Mr C Tsourounarkis, Town Planner, Beveridge Williams Pty Ltd

1. A motorcycle track has been formed on part of a low lying area of land at 133 Murray Street, Skipton. The track is approximately 780m in length and comes to within 30m of Mount Emu Creek located along the southern boundary of the land. The earthworks carried out consist of the grading and shaping of what was previously an informal track into a formalised form to make it safer for Mr Grist, the owner of the land and his children to use.
2. Mr Grist was required to apply for a planning permit after Mr Rogers had brought the works to the attention of the Council. The application is in the name of Mr Grist's partner Ms Kroon. Nothing turns on this as a permit application can be made by anyone provided the owner of the land is aware of and consents to the application.
3. A permit for the earthworks that have been carried out is required under the Pyrenees Planning Scheme as the land is within the Farming Zone and works associated with a dwelling which is a section 2 use under the zone require a permit. There is no requirement under the planning scheme for a permit to use the land as a motorcycle track as the track is considered to be ancillary to the use of the land for a dwelling[1].
4. The land is also subject to the Environmental Significance Overlay Schedule 2 (Watercourse Protection). A permit is required to carry out works unless the schedule to the overlay specifically states a permit is not required. Under the overlay a permit is not required for works ancillary to a dwelling. It was considered the earthworks were not ancillary to a dwelling[2] whilst the use of the track is considered to be ancillary to the use of the land for a dwelling.
5. The land is an irregular shaped area of approximately 7.4ha. It is located 1.5km north east of the Skipton Township. The dwelling and sheds are located on a high area of the land in the north west. The land drops away to the south and east towards Mount Emu Creek, located along the south eastern boundary. The track is located approximately 200m from the dwelling on the land.
6. Opposite the subject land on the south eastern side of the creek is Ms Tenisons property with an area of approximately 4ha. A cabin and shed are located on her land in close proximity to the creek. The cabin appears to be used on occasions as a dwelling. Ms Tenisons property falls steeply from the south east towards the creek. At its nearest point the track is approximately 70m from Ms Tensions property.
7. Further to the south east of Ms Tenisons property is the land owned by Mr Rogers in Park Lane. His land is situated on the eastern bank of the creek at the top of the escarpment. A dwelling is located on part of his land. Mr Rogers land is approximately 500m from the motorcycle track.
8. Mr Rogers raised a number of issues many of which were not related to this application. In relation to this application Mr Rogers raised concerns regarding the extent of the earthworks in close proximity to Mount Emu Creek and the noise of the motorcycles when in use.
9. The Tribunal notes that an informal motorcycle track existed on the land prior to Mr Grist carrying out the works to formalise the track. The informal track was formed as a result of the Grist children riding their motor bikes over time on this flatter area of the land. The Tribunal considers this is relevant as, but for the grading and forming Mr Grist has undertaken, no permit would have been required for the motorcycle track. The works carried out by Mr Grist are to ensure that the track is in a safe form for his children to use.
10. The issues required to be considered by the Tribunal are confined to whether the works are reasonable within the Farming zone and whether the works have or will result in any impact on Mount Emu Creek. Mr Rogers also raised the issue regarding noise and relied on the Tribunal's determination in Monea[3] regarding the imposition of conditions that relate to use of the motorcycle track. Mr Rogers requested that similar conditions to those imposed in that matter should be imposed under this permit.
11. The proposal was referred to the Department of Natural Resources and Environment (DNRE) (now Department of Sustainability and Environment), Southern Rural Water (SRW) and Glenelg Hopkins Catchment Management Authority (GHCMA). SRW indicated the matter did not fall within its jurisdiction and DNRE advised the land contained no know flora or fauna habitat of significance.
12. GHCMA advised the land is within the floodplain of Mount Emu Creek, which is also known as a designated waterway. Works on or around a designated waterway require a permit from GHCMA as well as a planning permit. The authority indicated it had no objection to the works being carried out provided specific conditions were placed on the planning permit. The conditions requested by GHCMA have been incorporated into the Notice of Decision to Grant a Permit. The conditions required some revegetation and fencing along the frontage of the creek and a Site Management Plan to ensure amongst other things that there is no sediment drainage into the creek.
13. We accept the use of the motorcycle track is ancillary to the use of the land as a dwelling. A permit was granted to allow the use and development of a dwelling on the land (Permit 14/95) and a dwelling was constructed in 1998. The Grist family live on the property. Mr Grist also has a permit to use the land for an Earthmoving Contractors Depot.
14. Mr Grist and Ms Kroon have three school age boys who all ride motor bikes. The boys have been riding their bikes over the land since coming to live on the property. They generally ride on the lower flatter section of the land and as a result an informal track has been formed. Mr Grist as previously stated has carried out the earthworks to better form the track to ensure the safety of the children whilst riding their motor bikes. The motorcycle track is to continue to be used by the Grist family and friends for their own enjoyment, it is not to be used for any competition[4].
15. In relation to the provisions of the Farming zone we do not consider that the development of a motorcycle track, ancillary to the use of a dwelling, will have any impact on or prevent the use of the land for agricultural purposes. The track is only visible from Ms Tensions rural property, and will have no impact on any nearby agricultural uses. The track will not have an impact on any natural physical features and resources of the area being located on a flat part of the subject land and a distance from the nearby Mount Emu Creek.
16. We do not consider the motorcycle track will have any impact on Mount Emu Creek which can be adequately protected by permit conditions.
17. Clause 15.01-2 requires that Responsible Authorities should consider the impacts of catchment management on downstream water quality and where possible encourage 'the retention of natural drainage corridors with vegetated buffer zones at least 30m wide along waterways to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from adjacent land uses'.
18. We consider that any concerns Mr Rogers may have regarding the track coming within 30m of Mount Emu Creek have been assessed by the GHCMA who we understand have undertaken an inspection of the site and have been addressed by the requirement of conditions. We consider that there is at least a 30m width between the track at its nearest point and the creek and that this area is to be revegetated and retained as a buffer. We consider the Site Management Plan and revegetation required by GHCMA will address the requirements to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from the use of the motorcycle track.
19. As a permit is only required for the earthworks, that is the development, there is a question as to whether it is appropriate to include use type conditions on a permit. Mr Rogers would like to restrict the times of use and types of motorcycles to restrict the impact of noise on his property and that of Ms Tenisons.
20. In Ahrbeck[5] the Tribunal Member was referred to a local law adopted by the council relating to the use of motorbikes. A not dissimilar local law was also referred to in Monea[6]. The Pyrenees Shire Council does not have such a local law.
21. In Monea the Tribunal Member referred to two decisions that imposed use type conditions on a development permit[7] citing the comments in Challister that '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 such development resulted in an intensification of the use then such a condition could be imposed.
22. In determining to impose conditions in relation to the hours of operation and types of motorcycles to be used the Tribunal Member in Monea followed the conclusions reached by his Honour Justice Osborn in Burns Bridge Services Pty Ltd v Greater Bendigo City Council & Ors[8] where at paragraphs 34 and 35 he stated:

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

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.

1. Unlike in Monea we were not provided with any acoustic evidence regarding the level of noise from the motorbike activity. Mr Rogers did present us with a tape recording said to be of the motorcycles which indicated they presented a continuous audible sound. In Monea a condition was imposed limiting use of the track to 2.5hours between 11am and 3pm on weekdays and no track use on weekends. This condition was imposed because it was considered 'the jumps, whoops and stutters earthworks create an environment where noise is magnified above and beyond normal recreational motor bike activity on the land'[9]
2. We consider that the forming of the track making it safer to use encourages the Grist boys to use the track more frequently and that it is as a result of these works that there will be an intensification of the use. We consider that as the Grist boys all attend school the use of the track is likely to occur after school hours during the week and at weekends with possible increased use during weekdays during the school holidays. We therefore do not consider that restricting the use to between certain hours is appropriate.
3. The intensification is likely to have an impact on Ms Tenisons property. Whilst her cabin may be used at various times for accommodation we do not consider it has any formal status as a dwelling. We consider this property is a piece of rural land likely to be used as such, therefore we do not consider that it will be affected in anyway by the development of the motorcycle track on the opposite side of the creek. We recognise that if a person is standing on this property they will be able to see the motorcycle track and hear it being used, but as there is no permitted dwelling on the property such impact is not of such significance to warrant the placing of a condition on the permit that would limit the use of the motorcycle track. Given the distance Mr Rogers dwelling is from the motorcycle track, whilst we acknowledge he will be able to hear the motorcycles at various times when using the track, we do not consider that such impact warrants a condition limiting the times of use.
4. However, we consider that the number of motorbikes on the track at any one time may affect the resultant noise levels. Accordingly we will limit the number of motorbikes permitted on the track at any one time to four.
5. The track is not visible from Mr Rogers dwelling but is visible from Ms Tensions property. The required revegetation along the Creek reserve we expect will result in a reasonable screen of the motorcycle track when viewed from the area near Ms Tenisons cabin.
6. We do not consider that this permit should be made specific to the current owners of the property. We note that such a condition was agreed to by the permit applicants in the Monea matter. We do not consider that in this matter there is any particular factor that would require us to limit this permit to Mr Grist, the activity is ancillary to the use of the land as a dwelling and is not out of keeping with the use of the land within the Farming zone. Rural activities can still be carried out on the land.
7. The application for review is disallowed.
8. Mr Rogers requested that costs be awarded in relation to the application. Under section 109 Victorian Civil and Administrative Tribunal Act 1998 each party is to bear their own costs unless the Tribunal considers it fair to award costs. The consideration of the awarding of costs relates to the proceeding before the Tribunal and whether any party has acted inappropriately causing another party to incur unreasonable costs not generally expected as part of a proceeding. We see no reason why costs should be awarded in this matter. Mr Rogers has exercised his right to appeal the decision of the Responsible Authority. The matter has come before the Tribunal in a timely manner and no party has sought to unreasonably prolong the proceeding.

[1] Monea v Cardinia SC & Binding [2007] VCAT 1063

[4] Ahrbeck v Mornington Peninsula CC [2006] VCAT 1784 (30 august 2006)

[7] John Paul College v City of Frankston (1991) 7 AATR 185; Challister Ltd v City of Caulfield and Others (1992) 8 AATR 22

[8] [2005] VSC 422 (25 October 2005)