Should the permit application be amended to refer to use of the whole of the land as a place of assembly and, if so, is further notice required?

1. The permit applicant reiterated its request to amend the permit application to include use of the northern part of the review site as a place of assembly. This is generally described as the area of the public car park. This request was made at the first hearing but, for reasons explained in my interim decision, not ruled upon by me. Mr Montebello said the Council did not intend to argue existing use rights and I note Mr Neilson and several Applicants contended no such rights apply to the public car park.
2. I think it was generally common ground between the parties that use permission would be required. I consider it is appropriate to amend the permit application to ensure the use of the whole of the land as a place of assembly is addressed in the one application. It would be undesirable for this to be unresolved or left uncertain. It would also be undesirable for it to be dealt with in a separate permit application.
3. The more difficult question is whether further notice is required of an amendment. The responsible authority and permit applicant argued no further notice is needed for several reasons. Those reasons included that the public could not have been under any misapprehension that the proposed building, to be constructed over the existing public car park, would be used for performing arts and functions. Moreover, the land is zoned Business 1 and no material detriment could arise from the use of the car park for a place of assembly in this location. Mr Montebello noted that the alternative proposal tendered at the last hearing by the Applicants included a place of assembly on the car park. He also submitted that there is a cross-section of views already before the Tribunal and that because of the third party exemptions with respect to buildings and works in the Business 1 Zone, the composition of the buildings would not be open to further review.
4. Mr Montebello explained the permit applicant placed an advertisement in the Wimmera Mail Times foreshadowing an amendment to the permit application just in case the Tribunal felt notice was required. The aim was to avoid delays. He said the advertisement drew few submissions and those submissions did not raise new matters. He said this notice was sufficient if the Tribunal decided to direct notice of an amended permit application. The Applicants did not agree, pointing to concerns such as the failure to directly notify them, adjacent property owners and occupiers. They said the failure to comply with process caused confusion in the community.
5. The request to amend the application was not new but I did not give directions for any notice to be placed as I required the parties to address me on the need for any notice. The advertisement caused difficulties because it was not undertaken in accordance with the Tribunal's practice requirements or with any Tribunal directions. Difficulties include the failure to formally advise the Applicants of the advertisement and the failure to advise any persons wishing to make submissions to serve a copy of their grounds on all parties[3]. Consequently, the Applicants were not informed of submissions they were entitled to address. Moreover, if I had directed notice, I would have made clear that there were limitations so that public expectations were not raised that some matters, such as car parking supply, could be re-ventilated. I would have directed abutting property owners and occupiers be notified as is usual practice. I would have ensured that the Tribunal was responsible for advising submittors of the time and venue for a hearing should they wish to appear. I would have ensured that the process made clear what the formal status of any persons would be in the proceeding.
6. The advertisement drew three letters. A fourth was also received but it may not have been directly as a consequence of the advertisement. None of the authors were in attendance at the hearing on 31 March and, as far as I am aware when I asked at the hearing, no other person attended to make submissions. I have reviewed all of the submissions and note some address matters that were not open for further review such as car parking supply.
7. I have decided not to direct additional notice of the permit application for the use of the land. Although there were deficiencies with respect to the process embarked upon by the Council I have decided to exercise the discretion available to me. Given my final determination, it is self-evident that any future permit application must get the process right. A Council as permit applicant is expected to properly prepare a permit application including specifying all of the permissions applied for. It is not appropriate for a responsible authority to make changes, such as adding permissions, without an amendment being sought to the permit application by the permit applicant in accordance with the requirements of the PEAct. If there is uncertainty about permissions required, a declaration can be sought from the Tribunal to enable that uncertainty to be resolved.

Does the permit application achieve 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?

1. In my interim decision, I set out my findings as to the need for a planning permit for the proposal under the provisions of DDO5 as follows:
   • Alterations/modifications to visible elements of the front wall (such as doors) are alterations to the façade and require a permit under DDO5.
   • Alterations/modifications to other wall face(s) that are visible from the street in DDO5 require a permit under DDO5.
   • Construction of part of a new façade.
2. While the Applicants continued to argue that demolition of the whole of the Town Hall requires approval, I do not agree. There is also no control over the building interiors. I previously set out my reasons as to why I concluded that the consideration is limited in this way primarily relating to the location of the DDO5 boundary[4] and the wording of the purpose of Clause 43.02 and Schedule 5 that focus on the precinct, which is the DDO5 precinct not the whole Horsham CAD. I must apply DDO5 as I find it and cannot contrive to make the control into something else. Having said that, I think the control has limitations in terms of achieving its aim (which is described in Clause 21.04 and the objectives of DDO5). Specifically:
   • The control does not require a permit for demolition or removal of fabric so that the ability to conserve and enhance is more limited than might be expected when having regard to the purpose of the control referred to in Clause 21.04 which refers to:

Applying the Heritage Overlay and the Design and Development Overlay - Urban Conservation Precinct - Horsham Central Area to notable historic sites within the CAD to provide for their protection and any proposed modifications to ensure the character of the precinct is enhanced. [My emphasis added]

• This strategy seeks to use two different tools (DDO and Heritage Overlay) to achieve the same outcome. This is consistent with the fact that DDO5 has a similar objective as several of the purposes of Clause 43.01 even though, unlike the Heritage Overlay, there is no demolition control to assist to conserve buildings in DDO5.

1. The limitations are seen in the fact that the Town Hall was identified in the original heritage study[5] as an important place yet was not protected from demolition. Further, I was advised that there is a draft assessment by Heritage Victoria, which recommends to the Victorian Heritage Council that the Town Hall be included on the Victorian Heritage Register.
2. That is on the basis of the work by Mr Reeves (who gave evidence in this proceeding in January 2011) and Mr Ward (whose reports were tendered in the earlier part of the proceeding and who gave evidence in this part of the proceeding) as well as other material cited in the draft Heritage Victoria report. The Hall is described by Heritage Victoria as of architectural and historical significance to the state of Victoria including:
   • As an outstanding example of a provincial municipal building of the inter-war period, and as a notable and intact example of the Art Deco style of the late 1930s.
   • As a reflection of the expansion of local government activities in country Victoria in the first half of the twentieth century and as an expression of the civic pride of local communities in the years prior to World War II.
3. I was presented with evidence and submissions as to the significance of the Town Hall that I referred to in my interim decision. I find no reason to depart from those conclusions[6]. The evidence, and submissions, also reflect the cultural and social value of the Town Hall.
4. The design objectives of DDO5 are:
   • To conserve and enhance buildings, areas and other places which are of scientific, aesthetic, architectural, historic or cultural value and which contribute to the cultural values of the area.
   • To discourage the erection of advertising signs and any alteration to the façade of buildings which will detract from the historic character of the area.
   • To protect, maintain and enhance the character and appearance of the precinct which is determined especially by the hotels, public buildings, theatres and commercial buildings including outbuildings, which collectively demonstrate periods of growth in the history of the central area of Horsham.
   • To ensure that new developments respect the character and visual prominence of those buildings which contribute to the cultural significance of the area.
5. 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.
6. I observed in my interim decision that the control is focused on the precinct's visual appearance, streetscape and historic character. However, as I also said, it goes beyond to consider the cultural value to DDO5 of buildings that are proposed to be altered. Public buildings are one of the elements defining the character and appearance of the Overlay precinct.
7. When considering alterations to the facades and the construction of new facades based on Clause 2.0 of DDO5, I have found it helpful to adopt the approach advanced by Mr Montbello. That is to consider the changes proposed and the impact of those alterations to facades and the new facades as seen from streets within DDO5 in terms of impacts on the historic character and appearance, the visual prominence of buildings that contribute to the cultural significance, and the cultural values of the area.
8. I have previously recorded that the proposal maintains and improves the principal facade of the former municipal offices and Town Hall entry by changes to later additions such as a canopy, ribbon embellishment, and door treatments. I have assumed the front fence will remain. These are positive outcomes in terms of the purpose of DDO5.
9. I observed in my interim decision that the visible facades of the Town Hall auditorium are recessed behind the principal decorative facade. The responsible authority and permit applicant rely on this recessiveness in submitting the alterations to the facade and the new facade (notably the fly tower) will have little visual impact and will maintain the prominence of the principal facade. It is true that the utilitarian form, offset position behind the decorative facade and height of the gable, mean that the appreciable visual loss is much less than should the principal facade be altered more significantly. Having said that, the proposed alteration or change leaves little of the Town Hall auditorium itself (other than the western wall to which the new building would be affixed) behind the original entry off Wilson Street[7]. Given the architectural and aesthetic value ascribed to the Town Hall as part of the former municipal offices complex, I find this loss would be significant in terms of the historic character and appearance of the precinct including the public buildings. Having regard to the historical values of the Hall identified in evidence before me, and also noted by Mr Ward and Heritage Victoria, I find the extent of alterations or change to the Hall will negatively impact on the historic value of the Town Hall complex, which is in turn adverse in terms of the cultural values of DDO5 (Urban Conservation Precinct - Horsham Central Area).
10. With respect to impacts on the cultural values and social values of the precinct, the permit applicant relies on:
    • The principal facade and place looking virtually identical from the street;
    • Retention of the western wall largely intact;
    • Use of the place for the same purpose as has historically been the case;
    • The lack of any controls over the interior of the buildings.
11. I am not able to agree that these matters mean that the changes to the building are acceptable in terms of the decision guidelines of DDO5. The use of the site as a public and performance facility might remain but the cultural and social value ascribed to the place is directly as a consequence of the existing building. The changes would leave the western wall with new construction behind and lower the southern gable wall to three courses of brick above the front parapet as well as the entry. The cultural and social values of the Hall would be lost even though a place of assembly may continue on the same land. I find that this would be a very significant loss given the cultural value of the Hall to DDO5.
12. The proposed facade associated with the new buildings and works was referred to in some of the Applicants' submissions in terms of the scale and impact of the fly tower in particular. That structure would be 17.7 metres high with its southern facade setback around 23 metres from the front wall of the retained principal facade. It is plain that the southern facade of the fly tower will be a significant visual element behind the retained principal facade. While on one view the new facade would add to the visual prominence, it could also dominate even though it would be well recessed. Its presence would be exaggerated by the blank wall(s) and 20+ metre breadth.
13. There would be other southern new facade works to the east of the lift shaft and works to the lift itself. These were not raised as a concern by any party and the finish to the lift shaft could be addressed through permit conditions.
14. For the above reasons, I am not persuaded that the proposal would result in an acceptable outcome under the provisions of DDO5. I consider the proposed facade alterations and new facade works would detrimentally affect the cultural, aesthetic and architectural values of the existing buildings and, given the significance of the Hall, the cultural values of the Overlay precinct as a whole. While I agree with the responsible authority and permit applicant that some of the works, mostly those to the principal decorative facade, would conserve and enhance an important part of the site I am not persuaded that the additional, negative, impacts are offset by those enhancements.

Does the permit application achieve an acceptable planning outcome based on Clause 10.04 of the Scheme?

1. The question before me is whether the proposal included in the permit application achieves an acceptable outcome when tested against the applicable provisions of the Scheme. Clause 10.04 states 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.

1. The same obligation applies to the Tribunal when, in this review, it stands in the same shoes.
2. An outcome can be acceptable even though there are negative impacts. In many cases, there will be positive and negative impacts in terms of the achievement of planning objectives which the decision maker must weigh in considering net community benefit and sustainable development.
3. In my interim decision, I referred to several considerations relevant to this question such as:
   • Submissions about functional deficiencies with respect to the existing Hall facilities.
   • The importance of the project to the Horsham Rural City Council as was emphasised by Mr Montebello.
   • That there is no dispute between the parties that a superior performing arts facility and upgraded gallery would make a valuable contribution to the community economically and socially.
   • Submissions that the Town Hall has structural issues.
4. In addition, I was presented with a range of other grounds and arguments including:
   • Submissions referring to users that might not be able to use a differently configured facility and contrary submissions identifying new users that might be attracted to Horsham with the proposed facilities.
   • Submissions expressing different views about benefits and disbenefits to businesses and with respect to employment generation and car parking impacts.
   • An expression of the Council's concern about the ongoing availability of the grant funds and the need to upgrade facilities to meet current regulations (eg. occupational health and safety and fire regulations).
   • A submission by Mr Neilson that addressed the matters under Clause 34.01 which, as relevant to buildings and works, are not subject to third party rights but are part of a balanced assessment of all relevant matters. They include the urban design improvements to Pynsent Street with the proposed development. Ms Heggen had also addressed these and related policy considerations in her evidence in the first part of the hearing in January 2011 which I have considered.
5. I find that the proposal has some important positive sustainable benefits and outcomes.
6. However, I also find that the impacts on the cultural values of DDO5 by the alterations and new works outweigh those benefits. The impacts are irreversible and affect a building that is very significant to the DDO5 area and, it appears, potentially to the state and community of Victoria. The principal facade will remain but remnants will only otherwise be kept and the values associated with the place will not continue with the new facility in the manner sought by DDO5.
7. The outcomes that arguably appear in tension can, in my view, both be advanced in a fresh permit application. That is, redevelopment of the land with a performing arts centre and function centre by adopting a revised site layout that retains more of the values that are of significance in DDO5.

1. For the above reasons, I find the proposal has a number of meritorious components and outcomes but I am unable to reach a conclusion that those benefits outweigh the significant adverse impacts on the cultural values of DDO5 (Urban Conservation Precinct - Horsham Central Area) as a consequence of the alterations and new works proposed. I will therefore allow the Application and order that the decision of the Responsible Authority be set aside.

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

[2] McIntyre & Ors v Horsham RCC [2011] VCAT 187.

[3] I also note that the advertisement only referred to copies being sent to the Tribunal and Council - without stating whether that was Council as responsible authority or Council as permit applicant.

[4] I noted previously that not all of the Town Hall buildings appear to be within the DDO5 boundary. In addition, although the northern facade is seen from Pynsent Street, that viewing point is not within DDO5. The Hall's gable (and roof) are widely seen from other parts of the Horsham CAD but again the focus of DDO5 is more confined to the Overlay precinct.

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

[7] At the hearing, I was advised that the Council is also looking to retain the ticket box.