(a) the use of the land for that purpose on Sundays;

(c) the number of night or twilight race meetings held per year;

(d) the starting or finishing times of such race meetings;

(e) the class of races held on the land providing that they are motor race meetings; or

(f) the conducting of motor race meetings on days of Total Fire Ban.

_________________

RUSSELL BYARD

SENIOR MEMBER

Ms Maria Marshall, Solicitor of the firm of Maddocks Solicitors, appeared for the responsible authority. She presented written and oral submissions.

Mr Michael Morrow, Solicitor of the firm of Morrow and Morrow Solicitors, appeared or the Belmont Speedway Drivers Club Incorporated. He presented written and oral submissions.

Mr Ross Ramsay appeared in person. He made written and oral submissions.

Ms Kim Dowling appeared person for herself and for Philip Warner. She also presented written and oral submissions.

Ms Jane Robson appeared in person. She presented written and oral submissions.

Mr Sam Agius appeared in person. He attended intending to make oral submissions but, when it came to his turn, he indicated he had nothing further to add to the submissions that had already presented.

Various plans and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.149A of the Planning and Environment Act 1987 for a declaration.

Application for a declaration that the land enjoys existing use rights for use as a motor vehicle race track without restrictions and in particular not restricted as to the use of the land for the purpose on Sundays, the number of motor race meetings per year, the number of night race meetings per year, as to starting and finishing times, the classes of race held and the conducting of motor race meetings on days of Total Fire Ban and that, furthermore, no planning permit is required to carry out repairs and routine maintenance on buildings and works.

The land is in a Rural Zone and subject to a Design and Development Overlay (Schedule 2) and an Environmental Significance Overlay (Schedule 1) under the Moorabool Planning Scheme.

1 The evidence indicates that the land in question in this case has been used as a motor racing track for well over 30 years. That use is continuing.

2 There is no planning permit in relation to that use of the land. The use of the land for that purpose has been carried on, and is still carried on pursuant to existing use rights provided for in cl.63 of the Planning Scheme and, for that matter, Section 6(3) of the Planning and Environment Act 1987 (PE Act). Under those statutory provisions a use of land which would otherwise be prohibited under the Planning Scheme, or perhaps require a permit under the Planning Scheme, can nevertheless be lawfully continued in spite of having become prohibited or, in the case of use requiring a permit, without any such permit.

3 The original justification for such provisions, was that it would be unjust and very harsh if the imposition of a new planning scheme or a new control provision within a planning scheme suddenly made a land use unlawful where it had commenced lawfully and being carried on lawfully in the past. The responsible authority contends that the current use of the land as a motor raceway commenced lawfully before the commencement date of the planning scheme and that the land enjoys such continuing rights.

4 Furthermore, the current planning scheme contains further provisions whereby existing use rights to continue to use land can be established. This is pursuant to the so called "15 year rule" to be found in cl.63.01 and 63.11 of the Planning Scheme. Under this 15 year rule land can acquire existing use rights if the use has been carried on for 15 years subject to a couple of provisos that do not apply here. So far as this rule is concerned, it does not matter whether the use was commenced lawfully, or unlawfully, provided that the commencement was more than 15 years ago, or at any rate that the use has continued for 15 years, and the provisos are satisfied. In other words, if you can get away with an unlawful use for 15 years, you can get away with it indefinitely.

5 The evidence in this case indicates the use of this land for a motor raceway for in excess of 15 years to date and continuing.

6 In any event, it is common ground, and admitted on all hands, that there are existing use rights to use this land as a motor race track.

7 That leaves the question as to whether there are restrictions that legally apply to the admitted existing use such as limits on the number of meetings per year or the number of night meeting, numbers in attendance and so on.

8 The responsible authority has sought declarations in this case, not because it is partisan, but in an attempt to clarify uncertainties which hamper it in carrying out its public duty to enforce the planning laws.[1]

9 The responsible authority apparently feels itself to be in a somewhat invidious situation in relation to the motor race track use of the land. It receives complaints about the use and in relation to various amenity effects the use is alleged to have on the locality. Apparently some people making these complaint do not understand that existing use rights might attach to the land and they assume that the use is unlawful. They then become impatient with the responsible authority for not taking proceedings in relation to what they assumed to be unlawful use of the land.

10 The difficulty faced by the responsible authority is that it believes that existing use rights do exist and that these rights are not confined in relation to the matters raised in the complaints. It is therefore in a position of being pressured to take proceedings on the one hand, but reluctant to do so because it believes that the incorporated club that uses motor racing meetings does so lawfully. It fears that attempted proceedings would be legally unsound, would fail, be a waste of time and money, and might well result in orders for costs being made against it in favour of successful defendants or respondents. The making of orders for costs would be, in fact, quite likely in circumstances where the responsible authority knew, and had good reason to know, that the activities being the subject matter of the proceedings were legal.

11 The responsible authority has sought declarations so as to clarify the situation, and resolve doubts, as to the legal rights of the incorporated club. This might give the responsible authority a firm basis for explaining the actions if takes or declines to take in relation to enforcement of the planning laws.

12 A declaration is a legal statement as to existing legal rights. It is not that the responsible authority minds greatly what declarations are made, so long as the doubts about the present situation are clarified. It has sought declarations in the terms set out in its application because it thinks, as presently advised, that they represent a true statement of the legal position. It is more than happy to accept some other declaration if I am satisfied that some other declaration should be made or the respondents persuade me to that effect.

13 It is possible for existing use rights to be subject to conditions or restrictions. For example, if a use has become prohibited[2], where the use was commenced lawfully pursuant to a planning permit contained in conditions, then the continuing use will be subject to those conditions.

14 This is provided for in the second proviso under cl.63.05. That provision allows the use to continue provided any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use. However, the authorities indicate that it is conditions and restrictions in relation to town planning, rather than other laws, that are in point here. For example, other laws such as Sunday observance laws or liquor licensing laws may impose restrictions, or may have done so in the past. The proviso does not mean that the continuance of the existing use right is dependant on the conditions or restrictions in these other non-planning laws.

15 That is the problem with one of the points repeatedly brought up by Mr Ramsay. He referred to some permission or approval under Public Health Legislation which apparently was granted in about 1950 and restricted numbers attending to 2000. If such a condition existed, it is not one which, according to the authorities, is covered by the second proviso in cl.63.05 because it does not relate to planning.

16 If the use of the land is a motor racing track commenced prior to the commencement date of the planning scheme without any such conditions or restrictions, then the use can continue, likewise free of such conditions and restrictions.

17 As part of the background information provided by the parties in relation to this case, there was reference to a suggested rezoning of the land to a Special Use Zone. This was considered by a Planning Advisory Panel which suggested such a rezoning might occur if an agreement pursuant to Section 173 PE Act was also executed imposing various conditions in relation to the use of the land. That was an attempt to create such conditions or restrictions where none existed. However, that suggestion, after being pursued up to a certain point, subsequently fell through. The land has not been rezoned and there is no such Section 173 Agreement. That leaves the situation as it always was namely that there are no relevant conditions or restrictions in relation to numbers attending, numbers of meetings and so forth. No basis for recognising the existence of such restrictions was advanced.

18 That is really sufficient to dispose of this case. Unfortunately the respondents, with the exception of Belmont Speedway Drivers Club Inc, were under a misapprehension as to the nature of this proceeding. It is unfortunate, although perhaps understandable, that some of these respondents should have made this mistake where they are not lawyers or planners. Mr Ramsay, however, originally instructed the firm of Best Hooper Solicitors to act for him in relation to this case. According to correspondence on the file Mr John Cicero of that firm had conduct of the matter. I do not have any doubt that Mr Cicero would understand the nature of the declaration application and what was relevant and not relevant to it. I would assume that he would give advice to his client. When it came to the hearing neither Mr Cicero, nor anyone else from Best Hooper, appeared for Mr Ramsay. He appeared for himself. It may well be that this was because the advice tendered caused him to realise that a lawyer advocate might not be able to assist him greatly. Whether that is so or not, he was certainly forthright in advocating things which, on a proper analysis, were beside the point.

19 In his submissions, and the others put forward by respondents opposing the making of declaration, there were repeated assumptions that this case was about the planning merits of whether the motor race track should be allowed and the planning merits of what conditions such use should be subject to. The true nature of these proceedings was to ascertain the existing legal rights of the incorporated club are in relation to the land. I have no power to grant or withhold a permit in this case, and certainly have no right or power to impose conditions.

20 It was frequently said that activities associated with the use of the motor race track have adverse effects on the amenity of the area. The frequent use for expressions not "appropriate" and "it is not unreasonable" in relation to conditions shows the misunderstanding. Such constraints may or may not be "appropriate" or "not unreasonable" but that is not what this case is about. It is about ascertaining the existing rights in relation to the existing use, whether they are thought to be appropriate or reasonable or otherwise.

21 Furthermore there were many assertions that various things with "contraventions" without it being clear as to what was being contravened or the basis for making such a claim. Perhaps this amounted to no more than assuming that what is thought to be reasonable would also be the law and that any non-compliance with what the person making the submission thought reasonable in the circumstances would amount to a contravention. The same might be said for repeated assertions of "incremental intensification of a usage". The existing use rights allow for certain variations in methods and intensity. In any event, I was not left with evidence establishing more than variations over time.

22 There were quite generalised assertions of there having been commencement of use or the carrying out of buildings and works without planning permission without identifying quite what was done or why planning permission was needed. The only reliable evidence I have in relation to this is that of the responsible authority. It indicates that there is no permit for the use because none is needed. However, there are a number of permits granted for buildings and works carried out from time to time where such permission for such buildings and works is required under the first proviso in cl.63.05.

23 In my view there is no basis for asserting that there are restrictions on the use of the land for the purpose of motor racing on Sundays, or as to the number of race meetings or night race meetings per year, or as to starting and finishing times for race meetings. Some quibbles about whether a meeting starting before dark and finishing at 10.30pm or 11pm should be regarded as a "twilight meeting" or a "night meeting" are quite beside the point.

24 So far as the class of races being held on the land is concerned, I consider that the use is confined to motor racing and that the existing use rights do not extend to other forms of racing.

25 There were suggestions that there is a restriction on the conduct of race meetings on days of Total Fire Ban. There might be, for all I know. If there is, that constraint is imposed by other laws under which proclamations of Total Fire Ban are made. They are not town planning restrictions, at any rate so far as this existing use right is concerned.

26 There are no planning restrictions, so far as noise or illumination at night are concerned, in relation to this existing use.

27 Whether or not any of the activities, or any aspects of the activities might amount to nuisance under the law of nuisance is not for me to determine. It is sufficient for me to be satisfied, in relation of this case, that there are no such planning restrictions.

28 The final aspect in relation to which a declaration is sought is that no planning permit is required to carry out repairs or routine maintenance of existing buildings and works. Such a declaration would merely be to recite what the planning scheme provides to this effect in cl.62.02. Disputes may arise as to whether particular works are to be characterised as repairs or routine maintenance, but such questions are not relevant for present purposes.

29 As I have observed, the responsible authority has a public duty to enforce the planning scheme. It has a discretion as to how it should do that. Of course it should hardly take proceedings where contraventions or offences cannot be established as being contrary to law. Although the responsible authority has a duty, others have a right. Citizens can prosecute in court for breaches of public laws and Section 114 PE Act gives the right to other persons, in addition to a responsible authorities, to commence enforcement proceedings. However, people would be well advised to look carefully into the question as to whether contravention of the law really have occurred, before launching into such proceedings. People may think it prudent to seek legal advice (as it appears Mr Ramsay did).

30 In the circumstances I am minded to make a declaration that existing use rights exists in relation of the use of this land for a motor raceway and that the particular suggested restrictions do not apply. I do not think it is necessary to make a declaration reciting the relevant provisions of cl.62.02 in relation to repair and routine maintenance. I will leave the planning scheme to speak for itself in that respect.

31 I will make a declaration but exclude the reference to repairs and general maintenance and exclude a general statement in relation to restrictions. I will make declarations to the effect that the particular restrictions specified in the draft declaration do not apply. I will not include other possible restrictions in relation to which the declaration was not specifically sought, but I make the observation that there is no basis on the material before me to suggest that there are restrictions as to numbers of patrons able to attend, noise or night time illumination.

32 After this determination and reasons were typed up the Tribunal received an additional letter from the solicitors for the responsible authority. It is clear that I cannot take account of correspondence received after the hearing unless provision was made by way of directions of the Tribunal for its reception. The solicitors for the responsible authority would be well aware of this. However I am confident that the further information contained in the letter was forwarded because it was thought to be necessary a matter of fairness, rather than there being any question of their seeking to unfairly influence the outcome of the case behind the backs of the other parties. The information suggests that there may have been some breaches by the incorporated club of provisos in clause 63.05. That could provide the basis for an argument that existing use rights have been lost although the correspondence also included reference to a case suggesting that this would not be the effect. The question of whether existing use rights have been lost was not before me. It was common ground that they exist. The issues were as to whether they are subject to certain restrictions. In the circumstance I cannot now take account of these further matters. If someone wishes to raise them they may need to commence other proceedings.

_________________

RUSSELL BYARD

SENIOR MEMBER

[1] Section 14 PE Act imposes that duty upon it

[2] that is to say prohibited from the commencement of a new use of that sort where the use can continue in accordance with existing use rights