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A sporting chance - pitfalls for sports facilities

A sporting chance - pitfalls for sports facilities

By Dr Leonie Kelleher and Hubert Algie

Environment Planning Real Property 


Property and planning law can strongly impact sporting activities. Sports groups may suddenly find themselves fighting to protect existing facilities or struggling to develop new ones. Snapshot Most sports are critically connected to the land on which they occur, yet many sports clubs overlook the planning and legal framework surrounding their facilities, creating real problems. Sports clubs operating on public land need to be especially careful as the planning and legal framework surrounding public land is particularly complex and can include pitfalls for clubs that are unprepared or overly trusting. Clubs, associations, sports entrepreneurs and land owners need to remain alert to planning and tenure requirements and avoid getting caught up in political dilemmas that can arise if they fail to do so. Land is uniquely important to sport. It can be extremely difficult to find a suitable site. The right to use land should be regarded as a treasured resource. Many sports can only be played on land with specific characteristics such as a particular topography, surface treatment or area. Most require good car parking and traffic access for participants, officials and spectators. Sporting areas can also be shared with leisure activities such as dog walking or a running track. Some sports require a specific location. For example, cross-country skiing needs snow-covered mountain bushland areas and a golf course requires a large substantially cleared area, usually near a town. Sporting groups must pay close attention to the legal status of the land they require and ensure their tenure and planning approvals remain current, lawful and secure. Obviously, sporting activities also occur on private land and within well-known zones such as residential, commercial or industrial. Sport within these zones commonly includes activities such as gyms, pilates and yoga studios, commercial indoor cricket, skating and go-karting. In most circumstances, these uses require a permit. For uses on private land, it is important to carefully approach how the “land use” is defined1 to correctly assess what permit triggers or use limitations may exist. Sporting facilities within private land zones are often surrounded by sensitive uses such as residential and require careful consideration of traffic, noise and amenity impacts. Within the public land zones legal and planning requirements are more complex. This article focuses on these more complex public land issues and considers three of the many elements of importance: public land zones Crown land law Victorian government Land Transaction Policy and Guidelines. Public land zones Public land zones include the Public Parks and Recreation Zone (PPRZ), Public Conservation and Resource Zone (PCRZ) and Public Use Zone (PUZ). Many sporting facilities are owned and built by government. Development by government in these zones is largely unrestricted. While this can assist fast-tracking, it can also create risk when government changes its land use priorities. Using and developing public land requires the consent of the public land manager. Most sporting clubs enter into a lease or licence with a government agency for their facility. This agreement is critical in the retention, protection and use of their sporting facility and its future development. It is critical that all sporting clubs in public land zones regularly monitor their lease or licence arrangements closely. Public land manager The public land manager is a key party involved in planning for sporting facilities on public land. The Victorian Planning Provisions (VPPs) define the term as: “The Minister, government department, public authority or municipal council having responsibility for the care or management of public land. In relation to Crown land reserved under an Act and managed or controlled by a committee of management, other than Parks Victoria or a municipal council, it means the Minister administering that Act and does not include the committee of management”.2 This definition contains two components: For reserved Crown land, the public land manager is the Minister administering the Crown land legislation and not the committee of management. Otherwise, the public land manager is whichever government department, local council or public authority has responsibility for the care or management of the land, including an authority to which the power has been delegated.3 In this case, it is even possible that there could be more than one public land manager for the same land.4 If so, each public land manager may be responsible for a different aspect of the land use and in this case, it seems that any public land manager could give consent to the making of a permit application.5 When a use is proposed by someone other than the public land manager, it is generally a pre-condition that the permit application itself has the consent of the public land manager. Therefore, sporting clubs must be clear as to who is their public land manager. This can be complex. Once an application is made, the relevant Minister or other public land manager has a right to comment and object to the proposed use or development, even if it consented to the making of the application. The responsible authority must take any such comment into account in determining the application. VCAT and the public land manager Another unique feature of public land zones is that most uses must meet the pre-condition that the use is “by or on behalf of the public land manager”, often under the relevant provisions of various listed statutes.6 VCAT cases indicate that for a use to be “by or on behalf of the public land manager”, it must relate to a public land manager’s functions of care and management of the land.7 Therefore, even where a public land manager is agreeable, a sporting club on public land must ensure that its use relates to the functions of whichever public land manager controls the land. It cannot simply rely on an approval. The club needs to be clear as to which authority is the public land manager and the functions of that authority. The sporting activity must relate to those functions. A short summary of the key controls relevant to sporting facilities within the public land zones is set out below. Public Parks and Recreation Zone The PPRZ recognises areas dedicated to “public recreation and open space”. It can be the most likely zone for a sports ground and recreational sporting activity. Many uses in the PPRZ are as of right, but all as of right uses are subject to a condition that the use be: “by or on behalf of the public land manager” or “specified in an incorporated plan”.8 Therefore, unless there is an incorporated document, all as of right sporting uses in the PPRZ must be “by or on behalf of the public land manager”. Various other uses are allowable subject to the grant of a permit, provided they are “associated with the public land use”. An “incorporated plan” is generally a site-specific plan illustrating the future use and development of land and can include stages of development. Frequently, it is a useful form of master planning. It must be consistent with the zone purposes and may be required to include specified information. If sporting facilities are within the PPRZ and do not have an incorporated plan, it may be worthwhile preparing one in order to take the lead on the future planning and development of the facility. In the PPRZ, an incorporated plan may include: recognition of existing use and how the area is to be developed the building envelope of any proposed buildings details of any proposed buildings or works the location of pedestrian or vehicle access points or car parking areas the location of any areas for specific uses or a schedule of specific uses which are allowed without a permit topographic details including any proposed cut and fill the location of existing and proposed features the location of existing native and other vegetation and any proposed landscaping works or areas of vegetation to be added or removed the identification of sites of flora or fauna significance (including, in particular, any potentially threatened species or significant habitat) or other places of cultural heritage or scientific value.9 Public Conservation and Resource Zone The purpose of the PCRZ is to “protect and conserve the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values” and “provide facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes”. This zone, therefore, might be one where certain bush-related sports, such as rogaining, orienteering, caving and skiing might locate. However, the PCRZ’s as of right uses include vital sporting facilities such as “Open Sports Ground”. Again, as in the PPRZ, such must be either: “by or on behalf of the public land manager” or “specified in an incorporated plan”.10 In this zone any “as of right” use that fails these conditions is prohibited. Public Use Zone The PUZ is an infrastructure-focused zone. Its purpose is to recognise land dedicated to “public utility and community services”. “Community services” is not defined, but according to ordinary terminology would include sports clubs and community sports facilities. Any such use in the PUZ must be “by or on behalf of the public land manager”. Car parking Car parking and traffic issues can be a major consideration for many sporting facilities and are a frequent area for planning disputes. Careful advance planning may assist in avoiding problems. Different parking requirements apply to different sports. The parking provisions do not adopt the same land use terms as used in the zones.11 Those operating any sporting facility must identify the applicable use for car parking purposes. Public Acquisition Overlay The Public Acquisition Overlay can also apply where land is to be acquired for public purposes.12 Within the Overlay, except for the acquiring authority or an authority or council if its purpose is consistent with the acquisition purpose,13 use and development requires a permit. Land must not be “spoiled or wasted”14 or adversely affect the use of the land for the purpose for which the land is acquired.15 Crown land law Sporting facilities in public land zones often operate on Crown or other public land, and this can lead to complex legal issues. This article makes no attempt to describe or analyse the complex provisions applicable to Crown land but provides a snapshot of issues that may impact sport. In Victoria, the Crown Land (Reserves) Act 1978 (CLRA) provides for reservation of Crown land for certain purposes and for the management of such reserved land. The public purposes for which this power can be exercised are detailed in s4 of the CLRA. They cover a range of public activities, including sports such as public baths and swimming pools as well as more general conservation and preservation, including coastline protection that impacts coastal sports such as surfing, fishing and boating. A reservation may be permanent or temporary. Permanent reservations can only be revoked by an Act of Parliament. Section 14 of the CLRA creates committees of management for Crown land. Certain types of reservation are also subject to additional regulation. For example, a reservation for the protection of the coastline is also subject to the Coastal Management Act 1995 (Vic) which imposes additional consent requirements and also sets up a structure for coastal-specific policy setting. Crown land may be leased or licensed. Such leases and licences can be subject to complex pre-conditions including ministerial consents. In the case of reserved Crown land, the lease or licence must be consistent with the gazetted public purpose. Any sporting group should carefully review the land on which its facility operates. It must be clear whether or not it is Crown land. A sporting club’s preparedness, including accurate knowledge of the Crown land arrangements applying to its facilities, can be critical if an issue arises. This is a complex and difficult area of law but clubs that identify and regularly inform themselves on this can more readily prevent problems arising. Victorian Government Land Transactions Policy and Guidelines Any sporting club currently operating on government land or relying on facilities in any public land zone is potentially at risk of relocation should government require that land for another purpose. Land values make it attractive for government to sell public land, especially in inner city and metropolitan Melbourne. Sports organisations should have an understanding of the Victorian Government Land Transactions Policy and Guidelines (Guidelines) which apply to the sale of government land. These Guidelines prescribe a process for land transactions. All public land is subject to an intra-departmental “first right of refusal” process before the land is valued by the Valuer-General and generally placed for public sale by auction. Any sports organisation facing closure or relocation should carefully monitor the Guidelines and insist on due diligence in compliance. Carefully following the timing of any lease or licence arrangements is critically important. Often a government department reviews its land holding towards the end of an existing lease or licence. Sports organisations can help safeguard against poor outcomes by monitoring their agreements and keeping alert to any moves from government to de-accession their land. Conclusion Sport is great, but it is not always fun. In both public and non-public zones, car parking and traffic will be important issues. Compliance with planning controls is essential. For sports organisations operating on public land, it is critical that a clear record or register is kept of: any lease or licence agreement for the use or development of the sporting facility including: timelines of end of lease or licence rights to renew its terms and conditions details of the public land manager(s) for the site the functions of the public land manager, to ensure their sport use is consistent with them if it is a Crown land reserve, what type of reserve and what purpose exists for it. Clubs, associations, sports entrepreneurs and land owners need to remain alert to planning and tenure requirements. To focus on their sport, they need to avoid getting caught up in the political or bureaucratic dilemmas that can arise if they fail to do so. n Dr Leonie Kelleher OAM is principal of Kellehers Australia, an LIV accredited specialist in environment and planning law, and member of the Law Council of Australia’s Legal Practice Section Executive and the Australian Planning and Local Government Group. She has more than 30 years’ experience in planning and property and is the author of several publications. Hubert Algie is a lawyer at Kellehers Australia, chair of the LIV Environmental Issues Committee and member of the LIV Planning and Local Government Committee. The authors acknowledge the assistance of Kellehers Australia law clerk Freeman Zhong in preparing this article. 1. Victorian Planning Provisions, cl 74. Eg, Major Sports and Recreation Facility, Indoor Recreation Facility, Restricted Recreation Facility, Open Sports Ground, and Outdoor Recreation facility. 2. Victorian Planning Provisions, cl 72. 3. In Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 1526, VCAT held that one public land manager could delegate its power to another, but a tenancy agreement was not, by itself, enough to do so. 4. See, for example, Central Highlands Water v Ballarat CC (No 1) [2006] VCAT 1297 where a water authority applied for a planning permit and, when Council refused, it tried to argue that it was a public land manager. VCAT held that there could be more than one public land manager, but that in this case the water authority was not a public land manager. 5. Note 4 above. 6. Local Government Act 1989, Reference Areas Act 1978, National Parks Act 1975, Fisheries Act 1995, Wildlife Act 1975, Forest Act 1958, Water Industry Act 1994, Water Act 1989, Marine Act 1988, Port of Melbourne Authority Act 1958 and Crown Land (Reserves) Act 1978. 7. Eg, Regal Hotel Pty Ltd v Port Phillip CC [2007] VCAT 1526; Central Highlands Water v Ballarat CC (No 1) [2006] VCAT 1297. 8. Note 2 above, cl 36.02-1. 9. Note 2 above, cl 36.02-6. 10. Note 2 above, cl 36.03-1. 11. Note 2 above, cl 52.06-3. 12. Note 2 above, cl 45.01. 13. Note 2 above, cl 45.01. 14. Note 2 above, cl 45.01-5. 15. Note 2 above, cl 45.01-5

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