In permit application no. PLA05213, the decision of the Responsible Authority is set aside. A permit must not be granted.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 brought by Mesdames K Brown, J Rundell and J Oldham seeking review of a decision made by the Baw Baw Shire Council ("the Responsible Authority") to determine to grant a permit in permit application no. PLA05213. The Shire Council ("the Respondent") seeks approval to construct a skate park at the Longwarry Recreation Reserve.

2 The Skate Park Committee with which Ms Rundell and Ms Oldham are associated is a sub-Committee of the Longwarry Progress Association Inc. based on information provided by the Association's President Ms R McDonald in December 2005. At the commencement of the Hearing, this relationship was clarified and I granted leave for Ms Rundell's and Ms Oldham's application to be amended on this basis.

3 I issued directions at the conclusion of the Hearing affording the Respondent an opportunity to file supplementary submissions to respond to issues raised by the Applicant and arising from my questions. The directions were confirmed by written order dated 15 March 2006. Subsequently, the Council filed a facsimile accompanied by background documents. At the time of my decision, no other responses have been filed. In reaching my determination, I have taken into account the supplementary submission in addition to material filed before and presented at the Hearing.

4 The review site is part of the Longwarry Recreation Reserve that is on the southern outskirts of the township. It is Crown Land and managed through a Committee of Management. The Reserve comprises an oval used for football and cricket, associated pavilions/clubrooms and other open spaces. There are also netball courts at the Reserve. The site for the proposed skate park is on the eastern side of the Reserve, 20 metres from the Koo Wee Rup - Longwarry Road and around 40 metres from the nearest housing opposite the subject land on the north side of Collett Street.

5 The proposed skate park would comprise a basic skate bowl of 29 metres x 12 metres. The design included in the application is described by the Council as a "sample" although Ms Carter stated that the design could be confirmed by a permit condition. Ms Carter said that if a permit issues then Council will be seeking interest from contractors to construct the facility.

6 The application plans do not detail any new seating, toilets, pathways, landscaping or bike racks. Parking (marked as "possible parking") is proposed abutting Collett Street within the Reserve. I was advised that the Committee of Management intends to install additional toilet facilities, with the location shown in a strategy for the skate park prepared by the Committee, but there are no confirmed timeframes. No flood lighting is proposed as the facility is intended for daylight use. No fencing is intended.

7 The subject site is zoned Rural (Schedule 1) under the provisions of the Baw Baw Planning Scheme ("the Scheme"). A permit is required to use and develop the land for a leisure and recreation facility, noting that the review site meets all of the following - it is within 100 metres of a Road 1 Zone, 100 metres of dwellings in different ownership than the subject land, 20 metres of a road and 100 metres from a floodplain. A Land Subject to Inundation Overlay applies to the land where a permit is also required for buildings and works. The provisions of Clauses 11, 12, 14, 15.02, 15.05, 15.10, 17.05, 18.01 and 19.03 (State Planning Policy Framework), Clause 21 (Municipal Strategic Statement), 22.01 (General Lane Use and Development Policy), Clause 22.02 (Townscape Policy) and Clause 65 (general decision guidelines) have been taken into account. Referrals were made to the Department of Sustainability and Environment, VicRoads and Melbourne Water. None objected but some conditions were required.

8 I have decided to set aside the decision made by the Responsible Authority for the reasons that follow. In reaching my decision, I have considered all of the written and oral submissions presented by the parties with the benefit of having visited Longwarry prior to the Hearing (as I advised the parties at the commencement of the Hearing). I do not recite all of the grounds relied upon by each party, as the statements of grounds and written submissions are retained on file, although I do summarise some of the main points next.

9 The site for the proposed skate park at the Recreation Reserve was said to be unsuitable by the Applicants because:

•

it is located at the township's fringe where there is a lack of amenities (eg. toilets, shade, drinking fountains, parking, telephone and seating).

•

it is not centrally located to the whole community and, being at the edge of the town, may attract vandalism and anti-social behaviour.

•

the site is unsafe for young children to whom the facility is aimed as it abuts a main road, is remote from other activities and is concealed by some roadside planting.

•

the site is opposite houses and may cause conflict between skate park users and residents such as by way of noise and raucous behaviour.

10 It was also submitted by the Applicants that other available sites, notably the Bennett Street Reserve, are better located and better served by facilities. They placed some reliance on the report of the officer assessing the permit application wherein it was recommended to the Responsible Authority that the permit application be refused. The issues of concern identified by the planning officer were similar to those raised by the Applicants in this case, being the remote location of the subject land from the centre of the town and the lack of support facilities available at Collett Street. The report also refers to a lack of information within the permit application including in relation to parking and non-compliance with some urban design policies within the Scheme linked to the "isolated" location of the review site.

11 While a number of other submissions were sought to be made by the Applicants in relation to the decision-making process, and concerns about failures in the consultation processes, this review is confined to matters relevant under the provisions of the Planning and Environment Act 1987 and Baw Baw Planning Scheme. Thus, I have not sought to explore issues such as allegations of conflicts of interest as I explained at the Hearing.

12 In response to the Applicants' submission, the case on behalf of the Responsible Authority and Council was based on (inter alia) the submission that the review site is well located within a recreation reserve. It was emphasised by Ms Carter that the proposed facility would be sited with other recreational and sporting facilities and, being on a main approach to the town, the site offers good access and surveillance. Ms Carter submitted that the proposed site is within walking distance from the town's main street and railway station as well as being proximate to a residential area. She also stated that the proposal accords with the Council's adopted 1994 Longwarry Outline Development Plan, a copy of which was tendered.

13 In considering these submissions and others presented by the parties, I commence with two general comments.

14 First, although there may be a range of suitable sites for the proposed facility, that is not relevant to the permit application that I must determine. The decision that I am required to make is whether the use of the subject land for the proposed skate park is acceptable, not whether there are equally suitable or even better locations. It would not be the proper exercise of the discretion provided by the Scheme for the Tribunal to reject a satisfactory proposal on the basis that the facility could be accommodated elsewhere. Thus, this review is confined to an assessment of the planning merits of the proposed facility at the proposed location based on the information contained within the permit application and relied upon by the Council.

15 Second, it seems that there is no dispute between the parties that a skate park is needed or desired within the Longwarry township. Some of the Applicants are involved with a sub-Committee seeking a suitable site for a skate park and it is clear that the Council also sees merit in the provision of a skate park as it is the permit applicant.

16 From the information provided by the Applicants, the proposed facility is not for older teenagers or skate board riders with higher skill levels. Rather, it is a simple design in relative terms and aimed at younger children leading into their teenage years. The Applicants referred to some of their own investigations of skate parks in other townships in the Baw Baw Shire.

17 Much of the debate focuses around the suitability of the review site for the skate park. Previous cases[1] have referred to the Victorian facilities planning manual "Skate Board Facility Planning" 1990 and similar guidelines can be found in other states[2]. The supplementary information filed by the Council shows that Sport & Recreation Victoria criteria were used in the planning process by Council officers but that led to the nomination of a preferred site/s in Bennett Street rather than the Longwarry Recreation Reserve. A review of the planning manual, other cases before this Tribunal, and facilities one can see in regional townships and metropolitan areas, allows common features or principles relating to the planning of a skate facility to be identified. Notably the location should:

•

maximise access to the facility and to associated amenities;

•

be central to the identified catchment area allowing it to be accessible by foot or bicycle by the user group;

•

be accessible to telephone and first aid facilities and near to ancillary facilities (including toilet block, seating, shaded areas, kiosk, drinking fountains and bins) and other community facilities;

•

be separated from residential areas by an adequate buffer zone to avoid noise nuisance;

•

not be immediately located to a road;

•

be physically suitable in terms of sub surface conditions, an ability to drain the land and an ability avoid sand and salt water (that affect use).

•

sites should be avoided that could entice users to cross major roads in dangerous sections to gain access;

•

car access and parking spaces are not crucial but pick up and drop off areas should be off a busy road;

•

bicycle storage should be provided near to the facility.

19 The selection of an appropriate site will significantly influence the success of the facility together with the design concept itself. While each criterion may not always be satisfied, the location in terms of visibility and accessibility are crucial elements in the facility's likely use.

20 The review site performs well in relation to some of the identified criteria. It has the advantage of being within a precinct with sporting facilities that may be developed with additional facilities into the future. On the information available to me, the existing activities are focussed on organised sport, such as netball, football and cricket, although I expect that the grounds and courts may from time to time be used causally by local residents for informal play, walking or jogging. The review site enables parking and drop-off/pick-up off a main road within the Reserve, and I have assumed that associated amenities such as seating, shade (via a structure or landscaping), pathways, bicycle racks and bins could be provided although they are not addressed within the permit application. The review site is separated from existing dwellings on the north side of Collett Street by around 40 metres of which approximately 20 metres comprises the road reserve, but that buffer may not be perceived by some as sufficient to deal with noise issues.

21 The review site does not perform well in relation to some of the other criteria. First, the review site is not centrally located to the residential areas of Longwarry from which the catchment for the skate facility would be drawn. It is to the south and west of all land zoned Residential 1 and is to the south and east of low density residential zones that frame the southern outskirts of the township. The 1994 Outline Development Plan earmarks the Recreation Reserve as the southern edge of the township and there seems no prospect at this time that the subject land will become more central to the town's population on the basis that urban development will occur to the west and south. There might be some residential development to the east given the Residential 1 Zone that applies but the township of Longwarry is not earmarked for expansion southwards.

22 Second, the position of the subject land on the fringe or edge of the town gives rise to accessibility issues. Longwarry is divided physically by a railway line. A significant part of the town is north of that railway and the remainder is south. Being at the edge of the town, the site is close to homes in Collett Street but it is some distance from the railway line and much further from potential users north of the railway. The site is on that part of the main road that changes from 80 km/hr to 60km/hr and thus vehicles are travelling at some speed and decelerating as they enter the township. I note that there is a footpath along one side of the Longwarry - Koo Wee Rup Road (Kennedy Street) close to the review site.

23 Third, there are few existing amenities at the review site that can be relied upon. The existing toilets are associated with the pavilion/clubrooms and it appears that they are locked when the sports clubs are not in attendance for training, matches or functions. I appreciate that the Committee of Management may suggest that they be opened more often, for example, during daylight hours, but being some distance from the proposed skate park they are not readily convenient and would be susceptible to covert behaviours.

24 Even if associated facilities such as shelter and seating can be added to the proposal by way of permit conditions:

•

there is no certainty in relation to the erection of new toilet facilities close to the proposed skate park although the need is recognised and the prospect of their construction has been canvassed;

•

there is no public telephone in the event of an accident or need for first aid (this is an issue as not all children have access to a mobile telephone); residents in dwellings opposite or nearby may not always be at home to assist;

•

there is no kiosk, milk bar or like facility, unless when sporting groups using the Reserve might operate a small kiosk or like facility.

25 Fourth, although the Reserve is used for training, matches and functions, as well as informally, there does not appear to be continual or ongoing passive surveillance provided through its recreational use. While the proposed site is open to the corner of Collett Street and the Longwarry - Koo Wee Rup Road, some vegetation along the main road masks visibility from the south.

26 Fifth, management of a skate park is important to its success and longevity; that is identified in literature relating to the development of skate parks and it is a matter frequently discussed in cases that have come before the Tribunal. Management plans are often prepared to address matters such as graffiti. Although I understand that the Recreation Reserve Committee of Management would be responsible as it is for other facilities within the Reserve I have no details of a proposed management regime.

27 Finally, I have assumed that the facility could be properly engineered although the low lying land upon which it is proposed may be problematic.

28 In summary, although the review site is acceptable in some respects and desirable in terms of co-location with other active sporting pursuits, it fails against some of the most critical location and accessibility criteria based on the information accompanying the permit application and tendered through this Hearing. These concerns are compounded by the limited documentation supporting the proposal including the plans and information relating to the availability and/or development of support facilities.

29 For the above reasons, I find that the permit application must fail. I do not, therefore, go on to consider some of the other detailed matters raised in submissions that are linked (for example) with ongoing tensions between residents and the users of the Recreation Reserve (such as late night use) or other suggested reasons why the Council may have preferred the Reserve site as these matters do not have direct relevance to this review.

30 I will order that the decision of the Responsible Authority be set aside and direct that no permit be issued.

[1] For example, Ryan v Campaspe Shire Council [2000] VCAT 26 and Maroondah Residents & Ratepayers Association Inc v Maroondah City Council [2005] VCAT 386.

[2] See Focus on Skate Park Facility Planning (Sport and Recreation WA 2001) on http://www.dsr.wa.gov.au/publications