Ms A Fraser and Mrs C Hunter on behalf of the Maroondah Residents & Ratepayers Association Inc.

Mr J Rantino, solicitor of Maddocks Lawyers. Evidence was called from:

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Ms D Childs, Manager Leisure, Culture and Youth Services, Maroondah City Council.

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Senior Constable L Hancock, Crime Prevention Officer, Victoria Police.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by the Maroondah Residents & Ratepayers Association Inc. ("the Association") seeking review of a decision made by the Maroondah City Council ("the Council") to determine to grant a permit in permit application no. M/2004/931. A Notice of Decision was issued on 15 December 2004. The Application was lodged on 10 January 2005.

2 By an order dated 24 January 2005, Deputy President Gibson granted leave to amend the name of the Applicant as well as for the Association to apply for this review. She also gave directions for "further and better particulars of the grounds of review upon which it intends to rely and which are relevant" to be filed and served by the Association, which was completed.

3 The review site is part of the Staley Gardens, a triangular shaped park located on the north side of Seymour Street within the Ringwood Activity Centre. It is owned by the Council, having been donated by Mr Staley more than 50 years ago. The Gardens have an area of nearly 0.6 hectare and slope down to the west. Several facilities are located within the attractively landscaped setting, including a rotunda, seating and a small playground. The site for the proposed skate park is at the western, or lower, end of the Gardens and is adjacent to car parking areas on its western and northern sides. The Ringwood Market also abuts the land to the north.

4 It is proposed to develop the review site for a skate park designed for use by skateboard riders and BMX bike riders ranging from beginner to intermediate skill levels. The facility would have an area of approximately 795 square metres. The concrete skate park would comprise a number of design features including a 1.8 metre high elevated section with a "spine bowl", "street course" including stairs and ramps, as well as blocks and rails. The plans refer to signage, seating and a bike rack. One tree would be required to be removed and some new landscaping is proposed. Fencing to 1.2 metres in height is proposed to the west and north to limit direct access to the car park with setbacks from the car park 5 metres to the west and 10 metres to the north. No floodlighting is to be installed. A dedicated path from the eastern end of the Gardens to the skate park is proposed.

5 A draft Management Plan formed part of the application material. I understand from Ms Childs' evidence that events and some competitions may be programmed for the venue by the Council and options for hiring the proposed facility for events are also being explored.

6 The subject site is zoned Business 1 under the provisions of the Maroondah Planning Scheme ("the Scheme"). A Development Contributions Plan Overlay applies to the land. The provisions of Clauses 15, 17.01, 18 and 19.03 (State Planning Policy Framework), Clause 21 (Municipal Strategic Statement), 22.07 (Ringwood District Centre Development Policy), 22.15 (Ringwood Town Centre Development Policy) and Clause 65 (general decision guidelines) have been taken into account. I was also referred to the Ringwood Transit City Urban Design Masterplan (August 2004) and Maroondah 2025 - A Community Planning Together, adopted by Council.

7 I have considered the submissions presented with the benefit of having inspected the subject site and locality after the Hearing. I do not recite all of the material presented by the parties, as the written submissions tendered are retained on file, although I do refer to some of the main points. I set out my findings in relation to the key issues raised by the Applicant having regard to the policies, objectives and decision guidelines of the Scheme.

8 It is necessary to address is the ambit of discretion in this Application. The proposal was characterised by the Council for the purposes of the Planning Scheme as "leisure and recreation". That definition as set out at Clause 74 of the Scheme is "Land used for leisure, recreation, or sport". The definition includes "minor sports and recreation facility" which is:

Land used for leisure, recreation, or sport, without substantial provision for spectators, and which is usually open to non-paying spectators.

9 Mr Rantino referred me to my discussion of the definition of a skate park in St Mary's School v Greater Shepparton City Council [2004] VCAT 1440. In that case, I categorised a skate park/BMX bike facility as "informal outdoor recreation". That definition as set out at Clause 74 is:

Land open to the public and used by non-paying persons for leisure and recreation, such as a cycle track, picnic or barbecue area, playground, and walking or jogging track.

10 As I said in St Mary's School[1] while a skate park is not specified in the definition of informal outdoor recreation, the facilities that are cited such as a cycle track or playground could be likened to a skate park in so far as a structure or "furniture" is erected and provide a facility upon which people can freely and casually play or recreate with no payment. While some seating may be available for spectators, that is a small adjunct to the facility and occasional organised events/training would also be ancillary.

11 The definition used by the Council for its assessment of the current proposal, ie. "leisure and recreation", is broader than "informal outdoor recreation". I do not think that the categorisation is plainly wrong although the more specific would be preferred and I think that informal outdoor recreation is more apt than minor sports and recreation facility. In St Mary's School, I observed that different categorisations of use had been adopted in different proceedings before the Tribunal[2] and the current case again shows that there can be differences in interpretation as these facilities do not always readily fit into a Planning Scheme definition.

12 The relevance is that "informal outdoor recreation" is a Section 1 use whereas "leisure and recreation facility" is a Section 2 use for which a permit is required. If the former categorisation was adopted, then some of the matters that are of concern to the Association may not be within the ambit of my discretion to consider. That would be because the use of Staley Gardens for a skate park would not be open to debate, only issues relating to buildings and works for which a permit would be required.

13 For the purpose of this review I will rely on the definition adopted by the Council given that its position is arguable and mindful that the proposal was advertised and assessed as a "leisure and recreation facility". In doing so, I am taking a similar approach as in St Mary's School where I adopted a "not overly legalistic" position thereby enabling the School's concerns relating to buildings and works to be considered. Thus, I will make findings on all issues raised in the Association's submission both in terms of the use of the land and the development of the proposed facility.

14 The Association submitted that the review site is not suitable for the proposed skate park because:

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the Ringwood Transit City Urban Design Masterplan designates the area, including the Staley Gardens, for redevelopment to 4-6 storeys;

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the proposed facility is too small, being much less than referred to in the State Government's Skate Facility Guide, and will not be used by both bike riders and skaters;

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it is too close to the Ringwood Market and Ringwood Square Shopping Centre that are preferred by many elderly shoppers, including people arriving by bus from retirement villages.

15 In considering these submissions, and the Council's response to them, it must first be said that there is no debate between the parties that a skate park is needed or desired within the Ringwood area. Indeed, the Association forwarded a petition to the Council in 2001 requesting that an additional "skating facility be built on the western side of Maroondah" and offering to participate in a working party. As I understand it, a working party was established, without the Association specifically being invited to become a member, and consultation proceeded based on Ms Childs' evidence. Part of the reason for this appeal, it seems, is a concern by the Association that it has not properly been consulted. I have not sought to explore that as it is a procedural matter that is not open to this Tribunal to review when assessing the planning merits of the proposed facility.

16 The proposal is not contrary to the policies for the Ringwood District Centre that are included in the Scheme. These are the policies that must be given greatest weight in reaching my decision. I accept that the review site is within an area designated for "core retail sales" (complementary office/residential/leisure/community) at a "medium scale (4-5 storeys)" in the Ringwood Transit City Urban Design Masterplan[3]. That is a document that can be considered as an adopted Council policy pursuant to Section 60(1)(b)(ii) of the Act but does not carry the same weight as the Scheme.

17 Thus, although Staley Gardens and/or land in its vicinity may be redeveloped at some time into the future, I am not persuaded that the proposal can be rejected because of the Council's long term plans for the Ringwood Transit City. The proposed use is consistent with the land use outcome sought, being a leisure/community use within the core, and importantly would not result in a development outcome that would undermine or jeopardise the long term vision or goals. In addition, the facility is of a form that is suitable given that Staley Gardens is an existing public open space mindful that the Council owns the Gardens and will be in a position to include its land in long term redevelopment options for the Centre and plan for an alternative site for the skate park should it wish.

18 The size of the proposed facility accords with others that have been proposed or erected[4] although it would be significantly less than 3,000 square metres, a figure that is referred to in the Skate Facility Guide as "an average size for a small street skate park"[5]. The Guide recognises that the size of facilities may be determined by budget considerations, which Mr Rantino said is a factor here. While the proposed skate park may not be suitable for, or attractive to, all skaters or bike riders (such as those at an advanced skill level) that is not a reason to reject the current design and site. The site selection and design process has been undertaken by those with knowledge and expertise in this specialised field and there is nothing of substance before me to enable me to reach a conclusion that the layout or location is flawed, even though the facility will not appeal to or be used by all for whom it could cater.

19 Conflict between bike riders and skaters was raised as a related matter, with the potential for incidents, but again I am unable to conclude that the proposal is not acceptable even though disputes could occur from time to time. Usually these types of matters are resolved between those at the facility and the draft Management Plan endeavours to set some protocols to assist with monitoring and management in this regard.

20 The review site is close to the Ringwood Market and Ringwood Square Shopping Centre. I appreciate that there are elderly shoppers using these facilities and that young people travelling at a perceived or actual pace on a skateboard or bike can be worrying to pedestrians including older people. I also expect that the number of people in the area will increase as retail facilities are occupied/upgraded. Having viewed the area, I am satisfied that adequate sight lines are available for both pedestrians and users of the skate park. The dedicated skate path (requiring signage) will assist to provide some degree of separation. It is readily conceded that one cannot guarantee that an accident would not occur but the facility is designed in a manner that does not give rise to obvious safety risks.

21 In addition, a skate park within the retail core has the potential benefit of providing a facility that is readily accessible to young people already in the area thereby reducing the extent to which illegal skating occurs throughout the centre. This is a positive outcome upon which Ms Childs and Senior Constable Hancock made specific observations.

22 The loss of green space for the community was a matter mentioned in the statement of grounds filed with the Application for Review. The proposal would change the recreational use of part of the Gardens from passive to active and also modify the visual appearance of the Gardens. I am unable to conclude, however, that such an outcome is unacceptable.

23 The Applicants expressed concern about the location of the review site for the proposed skate park given the need for young people to cross heavily trafficked roads when coming from the Station or moving around the Ringwood Activity Centre. In response, I note the evidence of Ms Childs in relation to a skate-safe program and the proximity of pedestrian lights and access routes to the review site.

24 The site is centrally located and is accessible to public transport as well as controlled or designated crossing facilities. As I have already alluded to, it cannot be concluded that accidents might not occur as there may be instances when, for example, road users do not take care, skateboard riders take risks or pedestrians/riders do not cross at designated points. However, the proposed facility is proposed to be sited in a position that offers safe movement options. It is the responsibility of road users, whether drivers, skateboard riders, cyclists or pedestrians, to exercise due care and courtesy. I note concerns about the impact of construction vehicles when the Ringwood Market and other sites be redeveloped but my finding remains the same.

25 The Association referred to the limited access to toilet and telephone facilities once the Ringwood Market and Ringwood Square Centres are closed. Hours of operation for these centres referred to by the Applicant show that the Market is closed after 1pm on Saturday and all day Sunday, while the Square closes at 5pm on the same days. The concern raised by the Association is that the absence of available facilities would result in the need for users of the skate park to access toilets elsewhere, causing them to travel on heavily trafficked roads.

26 Although mobile phones may well be available to assist in relation to emergency phone access and signage is proposed to advise users of the nearest facilities, the closest would be closed at times when the skate park could be expected to be used. I am not persuaded that this warrants rejection of the permit application, but it does require further consideration by the Council; the body that usually deals with the planning and development of facilities such as public conveniences. There could be potential to seek the installation of an additional public telephone outside existing buildings and that could be pursued with the relevant service provider. The need to cross additional roads is not, in my view, sufficient reason to find the site inappropriate.

27 The application plans show one sign and the Association referred to the need for additional signage associated with the proposed path. I agree with that suggestion. The implementation of signage is important in terms of identifying the presence of the facility for potential users and others in the area. The draft Management Plan refers to signage at the facility, including warnings and conditions of use, but the need for navigational signage in the wider area (that can also serve to alert other users to the facility) should be explored. It is a matter that can be addressed through the Management Plan that is required by Condition 10 on the Notice of Decision.

28 No floodlighting is proposed as the facility is intended for daylight use only. That does not prevent people from seeking to use it at night and there is existing lighting in the Gardens and nearby car parks that may be sufficient for this purpose (for some). This is a management issue for the Council and a matter that can be monitored through the Management Plan.

29 The Association strongly supports the development of a skate park and I appreciate that its concerns about the proposed facility are genuinely held. However, I am not able to find in favour of the grounds advanced or to conclude that the skate park should be rejected in its proposed location. I will therefore affirm the decision made by the Responsible Authority.

[3] At Figures 3 and 4 of the Masterplan.

[4] For example, refer description of proposals in Ryan v Campaspe Shire Council [2000] VCAT 263 and King and Others v Buloke Shire Council [2003] VCAT 899.

[5] Skate Facility Guide 2001, Sport and Recreation Victoria at page 47.