Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 2379

In permit application no. 231/2007, the decision of the Responsible Authority is varied. A permit is granted for the land at No. 72 Fitzroy Street, St Kilda (Albert Park Reserve). The permit will allow the development of a skate park in accordance with the endorsed plans. The permit is subject to the following conditions:

1. Before the development starts, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans dated 18.01.07 (reference no. 63014_DD_01 Rev 1) but modified to show:
   • (a) Retention of all existing trees.
   • (b) Details of measures to be undertaken to ensure the maintenance and protection of the retained trees, as prepared by a qualified arborist.
   • (c) Provision of water fountain(s) including the location and design.
   • (d) Provision of shade clothes/structures including the location and design.
   • (e) Details of signage.
   • (f) Details of landscaping.
   • (g) Details of lighting that should be limited to prevent skateboard, in-line skate or BMX bike use after dark.
2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
3. Before the skate park commences operation, all landscaping must be planted to the satisfaction of the Responsible Authority. It must then be maintained to the satisfaction of the Responsible Authority.
4. Organised competition must not occur on more than two occasions per calendar year unless with the consent of the Responsible Authority.
5. Before the skate park commences operation, a management plan to the satisfaction of the Responsible Authority and Parks Victoria must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Three copies of the plan must be submitted. The plan must be generally in accordance with the plan prepared by Convic Design Pty Ltd "St Kilda Skate Facility Maintenance and Management Guide Final Draft" received by the Responsible Authority on 13 March 2007 and must include (but is not limited to):
   • (a) Hours of operation;
   • (b) Maintenance regime;
   • (c) Measures to address vandalism, graffiti, waste management and noise emissions;
   • (d) Signage;
   • (e) Measures to manage behaviour including security/surveillance for a minimum of 18 hours per week;
   • (f) Risk management;
   • (g) Injury management;
   • (h) Education programs;
   • (i) Monitoring of the facility and implementation of the management plan.

The management plan must be implemented to the satisfaction the Responsible Authority. The management plan must not be modified unless with the consent of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not commenced within two (2) years from the date of issue of this permit.
   • (b) the development is not completed within four (4) years from the date of this date.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Ms S Brennan of counsel instructed by Ryan Commercial Lawyers.

Expert evidence was called from Mr P Soding, town planner.

• Ms S Knight, Principal, St Kilda Park Primary School.
• Mr D Myer, President, St Kilda Park Primary School Council.
• Mr R Laird, President, St Kilda Cricket Club.
• Mr M Eidelson, President, St Kilda Historical Society.
• Mr R Wyndham, President, Fitzroy Street Traders' Association Inc.
• Mr R Yates, Principal, Monbulk Primary School.
• Ms S Stephen, former President, St Kilda Park Primary School Council.

Statements by two other witnesses were filed and sought to be relied upon but they were not called (Ms C Tempany, Principal, Yarraville West Primary School) and (Mr J Mylonas, Chairman, St Kilda Sports Club).

Expert evidence was called from Mr A Biasci, town planner, Mr P Lovell, heritage architect, and Ms S Jeavons, recreation consultant. Evidence was also called from Ms S Marino.

Mr J Lynn, solicitor of Blake Dawson Waldron lawyers for the Melbourne Cricket Club and Cricket Victoria.

1. Proceedings have been brought by five parties opposing a proposal by the Port Phillip City Council ("the permit applicant") to construct a stake park within the Albert Park reserve, close to the intersection of Fitzroy Street and Lakeside Drive. These parties are seeking review of a decision by the Port Phillip City Council ("the Responsible Authority") to determine to grant to a permit for the skate park.
2. Many matters are in dispute between the parties, from the principle of siting a skate park in this location, to the extent to which support facilities are available, and the impact of the proposal on Albert Park and those associated with properties nearby. The extent to which the Tribunal may deal with all of the concerns raised by the Applicants is linked with its determination as to the appropriate categorisation of the proposal for the purposes of the Port Phillip Planning Scheme.
3. Having considered all written and oral submissions, the Tribunal has decided to vary the Council's decision for reasons that follow. This decision been reached with the benefit of inspections of the site, the wider locality and numerous skate parks referred to in submissions and evidence.[3]

1. The review site is open parkland with several trees located on the north-west corner of Fitzroy Street and Lakeside Drive. The area of the skate park/plaza is approximately 728 square metres set within a larger space taking into account other components described below.[4] The Tribunal was advised that this corner of Albert Park was more heavily vegetated with mature elms until storms caused tree damage. In addition, there was a lodge in the vicinity of the site until the late 1960s and army barracks until the 1970s. The area is now used for passive recreation with several pathways to its west.
2. The St Kilda Park Primary School is to the west of the review site, with a car park. The St Kilda Bowling Club is to the south of the Primary School. Both of these facilities are within individual Heritage Overlays.[5]
3. The Ian Johnson Oval (No. 1 Oval) is to the north-west of the review site including the Holdsworth Pavilion. It is used for informal recreation and sport by the Primary School. It is also used by sporting clubs for cricket training and matches and other activities. It has turf cricket wickets.
4. To the east and north-east of the site are Lakeside Drive, passive open space and the Junction Oval. To the south/south-east are buildings fronting the opposite side of Fitzroy Street. These comprise a wide range of uses including a hotel on the corner with Princes Street, a church and housing on the other corner with Princes Street, offices, properties with ground levels cafés/bars and residential uses above, and backpackers.
5. Fitzroy Street is serviced by trams and the light rail runs to St Kilda Station. Ornamental tramway poles are also within a Heritage Overlay as are some buildings along Fitzroy Street.[6] There are public toilets at the St Kilda Station as well as the Holdsworth pavilion.
6. Albert Park is managed by Parks Victoria ("PV"). The Council has entered into a lease with PV for the land associated with the skate park. A copy of the tenancy agreement was provided to the Tribunal.

1. The Respondent seeks approval to develop a stake park that comprises a skate bowl (1.2 metres deep) set in a three level skate plaza of red concrete.
2. The north, west and south sides of the skate bowl would be surrounded by an embankment planted with native grasses and Yellow Box. The embankment would be contained by a folded wall with a feature pavement treatment. It would rise to a maximum of 3 metres above natural ground level. Two entrances are proposed along Lakeside Drive ramping into the facility.
3. A refuge area would provide seating, bike racks, bins and drinking fountains. Some of the details of these facilities are not shown on the plans but instead cited in the material before us.[7] Low level security lighting is intended although the facility would only be available during daylight hours. No fencing is proposed. Signage is intended and described in some of the material before us[8] but there are few details shown on the application plans. There are no details of shading devices. No existing trees are proposed to be removed.
4. A draft management plan prepared by Convic Design Pty Ltd was submitted with the permit application together with a planning submission and comment on heritage issues[9] and an arboricultural assessment.[10]

1. The review site is zoned Public Park and Recreation under the Port Phillip Planning Scheme. The permit requirements applying under the Zone are in dispute as discussed below. A permit is required for buildings and works under a Heritage Overlay (Schedule 3 - South Melbourne, Albert Park, Middle Park and part St Kilda).[12] This is not in dispute.

How should the proposed skate park be categorised for the purposes of the Planning Scheme?

1. The Tribunal must consider how the proposal is defined for the purposes of the Scheme to then decide whether a permit is required for use and/or development under the Public Park and Recreation Zone (Clause 36.02).
2. Mr Pitt SC submitted the proposal is defined as an "informal outdoor recreation facility" relying on the Tribunal's findings in Maroondah Residents and Ratepayers Association and St Mary's School.[13] He also argued the proposal is being undertaken by a public land manager and satisfies the buildings and works exemption under Clause 36.02. Thus, he said the only permit trigger available to the Applicants is via the Heritage Overlay. That position was put despite:
   • the Tribunal's order [Deputy President Dwyer] on 17 August 2007:

A declaration is made under s149B of the Planning and Environment Act 1987 that Port Phillip City Council is not a 'public land manager' of the land at 72 Fitzroy Street, St Kilda for the purpose of planning application 231/2007 for a skate park on the land.[14]

• the permit applicant and Responsible Authority, through Best Hooper solicitors, advising the Applicants that a permit would be required for use and development[15].

1. In support of Mr Pitt's position, opinions expressed by Ms Jeavons are noted by the Tribunal as to the nature of activities associated with a skate park. Her view was the facility would operate informally rather than on an organised basis (other than a few events per year). From a recreational planning perspective, she regarded "sport" as a subset of "recreation".
2. By contrast, Ms Brennan submitted a planning permit is required for the proposed use because it cannot be categorised as "informal outdoor recreation". She based her submission on the following main themes:
   • skate board riding and skating is a sport identified by relevant authorities and extensive documentation she tendered (including the Skate Facility Guide[16], the tenancy agreement with PV, and the Albert Park Future Directions Plan[17]).
   • the skate park does not fit the "informal outdoor recreation" definition_._
   • there are not necessarily elements of competition and organisation in the dictionary definitions of "sport" as distinct from recreation.
   • categorisation in previous cases has varied; in all but one (St Mary's School) a skate park has been a use requiring a permit and, despite that categorisation the Tribunal went on to consider matters such as safety, anti social behaviour, access to policing and duty of care.
   • the extent of infrastructure and activity involved in the skate park is consistent with the requirement that a use permit be obtained; the proposal has more in common with recreational activities identified in the Zone requiring a permit than it does with a children's playground.
3. Ms Brennan strongly argued that it is inappropriate and would be wrong for the Tribunal to review the declaration made by the Tribunal, as she said Mr Pitt had sought to do by claiming the Council is a public land manager and entitled to a permit exemption under the Zone for buildings and works.
4. Mr Lynn agreed with Ms Brennan that a skate park is best defined as a sporting activity and he said fits best within the definition of "minor sports and recreation facility". He also relied on text from the Skate Facility Guide and the extent of area made available for spectators in the proposal.
5. Having reviewed the decisions referred to by the parties[18], it is plain that the Tribunal has accepted various definitions for a skate park under the provisions of Clause 73. However, those decisions do not indicate that the categorisation of the use was debated in the context of the Tribunal's ambit of discretion. That is, the definition used in the permit application and/or adopted by the responsible authority seems to have been uncontroversial, possibly because it enabled all of the matters of concerns to the Applicants to be considered by the Tribunal. In addition, facilities can vary and thus different definitions may be warranted dependent on the facts of the case.
6. The exceptions seem to be St Mary's School and Maroondah Residents and Ratepayers Association, which as noted were heard and decided by the same presiding member as the current proceeding. In these two cases, the Tribunal considered the appropriate definition for the proposed skate park facilities. The Tribunal said it wished to take a liberal approach to allow the appellants' cases to be heard and decided. Importantly, that approach was not challenged by the responsible authorities/permit applicants who pragmatically sought a cautious approach and/or the ability for third parties to have their cases ventilated. In those cases, the Tribunal accepted the definitions used in the permit applications and public notices.
7. The current proposal was advertised as "buildings and works for the purpose of a skate park and urban plaza". The planning submission describes it as intending "...to fulfil a dual purpose, providing both a recreational facility as well as a contemporary urban plaza to augment the passive recreational use of this portion of the Park".[19] The debate before the Tribunal focused on the intended use for a skate park rather than the notion of an urban plaza. But it is clear from the permit application material that the skate plaza is part and parcel of the skate facility even though it could serve other recreational purposes.
8. Various definitions contended by the parties as potentially applying include "informal outdoor recreation", "outdoor recreation facility", "leisure and recreation" and "minor sports and recreation facility". Some of the distinctions between the definitions are the inclusion of sport as well as arrangements for payment and spectators. There is also the definition of "open sports ground" - "Land used for sport, but which is available for informal out-door leisure or recreation when not being used or pre-pared for an organised game. It may include lights, change rooms, pavilions, and shelters". This links the use of land for sport and organised games.
9. Skating is recognised in the Skate Facility Guide as an "everyday recreational pursuit and sport" that has diversified into a number of sports[20] including competition to an elite level. The Albert Park Draft Future Directions Plan mentions the existing skate park under the heading of ovals and sports facilities and "Organised recreation" rather than casual recreation and leisure.[21] These statements and other materials referred to by Ms Brennan support the Applicants' position. However, the critical point for the purposes of the Scheme is the way in which it is intended to use the review site - what is the application for? The facility is not for organised events, training and competition or any specific group of skating sports. It is intended for informal and casual recreational use by skaters, in-line skaters and bike riders (even if the users "compete" with one another informally). It is comfortably "informal outdoor recreation".
10. It may be asked whether the extent of supervision proposed at this facility warrants a different categorisation. Unlike other cases of which the Tribunal is aware, the proposal includes regular supervision - 18 hours per week at peak times usually after school. Neither this fact, nor the fact that the format of the facility may suit higher skill levels, changes the Tribunal's conclusion as to the appropriate categorisation of the use. That is because the focus remains on informal recreational use of a modestly-scaled facility.
11. Similarly, arguments about the extent of infrastructure do not change the definition of the proposed use in the Tribunal's view. The proposal involves surfaces and spaces, including a bowl, stairs and handrails, plus a refuge area and surrounding embankments. It is infrastructure that can be used for informal recreation. The Tribunal does not accept the Applicant's submissions that the proposal has more in common with recreation facilities referred to in Section 2 (all are innominate uses in the PPRZ) than "informal outdoor recreation". That is, it is not accepted that the skate park is more akin to a "minor sports and recreation facility" that Clause 73 includes with indoor recreation facility, informal outdoor recreation, open sports ground, outdoor recreation facility, recreation facility; or "outdoor recreation facility" that includes golf course, golf driving range, paintball games facility, pleasure park and zoo.
12. In summary, the Tribunal finds that no permit is required for the use of the land for "informal outdoor recreation". Having regard to the facility's function for informal recreation and casual use by non-paying persons, its public availability, its limited and informal spectator area, and the type and extent of works proposed, the proposal fits this definition comfortably. To find the proposal must fit another definition because skating can also be regarded as a sport would firstly, fail to give sufficient weight to the facility's intended purpose and secondly, fail to apply the accepted principle that, where more than one definition is possible, the more specific is preferred over the general.
13. Next, the Tribunal considers the buildings and works provisions of Clause 36.02. A permit is required to construct a building or carry out works for the proposal unless the following exemption applies:

A building or works carried out by or on behalf of a public land manager or Parks Victoria under the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.

1. The Tribunal finds the permit application does not satisfy this exemption because:
   • the proposed skate park is not being carried out by or on behalf of Parks Victoria (the public land manager).
   • a declaration was made by the Tribunal in a preliminary hearing that:

Port Phillip City Council is not a "public land manager" of the land at 72 Fitzroy Street, St Kilda for the purpose of planning application 231/2007 for a skate park on the land.

1. The Tribunal agrees with Ms Brennan that Deputy President Dwyer addressed the matter of the public land manager for the review site and, within the confines of the jurisdiction available to the Tribunal in the current proceeding under Section 82 of the Planning and Environment Act 1987, nothing was put to the Tribunal to warrant a departure from Deputy President Dwyer's findings. There is no basis to review the declaration even if there is a suggestion in the reasons that the declaration is qualified in some manner. Thus, a permit is required for buildings and works.
2. To summarise the Tribunal's findings on the permit triggers under the Port Phillip Planning Scheme are:
   • a permit is not required to use the land for a skate park pursuant to Clause 36.02 as the use is defined as "informal outdoor recreation".
   • a permit is required for buildings and works pursuant to Clause 36.02.
   • a permit is required for buildings and works pursuant to Clause 43.01.

1. As a permit is required for buildings and works, the decision guidelines set out in Clause 36.02-5 must be considered as appropriate (using the words of the Clause) These are:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The comments of any public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land.
   • Whether the development is appropriately located and designed, including in accordance with any relevant use, design or siting guidelines. [Tribunal emphasis]
2. The Tribunal has also considered applicable policies set out in the Scheme including Clauses 11, 12, 15.10 (open space), 15.11 (heritage), 18.02 (parking), 18.03 (bicycle transport), 19.03 (urban design), 21.04-4, 21.05-5 and 22.04 (heritage policy) and Clause 65 (general decision guidelines).
3. Clause 36.02-7 addresses the use and development of land identified in a schedule to the Public Park and Recreation Zone. The Clause states:

Land identified in a schedule to this zone may be used and developed in accordance with the schedule or the specific controls contained in an incorporated document corresponding to the land, provided any condition in the schedule or incorporated document is complied with.

1. Albert Park (other than the Melbourne Sports and Aquatic Centre) is listed in the Clause's schedule. The Albert Park Master Plan is incorporated into the Scheme at Clause 81 with the schedule stating that a development must comply with the Albert Park Master Plan Incorporated Document[22].

Is the development acceptable in terms of the purpose and decision guidelines of the Public Park and Recreation Zone?

1. This part of the Tribunal's reasons addresses the purpose and decision guidelines of the Zone and whether the proposal is acceptable when assessed against these matters.

Is the development acceptable in terms of the Zone purpose and the State and Local Planning Policy Frameworks?

1. The Port Phillip Planning Scheme recognises the local and regional roles of Albert Park. It seeks to promote the use and enhancement of open space assets. Reference documents are cited in the Scheme and recognise the wide range of facilities provided for active and passive recreation. The most recent indications of strategic thinking are the City of Port Phillip Open Space Strategy (July 2006) and the Albert Park Draft Future Directions Plan. They adopt themes that new development complement Albert Park's overall purpose. The proposed skate park development is consistent with the local and regional functions served by Albert Park and the mix of active and passive facilities that are available to the community. The proposed facility would provide a better located and well structured facility when compared with the existing skate park. The Tribunal sees no "in principle" issues arising from the proposed development in terms of the strategic directions of the Planning Scheme.

Is the development acceptable in terms of the Incorporated Document?

1. Ms Brennan submitted the proposal would adversely affect the outlook across the review site from Fitzroy Street, Lakeside Drive and within the Park and is therefore inconsistent with the 1994 Master Plan and the more recent Future Directions Plan. She said the visual impact of a bright red and grey concrete structure would be an eyesore and intrusive, compounded by graffiti plus a degraded landscape as a result of skater traffic over the embankment and through landscaped spaces. She contended the existing vista would be transformed from its open, landscaped and natural setting to a cluttered, busy, visual arresting and strongly urban form. Ms Brennan relied upon Mr Soding's evidence in support of these submissions. Mr Pitt challenged these submissions through Mr Biasci's evidence.
2. The focus of opposition is the impact of the development on this corner of the Park. The Albert Park Master Plan dates from 1994. It adopts strategic policies and precinct plans. The review site is in Precinct 5 - Village Green. For the Fitzroy Street frontage, the Plan states (in part):

The Fitzroy Street frontage would retain its "European" parkland character. The "European" character currently exhibited by the frontage to Fitzroy Street would be extended throughout the Village Green Precinct.[23]

1. The Tribunal was advised that, since 1994, storms damaged and caused the removal of elms that stood on or around the area of the review site. The ability to "retain" a European character has been affected by these words. Moreover, PV has undertaken native landscaping that suggests a revised approach to this gateway/corner. In cross-examining Mr Soding, Mr Pitt alluded to some relationship between the proposed plaza and a European plaza. We do not think this suggestion has any merit.
2. The Tribunal finds the proposal will maintain the "distinctly parkland setting" of this corner or gateway as is described in the Master Plan for Precinct 5 even if not a European character. That is acceptable in terms of the operation of Clause 36.02. The Tribunal does not accept submissions and evidence that the development would adversely affect landscape values and the visual amenity of the Park. It is self-evident that the development would change this corner of the Park but the extent to which it would be perceived as a hard form would be dependent on the viewing point. The Tribunal prefers the evidence of Messrs Lovell and Biasci, rather than Mr Soding, that the development would be relatively low profile. Although it would impede some views in a narrow viewing cone, substantive views into and out of Albert Park would remain. The development would appear as another recreational facility that is reasonably expected in a regional or local park.
3. The more recent Albert Park Draft Future Directions Plan is not incorporated into the Scheme but is a review of the 1994 Plan. The proposal appears consistent with the thrust of the recent work. That is to increase visitation to Albert Park at off-peak times by expanding the availability and diversity of recreation facilities on offer.

1. The decision guidelines require consideration of the views of the public land manager or other relevant land manager having responsibility for the care or management of the land or adjacent land. In this case, that is PV which is responsible for the management of Albert Park (other than in specified circumstances such as during the Grand Prix).
2. There are three letters to which the Tribunal was referred that explain PV's position:
   • on 15 November 2005, PV gave written consent to the permit applicant to proceed with the skate park proposal, subject to conditions set out in that letter including all permits being obtained and a lease regarding future management arrangements being agreed.
   • on 8 March 2007, PV provided its approval of the proposed design and regarded the proposal as being consistent with the zoning and its desire to encourage use of Albert Park by young people.
   • on 28 November 2007, the Manager of Albert Park advised the Council that PV is satisfied that a skate park in the proposed location can be successfully managed by the Port Phillip City Council in accordance with agreements made and the PV would maintain the immediate area around the skate park to agreed standards. He also stated that PV had reviewed the design and found it to be "consistent with and will form part of a contemporary park setting".
3. The position expressed in these letters, plus PV's agreement to lease the review site to the Council for the skate park[24], makes clear its view that the proposal is acceptable to it. This is a factor in favour of the development.

1. Ms Brennan was strongly critical of the design and siting of the skate park in terms of a lack of access to toilets, shade, signage, lighting and fencing as well as the position in relative to two major roads (without a designated pick-up/drop-off area) and the primary school in terms of litter, damage, vandalism and anti-social behaviour. She relied on the evidence of a series of witnesses in support of her submissions particularly in terms of the relationship to the Primary School. [Those statements are retained on file and it is noted that a number of the skate parks referred to as being near schools were inspected by the Tribunal such as Yarraville and Port Fairy.] The Applicants' submissions also refer to concerns about impacts of the proposal on nearby businesses, residents, tourists and others visiting the Park and area. Mr Lynn referred to issues from the siting of the skate park for cricketers and those with leases such as Cricket Victoria and the Melbourne Cricket Club with concerns about anti-social behaviour, damage to turf wickets, littering, noise and disturbance.
2. The Tribunal finds these design and siting matters are relevant to its decision given the decision guidelines cited at paragraph 33 and when a broad interpretation is given to those guidelines. This question is arguably also considered through the decision guidelines at Clause 65 that include the impact on the amenity of the area and orderly and proper planning.
3. In addition to zoning and site conditions, the Skate Facility Guide refers to criteria for the siting of a skate park as including relationship to a community hub; visually prominent; with easy access to public transport and amenities (telephone, toilets, water, shelter and shade); adequate distance from residences; minimal conflict with other users or sports; served by an off-road shared bicycle network; not too close to a busy road; and close to shops selling food and drink.
4. The review site performs well against many of the Guide's siting criteria, such as its location in a park associated with an activity centre, on public transport and an off-road shared pathway network, access to shops and shade trees. Despite that, it is correct that some information is not detailed on the plans. Reference is made in the drawings and planning submission to rubbish bins, a drinking fountain, signage and the format of lighting.[25] Tender documents provided through Mr Lovell's evidence provide more detail in relation to signs and lighting. The Tribunal finds further details can be shown on the plans, such as signage and any shade structures. A telephone should be available to supplement personal mobile telephones.
5. The drawings (tender documents) show the skate plaza and bowl would be setback a minimum of 15 metres from the main roads. In Port Phillip Conservation Council[26], the Tribunal found a site for a skate park unacceptable saying "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". In this case, there may also be scope to add security fencing near the pathway entries should that be deemed necessary in time. Food and drink are available at the St Kilda Station complex and a signalised intersection is at the corner of Lakeside Drive and Fitzroy Street. The availability of a safe crossing point does not mean it will always be used, but it is important for this to be available. There is no inset pick-up/drop-off close to the site but there is good access to public transport and off-road pathways from car parks. On balance, the site is acceptable in relation to these siting/design criteria.
6. Another design/siting matter is the proximity of toilets. The closest toilets were said by the parties to be in the Holdsworth Pavilion and St Kilda Station, the former being around 350 metres from the review site by pathways and the latter being around 250-300 metres away. When on skates, or riding a skateboard or a bike, this is not a substantial distance. But the distance might be inconvenient to some who then choose to relieve themselves elsewhere. This situation should not prevent the proposal proceeding with signage identifying the nearest toilets. Toilets may be required at the facility in the future, as has occurred in other places, such as Boroondara. This can be monitored as is proposed in the draft management plan and amenities augmented if required (in consultation with PV).
7. The basis of concerns by nearby property owners/lessees including the Primary School, Melbourne Cricket Club and Cricket Victoria, is the potential for anti-social behaviour, property damage, theft, and other behaviours when students use the Ian Johnson Oval and at other times. Ms Jeavons, and some witnesses called by Ms Brennan, referred to issues arising from those who might congregate at a skate park, who are not skating, rather than those using the facility for its intended purpose.
8. Much concern seems to have arisen from anecdotes about skate parks near other schools. The absence of supervision and follow-through on the management of other skate parks may be factors that have affected the operation of facilities in other locations and given rise to perceptions that a skate park has brought with it problems for nearby facilities. That may be because of a loss of interest locally or via a Council. It is not, however, always the case. Having said that, the Tribunal accepts anecdotes about, for example, litter, poor language, fears held by school staff, and some elements of bullying. But there is no data or reliable evidence before the Tribunal to confirm allegations directly linking those attending a skate park with damage to schools or other facilities. There is no information before the Tribunal to conclude that these facilities always suffer the types of problems feared by the Applicants.
9. There are a number of skate parks near to schools and sports ovals in Victoria and the Skate Facility Guide suggests "Co-location or partnerships with existing shopping centres, sports or recreation facilities, or interested schools may be possible".[27] The Guide recognises that there may be unwelcome people in a public place - persons who represent an unacceptable risk to the public, users of skate parks and themselves are described as "inappropriate persons"[28]. It suggests ways to address this "risk" including random inspections and surveillance, a response program to community complaints, education programs and peer group mentor schemes. The Guide also acknowledges issues such as competitive user behaviour and conflicts as well as the potential for graffiti.[29]
10. While there can be issues such as graffiti and some anti-social behaviour, the Tribunal finds it difficult to accept that, as a matter of principle, siting a skate park near to sports ovals or a school is a fatal flaw of this proposal as was contended by the Applicants given the principles contained in the Guide. That does not mean every site near a sports facility or school will be acceptable but the position of the skate park at around 130 metres from the St Kilda Park Primary School does not demonstrate a basic deficiency in siting. Issues about teachers' duty of care extend beyond the scope of this proceeding. Moreover, nothing was presented to the Tribunal to demonstrate damage to cricket pitches/grounds or nuisance to cricketers when skate parks have been sited near to cricket grounds.
11. It is relevant here to refer to varying positions as to the concerns or otherwise of the Victoria Police about the proposal. Two positions were expressed in correspondence from different police officers but neither was called by any party to give evidence.
12. In a letter to the Council on 16 November 2005, Senior Constable Stefaniw, Crime Prevention Officer, Port Phillip & Glen Eira Regions, commented on the skate park design from a crime prevention perspective. The letter refers to the review site as a "good choice", being open to and used by the general public and without adverse impact "on local issues relative to residential and commercial tenancy". The letter makes a range of other comments relating to the draft management plan including recommendations as to lighting, planting to limit the seclusion of contraband/illicit drugs and indicating fencing would not be necessary. Agreement is expressed to limit the facility to daylight hours. In an email to Ms S Stephen dated 30 November 2005, Senior Constable Stefaniw indicated that some factors evident at other school environments might be lacking at the review site.
13. The second letter from Mr J Hauer comments on sites being considered at that time from a policing perspective. [30] The Tribunal's attention was drawn to a reference that the Albert Park site had "major considerations" and other comments made in the document.
14. The Tribunal accepts that there is the potential for anti-social elements with any form of public facility, as conceded in Ms Jeavons' evidence. The Tribunal has been mindful of the specific circumstances of St Kilda, referred to by several witnesses, with drug activities, homelessness and other social issues that have been sought to be managed by the Council, police, traders and others. These circumstances were said to add to the risk of the facility becoming an inappropriate attraction in its own right. Perhaps that it so. However, Albert Park already experiences elements of anti-social behaviour with, for example, obvious signs of graffiti around the area. PV and the Port Phillip City Council have strategies to manage this type of issue as well as litter removal and other aspects of maintenance. An enforceable management regime is possible here, as discussed later in these reasons. The draft management plan seeks to deal with the types of concerns raised by the Applicants.
15. A commitment to supervision at peak times, for 18 hours a week, is another factor in skate park planning that has been found to assist to alleviate anti-social elements, as stated in the Skate Facility Guide. That is part of the proposal before the Tribunal.
16. The benefits of video surveillance are referred to in a document prepared by Mr J Hauer, Officer in Charge, St Kilda Police. The Tribunal considers this option should be considered in the management plan and notes that it is also suggested in the Skate Facility Guide[31].
17. For the above reasons, the Tribunal finds the development to be suitably designed and sited subject to some additional details being required by amending plans and the implementation of a management plan.

1. Ms Brennan submitted that arrangements for the management of the proposed facility are insufficient. She cited a lack of reference to a management plan in the Notice of Decision and the failure of the tenancy agreement to confirm arrangements such as 18 hours supervision per week. She said it is not good enough for the permit applicant to say "trust us".
2. In response, Mr Pitt submitted the management and care of the skate park and its surrounds is the responsibility of PV and the Council. He relied on the Convic Design draft management plan and an initial budget allocation to provide for the 18 hours of supervision referred to in that draft plan.
3. The Skate Facility Guide and other Tribunal decisions have recognised that management is essential to the successful operation of a skate park. That includes steps to minimise risk (including injuries) such as through signage, communications systems and maintenance. The Tribunal is satisfied that attention has been given to this matter through the draft management plan and a commitment to supervision on a part-time basis as discussed above. It is appropriate to require a management plan in a permit as discussed below. It is noted that the draft management plan includes contingencies and a Management Advisory Group to monitor and report on the operation of the skate park. There is also the comfort of the lease with PV.

Is the development acceptable in terms of the Heritage Overlay?

1. The Applicants' submissions in relation to heritage considerations focus on three matters. Firstly, the impact on the open parkland of a 19th century heritage listed park. Secondly, the impact of a modern urban form on the existing heritage buildings and structures within the open parkland setting at the southern end of Albert Park. Thirdly, the impact of the skate park on the values of the indigenous heritage trail - the Aboriginal Federation Trail.
2. Mr Lovell gave evidence on behalf of the Respondent and Responsible Authority. He described the history of the site and relevant controls and policies in the Scheme. He did not regard the review site to be of particular or high sensitivity in heritage terms and said the skate park would not abut or adjoin any heritage buildings. Mr Lovell said there would be no impacts on nearby heritage places such as the bowling club, school or tram poles given separation distances. He considered the development would not dominate the surrounding area or context, softened by mounding and landscaping. He also said the development would not be inconsistent with the history of this part of the Park with recreational activities and buildings.
3. Albert Park is within a large heritage precinct that encompasses a wide area with established residential precincts, business areas and open spaces (HO3). The statement of significance for HO3 does not identify Albert Park itself as having specific heritage values or significance. The Heritage Policy Map cited at Clause 22.04 of the Scheme identifies the Park as "non-contributory or unmapped".
4. A different heritage area, Heritage Overlay Schedule 5, is generally to the south of the review site.
5. The policies at Clause 21.05 of the Scheme relating to parkland and open spaces, and heritage, refer to the importance of preserving the heritage values and significant heritage features and qualities of open spaces. There is, however, little of specific relevance in the local policy at Clause 22.04 as it is not focused on the type of development proposed here. One relevant point is acceptance of contemporary design in heritage contexts.
6. The Tribunal accepts Mr Lovell's evidence that the proposed development is suitably separated from recognised heritage places such as the tram poles, school and bowling club, to prevent any unreasonable negative impact on their heritage values. The Tribunal also accepts Mr Lovell's evidence that the proposed development would fit reasonably within the landscape of this part of HO3 even with the strong contemporary design. That is assisted by the materials, mounding and landscaping as well as the fact that the height does not rise above three metres. The footprint means that there would remain good opportunities to view into the Park and it is noteworthy that the previous occupation of this part of the Park by buildings would have caused a greater visual impact than the proposed skate park.
7. No party submitted that views to places of heritage significance would be affected and the Tribunal does not find any such views would be impacted.
8. The Tribunal notes concerns about the impact of the skate park on the Aboriginal Federation Trail. Mr Eidelson's evidence referred to the proposal as insensitive to, and inconsistent with, the trail. He said the Committee of Management of the St Kilda Historical Society considers the area of the review site to be part of the most significant indigenous heritage area in Port Phillip and, in addition to some concerns already cited above, the proposal would significantly affect this area and the Corroboree Tree. He referred to the possible presence of archaeological material and thus the need for an archaeological survey before any construction. Mr Eidelson said consultation should occur with the local indigenous community and the proposal has failed to consider the value of this area to the municipality's indigenous population.
9. Mr Pitt submitted the site is not registered as a place of aboriginal significance and the permit applicant is intending to implement a cultural heritage management plan that was agreed with the local indigenous groups and Aboriginal Affairs Victoria although this is not required by Aboriginal heritage legislation.
10. It is, therefore, apparent that there have been discussions with the local indigenous community. The Boon Wurrung Elders Land Council has acknowledged and found acceptable the contents of the proposed Cultural Heritage Management Plan.[32] The officer's report to the Council also refers to discussions with the Wurundjeri Tribe Land Compensation & Cultural Heritage Council and the Bunurong Land Council.[33]
11. The Tribunal notes the previous occupation of the area of the review site by structures such as a caretaker's residence and army barracks. That suggests a considerable degree of disturbance such that the prospect of archaeological material is low. That does not mean, however, that protocols relating to excavation should not be enacted in the usual way - discovery of archaeological material during works is protected by existing Commonwealth and State legislation. That protection is also provided in the cultural Heritage Management Plan according to the officer's report on the permit application.[34] The Tribunal notes the distance between the proposed skate park and Corroboree Tree. Having regard to Mr Lovell's evidence and the position of the Boon Wurrung Elders Land Council, there is no basis for the Tribunal to conclude that the proposal impinges on the indigenous heritage values in a manner that warrants rejection of the permit application.
12. A related argument put by the Applicants was that details about aspects of the proposal such as fencing, signage, lighting and shade structures should be included up-front in the permit application and not deferred to conditions precluding an opportunity for third parties to comment. These items could, it was said, have an impact on the area's heritage values.
13. Given the low level of significance of the review site on Mr Lovell's evidence, the Tribunal is not persuaded that the failure for some of these relatively minor details to be shown on the plans warrants rejection of the permit application or further information being supplied to the Tribunal and parties (with or without further notice). A more sensitive location may justify a different approach. Rather, these additional items can be shown on plans for endorsement, via permit conditions although it would have been preferred if these details had been available earlier.
14. For the above reasons, the proposal is acceptable in terms of the purpose and decision guidelines of the Heritage Overlay and applicable state and local policies.

Would the development adversely affect the amenity of the area?

1. Submissions were made in relation to the impact of the development on nearby residents and businesses in terms of noise and anti-social behaviour.
2. The Tribunal has essentially addressed these matters in the context of the facility's siting and design and potential impacts on amenity of park users and nearby occupancies (such as the Primary School) set within Albert Park. In relation to other uses in the area, such as residents, businesses, restaurant patrons and office workers on the opposite side of Fitzroy Street, the same conclusions are reached by the Tribunal. That is, to the extent that it is regarded as relevant to the ambit of the Tribunal's discretion, the proposed development would not give rise to unreasonable adverse noise or visual amenity impacts from properties near to or opposite the site to warrant any change to the proposal or rejection of the permit application.
3. The Guide suggests skate facilities and steel ramps should be a minimum of 100m from residences and desirably 200m.[35] The skate arena is estimated to be some 70-80 metres from the closest dwellings. Temporary accommodation such as a backpackers' hostel might be closer. Fitzroy Street is a physical barrier and the extent level of people-movement through the area with its bars and restaurants means that the introduction of a new facility of the type proposed, in an activity centre, is not unreasonable.

Do any other matters warrant rejection of the proposal?

1. A number of other matters were raised in submissions and evidence that are either beyond the ambit of the Tribunal's discretion and therefore not open to consider, or do not warrant rejection of the permit application. It is not intended to recite each of these but two matters do require comment.
2. First, is the adequacy of information accompanying the permit application. Contrary to the Applicant's submissions, the Tribunal has sufficient information before it to decide the merits of the proposal and is satisfied as to matters that can be dealt with by conditions.
3. Second, is extensive criticism of the process and consultation referred to in submissions and evidence by the Applicants. The powers and requirements of the Planning and Environment Act 1987 and its subordinate instruments do not give latitude to embark on an administrative review of the Council's consultation and decision-making processes in the situation where this Tribunal is concerned with the planning merits of the permit application. For various reasons, segments of the community or interest groups feel aggrieved. Public consultation on a project such as a skate park is a step usually embarked upon by a council. On the information before the Tribunal, a process did occur, and even though that process and its outcomes are complained of, those grounds do not warrant rejection of the permit application. This review has provided the opportunity for the Applicants' cases to be heard afresh within the Tribunal's ambit of discretion. The Applicants' concerns have been heard, and considered, fully and independently.

What permit conditions are required and appropriate?

1. On a without prejudice basis, Ms Brennan submitted recommended permit conditions. That document is not recited here, but it included some conditions which were observed by the Tribunal at the hearing to be "unusual". An example is the establishment of a community committee that would be required to approve a Code of Conduct prior to the commencement of the use of the skate park. A number of conditions were use-related and questionable given the narrower ambit of the Tribunal's discretion that argued by the Applicants.
2. In response, Mr Pitt indicated the permit applicant's agreement to conditions that the skate park not be lit at night to an extent to facilitate skateboard, in-line skate or BMX bike use after dark. He also agreed to a condition limiting any organised competition to not more than two per year as had also been agreed with PV. Mr Pitt said any condition on a planning permit relating to a management plan should require such a plan to be consistent with the Convic Design draft management plan to the satisfaction of PV and needs to be flexible to address actual experience rather than apprehensions. He opposed many of the conditions proposed by the Applicants but did agree with Ms Brennan that it is possible to include use-based conditions on a permit where there is a direct link with the proposed works.
3. Limited conditions are on the Notice of Decision. The Tribunal is satisfied that there are grounds to warrant the inclusion of a condition requiring a management plan and the additional two matters agreed by the permit applicant. It does not accept many of the recommendations of the Applicants because they would be ultra vires and/or are unreasonable (such as a Code of Conduct to be approved by the proposed community committee).

1. For the above reasons, the Tribunal finds the proposal to be acceptable in terms of the requirements of the Port Phillip Planning Scheme. However, it also finds additional conditions are required, beyond those included in the Notice of Decision, particularly to address the future and ongoing management of the facility. The Tribunal will order that the decision by the Responsible Authority be varied and direct that a permit be issued with revised conditions.

Appendix 1 - Reasons in relation to preliminary matter

1. At the commencement of the hearing, Ms Brennan submitted the proceedings should be adjourned to allow further notice of the permit application to be given. She also requested that the matter be remitted to the Council. This was on the basis that the advertising of the permit application and Council's subsequent decision were founded on a permit only being required for buildings and works under the Heritage Overlay. Since that time, at minimum the Responsible Authority and Respondent have conceded a permit is also required for buildings and works under the Public Park and Recreation Zone[36] [and the Applicants argue a use permit is also triggered under the Zone]. Ms Brennan submitted consequently not all potential parties have had a proper opportunity to make submissions on the full range of issues open to consideration and/or be given notice of the permit application. Ms Brennan said her clients were aware of others that would have objected to the proposal or would have objected on wider grounds - letters were tendered and retained on the Tribunal's file. Ms Brennan highlighted correspondence from the Responsible Authority accompanying the notice of the permit application wherein it is said that the ambit of discretion was confined to approval under the Heritage Overlay.[37]
2. Detailed submissions in reply were made by Mr Pitt opposing the request while Mr Lynn made shorter submissions generally supportive of the position put by Ms Brennan. These are not recited in detail.
3. After considering the submissions, the Tribunal ruled that on the basis of the material before it, it had not been persuaded that there were sufficient grounds to warrant a direction that further notice be given or for the matter to be remitted to the Responsible Authority. The Tribunal also declined to deal with the categorisation of the proposal as a preliminary matter and requested the parties to address this matter as part of their cases.
4. The reasons for the Tribunal's ruling were threefold:
   • To accede to Ms Brennan's request would have presumed that a permit would be required for development and/or use under the Zone provisions. The Tribunal considered further information was required (ie. facts) to ascertain the precise nature and operation of the proposed facility and to therefore assist a decision as to the proper categorisation of the proposal and thus the permit triggers; information that would be given and adduced through submissions and expert evidence.
   • The notice of the permit application describes the proposal as:

Buildings and works and tree removal for the purposes of a skate park and urban plaza (within Albert Park Reserve adjacent to north-western corner of Fitzroy Street and Lakeside Drive).

This does not confine the permit application to matters under the Heritage Overlay. It is, however, acknowledged that expectations about the ability to canvass wide-ranging submissions may have been affected by the "advice concerning public notice of application for planning permit dated 15 March 2007" that ended with:

NB. A planning permit is not required for the use (skate park and urban plaza) or any of the buildings and works under the zone provisions of the Planning Scheme (Public Park and Recreation Zone). A planning permit is required only for the buildings and works under the Heritage Overlay (i.e. heritage matters must be considered by Council) and for tree removal under the Native Vegetation controls of the Planning Scheme.

The officer's report to the Council confined consideration to heritage issues although it is evident that many other issues were raised in objections. It appears that no-one, at that time, sought to formally question the position adopted by the Council, as would have been possible, and it also appears that many objections were filed with the full range of objections.

• The proposal has generated controversy, as noted in a number of the submissions that were filed with the Responsible Authority. The Tribunal was very mindful of the findings of Deputy President Dwyer:

I do not agree with Ms Brennan that the consequence of my finding on the 'public land manager' issue is that the matter ought be remitted to the Responsible Authority for reconsideration. I accept Mr Pitt's argument that the Tribunal's hearing of the merits of the permit application is a hearing 'de novo', and the Tribunal's jurisdiction is not lost if the Responsible Authority's decision is incomplete or even invalid[38].

Both the Council's and objectors' views on the proposed skate park are well known. There is no justification for a lengthy delay in having the merits finally determined by the Tribunal. However, there is a clear prospect that my finding on the 'public land manager' issue will affect the range and extent of matters to be canvassed at the merits hearing, including the raising of broader planning considerations. Given the Responsible Authority's decision was made solely under the Heritage Overlay, it has only filed an expert report on heritage matters. No party has filed any expert report on broader planning considerations. This raises issues of procedural fairness, and potentially affects the membership of the Tribunal that should best be constituted to hear and determine the matter.

In the circumstances, whilst the Council believes the 'public land manager' issue has been raised as a delaying tactic, I believe that it is unreasonable to expect any party to be properly prepared for a hearing next Monday. Procedural fairness in my view dictates that all parties have an opportunity to further prepare for the hearing taking into account my finding on the 'public land manager' issue, and (if they wish) to prepare and file further expert evidence. I have allowed for this in the consequential orders I have made in P1174/2007. Equally, a balance should be struck so that the consideration of the underlying merits of the permit application is not unduly delayed. I have therefore re-listed the matter for hearing in October.[39]

[1] The Tribunal granted leave for these organisations to be joined as parties to the proceeding without objection by any other party.

[2] Several preliminary matters were raised at the start of the hearing. In the appendix to these reasons, reasons are given for the Tribunal's ruling in relation to Ms Brennan's submissions that the proceeding be adjourned to enable further advertising of the permit application and remittal of the matter to the Council.

[3] For example, at the Alexandra Gardens (Melbourne), Port Fairy, Yarraville, North Fitzroy, Coburg, and Riversdale Road, East Hawthorn. The Tribunal also observed skate parks in many other locations, some of which were cited in submissions or evidence such as Coburg, Box Hill and the existing skate park in Albert Park.

[4] Based on Mr Biasci's evidence and cited on the plans excluding embankments. Mr Pitt SC described the total area of the review site as 1,200 square metres. Mr Soding described the area as 3,025 square metres.

[5] HO124 and HO366. There is also the Corrobooree Tree east of the St Kilda Cricket Ground that is HO14.

[6] HO125, HO128 (Wesleyan Church) and HO129 (Ritz Mansions).

[7] Page 2 of the planning submission appended to Mr Lovell's evidence and Mr Biasci's statement of evidence at page 4.

[8] As above. Also shown on tender documents made available at the hearing through Mr Lovell's evidence.

[9] Lovell Chen, dated March 2007, appended to Mr Lovell's statement of evidence.

[10] By Bellarine Tree Services dated 22 February 2006.

[11] To the extent that this question, or parts of it, raise a question of law rather than a matter of fact, this part of the Tribunal's reasons is decided by Member Rickards, a legal practitioner. The Presiding Member concurs with the findings.

[13] Maroondah Residents and Ratepayers Association v Maroondah CC [2005] VCAT 386 and St Mary's School v Greater Shepparton CC [2004] VCAT 1440. Both were decided by the same presiding member as the current proceeding.

[14] Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 1526. Mr Pitt drew attention to the Tribunal's reasons at paragraph 11 where DP Dwyer said "However, in the absence of broader argument or a view from Parks Victoria, the declaration I have made is limited to a finding on the material before me that the Council is not a public land manager in relation to this specific permit application".

[15] Noting that the position varied between letters dated 27 August 2007 and a subsequent letter dated 28 August 2007 as cited by Ms Brennan at page 6 of her written submission.

[16] Skate Facility Guide, Sport and Recreation Victoria, February 2001.

[17] Albert Park Future Directions Plan, Parks Victoria.

[18] Including the cases cited at paragraph 29 of Ms Brennan's written submission. These were under Section 82 of the Planning and Environment Act 1987 where a Council has been permit applicant and responsible authority. They include Friends of Cornish Hill Inc & ors v Hepburn SC [1999] VCAT 1867, Florio v Mornington Peninsula SC [2004] VCAT 306 (this was decided under a DDO only as Council was a public land manager), Port Phillip Conservation Council & Ors v Mornington Peninsula SC [2003] VCAT 3 and King and Others v Buloke SC and Anor [2003] VCAT 899. In Brown v Baw Baw SC [2006] VCAT 485, the land was zoned Rural and the proposal was accepted as a leisure and recreation facility where a permit was required for use and development.

[19] Planning Submission & Comment on Heritage Issues Relating to the Proposal to Construct a Skate Facility/Urban Plaza at Lakeside Drive and Fitzroy Street, St Kilda, by Lovell Chen Architects & Heritage Consultants, March 2007, at page 1.

[21] Albert Park Draft Future Directions Plan, Parks Victoria, 2002, at page 8.

[22] The Hassell Group and Melbourne Parks and Waterways, November 1994.

[23] Albert Park Master Plan, 1994, at page 94.

[24] Lease agreement entered into between the Council and PV on 14 March 2007.

[25] Planning Submission & Comment on Heritage Issues, by Lovell Chen Architects & Heritage Consultants for Port Phillip City Council, March 2007, at pages 2-3 in Section 2.2.

[26] Port Phillip Conservation Council & Ors v Mornington Peninsula SC [2003] VCAT 3 at paragraph 21.

[27] Page 31 of the Skate Facility Guide.

[28] Page 91 of the Skate Facility Guide.

[29] Pages 38 - 39 of the Skate Facility Guide.

[32] Letter from Ms C Briggs to the Council dated 11 April 2007.

[33] Report to the Council, 23 April 2007, at page 43.

[34] Report to the Council, 23 April 2007, at page 43.

[35] Page 76 of the Skate Facility Guide.

[36] This arises from correspondence from Best Hooper to the Applicant in response to directions given by Deputy President Dwyer dated 17 August 2007. The first letter states that the Best Hooper consider a permit is required for use and development whereas the second latter says a permit is required for development under Clause 36. 02 and 43.01.

[37] "Advice concerning public notice of application for planning permit" dated 15 March 2007

[38] Following generally, Traill v Wodonga RCC (1989) 3 AATR 107, per the then President Judge Jones

[39] Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 1526 at paragraphs 13 - 15.