DATE OF HEARING: 22 June 1999 and 13 September 1999

2. The Responsible Authority pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 shall issue a permit for use and development of a Community Skate Park, Barbecue Facilities, Basketball Ring Facilities and associated works generally in accordance with the plans, elevations and details, and will form part of the permit in accordance with the conditions outlined in the Notice of Decision dated 20 January 1999 together with an additional Condition No. 13 which shall read:

"13. Before the use and development commences on the site:

A Certificate of Environmental Audit must be issued for the land in accordance with Section 57AA of the Environment Protection Act 1970; or

An environmental auditor appointed under the Environment Protection Act 1970 must make a statement in accordance with Section 58AA(5)(b) of that Act that the environmental conditions of the land are suitable for the skate board use."

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Mr. C. Tsourounakis, Town Planner, represented the Responsible Authority and Applicant or Permit.

Ms. Gwenda Kullen, Town Planner, Mr. D. Endacott and Mr. Ivan Inderbitzin (Friends of Cornish Hill) and Mr. David Smith represented the Applicants for Review.

1. This is an Application for Review of Hepburn Shire Council's decision to grant a permit for use and development of a community skate park incorporating a basketball ring and barbecue facilities on Part CA 4, Section 9, Township of Daylesford, Corner Stanbridge and Duke Streets, Daylesford.

The Grounds for the Application for Review are summarised as follows:

i) Heritage considerations including visual and noise impact.

v) Does not comply with the Friends of Cornish Hill Groups objectives for the heritage area.

vii) Unsuitability of the site due to physical problems.

3. The application for permit sought to erect and use land for a community skate park. In addition the application seeks to provide a modified basketball ring, barbecues and seating facilities. A planting and retaining wall is also proposed. The skate ramps will be securely bolted into reinforced concrete bases and would comprise of:

The ramps will be capable of use by skateboarders, BMX riders and roller bladers.

4. The subject site is known as Crown Allotment 4, Section 9A, Township of Daylesford. The site has an area of 1.42 hectares and adjoins the Cornish Hill Reserve. The land has been temporarily reserved for public recreation under the Crown Land (Reserves Act) 1978. The actual portion of land to be designated for the community skate park is situated on the eastern portion of this public recreation area. It will be situated about 73 metres to the west of Duke Street and about 45 metres south of the Stanbridge Street alignment. The area of the proposed facility, is odd shaped being approximately 19 metres wide (at its widest point) and about 39 metres deep. The barbecue area and seating area will be situated west of the skate facility.

5. The subject site is reserved Public Purposes 2 (Pound) under the Hepburn Planning Scheme. A permit is required to undertake buildings and works on reserved land pursuant to Clause 24(1) of the Planning Scheme. A permit is also required to "use" land pursuant to Clause 24(2) of the Planning Scheme.

6. The subject site is also situated in a Heritage Overlay, Area of Special Significance - Historic Precinct No.6 - Mining of the Hepburn Planning Scheme. Under Clauses 51(5) and (7), a permit is required to undertake buildings, works and landscaping. The relevant objectives of this Historic Precinct Area are:

"(a) to provide for the preservation, maintenance and enhancement of building works, objects, sites and significant landscape features which are recognised by the Responsible Authority as being either of architectural, historical or scientific importance and which therefore form an essential component of the heritage and character of Daylesford and Hepburn Springs; these items are described in the Table to Clause 50 of this Chapter;

(c) to ensure that the immediate environs of such buildings, works, objects, site and landscape features (which are described in the Table for Clause 50 of this Chapter and shown on the Planning Scheme Maps) are planned and developed in a manner which will be complementary to their character and facilitate the implementation of the objective set out in paragraph (a) of this sub-clause;

(d) to conserve and enhance the architectural and historic character of the Areas of Special Significance - Historic Precincts; which are recognised by the Responsible Authority as being of architectural and historical importance and which therefore forms an essential component of the heritage and character of Daylesford and Hepburn Springs; these areas are described in Schedule 1 - 8 to Part IX.

(e) to encourage development of a type which is sympathetic to the character and appearance of the Areas of Special Significance - Historic Precincts are described in the relevant Schedule of this Chapter, and

8. Clause 20 Hepburn Planning Scheme outlines matters to be considered in determining applications for permit generally. In addition, matters contained in Section 51(9) - Areas of Special Significance - Historic Precinct Schedule of the planning scheme are applicable.

Hepburn Shire has prepared and exhibited its new VPP based planning scheme. The planning scheme has undergone review by an independent panel, appointed by the Minister for Planning. At the time of the first review hearing the municipality was in the process of revising portions of this planning scheme following recommendation from an independent panel. The site will have various planning controls and overlays, which were not finalised at the time of both review hearing dates. The Tribunal will refer to this issue later in paragraphs 14 and 21.

Along with the new Hepburn Planning Scheme, the municipality has prepared, and exhibited its Municipal Strategic Statement. However to date this has not been adopted nor finalised.

During the review hearing, various parties referred to the Cornish Hill Conservation Management Plan prepared by R. Kaufman, LRGM - Services July 1998. The preparation of this Conservation Management Plan was initiated by the Hepburn Shire Council and was funded by Grant monies from the Department of Natural Resources and Environment. It was intended that the recommendations of the plan will guide improvements and ongoing management of Cornish Hill, a 38.5 hectare area of public land to the south-east of the subject site. The Tribunal has found this a useful guide and reference document in its decision.

12. At the first review hearing, all parties tabled and read from submissions. At the conclusion of the first review hearing on 22 June 1998, the Tribunal requested further information from the responsible authority about the appearance, materials and finishes to be proposed on the skateboard park and details of the precise intent of the reservation of the land under the current planning scheme including a Planning Certificate. The responsible authority forwarded various documents to the Tribunal. These documents were considered to be only partially acceptable. The Tribunal Registrar wrote to the responsible authority and reiterated the request for a Planning Certificate. The hand written Planning Certificate forwarded to the Tribunal placed the site in an Existing Public Purpose Reserve (Pound) and an Area of Special Significance - Historic Precinct No. 6 - Mining. The Certificate also identified the proposed new Hepburn Planning Scheme controls as:

* ESO 2 Environment Significant Overlay Mineral Springs and Ground Water Protection.

The Tribunal was not advised in the Planning Certificate about whether or not the site would be included in a heritage overlay (see paragraph 14).

13. Following receipt of the documentation, from the Responsible Authority Tribunal received additional documentation from objectors. This included further written submissions, reports by "Chris Johnson Context Pty Ltd" dated July 25, 1998, a memo from Ms. Gwenda Kullen to Mr. David Smith about the proposed planning scheme documentation, comment regarding the location of the skate park in relation to the Cornish Hill Precinct and Heritage Overlay, and a report by Chris Dance, Sam Thompson and Lindsay Fraser regarding visual assessment of the proposed skate park in relation to Hepburn Shire Council Heritage Adviser's report. There was also a letter from Mr. David Smith seeking costs for the additional expense incurred in engaging consultants to respond to the Council's additional information.

14. At the second review hearing, the Tribunal provided an update of what had been forward to it, sought comment from all parties and clarification on the proposed planning scheme controls, and in particular whether a heritage overlay would be applied. The Tribunal advised that it considered that information on the heritage controls was an important consideration in this application and felt it was important for the responsible authority to clarify this matter. It is noted that Mr. Tsourounakis confirmed that the land was likely to be placed in a Public Use or Public Recreation Zone. He also stated the land would have a Heritage Overlay, although no documentation was provided to confirm this information. There was discussion about the weight to be given to the reports tabled by objectors after the first hearing. The Tribunal advised it had not requested such reports, rather it had sought comment on the information provided by the responsible authority. The documentation was allowed to be considered subject to the Tribunal exercising its discretion as to what weight it would attach to the documentation in the circumstances.

The Tribunal considers the proposed facility is a satisfactory use of this public land noting that it is Crown land temporarily reserved as a "recreation reserve". Whilst there appears to be some inconsistency between the Crown Reservation and the current Planning Scheme Reservation, the proposed use will be consistent with the Crown Reservation. The Tribunal notes Mrs. Kullen's reference to Section 46 of the Planning and Environment Act. This section states:

"If a provision of a planning scheme is expressed or purports to deal with land that has permanently reserved for any purpose under the Crown Lands Reserves Act 1978 or any part of that land in a manner which is inconsistent with the purpose of the reservation, the provision does not take effect until the reservation of that land or part is revoked by or pursuant to an Act of Parliament."

As the land is temporarily reserved, not permanently reserved, Section 46 is not applicable. In any event we find that the use of land for a recreation purpose is consistent with the temporary reservation and would be more appropriate than its listed planning reservation which nominates its purpose as a "Pound". The Tribunal noted during the second hearing that no party favoured its use as a "Pound".

16. The Tribunal notes in Mrs. Kullen's memo to Mr. Smith on the Council's Planning Certificate that the land is proposed to be rezoned as Public Purposes - Local Government. Mrs. Cullen suggested it should be reserved for Public Open Space. The Tribunal considers the proposed use would be consistent with either a Local Government or Public Recreation zoning, and therefore this application should be considered on its planning merits.

17. The Tribunal finds the proposed works associated with the skate ramp will be consistent with the reservation of the land and would not undermine its primary purpose. In addition, the Tribunal considers the proposed works are modest in height and nature, and would not compromise the Cornish Hill Reserve or the proposals depicted in the Cornish Hill Conservation Management Plan. The Tribunal notes the works, at their greatest height will be 1.8 metres, and will be located in a relatively obscure position on the site.

18. The Tribunal notes the subject site is outside the Cornish Hill Reserve (see Figure 1 Cornish Hill Conservation Management Plan.). It is also sited outside the "Historic Zone Boundary" of the Cornish Hill Reserve. Whilst the site is included in a Heritage Area Overlay in the planning scheme, this overlay serves to ensure that the proposed buildings, works and landscaping do not compromise the integrity of the Cornish Hill Reserve. The Tribunal is satisfied that such works will not compromise this important heritage area.

19. The Tribunal noted one reference in the Cornish Hill Reserve Conservation Management Plan to the provision of access roads through the subject site to the Cornish Hill Reserve. The Tribunal is satisfied the proposed location of the road would not be compromised by the placement of the proposed skateboard park. In fact there may be some mutual benefit to both activities if the road was developed as it would provide for improved access to both reserves.

20. The Tribunal also notes that the brief for the preparation of the Conservation Management Plan specified that low cost improvement and maintenance works were to be investigated. It also stated that:

"Budget considerations aside Cornish Hill does not recommend itself to major capital works - there is not enough left of the historic fabric to institute a major mining interpretations area along the lines of the North British Mine, Maldon and there are too many site constraints for a major revegetation program like Tower Hill near Warrnambool. The community consultation phase of the project also identified a strong desire to exclude major or intrusive developments from the area."

In our view the skate park works are modest when viewed in proportion to whole reserve. The facility is to be placed in a depression. It is unlikely to be highly visible when viewed from nearby streets. Owing to the modest scale of the buildings and works proposed, the Tribunal is satisfied there will be little if any visual intrusion onto the Cornish Hill Reserve.

21. The Tribunal was urged at the first hearing to make an early decision as the Shire may lose external funding for this project. Unfortunately the Tribunal was not in a position to make an early decision on this application. The Tribunal considers the vagueness of the documentation provided about the current and proposed planning controls, and the tardiness in providing this information has resulted in unnecessary delay in making a decision on this matter.

The Tribunal notes that the Council could use the subject land as a pound without a need for a "use" permit, although a permit would be required for any buildings or works. The Tribunal would questioned whether it was appropriate to develop a pound in this location given the status of Crown Reservation, its proximity to residential properties and the Cornish Hill Precinct.

The applicants/objectors raised concerns about the responsible authority's site selection criteria and process. Whether that exercise was flawed or otherwise, is not for the Tribunal to determine in this application for review. The Tribunal must consider the planning merits or otherwise of this application on this site, not some other site which may or may not suit other parties.

During the first review hearing, Mrs. Kullen raised concern about potentially contaminated land. Mrs. Kullen stated that the land had not been investigated in accordance with Minister's Direction No.1. The Minister's Direction No.1 refers to applications for requests to amend the planning scheme rather than for applications for permit. In this case it is acknowledged that the site was used many years ago for mining or mining related activity. It is also acknowledged that part or all of the site has been filled some years ago although no information was provided about the extent of the fill. Whilst it is not mandatory to require site investigation in a planning permit situation, such investigation is considered prudent if the site is to be used for recreation purposes. The Tribunal notes that part of the land has been used for some years for recreation purposes, but unless the responsible authority can demonstrate that it has undertaken appropriate investigation, the Tribunal believes it prudent to impose a condition requiring either an environment audit or at least a proper site investigation by suitably qualified personnel to satisfy itself that the land is suitable for a skate park or that the surface conditions are satisfactory given the intended use.

The Tribunal has considered issued of potential hygiene problems which may arise out of the proposed uses of this recreation facility. There are no public toilets proposed on the subject site. The Tribunal considers this is not a reason to refuse the application. Part of the land is used for recreational purposes, notably soccer. There may be, in time, other public conveniences provided nearby, such as on the Cornish Hill Precinct. If such issues become critical, it would seem that Hepburn Shire would be the most appropriate body to determine where such facilities should be placed.

There was concern raised about the visual impact and noise from the proposed facility. The Tribunal considers that whilst there may be an increase in noise by users of the skate park, such activities are likely to be in the daylight hours only. The Tribunal notes the proposed facility is located at least 60 metres away from the nearest residential property. The Tribunal considers that noise from a Skate Park is unlikely to substantially impact on the enjoyment of residential properties in either Duke or Stanbridge Streets.

Some objectors argued the proposed facility would encourage anti-social activity and were concerned there was a potential for undesirables to visit and congregate in the area We find no evidence to support this assertion. Further the Tribunal has noted the Police have actively encourage the development of this community facility.

It was contended that Stanbridge Street was an unsafe pedestrian area from which the proposed site may be accessed and therefore the site was unsuitable for the proposed use and development. The Tribunal finds no evidence to justify such assertions. The Tribunal considers that a skate park facility is unlikely to have a high car parking or traffic generation rate, given the very nature of skateboarding, the likely age of most participants and its primarily role in serving the youth in the township.

29. Mr. Smith sought costs from the Tribunal relating to additional expense incurred in the objectors engaging consultants to prepare reports in response to the information the Tribunal required from the Responsible Authority. In planning matters such as this, it is normal practice for parties to bear their own costs. Whilst the Tribunal had requested further information of limited scope from the Responsible Authority, the Tribunal did not request any further information from the objectors no direct the preparation of additional reports. The Tribunal allowed at the conclusion of the hearing the additional reports into evidence subject to weight. We find no circumstances that persuade us that an award of costs against the responsible authority are justified.

30. Mr D Smith wrote to the Tribunal on 14 September 1999. The Tribunal had advised the parties at the conclusion of the second review hearing of 13 September 1999 that it considered it had sufficient information to make a decision. Mr Smith's additional correspondence has not been considered.

For the above reasons, the Tribunal disallows the Application for Review and directs the issuance of a permit for the use and development as sought.

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