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[2003] VCAT 3
appellant. The Council's decision was set aside. Under section 85(1)(a) of the Planning and Environment Act 1987, the Tribunal directed that a permit must not be granted (Order; [28]).
1 cited instrument linked from this judgment.
The Tribunal considered whether a permanent skate and BMX facility should be built on the Rye Foreshore. It accepted that the location was accessible and within a designated activity node, but regarded the proposed use as non-coastal-dependent and inconsistent with the coastal planning policies and overlay applying to the land. It also had concerns about children crossing the nearby road. The Tribunal set aside the Council's decision to grant a permit and directed that no permit be issued.
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Mornington Peninsula Shire Council proposed a skateboard, BMX and inline-skating facility on the Rye Foreshore. The Council's Recreation and Culture Department lodged the permit application on 5 December 2001. After notice of the application, the Council received six objections, including a petition ([2]). It issued a Notice of Decision to Grant a Permit on 18 June 2002 ([3]).
The Port Phillip Conservation Council Inc and individual applicants sought review under section 82 of the Planning and Environment Act 1987. Their stated grounds included inconsistency with the Mornington Peninsula Planning Scheme, inconsistency with the Victorian Coastal Strategy 2002, safety risks to users, and possible harm to coastal flora and fauna ([1], [4]). The Tribunal heard the application on 7 November 2002. Member John Bennett considered the parties' material and inspected the site and surrounding neighbourhood ([5]).
The site was zoned Public Park and Recreation and was affected by Environmental Significance Overlay Schedule 25, covering Port Phillip Coastal Areas ([8]-[9]). The proposed facility would occupy a roughly circular area with a radius of about 25 metres. It involved skate pavement, activity features, grass mounds, a refuge area, a new connecting path, seating, and replacement planting. Seven trees were to be removed ([7], [22]).
The Tribunal set aside the Council's decision. Exercising its power under section 85(1)(a), it directed that a permit must not be granted (Order; [28]).
The decisive issue was the proposal's fit with coastal planning policy. The Tribunal described the relevant policy emphasis as protecting natural ecosystems and landscapes, limiting new structures, and directing development to designated activity nodes ([11]). The Victorian Coastal Strategy 2002 was not an incorporated document in the Planning Scheme, but the Tribunal said that it had to be considered when assessing development proposals ([12]). The Strategy's hierarchy placed protection of significant environmental features and sustainable use of coastal resources ahead of suitable development on the coast ([12]).
The relevant policies did not make the activity node location conclusive. The Tribunal accepted that the site was within a designated activity node and close to Rye's commercial centre. It also accepted that the location had attributes that could suit an intensification of use ([18]). But it distinguished between being near shops and being a use that depended on a coastal location. It observed that most permanent activities on the foreshore had a relationship to coastal activities, while some non-coastal activities were temporary or informal. The skate facility, by contrast, would be a permanent non-coastal-dependent use ([18]).
The Tribunal was particularly concerned about the precedent in land-use terms of occupying foreshore space with a permanent facility. Its focus was the effect on less structured uses, including bocce playing, picnicking, cricket and car parking ([18]). It concluded that the proposal was inconsistent with planning policy, including the Victorian Coastal Strategy 2002 and Schedule 25 to the Environmental Significance Overlay ([18], [27]).
The Tribunal also addressed several other matters. It considered the site highly accessible, with shops, public transport, public telephones, toilets and other facilities nearby ([20]). But accessibility cut both ways: the Tribunal considered that the site's attractiveness for a broad range of activities made careful selection of the use important, particularly whether it was coastal-dependent ([20]).
Safety was a further concern. Point Nepean Road was close to the proposed facility, and the Tribunal identified a risk that young users might cross directly to nearby shops for food and drink rather than use a pedestrian crossing or refuge ([21]). The Tribunal's concern was based on its site inspection and observations about how young people used skate facilities. This concern formed part of its consideration of the proposal, although its stated ultimate basis for refusing the permit was the planning-policy conflict and the balance of impacts on the foreshore ([27]).
The vegetation issue did not decide the case. The Tribunal recognised the importance of older trees as habitat, but agreed with Council that the trees proposed for removal were poor specimens and considered that their removal and replacement would not be a fatal flaw ([24]). Likewise, it was satisfied that the necessary DNRE approvals had been given, notwithstanding uncertainty about which plans the Department had approved ([26]). Those findings narrowed the dispute: the outcome turned on the planning merits, not a failure to obtain the referral consent or the tree removal.
This judgment records an application of existing planning controls and policy to a specific permit proposal. It does not purport to establish a new statutory test or alter the text of the Planning and Environment Act 1987, the Mornington Peninsula Planning Scheme, or the Victorian Coastal Strategy 2002. The judgment cites no earlier court decisions and identifies no case precedent that it applies, distinguishes or overturns.
Before the decision, the Council had issued a Notice of Decision to Grant a Permit, subject to the planning process and review rights described in the judgment ([1]-[4]). Following the review, the Council's decision was set aside and a permit was prohibited by the Tribunal's order (Order; [28]).
The decision's practical reasoning is specific to the policy setting and facts before Member Bennett: the coastal setting, the overlay's decision guidelines, the permanent character of the proposed facility, and its non-coastal-dependent use ([16]-[18]). The judgment states that the Tribunal must consider the whole planning scheme afresh, even where a referral authority has granted consent under the Coastal Management Act 1995 ([17]). That observation explains the Tribunal's task in this proceeding; the decision does not suggest that referral consent is irrelevant. Rather, the Tribunal expressly placed considerable weight on DNRE's approval and its conditions, then separately assessed the proposal under the planning scheme ([17]).
The judgment alone does not establish how later tribunals or courts interpreted or applied its reasoning. No later decisions are included in the material provided, so the subsequent status or treatment of this decision cannot be assessed from this source.
At paragraph [17], the Tribunal states that it was its “task to assess the proposal afresh, taking into account the whole planning scheme”. In plain English, approval by a referral authority did not settle the separate planning merits review. The Tribunal considered that approval important, but still had to assess the proposal under the applicable planning provisions and policies.
At paragraph [18], the Tribunal says the site had “many locational attributes” for more intensive use, including being in a designated activity node and close to Rye's commercial centre. It nevertheless concluded that the proposed facility did not fit the planning policy framework. The distinction was between a location that could support intensive activity and a particular use appropriate for the coast.
Also at paragraph [18], the Tribunal explains that it was concerned about a “'permanent' non-coastal dependent facility” occupying foreshore space otherwise available for informal activities. In plain English, the Tribunal considered the development's permanence and lack of coastal dependence important, not merely the fact that it was a recreation facility.
At paragraph [21], the Tribunal identifies its concern about users crossing Point Nepean Road to reach shops. It considered that young users might not take the longer, safer route. This is a site-specific risk assessment based on the road's proximity and the location of crossing points, rather than a general finding about all skate parks.
At paragraph [24], the Tribunal says that tree removal was “not a fatal flaw in the application”. This means that, despite recognising the habitat value of older trees, it did not treat the proposed removal as the reason requiring refusal. The application failed for other reasons.
At paragraph [25], the Tribunal says the proposal had to “stand or fall on its own merits”. It did not decide which alternative site was best, because the review concerned the particular application before it.
Finally, paragraph [27] states the balancing conclusion: “the adverse impacts on the foreshore outweigh the broader need” for the facility. The order at paragraph [28] implemented that conclusion by setting aside the Council's decision and directing that no permit issue.
The judgment is most relevant, on its face, where a planning decision concerns a permanent recreational or other built facility on coastal foreshore land, and the applicable planning scheme includes policies or overlay provisions concerning coastal protection and the degree of coastal dependence. The features that mattered here included:
The decision should not be read as saying that every non-coastal-dependent recreational use on a foreshore must be refused. Member Bennett assessed the particular proposal against the particular planning scheme, overlay, policies and site conditions before the Tribunal. The reasons also acknowledged that the location was in a designated activity node and close to the commercial centre ([18], [20]). The decisive assessment was the overall fit with policy and the balance between coastal impacts and recreational need.
The road-safety concerns may be relevant to proposals with comparable proximity to a busy road and limited crossing opportunities, especially where children are expected users. However, the judgment's safety observations were tied to the Rye site's layout and crossing locations ([21]). The vegetation findings are similarly site-specific: the Tribunal found the seven trees in this proposal to be poor specimens and said their removal was not a fatal flaw ([22]-[24]).
The judgment supplied for analysis contains no references to later cases, and the provided material does not include subsequent decisions. It is therefore not possible to establish from this source whether later tribunals or courts followed, distinguished, explained, or otherwise treated the decision.
The judgment itself contains no cited judicial precedents. Its reasoning is based on the Planning and Environment Act 1987, the Mornington Peninsula Planning Scheme, the Victorian Coastal Strategy 2002, and the proposal's particular circumstances. Any account of later treatment would require later legal sources, which are not part of the material provided.
Several matters are not resolved beyond the facts and planning provisions considered in this proceeding. First, the decision does not define how much coastal dependence is required for a permanent recreational facility to be considered appropriate on foreshore land. It identifies coastal dependence as a relevant consideration and applies it to this proposal, but does not set out a general threshold ([16]-[18]).
Second, the Tribunal does not quantify the weight to be given to a site's designation as an activity node compared with other policy considerations. It acknowledges the site's location within a node, yet finds that this does not overcome the conflict arising from the facility's permanent and non-coastal-dependent character ([18]).
Third, the Tribunal describes the facility as alienating space from informal uses, but the reasons do not quantify the extent of that displacement or explain how such impacts would be measured in another proposal ([18]). The decision instead gives an overall conclusion that adverse impacts outweighed the broader need for the facility ([27]).
Fourth, the safety discussion raises questions that remain specific to the proposal: how the road-crossing risk might be assessed for users of different ages, what role the availability of food and drink plays, and how much weight any safety concern should receive alongside planning-policy considerations ([21]). The judgment does not set out a general method for assessing those questions.
Finally, the Tribunal noted uncertainty about which plans DNRE had approved, but was satisfied that the necessary approvals had been given ([26]). The reasons do not resolve the broader procedural question of what documentary clarity is required where approval correspondence refers to different or undated plans.
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Application under Section 82 of the Planning and Environment Act 1987: Mornington Peninsula Planning Scheme; Public Park & Recreation Zone; Environmental Significance Overlay; Sports and Recreation Facility - Skateboard, BMX and Inline skating
Applicants for Review Port Phillip Conservation Council Inc
Permit Applicant Mornington Peninsula Shire Council
Medium Neutral Citation [2003] VCAT 3
_____________________________________________________________________
1. The decision of the Responsible Authority is set aside. Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.
For the Applicants for Review Len Warfe for the Port Phillip Conservation Council Inc.
1. This was an application under Section 82 of the Planning and Environment Act 1987 to review a decision by the Mornington Peninsula Shire Council to Issue a Notice of Decision to Grant a Permit for construction of a sports and recreation facility including skateboard, BMX and inline skating on the Rye Foreshore, Rye.
2. The Recreation and Culture Department of the Shire Council lodged the application for permit (No. P01/2679) on 5th December 2001. Following the giving of notice of the application, 6 objections (including a petition) were received. The grounds of objection were summarised in the Council officer's report.
3. The Notice of Decision to Grant a Permit was issued on 18th June 2002.
4. The Application for Review was lodged by the Port Phillip Conservation Council Inc and others on 3rd July 2002. The Statement of Grounds were:
1. The proposal does not conform to the local provisions of the Mornington Peninsula Planning Scheme.
2. The proposal does not conform with the strategies enunciated in the Victorian Coastal Strategy (VCS) 2002, as it is a non-coastal dependent development. Other suitable sites have been demonstrated to be available. International, National and State Agreements, conventions and strategies outlined within the VCS will be dishonoured.
3. The proposal will be a safety hazard for users, mostly children under 15 years of age.
4. The proposal will compromise the flora and fauna of the local coastal environment, and disenfranchise other users of the foreshore.
5. I have considered all the photos, plans and other material presented at the hearing and have also inspected the site and surrounding neighbourhood including sites referred to in the submissions by parties.
6. I find the following description of the site and foreshore reserve, taken from the submission by Mornington Peninsula Shire Council, to be an appropriate one and confirms my observations during a site visit.
...from White Cliffs to the west, to a point about opposite the intersection of Point Nepean Road and Government Road to the east, the Rye foreshore is in a highly modified state, and is intensively developed and used for recreation. Facilities include:
* The Rye Pier, which dates back to the establishment of the Rye Township.
* A boat launching ramp and extensive boat trailer parking area (west side of the pier).
* Extensive car parking at the entry to the pier, and elsewhere along the foreshore.
* A playground and picnic area on the east side of the pier.
* The Rye Yacht Club and associated car parking area.
A bike and pedestrian path meanders through the Rye foreshore reserve and links the above facilities. In the vicinity of the subject site this path serves as a defacto boundary separating two different foreshore 'experiences'. On the one hand, the coast side of the path is more open and is relatively free of development. The south side of the path on the other hand is more intensively used and developed. Cars can access the southern area, but do not cross over the path to the north side (except at certain areas where the car parking is formalised, such as in the vicinity of the pier). ...
I noted in the introduction to this submission that the subject site is located almost opposite (slightly west of) the point at which Lyons Street joins with the Point Nepean Road. The Rye Foreshore Ranger's Office is located next to the site. I also noted that the site is roughly circular in shape (radius about 25 metres), and that the southern, western and northern limits are to some extent delineated by vegetation (including two large cypress pines on the southern boundary).
In its present state, the subject site could perhaps best be described as an informal car park area. There is a bit of grass in the centre of the site which [one] might find is a convenient place to have a car-based picnic. My choice however would be to choose a picnic site further removed from Point Nepean Road, to avoid the ever present traffic din.
The two large cypress pines which separate the subject site from Point Nepean Road are the most significant feature in the immediate area of the site. Other vegetation at the site includes a stand of closely planted Coastal Banksia (Banksia integrifolia), Norfolk Island Pine (Araucria heterphylla), and Ti-tree (Leptospermum laevigatum) and other pine species on the north-west side of the proposed site (which partly screens the site from view of the bike path). There are also several ti-trees within the site itself, which would need to be removed if the skate park is to become a reality. The value of these trees (and the other vegetation which will need to be removed) is commented upon later in this submission.
The only other noteworthy feature of the subject site is the 'stone monument' (as it is called on the site plan submitted with the application) which notes that this was the site of the original Rye Fire Station. The small brick ranger's office is also located in the vicinity of the site.
On the opposite side of Point Nepean Road is the Rye shopping centre. Lyons Street joins with Point Nepean Road directly opposite the subject site. A pedestrian crossing exists to the west of this intersection (perhaps 80 metres away). Alternatively pedestrians seeking to cross Point Nepean Road might choose to cross from the vicinity of the Post Office (south-east corner of the intersection), making use of a pedestrian refuge which is located in the centre of Point Nepean Road.
7. The following is a description of the proposal contained in the submission by Mornington Peninsula Shire Council:
...it is proposed to develop the skate park facilities within an area which is roughly circular in shape (radius about 25 metres), the southern, western and northern limits of which are to some extent already delineated by vegetation (including two large cypress pines on the southern boundary). It is proposed to reinforce these boundaries by three grass mounds which will 'in-fill' the areas between the trees. These mounds will incorporate the three ramped corners of the skate park, with 'landing areas' to be built-in at the top of each mound. Within the enclosed area, the skate pavement will be coloured to match the coastal sands. The design intent statement on the drawing states that 'The facility will appear as if it has been unearthed from beneath the grass covered sand.'
In the centre of the skate park there will be a number of activity elements, including various rails, ledges and a central 'funboxes' feature to allow skaters to test their skills. A 900mm high galvanised safety rail at the rear of all landing areas is proposed.
A 'refuge/rest area' is proposed on the east side of the skate park. This will consist of sand coloured exposed aggregate concrete (ie not friendly to skate board wheels).
The proposed design of the facility, activity elements and materials of construction conform to the 'Skate Facility Guide 2001', prepared by Sport and Recreation Victoria.
A meandering pathway (charcoal coloured concrete) is proposed to be constructed from Point Nepean Road. This will link with the existing pedestrian/bike path which passes through the foreshore reserve to the north of the site. This path will provide direct access to the skate park's refuge/rest area.
The informal gravel vehicle track which presently passes through the area will be realigned (to pass through the area between the ranger's office and the new pedestrian path). This will reduce the area through which informal vehicle movements around the ranger's office are made.
The development will necessitate the removal of seven (7) trees... . To compensate for the vegetation loss, additional planting is proposed. This will include the planting of Coastal Banksia to the south-east of the site abutting Point Nepean Road, to the west of the site (which will screen the skate park from the car park area located further west), and at the north-east corner of the site adjacent to the new pedestrian path.
Other facilities to be provided include seating, and a steel drinking fountain and steel/timber rubbish bins. The stone monument which commemorates that this site is the former site of the Rye Fire Station will be retained (within the pedestrian refuge area).
8. The subject site is zoned Public Park and Recreation Zone under the Mornington Peninsula Planning Scheme.
9. The land is also affected by an Environmental Significance Overlay - Schedule 25 (Port Phillip Coastal Areas).
10. In addition, other Clauses of the Planning Scheme relevant to consideration of the Application include:
s State Planning Policy Framework - Clauses 12 (Metropolitan Development - Draft derived from Melbourne 2030), 14 (Settlement), 15.08 (Coastal Area), 15.09 (Conservation of Native Flora and Fauna) and 19.03 (Design and built form)
s Local Planning Policy Framework - Clauses 21.04 (Mornington Peninsula Strategic Framework Plan), 21.06 (Strategic framework and the Peninsula's settlement pattern) and 21.08 (Foreshore and Coastal Areas).
s General provisions - Clause 65 (General Decision Guidelines)
Planning Policy Frameworks including the Victorian Coastal Strategy
11. The emphasis of policy in relation to coastal areas in the State and Local Planning Policy Frameworks is the protection of natural ecosystems and landscapes, limiting the number of new structures and focussing any development to designated activity nodes. Clause 15.08 has as its objective in coastal areas:
to assist the protection and maintenance of significant environmental features and sustainable use of natural coastal resources.
12. The Victorian Coastal Strategy 2002 is the State Government policy statement for coastal areas, and although not an incorporated document in the Planning Scheme, individual provisions require that it must be considered when assessing any development proposals. The original Victorian Coastal Strategy was reviewed and a new strategy released in January 2002. The 2002 Strategy is firmly based on the concept of Ecologically Sustainable Development (ESD) and a hierarchy of four principles are prioritised to guide decision making:
* protection of significant environmental features,
In order to achieve the strategic vision, objectives and actions are then grouped into 6 major themes
13. Of these theme groups, the most relevant in the consideration of the skateboard facility concerns the built environment and coastal infrastructure. Detailed guidance on design is provided in the document Siting and Design Guidelines for Structures on the Victorian Coast. Suitable development on the coast will generally be coastal dependent or related to coastal dependent uses. Council submitted that:
The Victorian Coastal Strategy also provides guidance on where development is appropriate and the principles which should be observed when developing coastal land. The 'Siting and Design Guidelines for Structures on the Victorian Coast' and 'Landscape Setting Types for the Victorian Coast' set out a prescriptive guidance on built and structural design. The subject site is part of the classified Urban/Semi urban foreshore area as classified by the 'Landscape Setting Types for the Victorian Coast'. It is considered that the proposed development satisfies the special considerations outlined by this landscape type, particularly the criteria of siting and design of structures.
As per the 'Siting and Design Guidelines for Structures on the Victorian Coast' and 'Landscape', it is considered that the proposed development meets the general principles for Coastal and Marine Management and Design.
The proposed development thus has regard to and is consistent with the Victorian Coastal Strategy 2002.
14. In contrast, the Port Phillip Conservation Council submitted that the proposal is completely contrary the Victorian Coastal Strategy 2002, Siting and Design Guidelines for Structures on the Victorian Coast 1998 and Landscape Setting Types for the Victorian Coast 1998. The Conservation Council submitted that:
Clearly it IS possible to place this facility elsewhere. It is in NO WAY coastal dependent, nor even dependent on location within a retail zone.
PPCC Inc contends that the VCS and its underpinning documentation provides ample evidence to guide a decision-maker not to place this proposal in a coastal location.
PPCC Inc contends that the Development Planner has ignored the most basic principle of the VCS: that coastal development should be coast dependent
15. In relation to local policy, Mr Newman and Mr Warfe referred me to Clause 21.08 - Foreshore and Coastal Areas and the two objectives and specific strategies designed to achieve the objectives. These include preventing the further removal or degradation of indigenous vegetation outside designated activity nodes, limiting new structures on the foreshore to designated activity nodes, avoiding the construction of additional structures on the foreshore except where substantial net benefits exist for the community and/or coastal environment, encouraging pedestrian access and connections within foreshore areas provided no threats are caused to fragile coastal environments, and encouraging a range of services and activities to enhance the recreational use and enjoyment of the coast by the community in selected activity nodes.
16. The Environmental Significance Overlay Schedule 25 includes a statement of environmental significance identifying the Port Phillip coastal area and adjoining offshore areas as containing some of Victoria's most significant cultural and natural features. Objectives include the protection and enhancement of natural features, vegetation, ecological diversity, landscape quality heritage values and recreation opportunities, promotion of excellence in design for buildings, facilities and structures, and coordinated management. Decision guidelines include the environmental objectives of the schedule, the existing use and development of the land, the degree to which the proposed development is dependent on a coastal location, whether the proposal is likely to cause deterioration through erosion or deposition of sand or silt or any other reason, and the contents of the Victorian Coastal Strategy and related documents referred to previously in paragraphs 12, 13 and 14 above.
17. The overlay also requires referral to DNRE and Parks Victoria. I refer later in my decision to the actual process of referral and to concerns raised by respondent objectors about the responses from DNRE. In relation to DNRE's approval of the facility under the Coastal Management Act 1995, I have placed considerable weight on this approval by the referral authority and to the conditions contained in the Consent dated 15th February 2002. However, it is my task to assess the proposal afresh, taking into account the whole planning scheme including state and local planning policy frameworks and the specific provisions of zones, overlays and other clauses.
18. Having considered that broader planning framework, including State and Local policy frameworks, the Victorian Coastal Strategy 2002 and related documents, and the specific planning scheme provisions such as those contained in Schedule 25 of the Environmental Significance Overlay, I am of the opinion that the proposal to construct a skateboard, BMX and in-line skating facility on the Rye foreshore is not consistent with planning policy. The site has many locational attributes that make it suitable for an intensification of use beyond its present use for informal car parking and associated passive recreation. The site is within a designated activity node and close to the heart of the Rye commercial centre. Despite this 'prime' location, the Rye foreshore contains remarkably few non-coastal related activities. Most, including parking areas and the yacht club, are related to coastal activities and even the Scout and Guide Hall has some relationship to the coast in terms of the water related activities undertaken by the scouts and guides. Activities which don't have a coastal focus (such as the annual carnival) are relatively short lived and do not have a permanent impact on the coastal environment. Mr Verrocchi made a submission concerning the use of the site on an informal basis for bocce playing. While this activity is not coastal dependent, it is occurring on an irregular and informal basis without the need for permanent facilities. In making my decision I have been more concerned about the impact of approving a 'permanent' non-coastal dependent facility on the foreshore - one that will alienate some of the foreshore for less structured uses such as bocce playing, picnicking, cricket, car parking and the like.
19. My consideration of planning policy and guidelines relating to coastal development has caused me to find against the proposal. However, for completeness I also consider the more specific matters raised in written submissions by parties. These include the availability and proximity of support facilities, safety for users, impacts on flora and fauna and alternative sites and selection process.
Support facilities such as shops, public transport, public telephones
20. In relation to support facilities, submissions made reference to the relative merits of the various sites assessed by Council and in a particular, the checklist of features for each site. In relation to the review site, my inspection confirmed that it has excellent support facilities in terms of shops, public transport, public telephones, toilets and other related facilities. The site is near the heart of the main shopping centre and very accessible and convenient for users. The site is currently used for car parking and for informal activities such as picnicking and bocce playing and reflects its high accessibility and close proximity to shops and other facilities. It is this high accessibility that makes the site attractive for a potentially wide range of uses but it also means that any use be carefully selected on the basis of it being coastal dependent.
21. Apart from policy issues referred to previously, the safety of users was a major concern to DNRE, the Port Phillip Conservation Council, Mr Verrocchi, Mr Pratt, Ms Warfe and Mrs Wood.. My inspection confirmed the very close proximity of Point Nepean Road to the proposed facility and the lack of convenient and safe crossing points between the site and the shops on the south side. Although safety fencing can be erected between the facility and the road carriageway located just 4 metres away, my greatest concern is for users crossing the road to buy drinks and food. Having observed other skateboard facilities, it is clear that users value a location close to a milk bar/ takeaway food shop where drinks and food can be bought at random while using such a facility. My observation of young children using such facilities (particularly young teenage males) is that they will take the shortest route to reach food and drink. While adults may be prepared to use the pedestrian crossing located about 80 metres to the west, or even the pedestrian refuge opposite the Post Office (which I found very intimidating when I used it), I have no confidence that young users of the skateboard facility will be so patient - or so responsible. I note that the Victoria Police (quoted in the Assessment of Potential Locations for a Skatepark Facility in Rye) were concerned about locating such a facility on the foreshore towards White Cliffs because of it being too close to Point Nepean Road. Although the foreshore near the Rye Pier is wider than near White Cliffs, the particular site chosen by Council is very close to Point Nepean Road and demonstrates the same safety limitations as do alternative sites located just as close to Point Nepean Road to the west.
22. A total of seven trees are to be removed as part of the development and new replacement planting undertaken to screen the development. The Port Phillip Conservation Council and other respondents were concerned at the removal of this vegetation and disagreed with Council's assessment that they were not considered significant specimens. The Conservation Council submitted that:
Older indigenous vegetation provides essential habitat and food source for many threatened and vulnerable species. Without mature vegetation, which may appear to be in poor condition to the 'sensitive human eye', we would remove the habitat of many of our valued species. When we remove old trees we are contributing to the continued depletion of our environment and moving yet further away from the principles of a sustainable environment.
The proposed removal of ti-tree species and one Coast Beard Heath is considered reasonable in the context that these particular trees do not form part of a significant habitat for native flora and fauna, or conservation area. As assessed by the Shire's Vegetation Officer, most trees are in average to poor health and structure and are not noteworthy specimens.
24. My inspection confirmed the generally poor quality of the existing trees (particularly the group in the centre of the site surrounded by a gravel parking area). I agree with the Port Phillip Conservation Council about the importance of retaining older trees for habitat purposes and I also recognise that coastal vegetation such as Ti-trees often appears very 'scrappy' with multiple trunks and a windswept and gnarled appearance. However, in this instance I agree with Council's assessment that the trees are very poor specimens and consider that their proposed removal is not a fatal flaw in the application before me. I consider that their removal and replacement with young specimens would in the longer term improve the flora and fauna habitat in this location but as noted elsewhere, I am rejecting the application for other reasons.
25. Council and the respondent objectors each provided me with an overview of the site selection process and outlined the various sites that were considered prior to Council deciding to seek approval for a facility on the site being considered in this Application. While I found this background information of general interest, it is not my task to assess a range of site options and I am only required to consider the merits of the proposal before me. In other words, this particular proposal has to stand or fall on its own merits.
26. Concerns were also raised by objectors about the referral process involving the Department of Natural Resources and Environment and whether the Department (on behalf of the Minister) had properly given its written consent for the use or development of crown land. While the correspondence between the Department and Council does seem very complex, I am satisfied that the necessary approvals have been given by the Department although I also accept that there is some uncertainty as to which plans have been agreed to by DNRE because the two sets of different plans do not have any distinguishing dates and notations. However, I do note that in DNRE's letter to Council dated 20th May 2002, that approval is given for a variation in the siting of the facility to a location approximately 12 metres west of the Rangers Office.'
27. In making my assessment of the proposal I have weighed up the various competing factors concerning the balance between providing recreation facilities and protecting the coastal environment from inappropriate and non-coastal related development. I have found that the adverse impacts on the foreshore outweigh the broader need for a new skateboard, BMX and in-line skating facility. I find that providing such a facility in this location is inconsistent with State and Local Planning Policy Frameworks and in particular is contrary to policy contained in the Victorian Coastal Strategy 2002 and in Schedule 25 of the Environmental Significance Overlay.
28. Accordingly, I will Order that the decision of the Responsible Authority be set aside and that no permit issue.
Port Phillip Conservation Council & Ors
Mornington Peninsula SC [2003] VCAT 3
The Council's decision was set aside. Under section 85(1)(a) of the Planning and Environment Act 1987, the Tribunal directed that a permit must not be granted (Order; [28]).