Victorian Civil and Administrative Tribunal|2007-06-19

Monea v Binding [2007] VCAT 1063 (19 June 2007)

Planning and Environment; Green Wedge Zone; Land used for residential purposes; Private Motor Cycle Tracks also used for professional training purposes; ancillary use.

Planning and Environment; Local Laws Permits not avoided by obtaining planning permit.

Planning and Environment; Land Subject to Inundation Overlay; Schedule 1 exemption if works ancillary to dwelling; whether motor cross and super cross tracks ancillary to dwelling; whether dwelling considered as a land use or building; permit required.

Planning and Environment; Works permissions required; whether use conditions can be imposed on works permit.

Lot 1 TP023331K, 125 McDonalds Drain Road, Koo Wee Rup

Monea v Binding [2007] VCAT 1063

The enforcement application P175/2006 brought by the responsible authority is dismissed.
The decision of the responsible authority is set aside. A planning permit is not required for the use of the subject land for private motor cycle tracks used in conjunction with a dwelling on the subject land at Lot 1 TP023331K, 125 McDonalds Drain Road, Koo Wee Rup.
The decision of the responsible authority is set aside. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at Lot 1 TP023331K, 125 McDonalds Drain Road, Kooweerup which allows earthworks for the purpose of motor cross and super cross tracks generally in accordance with the endorsed plans. The Tribunal directs that the permit must contain the following conditions:
1. The development must not be commenced until three (3) copies of amended plans have been submitted to and approved by the responsible authority. When the plans are to the satisfaction of the responsible authority, they will become the endorsed plans under this permit. The plans must be drawn to scale and dimensioned in metric. The plans must be generally in accordance with the submitted plans but modified to show far more detail of:
  1. the location of the proposed super cross and motor cross tracks including setbacks from property boundaries;
  2. the location of the jumps to be installed on each track. Such location shall include the widths of the tracks, the height of each jump, and the length of each jump;
  3. landscaping (prepared by a landscape architect or person approved by the responsible authority as having sufficient competence in that field) showing species, locations, planted and mature height and spread of proposed planting including dense planting particularly on the north western and north eastern boundaries of plant drought resistant trees together with an in-ground drip irrigation system to water it;

The layout of the site and the size of the proposed works, as shown on the endorsed plan(s), must not be altered or modified without the consent in writing of the responsible authority.
Once approved, all landscaping works must be completed within six (6) months of the endorsement of the plan(s) under this permit, watered with an automatic in-ground drip irrigation system, maintained at all times and any dead or diseased landscaping and vegetation must be replaced to the satisfaction of the responsible authority.
The use of the tracks is limited to 2.5 hours per day (including rest periods) between the hours of 11.00am - 3.00pm, during weekdays for up to three days per week. No use of the track on the site is permitted on weekends or public holidays.
A log must be kept by permit holders of the dates, days and times of training, which must be made available to the responsible authority upon request.
Use of the motorcycle practice facility must be limited to no more than two motorcycles at any one time, each of which must not exceed a noise level of 97dB(A) when tested in accordance with Motorcycling Australia test procedures.
Noise emission at all times be considered to be 'reasonable' as defined by the Environment Protection Act 1970 having regard to the volume, intensity and duration of the noise, and the time, place and other circumstances in which the noise is emitted.
All stormwater must be conveyed by means of drains to satisfaction points or areas of discharge approved by the responsible authority so that it will have no detrimental effect on the environment or adjoining property owners.
If the motorcycle tracks cease being used for their purpose by the occupant(s) of the subject land, the land must be reinstated within six months of that cessation to the satisfaction of the responsible authority.
No motor repairs are permitted on the site with the exception of running repairs.

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
- The development is not started before two (2) years from the date of the permit.
- The development is not completed before four (4) years from the date of the permit.

In accordance with section 69 of the Planning and Environment Act 1987, 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.

Mr Peter O'Farrell of counsel, by direct brief. Mr O'Farrell called Mr Neville Goddard, Acoustic Consultant, and Mr Trevor Ludeman, Planning Consultant to give evidence.

Mr Lachlan McKay, Mr Frank Sutton, Messrs Norma McMaster, Gwen Lengersdorf, Lois Binding and A Crameri.

The Moneas review council's refusal to permit use and development of a private motor cycle track on their land, on which they live with their family, one of whom is an expert motorcross and supercross cyclist.
The application is to use and develop the land for the purpose of providing a training venue for motorcross and supercross for the son of the owners and applicants. It is a private training facility only.
The Moneas have planning permission to live temporarily in a converted shed on the land while they build their permanent dwelling for which they also have planning permission.
Council has issued an enforcement application, seeking removal of clay mounds created for the supercross track and earthworks created on the land for a motorcycle track, but has agreed that the enforcement application should await the outcome of my decision on the planning permit.

I refused permission to substitute more detailed revised plans for the sketch plan, which had accompanied the application to council, because the objectors complained that no notice had been given of this prior to the hearing. My refusal was pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').

Ancillary use to the dwelling generating no planning permission

I raised the issue of ancillary land use, and queried whether planning permission was required for this land use, even though the Moneas were intent on applying for same.
They had previously applied for a council local law permit and been rejected by council.
Their motivation stemmed from letters written to them by council, which evidenced a position and then a recanting of that position. The Moneas hoped to avoid requiring a Local Laws permit, by obtaining a planning permit for the use. They had not investigated whether works permissions were required, and only applied for use permission.
On 30 March 2007 council's planning investigations officer made the following representation to the Moneas:

Providing that a final decision is handed down in favour of you being issued with a Planning Permit for your son to ride his motorcross/ supercross motorcycle on your property there will be no need for you to obtain a Permit under Cardinia Shire Council's Local Laws as the Planning Permit will cover the use of the land for recreational purposes, which allows it to be used for motorcross/supercross motorcycle training.

On 3 May however, council's manager of local laws demurred, writing:

Under the provisions of Cardinia Local Law No. 10 Environment and Amenity Issues, a permit is required to operate recreational vehicles on private property.

If the application before VCAT is determined in favour of the applicant a permit is still required to be obtained from Cardinia Shire to operate a recreational vehicle on private property. If an application was submitted to Council for use of a recreational vehicle and in view of the intelligence Cardinia Shire has regarding this matter, a permit would be refused.

This decision is strongly supported by Council and its' policy regarding recreational vehicles.

On 9 May, council's senior planning officer confirmed that

In the event the Tribunal directs that a planning permit is to be issued for the above development, a separate permit is required to be issued under Local Law No. 10 to ride a motorcycle on the property, an application for a permit under the local law (sic) refused.

Mr O'Farrell for the Moneas advises that, in the future, an application may have to be made under the Wednesbury[1] principle to test the validity of council's attitude to decision making under its local law in respect of this private motorcycle track.
Pursuant to clause 73.2 of Cardinia's Local Law No. 10[2] under part 25 - Recreational Vehicles, Noise and Fireworks:

on any land zoned ... ... ... Green Wedge ... ... ... [other than land within the Urban Growth Boundary] a permit is required for the use of a recreational vehicle.

All parties agree the subject land does not lie within the Urban Growth Boundary.
'Recreation vehicle' is defined in Local Law No. 10 to mean:

any mini bike, trail bike, motor bike, motor scooter, go-cart or other vehicle propelled by a motor which is used for recreational purposes, but does not include a recreational vehicle whilst engaged in legitimate farming activities or a motorised wheelchair.

It is clear to the parties by now that obtaining a planning permit under the Cardinia Planning Scheme cannot avoid the need to obtain a Local Laws permit, and that if a planning permit is not necessary, a Local Laws permit still is.

The property is situated on the north-west side of McDonalds Drain Road approximately 172 metres south-west of McKays Road, Koo Wee Rup.
The land which has a width of 192.1 metres, a depth that varies from 317.4 metres along the southern boundary to 376.39 metres along the northern boundary and an area of 6.665ha, is relatively flat and contains a green colorbond steel shed, which is currently being used as a temporary dwelling until the permanent dwelling is completed.
The land does not contain any appreciable vegetation apart from pasture grass to feed the cattle grazing on the property and a variety of trees and shrubs planted along the driveway and around part of the boundary and shed.
Filling has been placed on the land in anticipation to construct a motorcross track for Mr Monea's sons (who live with him on the land) to practise motorcross and supercross riding.
Access to the property is from McDonalds Drain Road which contains a 5.0 metre wide all-weather gravel surface. A table drain is located along the southern side of the road.
The surrounding land use comprises rural properties that are mainly used for grazing and horse training purposes. The main Koo Wee Rup drain is on the opposite side of McDonalds Drain Road.
Many surrounding objectors supported council's rejection of the application, complaining of noise emission from the motor cross and super cross training.
The property is close to a number of services. The Koo Wee Rup recreation reserve is approximately 530 metres north-east of the land, the main commercial shopping area is approximately 1.3km south and the local school is approximately 1.3km south-east. The northern edge of the residential area of Koo Wee Rup is approximately 630 metres south of the property.
The property has access to reticulated power and telecommunication facilities.
There are no restrictive covenants that affect the title.

Mr Monea gave the following details of the existing motorcross track on the property. The surface is of a natural terrain, 1.2kms in length, at the widest point it would be 4 metres wide, but generally speaking 3 metres wide overall. There are a few jumps on the course. The track loops and veers around the back of the ten acre paddock in a circular fashion. There is no designated start and finishing points on this circuit.
The surface is of intermediate soil with clay surface section and is best described as many small jumps in a row, known in the industry as whoops/stutters. The length of the entire track would be 700 metres, the width would be 3 metres wide, the height of the largest jump would be 2.5 metres. This track would also loop and circle back on itself with no designated start or finishing points. Supercross is an event that mainly consists of jumps and corners and rhythm sections, there are many technical sections and jumps which will improve our son's ability.
The track will be used predominantly by his son, on occasions though his other two sons would like to have a ride, it is extremely important to note that his sons are self-employed and cannot enjoy the sport on anything but a casual basis these days. On occasions, his son would receive coaching, as he is at an extremely high level: without this assistance, he would find it difficult to improve.
There is no cut involved in the natural terrain track, the fill involved in the supercross track existed on the property and the only external filling was the clay for the technical stutter/whoop section. The height is approximately 1.5-2.5 metres height on this track, the rest of the details as above in the second point.
In response to the number and type of motor bikes being ridden on the track the applicant stated currently 125cc, 250cc 4s up to 450cc 4s perhaps in the future.

Motorcross generates the following 90 minute motorcycle activity interspersed with rest breaks:

Supercross requires less training time. Training for motor and supercross do not occur in the one training session. A three hour session could generate six training stints.

In the event that planning permission for the use was required, the Moneas offered the following limits on hours and manner of operation (which were revised down on the second day of the hearing).
Firstly, the number of motorcycles that can be on the track at any one time is limited to two motorcycles.
They accepted no weekend operation, and no public holiday operation. The hours of operation are limited to 2.5 hours per day (including rest periods) between the hours of 11.00am - 3.00pm, during weekdays for up to three days per week.
A log must be kept by permit holders of the days and times of training to be made available to the responsible authority upon request.
The Moneas also accepted a personal permit condition.

The land is zoned Green Wedge Zone Schedule 1 under the Victoria Planning Provisions (VPP) format Cardinia Planning Scheme.
Council has insisted a planning permit is required for the use, characterising it as 'Outdoor Recreation Facility: Private Training Venue For Motorcross And Supercross Motorcycle'.
Council maintains that under clause 75, this land use is nested under the leisure and recreation group. Under that group council considers it is an outdoor recreation facility which in turn is nested under 'minor sports and recreation facility'. One of the features of a minor sports and recreation facility is

and which is usually open to non-paying spectators.

No spectators are anticipated here except for the father and siblings.
This use is not prohibited under clause 57 Metropolitan Green Wedge Zone.

However, as to clause 35.04-5 Buildings and Works, a permit is required to

construct or carry out ... ... ... earthworks specified in a schedule to this zone, if on land specified in a schedule.

Schedule 1 to the Green Wedge Zone requires a permit for

earthworks which change the rate of flow or the discharge point of water across a property boundary.

Mr O'Farrell for the Moneas conceded that in a heavy downpour, it was likely that the 'rate of flow of water across the property boundary' would occur and would be a change to the condition of the land without the earthworks, generating need for a permit under clause 35.04-5 for the earthworks which have been created for the supercross track.

The subject land is also covered by a Land Subject to Inundation Overlay (LSIO). Pursuant to clause 44.04-1, a permit is required to construct a building or to construct or carry out works including a fence and roadworks. This does not apply if a schedule to this overlay specifically states that a permit is not required. Pursuant to clause 1.0 of the schedule to the Land Subject to Inundation Overlay:

Works ancillary to an existing dwelling, including landscaping, a pergola, driveway, verandah, barbeque and water tank do not require planning permission.

Council's Manager of Strategic Planning, Phillip Walton, opined that no land use planning permission was required under the Green Wedge zone, the track being ancillary to domestic use of the land.
Council, on the other hand, followed the decision of Dr Mainwaring, M. in requiring a permit, since the Moneas' son was using the track for training purposes.
As a result of complaints from neighbours, council required notice of the application to be given as wide as 1.2 kilometres from the subject land, as well as a sign on the land and notice in the newspaper.
The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to the Tribunal and remain on the Tribunal's file.

The issue for consideration is whether the use is ancillary to the principal use of the land as a dwelling, not requiring a permit. If a permit is required the issue is whether one should be given, having heard the impacts on amenity of neighbours caused by noise and dust and the impact on the environment caused by noise and earthworks.
If no use permission is required, but permits for earthworks are required, the next issue is whether conditions as to use can be imposed on works permissions.

Is this motor cycle use an ancillary use of the land?

Ahrbeck v Mornington Peninsula SC[3] (Ahrbeck) also concerned use of land for the purpose of riding motor bikes as a private hobby. The strictly constrained local laws permit that had already been obtained in that case proved that beyond doubt.
Ahrbeck concerned use of land for riding motor bikes as a private hobby, rather than as a competitive training activity.
In Ahrbeck, I held that the use of land did not require planning permission as it was ancillary to the dominant use of the land as a private dwelling. I quoted the test in Lizzio v Ryde Municipal Council[4] where the High Court approved the statement of Glass JA in Foodbarn Pty Ltd v Solicitor-General[5]:

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".

In Ahrbeck, I distinguished Stuart J Castle Pty Ltd v Cardinia SC[6] ('Castle').
Castle did not debate whether its land use was ancillary and did not require planning permission. Dr Mainwaring assumed such permission was required, it being a separate and independent use of the land. She characterised the use as 'private motorcycle training facility'. Dr Mainwaring considered that it was land used for outdoor leisure, recreation or sport, within the definition of 'Outdoor recreation facility', which in turn is nested under 'Minor sports and recreation facility'.
The issue in this case is whether training for the competitive aspect of the motorcross and supercross sport converts this land use from an ancillary one to an independent one.
At first glance, the use of the motorcross and supercross tracks is ancillary to use of the land as a dwelling, as the Monea boys live on the land with their parents. Should it make a difference that one of the sons has achieved a level of a competition sportsperson, so that part of the use will be training of one son by the other son or by a professional coach?
I distinguish Castle again. In Castle, there was no dwelling on the land and it was only used for grazing. The intent was to use the track for three continuous hours on any one day excluding Saturdays and Sundays and that up to three additional riders would be involved in assisting in the training program. In my opinion, use of land for the purpose of riding motor bikes is not ancillary to grazing cattle. It was not connected to residential activity and was clearly an independent use of that land. That is not the case here.
In my opinion, it makes no difference that one of the sons has achieved the level of a competition sportsperson, so that part of the use of the motor cycle tracks will be training by the other son or by a professional trainer. I do not think it changes the character of the land use from an ancillary one to an independent one. It is still incidental to the residential use of the land by the family. If circumstances changed, so would my opinion.
The issue can be compared to using a backyard swimming pool, or a tennis court or a piano or other musical instrument not merely for recreational, but for training purposes for competition by the resident of the dwelling.

Given my opinion, I now set out the acoustic evidence provided to me, because the next issue is whether I can impose use conditions on a development or works permit, which requires no use permission. I also remind parties that the Moneas agreed to imposition of the following conditions:

The use of the track is limited to 2.5 hours per day (including rest periods) during weekdays for up to three days per week, between the hours of 11.00am - 3.00pm. No use of the track on the site is permitted on weekends or public holidays.

A log must be kept by permit holders of the days and times of training to be made available to the responsible authority upon request.

Frank Sutton wanted more specific hours nominated so his partner can train her horses comfortably without interruption. Understanding the constraints on tying together different peoples' work commitments, I think an even more stringent condition is unreasonable. During the hearing, I suggested to the Moneas that they make a courtesy call to the Suttons, giving as much notice of the training session as they could.

Mr Goddard of Watson Moss Growcott, Acoustic Engineers, gave evidence of noise emission measurements taken at six different locations near dwellings in the immediate vicinity of the subject land.
The ambient background noise level varied between 33-38dB(A).
The EPA's SEPP N-1 does not cater for motorcycles operated in this fashion. The only measure against which the EPA would assess complaints received from this type of private motorcycle training, under the EPAct 1970, s.48A, would be the 'unreasonableness' test:

(3) A person who emits or causes or suffers to be emitted unreasonable noise from any residential premises is guilty of an offence.

(4) For the purposes of subsection (3), noise is to be taken to be unreasonable if it is unreasonable having regard to-

(b) the time, place and other circumstances in which it is emitted.

Mr Goddard's report was based upon testing one motorcycle, a 2006 model, whose specifications emitted 102dB one metre from the cycle, when operating at 5000 revolutions per minute.
During his evidence, he modified his figures to take into account:
1. a later 2007 model motorcycle, whose specifications emit 96.7dB one metre from the cycle, when operating at 5000 revolutions per minute; and
2. two 2007 models operating simultaneously on the track on the subject land.
His noise calculations would now read:

MOTORCYCLE OPERATING ON MOTORCROSS (MX) OR SUPERCROS (SX) TRACK

Northern end of lane passing 75 McDonalds Drain Road

Adjacent to 175 McDonalds Drain Rd driveway entrance

This meant that the worst case operating condition would be 14dB above the background noise level.
Mr Goddard explained that people normally do not notice a change by 1 dB(A). A change in 3 dB(A) is 'just noticeable'. A charge in 5 dB(A) is clearly noticeable. A charge in 10 dB(A) is experienced as a perceived doubling of noise or loudness.
Mr Goddard went on to relate that increase in sound to the experience of neighbours going about their daytime activities. People sitting inside quietly reading a book with window open would hear the motorcycle. People sitting watching TV with their window open would not perceive the cycles (because the noise level inside would be 65 dB(A)). People sitting inside watching TV with their window closed would not perceive the motorcycle. Horses outside would hear a noise level of approximately 46 dB(a) but because the background noise level is otherwise 38 dB(A)) he did not think the emission unreasonable within the EPA test.
As a result of his tests, he recommended the following permit conditions:

Use of the motorcycle practice facility must be limited to no more than two motorcycles at any one time, each of which shall not exceed a noise level of 97dB(A) when tested in accordance with Motorcycling Australia test procedures.

Noise emission at all times be considered to be 'reasonable' as defined by the Environment Protection Act 1970 having regard to the volume, intensity and duration of the noise, and the time, place and other circumstances in which the noise is emitted.

Pursuant to clause 35.04-5 and Schedule 1 to the Green Wedge Zone, a permit is required for the earthworks created for the supercross track jumps, stutters and whoops, which can reach up to 2.5 metres, because they would change the rate of flow of water across the property boundary in a heavy downpour. Conditions would have to correlate with, or have a nexus with, that permission.

Pursuant to the Land Subject to Inundation Overlay clause 44.04-1, although a permit is required to construct or carry out works, under clause 1.0 of the schedule, they are exempt if they are:

works ancillary to an existing dwelling, including landscaping, a pergola, driveway, verandah, barbeque and water tank.

An issue arose as to whether the word 'dwelling' in that exemption treats dwelling as a land use or treats dwelling as a development or building following Ratliff v Stonnington City Council[7]. Mr O'Farrell submitted that if the word 'dwelling' is understood as a land use, no works permission is necessary as the motor cycle track is ancillary to such use of the land.
Mr O'Farrell submitted that, given the purpose of the LSIO to ensure that development maintains the free passage and temporary storage of flood waters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity, the meaning to be given to dwelling in this overlay is as a development rather than as a land use. I agree.
In the context of an overlay control, which deals with development rather than land use, it is sensible to understand the word dwelling in the 'development' sense.
Mr O'Farrell also submitted that the interpretation of the exemption is problematic. The list of inclusions (i.e. of ancillary works to a dwelling) does not appear to be exhaustive, so the next issue was whether a private motorcycle track (as works) is exempt because it is ancillary to this particular dwelling, as a structure.
Perhaps the only consistency in the listed excluded works is that it could fairly be said that they would be ordinarily expected improvements associated with a dwelling structure (while a motor cycle track is not ordinarily so associated).
Applying the legal maxim noscitur a sociis, which translates to 'the meaning of a word can be gathered from the context', all the listed items are built form improvements arguably belonging to the same genus or type.
In my opinion a permit is required for the works comprising the jumps, stutters, whoops and earthworks because this type of works is, unlike the enumerated improvements, not normally associated with or ancillary to, a dwelling.

POWER TO IMPOSE USE CONDITIONS ON A WORKS OR DEVELOPMENT PERMIT

If only a development permit is required, can I lawfully place use conditions on the permit should I be of a mind that the development permit should be granted. The decision guidelines at clause 35.04-6 guide this exercise of discretion, as does clause 65.
This issue arises as a result of National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd and Another[8]. National Trust is authority for the proposition that the discretion which may be exercised by this Tribunal in a town planning appeal must be exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretional power is conferred in respect of the subject application.
Challister Ltd v City of Caulfield and Others[9] discussed this issue. It concerned a service station development which had existing use rights, and held:

To be valid a condition on a development permit constraining the use would need to be a condition, which reasonably related to the development

If the development were such as to permit a substantial intensification of the use it can be argued that a condition controlling such intensity may be reasonably related to the development albeit that it is not a condition applying to the development itself

If in circumstances such as this a development permit is sought which would vary, intensify or extend the use in some manner so as to effect the surrounding amenity or give rise to other related town planning issues, then provided a condition is reasonably related to the development then conditions affecting the use could in those circumstances be imposed.

Challister followed John Paul College v City of Frankston[1], which held:

I accept that a condition must relate to the permission being granted. Generally the conditions that can be attached to a development only permit will be much more limited than would be the case if a use permission was also involved. Generally a condition on hours will relate to use. However, it does not follow that a restriction on hours can never validly attach to a development permit. Situations can be conceived where a development would be acceptable from a town planning point of view, but only on the basis that there was some limitation on hours. A development might enable or encourage an activity that would be quite acceptable at some hours but cause serious detrimental effects on the amenity of the area if engaged in at other times. The appropriate result in such circumstances would not be to grant or refuse an unconditional permit. Rather it would be to grant a development permit subject to a condition restricting the hours of activity in an appropriate way.

The decision guidelines of clause 35.04-6 in relation to design and siting issues are:

The need to minimise adverse impacts of the siting, design, height, bulk, colours and materials to be used on major roads, landscape features and vistas.....

The impact on the character and appearance of the area ....

Pursuant to those guidelines, I can clearly impose landscaping conditions (provided it is watered so it can grow and thrive) to mitigate the appearance of the stutters, whoops and jumps[10].
The question is whether I can impose operational constraints offered by the applicant such as hours of operation and types of bikes.
Burns Bridge Services Pty Ltd v Greater Bendigo City Council & Ors[11] ('Burns Bridge') comforts me. Although Burns Bridge concerned strategic policy considerations in the granting of a development permission where no permit was required for the retail use, the principle Justice Osborn applied can be equally applied here. He effectively applied both Challister and John Paul College.
Justice Osborn held:

I do not accept that use considerations are absolutely irrelevant to development applications[12].

Whilst it may be accepted that the discretion which the Tribunal was called upon to exercise was granted for the purpose of controlling the development of land and is not a discretion granted for the purpose of regulating use, it does not follow that the use consequences of a development permit will necessarily be irrelevant to the exercise of the discretion[13].

In this case, there is no doubt that without these earthworks, there would be no ability to generate the same degree of noise from the subject land as has been measured by the acoustic consultant. Therefore, it is my opinion that it is reasonable and lawful to add use conditions pertaining to noise emission, as well as a condition that the land should be returned to its original state if the activity ceases.
Although suggested by the applicant, I have not made the permit personal, as use of these tracks do not generate behaviour personal to the applicant, that cannot be cured by other conditions relating to motor bikes, i.e. an attribute of not exceeding a noise level of 97dB(A), or by limits of the hours of operation.

The use of the land for motorcycle riding and training does not require planning permission, it being ancillary to use of the dwelling for residential purposes. Ahrbeck[14] followed. Castle[15] distinguished.
Any local laws permission needs to be separately obtained, and a planning permit cannot avoid this.
The earthworks carried out for training and riding purposes do require planning permission under the Green Wedge Zone cl.35.04-5 and Schedule 1.0, because they would change the rate of flow of water across the property boundary.
The earthworks carried out for training and riding purposes also require planning permission pursuant to the Land Subject to Inundation Overlay clause 44.04-1, and are not exempt under clause 1.0 of the schedule, because I consider they are not ancillary to the dwelling considered as a building. Ratliff v Stonnington City Council[16] distinguished.
The design and siting guidelines of cl.35.04-6 provide scope to impose conditions to ameliorate the visual impact of these works.
There is also scope, applying Burns Bridge[17], to impose conditions to ameliorate the noise impact of these works, because the jumps, whoops and stutters earthworks create an environment where noise is magnified above and beyond normal recreational motor bike activity on the land.