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[2006] VCAT 1784
plaintiff. VCAT ordered that (1) the use of the land for a private motor bike track is ancillary to the use for a dwelling and is not a prohibited 'motor racing track' in the Green Wedge Zone; (2) planning...
VCAT held that a private motocross-style dirt track created on rural residential land for exclusive use by residents is an ancillary private use of the dwelling (a hobby) and not a prohibited 'motor racing track' in the Green Wedge Zone. The Tribunal treated the track's earthworks as requiring planning permission under the zone and relevant overlays, but found no separate 'use' permit was needed for motor racing because the activity lacked commercial/competitive characteristics and was tightly constrained by the local law licence. The proceeding was listed for directions to consider remaining grounds of refusal relating to the works.
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1,823 words · generated 20/08/2026
Mr Greg Ahrbeck sought retrospective planning permission for earthworks that created a private motor bike track on his property at 665 Arthurs Seat Road. The property contains a dwelling, a parental abode, an animal training facility, dressage arena, horse paddocks and other rural features. Council treated the proposal as a use and development for a 'motor racing track and associated earthworks' and refused permission on the ground that a motor racing track is a prohibited use in the Green Wedge Zone Schedule 2. The applicant sought a preliminary determination from VCAT whether the track is ancillary to the residential use or instead constitutes a prohibited motor racing track, and what permits are required under the planning scheme and overlays (Reasons [1]–[3], [6], [12]).
No linked legislation citations have been extracted yet.
At hearing the Tribunal (Member Komesaroff) considered factual material about the track's construction (berms and tabletop features up to 2.5 m high, follows natural contours, approximately 200 m end-to-end), its private and restricted operation, and the existence of a local law licence LL2005/0031 issued by the council that tightly restricts vehicle identity, riders to residents, times, durations and numbers (Reasons [2], [6], [18]–[19]). The core legal question was whether the track is an ancillary part of the dwelling (so that the land remains dominantly residential) or whether it must be characterised as a separate 'motor racing track' use that is prohibited in the Green Wedge Zone (Reasons [12]–[17], [20]).
The Tribunal concluded the track is ancillary to the dwelling, that the activity lacks a competitive character necessary to bring it within the 'motor racing track' definition, and that planning permission is required only for the earthworks (works) under clause 35.04-4 of the Green Wedge Zone Schedule 2 and the applicable overlays (ESO9, SLO6), not for the 'use' of the land as a motor racing track (Order 1–2; Reasons [24], [27], [32]). The Tribunal also directed a further practice listing to consider remaining grounds of refusal concerning the earthworks and overlay matters (Order 3; Reasons [33]).
Three strands of reasoning underpin the decision.
Ancillary-use/dominant-purpose principle. The Tribunal applied the well-known principle (cited from Lizzio and Foodbarn at Reasons [20]) that where part of land is used for a purpose subordinate to the dominant purpose, the whole land is regarded as being used for the dominant purpose. The Tribunal found that the motor bike track was subordinate to and part of the enjoyment of the dwelling on the land rather than an independent operation (Reasons [24], [32]).
Characterisation against the statutory definition. The planning scheme defined 'motor racing track' as land used to race, rally, scramble, or test vehicles, and included competitive motorsports (Reasons [17]). The Tribunal inspected the facts and found that the activity lacked competitiveness and public/spectator elements; it was private, resident-only riding with strict limits on vehicles, riders, numbers and times as evidenced by the local law licence. The absence of racing/competitive activity was treated as central to excluding the use from the motor racing track definition (Reasons [25]–[27]).
Evidential weight of regulatory constraints. The existence of the local law permit (LL2005/0031) imposing detailed operational limits was used as evidence that the activity was tightly constrained and purely private, undermining the label of an independent motor racing operation (Reasons [18]–[19]). The Tribunal contrasted this private constrained operation with the independent, potentially commercial/professional training facility considered in Stuart J Castle PL v Cardinia SC, which it distinguished because that facility involved a non-resident professional training use (Reasons [28]–[29]).
On the zoning and overlay point, the Tribunal noted that the Green Wedge Zone provides that a permit is required for a dwelling (a section 2 use) and that works associated with a section 2 use require planning permission under clause 35.04-4; meanwhile ESO9 and SLO6 also require permits for works (Reasons [7], [10]–[11]). Hence once the activity was characterised as ancillary to the dwelling, the relevant permitting obligation became one for earthworks rather than for use (Order 2; Reasons [7], [10], [11], [32]).
Before this decision the Tribunal relied on settled ancillary-use principles from Lizzio (High Court) and Foodbarn (Glass JA) which direct that subordinate activities are treated as part of the dominant purpose of the land (Reasons [20]). The decision applies that principle to a private motor bike track context and confirms that where a private recreational activity is subordinate to residential use, it will not necessarily change the character of the property to a prohibited leisure/recreation use under a Green Wedge zoning regime.
After this decision, the practical proposition is that private recreational tracks created and used by residents, subject to restrictions that demonstrate a lack of commercial/competitive character, may be characterised as ancillary to the dwelling rather than a prohibited motor racing track. The Tribunal also emphasises that the scheme’s definitions and the presence or absence of competition, spectators, public access and commercial training components are important indicators of characterisation (Reasons [17], [25]–[29], [30]–[31]).
The decision also highlights the different regulatory consequences of characterisation: an ancillary private use may still require planning permission for works (earthworks) and remain subject to overlays, even if the 'use' itself is not a prohibited category under the zone (Reasons [7], [10]–[11], Order 2).
Reasons [20] (citing Lizzio/Foodbarn): "where a part of land is used for the purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose."
Plain English: If one activity on the property is a side or subordinate activity to the main use (for example a hobby for people who live there), the whole property is treated as being used for the main purpose (the house), not as an independent business.
Reasons [17]: statutory definition of 'motor racing track' as land used to race, rally, scramble, or test vehicles, including competitive motorsports.
Plain English: To be a motor racing track under the planning rules, the land must be used for organised or competitive vehicle activity, not just occasional private riding.
Reasons [19]: "The upshot of this local law licence proves that the motor bike riding is purely private, restricted to residents ... and to no more than one hour at a time."
Plain English: The council licence limits who can ride, what machines can be used, and when; these restrictions show the activity is a private, domestic pastime rather than a public or commercial racing use.
Reasons [27]: "It is my opinion that the land use does not fall squarely within this definition, as no 'competitive' activity is involved..."
Plain English: Because there is no racing or competition, the track does not match the planning scheme's definition of a motor racing track.
Order 2 and Reasons [7], [10]–[11]: only earthworks require planning permission under the zone and overlays.
Plain English: Even though the use itself is not a prohibited motor racing track, the physical earthworks that formed the track need planning approval under the zone and overlay rules.
This decision is most directly triggered where:
If those elements are present, this decision supports characterising the constructed recreational feature as ancillary. Conversely, if the use is open to non-residents, involves professional trainers, has a competitive focus, or includes spectators or commercial charging, this precedent is less likely to apply (cf. Reasons [28]–[29] distinguishing Stuart J Castle).
The judgment itself cites and applies earlier authorities (Lizzio and Foodbarn) and distinguishes a VCAT decision (Stuart J Castle) on facts (Reasons [20], [28]–[29]). The decision does not include any discussion of later appellate treatment or subsequent authority applying this decision. The Tribunal frames its holding factually: the ancillary character was established on the particular constraints and evidence before it (local law licence, private residents-only use, absence of competition). Therefore later courts or tribunals assessing whether to follow this decision would likely focus on the presence or absence of the same factual indicia (private use, restrictions, lack of competition). The decision should be read as an application of the established ancillary-use principle to these facts rather than as a broad rule exempting all private recreational tracks from statutory definitions.
This deep dive has relied solely on the VCAT decision text (Ahrbeck v Mornington Peninsula SC [2006] VCAT 1784) and extracts the Tribunal's reasoning and textual references (paragraphs cited above). It does not incorporate external cases beyond those cited within the reasons.
Disclaimer: This is general legal information only, not legal advice. I may make mistakes. Before you act on this, rely on it, or use any draft based on it, get a qualified Australian lawyer to check it.
Planning and Environment; Green Wedge Zone; Private motor bike track; whether ancillary to dwelling; whether prohibited as a 'motor racing track'; Characterisation.
Ahrbeck v Mornington Peninsula SC [2006] VCAT 1784
1 The use of the land for the purpose of a private motor bike track is ancillary to the use of the land for a dwelling, and does not fall within the prohibited use of 'motor racing track' in this Green Wedge Zone.
2 Planning permission is only required for earthworks, not for use, under the Green Wedge Zone Schedule 2, cl. 35.04-4; Significant Landscape Overlay Schedule 6, cl. 42.03-2; and the Environment Significance Overlay Schedule 9, cl. 42.01-2.
3 As the Responsible Authority's grounds of refusal issued 2 March 2006 are based upon 'use' permission, and as only 'works' permission is required under the planning scheme, this proceeding must be listed for a directions hearing in the Practice Court to assess the relevance of the remaining grounds of refusal on the merits and to consider the manner of the future conduct of this proceeding.
Mr Paul Chiappi of counsel, instructed by Deacons Lawyers.
Mr Richard Umbers, town planning consultant of Peninsula Planning Consultants.
1 Mr Ahrbeck applied to council retrospectively for permission for earthworks. The earthworks are for a private motor bike track on his land which he also uses for his family dwelling, a parental abode, sheds and a large building housing an animal training facility. The latter facility also boasts horse paddocks and a dressage arena.
2 The application plan indicates a serpentine circuit with shaped 'berms' and jumps to a height not exceeding 2.5 metres above natural ground level. The application plan also notes that the track follows the natural contours of the land. Despite the application being lodged for earthworks only, council assessed the application as being for use and development of a 'motor racing track and associated earthworks'.
3 Council opined that Mr Ahrbeck required a 'use' permit for the motor racing track, then decided to refuse permission on the basis that the use is prohibited in law under section 3 of the Green Wedge zone (Schedule 2). There were other merits grounds of refusal as well, also pertaining to the use of the land for this purpose.
4 The track is on land that presently includes a large house, a smaller parental abode, a large animal training facility, an outdoor dressage arena, a number of horse paddocks with individual stables, other paddocks, two dams, pine windrows and a packet of native vegetation.
5 The locality is undulating lush vegetated countryside boasting valuable homes and fine views.
6 The proposal is for a trail or track for riding trail bikes or motor bikes. The track is in part on the natural ground level and in part consists of a number of built-up or formed turns and 'tabletop' elements. The built-up elements are formed from dirt and the rest of the track is unmade in that there is no gravel or other base laid down. The built-up elements appear to be in the order of 0.5 metres to 2.5 metres high. The track may be in the order of 200 metres from one end to the other. The track is solely for the private use of the occupiers of the land. There are no spectator facilities or public access.
7 The land lies within the Green Wedge zone (Schedule 2). Within this zone a permit is required to use land for the purpose of a dwelling, which is a section 2 use of the land. Since dwelling is a section 2 use, any works associated with a section 2 use also require planning permission, pursuant to clause 35.04-4. This is on the proviso the earthworks are not prohibited as in fact constituting a motor racing track under section 3.
8 Since a permit is required for earthworks under the first dot point of clause 35.04-4, I have not investigated whether a permit is also needed under the Schedule 1:
Earthworks which change the rate of flow or the discharge point of water across a property boundary.
9 Although the subject site is overlayed by ESO9, ESO17, ESO28, SLO1 and SLO6, the track itself only lies within Environment Significance Overlay 9 and Significant Landscape Overlay 6.
10 Pursuant to the ESO9, clause 42.01-2, a permit is required to carry out works, and there is no exemption under Schedule 9.
11 Pursuant to the SLO6, a permit is required to carry out works, and there is no exemption under Schedule 6.
12 The applicant has sought a preliminary determination whether the use of the land for riding his family's trail bikes is ancillary to their residential use of the land or whether a planning permit is required for motor racing track as well as a permit for earthworks.
13 Motor racing track is nested under 'Leisure and Recreation' in clause 74. Leisure and Recreation is defined as:
14 The nesting table at clause 75, nests major and minor sports and recreation facilities and motor racing track thereunder.
15 A major sports and recreation facility is defined as land used for leisure, recreation or sport, and where there is substantial provision made for spectators, such as a grandstand, and to which spectators are usually charged admission.
16 A minor sports and recreation facility is defined as land used for leisure, recreation, or sport, without substantial provision for spectators, and which is usually open to non-paying spectators. Neither of these definitions is apt here.
17 A motor racing track is defined as:
Land used to race, rally, scramble, or test, vehicles, including go-karts, motor boats, and motorcycles, and includes other competitive motor sports.
18 One of the unusual aspects of this case is that council has promulgated a local law No. 2 (2005) pursuant to which Mr Ahrbeck has a permit No. LL2005/0031 dated 24 January 2006, subject to the following extremely stringent conditions:
2. The riding of motor bikes is restricted to the following nominated vehicles:
i
Kawasaki KX250F owned by Mr Guy Ahrbeck
ii
Kawasaki KX65 owned by Mr Ahrbeck Jnr age 11
iii
Kawasaki KLX 110 owned by Ms Ahrbeck Jnr age 9
iv
Kawasaki KDX 50 owned by Mr Ahrbeck Jnr age 6.
No other recreational vehicles, except those specified in Clause 2 of this Permit are to be used at any time.
3. The riding of the motor bikes on the land in the approved area is restricted to persons who permanently reside at the property.
4. No more than four (4) motor bikes may be ridden at any one time during an approved riding period.
5. The riding of motor bikes is restricted to the following approved riding periods:
a) Weekdays, excluding Public Holidays, between 4.00pm and 6.00pm on any two days only of each week**.**
The maximum riding time must not exceed one hour.
The maximum riding time must not exceed one hour.
6. Riding may only occur on the designated track and in the immediate area surrounding the track.
7. Motor bikes must not be ridden on any Smog Alert Day or on any Day of Total Fire Ban. ... ... ...
a) This Permit is valid for twelve months from the date of issue.
19 The upshot of this local law licence proves that the motor bike riding is purely private, restricted to residents of the dwelling and restricted to a two-hour period on any one day and to no more than one hour at a time. In other words, it is an extremely constrained use of the land. Given this licence, it is difficult to see how council could treat Mr Ahrbeck's application as one for a 'motor racing track'.
where a part of land is used for the purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose. The subordinate purpose is merely incidental or ancillary to the dominant purpose.
where the whole of the land is used for more than one purpose, but the other purposes are subordinate, the whole of the land is regarded as being used for the dominant purpose.
where the whole of the land is used for more than one purpose, none of which subserves the others, it is irrelevant to ask which of the purposes is dominant. If any one of the purposes is operating in a way which is independent and not merely incidental to others and it is prohibited, it is "immaterial that it is overshadowed by others".
21 Mr Chiappi for council submits the use falls squarely within the definition of motor racing track. He bases this upon the activity requiring the construction of a track, the track being of a significant scale, and located in a particular area on the property which excludes other activity taking place in that area. But the same can be said of a swimming pool or tennis court.
22 Mr Chiappi opines that the construction and use of such a track is not generally seen as a usual or common aspect of a dwelling, but the same can be said of many hobbies.
23 The principal uses of the land are dwelling and horse training and other horse related activities. Mr Chiappi admits this does not preclude other discrete uses being conducted on the land, nor that motor bike riding on a farm can be an ancillary activity to a farming use. It is, he says, the scale and extent of riding, however, that my take the use outside that ancillary to animal training and into the separately defined motor racing track use that requires a planing permit in a Green Wedge zone.
24 It is my opinion that the track is not ancillary to the farm or animal training establishment, but is ancillary to the use of the land for dwelling. In short, it is a hobby.
25 Mr Chiappi also submits that pursuant to clause 74 of the scheme, a term describing a use or activity ...which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table. Therefore, says Mr Chiappi, since the land is used to scramble motor cycles, it falls squarely within this definition and is prohibited.
26 In my opinion, there are two flaws in Mr Chiappi's argument. Firstly, even if it did fall squarely within this definition, it can be compared to a situation where an industry sets itself up with an ancillary office component, in a zone where an office might be prohibited. It needs no permission even if the office falls squarely within the definition of 'office' because it is a part and parcel of the industry and not an independent entity or use of the land.
27 Secondly, it is my opinion that the land use does not fall squarely within this definition, as no 'competitive' activity is involved, and competitiveness appears to be an integral part of the definition.
Land used for leisure, recreational sport, without substantial provision for spectators, and which is usually open to non-paying spectators.
29 It is my opinion that the purely private use of the subject land by residents thereof, is to be distinguished from an independent and professional or training use to be made of land by a non-resident thereof.
30 Further, particular planning controls such as cll. 52.04, 52.15 and 52.21 which have been gazetted to catch land uses, notwithstanding that they are ancillary, prove that special provision must be made to take ancillary uses outside the purview of automatic [ancillary] use rights in order to 'catch' them.
31 Examples are clause 52.04 covering satellite dishes of certain dimensions:
A permit is required to use land or to construct or install or carry out works for a satellite dish ....even if it is ancillary to another use on the land.
A permit is required to use or develop any land for a heliport or helipad even if it is ancillary to another use on the land.
This clause applies to any private tennis court which is used in association with a dwelling.
32 This land is not being used for leisure, recreation or sport. It is being used for rural activities (animal training facility) and a dwelling. The motor bike track is ancillary to the enjoyment of the dwelling.
33 Mr Chiappi has foreshadowed that there may need to be a hearing as to the appropriateness of the earthworks within the overlay areas, and possibly a claim by the permit applicant under the secondary consent provisions of the existing permits. To that end, I have issued directions for a Practice Day hearing to consider the manner of the future conduct of this proceeding.
[2] (1975) 32 LGRA 157 at 161
Ahrbeck
Mornington Peninsula SC [2006] VCAT 1784
VCAT ordered that (1) the use of the land for a private motor bike track is ancillary to the use for a dwelling and is not a prohibited 'motor racing track' in the Green Wedge Zone; (2) planning permission is required only for earthworks (not for the use) under Schedule 2 to the Green Wedge Zone clause 35.04-4, Environment Significance Overlay Schedule 9 clause 42.01-2, and Significant Landscape Overlay Schedule 6 clause 42.03-2; and (3) the proceeding be listed for a directions hearing to consider remaining grounds of refusal and future conduct (Order 1–3; Reasons [7], [10]–[11], [32]–[33]).
28 Mr Chiappi relied upon Mainwaring M's decision in Stuart J Castle PL v Cardinia SC[3], which held that a motor cycle training facility on private land for the owner's son, who was pursuing a professional career in motor cross riding, and would be supported by professional trainers, was an 'outdoor recreational facility' within the following definition: