The Applicant's main stated reason for the floodlighting is to enable meetings in the hotter months to start and finish later so that more racing is outside the hottest part of the day. A secondary reason was said to be that less water would be needed for dust suppression.
Six lights are proposed. A 3,000 watt light is to be installed on each of two towers 21.3 m high, located in the grassed centre of the Speedway. These lights will floodlight the northern and southern parts of the track. A 1,500 watt light is to be installed on each of four towers 15. 2 m high. One of these towers is in the grassed centre of the Speedway and others are just outside the track on the north and west side. A generator located in the centre of the Speedway will power the lights.
[2]
In issue is not that the Speedway has existing use rights, but the characterisation of those rights.
For the following reasons, the Council has incorrectly characterised the existing use rights as, in effect, a 'daytime dirt track speedway'. The Respondents essentially support the Council's characterisation.
In my view, the correct characterisation of the existing use right is 'motor racing speedway'. The existing use right is not confined to daytime racing or practice.
The right applies to that part of the Reserve occupied by the Speedway, including the area immediately surrounding the Speedway used for associated purposes, such as access, parking, a pits area, spectator facilities.
The task of characterising rights requires ascertaining the purpose (or 'real and substantial purpose') for which the buildings and works at the speedway were being used before the scheme commenced, with a view to liberally construing those rights to the extent that the language in its context allows.[2] The purpose is not defined by reference to the extent of particular activities that take place.[3]
This scheme confirms this approach because it requires the right to be characterised by 'the purpose of the actual use, subject to any conditions or restrictions applying to the use at that date', and not by reference to scheme definitions.[4]
For present purposes, this means the approach is not to characterise the right in accordance with number of racing or practice days per year, the number of races or vehicles in each race, the type of driver, and the times in which racing or practice occurs on each day etc. This approach loses sight of the purpose of the actual use.
The purpose is subject to conditions or restrictions at that date. A 'condition' should be founded in a planning control eg a permit or a scheme. There is no such condition in this case because speedway use started in 1952. A 'restriction' is not derived from reference to the extent of activities, and is likely to have to be founded in a planning control.[5]
The existing use, so characterised, is a section 3 use in the PCRZ. It is not a use conducted for or on behalf of the public land manager.[6]
In making this finding, I have had regard to Moorabool SC v Ramsay.[7] This case concerned a speedway near Ballarat. It is unnecessary to discuss this case in any detail. I merely observe that the Tribunal stated that if a motor racing track (as the use was characterised in that case) commenced before the commencement of the relevant scheme without any relevant planning restrictions, the use may continue free of any non-planning restrictions.[8] In this case, the use predates both the commencement of the relevant scheme as well as any prior planning control.
I now turn to consider whether the proposal meets existing use requirements in the scheme.[9]
The first issue is that a permit is required for buildings or works for a section 3 use for which an existing use right is established.[10] Floodlights are a building or works. Floodlighting does not change the purpose of the existing use right.[11]
A permit must not be granted for buildings or work unless the buildings or works complies with scheme requirements.[12] The parties brought no requirement to my attention that could not be complied with.
The second issue is whether, if the Speedway was floodlit, any condition or restriction to which the existing use is subject would continue to be met. Evening use is not a relevant condition or restriction, so this requirement is met.
The third issue is the amenity provision. It provides an existing use may continue provided -
[3]
The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.[13]
[4]
I accept that evening use of the Speedway is a change in activities. However, this provision does not apply to all changes in activities, just those beyond the limited purpose of the use preserved by the existing use right.[14] The relevant limited purpose is, as I have found, motor racing speedway. Evening use is not beyond that purpose.[15]
Even though I find in this case that evening racing is not a relevant change of activity, I am required to consider, under other relevant provisions of the scheme, the amenity consequences of the proposal. I now turn to those considerations.
[5]
The proposal is for development, not use, of the land.
The Respondents are mainly concerned about noise in the evening generated by vehicles on the Speedway and associated noise such as from the public address system. These concerns are irrelevant. Consequently, no conditions restricting noise emissions could be included on a permit granted in respect of this Application.
The assessment of the Application is limited to the amenity effects of the floodlights.[16]
The scheme requires me to consider zone purposes and relevant local policy.
The purposes of the PCRZ relevantly include -
To protect and conserve the natural environment ... for their ... landscape .. values.
To provide facilities which assist in ... interpretation of the natural environment with minimal degradation of the natural environment ... .[17]
Local policy includes ensuring that development of land abutting the Murray River 'is carefully assessed, particularly with regard to effect on ... visual amenity of the landscape'.[18]
If the lights are too tall and if light spills beyond the Reserve, the visual amenity of the landscape in the Murray River environs may be damaged and the protection of the natural environment of the PCRZ for its landscape values may be affected.
At my inspection, I estimated the maximum height of existing mature eucalypts between the Speedway and Wahgunyah at about 15 m. That vegetation is denser around the Sandy Creek than nearer the Speedway. I estimate that the land near the mid-point along Traton Street (the nearest street in Wahgunyah) is about 10 m higher than the Speedway.
Consequently, the two lights at about 21 m above the centre of Speedway are likely to project above surrounding vegetation and have an adverse landscape impact at night and the glow is likely to be visible from various parts of Traton Street. By condition, I will require all light towers to not exceed a height of 15.2 m.[19]
Lowering the height of the two light towers will therefore ensure that the amenity of the area is not further damaged by the lights.
The final consideration is whether the permit could or should limit the hours of operation of the lights.
Having regard to existing use rights, permit conditions cannot require racing to occur on specified days or to finish at specified times of the day. However, conditions can restrict the use of a permitted development, including (in this case) when floodlights may be operated. It would be unreasonable to allow the lights to be used all night on every day of the year. This extent of illumination would damage the amenity of the area. The club does not seek such permission and proposes the lights be switched off at 10.30 pm on race days.
I will therefore include a condition that limits the operation of the lights to seven evenings per financial year.[20] By condition, the lights will only be able to be used on either a Saturday or a Sunday on a long weekend (as proposed by the Applicant) and must be switched off by 10.30 pm. The condition will also ensure there is at least two weeks between floodlit evenings, generally in line with the current racing program. The Speedway must use other existing lighting for any later activities on a race day such as final presentations, closing the Speedway and the departing of participants and spectators.
The Applicant stated it has a longer term objective of attracting a 'Nationals' event at the Speedway. This would be likely to be over two days and two evenings. This permit will not authorise the use of the lighting on consecutive nights. If, after a period of operation of evening racing, the Applicant wishes to pursue a Nationals event over consecutive evenings, an application to amend this permit could be made at a later date.
[6]
I briefly mention that the Council overlooked that the Applicant failed to include a flood risk report in the permit application, as required by the FO.[21] The Council also failed to refer the permit application to the Catchment Authority as also required by the FO.[22]
I accept the submissions of the Council, which were not opposed by the Respondents, that light poles, underground cabling and a ground level generator is unlikely to affect flood risk. I will therefore disregard the failure to comply with those requirements of the FO.[23]
It is irrelevant for the purposes of this Application that the use of afternoon and evening race meetings on a Saturday may clash with use of the Reserve by the other sporting groups and may therefore be prohibited by the current rules of the committee of management.
[7]
The decision of the Council will be set aside and a permit granted subject to conditions, in accordance with these reasons.
[8]
Wahgunyah Racecourse and Recreation Reserve, Wahgunyah
[9]
Before the development hereby approved starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by 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 three copies must be provided. The plans must show -
(a) Detailed site plan including the location and orientation of light poles and light fixtures so as to avoid light spill and glare external to the site.
(b) Detailed design of the proposed lighting including fully dimensioned elevation plans of the poles and baffles.
(c) Colours of the poles and light fixtures to be neutral earthy tones so as to blend with the vegetated background of the area.
(d) No pole with an overall height exceeding 15.2 m above the level of the ground on which it is fixed.
The layout and design as shown on the plans endorsed pursuant to condition 1 must not be altered without the written consent of the Responsible Authority.
The use or operation of one of more of the lights is restricted as follows -
(a) The lights may be used or operated on no more than seven evenings in any one financial year.
(b) The lights may only be used on -
(i) a Saturday, or
(ii) a Sunday if the preceding Friday or following Monday is a public holiday in Wahgunyah.
(c) All lights must be turned off by 10.30 pm on any evening.
(d) The lights must not be used on a day that is less than fourteen days after the day on which the lights were last used.
Lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the Reserve and so as to prevent any adverse effect on adjoining land by reason of the appearance of such structures, light glare or spillage.
All external cladding and trim of the proposed lighting shall be of a non-reflective muted colour. Any painted surfaces shall be maintained to the satisfaction of the responsible Authority.
Before the development starts, a detailed landscape plan prepared to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the landscape plan will be endorsed and will then form part of the permit. The plan must show screen planting around the perimeter of the speedway site using native, locally indigenous trees that will provide a suitable landscape buffer to adjoining land and visually integrate the development with its surrounding environment.
Within one year of the date of this permit the landscaping works as shown on the landscape plan endorsed pursuant to condition 5 must be carried out and completed to the satisfaction of the Responsible Authority.
All landscaping must be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.
This permit will expire if the development is not completed within two years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the period expires or within three months of the date of expiration.
[10]
[1] Mr Young and Mr & Ms Gratham submitted a statement of grounds opposing the grant of a permit. They were not original objectors and did not appear and apply to be joined as a party under s 60 of the Victorian Civil and Administrative Tribunal Act1998. The Tribunal has nonetheless considered their statements of grounds in accordance with s 98 of that Act.
[3]Stonnington City Council v Southern Property Corporation Pty Ltd[2006] VSC 435 at [25].
[13]
[5]Stonnington City Council v Southern Property Corporation Pty Ltd[2006] VSC 435 at [31].
[14]
[6] Clause 36.03-3 of the PCRZ requires an application to have the written consent of the public land manager to either the making of the application or the proposal. The public land manager of the Reserve is the Minister administering the Crown Land (Reserves) Act1978, having regard to the definition of public land manager at clause 72 of the scheme and the fact that the Reserve is temporarily reserved Crown land. In a letter from the Minister's Department dated 28 June 2010 to the Applicant, the Department consented to 'six concrete light poles and underground cabling on the Speedway' provided the committee of management consents and 'all statutory requirements (if any apply) are complied with'.
[9] In considering these requirements, I emphasise that these are planning law requirements and any evening racing would need to comply with relevant requirements under other branches of the law.
[11] I observe that if the Applicant chose to bring portable floodlighting for evening racing, rather than install fixed floodlighting, no consent would be required under the scheme.
[20]
[12] The scheme cl 63.05, first dot point. I observe in passing that if floodlights were installed, there would be no inconsistency with the requirement that the land as developed (in this case, with the floodlights) can be used in accordance with the scheme (clause 61.05 of the scheme).
[14] By way of analogy, assume the limited purpose of a use preserved by an existing use right is the manufacture of furniture. If buildings and works are carried out that enables manufacture of furniture over longer shifts each day, there is no change in the limited purpose, even though its hours of operation may have changed. If, however, buildings and works are carried out so that the new activity of retail sales of furniture also commences, the clause operates to ensure 'the amenity of the area is not damaged or further damaged' by the sales activity.
[23]
[15] I do not have to decide what other activities would or might be within or beyond this purpose. I observe that racing on any day of the year, an increase in the number of races on a race day, an increase in the number of vehicles in a race or longer races are not likely to be changes in activities beyond the purpose. The racing of a different type of vehicle may be beyond the purpose.
[24]
[16] This is consistent with the approach adopted by the Tribunal in Muller v Moorabool SC[2007] VCAT 2374. In Muller, the Tribunal considered a proposal that included replacing portable floodlighting at a speedway with taller fixed towers at the same speedway that was considered in Moorabool SC v Ramsay[2006] VCAT 2425. The Tribunal considered the new floodlighting would damage the amenity of the area and refused to permit the floodlighting.
[25]
[19] I recognise that, to ensure the required level and extent of illumination, the two lights may need to be replaced by three lights.
[26]
[20] The Applicant finalises the dates for the forthcoming December to June racing season by the start of the financial year.