OPEN SPACE – “BANNING” SPORT AND FITNESS ACTIVITIES

Immediately prior to the Council Election,  two well publicised incidents of alleged “banning” of fitness activities in Glen Eira parks occurred (Frisbees in Caulfield Park, Zombies Fitness in Virginia Park).  Rather than let these incidents get lost in the election hubbub and in response to a resident’s email, GERA is revisiting these incidents and their attendant issues.

Given that

  • Glen Eira’s well publicised “banning” instances have been  occurring, every 2-3 years, since 2007.
  • Glen Eira has the least open space in metro Melbourne (Glen Eira has 4 hectares per 1,000 population vs. metro Melbourne average of 7 hectares per 1,000 population)
  • Increasing development invariably results in diminishing private open space and a higher demand on public open space

GERA believes that it is definitely time that Council clarified its stance on parkland usage by sporting groups.  Repeatedly Local Law (Clause 326) – “Organised Activities” has been acknowledged as inadequate and is need of review;  Clause 326 is open to interpretation and hence its application is inconsistent.  Since other Councils don’t have the issue, the issue is not unsolvable – what is missing in Glen Eira is the will to resolve.

Publicised Incidents

Below is a listing of the well-publicised incidents since 2007.  While it may be assumed that more incidents, that didn’t get publicised, have occurred over this time, GERA does not have knowledge of these. 

  • Shleppers – May, 2007 – an “informal” group of Jewish footballers who played at Caulfield Park on a Sunday morning.  The dictionary definition of “shlepper” is a clumsy or stupid person.   Purported to have been fined $5000.00, later waived

Channel 7 – Shleppers – 27th May 2007

  • Stars Slam Fun Ban – November, 2007 – an informal group of sports stars who, with their children, met and ran in Caulfield Park for family fun and exercise.

Herald Sun, November 2007 – “Stars Slam Fun Ban”

Australian, 30th November, 2007 – “Council backs down on fines”

  

  • Caulfield Park Social Soccer Club – March, 2010 – an informal weekly group of players.  Fine waived after permit application lodged.  This incident resulted in a long running dispute with Council as the club claimed inequitable treatment since another regularly playing group (Frisbee players) was not similarly fined – this dispute was later nicknamed the “Frisbee Affair” and allegedly Cr. Lipshutz’s son was a regular player/organizer.  Among various Council communications, the dispute involved a large number of Public Questions to Council.  The dispute, although not resolved, quietened down after the 19 July 2011 Council Meeting Minutes -Section 11.4  when Council deemed all public questions regarding the Frisbee affair as “harassment” and would no longer either read or answer them at Council Meetings.

 Leader – 1st April, 2010 – “Kicked Out of Caulfield Park”

Since the revival of the Frisbee affair in October, 2012 (the same group of Frisbee players mentioned above now being “banned”) the Caulfield Park Social Soccer Club lodged 15 public questions at the 16th October, 2012 Council Meeting (Minutes – Section 11.4).

Leader – 16th October, 2012 – “Footy Group Demands Answers on use of Glen Eira Parks”

Of the 15 public questions raised 1 was answered and the remaining 14 were ruled “out of order” as they did not comply with Council’s election Caretaker Policy (ie deemed to refer to electoral matters).  The question that was answered related to the monitoring of the Frisbee group – Council’s response stated that there is a regular gathering in Caulfield Park late on Friday afternoons by people playing what appears to be Ultimate Frisbee. 

  • Frisbee Players – 16th October 2012 – the  informal group of Frisbee players mentioned above, who regularly play in Caulfield Park on Friday afternoons.  This instance received considerable radio and print media coverage in Victoria and interstate

 Glen Eira Leader – 17th October, 2012 – “Frisbee ban sparks parks review”

TNT Magazine – 11th October, 2012 – Glen Eira cop tells kids they need au 120 to play frisbee in the park

 

  • Zombies Fitness Group – 23rd October, 2012 – following hot on the heels of the Frisbee Players, the Not-for-profit group Humans Vs Zombies was told its tag games were “unsuitable” for Virginia Park, Bentleigh.

 Leader, 23rd October, 2012 – “First frisbees, now fitness”

Please note that contrary claims are made at the start of the Leader article (“Not-for-profit group Humans Vs Zombies was told its tag games were “unsuitable” for Virginia Park Bentleigh”) and at the end of the article (Council public relations chief Paul Burke told the Leader the council hadn’t received Humans vs Zombies’ request nor any applications “from Clingons, Romulans, Daleks or Goths”.).

Interestingly, in a 3AW radio interview with Neil Mitchell on 23/10/2012 (the same date as the Leader article which indicates that a request had not been received), Cr. Lipshutz discusses the letter of refusal sent to the Humans Vs Zombies and admits that the wording of the letter was “unfortunate”.

This same interview also refers to the 2012 Frisbee affair, which Cr. Lipshutz describes as being misreported (no “banning” occurred), politically motivated (close to the elections) by a resident who had lodged a recent planning application.  Please note this planning application was approved by Council, on 24th July, 2012, subject to certain conditions ( July Council Meeting Minutes– Section 9.3) and as per the 24th September, 2012 Council Meeting Minutes (Section 9.3 – VCAT Watch, New Appeals Lodged – Planning Permit P2381/2012), is subject to a VCAT appeal by an objector, not the applicant.

In each of the above cases, Council has consistently claimed that

  • It has “reasonable laws reasonably enforced” and that  “anyone can play in our parks” yet admits to ambiguity in the Local Law – clause 326 which needs to be reviewed.
  • No “banning” has occurred.  The groups concerned were not  “banned”  but rather were advised that they would have to get an “allocation” (ie booking or reservation)*, which ensures ground availability, if they wish to play on a regular basis at specific times and locations.  However,  this does not mean “that if kids want to play Frisbee they need an allocation”
  • Any fines that had been issued (eg. Shleppers) were later reviewed and waived.

 What has Council done

 As per above, in each instance, discussions at Ordinary Council Meetings have focussed on Local Law (clause 326 – “Organised Activities” and slated it for review by the Council’s Counsel and the Local Laws Committee (established in 2006,  Cr. Lipshutz has been Committee Chairman since inception).   The review has always been open ended (no time limit) and hence it remains in abeyance.  There has not been any formal proposal related to clause 326  put to an Ordinary Council Meeting since 2009.

Local Law – clause 326  currently reads

“Organised activities

326.     Participating in, or allowing, a formal, structured or organised sporting activity, including practice, or being responsible for organising a structured social activity such as a wedding or concert, on Council Land other than in designated locations.

 Direction: A direction issued under clause 303 in respect of a breach of this clause may include, but is in no way limited to, a direction requiring a Person participating in or allowing a formal, structured or organised sporting activity on Council Land without a Permit to immediately cease the activity and leave the Council Land. 

This clause should not unreasonably capture smaller informal groups.

 Penalty: 3 Penalty Units”

Note:  With the exception of the sentence “This clause should not unreasonably capture smaller informal groups” the above generally constitutes the 2000 Local Law. Following a review in 2009, the Local Law was amended to include the highlighted sentence.

The ambiguity referred to by Council relates to the absence of definitions (eg. what is formal, structured and/or organised) which leaves the law open to interpretation.  The 2009 amendment, which also lacks definitions (eg. what is smaller, informal and/or unreasonable), is equally open to interpretation.  The Paul Burke quote in the 2007 Herald Sun article (refer above link)  – “It’s a judgment call – “if there’s a group of people turning up regularly to use the facility, any reasonable person would believe it’s an organized group” – is just as applicable today as it was 5 years ago.

The history of addressing this issue repeated itself at the 16th October, 2012, Council Meeting, when the two October, 2012 incidents (Frisbee group and Humans vs Zombies) was discussed.  Once again the need to review the law was raised and it was noted that

  • the Corporate Counsel has been too “busy” on other matters (eg VCAT) to review the issue (5 years?)
  • no mention was made of a Local Law Committee review
  • the Local Law should be reviewed in its entirety rather than a “piecemeal”.  Since elections are to be held shortly, this review should be undertaken by the next Council.

 GERA’s Comments

 As mentioned previously, use of parkland is an important issue and its importance will only increase as development within metro Melbourne, particularly Glen Eira, continues.  GERA is appalled that the “organised” sport issue has gone unaddressed for 5 years, despite repeated well publicised incidents occurring.  While there may be some justification in blaming deficiencies in the Local Law, GERA contends that Council’s inability to develop an equitable solution points to a lack of  will to resolve and  Council should consider introducing  the application of simple common sense in Park Ranger training.

GERA is perplexed by Council’s lack of will to resolve and believes that the current Councillors should redress this by making it a priority to address the park sport and fitness activities issue.

 

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Footnote

* Examples of allocation types and costs, excluding public liability insurance, are

One off                                    $120.00

6 month allocation               $300.00

Estimated public liability insurance for 6 months $1200.00

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