(a) The creation of a soil mound of at least 2m in height along the northern boundary.

(b) Details of plant numbers, height at planting and at maturity and plant species proposed for the site (which plants must be local to the area, suitable to the conditions of the site and achieve screening for the site).

(c) A schedule of all external materials and finishes to show materials and colours which must be of a dull finish and in tones which blend with the surrounding environment.

(d) The location of any plant and equipment which must be screened from view from outside the site.

(e) Cyclone fence replaced with post wire fence at the same height as the boundary fence.

2 The layout of the site and the size of the proposed buildings and works, as shown on the approved plan(s), must not be altered or modified without the consent in writing of the Responsible Authority.

3 The use of the land must not be commenced until the following have been submitted to and approved by the Responsible Authority:

(a) A code of practice for the regulation of the users of the site to assist in the orderly management of the permitted use in accordance with the conditions of this permit and to limit any impacts of the use on the amenity of the locality. The code of practice must include rules relating to, the operation of motor cycles on site, the operation of motor cycles on days of total fire ban, the condition of motor cycles and their exhaust systems and hours of operation.

(b) A land management plan setting out the measures to be implemented by the permit holder to assist in the control of erosion and the landscaping of the site based on the techniques, outlined in EPA Publication 480, Environmental Guidelines for Major Construction Sites (December 1995) and EPA Publication 275, Construction Techniques for Sediment Pollution Control (May 1991) to the satisfaction of the Responsible Authority. The management plan must include measures relating to:

(i) The avoidance or minimisation of erosion and polluted run off,

(ii) The construction of appropriate sediment control devices;

(v) Revegetation and landscaping plan, prepared by a landscape architect or person approved by the Responsible Authority as having sufficient competence in that field showing species, locations, approximate height and spread of proposed planting and the retention of existing trees and shrubs and the proposed bike track.

4 No soil or fill is to be brought onto the land for track construction without the prior written consent of the Responsible Authority.

5 The code of practice approved under this permit must not be altered without the written consent of the Responsible Authority. The permit holder must:

(a) Implement and abide by the provision of the code of practice approved under this permit;

(b) Inform all people using the site of the terms of the code of practice approved under this permit; and

(c) Use all reasonable endeavours to ensure that compliance with the terms of the code of practice is achieved at all times.

6 The land management plan under this permit must not be altered without the prior written consent of the Responsible Authority. The permit holder must implement and abide by the provisions of the land management plan approved under this permit at all times.

7 Once approved all landscaping works are to be completed within six (6) months of the endorsement of a plan under this permit.

8 The use of the track is only permitted to a maximum of three continuous hours in any one day between the following hours:

10 am - 5 pm Monday - Friday (inclusive) during daylight savings

No use of the track on the site is permitted on Saturdays or Sundays or public holidays.

9 No more than four (4) riders are permitted on site at any one time.

10 All stormwater must be conveyed by means of drains to satisfactory points or areas of discharge approved by the Responsible Authority so that it will have no detrimental affect on the environment or adjoining property owners.

11 The site must be kept and maintained in a clean and orderly manner as not to prejudicially affect the amenity of the locality by reason of appearance.

12 Vehicles under the control of the operator of the use must not be parked in any nearby road.

13 The amenity of the area must not be detrimentally affected by the use or development through the:

(a) Transport of materials, goods or commodities to or from the land;

(b) Appearance of any building, works or materials;

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, stem, soot, ash, dust, waste water, waste products, grit or oil; or

14 The permit holders must be in attendance at all times when the use is in operation to the satisfaction of the Responsible Authority.

15 The permit allows for the use of the land for outdoor recreation facility for private training track for motorcycles only by Mark Portbury. If Mark Portbury ceases to use the site for this purpose, then the permit will lapse unless otherwise agreed in writing by the Responsible Authority.

16 No motor repairs are permitted on the site with the exception of running repairs without the further consent of the Responsible Authority.

17 Only four stroke motorbikes fitted with a practice muffler shall be used on the land.

If land use ceases then land used for the motorcycle track shall be reinstated for agricultural use within six months to the satisfaction of the Responsible Authority.

18 Unless otherwise agreed in writing by Melbourne Water, finished floor levels of the proposed shed must be a minimum of 300mm above the applicable flood level.

19 Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways during the construction of development works.

20 An emergency response plan, which sets out excavation of the site in the event of a flood, must be prepared and submitted to Melbourne Water prior to commencement of works.

(a) The use and development is not commenced within two (2) years of the date of this permit; or

(b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the period referred to, if a request is made in writing before the permit expires or within three (3) months afterwards.

Mr John Cicero of Best Hooper. Mr Cicero called Mr Neville Goddard, Acoustic Consultant of Watson Moss Growcott and Mr Marco Negri, Consultant Town Planner of Contour Consultants as expert witnesses.

Mr Phillip Dixon and Ms Effie Saywell, Mr Sahinis, Mr Graham Brown, Mr Harold Hobson, Mr Rodney Corrigan, Dr Deborah Corrigan on behalf of Mrs Joyce Corrigan and Mr Colin Quinn.

1 This was an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the Shire of Cardinia to refuse to grant a permit in Application No. T030934 for an outdoor recreation facility on land at 300 Wenn Road, Officer.

2 The subject land is located on the corner of Wenn and Fowler Road, Officer, some 1.8m north-west of the Cardinia township. The site is regular with a frontage to Wenn Road of approximately 274m and to Fowler Road of some 796 sq m giving an overall site area of 21 hectares. The section of the land proposed to be used for the proposed bike track is approximately one-third of the total area. The site is generally flat and currently used for the grazing of livestock. There are no buildings apart from a windmill on the land. Vehicle access is by way of a gate located towards the north-east corner of the site.

3 The surrounding land is located within the Westernport Floodplain Catchment and generally flat. A distinctive characteristic of the area is the series of drains and levee banks that channel water across the land into Westernport Bay. The levee banks are up to 3m high. There are two of relevance to the subject site, one abutting the south-west corner of the land and one on the opposite side of Wenn Road. Both Wenn and Fowler Roads are unsealed. Fowler Road is a dead-end beyond the subject land.

4 The property to the north of the subject site is a rural property with a dwelling some 750m from the common boundary of the site. This property is some 70 hectares in area and is used for grazing purposes. This property addresses Wenn Road which changes its alignment north of the subject site to travel to the west. There is a second property addressing Wenn Road with a northern abuttal to the site which is also used for grazing purposes.

5 To the south on the opposite corner of Wenn and Fowler Road is a 40 hectare property which is used by a model aircraft club which the Tribunal was informed had been in operation since the mid-1970s. There are a number of buildings on this land associated with the club activities.

6 To the east of the subject site on Rythdale Road is a 24 hectare property occupied by a dwelling. The dwelling is some 750m to the east of the subject land with the levee bank in between. There were a number of other properties to the east owned by objectors to the proposal who put their case to the Tribunal at the hearing. Land to the west is a 40 hectare property used as a dairy farm. There is a dwelling on this land some 770m from the common boundary.

7 Adjacent to the south-west corner of the review site across Fowler Road is a property in which a significant number of activity has occurred on recently. There is a caravan and shed located on this land about 700m west of the proposed facility.

8 The proposal is for the use of the land for an outdoor recreation facility specifically a motorcycle training track. The application described the proposal as seeking approval to ride motorbikes on the site for recreation for a period of no longer than three hours per day, during daylight hours only, within a designated area, 1.8m high chain mesh fence around the track, tree planting, associated works and construction of a shed.

9 Mr Cicero informed the Tribunal at the hearing that the intent was to provide for a training facility for the son of the owner of the land who is pursuing a professional career in motor-cross riding. He informed the Tribunal that 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. Further it was his submission that the training sessions were generally broken up into 20 minute rides followed by 20 minute breaks so that during the three hour training period riding would only occur during half that time.

10 It was Mr Cicero's submission that the nature of the permit was such that it would be appropriate for it to be limited to the training of Mark Portbury and that the permit should lapse if and when Mr Portbury ceases riding. The applicant was also willing to accept conditions with respect to a code of practice, a land management plan and a requirement that the site be reinstated for agricultural use within six months of the time when the use applied for ceases. It was put to the Tribunal that all earthworks, track and jump construction would involve material from the site itself and that no additional soil would be brought in. The Tribunal was informed that the track would be changed approximately twice each year.

11 The proposal also includes the construction of an associated shed and water tank set back some 20m from the western fence line of the proposed track and 30m from the Fowler Road frontage of the site. The shed as proposed is some 5.21m in height and approximately 121 sq m in area and will be used for storage purposes. Vehicle access to the site is proposed to be changed to a crossover along the Fowler Road frontage directly adjacent to the proposed shed. A 2.5m wide landscaping buffer is proposed around the north, south and eastern boundaries of the motorcycle track. A chain wire fence is proposed inside of this landscaping strip at a height of some 1.8m and offset 5m from the track itself. It was agreed at the hearing that should a permit be granted there was no need for this fence to be 1.8m in height and that a standard farm post and wire fence would be satisfactory.

12 At the time of the application the review site was contained within the Rural Zone pursuant to Clause 35.01 of the Scheme. Currently the land is in the Green Wedge Zone Schedule 1 pursuant to Clause 35.04 of the Planning Scheme.

13 Clause 57 of the Planning Scheme - Metropolitan Green Wedge Land was incorporated into the Scheme on the 19th of May 2004. Clause 57.02 provides transitional arrangements for permit applications lodged before the 19th of May 2004. As such, although the land is now in a Green Wedge Zone for the purposes of this application for review the requirements of the Rural Zone apply.

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticultural and Timber production).

* Protection and creation of an effective rural infrastructure and land resources.

* Improvement of existing agricultural techniques.

* Protection and enhancement of the bio-diversity of the area.

* Value adding to agricultural products at source.

* Promotion of economic development compatible with rural activities.

* Development of new sustainable rural enterprises.

15 The proposed private motorcycle training facility falls under the land use definition of Outdoor Recreational Facility which is nested within the broader category of Minor Sports and Recreation Facility defined as:

Land used for leisure, recreational sport without substantial provision for spectators, and which is usually open to non-paying spectators.

16 Leisure and recreation under the provisions of Clause 35.01-1 is a Section 2 Land Use requiring a permit. A permit is also required under the zone provisions to construct or carry out buildings or works associated with a use in Section 2 of the Zone. Clause 35.01-6 provides a number of decision guidelines, of which the following have relevance to the proposed development:

* The State Planning Policy Framework and the Local Planning Policy Framework, the Municipal Strategic Statement and local planning policies.

* The capability of the land to accommodate the proposed use or development, addressing site quality attributes including soil type, soil fertility, soil structure, soil permeability, aspect, contour and drainage patterns.

* How the use or development relates to rural land use, rural diversification and natural resource management.

* The maintenance of farm production and the impact on the rural economy.

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby land uses.

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* The need to prepare an integrated land management plan.

* The impact on the existing and proposed infrastructure.

* An assessment of the likely environmental impact on the natural physical features and resources of the area and in particularly any impact caused by the proposal on soil and water quality and by the emission of noise, dust and odours.

* The impact of the use or development on the flora, fauna and landscape features of the locality.

* The protection and enhancement of the natural environment and the character of the area, including the retention of vegetation and fauna habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridge lines, property boundaries, discharge and recharge areas.

* The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance.

* The design, colours and materials to be used and the siting, including the provision of development and effluent envelopes for any buildings or works.

* The impact of the sue or development on the existing and surrounding rural uses.

* The location of any building or works with respect to the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.

* The location and design of existing and proposed roads and their impact on the landscape and whether the use or development will cause significant traffic generation which will require additional traffic management programs to be initiated.

* The location and design of existing and proposed infrastructure services including gas, water, drainage, telecommunications and sewerage facilities.

17 The subject site is also affected by a Land Subject to Inundation Overlay at Clause 44.04 of the Cardinia Planning Scheme. The purposes of the overlay are:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To identify land in a flood storage or flood fringe area affected by the 1 in 100 year floor or any other area determined by the floodplain management authority.

* To ensure that development maintains the free passage and temporary storage of floodwaters, 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.

* To reflect any declaration under Division 4 of Part 10 of the Water Act, 1989 where a declaration has been made.

* To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria).

18 A permit is required under the provisions of the overlay to construct a building or construct or carry out works including a fence and roadworks. The overlay requires referral to the Floodway Management Authority, in this case Melbourne Water. Melbourne Water responded to the Council indicating no objections to the proposal.

19 State Planning Policy Framework provisions of relevance to the proposal are as follows:

* Clause 11 - Goals and principles which seeks to ensure the objectives of Planning in Victoria are fostered through appropriate land use and development, planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

* Clause 15 - Environment which seeks to protect environmentally sensitive areas from development that would diminish their environmental, conservation or recreational values and specifically seeks to protect the natural flood carrying capacities of rivers, streams and floodways as well as directing development to assist in the control of noise effects on sensitive land uses and the protection of air quality.

* Clause 17 - Business. Clause 17 seeks to ensure the protection of productive farmland which is of high quality and strategic significance in the local or regional context.

20 Local Planning Policy as contained within the Municipal Strategic Statement provides the strategic framework for the Shire of Cardinia. The MSS deals with agriculture at Clause 21.06-2. Port Phillip and Westernport Catchment and Land Protection Region which includes the Cardinia Shire is recognised as the third highest region in the State in terms of gross value of agricultural production and contains a number of clauses emphasising the value of protecting high quality agricultural land and the need to protect the agricultural land uses from inappropriate development and fragmentation. The MSS also deals with environmental issues and notes the importance of landscape to the wider population in general.

21 The application was received on the 5th of December 2003. Further information was requested including an acoustic report. Notice of the application was given and 10 objections were received. The objections related to the impact of noise, dust and traffic on local residents and on livestock, the loss of agricultural land and the visual impact of the proposal.

22 The matter was referred internally to the Engineering Services Department and Council's Health Surveyor neither of which had any objection subject to conditions nor was there any objection raised by Melbourne Water, the external referral authority.

23 The Council's Town Planning Committee rejected the recommendation of the Town Planning Officer and resolved to refuse to grant a permit on the following grounds:

The use and development does not satisfy the requirements of Council's Municipal Strategic Statement.

The use and development does not satisfy the requirement of the Rural Zone.

The proposal would be detrimental to the amenity of the surrounding area.

The use and development is out of character for the locality.

24 The Tribunal after hearing the submissions and evidence before it and visiting the appeal site is of the view that the central issues in this matter are:

* The consistency of the proposal with planning policy particularly with respect to the use of agricultural land for the purpose proposed.

* The impact of the proposed development on the amenity of adjoining properties specifically with regard to noise both with respect to residents and livestock.

25 The question to be asked with respect to the consistency of the proposed development on policy relates to the loss of quality agricultural land . The proposal will make use of a third of the subject property for a period of time during which the land will not be available for agricultural use.

26 The Tribunal however is persuaded that the proposal represents a circumstance where the use of the site can be made personal to the son of the current owner and that such use is likely to be for only a limited number of years at which time the land can readily be restored to its original agricultural use. The Tribunal finds in such circumstances that the proposal is not inconsistent with the long-term goals with respect to high quality agricultural land in the zone.

27 It was put to the Tribunal that the remaining two-thirds of land would not be viable for agricultural purposes if the proposal were to go ahead. The Tribunal is of the view that the 21 hectares that make up the whole of the site is not an agricultural unit that would provide a living for its owner. Generally speaking such lots are farmed in conjunction with other lots of land or leased to other farmers. The Tribunal therefore does not find that there is an argument with respect to reduced viability associated with the loss of one-third of the land.

28 Mr Negri put arguments with respect to the recreational use of the land. The Tribunal considers that these are somewhat spurious in the circumstances pertaining to the site. The Tribunal finds that although the use falls within the definition of land used for outdoor leisure, recreation or sport the intent of the proposal is for the private and personal use of the son of the owner to further his career ambitions.

29 The Council argued that there were landscape issues associated with the proposal in that the visual character of the area was flat, largely featureless plane without any vegetation. It was Council's view that the high mesh fence and the proposed screening vegetation would be out of character with the area.

30 The Tribunal finds in this regard that the landscape of the area is not without trees, in particular the levee bank on the eastern side of Wenn Road is quite heavily vegetated and most viewlines include trees. The Tribunal considered the planting proposed will enhance the precinct rather than detract from it.

31 The Tribunal, however, did have some concerns with the high mesh fence. The applicant indicated that this was not the necessary aspect of the proposal and could be deleted from the application and replaced by an ordinary farm fence.

32 A number of questions were raised with respect to the impact of the proposal on the floodplain. The Tribunal is of the view, that with appropriate conditions with respect to the Code of Practice and :and Management Plan that there should be no issues with respect to impact on the flood plain or on local waterways particularly in circumstances where all soil associated with the building of the track will be taken from the site thereby ensuring there is no loss of water holding capacity of the land in times of flood. The Tribunal notes the bund required in the Responsible Authority's draft conditions will have some effect on the holding capacity

33 Local residents had a number of amenity concerns specifically related to noise but also with dust and traffic. The applicant intends to suppress dust on site by use of water sprays. The Tribunal considers that to be a reasonable means of control which should be included in the conditions on any permit that might issue. The Tribunal notes in this regard that the roads adjoining the subject site are dirt roads and that farmers are often involved in agricultural activities which result in the raising of dust. The Tribunal however finds it appropriate that measures be in place to ensure no dust nuisance arises from the use of the track.

34 The issue with respect to noise needs to be put into the context of the operation of the site on weekdays for three hours at a time with riding only occurring for around half of those hours.

35 The applicant called evidence from Mr Goddard of Watson Moss Growcott with respect to the noise impact of the proposal. Mr Goddard carried out a number of investigations into noise from four stroke bikes of the type intended to be used here. It was his contention that the four stroke bikes produced a less harsh noise than two stroke motorcycles used for racing in the past. Further the bikes will be fitted with practice mufflers at all times.

36 Mr Goddard carried out two sets of measurements, the first measurements were made at another location when four bikes were operating. The results showed a noise range of 54 to 60 dBEL10 at distances ranging from 180 to 260m. These values would translate to a dB(A) level of 44 to 49 at 750 to 800m. This is the noise level that is exceeded for 10% of the time for four bikes operating together. The measurements therefore represent the expected maximum noise impact at the nearest dwelling to the north of the subject land. The second set of measurements were taken on the site with a single four stroke vehicle operating. This vehicle was fitted with a training muffler, wind direction at that time was to the south. Mr Goddard detected no audible noise at the potentially most affected dwelling to the north, however there was measurable noise at a similar distance to the south of 42 to 44 dB(A)L10 and an Leq value of 40 to 41. The maximum L10 value of 44 translates to 50 dB(A) with four motorcycles operating and would be indicative of the noise level to be heard at the dwelling to the north under unfavourable climatic conditions.

37 The above noise levels lie within the EPA's discussion paper recommendations for motorbike noise of less than 50 dB(A) being within the acceptable range.

38 It was pointed out by Mr Goddard that the noise of the motorcycles is similar to the noise from a farm bike and of the same order as tractor noise making it unlikely that there will be any impact on cattle as a consequence. It was his evidence that the level of noise associated with the aircraft facility which is uncontrolled would travel much further and be much more penetrating than the noise from the bikes and that cattle in the area obviously combated this.

39 The Responsible Authority in their draft conditions suggested that a 2m high bund to the north of the motorcycle track should be required. The Tribunal is of the view that the this bund would have a significant additional attenuating impact on the noise receipt at the dwelling to the north. There will be little impact by way of noise to the east given the levee bank located on the opposite side of Wenn Road. The Tribunal finds that the audibility of the activity on site at the most proximate dwelling will be occasional and within reasonable bounds.

40 In conclusion the Tribunal accepts that the proposed use does not advance the policy in the Rural Zone however in the Tribunal's view it does not conflict with it. In the Tribunal's view there are special circumstances relating to this case in that: the permit can be made personal to the operator of the motor cycle track, the level and frequency of use is relatively low, the noise impacts are of an order and quality that are similar to agricultural noise and the land can and will be restored to agricultural use in the future. It is the Tribunal's view in these circumstances that a permit should be granted.