Stuart Morris QC (on 5, 6, 7, 8 and 9 September 2011 only) and Emma Peppler of counsel, by direct brief. The applicants called the following witnesses:

• Andrew Watts, Sitepics Victoria
• Peter George
• Trevor Anderson
• Sally Mackenzie
• Dianne Richards
• Anthony Redden
• Ian Kelly
• Heather Wellington, co-applicant

For Motorcyling Australia Limited and The Sporting Motor Cycle Club Inc.

Susan Brennan of counsel, instructed by Lander and Rogers. The respondents called the following witnesses:

• Amelia Lynch, solicitor
• David White, chief executive officer of Motorcycling Australia Ltd.
• Peter Ovens, life member and former president and operations manager of The Sporting Motor Cycle Club Inc.
• Dean Grigg
• Peter Williams
• Mark West
• Malcolm Loone
• Darren Last
• David Stewart
• Phillip Nelson

The applicants and respondents also relied upon a number of additional witness statements (including expert acoustic evidence) and statutory declarations. By agreement between counsel, these additional witnesses were not called to give evidence or to be cross-examined. The evidence also included a number of audio-visual presentations. I also conducted an unaccompanied site inspection.

• Was the use lawfully carried out before the approval date?

1. 'McAdam Park' is a motorcycle facility in the Barrabool Hills, a picturesque area of rolling hills just west of Geelong. The motorcycle facility caters for a range of off-road motorcycling activities (such as motocross, enduro and trials) for different riding styles and abilities.
2. The first motorcycling activities started in the early 1960's when Clive McAdam, a local farmer, allowed the Sporting Motor Cycle Club (SMCC) to use part of his farm for occasional club activities. In or around 1968, a motocross track was established on part of the farm, although some adjacent areas of the farm were also used less frequently for other motorcycling activities. Over the next 40 years or so, the use of the site (and in particular the motocross track) has evolved to include regional and national events, some attracting several thousand spectators.
3. Following Clive McAdam's death in 2002, the use has further expanded. 'Oceania International' events commenced in 2005, and the Geelong Moto Cross Club relocated to the site in or around 2007. In 2009/10, with state government funding assistance, Motorcycling Australia Limited (MA) purchased the land which is the subject of these proceedings (which had by then become 'McAdam Park'), and MA apparently has plans for further expansion.
4. The question is however: Is the motorcycling activity lawful? There are no planning permits in existence for the use or development of the land for any form of motorcycling activity. But for the establishment of any existing use rights, the use would be prohibited under the current Surf Coast Planning Scheme. Increases in the intensity and scale of the use over time are having an adverse effect on some nearby landowners, particularly through noise.
5. The primary applicants, Heather Wellington and Paul Morgan, are more recent landowners in the area. Mr Morgan's property is adjacent to McAdam Park, and Ms Wellington lives a short distance away. They are concerned with the expansion of the use at McAdam Park and the increased off-site noise impacts. They are also fearful of future expansion, saying it goes well beyond the original and more limited use of the land that local landowners were willing to live with whilst Clive McAdam was alive.
6. These applicants have sought declarations from the Tribunal (P1565/2010), essentially to the effect that:
   • the continuing use of the land for motorcycling activities is unlawful;
   • the land does not enjoy existing use rights for motorcycling activities at all, or at least not for the scope of motorcycling activities or the extent of area for which the land is now being used;
   • several of the buildings and works on the land, including works to the motocross track, are unlawful.
7. This proceeding thus delves into the vexed area of existing use rights, including the characterisation of the use and the establishment of existing use rights under the so-called '15 year rule'. It also addresses the issue of the buildings and works constructed without a permit.
8. The responsible authority, Surf Coast Shire Council, supports the existence of existing use rights (albeit with some limitations), but agrees with the applicants that some buildings and works are unlawful.
9. SMCC and MA have sought a planning permit from the responsible authority for some (but not all) of the buildings and works claimed to be unlawful, but that planning application is 'on hold' pending the outcome of this proceeding. Negotiations about whether the future level of use and development of the land can or should be regulated, including negotiations for a possible site-specific planning scheme amendment, are similarly 'on hold'.

1. This proceeding is not about the future use or development at the site or pre-determining the outcome of the other planning processes currently 'on hold'. It is not directly about addressing any existing off-site amenity impacts of the use, nor does it involve the exercise of planning discretion about what could or should be an appropriate level of use or development of the land. Rather, the proceeding is about the determination of existing legal rights.
2. I am mindful of the comments in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd[1] about the inherent conflict between the protection of private rights and interests in land through existing use rights and the social rights of the community represented in modern planning controls. The competing arguments of the parties in this proceeding clearly reflect that tension. Nonetheless, the protection of existing use rights is a longstanding and important feature of the regulatory framework for planning in Victoria and elsewhere, based on the rationale that it is unjust to deprive an owner of the right to use his land for an existing purpose[2].
3. All parties seem anxious that the Tribunal attempt to 'draw a line in the sand' about the lawfulness of existing use and development and/or the characterisation and extent of existing use rights. This is appropriate. By creating greater certainty about the rights that currently exist over the land, the outcomes of this proceeding may assist in other planning processes. To this extent, I agree with SMCC and MA that this proceeding is perhaps a piece in a much bigger puzzle still to be resolved.

1. Two weeks before the hearing, the applicants issued a further proceeding (P2579/2011) - an application for enforcement orders pursuant to s 114 of the Planning and Environment Act 1987. The enforcement application alleges that the use and development or the land has, and will in the future, contravene the Surf Coast Planning Scheme. It seeks orders that the use should cease within one year unless the planning scheme is amended to permit such use, and that unlawful buildings and works be removed (and the land restored) within one year unless a planning permit is obtained.
2. By agreement between the parties, this second proceeding has been adjourned to an administrative mention, pending the outcome of this proceeding.

1. The Tribunal had originally been constituted with myself (a presidential member) and Member Bennett (a town planner). With the adjournment of the enforcement proceeding, the only remaining proceeding before the Tribunal is the application for declarations under s 149B of the Planning and Environment Act 1987. Given that the power under s 149B is exercisable only by a presidential member[3], the parties jointly requested that the Tribunal be reconstituted without the town planner member[4]. I therefore reconstituted the Tribunal shortly after the commencement of the hearing, and I have heard and determined the s 149B application alone[5].

Amendment of s 149B application

1. Shortly before the hearing, the applicants foreshadowed an amendment to the s 149B application - in particular, to amend the wording of the declarations it sought. This was not opposed. At the hearing, and by agreement between the parties, the applicants also indicated that they would not pursue (at least for the time being) two of the nine amended declarations it sought[6]. The application thus proceeded in relation to the proposed declarations set out in paragraphs 1, 2, 3, 4, 5, 7 & 8 of Section 10 of the amended application lodged on 25 August 2011.

Joinder of Barrabool Hills Community Association Inc.

1. The applicants also sought to amend the s 149B application to join an additional co-applicant - Barrabool Hills Community Association Inc.
2. SMCC and MA opposed the joinder, on the basis that the association was only relatively recently incorporated (on 21 January 2011) after the proceeding had commenced, and it was not clear that the interests of the association were affected. The responsible authority however supported the joinder.
3. I have ultimately decided to join Barrabool Hills Community Association Inc. as a co-applicant in this proceeding (P1565/2010), pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998. My reasons are primarily as follows:
   • The association has 18 members[7] who appear to comprise the nearby local landowners and residents most affected by, and opposed to, the expansion of motorcycling activity at McAdam Park. I agree with the responsible authority that, in the circumstances of this case, there is some utility in joining a community association that is now representative of those on one side of the debate, so that they can fairly and collectively participate in that debate as a party.
   • Given the common representation with the existing applicants, the joinder will not (and, in the event, did not) add to the timing or costs of the hearing, and no other party is materially prejudiced by the joinder. Moreover, this is not a case where the joinder application seeks to 'substitute' an incorporated association in lieu of the existing individual applicants, which may have had potential implications for costs or future orders.
   • The association is already a co-applicant in the recently issued and related enforcement proceeding (P2579/2011).
   • Although I was not furnished with any document indicating the objectives or purposes of the association, through which I could more readily ascertain whether the interests of the association are affected by the application, I nonetheless consider that it is 'desirable'[8] that the association be joined as a party for the reasons outlined above.

1. In correspondence filed shortly prior to the hearing, the responsible authority challenged the jurisdiction of the Tribunal to deal with the applicants' s 149B application, based on the recent decisions of Gibson DP in Farr v Boroondara City Council[9] and Glenample Air Pty Ltd v Corangamite Shire Council[10].
2. In Farr and Glenample, Gibson DP had noted that a person may apply for declaration under s 149B of the Planning and Environment Act 1987 only in limited circumstances including, under s 149B(1)(a), where the declaration concerns "any matter which may be the subject of an application to the Tribunal under this Act". She therefore questioned whether an objector could use s 149B to challenge existing use rights over another person's land, because the objector would not have standing to bring a separate application under ss 149A or 97P in relation to existing use rights. Gibson DP similarly doubted that the challenge to existing use rights in those cases could form the subject matter of an enforcement proceeding under s 114. She also questioned the utility of making a declaration under s 149B where a more appropriate remedy existed to deal with the lawfulness of the use through an enforcement proceeding under s 114.
3. At the hearing, the responsible authority did not pursue this matter with any vigour, nor did SMCC and MA seek to challenge the Tribunal's jurisdiction on this basis. The applicants however responded on the issue, and it is necessary to deal with it in the context of this proceeding.
4. I consider that the Tribunal does have jurisdiction to deal with the matters before it under s 149B of the Planning and Environment Act 1987. In particular, I consider that the lawfulness of the use of the land for motorcycling activities (which directly raises the issue of the extent of any existing use rights), and the lawfulness of the buildings and works, are both matters that in this case may be the subject of an application to the Tribunal under the Planning and Environment Act 1987. Under s 114 of that Act, the responsible authority or 'any person' may apply for an enforcement order against an owner or occupier of land if a use or development contravenes the Act or a planning scheme. Indeed, the applicants have now initiated such a proceeding under s 114, albeit adjourned for the time being. In my view, the necessary trigger for the use of s 149B is met here. It is clear from the s 149B proceeding that the applicants are essentially seeking declarations about whether there is a contravention of the planning scheme, which is a matter that may be the subject of an application to the Tribunal under the Planning and Environment Act 1987.
5. It is important to distinguish here between the underlying jurisdiction to consider a matter under s 149B, and the discretion or utility in granting the relief sought in a s 149B proceeding where other possible remedies exist. The power to make a declaration is not ousted by the existence of alternative remedies[11]. Indeed, given one of the triggers for s 149B is that the declaration must concern "any matter which may be the subject of an application to the Tribunal under this Act", there will invariably be an alternative remedy in that other form of application. Whether a declaration should be made where other possible remedies exist is thus a matter of discretion and utility rather than a question of jurisdiction.
6. As I have indicated, I consider that the Tribunal does have jurisdiction to make declarations about the characterisation and extent of existing use rights in a s 149B proceeding brought by an objector, where there is a bona fide dispute about the lawfulness of the use and development and whether there is a contravention of the planning scheme. Whether there will always be utility in considering existing use rights through such a mechanism is quite another matter.
7. In many (perhaps most) cases, an objector seeking to challenge existing use rights over another person's land should do so directly through an enforcement application under s114. A s 149B proceeding should not ordinarily be used to 'test the air' or as a 'back door' means of enforcement or for some ulterior motive. In Farr, Gibson DP highlighted some of the difficulties this may cause regarding the status of any declarations in any future enforcement, or through the costs and inconvenience of duplicated processes.
8. However, this will not always be the case. Here, I consider that there is utility in having the lawfulness of existing use and development at McAdam Park resolved through the current declaration proceedings. There is a bona fide dispute in existence, which is real (and not hypothetical), and attached to facts (and not theoretical), and the making of a declaration will be of practical use[12]. Importantly, SMCC and MA (which could have brought a proceeding to ascertain the extent of their existing use rights under s 149A of the Planning and Environment Act 1987) do not oppose the objector applicants effectively seeking a similar remedy under s 149B. They appear to be equally anxious to achieve some certainty about their existing use and development. Moreover, the practical use of the declarations here goes beyond what might be achieved through an enforcement proceeding alone, given the part that they may play in the other pending planning processes to which I have earlier referred.
9. I am mindful of the sentiments expressed by Gibson DP in Farr and Glenample in the particular circumstances of those cases. However, I am not convinced that the jurisdictional issue is as 'black and white' as might be gleaned from those decisions. I respectfully disagree with the views Gibson DP has expressed in those cases on the lack of jurisdiction or utility of using s 149B where objectors seek to challenge existing use rights over another person's land - at least to the extent those views differ from those I have outlined above. The trigger for jurisdiction under s 149B, and the utility of making declarations under that provision, will in my view necessarily depend on the circumstances of each case.

1. SMCC and MA submitted that, in interpreting the provisions of cl 63 of the planning scheme (relating to existing use rights), I must have regard to the Charter of Human Rights and Responsibilities Act 2006 (Charter) and favour an interpretation that protects the right that 'a person not be deprived of his or her property other than in accordance with law'[13]. It was suggested that a narrow reading of cl 63 would offend that Charter right. This was also submitted on the basis that the High Court[14] had recently confirmed that s 32(1) of the Charter is a valid rule of interpretation that operates independently of, and prior to, consideration of the 'proportionality' test under s 7(2) of the Charter.
2. I agree with the applicants that SMCC and MA are both corporate entities that do not have 'human' rights under the Charter[15], so the Charter is not applicable in this proceeding. SMCC and MA nonetheless contended that cl 63 of the planning scheme could not (or should not) be interpreted differently depending on whether the person affected by it was a corporate entity or a human being, and that the Charter was still therefore a relevant principle of interpretation in any interpretation of the planning scheme. Interesting though that question may be, because the Charter does not apply in this proceeding I do not need to decide that question here. Having said that, but without finally deciding the issue, I do not consider that the interpretation of cl 63 set out in these reasons is inconsistent with the objects of the Charter.

Interim order and further submissions after hearing

1. Following the main hearing, it became apparent that the Tribunal did not have complete information relating to the ownership and configuration of lots on the land prior to 2002, for periods that may be relevant to the determination of existing use rights. I requested this information from SMCC and MA by interim order made on 24 October 2011, and gave the other parties an opportunity to comment on it. The information was provided on 17 November 2011 and the applicants indicated on 24 November that they did not wish to make any submission in reply.

1. Decisions on existing use rights are often based on an examination of historical facts stretching back over many years. It is therefore desirable to separately set out the key findings on those facts, perhaps more formally and extensively than might be done in other types of planning matters before the Tribunal.
2. The factual evidence in this case was given over several days. SMCC and MA provided evidence through affidavits and statutory declarations from a large number of witnesses, several of whom were called to give oral evidence and to be cross-examined. These included David White, CEO of MA, and Peter Ovens, a longstanding member and past president of SMCC, as well as many past and present club members who had engaged in various motorcycling activities on the land over the years. The evidence provided by the SMCC witnesses also included photographs, newspaper cuttings, programs, videos, and other material about events and activities on the land over the years.
3. Similarly, the applicants provided evidence through affidavits and statutory declarations from a large number of witnesses, and several were called to give oral evidence and to be cross-examined. This included the co-applicant Heather Wellington and several nearby landowners, some of whose families have farmed in the area for 50 years or more.
4. The contents of all of these affidavits and statutory declarations from both parties, and the exhibits to them and further exhibits tendered through the hearing, are voluminous. I do not propose to refer to them all. They form part of the Tribunal record.
5. It is fair to reflect that, as the hearing proceeded, there became an increasing consensus on many of the background facts, although the interpretation to be drawn from those facts remained hotly contested.
6. Indeed, towards the end of the hearing, the applicants prepared a summary of several fact findings that SMCC and MA marked-up with their areas of disagreement[16]. In many instances, these disagreements were relatively minor. Some disagreements can be explained by honest but differing recollections of landowners and SMCC members of dates and activities stretching back up to 40 years. I have footnoted in these reasons the 'primary' testimony relied upon for key findings, and I have generally preferred the most common or consistent views expressed by witnesses without dealing with each individual discrepancy between them. I have also generally preferred the evidence of SMCC witnesses where their evidence is consistently corroborated and/or supported by documents such as old club programs or photographs.
7. In this regard, I do not consider it necessary to resolve 'oath upon oath' disagreements where they are not determinative to the outcome. I do not consider that any witness gave evidence other than in good faith, and I do not find the evidence of any witness to be specifically or demonstrably unreliable, albeit often based on recollections of events some years ago. The best that the Tribunal can do in these circumstances is to reconstruct the most likely version of the facts from the material before it. I simply need to be persuaded to a reasonable degree of satisfaction, on the balance of probabilities, of the key facts necessary to determine this proceeding.
8. The evidence also included aerial photographs from 23 November 1994, 19 December 1998, 12 November 2004 and December 2007[17], as well as a series of four oblique aerial photographs taken in 1995 and 1996 for SMCC[18]. Whilst there were many other photographs and videos provided in evidence, I mention these aerial photographs in particular, as they were regularly referred to in the parties' respective submissions and in the evidence of witnesses. Whilst these aerial photographs are all very useful, it must be noted that they are only 'snapshots in time' for the particular day on which they were taken. I do not consider them to be conclusive, by themselves, of what was or was not happening as part of the continuing use of the land during the relevant period, and I have treated them as an adjunct to the actual sworn testimony of witnesses.
9. Some findings refer to a period before or after 3 June 1995. As will become clear later in these reasons, that date is of potential relevance to the operation of the '15 year rule' for the establishment of existing use rights under cl 63.11 of the planning scheme - i.e. being the date 15 years before the s 149B application was lodged with the Tribunal on 3 June 2010.

1. The onus generally lies upon the person asserting existing use rights to prove their exception from the unlawfulness of the use that would otherwise exist under the planning scheme (i.e. here, an exemption from the prohibition under the Farming Zone), with such proof to be on the balance of probabilities[19].
2. The applicants asserted that SMCC and MA clearly bore this onus. Here, the question of 'onus' is perhaps blurred a little by the nature of this proceeding under s 149B of the Planning and Environment Act 1987, where the applicants seek formal declarations that SMCC and MA are using and have developed the land unlawfully. The applicants bear some responsibility for substantiating their allegations, particularly for the alleged unlawful buildings and works that fall outside of any traditional onus applicable to existing use rights.
3. It is often unhelpful to apply strict burdens of proof in Tribunal proceedings[20]. However, I am satisfied that there is sufficient evidence to support the key findings I have made in this proceeding, and that SMCC and MA have discharged any onus on the facts or issues for which they may bear the primary burden of proof.

1. The land now in question comprises Lots 1, 2 and 3 on Plan of Subdivision 542499L. The total land area is approximately 118.5 ha. Lot 1 is 33.11 ha, and includes the area of the main motocross track[21]. Lot 2 is 40.68 ha, and Lot 3 is 44.85 ha[22].
2. The land has not always been subdivided in this way, with the current lots created through a planning permit issued in 2005[23], and with the plan of subdivision formally registered in 2007. It is nonetheless convenient to make findings by reference to the current lot configurations, as indeed the parties and witnesses themselves did at the hearing.
3. Prior to this re-subdivision, the land had been configured in 2002 as three different lots, still in combination totalling the 118.5 ha area of the land. Somewhat confusingly for present purposes, these three lots were all designated as "Lot 1" on their various title plans, but they can be broadly described as follows:
   • a 78 ha lot (Lot 1 on TP820129K[24]) that roughly accords with the current Lots 1 and 2. It was an 'L' shaped lot that contained the whole of the area now in Lot 1, as well as the main gully area now in Lot 2. I will simply refer to this as 'the former 78 ha Lot'. Within this former 78 ha Lot, there was also for most (and perhaps all) of the relevant period a fenced paddock area of approximately 37.25 ha that roughly accords with the current Lot 1, and that contained the whole of the 33.11 ha area now in Lot 1, including the motocross track. I will simply refer to this as the 'former fenced allotment'.
   • a small 4,046 m² allotment, adjacent to Haines Road (Lot 1 on TP820135Q).
   • a 40.25 ha lot (Lot 1 on TP820190G) that roughly accords with the current Lot 3.
4. Prior to 2002, all of the land was General Law land that had not been converted to Torrens title. There are thus some minor discrepancies and anomalies that SMCC and MA suggest may be related to the fact that the parent titles created in 2002 resulted from a non-survey conversion to Torrens title and/or due to the conversion from imperial to metric measurements[25]. The boundaries and angles on various plans differ by small amounts, none of which are material in the proceeding before me. What is apparent from the comprehensive search material filed with the Tribunal by SMCC and MA after the hearing, in accordance with my interim order, is that:
   • in 1951, Clive McAdam inherited the former 78 ha Lot that roughly accords with the current Lots 1 and 2, and the boundaries of that lot did not change from 1951 through to 2007. The boundaries of this lot were therefore the same when a motocross track was first established in 1968, and the same on 3 June 1995 (15 years prior to this application)[26].
   • the small 4,046 m² allotment, adjacent to Haines Road, was purchased by Clive McAdam in 1954, and the boundaries of that lot did not change from 1954 through to 2007[27].
   • in 1963, Clive McAdam became the registered proprietor of the 40.25 ha lot that roughly accords with the current Lot 3, and the boundaries of that lot did not change from 1963 through to 2007[28].

1. The land has been the subject of planning controls since at least 1949. Given that the first use of Clive McAdam's farm for motorcycling activities commenced in the early 1960's, it is unnecessary to consider controls prior to that time. Of potential relevance to the present proceeding are the following:
   • Barrabool Interim Development Order 1961[29]
   • Barrabool Planning Scheme 1966, (which operated from 1 July 1969)[30]
   • Geelong Rural Areas Interim Development Order (excluding Torquay and Anglesea) 1972
   • Geelong Regional Planning Scheme, 4 November 1981[31]
   • Surf Coast Planning Scheme, 16 June 1994[32]
   • Surf Coast Planning Scheme, 5 October 2000 (the current planning scheme).
2. Excerpts were provided from some of these earlier interim development orders and planning schemes. It is unnecessary to make findings on all of them, as it was common ground that some did not apply to authorise the existing use. I have relied in good faith on the parties having researched and provided all relevant planning controls. Given discussion later in these reasons, the following should be noted:
   • under the Barrabool Planning Scheme 1966, the land was then zoned 'Agriculture Zone'. Within this zone, the use of land or the construction of buildings or works was prohibited except for certain defined purposes. These purposes included farming-related uses, as well as a "public or private park, recreation ground or similar use"[33].
   • the Geelong Regional Planning Scheme operated from 1981 until 1988, and covered a broad regional area that included municipal areas then bordering Geelong, including Barrabool[34]. This regional scheme was administered by the then Geelong Regional Commission and operated in addition to, and contemporaneously with, the Barrabool Planning Scheme during this period[35]. Under this regional scheme, the use of land for a 'major sports ground' or 'motor vehicle racing track' were Column 4 uses that required a planning permit[36]. Alterations, enlargement, and the rebuilding of existing buildings and works, and new buildings and works associated with a lawful established use, were allowed with a permit[37]. No permits for such use, buildings or works were issued during the period the land was covered by this scheme.
   • under the previous 'old format' Surf Coast Planning Scheme which operated from 1994 until 2000, the land was zoned Rural General Farming Zone, pursuant to which the use of land for a 'major sports ground' or 'motor vehicle racing track' were Section 2 uses that required a planning permit[38]. No permit for such use was issued during the period the land was within this zone.
   • under that 'old format' Surf Coast Planning Scheme, an existing use in Section 2 of a zone that was lawfully carried out before the approval date could continue, provided "a building is not constructed without a permit". This is to be contrasted with Section 3 (prohibited uses) where the proviso was that "any building or works is only constructed with a permit"[39].
   • under the current Surf Coast Planning Scheme until 2006, the land was within the Rural Zone, pursuant to which the use of land for a 'motor racing track' required a planning permit. No permit for such use was issued during the period the land was within this zone.
3. The land now lies within the Farming Zone under the current Surf Coast Planning Scheme. There are no overlay controls. It is common ground that, but for the establishment of existing use rights, the use of the land for off-road motorcycling activities would be prohibited. This is because the use now falls within the defined land-use term 'motor racing track'[40] (a use expressly prohibited under the Farming Zone controls in cl 35.07-1)[41].

1. At all times since the commencement of the motorcycling activities on the land, all of the land has been used for the purpose of farming[42]. In particular:
   • from 1968 until 1989, Lots 1, 2 & 3 were all used for farming.
   • from approximately 1989 until 1993, Lots 1, 2 and 3 were subject to a 'lease'[43] between the owner Clive McAdam and Trevor Anderson for cattle grazing. This mainly occurred between August and April each year. The area within Lot 1 where the main motocross track has been formed was not separately fenced to keep stock away from the track, but the grazing potential in this area was limited due to the absence of feed and the existence of the track.
   • from approx 1990 until 2000, extensive parts of Lots 2 and 3 were subject to a share farming agreement between Clive McAdam and Dean Grigg and his father[44]. This was mainly for cropping, with some sheep grazing.
   • to the extent there is an apparent overlap in the early 1990's in the period of Clive McAdam's lease with Trevor Anderson, and his share farming agreement with the Grigg family, neither Mr Anderson nor Mr Grigg produced documentary verification yet, under cross-examination, both remained adamant about their respective farming periods. However, nothing material turns on the exact dates each notionally occupied part of the land. The aerial photographs for 1994 and 1998 clearly show cropping on extensive parts of Lots 2 & 3 (consistent with Dean Grigg's evidence), and open pasture and the motocross track on Lot 1 (consistent with both Trevor Anderson and Dean Grigg's evidence).
   • after 2000, farming has continued on Lots 1, 2 & 3[45]. In similar fashion to the earlier periods, the grazing potential on Lot 1 in the immediate vicinity of the motocross track was limited due to the absence of feed and the existence of the track.
   • since 2010, Lots 1, 2 & 3 have been used by Jim Seager for farming, under an oral agreement with MA[46].

1. Motorcycling activities first started in the early 1960's when Clive McAdam allowed SMCC to use part of his farm for occasional club activities. The initial motorcycling use was on a part of the farm west of Haines Road, which is not part of the land in this proceeding. The area of the farm used for motorcycling activities shifted to the land relevant to this proceeding (i.e. what is now Lots 1, 2 & 3) in about 1968[47], when a track was established near the Georges Road frontage on what is now Lot 1. Some other adjacent areas of the farm within Lots 1, 2 & 3 were also used less frequently for motorcycling activities from around this time[48].
2. From approximately 1968 until the present time, SMCC has conducted a range of club, inter-club, regional, open, national and international events on parts of the land. Most of the larger events are motocross events held on the track on Lot 1, but a variety of combined, enduro, trials, and other off-road motorcycle events have been held periodically on other parts of Lot 1, and in some areas of Lots 2 & 3 within this period[49].
3. In relation to the use of the area of Lot 1 where the main track exists:
   • prior to 3 June 1995, the main track was used regularly, and often weekly, as a motocross track in relation to club and inter-club motorcycling activities in the discipline of motocross. Higher level regional, open and state motocross events were held on the main track two or three times a year, and the track was used for national motocross events no more than once a year[50]. These events included events such as the Frank Pratt Memorial, held annually from the mid 1960's until about 1986, the Grand National, and the Vintage MX, although there is some debate whether these events should be characterised as open, state, or national events in particular years.
   • from 3 June 1995 until the present time, the main track has been used regularly as a motocross track in relation to club, inter-club, regional, open and state motocross events. Competitive events take place at weekends. The track has been used, on average, once per year for national motocross events[51].
   • from approx 1968 until 2005, the main track was available to club members for practice and recreational motorcycle riding under an open-key system, allowing members to practice motorcycle riding on the track at any time during daylight hours[52].
   • since approximately 2005, the regular use of the track for practice and recreational motorcycle riding has been predominantly between approximately 2:30pm and 6:30pm on Thursdays, and between approximately 12:30pm and 6:30pm on weekends when the track is not being used for events. These activities often conclude earlier, at approximately 5:30pm, in non-daylight saving periods. Training and other supervised events are conducted from approximately 9am on Saturdays. Events, including major events, occur primarily on weekends between approximately 9am and 6pm[53].
   • from 3 June 1995 to the present time, the main track has been used occasionally for training and development activities associated with motorcycle riding[54]. In 2009 and 2010, there were promotional events held on the track for motorcycles and motorcycle riding products[55].
4. In relation to the use of the area of Lot 1 other than the main track:
   • prior to the re-subdivision of the land in 2007, the area that is now Lot 1 was comprised in the former fenced allotment I have earlier described, with the fence line clearly visible in some photographs[56]. To the extent some of the evidence refers to the past use of this former fenced allotment, it can be reasonably assumed that such use occurred within Lot 1. For example, if the whole of the larger former fenced allotment was being used for off-track motorcycle riding within a given period, then the whole of what is now Lot 1 must have been so used.
   • prior to 3 June 1995, this area was occasionally used for motorcycling events (up to 5 times per year), for occasional club activities, and to obtain access to the gullies on Lot 2. The use included grass track and enduro events. Although the use of this area was occasional, it was more frequent than the use of Lots 2 and 3 - particularly outside the gully areas on those lots[57].
   • the absence of obvious grass tracks within this area on the 2004 aerial photograph (compared with the 1998 aerial photograph) is not conclusive having regard to the 'point in time' nature of the photographs, the use being only occasional, and the fact that grass tracks were temporary circuits and did not leave lasting visible impacts[58].
   • from 3 June 1995 to the present time, this area was still occasionally used for motorcycling events (up to three or four times per year), for occasional club activities, and to obtain access to the gullies on Lot 2. The use included grass track, enduro, and 'pony express' events[59].
   • from approximately 1992 to the present time, the dedicated trials area within Lot 1 was used regularly for motorcycling activities in the discipline of trials.
5. In relation to the use of Lot 2:
   • from the aerial photographs and site inspection, there are two very distinct creek gullies on Lot 2. The main gully runs for approximately 700 metres north from Lot 1 in a north-easterly direction, and intersects near the northern boundary of Lot 2 with a smaller gully running for approximately 400 metres north from Lot 3[60]. There is a small bridge near where the gullies intersect, and the two gullies together form an inverted 'V' shape.
   • motorcycling activities in the gullies on Lot 2 have been conducted within an area up to 50 metres either side of the creek bed at the base of the gully[61].
   • from approximately 1968 through to the present time, the gullies on Lot 2 have been occasionally used for motorcycling events (up to three or four times per year), and more regularly (several times a year) for club practice and activities. The use has primarily comprised the motorcycle disciplines of enduro and 'pony express', and trials.[62].
   • from approximately 1968 through to the present time, the area of Lot 2 outside of the gullies was used only intermittently for motorcycling activities. There were occasionally enduro and open terrain motocross events in this area outside the gullies, as well as an occasional 'King of Barrabool' event. However, there is insufficient evidence to indicate that these types of events were held in this area outside the gullies annually or with any regularity, and they were certainly held with less frequency than the use of open areas in the adjacent fenced allotment that now contains Lot 1[63].
   • despite some changes, the frequency and scope of motorcycling activity on Lot 2 does not appear from the evidence to have materially changed in the period before or after 3 June 1995.
6. In relation to the use of Lot 3:
   • from the aerial photographs and site inspection, the smaller of the two gullies on Lot 2 extends into Lot 3. The main part of this gully appears to extend for no more than approximately 50 metres into Lot 3 before it opens out into a broader watercourse re-entrant.
   • from approximately 1968 through to the present time, the gully on Lot 3 has been used for motorcycling activities only intermittently (and no more than once or twice in some years, often less) for the motorcycle disciplines of enduro and 'pony express', and for trials. For example, in some pony express events, riders would ride their bikes up the smaller Lot 2 gully into Lot 3, cross the top of the gully, and ride down the other side of the gully back into Lot 2. The incursion into Lot 3 was therefore quite limited[64].
   • from approximately 1968 through to the present time, the area of Lot 3 outside of the gully was used only very intermittently for motorcycling activities (less than once a year), usually for access to trials[65].
   • from approximately 1968 through to the present time, Lot 3 has very occasionally been used or made available for car parking associated with motorcycling activities, primarily in conjunction with major events on Lot 1. There is only clear evidence of Lot 3 having actually been used for car parking on two occasions[66].
   • despite some changes, the frequency and scope of motorcycling activity on Lot 3 does not appear from the evidence to have materially changed in the period before or after 3 June 1995. However, the availability (as opposed to actual use) of Lot 3 for car parking has increased since 1995 given the larger number of spectator events held since that time.

Additional evidence relating to land use for motorcycling activities

1. From 1 January 1998, Clive McAdam leased the former fenced allotment (i.e. the slightly larger area of 37.25 ha that now includes Lot 1) to SMCC for 5 years[67]. The permitted use was stated to be:

Motorcycle club and related purposes including motorcycle racing and haymaking in accordance with additional provision 22.4.

1. Under the 1998 lease, Clive McAdam reserved to himself the right to graze sheep on the allotment, and there evidence that he did so.
2. Under cl 22.1 of the 1998 lease, Clive McAdam also granted to SMCC:

... the right to use the creek area adjoining the premises on such number of days throughout each year of the term as the Tenant may require its use for the purpose of its activities being approximately the same number of times per year as it has done in the past. The creek area is the area which extends from the northern boundary of the premises for 200 metres and encloses the creek together with 50 metres on either side of each bank.

1. The 'creek area' is thus part of the main gully on Lot 2 that I have earlier described, although the licence to use the gully seemingly extended only for 200 metres beyond the fenced allotment rather than for its full 700 metre length through what is now Lot 2. I do not consider anything material turns on this wording in the lease nor alters the findings I have made about the actual use of Lot 2 (as opposed to what was technically licensed). All of the evidence is that the arrangements between Clive McAdam and SMCC were informal and variable over time, including some on-going use of the non-leased areas[68]. The language used to describe the frequency of use is also unhelpful, in its reference to the same frequency as in the past. However, the lease at least corroborates that there was a use of the Lot 2 gullies for motorcycling activities prior to the relevant lease period, and that this was permitted to continue under the lease.
2. After Clive McAdam's death in 2002, the 1998 lease was rolled-over on similar terms, with an increase in the rent paid. A new lease document was not prepared by the McAdam family until 2005, ostensibly to coincide with the subdivision of the land. This lease commenced from 1 January 2006 for 5 years[69]. The terms were similar to the 1998 lease, save in two respects:
   • the 2006 lease was for the then "proposed Lot 1 being an area 32 hectares ..." . This was therefore a slightly smaller area than the 1998 lease over the 37.25 ha former fenced allotment. As I have earlier indicated, the actual area of Lot 1 became 33.11 ha on the plan registered in 2007 rather than the 32 ha 'proposed' in the 2006 lease.
   • clause 22.1 of the 2006 lease referred to the licensed creek area as follows:

The creek area is the area which extends from the northern boundary of the premises for 200 metres on either side of each bank.

1. The reference to the 'creek area' is ambiguous, as there are words omitted between the words '200 metres' and 'on either side of each bank' compared with the same clause in the 1998 lease. It is not clear whether this was simply a drafting error, or intentional. If intentional, it had the effect of substantially increasing the width of the licensed creek area of the main gully on Lot 2 (indeed, well beyond the size of the gully and covering most of Lot 2), whilst leaving the length of the licensed creek area undetermined. Again, I do not consider anything material turns on this discrepancy nor alters the findings I have made on the evidence about the actual use of this area (as opposed to what was technically licensed).
2. A planning permit P04/0647 was issued for the re-subdivision of the land on 25 February 2005, which led to the creation of the current Lots 1, 2 and 3 in August 2007. The permit also allowed for a dwelling on Lot 1. From the officer report prepared for the responsible authority in support of the subdivision[70], and an earlier letter from the responsible authority to those proposing the subdivision[71], it appears that the subdivision was primarily proposed to create lots that could each contain a dwelling and to facilitate an equitable apportionment under Clive McAdam's estate to his children. However, the responsible authority's support for the re-subdivision was based upon an assessment against the Rural Strategy in cl 21.07 of its planning scheme. The officer report noted:

The lot configuration has been designed to reflect the topography and use of the land. The lots have been created to provide areas of arable land for grazing and cropping to the relevant parcels and access around the gullies. The application also contains a commitment to undertake specific tasks through a land management plan to increase the long term viability of the land.

The proposal does "break" an existing parcel of 78 ha by expanding an existing smaller lot to 32 ha. Although this change may be argued to move away from the principles of the Strategy, it is important to note that the land to be included in the new lot contains a motorcycle track that has existing use rights. The ability to farm the land is limited as a result and therefore the creation of the lot is considered an appropriate means to manage the existing use against some land management outcomes and isolate a separate parcel for farming alone. It is proposed to include land management principles in future leases relating to the motorcycle club.

Investigations have been undertaken by officers with local rural consultants on an informal basis to understand the farming outcomes of the proposal. In general, advice has been received that the arrangement of the lots will allow sustainable farming to still occur while the additional dwelling on proposed Lot 1 will contribute to management of the site with the motorcycle club.

Overall it is considered the re-subdivision will not prejudice the objectives of the Rural Zone. Given the classification of the area under the Rural Strategy it is considered the reconfiguration of the lots will allow sustainable farming in the form of cropping and grazing to occur. The dwelling on Lot 1, although a variation to policy, will contribute to the management of the new lot in relation to existing uses on the land.

1. The officer report is informative of a view then held about the scope of existing use rights, and the intended future use of the re-subdivided lots, but it is not of itself conclusive evidence of the actual use of the land. Following the re-subdivision, and perhaps with the very purpose of avoiding the intended outcomes of having Lots 2 and 3 used solely for faming purposes, SMCC lobbied for the purchase of the whole of the land, and MA purchased the whole of the land in 2010.
2. The 2005 planning permit for re-subdivision had required a land management plan[72]. A Land Management Plan was endorsed by the Council on 31 October 2005, with an initial 5 year plan[73]. The Land Management Plan required closure of the main track in January and February each year (the main fire season). It was conceded that some club practice and recreational activities had occasionally occurred within this period (e.g. junior activities to coincide with school holidays), but the track had generally remained closed for approx 2 months over the summer period[74].
3. The Land Management Plan prepared on behalf of the landowners states:

Land Use: The land is currently being used for grazing and/or agricultural use. Part of Lot 1 on the Plan of Subdivision is being used on a leasehold basis by the Sporting Motor Cycle Club Geelong, however the land is still used for pastoral purposes outside the hours of operation of the Club[75].

1. The Land Management Plan also provides detailed descriptions for each lot. The detailed description for Lot 1[76] refers in some detail to the motorcycle tracks and the structures built by the motorcycle club, and the implementation schedule includes problems and proposed actions to deal with SMCC's motorcycling activities[77]. However, the detailed description for Lots 2 and 3 does not mention any motorcycling activities at all, nor does the implementation schedule[78].
2. The last page of the Land Management Plan is a single page that appears to have been prepared separately and is entitled 'Appendix 1 - Sporting Motorcycle Club Geelong Land Management Plan'. This Appendix states that SMCC "has been using the above land as a motorcycle track for the last 35 years". There is no clear indication of what is meant by the 'above land' (i.e. whether Lot 1 or the whole of the land). The main references are to the track, but there is a reference to the lease agreement, and to vegetation on the property "including revegetation with locally indigenous species to gully areas ...".
3. The Land Management Plan was updated with an addendum dated 8 December 2010[79]. The addendum notes that there had been significant planning to fence out and revegetate the main gully through Lot 2 to deal with erosion and to establish native trees and grasses, with fencing from livestock planned by 30 June 2011[80]. This fencing has now been erected. Although the main gully on Lot 2 has now been fenced, the evidence is that the fencing is designed to keep livestock out, and gates have been erected in the fence to allow occasional motorcycling activities to continue with the Lot 2 gullies on a similar basis to past use.
4. The Geelong Motocross Club relocated its activities to the land in 2009, although there was no direct evidence provided to me that indicates that it uses any area beyond Lot 1.

General findings on noise impacts from motorcycling activities

1. To the extent it is relevant to the matters I have to decide, the use of the land for motorcycling activities has an amenity impact on neighbouring land owners through the emissions of noise. The significance of the impact depends on the type of the event or activity and/or the engine capacity of the motorcycles being used, as well as factors relating to the distance, topography, and wind direction from the noise source. For major motocross events on the main track, the downwind noise impact on immediately neighbouring land owners may be significant. For trial events, or club activities in the gullies, the external noise impacts (if any) would be unlikely to be significant[81].
2. Given the increase in major track events in more recent years, the noise impacts on neighbouring land owners may be more frequent, but they are not necessarily more severe. I am unable to make any definitive ruling on this from the testimony I heard. Some events in much earlier years before 3 June 1995 (e.g. the Frank Pratt Memorial) had similar rider numbers to recent major events, and used motorcycles that were then subject to less refined noise emission standards or testing[82]. However, the noisiest events appear to have been the Thumper Nationals, held between 1996 and 2001, and in 2003, which used motorcycles with a larger engine capacity than now permitted. The evidence is that no complaints have been received by SMCC about noise from these earlier events[83].

1. The main track on Lot 1 has evolved over time, with alterations and modifications occurring on a regular basis. Some of the built-up bends on the track are berms created by constant motorcycle use rather than through the use of earthmoving equipment. However, the track has had more formal alterations (such as man-made jumps) since at least 1982[84].
2. The starting line for the main track was relocated, and re-oriented to a generally north-south alignment, in or shortly prior to May 2000. Prior to this, the starting line had been oriented in a generally east-west alignment. A new starting gate was installed at the same time[85]. This has had the effect of shifting the starting point for major events closer to the nearest residence, and changing the profile of noise emissions from the track during a race start.
3. Significant earthworks, incorporating the widening and substantial building-up of the height of the track have occurred in 1990, in the late 1990's, in 2003, and in 2005, with the more substantial works having occurred since 2000. Within these same time periods, the significant earthworks have included the development of at least 14 jumps and obstacles, including 'table tops', 'ski jumps', 'stair case jumps' and an area of the track known as the 'whoops'. Again, the more substantial works have occurred since 2000[86].
4. Minor earthworks were sometimes undertaken just through shovel-work, or with a tractor. Some of the significant earthworks to the main track were arranged by reclaiming dirt from berms or other parts of the track or adjacent land. This occurred using a bobcat, excavator or mini-bulldozer, and was primarily undertaken to 'rejuvenate and reshape' the track as well as maintain it[87].
5. For more substantial earthworks, soil has been brought onto the land from building sites and other sources in Geelong. There is evidence that on one occasion this has included large quantities of soil delivered in 80 to 100 trucks (each with 'dog' trailers). The soil was dumped adjacent to the main track and shifted with heavy equipment to create obstacles and increase the height of parts of the main track by up to 4 metres. Large trucks delivered soil to the land 'for weeks' prior to the Oceania 2005 event[88].
6. As will become apparent later in these reasons, I find that these more substantial earthworks were not merely in the nature of routine repairs or maintenance to the existing track, but comprised separate 'works' to the land that materially altered and upgraded the main track.

Other buildings and works associated with motorcycling activities

1. In addition to the track works, several buildings and works have occurred on the land over the years without a planning permit. The most significant of these are detailed in the affidavit of Ian Kelly, called by the applicants, and his evidence formed the primary basis for the declarations sought in paragraph 7 of the amended s 149B application. Mr Kelly's evidence was also corroborated by some of the aerial photographs and some additional photographic material, and was mostly uncontroversial on this issue.
2. Towards the end of the hearing, the applicants tabled a document setting out the buildings and works undertaken on the land with which they were concerned, which SMCC and MA marked up with the areas where there was disagreement as to the time of establishment of the particular building or works[89]. Indeed, most of Mr Kelly's material was largely accepted by SMCC and MA through the evidence of Peter Ovens - albeit with some minor modifications. I have preferred Mr Oven's evidence for the minor areas of discrepancy between them, given his more detailed 'on the ground' knowledge, although nothing materially turns on this.
3. Through this material, together with the other evidence provided during the hearing, the following findings can be made in relation to those buildings and works for which specific declarations are sought:

Originally used from 1996, further work 2004 to 2007

(q) Bridge over creek on Lot 2 (near northern boundary of lot)

1. As I have earlier indicated, despite some consensus on many of the key facts, the conclusions to be drawn from those facts remained hotly contested.

1. Existing use rights have a statutory basis in s 6(3) of the Planning and Environment Act 1987. Essentially, a planning scheme cannot prevent the continuance of a use for the purposes for which it was being lawfully used before the coming into operation of a planning scheme or amendment to that scheme. A liberal construction to existing use rights has evolved through the case law over time[91].
2. Existing use rights are also dealt with in cl 63 of all planning schemes in Victoria, including the Surf Coast Planning Scheme. The first part of clause 63 provides as follows:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

• The use was lawfully carried out immediately before the approval date.
• A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.
• The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

1. It can be seen from this initial clause that the planning scheme reflects the limitation imposed upon it by s 6(3) of the Planning and Environment Act 1987 - most clearly in the first dot point in the clause. But it also goes further than this, and allows for the establishment of existing use rights in other additional circumstances beyond, and without offending, the limitation imposed by s 6(3). In effect, s 6(3) provides for a minimum level of existing use rights (which the planning scheme cannot remove), but cl 63.01 provides for the establishment of more broadly based existing use rights in defined circumstances[92].
2. In this proceeding, it is common ground that the second, third and fifth dot points in cl 63.01 do not apply. It follows that, but for the establishment of existing use rights under either the first or fourth dot points in cl 63.01, the use of the land for off-road motorcycling activities is prohibited.
3. In this proceeding, subject to the comments I have earlier made on the onus of proof, SMCC and MA must therefore satisfy the Tribunal that either:
   • the use was lawfully carried out immediately before the approval date, or
   • proof of continuous use for 15 years is established under cl 63.11.

1. I should also add that, although I have separated my comments on the various components of existing use rights under a number of sub-headings for ease of analysis, the issues have been considered in a holistic way to lead to the decision I have reached.

1. Existing use rights were traditionally based on there having been a 'lawful' use established before a change to a planning control. As noted the commentary in Kraan v Cardinia Shire Council[93], with the approval date of older planning schemes and controls receding well into the past, it became increasingly difficult to prove the lawful establishment of a use 40 or 50 years previously. Witnesses died, records were lost, and memories faded. Largely in response to these problems, but perhaps for other reasons as well, the Victoria Planning Provisions (upon which all planning schemes are based) included an additional new mechanism for the establishment of an existing use right.
2. Clause 63.11 thus provides as follows:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. This has become known as the so-called '15 year rule'. It is in some respects akin to property rights established through adverse possession. The 15 year rule has its critics, on the basis that it is sometimes used to legitimise non-complying uses that may have never been lawful. But the 15 year rule has now itself been part of the regulatory framework for over 15 years, and the Tribunal must apply it in accordance with its terms.

1. Clause 63.11 can be used only where there is a relevant application or proceeding, where the extent of an existing use right in excess of 15 years is called into question. It is therefore often invoked as a 'shield' to defend existing use rights. The current application under s 149B of the Planning and Environment Act 1987 clearly questions the extent of existing use rights for motorcycling activities on the land for a period in excess of 15 years. There is thus a proceeding through which SMCC and MA can avail themselves of cl 63.11 to prove continuous use for 15 years.
2. The applicants however contend that, to date, cl 63.11 has been misconstrued by the Tribunal and the courts, and they sought to 'deconstruct' the clause in this proceeding.
3. The applicants argue that cl 63.11 is only an evidentiary provision that does not independently create an existing use right. They argue that the 15 year rule is based on expediency, rather than fairness, and ought not to be given the same liberal construction given to existing use rights established through lawful use.
4. It is true that cl 63.11 is at least partially an evidentiary provision. It is headed "Proof of continuous use" and refers to what is 'sufficient proof' of the establishment of an existing use right. It does not use language that more clearly indicates that an existing use right is established when a use has been carried out for 15 years.
5. The applicants' arguments do not however present the complete picture. Clause 63.11 must be read in conjunction with cl 63.01. That clause provides that an existing use right is established if any of five circumstances arises, including proof of continuous use under cl 63.11. Clause 63.01 thus creates a right through any of five separate and independent means. Clause 63.11 is the mechanical provision that gives effect to one of those means.
6. The applicants contend further that the reference to 'sufficient' proof in cl 63.11 must be taken to mean that the proof is prima facie only, and not conclusive, and can be rebutted by contrary evidence. I was taken to dictionary definitions and a case concerning the meaning of prima facie evidence[94].
7. I do not agree with the applicants' argument. It is based on the premise that an existing use must still be lawful, and that there may be contrary evidence to indicate that there has not been a lawful continuation of the use since the approval date[95]. Otherwise, there is no issue that might conceivably need to be rebutted. However:
   • as indicated above, cl 63.01 creates a separate and independent means to establish an existing right through proof of 15 years continuous use under cl 63.11 (in the fourth dot point in cl 63.01), and does not rely upon the right being established through the use being lawfully carried out immediately before the approval date (under the first dot point).
   • cl 63.11 expressly states that an existing use right may be established even if the use did not comply with the scheme immediately prior to or during the 15 year period, so the clause expressly acknowledges that the use may have been unlawful. The applicants' argument is therefore based on a false premise.
8. Although this disposes of the argument, I also consider that the context and relevant dictionary definitions support the view that the reference to 'sufficient proof' in cl 63.11 means that the proof is 'enough', and thus more akin to conclusive proof.
9. These views are also consistent with the comments of the Supreme Court in Mornington Peninsula SC v Anderson[96]:

The clause [cl 63.11] is designed to facilitate the establishment of a use right. It does so by making as its only condition for application that "the use has been carried out continuously for 15 years" prior to a relevant date. The use to be enquired into is the actual use rather than to any legal or other use.

1. The applicants also contend that cl 63.11 is not enlivened in this proceeding, because it only applies if the extent of any existing use right is in question. They say that this assumes that there is already an existing use right derived on some basis other than the 15 year rule, and the issue is the extent of that right. Here, they say the question in this proceeding is whether there is any existing use right at all and that cl 63.11 cannot deal with that issue.
2. Although cl 63 is not as precisely drafted as one might wish, I consider its context and meaning is clear, and the applicants' argument is one of semantics. Clause 63.11 refers to the extent of any existing use right, rather than to the extent of the existing use right, and this implies that there may be no right established. The word 'extent' essentially refers to the scope of any right, which technically could be zero. Moreover, the applicants seek in this proceeding to challenge the lawfulness of the use of the land for motorcycling activities, which directly and necessarily raises the issue of the extent of any existing use rights as part of SMCC and MA's 'defence' to the application.
3. For all of these reasons, I consider that the applicants' attempts to undermine the proper application of cl 63.11 in this proceeding are misconceived.

What is the 'relevant date' for assessing continuous use for 15 years?

1. Under cl 63.02, if a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use "at the relevant date". There was much debate about the relevant date for this proceeding.
2. For proof of continuous use under cl 63.11, the 'relevant date' is perhaps less clear than for the establishment of other existing use rights. Is it appropriate to take the relevant date as being the date of commencement of the proceeding, ascertain the purpose of use at that time, and then look back 15 years to see if the same purpose then existed? If so, the relevant date here would be 3 June 2010. Or is the relevant date 15 years before the proceeding, with the need to establish the purpose of use immediately before that time, and then determine if that purpose has continued for 15 years? If so, the relevant date is 3 June 1995.
3. The applicants contended for the latter view, and argued that I should effectively undertake a 'before' and 'after' analysis of the use as at 3 June 1995. As it will have been gleaned from my findings earlier in these reasons, much of the factual evidence was led in that way.
4. However, in my view, the focus on a single 'relevant date' in this way is problematic. Clause 63.11 simply requires that "the use has been carried out continuously for 15 years prior to the date of the application or proceeding". The use may be established "even if the use did not comply with the scheme immediately prior to or during the 15 year period" (subject to exceptions). The clause therefore contemplates that the use may have become unlawful during the 15 year period, or may have always been unlawful. I agree with SMCC and MA that it therefore doesn't matter what the legal status of the use was before the 15 year period, and clause 63.11 does not call for inquiry into the use before the 15 year period. Indeed, the underlying purpose of the 15 year rule is one of expediency, to avoid such an inquiry beyond 15 years[97].
5. It follows that what is required by cl 63.11 is simply an examination of whether a continuous use for a purpose is established for 15 years prior to the date of the s 149B application. Although this lends weight to a view that the date of application is technically the 'relevant date' for the purpose of cl 63.02 (i.e. here, 3 June 2010), what is really important under cl 63.11 is the inquiry into the use between two dates, to establish continuous use over a period of 15 years. It is the use that must have remained continuous, so the inquiry is essentially whether land has been used continuously for the same purpose over the period. Here that requires an examination of whether there is proof of continuous use from 3 June 1995 through to 3 June 2010. Both dates are 'relevant'.
6. This view is consistent with the views of the Supreme Court in Anderson[98]:

What clause 63.11 requires is an enquiry into the actual use of the land over a period of time rather than an inquiry into how, why or the basis upon which that use may have been conducted.

1. What is relevant in this proceeding is therefore an inquiry of what the purpose of the use was between 3 June 1995 and 3 June 2010.

Can there be more than one use within the 15 year period?

1. At all relevant times, the McAdam farm has clearly been used lawfully for the purpose of farming. However, it is possible for land to be used for more than one purpose, provided it is a separate purpose and not merely an activity that is incidental or ancillary to the main purpose[99]. Whether a separate purpose is established is a question of fact and degree. If a separate and independent purpose is established, it is irrelevant whether one use is dominant or whether one is overshadowed by others[100].
2. I agree with the applicants that not every activity on land will involve the use of land for a purpose[101]. For example, the use of a farm for mushrooming or shooting might be activities that do not go to the purpose of the use, and are incidental to the farming purpose.
3. Riding off-road motorcycles on a farm might often be an incidental use to the faming purpose. Some farmers even allow clubs to hold one-off 'scrambles' or enduro events on their land, without there being necessarily a new or separate purpose of use of the land. However, with the establishment of the main track in 1968, I am satisfied that the regularity and extent of SMCC activities became sufficient for motorcycling activity to be regarded as a separate additional use of the land.

1. Much has been written over the years on the characterisation of a use for the purpose of existing use rights, and how the purpose of the use should be ascertained. As the Full Court stated in City of Nunawading v Harrington[102]:

The purpose of the non-conforming use is to be characterized by the appropriately designated purpose of the actual use at the approval date and not by its classification in the list of prohibited purposes such as is to be found here in Column 5 of the PSO: Shire of Perth v O'Keefe [103]

1. This common law position is also largely reflected in cl 63.02 and 63.03 of the planning schemes[104].

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

63.03 Effect of definitions on existing use rights

The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.

1. The applicants in this case seek to characterise the existing use under the 15 year rule, if one is found to exist at all, to be for the purpose of a 'motocross track', confined to the track area, rather than a wider term such as 'motorcycle activities'. They contend that further words of qualification are required in relation to the nature and intensity of the activity, in order to fairly identify the "limited purpose preserved by the existing use right" for the purposes of cl 63.05. Qualifications were suggested to limit the purpose to a motocross track that did not extend beyond club-based motocross activities, or that did not involve international or national events, or that did not involve more than three events per year that are state or regional events, or that was not primarily directed at spectator enjoyment[105].
2. I do not agree with this approach. I prefer the broader approach adopted by SMCC and MA, and the responsible authority, which is also consistent with longstanding authority.
3. In Harrington, the Full Court had stated that, in the field of town planning, statutory provisions designed to protect and preserve existing use rights should be as liberally construed as the language in its context allows[106].
4. Insofar as the principle of liberal construction applies, the use is to be characterised at the appropriate level of generality that identifies the real and substantial purpose for which the land is being used. This is not approached through a meticulous examination of the details of processes or activities, or a precise cataloguing of individual items. The courts have refused to categorise a use so narrowly or prescriptively that natural changes in the method of using the land or carrying on a business will render the existing use right valueless. Equally, the courts have been concerned not to categorise the purpose of a use so broadly that the land could be used for a prohibited purpose which was not given part of its use at the relevant date. One should simply ask what, according to ordinary terminology, is the appropriate designation of the purpose being served by the actual use of the premises, and seek to describe such use only at that level of generality that is necessary and sufficient to broadly cover the activities at the relevant date[107]. The common example given is from Harrington, where a use was characterised as being for the purpose of a bakery, not more specifically for the baking of bread, nor more generally for 'light industry'.
5. Moreover, in seeking to qualify the purpose of a use by reference to cl 63.05, the applicants confuse the purpose of the actual use with conditions or restrictions that may apply to the continuation of that use. Clause 63.05 provides:

63.05 Sections 2 and 3 uses

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
• The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

1. Clause 63.05 deals with the continuation of an existing use right, once established. It follows that the purpose of the actual use is not to be initially characterised by reference to any conditions, although the use may be subject to conditions or restrictions[108]. There is a distinction between the two. The purpose of the actual use is still to be characterised at an appropriate level of generality, having regard to cl 63.02 and the principles of liberal construction.
2. In Stonnington CC v Southern Property Corporation Pty Ltd and Abgol Pty Ltd[109], the Supreme Court noted that, insofar as there may be ambiguity in the drafting of cl 63, such ambiguity was permitted by the draftsperson in circumstances governed by a principle that has been affirmed by both the High Court and Supreme Court. The principle of 'liberal construction' thus remains a guiding principle for the characterisation of existing use rights under cl 63.
3. Specifically in relation to proof of continuous use for 15 years under cl 63.11, the Supreme Court commented in Anderson[110] (to which I have already partly referred):

The clause [cl 63.11] is designed to facilitate the establishment of a use right. It does so by making as its only condition for application that "the use has been carried out continuously for 15 years" prior to a relevant date. The use to be enquired into is the actual use rather than to any legal or other use. This view is consistent with long established authorities that actual use determines the appropriate designation of a purpose for "existing use" or "non conforming use" rights[111].

Planning legislation has typically had to develop mechanisms to protect uses which had been permitted before a change to a planning scheme. To that end it has often been said that provisions protecting existing use rights should be construed liberally[113]. To that may be added that provisions should be construed to give them a sensible operation[114].

1. These comments suggest that the principle of liberal construction applies equally to the characterisation of use for the purpose of the 15 year rule in cl 63.11 as it does to the establishment of existing use rights by other means. I therefore disagree with the applicants that a narrower or different approach to the characterisation of a use applies to cases of proof of continuous use for 15 years. The purpose of the actual use is still the same, and ought to be characterised in the same way. To the extent it was argued that the Tribunal may have reached a different view in Manningham CC v Treefern Nominees Pty Ltd (Beasleys)[115], I respectfully disagree with that view. Treefern was in any event decided before the court's decision in Anderson.
2. In adopting the principle of liberal construction in other cases, the Tribunal has, for example, characterised land as a 'motor racing speedway' rather than characterising the right by reference to the number of racing or practice days per year, the number of races or vehicles in each race, the type of driver, or the times when racing or practice occurs[116]. The Tribunal has characterised land as being for the purpose of 'motorcycle events and activities' rather than by reference to specific conditions on the use[117]. Equally, the Tribunal has characterised land as having existing use rights for 'motor race meetings' and refused to make declarations restricting that right to particular days, or numbers of events per year[118]. I agree generally with the approach adopted in each of these other cases.
3. What then is an appropriate characterisation of the purpose of the actual use here over the relevant period? By reference to the evidence, and subject to the analysis below of the extent of area to which the existing use right is established, I consider that the use of the land over an extended period of time has been for the purpose of 'off-road motorcycle events and activities'.
4. Given the history of use of parts of the land for enduro, trials and other motorcycle disciplines that I have found to have occurred, I do not consider the purpose of the use is limited only to motocross. Equally, the purpose is not that of a motor racing track generally, which could otherwise allow its use for road bikes (or even cars). The use has always been clearly dedicated for off-road motorcycles, and this is an appropriate refinement of the purpose.
5. The current planning scheme refers to a land use term 'motor racing track', defined in cl 74 , which would include off-road motorcycling events and activities, but also a much broader range of activities associated with motor sports. However, the effect of cl 62.02 is that, in characterising a use for the purpose of existing use rights, it is the purpose of the actual use that is important rather than its designation in cl 74. Equally, the effect of cl 62.03 is that the existence of a defined land use term in the current scheme does not extend the scope of an existing use right to the breadth of that definition.
6. Although I heard detailed evidence over many days about the individual activities on the land, I do not consider that the purpose should be characterised by reference to limitations to club-based or non-spectator events, or particular numbers or types of events, or whether those events are club, inter-club, regional or national events. Such an approach leads to an overly detailed or 'meticulous examination' of activities within the use (rather than ascertaining the real and substantial purpose), and also confuses the purpose of the use with possible conditions on the continuation of the use.
7. Here, according to ordinary terminology, I find that the separate and actual use conducted on the relevant land, in addition to the farming purpose, has been for the purpose of use for off-road motorcycle events and activities.
8. Even if (contrary to my views) the only relevant date is 3 June 1995, and I am required to investigate the use before and after that date, I would not have come to a different view. From the evidence, the purpose of use for 'off-road motorcycle events and activities' had crystallised long before 1995.

Do the existing use rights apply to the whole of the land?

1. The applicants assert that different parts of the land have been used for different purposes. They contend that different outcomes should apply as to whether existing use rights have been established on the main track on Lot 1, the balance of Lot 1, or on any parts of Lots 2 or 3. They contend that, if I am against them on their preliminary arguments that no existing use rights exist at all, existing use rights have been established at most for use of the main track on Lot 1 for motocross. The applicants argue that the use of other areas was not sufficient to establish a separate purpose, or should be limited by area to particular motorcycle disciplines such as 'trials' or 'enduro' (but not motocross) in the Lot 2 gullies.
2. Although I have separated my findings on key facts by reference to the different areas within the land, consistently with the way the evidence was led before me, I am not convinced that the existing use rights arising from the evidence are necessarily established in that way.
3. I do not consider it would be appropriate to confine the existing use right solely to the motocross track itself, as the immediately surrounding area was clearly being used in conjunction with it - not just for other motorcycling activities, but also for ancillary parking and infrastructure (such as the toilet block and the building with the Honda sign).
4. Indeed, despite the detailed evidence the individual activities on the land, I do not consider that the purpose should be characterised by reference to particular motorcycle disciplines in particular areas of the land. To do so also leads to an overly detailed or 'meticulous examination' of activities, which I consider to be contrary to authority. Moreover, the evidence discloses some areas of overlap where, for example, some of the gullies or grass tracks were used at different times for different motorcycling events and activities in different disciplines and for different riding styles and abilities. The common link is that all comprised 'off-road motorcycle events and activities', and this embraces the purpose of use of the land at a sufficient and appropriate level of specificity for the reasons I have outlined earlier.
5. The question therefore becomes more general. Do the existing use rights apply to the whole of the land, or only part of it? The evidence supports a conclusion that there was regular use of Lot 1 (both the main track and the balance of the lot) and the Lot 2 gullies for motorcycling activities, but only rare or intermittent use of the balance of the land for such use. Is the existing use right only established for the areas of more regular use?
6. I agree with SMCC and MA that an existing use right may extend to the whole of a parcel of land even though there may not have been physical use of the whole parcel. Whether land enjoys existing use rights in this way will depend on whether the totality of the land is properly regarded as an integrated whole[119]. For example, in Harrington, it was said:

Where land may properly be regarded as an integrated whole, it is unnecessary to show that all of it is used for the given purpose. Where part of the land is unused but part is used for the given purpose, the whole of the land may be regarded as used for that purpose[120].

1. In many cases, there is a single title, in single ownership, and an absence of physical division of land into separate parts, and it is relatively easy to ascribe existing use rights to all of the land in a particular title.
2. Here, the land in Lots 1, 2 and 3 has been in common ownership for the relevant period. But these three lots were not the entire McAdam farm, nor were they always in the same configuration. Separate fenced areas existed from time to time, and the pattern of farming on the land changed over time with different leases and share farming arrangements over different areas. Equally, the pattern of motorcycling activity changed, and the lease and licence for the motorcycling activity that existed for a time was not for the entire land.
3. I am not satisfied on the evidence that Lots 1, 2 and 3 can be considered as an integrated whole for the purpose of the motorcycling activities.
4. As I have found, prior to the re-subdivision of the land in 2007, there was within the land the former 78 ha Lot that roughly accords with the current Lots 1 and 2, and which contained the whole of the area now in Lot 1 (including the motocross track), as well as the main gully area now in Lot 2. Although a 37.25 ha part of this former 78 ha Lot was separately fenced for a period, it is this former 78 ha Lot that existed as a separate allotment on a separate title plan (i.e. as Lot 1 on TP820129K). It is also this former 78 ha Lot that contained all but a very minor component of the motorcycling activity described in the evidence before me over the relevant 15 year period, and it contained the ancillary parking and infrastructure I have earlier referred to. Moreover, the 1998 lease and licence for motorcycling activity was within the fenced area and the Lot 2 gully that all lies within this former 78 ha lot.
5. In my opinion, it is only this former 78 ha Lot that comprises the integrated whole to which the existing use rights apply that are established through proof of continuous use for 15 years. Although it is perhaps a less-favoured term these days, it is this former 78 ha lot that in my view comprised the 'planning unit' within which purpose of use for off-road motorcycling events and activities was essentially contained over the relevant 15 year period. On this basis, it is not necessary for every last square metre of the lot to have been used often or continuously by motorcycles - e.g. the area immediately outside the Lot 2 gullies. The whole of this former 78 ha Lot comprised an integrated land parcel that enjoyed the benefit of the existing use rights.
6. To the extent this former 78 ha Lot roughly accords with the current Lots 1 and 2, I consider it appropriate that, for current purposes, the existing use rights for off-road motorcycling events and activities are now enjoyed by Lot 1 and 2. Nothing material turns on this. Lots 1 and 2 together total 73.37 ha (rather than 78 ha), but I think this slight contraction of the extent of area of existing use rights reflects the existing reality, and is simpler and more convenient for the responsible authority and other parties to apply in practice. Given the reconfiguration of the lots, it is also possible that any existing use rights over the area within the former 78 ha Lot that is not now in Lots 1 and 2 may have been lost under cl 63.06.
7. Conversely, I do not consider that the current 44.85 ha Lot 3 (or the former 40.25 ha lot with which it that roughly accords) enjoys the benefit of the existing use rights for off-road motorcycling events and activities. The evidence provided by SMCC and MA is not sufficient to support a finding that Lot 3 has been used continuously and as an integrated whole with Lots 1 and 2 for motorcycling activities for the past 15 years. Nor does the evidence support a finding that Lot 3 has alone established such a purpose.
8. As I have indicated, the three lots did not comprise the whole McAdam farm, and were not an integrated whole even for the purpose of farming. Moreover, unlike Lots 1 and 2, the area that accords roughly with Lot 3 has always been on a separate title, albeit now in common ownership. From the key findings, the extent of farming on Lot 3 indicates to me that the farming was the sole purpose of use of Lot 3. The very intermittent and limited incursions of motorcycling activity into Lot 3 were at most ancillary and/or lacked sufficient regularity or tenure. They were not sufficient to establish a separate or independent use of the land for motorcycling activities.
9. I do not consider it sufficient that Lot 3 was very occasionally traversed by motorcycles with the knowledge and consent of the then landowner, Clive McAdam. I do not consider a sufficient integration with Lots 1 and 2 is established by one or two 'pony express' events on Lot 2 utilising the top of the gully a small distance into Lot 3. The evidence is that this occurred relatively rarely. The occasional spill-over of an activity onto adjoining land does not, of itself, extend an existing use right into that land. Furthermore, the limited use of Lot 3 on these occasions was not of the same nature, say, as a country racetrack used once or twice a year which might still justify the characterisation of the purpose of use as a racetrack despite the infrequent or intermittent use. Nor is it of the same nature as farm paddocks near a bathing beach being used as a caravan park during holiday periods[121]. Here, the use of Lot 3 was not seasonal, and its use for motorcycling activities was sufficiently rare, ad hoc and irregular that it could not be properly identified and understood in such a way as a separate purpose of use of the lot.
10. Similarly, the use of Lot 3 as a car park in connection with the motocross events on Lot 1 is not sufficient to extend the existing use right to Lot 3. There is only evidence that this occurred on two occasions. If that alone was sufficient, then Mr Anderson's adjacent property could also claim existing use rights for motorcycling activities, simply because he allowed overflow parking on his farm on one occasion to raise money for the local footy club. The use of Lot 3 for car parking is certainly not continuous by itself, nor as part of any continuous use of Lot 3 for motorcycling activities generally. Moreover, the fact that Lot 3 may have been 'available' for use for car parking on more occasions is largely irrelevant if it was not so used.
11. It follows from the above that I find that only Lots 1 and 2 have established proof of continuous use for 15 years for the purpose of use for off-road motorcycling events and activities.

Has the purpose of the use changed within the 15 years?

1. From the findings I have made earlier in these reasons, it is clear that there were some changes in individual activities within the use within the relevant 15 year period, and some intensification of the use. However, for this entire period, I am satisfied that the real and substantial purpose of the actual use did not change. The use is, was and remained for the purpose of 'off-road motorcycle events and activities'.
2. Under the principles commonly applying to existing use rights, land may continue to be used generally for the same purpose. In Shire of Perth v O'Keefe[122], it was stated:

First it is required that a purpose be identified as the end for which it can be seen that the premises are being used ... . Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that the use generally for that purpose may continue.

1. Moreover, cases such as Norman v Gosford Shire Council[123] make it clear that a use may be intensified over time, even with a change in activities within the use, without changing the purpose of use. The use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served[124]. There may even be greater amenity impacts created through the intensification of the use, without the purpose of the use changing[125].
2. It follows from this that, where the purpose of use is 'off-road motorcycling events and activities', as I have found, an intensification of the use through club, inter-club, regional and national events, or the more frequent holding of larger events, does not change the underlying purpose of this use.
3. I have earlier set out cl 63.05, which provides the circumstances in which an existing use may continue. One of these circumstances is where:

Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

1. I agree with SMCC and MA that this clause only applies once an existing use right is established, and does not set out preconditions that must be satisfied in order to first establish the right[126]. Moreover, non-compliance with this provision does not extinguish the existing use right[127].
2. In Stonnington CC v Southern Property Corp Pty Ltd and Abgol Pty Ltd[128], the Supreme Court stated that no implied restriction on the extent of existing use rights can be derived from a meticulous cataloguing of the extent of particular activities at the relevant date. Without deciding the matter, the court "inclined strongly to the view" that such a restriction (for the purposes of cl 63.05) would need to be founded in a planning control, or at least some external source. This reinforces the view that a restriction to which an existing use may be subject should not be characterised by reference to restrictions on club-based or non-spectator events, or particular numbers or types of events, or whether those events are club, inter-club, regional or national events. These may change generally over time without there being a change in the purpose of the underlying use.
3. The applicants also argued that, if a restriction needed to be founded in a planning control, the restriction was the requirement to obtain a planning permit during the period when the use operated unlawfully without a permit (and before it became an otherwise prohibited use). I consider such an argument to be misconceived and self-defeating, as it ignores the very intent of the 15 year rule to allow for the establishment of an existing use right through proof of continuous use, notwithstanding that the use may have been unlawful.
4. One of the other circumstances under cl 63.05 where an existing use may continue is where:

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

1. I agree with SMCC and MA that, having regard to the principles relating to intensification of use set out earlier, the expression "change in activities beyond the limited purpose of the use" must mean a change in activities that amounts to a change in the purpose of the use[129]. As SMCC and MA suggest, this might occur if the nature of activities changed to a sufficient degree such that the purpose of the use could no longer be described in the same terms according to ordinary terminology. For the reasons I have outlined above, that is not the case here whilst the purpose remains for off-road motorcycling events and activities. Such a change may occur if there was, to take an extreme example, an attempt to develop and use the land for on-road vehicles as something akin to a Grand Prix circuit.
2. It follows that an existing use right may be continued, even with additional amenity impacts, provided the purpose of the use does not change. The establishment of the existing use right itself cannot be read down on the basis of a change to the off-site amenity impacts over time as part of an intensification of use.
3. There are two additional issues that are worthy of comment in the context of intensification of the use.
4. First, the intensification is to an extent regulated by the existence of a buildings and works control under cl 63.05, whereby all buildings and works associated with the existing use right require a permit. A permit may sometimes be refused where it might entrench a non-conforming use or, alternatively, conditions on a permit may be used to ameliorate off-site amenity impacts created by the works. The fact that SMCC has not obtained permits for buildings and works over the years has thus exacerbated the impacts on neighbouring land owners, and any rectification of that situation may provide a basis for dealing with those issues. That is not however a matter that this proceeding can deal with.
5. Secondly, commentators have in the past suggested that it is inconsistent with the rest of the Planning and Environment Act 1987 that the adverse effects of an increase in the scale and intensity of an existing use cannot be considered and controlled by planning schemes, in the same way that the adverse effects of uses other than existing uses are able to be regulated. Off-site noise impacts are obviously one of the more annoying and insidious adverse effects in this regard, and this has clearly created the tension in this proceeding. However, given the decision in cases such as Norman, referred to above, and the statutory protection afforded to existing uses in s 6 of the Planning and Environment Act 1987, legislative reform may be required to deal effectively with the intensification of existing use rights. That is also something that this proceeding cannot deal with.

Was the use lawfully carried out before the approval date?

1. It will be recalled that, under cl 63.01, existing use rights may also be established if SMCC and MA can satisfy the Tribunal that the use was lawfully carried out immediately before the approval date.
2. Having found that existing use rights have been established for Lots 1 and 2 for the purpose of 'off-road motorcycling events and activities' through proof of continuous use for 15 years, albeit that such use may have been unlawful before or during that period, it might seem unnecessary to consider whether existing use rights are also independently established on a lawful basis under cl 63.01.
3. As will be seen later in these reasons, apart from offering an alternative basis for existing use rights, establishment of those rights independently through lawful use prior to the approval date is relevant to the lawfulness of certain buildings and works.

1. The first dot point in cl 63.01 allows for the establishment of an existing use right if "the use was lawfully carried out immediately before the approval date"[130]. The purpose for which the land was used must therefore have been 'lawful', in planning terms, at the time of approval of the relevant planning scheme or amendment.
2. For the establishment of an existing use right through lawful use immediately prior to the approval date, the relevant date is that 'approval date' - which presumably here is the initial approval of the Surf Coast Planning Scheme on 5 October 2000[131]. In some cases, however, it may the date of a later amendment to a planning scheme that created the restriction or prohibition on the use[132]. Here, that could arguably be the amendment rezoning the land to the Farming Zone in 2006, when use for a motor racing track first became prohibited rather than allowed subject to permit. However, whilst the current scheme has been amended on several occasions since 5 October 2000, it is common ground that the use would have been prohibited, or would have required a permit (with none obtained), under all iterations of the scheme since that date.

1. Based on the preceding discussion, I am satisfied that the use of the land (or at least Lots 1 and 2) as at 5 October 2000 was for the purpose of 'off-road motorcycle events and activities'. This is because I have found such purpose to have continued at least for the 15 years between 3 June 1995 and 3 June 2010 when the s 149B application was lodged, irrespective of whether it was then lawful. Whilst the use has intensified, based on the findings I have made, I do not believe that the real and substantial purpose of the use has materially changed within this period.
2. But was a use for this purpose lawful immediately before 5 October 2000?

1. SMCC and MA concede that there is only one possible planning control through which the use of the land for motorcycling activities could have become lawfully established on the land prior to 5 October 2000.
2. The relevant parts of cl 7(1) of the Barrabool Planning Scheme 1966 then provided as follows:

7(1) ...Within this [Agricultural] Zone, the use of any land or building or the construction of any buildings or works for any purpose other than the following is hereby prohibited: -

(a) Farm, including pastoral, agricultural, poultry or dairy farm, afforestation, market garden, nursery garden and for other similar uses.

(e) Public or private park, recreation ground or similar use;

1. The evidence is that the Barrabool Planning Scheme, containing this clause, operated from 1 July 1969[134] until 16 June 1994 when it was superseded by the old-format Surf Coast Planning Scheme[135]. The uses described in cl 7(1) were effectively authorised 'as of right' (i.e. without the need to obtain a planning permit). If the use fell outside those described in cl 7(1), the use was a prohibited use in the then Agricultural Zone.
2. The matter is further complicated by the Geelong Regional Planning Scheme, which operated contemporaneously with the Barrabool Planning Scheme from 4 November 1981 until 16 February 1988. The evidence is that, under this regional scheme, the use of land for a 'major sports ground' or 'motor vehicle racing track' were Column 4 uses that required a planning permit[136]. The regional scheme also recognised lawfully established uses prior to its approval date.
3. Accordingly, if the motorcycling activity during the period from 1969 to 1981 (i.e. during the period that only the Barrabool Planning Scheme applied) could be characterised as being for the purpose of a "public or private park, recreation ground or similar use", it became a lawful use within that period. If it became lawful within that period, and provided the use continued generally for the same purpose, it would have been a lawful use through the remaining period of the Barrabool Planning Scheme until 1994, and a lawful pre-existing use through the period of the Geelong Regional Planning Scheme between 1981 and 1988, and through the period of the old-format Surf Coast Planning Scheme between 1994 and 2000. It would therefore have been a lawful use at the time of approval of the current Surf Coast Planning Scheme on 5 October 2000.
4. Thus, it would need to be established that the actual purpose of use at that time (i.e. off-road motorcycling events and activities) fell within the broader use of a park, recreation ground or similar use that was authorised under the planning scheme during the relevant period.

Was the land (or part of it) being used as a 'recreation ground or similar use'?

1. There is certainly no evidence that SMCC ever consciously contemplated that it was operating the land as a park or recreation ground in conformity with the then planning scheme prior to 1981, and there would be an element of revisionist history in now suggesting otherwise. Nonetheless, SMCC asserted that the motorcycling activities on the land at that time could be objectively described as being for the purpose of a 'recreation ground or similar use'.
2. The term "public or private park, recreation ground or similar use" is not defined in the Barrabool Planning Scheme, and it should therefore be given its ordinary meaning having regard to its context[137]. I agree with the parties that the motorcycling activity could not properly be regarded as a 'park', having regard to the ordinary meaning ascribed to that word. I appreciate that the land is often referred to as McAdam Park, and there are other major sportsgrounds that use the word 'park' - e.g. Calder Park. However, in planning terminology, a park is commonly regarded as being for more passive recreation. Here, I agree with the concession by SMCC and MA that the use would need to be characterised as a 'recreation ground or similar use' if its contentions on 'lawful' use are to succeed.
3. There was some debate about whether the words 'public or private', appearing in cl 7(1)(e) before the words 'park, recreation ground or similar uses', applied only to a 'park', or also applied to the 'recreation ground or similar use'. Grammatically, either interpretation is open.
4. The applicants referred me to dictionary and related definitions[138] that they said indicated that a 'recreation ground' is more commonly regarded as a piece of land available to the public for games and play[139], but there are other definitions or uses of the term that do not appear to limit it in that way. SMCC and MA referred me to references to soccer and rugby club grounds in the UK being referred to as recreation grounds, and to Victorian legislation such as the Carlton (Recreation Ground) Land Act 1966 which governs Princes Park. They argued that a 'recreation ground' could thus include a major public or private sportsground, or land accessed only by club members or those paying a fee, and could certainly include an area for recreational motorcycling events and activities such as the motocross track on the McAdam farm.
5. In context, I see no sense in limiting the reference in cl 7(1)(e) of the Barrabool Planning Scheme only to a 'public' recreation ground, and I consider the opening words 'public or private' apply to the balance of the sub-clause, and to all of the 'park, recreation ground or similar uses'.
6. Although the Agricultural Zone was something of a 'default' zone in the Shire, I do not agree with SMCC and MA that the non-prohibited uses it could accommodate should thereby be widely construed, or that it can simply be assumed that the term 'recreation ground' is the 'best fit' for motorcycling activities[140]. The then planning scheme referred to few land use terms (and defined even fewer), so it is not sensible to try to fit all possible uses within the few terms used or defined.
7. Nonetheless, in terms of the ordinary meaning to be given to the term 'recreation ground or similar use', it would seem to contemplate more active or organised activity than the passive recreation offered by a park. A 'recreation ground', in context, may seem to contemplate a reasonably defined and stand-alone land area as the relevant 'ground' - i.e. akin to the UK sports grounds or Princes Park. However, I agree with SMCC and MA that the additional words 'or similar uses' also acts as a catch-all expression that widens the type of uses to more broadly include areas used for leisure and recreation, such as the organised events and activities of SMCC.
8. Based on this analysis, and having regard to the relevant fact findings, I am satisfied that the motocross track on Lot 1, and the area adjacent to that track, was being used as a 'recreation ground or similar use' prior to 1981 and during the period of operation of cl 7(1)(e) of the then Barrabool Planning Scheme.

What area was used as a recreation ground or similar use?

1. It would not be sensible to confine the area of the 'recreation ground or similar use' solely to the motocross track itself, as the immediately surrounding area was being used in conjunction with it. For example, the area between Georges Road and the track was being used for parking and access, and some associated infrastructure and buildings, including the toilet block and the building with the Honda sign, were developed in this area from the 1970's. According to the evidence of Peter Ovens, there were also other infrastructure and buildings in this area, such as other toilet blocks, since demolished. There is also evidence, as I have found, of some grass tracks riding and trials being conducted in the areas near the main track during these earlier periods.
2. I have earlier described a fenced allotment of approximately 37.25 ha that very roughly equates with the current Lot 1, and which included the motocross track and the adjacent areas I have just described. My understanding from the evidence is that this area had been separately fenced for many years, and it was an area from which cropping and other more formal agricultural activities were excluded (save for occasional grazing). Having regard to the principles earlier discussed in relation to the extent of an area to which the purpose of a use (and existing use rights) might reasonably attach, I consider that it is this area that was being used as a 'recreation ground or similar use'. This is consistent with the evidence of Peter Ovens that the broader use of the land beyond this fenced allotment for motorcycling events did not occur until the 1980's (and after 1981). For example, the King of Barrabool events did not start until 1983.
3. To the extent this former 37.25 ha fenced allotment roughly accords with the current Lot 1, I consider it appropriate that, for current purposes, the existing use rights are now enjoyed by Lot 1. Again, nothing material turns on this. Lot 1 is 33.11 ha (rather than 37.25 ha), but I think this slight contraction of the extent of area of lawful existing use rights arising from the use as a 'recreation ground or similar use' reflects the existing reality, and is simpler and more convenient for the responsible authority and other parties to apply in practice.
4. This Lot 1 area, including the motocross track, was clearly established for the club-based recreational activities of SMCC, and operated in the nature of a recreation ground or similar use, as that term is commonly understood. The broader range of inter-club, regional and other events conducted by SMCC on the motocross track during this time, with access for public spectators, is consistent with such a finding. As I have indicated, some of the early infrastructure and buildings adjacent to the track are also consistent with such a finding.
5. I am not however satisfied on the evidence that the Lots 2 and 3 could clearly be described, within the period 1969 to 1981, as having been used as a 'recreation ground or similar use'. These other areas of the farm do not in my view have the same character, or regularity of organised recreational activity, that leads clearly to a conclusion that they were being run as a recreation ground or similar use. Even on Lot 2, the activities there were less structured and more ad hoc. I do not consider that an ordinary person, applying ordinary terminology, would have considered Lots 2 and 3 to be being used as a 'recreation ground or similar use' within the relevant period.
6. I therefore find that the use for motorcycling activities on Lot 1 during the period prior to 1981 fell within the term "public or private park, recreation ground or similar use" under the Barrabool Planning Scheme, and became a lawful use within that area during that period.
7. It might be thought that this view, limiting the lawful use only to Lot 1, is inconsistent with the view I have earlier reached to extend the rights established through proof of continuous use for 15 years to the full extent of the then existing lot (i.e. the former 98 ha lot), and now Lots 1 and 2. I do not however consider this to be the case, for the following reasons:
   • there are different time periods involved - the period prior to 1981 in one instance, and the period between 1995 and 2010 in the other. For example, the evidence of Peter Oven was that, "since the 1980's", 60 or more events have been held away from the area of the motocross track and immediately adjacent areas, including events such as the King of Barrabool. There is insufficient evidence of similar structured use on Lots 2 or 3 prior to 1981.
   • as I have indicated, the term 'recreation ground or similar use' contemplates a reasonably defined and stand-alone land area for more structured recreational activity (i.e. here, the motocross track and immediately surrounding fenced area), which can be contrasted with the broader purpose of use for off-road motorcycling events and activities on the farm paddocks elsewhere on the land. In terms of a 'recreation ground', I do not consider that the area beyond Lot 1 was operating as an 'integrated whole' with Lot 1 in the period prior to 1981.
   • to the extent relevant, cl 15(1) of the Geelong Regional Planning Scheme, which operated concurrently with the Barrabool Planning Scheme after 1981, provided that where land being used for more than one purpose (e.g. as a farm and recreation ground), the areas or proportions used for each could not be altered without the permission of the responsible authority (which has never been given). This seemingly also limits the area of any 'recreation ground' to the more limited fenced allotment containing the motocross track.

1. It follows from all of the above that I find as follows:
   • the whole of Lot 1 on Plan of Subdivision PS 542499L (or a similar equivalent area under earlier lot configurations on the land) was lawfully used for 'off-road motorcycling events and activities' immediately before the approval date of the Surf Coast Planning Scheme on 5 October 2000, as the use for that purpose was lawfully established within the use as a 'recreation ground or similar use' under the former Barrabool Planning Scheme prior to that date. An existing use right is established under cl 63.01 of the Surf Coast Planning Scheme on this basis.
   • the whole of Lots 1 and 2 on Plan of Subdivision PS 542499L (or a similar equivalent area under earlier lot configurations on the land) has been used continuously for the purpose of 'off-road motorcycling events and activities' during the 15 years between 3 June 1995 and 3 June 2010. An existing use right is separately established under cl 63.01 of the Surf Coast Planning Scheme through proof of continuous use for 15 years on this basis.
   • no existing use right is established that allows for the use of Lot 3 on Plan of Subdivision PS 542499L for off-road motorcycling events and activities, and any use of Lot 3 for such purpose is unlawful in the Farming Zone, under cl 35.07-1 of the Surf Coast Planning Scheme.
2. It also follows that the applicants have therefore only partly made out their application for declarations under s 149B of the Planning and Environment Act 1987 insofar as declarations are sought relating to 'use'. The orders in this proceeding will include declarations to the above effect, in substitution for those declarations sought by the applicants.

1. I have earlier set out, in the findings of key facts, the 17 items of buildings and works on the land that the applicants claim are unlawful, as well as the works undertaken on the main motocross track that the applicants claim are unlawful. The lawfulness of buildings and works on the land depends on the planning control in force at the relevant time the buildings were constructed or the works were carried out.

1. Under cl 7(1) of the Barrabool Planning Scheme, which operated until 16 June 1994, the construction of any buildings and works in the Agricultural Zone was treated in similar fashion to whether or not the use was prohibited, unless other specific clauses of the scheme also applied.
2. Given that I have found that Lot 1 was being lawfully used as a 'recreation ground or similar use' under cl 7(1)(e), the buildings and works within this same area were similarly not prohibited, nor required a planning permit under that scheme. In particular, works to the main motocross track itself within this period, including the creation of the significant earthworks or alterations to the track, would not have required a planning permit. On this basis, the track observation box (1990-91)[141] and the motor trials track area (1992)[142], both on Lot 1,would not have required a permit for buildings or works under the then Barrabool Planning Scheme.
3. For the identified buildings and works constructed before 16 June 1994, only the bridge over the creek on Lot 2 (near the northern boundary of that lot)[143] fell outside Lot 1 and would have required a permit, with none obtained. Had the bridge been constructed in conjunction with the use of the land for farming, no such permit would have been required, but no evidence was provided to support such a conclusion.
4. The Geelong Regional Planning Scheme, which operated concurrently with the Barrabool Planning Scheme between 1981 and 1987, would appear to have required a permit for buildings and works. However, the applicants did not provide a copy of any successor to the regional scheme that may have operated after 1987. For the period, 1987 to 1994, the only buildings and works control that I have been required to assess is therefore the Barrabool Planning Scheme. In such event, there is no additional permit requirement that has been brought to my attention for either the track observation box (1990-91) or the motor trials track area (1992), and I thus find on the material before me that neither required a planning permit, and both are lawful.

Buildings and works between 16 June 1994 and 5 October 2000

1. Between 16 June 1994 and 5 October 2000, under the old format Surf Coast Planning Scheme, an existing use in Section 2 of a zone that was lawfully carried out before the approval date could continue, provided "a building is not constructed without a permit". This is to be contrasted with Section 3 (prohibited uses) where the proviso was that "any building or works is only constructed with a permit"[144].
2. The only relevant use of the land that was lawfully carried out within this period was the use of Lot 1, including the motocross track. It is common ground that such a use would have been a Section 2 use within that period. It follows that no planning permit was required within this period for any works, such as works to the motocross track or the initial western track extension during this period. I was not informed of any other provision that may have separately triggered a requirement for a permit for works. A permit would however have been required for any buildings constructed in the area of the motocross track within this period.
3. On this basis, the toilet block renovations (1998), canteen (1994), clubrooms (1994) and clubroom extensions (1998), and the maintenance shed and pump house (1998)[145] were all buildings, and all required a planning permit when constructed, with none obtained.
4. However, the works to the main motocross track or the initial western track extension within this period would not have required a planning permit. This includes the re-orientation of the starting line to a generally north-south alignment, and the installation of a starting gate, both occurring in or around May 2000[146]. Even though these works were of some significance, and the reorientation of the starting line has potentially exacerbated off-site amenity impacts through noise, these works were exempt from a permit requirement at the time they were undertaken, given the then planning scheme distinction between buildings and works for Section 2 uses.

1. Under the current Surf Coast Planning Scheme, cl 63.05 provides as follows:

63.05 Sections 2 and 3 uses

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

1. It can be seen that no distinction applies as between buildings and works, nor as between Section 2 and 3 uses. All buildings and works associated with the existing use right require a planning permit unless otherwise exempt.
2. Insofar as buildings and works other than track works are concerned, the scrutineers shed (2000 or 2001), buried shipping container (2004-05), storage shed (2005), starters box (2008) and bike wash down bays (2005)[147] all required a planning permit when the buildings were constructed or the works were carried out, with none obtained. Although perhaps associated more with track works, the parties treated the land flyover bridge constructed on the main track (2003)[148] in similar fashion to these items and, on this basis, it would also fall into this category and require a permit, with none obtained. It would similarly require a permit if treated as part of track works, given the significance of the structure and the earthworks used to create the bridge ramps.
3. Insofar as track works are concerned within this period, these comprise the learners'/childrens' track (2000 or 2001)[149], the major works to the western track extension (2004-07)[150], and the major works to the main motocross track (2003 and 2005)[151].
4. 'Works' is defined in s 3 of the Planning and Environment Act 1987. It is an inclusive definition, so the term also has its ordinary meaning in addition to the included components, and could thus conceivably capture almost any change in the form or condition of the land if literally applied.
5. I was referred by SMCC and MA to a consideration of the term in Great Southern Property Managers Pty Ltd v Colac Otway Shire Council[152]. There, Justice Morris had indicated that, to avoid absurdity in the application of planning controls to 'works', a line needed to be drawn in order to read down and properly interpret the term. He expressly declined to identify the line which separated activities that were not sufficient to constitute the carrying out of works, and indicated that this would need to be resolved on a case by case basis. Despite this, he considered two circumstances where the matter may be relatively straightforward:
   • where a scheme authorises a use through existing use rights, and the carrying out of works is inherent in the use, the use right may override a works requirement. The example given was a quarry. The taking of stone (and a corresponding change to the condition of the land) was inherent in the use of the land as a quarry, and would not require separate approval for 'works' for each component of stone taken. This is consistent with the view expressed by Gibbs J in Parramatta CC v Brickworks Ltd[153]:
   • the depositing or filling of land may or may not be of such significance to be regarded as 'works'. The examples given, from a quotation from Street J. in Parramatta CC v Shell Co. Of Australia Ltd [154], were that of the depositing of a small amount of earth in a garden (not 'works') as opposed to the building up of a large sports ground or oval (which "could readily and properly be regarded as 'work'"). The quantity of fill in relation to the size of the site was also relevant. The example given from Shell Co. was that 1,200 cubic yards of topsoil within a very large area may not be 'works', but would be 'works' within a suburban allotment if it built up one corner of the lot by several feet.
6. In addition to these principles drawn from Great Southern and the cases cited in that decision, cl 62.02-2 of the Surf Coast Planning Scheme exempts from any permit requirement for works, those works that may be properly regarded as "repairs and routine maintenance to an existing building or works".
7. The changes to the tracks made from time to time from the actual riding of motorcycles, for example the creation of berms as multiple bikes go around a corner, are clearly in the nature of something that is inherent to the use of the track protected by the existing use right, and would fall within the first circumstance described in Great Southern.
8. Equally, I have little doubt that there have been many occasions since 2000 where there have been minor works or track grooming undertaken to the main motocross track, involving small amounts of fill or earthworks, that would be properly regarded as inconsequential, or as repairs or routine maintenance. As the key findings of fact acknowledge, minor earthworks were sometimes undertaken through shovel-work, or with a tractor, often simply by reclaiming dirt from berms or other parts of the track or adjacent land. These would fall within the second circumstance described in Great Southern. Even where a bobcat or excavator was used to occasionally 'rejuvenate and reshape' the track as part of its general maintenance, or where small amounts of soil were imported for this purpose, or where the outcome was that some minor modifications were made to berms or bends within the same general track layout, I agree that this would not require a planning permit for works.
9. I do not however agree with SMCC and MA that the formation of the learners'/childrens' track, the major works to the western track extension, or the major works to the main motocross track in 2003 and 2005, were either inconsequential or inherent in the use, so as not to constitute works, or were in the nature of repairs and routine maintenance. I do not agree that an exemption arises just because it is a feature of motocross riding that the track is regularly altered for rider interest. I do not agree that the reshaping of the track, both vertically and horizontally, will always be inherently part of the use.
10. As is apparent from the second circumstance described in Great Southern, the question is one of context and scale. There, the example was that the building up of a major sports ground would commonly be regarded as 'works'. I am not persuaded that the relative size of the land at McAdam Park changes this. In particular:
    • the learners'/childrens' track established in 2000 or 2001 was a new track constructed at that time. It cannot therefore be characterised as repairs or maintenance to an existing track, or the inconsequential works or reshaping of an existing track inherent with its use. From the aerial photographs 'before' and 'after' the construction of this track, it cannot be said to have involved minor works. Although it is a small track when compared to the main motocross circuit, there has clearly been a change to the form, appearance and condition of the land in the area where this new track has been established. It comprises works for which a planning permit was required under cl 63.05.
    • similarly, although the aerial photographs show an informal track comprising the western track extension prior to 2000 (and originally used from about 1996), it has been substantially upgraded and has been almost entirely constructed as a permanent track in the period from 2004 to 2007. This has involved major earthworks, the formation of a permanent dirt track, a significant building up of the track with ramps and mounds, and has included features such as the flyover bridge. Again, these are not routine repairs or maintenance, or the inconsequential works or reshaping of an existing track inherent with its use. The works to the western track extension in the period from 2004 to 2007 comprise works for which a planning permit was required under cl 63.05.
    • although the works to the main motocross track in 2003 and 2005 were works to the existing track, they were substantial in context and scale to the extent they cannot be regarded as inconsequential, nor the mere rejuvenation and reshaping of the track as part of its maintenance. As the findings of fact acknowledge, these works comprised a major upgrade involving significant earthworks to widen and build up the height of the track, and significant earthworks incorporating the development of major jumps and obstacles including 'table tops', 'ski jumps', 'stair case jumps' and the area known as the 'whoops'. The track height was raised in some areas by several metres. More particularly, as I have earlier indicated, the earthworks in 2005, prior to the Oceania 2005 event, involved large quantities of soil delivered in 80 to 100 trucks (each with 'dog' trailers), which was dumped adjacent to the main track and shifted with heavy equipment to create obstacles and increase the height of parts of the main track by up to 4 metres. This can hardly be described as inconsequential or in the nature of routine repairs. The works to the western track extension in the period from 2004 to 2007 comprise works for which a planning permit was required under cl 63.05.
11. SMCC and MA contended that an analogy ought to be drawn with a golf course where a permit was not ordinarily required to reorientate a hole or shift a bunker, but a permit would be required to build an additional 9 holes. Although no evidence was provided to support where the line might be drawn under this golf course analogy, in my view the demarcation I have reached in this case is consistent with that analogy. Having regard to context and scale, the major works outlined above all properly required a permit for works.
12. I was referred to a letter of advice from the responsible authority's solicitors[155] that advised that the importation and depositing on the motocross track of 420 cubic metres of soil in March/April 2010 was not works that required a permit. The letter of advice considered this volume of soil comprised routine repairs and maintenance and was entitled to the exemption under cl 62.02. I was not made aware of the exact circumstance, save that it was suggested that this soil was spread along the entire length of the 1.8 km track as repairs and maintenance in response to a safety inspection carried out by Motorcycling Victoria. If this be the case, then I have no reason to doubt the advice given, and it would fit within the circumstances and demarcation I have earlier described, where a permit for works would not be required. However, the spreading of soil along the entire track by way of maintenance is quite different to the creation of major new obstacles, or building up parts of the track by several metres, or a major track upgrade, such as occurred with the 2003 and 2005 track works described above. Moreover, the volume of imported fill referred to in the letter of advice is much less than that utilised in the 2005 works. The production of this letter of advice, and reliance on it by SMCC and MA, does not therefore change the conclusion I have reached, and is indeed consistent with it.
13. SMCC and MA also contended that greater earthworks would be allowed as of right, if associated with the farming use on the land, unless the earthworks changed the rate of flow or discharge point of water to adjacent land. This is however irrelevant to works under cl 63.05, where the existing use right for a now prohibited use (i.e. the motorcycling activities) can only continue if a permit is obtained for all buildings and works.

1. It follows from all of the above that I find as follows:
   • a planning permit was required at the time of construction for the buildings and works comprising the toilet block renovations, canteen, clubrooms and clubroom extensions, maintenance shed/pump house, scrutineers shed, buried shipping container, storage shed/container, land flyover bridge, starters box, bike wash down bays, all on Lot 1, and the bridge over the creek on Lot 2, being the items in paragraphs 7 (c),(d),(e),(h),(i),( j),(k),(l),(m),(o),(q) and (p) in the amended s 149B application. To the extent no permit has been sought or obtained for these buildings and works, the buildings and works are unlawful under the planning scheme then prevailing at the time of construction and/or under cl 63.05 of the Surf Coast Planning Scheme.
   • a planning permit was required at the time of construction for the formation of the learners'/childrens' track, and for the major upgrade to the western track extension in the period from 2004 to 2007, being the items in paragraphs 7 (b) and (n) in the amended s 149B application. To the extent no permit has been sought or obtained for these buildings and works, the buildings and works are unlawful under cl 63.05 of the Surf Coast Planning Scheme.
   • a planning permit is not required for the motor trials track area, or the track observation box, being the items in paragraphs 7 (a) and (g) in the amended s 149B application. Those buildings and works were lawfully undertaken under the planning controls in force at the relevant time.
   • a planning permit was not required at the time of construction for the works to the main motocross track comprising the re-orientation of the starting line and installation of a starting gate in May 2000, being the items in paragraphs 8 (c) and (d) in the amended s 149B application. Those works were lawfully undertaken under the planning controls in force at the relevant time.
   • a planning permit was required at the time of construction for the works to the main motocross track in 2003 and 2005 comprising the significant earthworks to widen and build up the height of the track, and the significant earthworks incorporating the development of major jumps and obstacles including 'table tops', 'ski jumps', 'stair case jumps' and the area known as the 'whoops', being the items in paragraphs 8 (a) and (b) in the amended s 149B application carried out after 5 October 2000. To the extent no permit has been sought or obtained for these works, the works are unlawful under cl 63.05 of the Surf Coast Planning Scheme.
   • a planning permit is not required for works to the main motocross track carried out before 5 October 2000, or for works in the nature of routine repairs and maintenance since that time. Those works were lawfully undertaken under the planning controls in force at the relevant time.
2. It also follows that the applicants have made out most (but not all) of their application for declarations under s 149B of the Planning and Environment Act 1987 insofar as declarations are sought relating to 'buildings and works'. Although SMCC and/or MA has now applied for a planning permit to retrospectively authorise some of these buildings and works, I consider that, in the interests of certainty and having regard to the dispute between the parties on these issues, the applicants are entitled to declaratory relief. The orders in this proceeding will therefore include declarations to the above effect, in substitution for those declarations sought by the applicants.

[1] (1989) 16 NSWLR 50 (NSW Court of Appeal) at pp 51-52 per then Kirby P.

[2] Royal Agricultural Society of NSW v Sydney CC (1987) 61 LGRA 305, 309, cited with approval by the Supreme Court in cases such as Anteden v Glen Eira CC [1998] VSC 366, VBI Properties Pty Ltd v Port Phillip CC [2001] VSC 22, and Sorrento Apartments Pty Ltd v Mornington Peninsula SC [2001] VSC 302.

[3] s 149B(3).

[4] This is consistent with the approach adopted in unChain St Kilda Inc. v Port Phillip City Council (Red Dot) [2009] VCAT 833.

[5] In the interests of transparency, I also disclosed at the hearing my past role (more than 15 years ago) as one of those involved in the drafting of what is now clause 63 of the VPP-based planning schemes, which deals with existing use rights. No party objected to my hearing this proceeding on such basis.

[6] Relating respectively to noise threshold limits and use of the land for camping. In the case of the former, this had the effect of removing from this proceeding any detailed debate on the acoustic impacts of the current use of the land for motorcycling activities. As a consequence, the parties did not call nor directly rely upon their respective expert evidence filed on acoustic issues.

[7] Exhibit A-11 - Register of Members of Barrabool Hills Community Association Inc.

[8] For the purposes of s 60(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998.

[9] [2011] VCAT 992.

[10] [2011] VCAT 1361.

[11] Phillips v Greater Shepparton CC [2005] VCAT 653.

[12] These principles governing the exercise of power to make a declaration are found in cases such as Ainsworth v Criminal Justice Commission [1992] HCA 10 cited in Phillips at [108], and Hill v Campaspe SC [2005] VCAT 1128 at [11].

[13] s 20 of the Charter

[14] Momcilovic v the Queen [2011] HCA 34

[15] s 6(1) of the Charter

[17] Exhibit A-20, and also provided in the exhibits to several affidavits including those of Heather Wellington and Andrew Watts.

[18] Exhibit PO-5 to the affidavit of Peter Ovens.

[19] e.g. Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758, referred to in Harrington (op cit) at p 645

[20] See Re Golem and Transport Accident Commission (No.1) [2002] VCAT 319; (2002) 19 VAR 265 per Bowman VP, and the cases cited in Pizer's Annotated VCAT Act (3rd Edition) at para 3759, and also Masuda Pty Ltd v CC [2000] VCAT 654 at [63] per Bruce DP. Those cases were however concerned with the Tribunal's review jurisdiction, rather than this proceeding in the original jurisdiction.

[21] In some documents (including the 2006 lease, some SMCC drawings, and a Council officer report), Lot 1 is referred to as being 32 ha. The actual title plan of subdivision PS542499L registered with the Land Titles Office on 10 August 2007 shows Lot 1 as 33.11 ha. (Exhibit DMR-3 to Dianne Richard's affidavit). It appears that the planning permit application for re-subdivision in 2004/05 may have contemplated a 32 ha Lot 1, and the area of the lot then changed slightly prior to formal registration of the plan in 2007. Nothing materially turns on this discrepancy.

[22] Similarly, Lots 2 and 3 are shown in some other documents as having slightly different land areas than the registered plan. Again, nothing materially turns on this discrepancy.

[23] A planning permit P04/0647 for the subdivision was issued on 25 February 2005.

[24] This title plan TP820129K appears to have been registered only on 11 December 2002. Although I was not taken to earlier title documents, it was suggested that this general lot configuration had existed for some time previously.

[25] See Response to Interim Orders filed by SMCC and MA on 17 November 2011, at para 7.

[26] See Response, op cit, at para 8(a), and the general law searches annexed to the Response. The inheritance included another family member, Norman McAdam, with the land later reverting to Clive McAdam alone.

[27] See Response, op cit, at para 8(b), and the general law searches annexed to the Response.

[28] See Response, op cit, at para 8(c), and the general law searches annexed to the Response.

[30] Excerpts in Exhibit M-2. According to the responsible authority, the Barrabool Planning Scheme continued to operate, with amendments, after the introduction of the Planning and Environment Act 1987 on 16 February 1988 and until its consolidation into the 'old format' Surf Coast Planning Scheme in 1994.

[31] Excerpts in Exhibit A-5. To the extent relevant, this regional scheme appears to have operated concurrently with the Barrabool Planning Scheme, at a time when it was legislatively possible to have more than one planning instrument apply to an area. The parties were content for a version of this regional scheme as at 14 October 1987 to be treated as representative of the controls in force during the relevant period, without requiring a separate version of the scheme to be proved at each relevant date.

[32] Excerpts in Exhibit A-4. This scheme followed municipal restructuring and the proclamation of the Surf Coast Shire on 9 March 1994, and was the version that operated prior to the commencement of a scheme based on the Victoria Planning Provisions in 2000.

[33] Clause 7(1)(e) of the Barrabool Planning Scheme 1966. Exhibit M-2. Although the scheme bears the year 1966, the copy tendered to the Tribunal suggests it was not approved until 1 July 1969.

[35] This arrangement ended on 16 February 1988 when the Planning and Environment Act 1987 commenced operation, as only one scheme could apply to land from that time.

[37] Clause 12(1) of the Geelong Regional Planning Scheme, Exhibit A-5.

[38].Clause 40 of the 'old format' Surf Coast Planning Scheme operating from 1994 to 2000. Exhibit A-4.

[39] Clauses 16-2 and 16-3 of the 'old format' Surf Coast Planning Scheme operating from 1994 to 2000. Exhibit A-4.

[40] Defined in cl 74 to be "land used to race, rally, scramble, or test, vehicles, including ... motorcycles, and includes other competitive motor sports"

[41] This finding appears to be common ground (see para 3 of Exhibit M-15 - summary of findings of agreed facts). Even if the use was not a 'motor racing track', if characterised under the definitions in cl 74, it would otherwise be an innominate use not authorised or permissible in Sections 1 or 2 of the Table of Uses in the Farming Zone, and would thus still be prohibited under the Farming Zone controls in cl 35.07-1.

[42] The relevant evidence for this comes primarily from the testimony of Trevor Anderson and Dean Grigg.

[43] Although Trevor Anderson referred to this arrangement as a lease, he indicated that the agreement was verbal and informal. It is possible that some aspects of this arrangement were non-exclusive, and may thus have had more of the legal character of a licence.

[44] There is some evidence that a Gary Morrison was also involved with the cropping of parts of Lots 2 and 3 during this period.

[45] This includes sheep grazing on Lot 1 by Clive McAdam from 1 January 1998, which he reserved the opportunity to pursue under his 5 year lease to SMCC - see later discussion on lease (Exhibit PO-1 to Peter Ovens' affidavit).

[46] The relevant evidence for this comes primarily from the testimony of David White.

[47] A letter from Clive McAdam's children dated 27 June 2006 (Exhibit DW-02 to David White's affidavit) suggests the track may have been formed in 1967, but the consensus view of the parties was to consider the track to have been formed and used from 1968. Nothing turns on this.

[48] The relevant evidence for this comes primarily from the testimony of Peter Ovens.

[49] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Mark West and Peter Williams, and the letter from Clive McAdam's children (Exhibit DW-02 to David White's affidavit).

[50] The relevant evidence for this comes primarily from the testimony of Peter Ovens, David White, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, Dianne Richards, Sally Mackenzie, and in the table of events prepared by Amelia Lynch from club records.

[51] The relevant evidence for this comes primarily from the testimony of Peter Ovens, David White, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, Dianne Richards, Ian Kelly, Sally Mackenzie, Heather Wellington, and in the table of events prepared by Amelia Lynch from club records.

[52] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Mark West and Phillip Nelson.

[53] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone and Mark West.

[54] The relevant evidence for this comes primarily from the testimony of Peter Ovens, and in the table of events prepared by Amelia Lynch from club records.

[55] The relevant evidence for this comes primarily from the testimony of David White and Heather Wellington.

[56] From other documents (e.g. the 1998 lease), it appears that this fenced area was approximately 37.25 ha, whereas the existing Lot 1 is 33.11 ha. The fenced area formed part of the larger subdivided lot, being the former 78 ha Lot I have earlier described.

[57] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards. Reference to this use also arises in a number of the additional statutory declarations tendered by SMCC and MA.

[58] In reaching this view, I have also had regard to the expert evidence of Andrew Watts on the aerial photographs. Also, see the affidavit of Dianne Richards, an adjacent land owner called by the applicants, whose evidence is that the off-track events were usually single events on grass (not formed) tracks marked with tapes, and the grass grew over again quickly.

[59] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards. Grass tracks are evident in the aerial photographs for 1998, 2004, and 2007. Reference to this use also arises in a number of the additional statutory declarations tendered by SMCC and MA. I understand the 'pony express' events to be a form of enduro riding.

[60] These distances are for general reference only, and not scaled. The addendum to the Land Management Plan dated 8 December 2010 (Exhibit R2) also refers to the Lot 2 gully as having a 700 metre section through that lot.

[61] The relevant evidence for this comes primarily from the testimony of Peter Williams and Phillip Nelson, as well as in some of the statutory declarations. Mr Nelson was quite specific in pony express events being held within the gully approximately 20 metres to the west and 40 metres to the east of the creek bed. However, I am satisfied the use was occasionally within the slightly broader 50 metre distances either side. This is also consistent with the area of the gullies reserved under the 1998 lease.

[62] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards.

[63] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards. Reference to this use also arises in a number of the additional statutory declarations tendered by SMCC and MA.

[64] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards. Reference to this use also arises in a number of the additional statutory declarations tendered by SMCC and MA.

[65] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Malcolm Loone, Peter Williams, Mark West, David Stewart, Darren Last, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards.

[66] The relevant evidence for this comes primarily from the testimony of Peter Ovens, Darren Last and Phillip Nelson.

[67] Exhibit PO-1 to Peter Oven's affidavit.

[68] The uncontested evidence of Peter Ovens was that the use of Lots 2 and 3 was with the permission of Clive McAdam, and this permission was never refused.

[69] Exhibit PO-2 to Peter Oven's affidavit. The exhibit only contains the lease schedule, and his testimony explains the background for it.

[71] Exhibit R-3b, letter dated 8 January 2004 from Anthony Sang, Council planning officer, to Nicolstam Pty Ltd.

[72] This was facilitated by an agreement under s 173 of the Planning and Environment Act 1987, required as part of the permit conditions. On 29 November 2006, such an agreement was registered over the land.

[73] The 2005 Land Management Plan is Exhibit HLW-11 to Heather Wellington's first affidavit.

[74] The relevant evidence for this comes primarily from the testimony of Peter Ovens.

[75] Exhibit HlW-11 to Heather Wellington's affidavit, at p 2.

[80] Exhibit R2. Lot 2 Plan - Item 3.3(i)

[81] The relevant evidence for this comes primarily from the testimony of Peter Ovens, John George, Trevor Anderson, Sally McKenzie, Dianne Richards, and Heather Wellington.

[82] The relevant evidence for this comes primarily from the testimony of David White, Peter Ovens, Malcolm Loone and Phillip Nelson.

[83] See in particular Peter Ovens' affidavit at [42]-[48]. See also the affidavit of Sally Mackenzie, a nearby landowner called by the applicants, who moved to the area in 2002 and could not recall any material disturbance from noise before 2005.

[84] The relevant evidence for this comes primarily from the testimony of David White and Peter Ovens.

[85] The relevant evidence for this comes primarily from the testimony of Peter Ovens.

[86] The relevant evidence for this comes primarily from the testimony of David White, Peter Ovens, Malcolm Loone, Phillip Nelson, John George, Trevor Anderson, and Dianne Richards, with additional photographs tendered via Ian Kelly, and an examination of aerial photographs by Andrew Watts.

[87] The relevant evidence for this comes primarily from the testimony of Peter Ovens ad Phillip Nelson.

[88] The relevant evidence for this comes primarily from the testimony of adjacent land owners Trevor Anderson, Dianne Richards and Peter George, but was not materially contested.

[90] The paragraph numbers (a), (b) etc correspond to the sub-paragraphs in paragraph 7 of the amended s 149B declaration. All items are on Lot 1 except the bridge in sub-paragraph (q).

[91] Including Shire of Perth v O'Keefe [1964] HCA 37; (1963) 110 CLR 529, Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 54 LGRA 99, and City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641

[92] This view has been previously endorsed in cases such as Kraan v Cardinia SC [2006] VCAT 1629 at [30]- [33]

[94] IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] 248 at [46] per Warren CJ. Whilst the decision discusses what is meant by 'prima facie evidence', it does not really assist at all in giving a meaning to the phrase 'sufficient proof'.

[95] See paragraphs [20]-[22] of the applicants' written submissions.

[96] [2009] VSC 301 at [9] per Pagone J.

[97] Kraan v Cardinia Shire Council [2006] VCAT 1629 at [30]- [33]

[98] [2009] VSC 301 at [9] per Pagone J

[99] Royal Agricultural Society of NSW v Sydney CC (1987) 61 LGRA 305, 311. There a speedway was found to be a separate purpose of use of the land, in addition to the purpose of a showground. See also Cascone v Whittlesea SC (1993) 80 LGERA 367.

[100] Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, 161 per Glass JA.

[101] Central Highlands Water v Ballarat CC (No. 1) [2006] VCAT 1297.

[102] [1985] VicRp 64; [1985] VR 641, at 644. This quote was also adopted and endorsed in Stonnington CC v Southern Property Corporation Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [19] per Osborn J.

[103] [1964] HCA 37; (1964) 110 CLR 529

[104] In Greater Geelong CC v Geelong Markets Pty Ltd [2004] VCAT 781, Morris P indicated that cl 63.02 was a summary of what would otherwise be the position at common law. See also Stonnington CC v Southern Property Corporation Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [20] per Osborn J.

[105] See applicants' written submissions at [43]

[106] [1985] VicRp 64; [1985] VR 641 at 644, following Dorrestijn v SA Planning Commission [1984] HCA 76; (1984) 56 ALR 295 at 300, Parramatta CC v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at 25, and Woollahra MC v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 at 144.

[107] This paragraph paraphrases principles from cases such as Shire of Perth v O'Keefe [1964] HCA 37; (1963) 110 CLR 529 at 535_, Royal Agricultural Society of NSW v Sydney CC_ (1987) 61 LGRA 305 at 309-10, and City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 at 644-45.

[108] Ackerman & Ors v Mornington Peninsula SC [2010] VCAT 911 at [26]- [27] per Gibson DP.

[109] [2006] VSC 435 at [22] per Osborn J.

[110] [2009] VSC 301 at [9] per Pagone J.

[111] See Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); Stonnington City Council v Southern Property Corporation Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1, 9 (Osborn J).

[112] [2009] VSC 301 at [11] per Pagone J.

[113] Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295, 300 (Mason ACJ, Deane and Dawson JJ); City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645 (Kaye, McGarvie and Marks JJ); Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1, 6 (Osborn J).

[114] Deputy Commissioner of Taxation v Government Insurance Office of New South Wales [1993] FCA 464; (1993) 45 FCR 284, 299 (Hill J).

[115] [2008] VCAT 1105 at [62] per Byard SM.

[116] Corowa Rutherglen Motor Sports Inc v Indigo SC [2011] VCAT 517 at [20]- [22] per Code M.

[117] Ackerman & Ors v Mornington Peninsula SC [2010] VCAT 911 per Gibson DP.

[118] Moorabool SC v Ramsay [2006] VCAT 2425 per Byard SM.

[119] Parramatta CC v Brickworks Ltd [1972] HCA 21; (1971-72) 128 CLR 1; Eaton & Sons Pty Ltd v Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270; City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 644-5; see also Stonnington CC v Southern Property Corp Pty Ltd and Abgol Pty Ltd [2006] VSC 435 at [25] per Osborn J.

[120] Harrington at 644-5, expressly following Eaton & Sons at 281

[121] These were the examples of potentially intermittent or seasonal use that may establish a separate purpose of use, given by Stephen J. in his dissenting judgement in Eaton & Sons at 287.

[122] [1964] HCA 37; (1963) 110 CLR 529, 534-5; see also Harrington at 644-5.

[123] [1975] HCA 15; (1975) 132 CLR 83, 86 per Mason J.

[125] Rockdale Municipal Council v Clark (1982) 47 LGRA 159, 160-1. In that case, the lighting of tennis courts for night use was held not to be a new purpose of use, even though different and extended amenity impacts were created. See also Johansson v Glen Eira CC [2005] VCAT 1242 at [15].

[126] Ackerman v Mornington Peninsula CC [2010] VCAT 911.

[127] Kraan v Cardinia SC [2006] VCAT 1629 at [50]- [54].

[128] [2006] VSC 435 at [31] per Osborn J.

[129] To interpret it otherwise may also offend s 6(3) of the Planning and Environment Act 1987.

[130] This is consistent with s 6(3) of the Planning and Environment Act 1987.

[131] See Schedule to cl 61.04 of the Surf Coast Planning Scheme.

[132] 'approval date' is defined in cl 72 to be "The date this scheme began, or the date of notice in the Victoria Government Gazette of approval of an amendment to this scheme".

[133] Exhibit M-2. It is common ground that none of the other sub-paragraphs in cl 7(1) could apply.

[134] Exhibit M-2. The copy of the scheme tendered to the Tribunal bears a Governor-in-Council approval stamp bearing this date.

[136] See Table to cl 10, Exhibit A-5.

[137] Following Crick v Bunnings Group and Surf Coast SC [2011] VSC 398 and the cases cited therein - see para [33] of SMCC and MA written submission.

[139] The applicants also referred to cases that suggest a recreation ground must be public (e.g. Victoria Park Racing & Recreation Grounds Co Pty Ltd v Federal Commissioner of Taxation [1934] HCA 65; (1934) 52 CLR 9 (High Court)), but none of the cases were directly on point

[140] see para [37] of SMCC and MA written submission. The assumption is itself flawed, as it assumes motorcycle riding is to be allowed.

[141] Item 7(g) in the amended s 149B application.

[142] Item 7(a) in the amended s 149B application.

[143] Item 7(q) in the amended s 149B application.

[144] Clauses 16-2 and 16-3 of the 'old format' Surf Coast Planning Scheme operating from 1994 to 2000. Exhibit A-4.

[145] Items 7(c),(d),(e),(h) and (i) in the amended s 149B application. A permit has now been sought for those items other than the maintenance shed (Item 7(h)).

[146] Items 8(c) and (d) in the amended s 149B application.

[147] Items 7(j),(k),(l),(o) and (p) in the amended s 149B application. A permit has now been sought for these items.

[148] Item 7(m) in the amended s 149B application.

[149] Item 7(b) in the amended s 149B application.

[150] Item 7(n) in the amended s 149B application.

[151] Items 8(a) and (b) in the amended s 149B application.

[152] [2005] VCAT 1937, a decision of then Justice Morris P.

[153] [1972] HCA 21; (1972) 128 CLR 1, 263, but cf Parramatta CC v Shell Co. Of Australia Ltd cited below. Both cases are discussed in Great Southern.

[154] (1972) 1 NSWLR 483, 488-89

[155] Exhibit RA-1. Letter from John Cicero of Best Hooper to Brydon King at Surf Coast Shire Council dated 21 April 2010.