5 Mr Carey, on behalf of the responsible authority, argued that the Public Land Manager opposed an increase in the area around the Music Bowl. Mr Carey advised that the Council performs three roles:

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It is the Committee of Management of the relevant parkland under the Crown Land (Reserves) Act 1978;

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It is the relevant local government authority under the Local Government Act 1989 and is responsible for the issue of a permit pursuant to the Activities Local Law 1999; and

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It is the responsible authority under the Planning and Environment Act 1987.

6 Mr Carey advised that the proposal before the Tribunal required approval from the Council under each separate head of power. However, he conceded that the Council as the responsible authority under the Planning and Environment Act 1987 which is justiciable by this Tribunal.

7 Mr Carey advised that the Council's position is that a proposed activity will be referred to its Parks Department which will assess the extent of the land which can be and should be utilised for the activity and which liaises with other Council agencies to ensure the applicants receive a co-ordinated Council position. He advised that the Council as the Committee of Management has determined that the extent of the use sought to be included in this application is inappropriate and, as the Committee of Management, it will not grant the necessary approval. He advised this position had been previously conveyed to the applicant and is generally consistent with previous approvals which Council have granted for the use of this location.

8 Mr Carey advised that an extended area was approved on a trial basis before last year's function. However, following that function Council determined that the extent of damage suffered to the parklands was such that similar approvals would not be granted in the future.

9 Mr Carey advised Council subsequently refined its position in April 2005 with the adoption of a policy which clearly recognises the inappropriateness of Kings Domain for events such as this. He advised that the conditions in the Planning Permit which are subject to challenge have been included to reflect Council's position under its various heads of power and to ensure that there is consistency between all the approvals granted.

10 Mr Carey referred to this approach and said this was consistent with the statement of Smith J in Port Phillip City Council v Maureen Hickey & Ors [2001].

11 Mr Peake tabled a plan titled "Infrastructure Map" which essentially reduced some of the area to be enclosed for the "Summadayze Event". This plan showed the general location of fencing in red. During the hearing I formally substituted the plan pursuant to Section 64 of Schedule 1 of the VCAT Act. This plan was subsequently referred to in one of the new conditions imposed as part of my order.

12 Mr Peake argued that the plan, and a suggested new condition on permit, which would enable the Public Land Manager's concerns in this matter to be addressed was a compromise gesture.

13 Mr Carey claimed that as a responsible authority it neither objected nor supported the new condition, but as a Public Land Manager, it opposed it.

14 Ms Sungaila conceded that the amended plan and the suggested condition made an improvement. During the hearing she expressed concern about the environmental damage and acknowledged that the discretion in this matter was limited to consideration of the fence.

15 During the hearing I sought clarification of the purpose of the application and the extent of planning discretion in this matter. A permit is required to:

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Construct a fence over 1 metre in height in a Public Park and Recreation Zone pursuant to clause 36.02-2 of the Planning Scheme.

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To construct a fence in a Heritage Overlay Area pursuant to clause 43.01-1 of the Planning Scheme.

16 There are Decision Guidelines in clause 36.02-5 to assist a responsible authority, and therefore the Tribunal, to determine the matter this includes consideration, as appropriate "The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land".

17 There are Decision Guidelines in clause 43.01-5 of the Heritage Overlay requiring consideration of such matters as "Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage plane... or whether it is in keeping with the character and appearance of adjacent buildings and the heritage place."

18 The responsible authority and the applicant were predominantly preoccupied about non planning issues, for example, Mr Peake focused on "the access problem that the event organisers had experienced in previous events". Mr Carey on the other hand, had focused on the Council as the Land Manager, opposing the proposal, and therefore claiming the application was virtually futile.

19 However I was provided with no planning arguments for or against the appearance of the fence. Neither party referred to the above mentioned clauses or decision guidelines.

20 I noted during the hearing that Condition 5, which was not at issue in this matter, required that the fence must not be erected before 27th December 2005 and must be removed no later than 2nd January 2006. Therefore for all intents and purposes, Permit No. TP05/855 will be spent once the fence is removed on 2 January 2006.

21 Mr Carey drew heavily on the decisions of Smith J in Port Phillip City Council v Maureen Hickey & Ors [2001] VSC 129. I distinguished that matter from this application because:

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the fence was temporary by virtue of its form of construction

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the very nature of Condition 5 on the permit

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I had taken into account the Land Manager's views on this matter and I consider that there was some opportunity, albeit limited, for further negotiation which may lead to a compromise or approval of the ultimate location of the fence. This included placement of a condition on the permit to allow for such to occur

22 I also noted during the hearing that neither the responsible authority nor the objector had raised any planning concern about the appearance of the fence in question. I drew a clear distinction between the assessment of land use or even land management issues which are of concern to the Melbourne City Council and the Council's responsibility for considering a planning application for a fence in a Public Park and Recreation Zone and one which is also covered by a Heritage Overlay.

23 I also noted that in the context of the park and its heritage status that a temporary fence of the kind proposed was not likely to damage this eminent park or the heritage status of the park per se. The fence, like other temporary fences erected around the music bowl in the past are removed.

24 This was in no way intended to criticise or undermine Melbourne City Council's role as a Committee of Management of the relevant parkland under the Crown Land Reserves Act 1978 or its role under the Local Government Act 1989 particularly in reference to enforcement of its Activities Local Law 1999.

25 I provided brief reasons during the Prompt and Final hearing on the understanding that this matter was heard and decided expeditiously. In fact during the hearing I offered to briefly adjourn the proceeding in an effort to allow parties to seek further instructions and possibly break a deadlock in negotiations. My offers were intended to assist the parties to resolve the matter in a constructive manner. No party had requested reasons. The Order was prepared and signed by me on the day of the hearing and sent out by registry staff on the next business day which was 19 December 2005. It is also noted the application for review was lodged on 7 December 2005.

26 Subsequently on the 19th of December the permit applicant's solicitors in a brief letter sought an expedition of the Order and reasons for the Tribunal's decision. These reasons have been provided although it is noteworthy that neither party addressed the primary planning arguments for and against this matter, the applicant offered a further condition in an effort to address the council's concerns, which seem to relate to its other powers and responsibilities and that condition was inserted on the permit.

27 I am not sure how many planning applications are made for temporary fences in a public park to Melbourne City Council and on the basis of the officer report for the fence I am not fully sure that the council officers understood the limits of discretion in this planning matter. But I wonder whether it is really the appropriate forum to argue the land management and local law issues.

28 If the principle issues of concern to the council and the applicant are more of land management and local law issues and nobody bothers to refer to the ambit of discretion and the relevant planning merits of the fence bringing this matter to the tribunal on the pretext of it being a planning matter, obtaining an expeditious hearing and prompt decision, having a condition that its own advocate suggested as a condition to help break a deadlock and then seeking reasons when no planning arguments were made seems to be unnecessarily self indulgent. It is acknowledged that every party is entitled to seek written reasons to a decision but the planning reasons seem largely superfluous to the principle dispute concerning the Summadayze event.

29 Now that the event has concluded for this year I trust that the parties may wish to reflect on the most recent events and their respective roles and work towards a more coordinated and relevant approval process. The tribunal may not be so obliging in expediting a review process if there is a lack of evidence of relevance to the true ambit of discretion in the jurisdiction.