The decision of the Responsible Authority in relation to Planning Permit Application No. P03/1612 is varied.

A permit is granted and directed to be issued for the land at 22-59 Melbourne Road, Rye. The permit will allow:

Development of a skate park and associated works, in accordance with the endorsed plans.

The permit must contain the conditions set out in the Responsible Authority's Notice of Decision to Grant a Permit dated 3 October 2003, except that:

1. The plans to be endorsed to accompany this permit are the plans referenced 23022-L01, L02 and L05 Revision A, dated 1 October 2003 and except with the consent of the Responsible Authority under s62(3) of the Planning and Environment Act 1987, the development must be constructed in accordance with those plans.

2 Condition 7 must be amended by deleting all words following the word lights.

3 The following additional condition must be included:

13. Drop down bollards must be positioned on the oval periphery track, adjacent to the skate board access path, to prevent vehicles circling the oval track, except on match days.

Mr G. Florio, in person and assisted by his son, Mr C. Florio.

Mr A. Reid, Recreation Facilities Officer for the Shire.

1 This was an application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision by Mornington Peninsula Shire Council to grant a permit to itself to construct a skateboard park in the Rowley Reserve at 22-59 Melbourne Road, Rye.

2 The land is zoned Public Park and Recreation under the Mornington Peninsula Planning Scheme and is also within a Design and Development Overlay namely Schedule 2 Bayside and Village Design. Because the Mornington Peninsula Shire Council owns and operates the Rowley Reserve it falls within the Planning Scheme definition of a public land manager. As such the use of the parkland for skateboard activities and the construction of the buildings and works associated with that activity do not require any planning permit within the Public Park and Recreation Zone.

3 The reason a permit is required in this instance is because of the Design and Development Overlay. At Clause 43.02-2 a permit is required to construct a building or construct or carry out work. This does not apply if the schedule specifically states that a permit is not required however in the subject instance the schedule does not exempt a structure or works associated with a skateboard park.

4 Clause 65 of the Planning Scheme sets out decision guidelines that must be considered as appropriate before deciding on any application for permit. Relevant to this application, having regard to the reason why a permit is required, are the purpose of the overlay and any matter required to be considered under the overlay provision.

5 At Clause 43.02-5 the matters required to be considered under the overlay provision, again as appropriate, are the design objectives of the relevant schedule to the overlay and whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

6 The relevant design objectives at Schedule 2 referring to Bayside and Village Design are:

* To ensure that new development has proper regard to the established streetscape and development pattern in terms of building height, scale and siting.

* To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.

7 The proposed skateboard park, which is to replace an existing - recently removed - steel half pipe, would comprise a gently rising earth mound into which would be buried a variously contoured concrete bowl most of which would be lower than the platform surrounding the bowl and forming the top of the earth mound. An exception would be a domed, cup like structure at one corner of the bowl - referred to on the plans as a cradle. The amended plans, upon which the Responsible Authority's decision was based, showed this cradle moved from the original position facing outwards from the park towards Melbourne Road to a position more parallel to Melbourne Road. These amended plans also show the earth mound commencing at a point adjacent to the existing approximately 8ft high, chain wire fence that separates the park from the Melbourne Road nature strip. The facility would then extend through to an existing children's playground area located adjacent to the asphalt track surrounding the Rowley Reserve oval. No existing vegetation would be removed as a result of the construction. The Tribunal was advised that it is intended to grass and vegetate the mound in order to stabilise it. A condition of the Notice of Decision requires all disturbed surfaces to be revegetated and stabilised to the satisfaction of the Responsible Authority.

8 At the conclusion of the hearing of this application for review oral reasons were given for the Tribunal's decision. In summary the Tribunal found that its powers in relation to the application were very limited and did not extend to consider the issues raised by the applicants for review which focussed primarily on concerns over their security, having regard to the fact that the facility caters primarily for young adolescent males.

9 The Tribunal held that the design and siting of the facility was entirely consistent with the design objectives set out in the Design and Development Overlay and would not impact in any material way on the visual amenity of the park. Indeed, having regard to the function of the facility the Tribunal held that the structure fulfilled all of the design criteria listed by Ms Reid in her submission, including a high degree of visibility, a level of passive surveillance, access to car parking, access to toilet amenities and in a location that did not impact upon other facilities within the parklands.