5 [DDO5].
   • How the conclusion with respect to the proposal's assessment under DDO5 should weigh in a decision as to whether the permit application achieves an acceptable planning outcome based on Clause 10.04 of the Scheme.

[1] In reaching a decision I have considered all submissions, evidence and other material tendered and filed by the parties. I do not, however, recite all of that material in these reasons.

[2] Including an earlier proposal prepared by the Council that retained more of the Hall or a design concept tendered by the Applicants showing the Hall retained as the function centre with a new auditorium behind.

[3] Mr McIntyre said residents oppose works that have been done and seek Tribunal's action on this matter. Road works including partial closures and new parking layouts and restrictions can be undertaken by the Horsham Rural City Council as the road manager. It is beyond the ambit of this proceeding about a planning permit for the Town Hall redevelopment to review those works. I say that being fully aware that the additional car spaces created in O'Callaghans Parade are part of a package of revised on-street parking arrangements adopted by the Council in relation to the current permit application.

[4] The question of what comprises the subject land was raised by the Applicants. The description of the land included in the Notice accords with the rectangular site referred to in the titles nominated in the Notice (excludes the Town Hall east car park). One folio number is identified as Fol:903 rather than Fol:777903 based on the title plan included in Attachment 1 of the responsible authority's submission. To the extent that there is any inconsistency, I consider it could be simply resolved.

[5] Page 90 of the report to Council on 6 September 2010 under the heading "Application Proposal".

[6] For example, letter from the responsible authority to objectors dated 12 August 2010 advising of a meeting between objectors, the applicant and Council. It states in part "Any issues not planning-related that have been raised in objections will be addressed separately at a later date. The issue of the heritage status of the building will be discussed but it is Council's position that this is not a planning related issue".

[7] The Tribunal's reasons dated 23 November 2010 refer to correspondence from Horsham Rural City Council dated 18 November 2010 and Maddocks lawyers dated 19 November 2010 that address the limitations of the rights of review. They are not in agreement as to those triggers as was also the situation at the hearing.

[8] Even though in his submission Mr Neilson said a permit is required to demolish the toilet block.

[9] The necessary referral was made to VicRoads by the responsible authority.

[10] That is, the discretion of a decision-maker must be exercised in accordance with the purpose for which the discretion is exercised relying on Victorian National Parks Association Inc v Iluka Resources Limited [2004] VCAT 20 and Shalit v Jackson Clement Burrows Architects Pty Ltd(2002) 12 VPR 329. I return to this point again later in these reasons.

[11] The situation is arguably analogous with that in Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 2379 that was subsequently the subject of appeal to the Supreme Court on a similar procedural question and then directions by the Tribunal for further notice of the permit application (Regal Hotel Pty Ltd v Port Phillip CC [2008] VCAT 1132).

[12] To the extent that this is contended to be a question of law, as Mr Montebello said it is, I asked each party whether there was any objection to the question being decided by me (as I am a town planner with a post graduate qualification in law but I am not a legal practitioner). No objection was made by any party. I have therefore proceeded to determine the matter as I am able under Clause 66(1)(b) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

[13] Correspondence from Horsham Rural City Council to the Registrar of the Tribunal dated 18 November 2010.

[14] "Façade" in the Building Act 1993 is in the context of Section 29A(3) of that Act with respect to a building permit for demolition. It is defined as "(a) an external wall, including any verandah, balcony or balustrade or architectural feature attached to or forming part of an external wall; or (b) a part of a roof; or (c) a chimney - that faces a street and at least part of which is visible from the street it faces...". Sections of the eastern wall, as well as parts of the western and southern walls and roof of the Town Hall, would fall within that definition under that Act.

[15] The decision guidelines at Clause 5.0 of Schedule 5 include "buildings or works proposed to be removed" but I do not consider this over-rides the express provisions of Clause 62.05 or allows Clause 2.0 to be interpreted as including "removal".

[16] "Frontage" is defined in Clause 72 but not "front".

[17] Limited Heritage Study for the Rural City of Horsham by Andrew Ward, February 1998, at page 10.

1. [19] HO7 "Former Mechanics Institute, 33-35 Pynsent Street, Horsham". I note the former Shire Offices is in a different HO and is described in the Limited Heritage Study as (in part) being comparable with the offices and hall of 1938 but rare at the State level for reasons cited in the comparative examples.
2. [20] This photograph was taken by the Tribunal from a position south-west of the site that is outside DDO5. Its purpose is to assist to appreciate the relationship between the principal decorative facade and some other elements of the building.

[21] Both photographs were taken by the Tribunal from the south side of Wilson Street at locations within DDO5.

[22] This photograph was taken by the Tribunal from O'Callaghans Parade that is well beyond the boundaries of DDO5.

[23] To illustrate this point, I observe that the term "principal facade" is used in Clause 22.04 of the Port Phillip Planning Scheme and "principle [sic] facade" is used in Clause 22.02 of the Yarra Planning Scheme.

1. [24]DDO5's decision guidelines are:
   • The existing character and appearance of any buildings or works proposed to be removed, altered or decorated, and the contribution the existing building and works make to the cultural values of the precinct;
   • Whether the scale, location or external appearance of any proposed buildings or works will harmonise with the character and appearance of the precinct; and
   • Whether the buildings or works will contribute to the continuity of the streetscape.

[25] Minawood Pty Ltd v Bayside CC & Anor [2009] VCAT 440.

[26] Limited Heritage Study for the Rural City of Horsham by Andrew Ward, February 1998.

[27] Victorian National Parks Association Inc. v Iluka Resources Limited [2004] VCAT 20 at paragraph 35. The same point is illustrated in other proceedings such as Shailt that is referred to in Iluka Resources.

[28] Minawood Pty Ltd v Bayside CC & Anor [2009] VCAT 440 including at paragraphs 36 to 42.

[29] Limited Heritage Study for the Rural City of Horsham by Andrew Ward, February 1998, at page 10.

[30] Mr Ward was not called to present evidence and thus this material does not carry the same weight as the evidence of Mr Reeves and Ms Riddett.

[31] Minawood Pty Ltd v Bayside CC & Anor [2009] VCAT 440 including at paragraphs 36 to 42.

[34] Such an interpretation does not extend to the whole of the Town Hall as discussed earlier in these reasons.

1. [35] Clause 10.4 of the Scheme that specifically requires the following "... responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations".

[36] Mr Neilson indicated that he also holds the position of Municipal Building Surveyor.

[37] Pages 3 and 13 of statement of evidence draw attention to what she describes as the "contradistinction".

[38] Referring to matters set out in paragraphs 10 and 17 of these reasons.

[39] Inland Consultants v Mildura RC [2008] VCAT 1383 determined by myself.