A permit is granted for the use and development of a Skate Park in accordance with the endorsed plans on land at 27 Sherwood Street Birchip. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on the 24 January 2003, but with the following variations:

6. The skate park must only be used during the following hours:

(i) 9.00am to 8.00pm during the period commencing on the 1 October and ending on 31 March the following year, and

(ii) 9.00am to 5.00pm during the period commencing on the 1 April and ending on the 30 September.

(b) The following additional conditions, to be numbered 9 and 10, are added:

9. A sign must be erected on the land in a prominent position that provides the following information:

(i) the hours during which the facility may be used in accordance with condition 6 of this permit;

(ii) Advice that users of the skate park are to behave at all times in an orderly manner, and

(iii) The names and phone numbers of at least two persons associated with the Birchip Skate Group who can be contacted in the event that the facility is being used outside the designated hours.

10. Unless otherwise permitted by the Responsible Authority in writing, this permit will expire within 12 months of the date of issue of this permit. Any application to extend the life of this permit must be made before or not less than 3 months after the permit has expired.

The Responsible Authority is directed to issue a permit in accordance with this order.

Responsible Authority: Mr John Edwards, Town Planner.

Applicants for Review: Mr Ken King, Mr David Lee and Ms Janet Lee,

1. This was an application under s 82 of the Planning and Environment Act 1987 against the Responsible Authority's decision to grant a permit with respect to permit application no. A43/02. The permit application seeks permission to use and develop a skate park facility at 27 Sherwood Street, Birchip.

2. The permit application was lodged with the Responsible Authority on 15 November 2002. The Responsible Authority required notice of the permit application to be given and in response it received eight objections. Mr Edwards summarized the grounds of objection as follows in his submission:

* the potential noise nuisance the facility would create in the established residential area;

* the safety issues for young users with heavy vehicles passing through especially in harvest periods;

* the safety issues associated with elderly people using the footpaths to access the flats in Queen Street and Senior Citizens Centre close by the subject site;

* that even though the facility is only to operate during daylight hours the potential for groups of young people to gather at the site at night and to create disturbance to existing residents, and

* the potential for the facility to devalue properties in the vicinity.

"Many of the objectors agreed that the idea is in fact a good one but that the proposed location is not suitable - the facility would be best situated at the existing recreation reserve within the town [further to the north-west]"

4. Despite receiving a report from its officers that concluded that the application should be refused, the Responsible Authority decided that it would grant a permit subject to 8 conditions.

5. The application for review was filed on the 11 February 2003. The grounds of the application are set out in a letter to the Registrar dated 6 February 2003. In summary the grounds of the application relate to concerns about noise; devaluation of nearby residential properties; safety concerns due to traffic and conflicts with pedestrians using footpaths; inappropriateness of the site for the facility and the existence of other more suitable sites; the potential for the facility would become redundant and an "eyesore", and the impacts of possible future floodlighting to allow night time use.

6. The Responsible Authority and the permit applicant both filed statements of grounds contesting the application for review.

7. At the hearing, Mr Edwards tabled and spoke to comprehensive written submissions on behalf of the Responsible Authority. These submissions set out the details of the land and locality, the proposal, the planning scheme's provisions, the background to the permit application and submissions in support of the Responsible Authority's decision. In addition, Mr Edwards document contained various maps, plans and photographs of the subject land and surrounding area.

8. Mr King and Mr Lee made oral submissions for the applicants for review whilst Ms Janet Lee spoke to a short written statement which she tabled.

9. Mr Neil Davis, who is acting as the nominee for the Birchip Skate Group [BSG] and Ms Gail Sharp, the president of the BSG, made oral submissions for the applicant. The application was made in Mr Davis' name given that the BSG was not an incorporated body at the time. I understand that the application for incorporation had been prepared and was being pursued by the BSG.

10. All the submissions and other relevant matters have been considered.

11. In accordance with my advice to the parties, I conducted a further inspection of the subject land and locality after the hearing.

12. The subject land is located on the south-west corner of Sherwood Street and Queen Street, Birchip. The land is rectangular in shape with frontages of 15.5 metres and 54 metres to Sherwood Street and Queen Street respectively. The land has an overall area of about 837 square metres. The land is vacant with the previously existing dwelling having been demolished some time ago. The land is relatively flat and devoid of any substantive vegetation.

13. The Council's public outdoor swimming pool facility and parkland exist to the south of the subject land whilst a mechanical repair business fronting onto Cumming Street exists to the west. Residential uses exist to the north, on the opposite side of Queen Street and the east on the opposite side of Sherwood Street. The residential properties to the north comprise single storey units occupied by a number of elderly persons. Single storey dwellings exists on the opposite side of Sherwood Street.

14. Contextually the subject land is located at the north-east edge of the block bounded by Sherwood Street to the east, Queen Street to the north, Cumming Street to the west and Rundle Street to the south. In addition to the public swimming pool and parkland, this block contains a number of civic and community based facilities including the municipal offices, senior citizens centre, kindergarten and maternal and infant health centre. The balance of this block is occupied by commercial uses including a bank.

15. Sherwood Street and Queen Street both have relatively wide road carriageways.

16. The proposal is to use and develop the land for the purpose of a skate park facility.

17. Works on the land include the construction of a 30 metre by 12 metre concrete slab. A number of different metal skate ramps are to be fixed at various locations on the slab. Other facilities include seating, a shelter, paving and landscaping.

18. It is proposed that public use of the facility will be allowed, and accordingly, it is not proposed to provide a fence around the site. The applicant states that use of the facility would be restricted to daylight hours only.

19. Under the Buloke Planning Scheme the subject land is located within the Township zone, the provisions for which are found at clause 32.05. There are no overlay controls over the land. The purpose of the zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development and a range of commercial, industrial and other uses in small towns.

To encourage residential development that respects neighbourhood character.

20. A skate park facility such as that proposed in the application falls within the meaning of a minor sports and recreation facility. The use of the land for this purpose falls within Section 2 of the land use table to the zone. A permit is required under the zone controls for both the use of the land and for the construction of works associated with a section 2 use [clause 32.05-8]. Decision guidelines are at clauses 32.05-9 and 65.

21. The purpose of the zone and the decision guidelines require that consideration must be given to the planning scheme's policies, the orderly planning of the area and the impact on the amenity of the area.

22. In relation to policy, Mr Edwards set out the policies that are in some way relevant to the consideration of the proposal at pages 4 and 5 of his submissions. I will refer to these as appropriate.

23. After having considered the matters set out in the submissions presented by the parties, the details of the proposal and the relevant matters under the planning scheme and the legislation, it seems to me that the key issues in this matter are whether the subject land is a suitable site for a skate park facility and whether the use of the land for this purpose would result in unreasonable impacts on the amenity of the area.

24. Before turning to these matters, it is appropriate that I set out my views with respect to two other matters discussed during the course of the hearing.

25. First, there was essentially no dispute that, as a matter of principle, the provision of a recreation facility of the type proposed in this application is supported by the general thrust of the planning scheme's policies. In particular, it seems to me that the MSS, at clause 21.08 and 21.10, recognizes the importance of providing a range of facilities, services and infrastructure to assist in the development of vibrant urban centers within the shire. Developing vibrant urban centres by maintaining existing services and facilities and adding to them is integral to arresting population decline. Whilst it would be somewhat of an overstatement to say that the skate park proposed in this application would be fundamental to maintaining vibrancy in Birchip's town centre, it will none the less be a facility that will appeal to younger residents, it will contribute to activity within the town centre and therefore, will make some contribution to its vibrancy.

26. Second, during the course of the hearing, it was suggested that there may be other more appropriate locations for this type of facility. The Birchip Recreation Reserve was put forward as being one such location. Whilst there may be other suitable sites for this facility, this is not relevant to the matter that I must decide. The decision that I am required to make is whether the subject land is a suitable site for a skate park, not whether other sites are equally suitable or more suitable. There could be a number of suitable sites for a skate park, however, I cannot reject a satisfactory proposal on the basis that the facility could be accommodated elsewhere. I am limited to considering the merits of this proposal.

27. Mr Edwards advised that in coming to its decision to grant a permit, the Responsible Authority considered the various criteria set out in Sport and Recreation Victoria's guidelines on skateboard facilities. These guidelines cover a range of matters including the size, topography and orientation of the land; its location in terms of being accessible by foot, bicycle and public transport; its proximity to ancillary facilities such as toilets, telephone and first aid as well as its relationship with roads and residential areas. Mr Edwards submitted that the subject land meets the majority of the requirements set out in the guidelines.

28. I understand that Council officers, the applicant and Sport and Recreation Victoria [SRV] investigated a number of sites for a skate park facility. Mr Edwards advised that SRV found the subject land to be their preferred location for the facility. Mr Edwards went on to say that an application for funding for the development of a skate park on the subject land is currently before SRV pending the outcome of this application.

29. Mr Edwards also said that the subject land is also well located for a facility of this type given that it will be adjacent and near to a range of other community and recreational facilities and it is located within a block in the town centre devoted to municipal, recreation and business uses.

30. Mr King, Mr Lee and Ms Lee submitted that the subject land is not a suitable site for the proposed facility for a number of reasons.

31. First, they claimed that the site is too small for the proposed facility. Second, they claimed that the land is located on a "busy" intersection and this would be present danger to young persons traveling to and from the site. Third, it was suggested that there would be conflict between users of the skate park and elderly pedestrians seeking to walk to the nearby community facilities including the Senior Citizens Centre. Fourth, they submitted that the site is unsuitable given its close proximity to residential properties. Concerns were raised about disturbance due to noise, particularly at night.

32. In considering these submissions it seems to me that there are a number of factors that support the view that the subject land is an appropriate site for the proposed skate park.

33. First, the land is located within Birchip's town centre, it is accessible and near a range of other community based facilities. The land does not have a direct abuttal with residential properties, but rather, it is separated from them by relatively wide road reserves. The zoning of the land provides discretion for the use, however, it seems to me that it is appropriately located within a block which contains commercial and civic uses. The land's location within a block that contains many community based facilities and no residential uses is clearly a factor that favours the proposal.

34. Second, despite the assertions made by the objectors, it seems to me that the subject land has the capacity to accommodate a skate park of the scale proposed. Although the land is not overly large, neither is the proposed facility. The land has an area of 837 square metres. The slab that will support the various ramp modules has an area of 360 square metres which is less than half the overall site area. The balance, or more than half the land, is to be set aside for other purposes including landscaping and seating.

35. Third, the subject land has attributes that meet the majority of SRV's guidelines. SRV has identified this site as being suitable and is the "preferred" option.

36. Although the land is located on a corner and therefore abuts 2 roads, there was nothing presented that demonstrated that this is unacceptable. In particular, whilst it was asserted by the objectors that Sherwood Street and Queen Street are busy, there was no evidence presented to back this up nor was it consistent with my observations. My observations were that, in relative terms, these streets carry little traffic.

37. In my view, all of the above favours the grant of a permit for the proposal.

38. In relation to whether the proposal will cause unreasonable amenity impacts, the primary concerns raised were with respect to noise associated with the use of the metal ramps and that generated by persons attending the site. I will deal with this issue in some detail later.

39. A number of other concerns were raised concerning potential conflicts with pedestrians using footpaths, the use of floodlights, the potential for the facility to become an "eyesore" and devaluation of residential properties. On these issues, I find that:

* There was nothing presented to persuade me that the there would be unreasonable conflicts between pedestrians and persons coming to and going from the skate park.

* The application does not seek permission for floodlights. Any proposal to install floodlights and use the land outside daytime hours requires further permission.

* The land is vacant and not particularly attractive to look at now. The proposed facility will improve its appearance. Even if the facility becomes redundant, given that the land's ownership is to be passed onto the Council, I would think that the Council would be in a position to put the land to some other use.

* It is often claimed that proposals will devalue surrounding properties, however, as is usually the case, no evidence was produced to back up this often cited assertion.

40. In relation to the noise issue, Mr Davis explained that although metal ramps are to be used, the underside of the ramps are to be treated with a foam spray to reduce noise. I note that this is required by condition 8 on the Notice of Decision issued by the Responsible Authority. Mr Davis also said that it is intended to allow the facility to be used only during day time hours and not during the evening and late night period when the impact of noise is more critical. Condition 6 limits the use of the facility to daytime hours only. Mr Davis acknowledged that the facility will not be fenced and therefore it may be possible for persons who are not members of the club and who do not respect the time limit to use the facility outside the designated time.

41. Ms Sharp said, however, that most users will be aware of the time limits given that they are likely to be members of the local community and the BSG. Ms Sharp went on to say that the BSG would liaise with the local police to ensure that the curfew on the use of the facility at night is observed. Ms Sharp went on to say that the BSG is prepared to accept a permit condition setting a trial period for the use to operate so that the amenity impacts can be monitored. Ms Sharp said that if the skate park causes problems during the trial period, particularly due to noise and use outside daytime hours, then the BSG would be prepared to cease the use and find another venue.

42. I appreciate the residents have genuine concerns regarding noise. However, I cannot accept that the noise generated by the proposed use during the daytime period will be unreasonable.

43. The land is within an urban zone in Birchip's town centre. The land is located within the area where it is preferable that non-residential uses, including commercial and service industrial such as the mechanical repair centre, be located. Furthermore, there are already a number of other recreation facilities, such as the swimming pool and parkland, located nearby. These activities also have the potential to generate noise from patrons at various times. However, there was nothing put to me to say that the existence of these facilities has given rise to unreasonable amenity impacts or that they should not be located in the town centre.

44. I appreciate that this site is closer to the residential properties in Queen Street. However, it seems to me that it must be reasonably anticipated that residential properties located at the interface with the town's commercial and civic centre will be subject to different amenity impacts than those located further away. This is not to say that they should be subject to unreasonable impacts, however, on balance, I do not consider the use of this site during the daytime period as being unreasonable.

45. I do, however, consider that concerns raised about the use of the land during the more sensitive late evening/night time period have some validity.

46. Condition 6 restricts the use of the proposed facility to daytime only, however, the site will not be fenced or monitored at all times. As such, there is potential for it to be used outside of the specified daytime hours. The applicant is asking that I place a great deal of faith in the BSG and other persons using the facility to act responsibly, including using the facility within the times specified in the permit conditions. Unless it could be demonstrated to the contrary, I would accept that the use of the facility outside typical daytime hours could result in unreasonable noise and disturbance. From a practical viewpoint, it is unknown whether the time limits will be properly observed by users and regularly monitored by the BSG and the local police.

47. Despite the above, I consider Ms Sharp's suggestion that the permit be issued on a trial basis to be appropriate in circumstances such as these. If the facility causes problems, then these can be documented and considered at the time that an extension is required to the life of the permit. Essentially, it will be up to the members of the BSG and the local community to use and maintain the facility in a reasonable way and, in particular, to ensure that it is not used during the evening/night time period.

48. Having regard to all of the above, I find that the proposed use and development of the land for a skate park to be acceptable. The provision of such a facility within a block forming part of Birchip's town centre adjacent to other recreation facilities is appropriate and accords with the notion of orderly planning. There is, in my view, policy support for the provision of such a facility within one of this Shire's urban centers. The site is suitable having regard to its size and the high level of compliance with SRV's guidelines. Although the land is located opposite to residential properties, this does not make it unsuitable for the use as proposed. Rather, the consideration of amenity impacts must take into account that the site and the surrounding residential properties are located at an "interface" location.

49. My decision is that a permit is granted. The permit will however be subject to a condition whereby the permit will expire 12 months from the date that it is issued. This will allow a reasonable period for the use of the skate park to be monitored and then re-assessed by the Responsible Authority.

50. I also consider it appropriate to modify the terms of condition 6. The hours during which the skate park may be used should be set out in specific terms. The condition as its currently reads is too vague and leaves on the possibility for extended hours to be allowed on the basis of a secondary consent. The hours of operation will be generally as discussed at the end of the hearing.

51. I will also require a condition that a sign be erected on the land which sets out the hours during which the facility may be used, the need for users to behave in an orderly manner and the names and number of persons associated with the BSG to be contacted in the event that the facility is being used outside the designated hours.