1. Background noise levels are low as is typical for a non-urban location such as this. Mr Fearnside stated that levels less than 30 dB(A) are difficult to accurately measure by loggers and are therefore estimated. He adopted 25 dB(A) in this case. Mr Growcott's evidence similarly recorded low levels such as 27 - 32 dB(A) at various dwellings although some further measures by Marshall Day have higher levels particularly in stronger winds. Noting these and other variations, overall, we consider that they demonstrate consistently low background levels. We do not believe that this is contentious.
2. We have been assisted by measurements of noise from the site through that expert evidence by the witnesses. We do not recite all of that material but record the following:
   • As stated by Mr Fearnside, measurements at No. 83 Haines Road by his firm in 2010 were 56 - 59 dB(A) Leq (15 min) with an average of 57dB(A) Leq (15 min). The public address system was audible. This was a state event. The number of riders appears to be undocumented. No measures were possible at No. 255 Haines Road because of dominant wind noise. Winds were referred to as up to 35km/hr at Geelong Airport. Winds were from the west/north-west.
   • Measurements taken in 2011 by Marshall Day Acoustics at a club meeting recorded an ambient noise level of 36-37 dB(A). Estimated noise at No. 83 Haines Road, based on 5-10 motorbikes, was 41 - 45 dB(A). Wind conditions were referred to as generally calm.
   • A 2011 report by Watson Moss Growcott recorded levels at 52 dB(A) Leq at No. 83 Haines Road and 42 dB(A) at the same interval at No. 255 Haines Road with lower values at other properties, in gentle northerly wind conditions.
   • Mr Growcott's evidence recites a recording by Control One in 2010 at a practice day with 10-20 motorcycles at one time as 43 - 45 dB(A) Leq.
   • At our request, additional testing occurred at Nos. 83, 121 and 255 Haines Road. This occurred on 23 and 29 June 2013 on practice days. It was reported by Mr Growcott as involving from two to five motorcycles and eight to 10 motorcycles of 2 and 4 stroke on Saturday 23 June and two to eight motorcycles on Sunday 29 June. The range of results over four measurement periods for the Saturday with a gentle east - south-east breeze were:

and for the Sunday over three measurement periods with a gentle westerly breeze the results were:

1. It is common ground in the evidence that:
   • The commencement of a race/practice at the start grid is the nosiest location and time. Noise is lower once riders are spread out along the track.
   • Noise emissions off-site are influenced by key factors being the type of bikes, number of riders, the location of riders, acceleration and deceleration relating to jumps and obstacles, wind direction and speed, and whether a line of sight is available to the sensitive receiver.
   • A number of dwellings in the wider area may not be exposed to significant noise because a ridgeline is between the noise source and the receiving dwelling.
   • A noise mound or barrier around the starting grid would, assuming it is around 10 metres from the start line and around 4.5 metres height, reduce noise by around 8 dB(A) although that could be higher to around 10+ dB(A) subject to its height, design and location.
2. We were referred to noise measurements in earlier reports, such as a document by Heggies in 2008 and 2012 VIPAC recorded data. These were not tested through expert evidence although they assisted to inform the experts and were referred to in submissions[27]. These documents can not be given weight in the same way as other tested material before the Tribunal. We note that a nominated noise limit was 55 dB(A) in the 2008 Heggies document which was exceeded at the start grid on several locations and at one residence on an ongoing basis. The VIPAC recordings at "No. 85 Haines Lane" [sic] on 16 and 17 June 2012 (which is shown on the calendar of events as a GMCC event Victorian Off Road Series[28]) over five minute recording intervals included:
   • Background levels of 35 dB(A).
   • On 16 June, an average Leq from 11.00 to 4.00pm was 60+ with a highest average of 63 Leq dB(A).
   • Overall, an average Leq of 42 - 63 between half hours and maxima to 85 dB(A). A maximum of 80 dB(A) was exceeded on multiple occasions.
   • Maxima between 73 dB(A) and 85 dB(A) continued over every half hour interval from 9.00am to 4.00pm on 16 June and between 56 dB(A) and 82 dB(A) over the same period on 17 June.

1. The noise measurements included in expert evidence have not included the scale and range of events that are requested by MA and are proposed to be addressed through permit conditions. More specifically:
   • There has been no measurement of a major event since 2010 and, even at that time, the number of riders on the track is unclear[29].
   • There has been no measurement of a larger event of the scale of a national title.
   • There are no measurements of 40 riders on the track plus riders using other facilities for Enduro and a further maximum of 15 riders on the learners' track.
   • There has been no measurement of up to 80 riders involved in Enduro which is sought by MA up to twice a year in its requested conditions. As we understand it, Enduro operates over Lots 1 and 2.
   • Recent data only relates to practice days.
   • Measurements appear to exclude the western extension which is closer to No. 121 Haines Road and may also affect No. 83 Haines Road mindful of its elevated position compared with the main track.
2. The absence of up-to-date major event noise testing is a clear deficiency in the evidence from MA, and one that we consider should have been addressed as part of the current application.

1. It was estimated that with up to 40 riders on the track at one time, noise levels would be increased from those measured by Mr Fearnside and Mr Growcott. Mr Growcott's evidence was that an estimated, additional, 3 dB(A) would result from increasing the number of riders from 20 to 40[30]. Similarly, the noise of 10 riders would be around 3 dB(A) higher than 5 riders. Mr Growcott said this level of increase is not likely to be noticeable to a significant proportion of observers and that an increase of 6 dB(A) would be likely to be noticed as significant but not dramatic.
2. Mr Growcott's evidence was, that if applying a level of background or ambient noise plus 10 dB(A), then compliance would not be achieved at the nearest residence. The same is the case if applying 50 dB(A). He said it would be reasonable for the annual noise dose to remain at the same level as the past.
3. Ms Brennan accepted that 65 dB(A) is not met and would not be met at all times at all dwellings[31].
4. There are few precise predictions as to what the noise levels will be, except there is greater information relating to the starting line and benefits of an acoustic barrier around this part of the site. We have referred to the impact of a physical acoustic treatment around the start line that would reduce noise at this location by, say, 8 to 10 dB(A). A higher barrier may reduce the impact further.
5. Noise may be reduced dependent on variables such as the number of riders, the location of riders, and wind direction and speed. There is also the influence of changing noise from the bikes themselves. The evidence of Mr White was that motorbike technology continues to improve and evolve and, with that, reduces motorbike noise. In addition, noise testing requirements of MA have, Mr White said, contributed to lower noise. That is also acknowledged in some of the expert material, such as Mr Growcott's evidence where changes in 2009 were said to have lowered the noise output of bikes by 3-6 dB(A). We accept these propositions although there is no material before us to explain what lower levels might be into the future. We also accept Mr White's evidence, and that of Mr West, that MA regulations require all bikes to be regularly tested to ensure MA's noise regulations are not exceeded.
6. There are no predictions relating to the public address system although it is agreed by the parties that Victorian standards can be applied to this operation.
7. There are no predictions with respect to clubhouse noise.

Will noise significantly or materially increase if the permit application is allowed?

1. The Council and permit applicant challenged submissions presented by the objectors that the proposed buildings and works to the track have or will result in higher noise emissions on the basis that the lawful track configuration has jumps and other obstacles. Mr Growcott's evidence on this point was that variations with acceleration and deceleration would have occurred with the lawful works and that the degree of change with the proposed works is likely to be small. However, Mr Firestone's evidence was that the more significant elevated jumps and obstacles would make the track more attractive to users, and would lead to greater acceleration and deceleration at those jumps and obstacles, with associated noise impacts.
2. We find that the additional jumps and obstacles, together with the increase in the number and scale of events (even if capped to the level sought by MA), leads to the conclusion that the permit application would significantly increase noise emitting from the site, and on more occasions. The number of jumps and obstacles will increase if the existing unlawful works are legitimised, including the so-called table-tops and upgraded western track extension that are both positioned on higher points of the track and closer to more sensitive locations such as the Anderson property.
3. Further, the number of events and activities that MA proposes is significantly higher than appears to have occurred on the land based on the calendars to which we were referred, which in part reflects the attractiveness of the site with the additional jumps and obstacles, and the other facilities proposed through this permit application. There is also the fact that the calendars do not seem to reflect actual use because, by example, events have been required to be rescheduled due to bad weather or when there was a track closure, as referred to by Mr West. To elaborate, the McAdam Park calendars for 2006 to 2012[32] refer to 10 to 28 event days per annum across seven years. 2010 is much higher than other years, with 19 and 18 events scheduled in 2011 and 2012 respectively. Not all scheduled events proceeded, based on the evidence of Mr West, such as in 2011 and 2012.
4. Parties' positions as to the scheduling of events by conditions included[33]:

Up to two Enduro events be allowed and this be calculated as an event day.

Maximum of 40 on the main track and maximum of 15 on the learners' track.

3 major event days, 2 Enduro days, and 14 club event days.

Maximum of 40 at any time on any of the tracks for major events.

3 major event days and 6 club events across all event types.

Up to two Enduro events be allowed and this be calculated as an event day.

Seek limits on Mother's Day, Father's Day, ANZAC Day, Christmas Day or weekend public holidays and before noon on church services, funerals etc.

Maximum of 40 at any time on any of the tracks for major events.

1. It is, we conclude, apparent that MA's intended limit on events would result in many more events than have typically occurred at the site. It is also very relevant that MA does not wish to scale back events as that would have implications for the clubs and, moreover, would not allow for some growth in the sport. Restricting events to the levels being sought by the Council and objectors would constrain the clubs' activities and potential for growth.
2. Without the legitimised or additional buildings and works, an increase in events by MA may have been characterised as a lawful intensification of the existing use. However, the buildings and works proposed in this application change the focus to one of entrenchment of the use. We have no doubt that the permit application, if approved in the terms sought by MA, would legitimise or facilitate works that, in turn, would result in substantial and material increases in noise off-site, including through a greater use of the site created by the attractiveness of the works and facilities to users. That noise would be at very high levels above background noise. The level of measured noise for 8 to 10 riders extrapolated as suggested by Mr Growcott (which we do with some caution but do so in the absence of firm measurements for larger numbers of riders) makes clear that the noise levels at sensitive receivers off-site would be well in excess any of the suggested guides in expert evidence, including over 65 dB(A) for event days (with 40 and sometimes more riders) and even for some practice days (20 riders, plus riders on the learners' track). Coupled larger numbers of riders for Enduro, the degree of impact is apparent.
3. We accept that this would not occur all of the time, or uniformly, because of variables such as wind conditions and different numbers of riders in races over the course of a practice day or event. However, we find that the noise levels would be extremely intrusive and annoying given those levels would be so high above measured background noise, as well as taking into account the absolute values and the distinctive character of the noise. They would easily exceed what could be said to represent a reasonable or acceptable level of impact for the number of days being proposed by MA and, we think, even by the other parties in these proceedings. The impact is not confined to the closest dwellings. Noise emissions, to an intrusive level, would extend well beyond these properties to affect others in the wider area albeit the impact would not be identical to that experienced by the closest dwellings.
4. A mound or other form of acoustic barrier around the start line would lower noise for starts but we still consider the levels would be beyond what is reasonable for the number of occasions and duration of events being requested.
5. An additional or alternative noise management technique to setting a noise limit would be to restrict the number of events, however, we would be doing so in the knowledge of some dwellings being exposed to what must fairly be considered as very high noise levels. MA's requested event and practice days, together with MA's desired limits on riders, would expose the nearby community to significant impacts for extended time periods on a large number of days.

What weight can be given to the fact that only a relatively small number of houses may be significantly affected?

1. Motorcycle and other noise will travel over a wide area but there is no requirement for activities such as these to be inaudible. As indicated above, the primary concern is the impact on the amenity of the properties that would be most exposed to noise arising from the proposal - the most obvious are at Nos. 83 and 121 Haines Road although 255 Haines Road may also be exposed dependent on the variables to which we have referred. We were surprised at how far the noise carried to the south on the day of our site inspection, being clearly audible at the properties and church in Barrabool Road, over the ridgeline from the track. However, as we have indicated, we rely overall on the expert evidence rather than this inspection. If it is contemplated that up to 80 riders might be involved on occasion, as referred to in MA's proposed conditions, then the noise impacts can be expected to be wider than was the focus of expert assessment.
2. Mr Growcott's written statement of evidence did not address No. 121 Haines Road but nonetheless recommended a financial contribution to the owner to undertake some attenuation works with respect to habitable room windows and an outdoor seating area[34]. As indicated above, we explored impacts relating to this dwelling with witnesses and representatives at the hearing. The impact on this dwelling is significant, albeit it is only one house and currently owned by a non-objector party. The types of measures being proposed to manage noise, including a noise barrier near to the start grid, may improve the outcome but not necessarily achieve ongoing compliance with a 65 dB(A) level if that was taken as a limit.
3. Should it be a factor in our decision that only a few houses would be most adversely affected although others would variously be exposed to noise? This, we think, a matter that is further considered in terms of balancing all of the positive, neutral and negative impacts of the proposal as we are required to in assessing whether there is a net community benefit.

1. We are satisfied that public address systems can be required to comply with EPA requirements and that an FM band for race commentary could also be sought. We expect the clubhouse may also be managed, although this was not the subject of detailed discussion at the hearing except with respect to operating hours that are within the Notice of Decision and upon which parties' commented. There was an unresolved debate about the extent to which the new clubhouse could or should be allowed to operate as a function room separately from its operation in conjunction with motorcycling activities. We do not need to decide that here given our final decision.
2. For motorcycle activity, noise management could occur through various techniques if permit conditions can be lawfully and appropriately applied. However, it would be easier to achieve an acceptable outcome with respect to practice days and any other small scale activities such as promotional events for manufacturers involving only a few riders[35]. We think that may be able to occur without setting a noise limit but may be achieved by limiting the number of riders and numbers of days.
3. The same approach for larger events (club events and larger) becomes problematic from the perspectives of practicality and enforceability because, for example:
   • Monitoring at nearby houses for every event and possibly practice day is costly.
   • There is no objective or definitive position as to what a single appropriate noise limit must be.
   • Setting a limit that would be expected to be exceeded on occasions raises the question as to what happens when this occurs - how is that monitored and what is done to bring noise into compliance - particularly if the level fluctuates through wind variations.
   • It is evident from the material before us that possible limits referred to by the experts will be exceeded.
   • Limits proposed by objectors would be exceeded.
   • It may be necessary to consider limiting the physical area to which motorcycle riding applies.
4. Interestingly, both Mr Fearnside and Mr Growcott conceded the difficulties in setting of a fixed noise limit, largely because of the practicability, cost and enforceability issues referred to above. Both made recommendations to varying degrees for a restriction on use (e.g. a limitation on event days, and nominated noise-free days) as an 'easier' overall solution. This of course raises the difficulty of the ability to impose valid use conditions on a building and works permit, and what the reasonable and objective basis might be for particular conditions.
5. We return to these and other matters with respect to noise management below.

Would there be an unreasonable visual or landscape impact?

1. Visual impacts were raised as a concern by objectors in terms of the changed outlook from nearby properties as well as in the wider landscape and cultural context of the Barrabool Hills. These impacts were described through, for example, the submissions for Mr & Mrs Anderson and the National Trust. Further, Mr Morris submitted that the clubhouse would have an unacceptable visual impact because it is out of scale with the rural character of the area. He also referred to the lack of detail about the proposal to relocate the learners' track, which instead should be the subject of a separate application.
2. In reply, Ms Brennan relied on Mr Glossop's evidence that the buildings and works, and clubhouse, are of a size, scale and use materials and finishes that are acceptable in a rural landscape. The smaller structures were equated with farm sheds, being of a low scale and spread out across the site. Mr Glossop recommended the removal of a buried shipping container. Mr Glossop suggested the proposed acoustic mounds should be grassed to produce an acceptable visual outcome.
3. The Notice of Decision includes some conditions relating to additional landscaping along the site's boundary to provide a visual screen, comprising indigenous plantings.
4. There are no Overlays applying to the review site and surrounds, such as a Significant Landscape Overlay. Cl 21.06 identifies the Barrabool Hills as one of the nine landscape units identified by the Shire with policy for this landscape unit set out at cl 21.06-4. The rolling landscape is referred to as well as its high agricultural rating. Grazing and cropping are identified as key activities. An objective is to preserve the rural landscape and heritage values of the area with a strategy being to ensure the appropriate siting and design of buildings and works.
5. We were advised that the Barrabool Hills are identified on the National Trust's Register, with the citation referencing the area's scenic quality, its importance to Aboriginal people, and its source of Cretaceous sandstone/Barrabool sandstone that was used for many prominent public buildings in Melbourne and Geelong as well as locally. This citation was however made only relatively recently, in 2009, with presumed knowledge of the existing motorcycling activities. We also note that the National Trust submission to us, somewhat confusingly, was made in the context of the National Trust only being an objector in Application P3092/2012 - that is, only opposing MA's application to review conditions, but not actually opposing the grant of a permit.
6. We consider the proposed buildings and works and the new clubhouse can be accommodated in this landscape setting while recognising the scenic and cultural values to which the parties referred. We also find that the visual impact of the works from nearby dwellings would not be unreasonable or intrude into any significant viewlines or corridors from the public or private realms. For the site inspection, MA's retained surveyor had pegged the general location of the proposed noise mound, with stakes and flags showing its height at 3.5 metres and 4.5 metres. From this, given the topography of the site, we are satisfied that the mound would be barely visible from nearby dwellings such as the Anderson property, and would not impede the view from the Anderson dwelling towards the You Yangs and Melbourne.
7. Notwithstanding its scenic quality, the surrounding landscape is typical of farming land with the usual structures and worked-land. The track works are not particularly attractive per se but they are low scale and do not involve large and bulky structures. The clubhouse is proposed to be set well back from the site's boundaries and, with additional roadside planting to support the cypress windrow, we consider an acceptable outcome would be achieved as sought by the local policy for this area. In reaching that view, we consider that appropriate attention to materials and finishes would enable an acceptable design outcome and, if a permit was to issue, we would include conditions with respect to the treatment of surfaced areas such as accessways within the site. Further details would be required in relation to the clubhouse (eg. all elevations) and associated works for the accessway.
8. We have some concerns with the idea of grassing the proposed acoustic mound because grass will burn off in warmer periods. At a height of up to 4.5 metres, which is not dissimilar to the spoil associated with large dams which is often untreated, we consider a solution may be found that instead addresses the site boundary with some tree planting rather than attempting to grass or landscape the exterior of the mound. Given our overall conclusions in these proceedings, we have not made further findings on this matter but may have been satisfied for it to be addressed by permit conditions leaving the final treatment to the Council's satisfaction.

1. A number of other impacts were raised in statements of grounds and through some submissions at the hearing, with respect to litter and waste management, fire risk, traffic and parking, dust, and impacts on livestock from ingesting litter. We heard lay evidence with respect to some of these impacts on nearby property owners.

1. We consider these matters relate to the management of the proposed buildings and works and could be addressed through the types of plans included in the Notice of Decision with respect to event management, waste management, and traffic management. We do not under-estimate concerns about these impacts but are of the view that there is ample room on-site to provide for car parking and that a management plan could assist to limit the extent to which parking might occur off-site along local roads.
2. We note however that the learners' track is now proposed to be relocated to an area shown on other plans as being used as a car park, without any indication of where alternative parking will occur during major events. This creates additional uncertainty about the learners' track relocation and, given it did not form part of the initial permit application, we agree with the objectors that there is insufficient information to deal with it within these proceedings. It is a matter that is likely to be capable of resolution, but requires further information and consideration.
3. Similarly, we accept that litter can be problematic but that too should be better able to be managed through a properly prepared and implemented waste management plan. Tear-offs were referred to as a particular issue - these being plastic sheets that can be removed by riders after a start or during a race to rid mud from masking sight through goggles. These are thrown off, blown away, and difficult to collect resulting in a nuisance for nearby property owners and within the road reservations. We do not think tear-offs can be banned because of rider safety. In time, more riders may use an alternative built into goggles referred to by Mr White.

1. Fire is a serious risk in an area such as this mindful of strong winds and grasslands. It is a reason why the objectors suggested any use of the track should commence in mid-March not at the end of February to coincide with the fire season.
2. There are protocols with respect to the use of the track on days of high fire danger and total fire ban days. Visitors to the track would need to be informed of restrictions at appropriate times (eg. camp fires during events). We see this as a matter for permit conditions, not a reason to refuse a proposal or limit use of the track at all times to be only from mid-March onwards. In some seasons, it may be acceptable to commence earlier dependent on weather conditions and low fire risk. This will vary from year to year and should be managed with flexibility to respond to the conditions that apply at the time.
3. We did not receive many submissions raising concerns about camping on-site during multiple day events. A permit condition seeks to limit activity and we assume it can be appropriately managed given the land area available and through an event management plan.

1. Management of drainage lines and waterways is proposed to be addressed through an environmental management plan consistent with the local policy at cl 21.03. Few comments were made by the parties about this aspect of the proposal, which is relevant too under cl 35.07.

1. Dust off-site was referred to in some of the material before us but not strongly advanced as a ground at the hearing. We have limited information as to how this would be addressed and there are no conditions proposed in the Notice addressing this matter. We noticed some track watering on our inspection.

What are the Tribunal's conclusions with respect to the merits?

1. We appreciate that the Council has adopted a pragmatic response to the permit application in proposing the grant of a permit for the buildings and works, with conditions restricting the future use of the land. However, we find that such a permit would entrench the existing use and give rise to unacceptable amenity impacts, in terms of noise, that would be difficult to contain to an acceptable level in this location.
2. Given the significant level of noise intrusion, setting an objective basis for what may be regarded as a reasonable level of noise at properties beyond the review site is extremely difficult in the absence of specific standards or guidelines that can be applied, leaving a high degree of subjectivity as to what an acceptable outcome may be. The same situation may not arise if a new facility was being established where appropriate setbacks (effectively buffers) can be identified from the outset as part of a planning process. Here, we are endeavouring to deal with the impacts of a motorcycle facility that commenced as a modest operation and now seeks approval for a larger and more challenging track and associated clubhouse facilities with the capacity to host a more extensive calendar of events than currently occurs as a direct consequence of the enhanced track and facilities.
3. It is evident from the above findings that we do not consider approval of the permit application could occur without permit conditions relating to noise management, as well as managing other aspects of the proposal such as traffic and event operation. Although we see real difficulties with possible permit conditions for noise management, some of which we have referred to above, it is necessary to first address submissions about whether there is an ability to actually include conditions that regulate activity or use associated with the proposed buildings and works and the new clubhouse.

ARE USE CONDITIONS ABLE TO BE INCLUDED ON A PERMIT IN THIS CASE?

1. If the permit application was for the use and development of the land (assuming that the use was not prohibited), then there would theoretically be no difficulty applying conditions that limit the use of the land to a level determined to be acceptable in the planning and physical contexts that apply. However, this application is only for buildings and works because of the existing use rights relied upon. Consequently, there are legal questions before us as to whether conditions that limit use, with the aim of managing amenity impacts, can lawfully be included on a permit for buildings and works.
2. In Benedetti v Moonee Valley City Council[36], Justice Osborn had stated:

[51] The fundamental test of validity of purpose of a planning permit condition was stated by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council. His Honour described the purpose for which the power to exercise conditions may be imposed as follows:

"... not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd. v. Buckingham County Council, as being "the implementation of planning policy", provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."

[52] This statement of principle was affirmed by the High Court in Bathurst City Council v PWC Properties.

[53] It has been applied in this State since the decision of Harris J in 271 William Street Pty Ltd. v. City of Melbourne. It has been held to apply by Ashley J in Crichton v. City of Moorabbin despite the agitation of an alternative test. (citations omitted)

1. By reference to the decision in Crichton v City of Moorabbin[37], the 'alternative test' referred to in the last paragraph of this quote was what is known as the Pyx Granite test[38], namely that for a condition to be valid, it must fairly and reasonably relate to the permitted development. However, the test enunciated by the High Court in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council[39] has supplanted the narrower Pyx Granite test as the test of validity of a planning permit condition in Victoria. That was made clear by the Supreme Court in 271 William Street Pty Ltd v Melbourne City Council[40], with this being confirmed in Benedetti above, and in Melbourne Water Corporation v Domus Design Pty Ltd[41]. The Allen Constructions test has been applied most recently by the court in Boroondara City Council v Sixty-Fifth Eternity Pty Ltd[42]. As noted in Domus, the Allen Constructions test has also been endorsed again by the High Court in Bathurst City Council v PWC Properties Pty Ltd[43], and in Western Australian Planning Commission v Temwood Holdings Pty Ltd[44].
2. Perhaps curiously, in his later decision in Maroondah City Council v Scott[45], Justice Osborn had stated the position a little differently to his decision in Benedetti, as follows:

[22] Mr Finanzio, who appeared for the Responsible Authority before me, summarised the relevant principles as follows:

1. It is well settled that although the discretion to impose conditions is expressed very broadly in the Act, the discretion is not absolute and is constrained by principles that construe the power as extending to the purpose for which it is conferred. In other words (and relevant to this case) for a planning permit condition to be valid it must:

(a) Fairly and reasonably relate to the permitted use or development, that is to say that there must be a real connection between the permission granted and the limitation placed upon it; and/or

(b)Serve a planning purpose by implementing planning policy that is objectively ascertainable from the scheme of the legislation and the planning scheme and not some general notions of planning; and

(c) Must not be imposed for an ulterior or extraneous purpose.

1. The underlying test of validity of a permit condition by reference to purpose is whether the relevant condition is reasonably capable of being related to the implementation of planning policy when the scope of that policy is ascertained from the relevant planning legislation and planning scheme.

[23] I am content to accept this summary for present purposes.

1. There is little doubt, and the parties were agreed, that the test of validity set out in paragraphs 16(b) and 17 of the submission by counsel in Maroondah is correct, and essentially restates the Allen Constructions test. However, Justice Osborn's implicit acceptance of paragraph 16(a) appears to also support the continuing application of the Pyx Granite test. That view is seemingly promulgated on the basis that his Honour had adopted the Allen Constructions test in Benedetti only as the fundamental test of validity of 'purpose'[46] of a planning permit condition. This leaves open the argument that there may still be other tests for validity beyond a 'purpose' test - for example, a 'reasonableness' test (such as for Wednesbury unreasonableness), or a 'nexus' test (such as in Pyx Granite).
2. Ms Brennan contended that, for a permit condition to be valid, it must still fairly and reasonably relate to the permitted development. She thus essentially relied upon the Pyx Granite test still being an appropriate test for validity in this case. Given the limited buildings and works applied for here, and the existing use rights, she contended that it would not be a valid exercise of the Tribunal's discretion to impose conditions on the use of the motorcycle track (eg. conditions to control noise by limiting event days etc.) on a permit for those buildings and works, as there was an insufficient nexus between the approval sought and the condition sought to be imposed.
3. Some might consider there is an intellectual attractiveness in maintaining the Pyx Granite test. It was noted in Domus that the test for the validity of a planning permit condition differs from principles concerning the validity of the exercise of other statutory powers in areas other than planning, and may not be appropriate in other circumstances[47]. However, the very clear preponderance of binding judicial authority in the decisions before us (other than perhaps Maroondah) favours the Allen Constructions test as the sole test in Australia in considering the validity of planning permit conditions. Moreover, as Mr Morris pointed out, Maroondah itself was an uncontested application where his Honour indicated he was "content to accept counsel's summary for present purposes" rather than making a clear judicial pronouncement contrary to other authority. It is not necessary for the Tribunal to resolve this potential anomaly. It is a matter for a court to reframe or clarify the test if it minded to do so.
4. Decisions such as Domus caution against confusing questions of validity and questions of merits. Insofar as questions of validity are concerned, the broad power to impose conditions on planning permits should be understood as conferring a power to impose conditions that are reasonably capable of being regarded as related to the purpose for which the function of the responsible authority was being exercised, as ascertained from a consideration of the relevant scheme and planning legislation - ie. the test in Allen Constructions.
5. That does not of course mean that issues of nexus, relevance, and reasonableness are not relevant to the exercise of discretion to impose planning permit conditions. To a limited degree, it might be said that some of these factors are already built in to the Allen Constructions test - eg. the policy purpose test still relies upon the condition being 'reasonably' capable of being regarded as 'related' to the purpose 'for which the function of the authority was being exercised' by reference to the 'relevant' planning scheme. Beyond this, though, the issue of whether a permit condition fairly and reasonably relates to the permitted development (ie. the Pyx Granite test) is not a test for underlying validity under current Victorian law. It is nonetheless still a relevant matter for a decision-maker to take into account in considering the merits (as opposed to the validity) of a proposed condition. Other factors also apply, such as the so-called 'National Trust principle'[48] - ie. in exercising a discretion conferred by a particular planning scheme provision, the decision maker is confined to considerations that are relevant to the purpose of the particular provision.
6. Having regard to our reading of the authorities, and in applying the Allen Constructions test, we consider it would be a valid exercise of power by the Council to impose the permit conditions it has proposed in its Notice of Decision relating to the future use and operation of the motorcycling track. This is particularly the case in relation to the more significant buildings and works such as the new clubhouse and the works to the main track and its western extension. These more significant buildings and works are not merely a benign development that triggers relevant planning policy considerations limited to their form within the landscape, location, layout and design. The permit trigger arises under cl 63.05, within a clause wholly relating to existing use rights, rather than under a dedicated buildings and works control in a zone or overlay. As we have already indicated, these more significant works will entrench a use otherwise prohibited in the zone. They will lead to greater use of the motorcycling track and associated facilities, with more frequent off-site amenity impacts over the longer term - particularly noise. Having regard to the relevant planning policies in relation to existing use rights and the balancing of competing interests, we consider permit conditions restricting event days or dealing with those off-site amenity impacts are reasonably capable of being regarded as related to the implementation of planning policies directed to existing use rights. As we have indicated, that is one of the very purposes of the control in cl 63.05. On this basis, we consider that the proposed conditions would be valid.
7. Although we do not recite them in detail, Mr Morris also took us to a range of other relevant planning policies that we consider would underscore the validity of the conditions proposed in this case.

CAN THE PROPOSED CONDITIONS ADDRESS THE AMENITY IMPACTS?

1. Having determined that conditions restricting the number of event days and regulating the use of the motorcycling track would be valid, we consider that there would also be merit in imposing such conditions if they sufficiently relate to the buildings and works proposed, and if they could provide a satisfactory amenity outcome that achieves a proper, planning-based, balance between the competing interests of MA and the objectors that we have referred to throughout these reasons. These proceedings have presented a very real dilemma in this regard, given:
   • The competing and legitimate interests of both MA and the objectors;
   • The land-use anomaly created by the existing use rights and the current zoning and land use pattern in the area;
   • The tenuous link between some of the proposed buildings and works and the impacts that might justify reasonable conditions on the use. For example, while the track works might comprise jumps and obstacles that generate more noise, can the same be said for the starter's box? While the new clubhouse might entrench the use for the longer term, can the same be said for a renovated toilet block?
   • The lack of complete information on many issues, with no recent acoustic testing on major event days or reflecting the maximum numbers of riders being sought by MA, and limited information on matters such as the relocated learners' track.
2. It will be evident from our earlier findings that we have not been persuaded that the conditions proposed by the parties, relating to the buildings and works and new clubhouse, allow the proposal to be implemented without unreasonably adversely affecting the amenity of the area. Quite apart from the fact that MA, on the one hand, and the Council and objectors on the other, have significantly different positions as what those conditions might be, we do not consider that proposed conditions would limit conflict to a point where the land uses could co-exist compatibly. This reinforces and strengthens the conclusion that entrenchment of the non-conforming use is not an acceptable outcome in this case.
3. Moreover, having regard to our earlier findings, and even assuming conditions seeking to manage noise can lawfully and reasonably be included on a permit:
   • We are not satisfied that the numerical components of the proposed conditions have a sound objective basis with respect to determining an appropriate number of events and practice days, as discussed above. The position of all parties on these conditions is somewhat arbitrary, based on (respectfully) specific self-interest or opinion rather than resulting from the application of a specific or sound planning guideline or rationale.
   • We are concerned that the proposed conditions can not be confidently linked to the level of events that have occurred until now, or to the package of specific buildings and works in this application. It was suggested in submissions and evidence that the existing numbers of events should be a basis for setting a limit on inter-club, regional, state and national events in particular. However, on the evidence before us, the calendars we have been provided with were the best estimates at the start of a year but the actual number of events did not accord with the scheduled events in the table. It was mostly less. That means that the numbers of events that are being requested by MA, and even the Council, appear to be higher than has mostly occurred until now. We think the increase is significantly higher when having regard to the degree of impact off-site. MA's requested number of events and practice days, etc., provides for some growth, and allows for the fact that some events have not proceeded because of Tribunal/Court proceedings or inclement weather (as examples) but it also will result in more of the most problematic events in terms of noise emissions. Increasing the number of noise free weekends also imposes a significant impost on recreational and practice riding as Ms Brennan observed.
   • Limiting the number of riders on the track at one time at club events to levels sought by the Council and objectors seems to unduly restrict an activity that wishes to grow and is well below the regulated upper limit set by MA of 40, even though we note that MA indicated a maximum of 25 for club events would be accepted by the permit applicant.
   • Some of the proposed permit conditions relate to Enduro events which occur on Lot 1 and also on Lot 2, for up to 80 riders, and we are mindful that Lot 2 is not the subject of the permit application.
   • A number of the conditions would be difficult to implement and enforce. For example, the objectors' suggestion for a 65 dB(A)Leq (15 min) measurement program at all dwellings is not only costly and extensive, but it also raises questions as to what happens when the noise level is exceeded (possibly through shifts in wind direction) and how then the activity on the track would respond. Moreover, Messrs Growcott and Fearnside both referred to difficulties in achieving reliable measurements notably on windy days.
   • Practical issues arise with respect to proposed conditions addressing rescheduling of events that is proposed by conditions to require four weeks advanced notice. An event may be cancelled at short notice because of weather conditions and a four week time frame, while reasonable per se, limits the scope to reschedule an event within a shorter time which may be most practical for track users.
   • More may be required or desirable that would go beyond the scope of conditions that can reasonably be applied in these proceedings. An important example would be limiting the geographic extent of motorcycling activity to reduce the extent to which riding occurs closer to dwellings.
4. It follows that we are not confident that the imposition of permit conditions would satisfactorily address the underlying amenity impacts, particularly noise, that will arise as a result of the granting of the proposed permit and the entrenchment of the use.

1. In the interests of providing some certainty to a longstanding debate over MA's use of the land, should we grant a permit subject to conditions in an attempt to achieve that certainty, despite our concerns about the arbitrariness or reasonableness of some of those conditions and whether they will realistically address the underlying amenity issues? Although certainty is important, the exercise of our discretion must be based on the application of proper planning principles as expressed through the requirements of the planning scheme. We must decide the application before us, and not try to solve all of the broader issues between the parties.

1. We have concluded that:
   • We should not grant a permit without conditions on noise management. Such an outcome would be entirely unacceptable. The prospect of a voluntary s 173 agreement between parties does not change our view because it would be separate and apart from a permit. It would be subject to change without the involvement of all persons who may be impacted by its terms. This means that MA's primary position before us fails on its planning merits. The entrenchment of the use through the more significant buildings and works, without some form of noise management controls, is unacceptable from a planning perspective.
   • Had we been minded to grant a permit with noise management conditions, these would have, as a minimum, been closer in form to those proposed by the Council and the objectors, rather than MA's larger number of events and fewer noise-free weekends. For example, we would have been more attracted to conditions requiring two noise free weekends per month, given the noise predictions of the two acoustic experts. However, we are mindful of the fact that the imposition of such conditions has tenuous links to some of the buildings and works and is not supported at all by MA. Further, it has practical and other consequences for MA in the future use of its site to the extent that it may be tantamount to approving an application in a form quite different to that sought and desired by MA, or, by default, effectively resulting in a refusal.
   • The proposed conditions that we might feel it appropriate to impose would limit the operations of the buildings and works in a manner that is, we find, at odds with securing the long term viability/use of the site for motocross clubs who enjoy its use today. We are also concerned with the lack of objective or complete information on several issues, including the noise mound, the use of the western track extension, and the relocation of the learners' track.
   • Even with conditions seeking to manage noise that can lawfully and reasonably be included on a permit, we are not satisfied that:
     • The conditions sought by the parties would adequately limit the amenity impacts arising for all landowners in the area (including some who are not parties to these proceedings).
     • Further, based on the material before us, some of the key proposed conditions may not be readily achievable or practical to implement and enforce.
2. Should these matters be over-ridden by the desire to achieve certainty with respect to the operation of McAdam Park, given the history of conflict and dispute that clearly is giving rise to tensions and mindful of the several protracted, costly and emotionally-wearing proceedings that have already been required? We have concluded "no". We do not believe it is an appropriate exercise of our discretion to grant a permit that represents a poor long term planning outcome because it does not or cannot sufficiently limit or manage the potential for conflict. It would entrench a use that has unacceptable impacts that, on the material before us, can not be properly managed.
3. We have considered the ramifications of refusing the application, with the continuing uncertainty that may create, and the potential that MA may still exploit its existing use rights without the safeguards that some of the permit conditions might have alleviated. Ultimately, a decision may be required by those involved to find a new home for the type of long term or permanent facility sought for the motocross community of this region with the review site able to continue a smaller scale operation consistent with its existing use rights should that be desired. Either way, a refusal of the application will not mean that the existing amenity problems will go away.

1. We considered making an interim decision that sets a framework for further work and further investigations by the parties that might provide us with a more objective basis for granting a permit for some or all of the proposed buildings and works, with appropriate conditions.
2. Alternatively, we considered remitting the matter to the Council to perform a similar role.
3. Ultimately, we consider a more fundamental strategic planning exercise is required, or a completely revised application by MA that deals more squarely with the issues we have discussed in these reasons. We are also mindful that changes to the Farming Zone later this year may change the regulatory position, such that a fresh application would be warranted.
4. We have also considered granting a permit only for the more minor buildings and works that would not necessarily require noise management conditions -eg. the starters box or toilet block. Although this was briefly discussed at the hearing and alluded to in Mr Cicero's submission[49], the application proceeded largely as a package of buildings and works, and we do not consider it appropriate for this Tribunal to adopt a piecemeal approach that has not been fully canvassed at the hearing. Consequently, we have not been persuaded to separate out the minor buildings and works out from the more substantive elements of the permit application (notably the track works and new clubhouse) that would entrench the use, add to amenity impacts and create further conflicts in this location. This is, potentially, an avenue that could be revisited by MA through a fresh application to the Council.

1. As stated, we must decide upon the application before us rather than attempt to resolve all of the broader issues between the parties about the use of this land.
2. We have found that the proposal would not produce an acceptable planning outcome. We consider that it would unacceptably entrench the use. We are not persuaded that approval of the proposed buildings and works and the new clubhouse, with conditions, results in the proposal comfortably existing in its physical context because of unreasonable off-site amenity impacts, specifically noise. We have not been provided with an objective or acceptable solution for how those noise management issues can be resolved. Further work is required if MA seeks to pursue the longer term use of this land for off road motorcycling events and activities through further buildings and works.
3. It follows that, on balance, we consider that this permit application should be refused. We will therefore set aside the Council's decision and direct no permit be issued. It follows that MA's application to review conditions on the proposed permit is dismissed.

[1] We have considered all written statements of grounds by parties, written and oral submissions, and evidence, although we do not recite all of the material in full in these reasons.

[2] Wellington & Ors v Surfcoast SC (Red Dot) [2011] VCAT 2317.

[3] We refer to all of the requested buildings and works for ease as the "the proposed buildings and works and the new clubhouse".

[4] At the hearing, Ms Brennan confirmed that the permit applicant no longer contests Condition 3(a) that requires a report with respect to the contamination of soil because the Council had indicated that it would be satisfied on this matter based on the witness statement of Mr Pump.

[6] Being the Applicants in P2564/2013 although, for simplification, we use the term "objectors" to refer to those opposing the permit applicant and those contesting conditions, as many of their grounds are substantially common.

[7] Not all objectors to Application P3092/2012 appeared or were represented at the hearing.

[8] The final versions being Exhibits A31, O6 and a revised Council position circulated before Day 4 of the hearing.

[9] Wellington, at [Order 2 d, e and h].

[10] Report by St Quentin dated March 2012 at page 9, section 5.1 received by the responsible authority on 13 March 2012.

[11] Plan reference 7535-EC dated 15/7/2013 by Lawlor and Loy Pty Ltd.

[12] The distances are not consistent in the material before us. Mr Glossop's evidence relies on the Council officer's assessment (22 August 2012). Mr Cicero's submission (Exhibit R1 at tab 2) includes a plan with different distances.

[13] These are set out in Mr Glossop's evidence at page 14.

[15] While motor sports are expressly excluded from NRV, the document states "Noise from motorsports vehicle testing at a motorsport venue may be assessed under these guidelines" at page 3.

[16] As described in the minutes of the GGCC on 25 May 2010 as part of Exhibit A24.

[17] These are set out at pages 12 - 14 of the submission. Some are also specifically cited to in the next footnote.

[18] See More Land Pty Ltd v City of Hawthorn (1984) 12 APA 36, cited with approval in cases such as McMahon Dairy Pty Ltd v Hume CC [2006] VCAT 59, and with its characterisation being regarded as correct in Crichton v City of Moorabbin [1992] VicRp 69; [1992] 2 VR 372, per Ashley J. See also Kennedy v Yarriambiack SC [2005] VCAT 2680.

[19] See Norman v Gosford Shire Council [1975] HCA 15, and the discussion in Wellington & Ors v Surfcoast SC (Red Dot) [2011] VCAT 2317 at [153]

[20] [1999] VCAT 1662 per Member Cimino.

[21] Letter from Heather Wellington and Paul Morgan dated 30 July 2013. MA's solicitors responded to that letter the same day. We have not placed weight on either letter.

[22] We were advised that there were between 8 and 25 riders at the mock starts whilst we were at nearby properties.

[23] The wind speed was taken from a smartphone app, showing weather data for Geelong West, and is very indicative only.

[26] His statement of evidence refers to this as part of a VCAT hearing but it was confirmed at the hearing that it was a Panel process.

[27] As set out in lists of references, such as in Mr Growcott's evidence in terms of the Heggies document and referenced in Ms Brennan's oral submission with respect to the VIPAC report.

[29] A report by Marshall Day from 2010 (Exhibit O2) states that the event was representative of larger events but we are unclear on the numbers of riders involved.

[31] Page 31 of the permit applicant's submission.

[33] This is not a full list of all of the components of the positions. We note reference in some of the proposed conditions to the use of Lot 2, such as for part of the Enduro events. Lot 2 is not part of the application.

[34] Page 17 of statement of evidence dated 8 March 2013.

[35] These activities were referred to in the permit applicant's requested permit conditions.

[36] [2005] VSC 434

[37] [1992] VicRp 69; [1992] 2 VR 372, per Ashley J.

[38] Taking its name from the English decision in Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1958] 1 QB 554

[39] [1970] HCA 42 per Walsh J (with whom Barwick CJ, Menzies & Windeyer JJ agreed)

[40] [1975] VicRp 15; [1975] VR 156 per Harris J

[41] [2007] VSC 114 per Gillard J

[42] [2012] VSC 298 per Emerton J

[43] [1998] HCA 59

[44] [2004] HCA 63, albeit by majority

[45] [2008] VSC 42

[46] See the wording used by Justice Osborn in Benedetti at [51] set out above

[47] See also Protean (Holdings) Pty Ltd v Environment Protection Authority [1977] VicRp 5; [1977] VR 51

[48] Maned for the decision in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592