ROBERTSON and SHIRE OF MURRAY - [2009] WASAT 171

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ROBERTSON and SHIRE OF MURRAY [2009] WASAT 171

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 4 SEPTEMBER 2009

FILE NO/S: DR 348 of 2008

BETWEEN: PETER JOHN ROBERTSON
YVONNE ROBERTSON
Applicants
AND
SHIRE OF MURRAY
Respondent

Catchwords:

Town planning - Development application - Motorcycle track - Special use equestrian-based zone - Whether proposed development requires development approval - Whether motorcycle track is 'development' - Whether motorcycle track is a 'work' - Whether riding motorcycles on motorcycle track is incidental or ancillary to residential or equestrian use - Whether requirement for development approval is obviated by authorisation under the Control of Vehicles (Off-road Areas) Act 1978 (WA) - Whether proposed development is capable of approval under local planning scheme - Local planning scheme states land 'may only be used for training, trotting and stabling of horses and associated activities including residential' - Whether there is power to approve proposed development despite non-compliance with provision - Whether provision is a 'standard or requirement' prescribed under local planning scheme - Amenity - Noise - Whether requirement in reg 7 of Environmental Protection (Noise) Regulations 1997 (WA) that noise should not exceed assigned levels at nearest affected premises does not apply because of reg 14 of Environmental Protection (Noise) Regulations 1997 (WA) - Whether a motorcycle is 'specified equipment' - Whether the land is 'residential premises' - Whether motorcycle would be used in a reasonable manner - Whether noise would unreasonably interfere with amenity - Whether proposed development is consistent with zoning - Local government direction - Direction to remove motorcycle track and to restore land - Whether direction too broad - Direction to cease use of motorcycle track

Legislation:

Control of Vehicles (Off-road Areas) Act 1978 (WA), s 6, s 6(1), s 45, s 47, s 47(1)
Environmental Protection Act 1986 (WA), s 3(1)
Environmental Protection (Noise) Regulations 1997 (WA), reg 2(1), reg 3, reg 7, reg 8, reg 9, reg 14, reg 14(2), Sch 1 Pt C
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 252(1), s 255(1)
Shire of Murray Town Planning Scheme No 4, cl 1.7, cl 3.1.2, cl 3.5(c), cl 6.6, cl 13.3.1, Sch V, Appendix 1

Result:

Application for review dismissed
Development approval for construction and use of a motorcycle track at No 64 (Lot 21) Greenlands Road, Pinjarra refused
Direction to remove motorcycle track and to restore the land at No 64 (Lot 21) Greenlands Road, Pinjarra confirmed but varied to enable removal and restoration to be completed by 4 December 2009
Direction to cease use of motorcycle track at No 64 (Lot 21) Greenlands Road, Pinjarra confirmed

Category: A

Representation:

Counsel:

Applicants: Mr S Steenhof
Respondent: Mr C Slarke

Solicitors:

Applicants: Cornerstone Legal
Respondent: McLeods

Case(s) referred to in decision(s):

Australian Racing Drivers' Club Limited v Baulkham Hills Shire Council (1981) 2 APA 127
City of Swan v Taylor [2005] WASCA 88
Claude Neon Limited v City of Perth (1982) 53 LGRA 267
Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299; (2004) 214 ALR 190
Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
O'Donovan and Town of Vincent [2005] WASAT 120
Parramatta City Council v Shell Company of Australia Limited (1972) 26 LGRA 25
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
The Council of the City of Parramatta v Brickworks Limited (1972) 128 CLR 1
Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Robertson own a property which 'may only be used for training, trotting and stabling of horses and associated activities including residential', under a special use provision in the local planning scheme. Mr and Mrs Robertson constructed a 465 metre long motorcycle track, including lengthy sections adjoining property boundaries, over approximately 30% of the area of their land (excluding an access handle). The motorcycle track was used by Mr and Mrs Robertson's son for competition training. Mr and Mrs Robertson did not seek or obtain development approval under the local planning scheme for the construction or use of the motorcycle track.
The proceedings involved the review of the decisions of the local shire to:
•give a direction to remove the motorcycle track and to restore the land;
•give a direction to cease use of the motorcycle track; and
•refuse development approval for a modified 356 metre long motorcycle track.
The principal issues in the proceedings were:
•whether the proposed development requires development approval;
•whether the proposed development is capable of approval;
•whether the proposed development is acceptable in relation to noise;
•whether the proposed development is consistent with the zoning; and
•whether the directions should be confirmed, varied or set aside.
The Tribunal determined that the proposal involves the carrying out of 'development' and therefore requires development approval. The proposal is a 'work' which involves significant physical alteration of a permanent nature to a substantial part of the site. Furthermore, the riding of motorcycles on the track is a land 'use' that is not incidental or ancillary to either the equestrian or residential use of the land.
The Tribunal determined that the proposed development is not capable of approval because it does not involve training, trotting or stabling of horses or associated activities. Furthermore, the scheme provision that restricts permissible uses of the land is not a 'standard or requirement' that is capable of variation under the scheme.
The Tribunal found that the proposed development is not acceptable in relation to noise. The noise is likely to exceed the prescribed standard for noise emissions at the closest affected premises by a substantial extent. The Tribunal also found that the proposal is inconsistent with the zoning and, in particular, with the special use provision applicable to the site. The Tribunal therefore determined that, if the proposed development were capable of approval, then the application would warrant refusal in the exercise of discretion.
The Tribunal then considered whether it should confirm, vary or set aside the directions. It concluded that the directions should be confirmed, but that Mr and Mrs Robertson should be given three months, rather than 28 days, to remove the motorcycle track and to reinstate the land.

Introduction

Mr and Mrs Robertson own a 1.78 hectare battleaxe-shaped property at No 64 (Lot 21) Greenlands Road, Pinjarra (site), which is located approximately 1.5 kilometres south of the main commercial and civic area of the Pinjarra Townsite. In accordance with the Special Use zoning of the site and surrounding properties under the Shire of Murray Town Planning Scheme No 4 (TPS 4 or Scheme), 'the land may only be used for training, trotting and stabling of horses and associated activities including residential'.
Mr and Mrs Robertson constructed a motorcycle track with a length of approximately 465 metres in the northern part of the site without having obtained development approval under the Scheme. Mr and Mrs Robertson propose to reduce the length of the motorcycle track to approximately 356 metres. The proposed modified motorcycle track would have a surface area of approximately 1,400 square metres and the part of the site comprising the motorcycle track would have an area of approximately 4,500 square metres.
Mr and Mrs Robertson sought review by the Tribunal of the decisions of the Shire of Murray (Shire or Council) to refuse development approval for the proposed modified motorcycle track under the Scheme and to issue directions to Mr and Mrs Robertson to remove the motorcycle track and to reinstate the site, and to cease use of the motorcycle track. The Tribunal directed that the matter shall be determined entirely on the documents with a view.
On 4 August 2009, I had a view of the site accompanied by Mr and Mrs Robertson and the parties' representatives. In particular, I walked the whole of the existing motorcycle track and the parties indicated where and how the proposed modified motorcycle track would differ from the existing track. I also viewed the site accompanied by the parties' representatives from Mr and Mrs Hazelden's property that adjoins the site to the west.

Site and locality

In addition to the existing motorcycle track, the site contains two horse stables and a paddock for horses, a dam, and a single house, swimming pool and shed. The 4,500 square metre area comprising the existing and proposed modified motorcycle track occupies substantially the whole of the northern part of the site between the shed and the northern boundary. The area comprising the motorcycle track is approximately 26.5% of the site area or, excluding the access handle, approximately 30% of the site area.
The site adjoins eight properties to the west, east and south-east that are also subject to the same Special Use zoning under the Scheme.
Clause 6.6 of the Scheme states that:
No person shall, in respect of any land included in [the Special Use] zone:
(i)use any land or any buildings or structures erected thereon; and
(ii)carry out any development thereon;
except in accordance with the Special Provision[s] applicable to the specified land as set out in Schedule V of the Scheme.
The Special Provisions in Sch V of the Scheme applicable to the site and 15 other lots, including the eight adjoining properties, include the following:
(i)The land may only be used for training, trotting and stabling of horses and associated activities including residential.
…
(iv)No more than one dwelling shall be erected on any lot and no dwelling shall be erected other than in association with the erection of a stable or stables.
…
The eight adjoining properties have been generally developed for equine purposes with active stables, associated dwellings and ancillary facilities including outbuildings and swimming pools.
The site adjoins a Crown Reserve, which is identified as Regional Open Space under the Peel Region Scheme, to the north.
The Pinjarra Paceway (Trotting Club) is located on the southern side of Greenlands Road approximately 150 metres east of the road frontage of the site.
As noted earlier, the site is located approximately 1.5 kilometres south of the main commercial and civic area of the Pinjarra Town site.

Existing motorcycle track

In the early 1990s, Mr and Mrs Robertson constructed a track for a variety of purposes, including the riding of go-karts and motorcycles, in the northern part of the site. The construction of the track involved approximately 450 cubic metres to 500 cubic metres of soil, mostly extracted from the dam on the site. Mr and Mrs Robertson also incorporated natural features of the surrounding landscape, such as rises and dips, into the circuit. Mr and Mrs Robertson did not seek or obtain development approval for the construction of the track under TPS 4. The Scheme had commenced prior to the construction of the track on 23 June 1989.
In around the year 2000, Mr and Mrs Robertson's son, Liam Robertson, developed an interest in motocross riding and began using the track for that purpose. In about 2004, Liam Robertson started to compete in motorcycle events throughout Australia. At about the same time, Mr and Mrs Robertson began adding to and modifying the track in order, in Mr Robertson's words, 'to keep pace with Liam's increasing motocross skills'. The track additions and modifications included:
•ski jumps;
•ramps;
•a 'tabletop';
•a bridge/flyover with tunnel; and
•associated raised earthworks.
Mr Hazelden gave evidence that, in late 2006 and early 2007, he observed deliveries of earth by semitrailers to the site throughout a number of days. Mr Hazelden observed a loader and other heavy equipment build the motorcycle track using the imported soil. Mr and Mrs Robertson did not obtain development approval under TPS 4 for any of the additions or modifications to the motorcycle track.
By November 2008, the existing motorcycle track on the site was approximately 465 metres long, contained 12 jump elements, including a tabletop and a concrete bridge, and 10 banked turns.

First direction

Following a complaint made by Mr and Mrs Hazelden in early 2008 relating to the construction and use of the motorcycle track on the site, and ensuing correspondence between the Shire and Mr and Mrs Robertson, on 20 August 2008, the Shire gave Mr and Mrs Robertson a direction under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) (first direction). The first direction recited that the following development was undertaken on the site without development approval under TPS 4 and therefore in contravention of the Scheme:
The motorcycle track consisting of berms, tabletops, ski jumps, ramps, bunds, a bridge/flyover with tunnel and any associated raised earthworks.
The first direction required Mr and Mrs Robertson to:
(i)remove the Development within 28 days of the service of the Direction and
(ii)to restore the [site] as nearly as practicable to its condition immediately before the Development started, to the satisfaction of the Shire.
On 17 September 2008, Mr and Mrs Robertson sought review by the Tribunal under s 255(1) of the PD Act of the Shire's decision to give them the first direction. Mr Robertson gave evidence that he has:
nonetheless made a conciliatory effort by:
(a)Removing the substantial man made elements of the Track, including a metal framed concrete bridge;
(b)Levelling out several of the dirt jumps that formed part of the Track; and
(c)Shortening the length of the Track on two separate occasions.

Second direction

On 31 October 2008, the Shire gave Mr and Mrs Robertson a direction under s 214(2) of the PD Act (second direction). The second direction recited that the following development has been carried out without development approval under TPS 4 and therefore in contravention of the Scheme:
The use of the motorcycle track on the [site], for the riding of motorcycles.
The second direction required Mr and Mrs Robertson to:
immediately stop, and not recommence, the Development.
Mr and Mrs Robertson have complied with the second direction. Although Mr and Mrs Robertson did not file an application for review by the Tribunal of the Shire's decision to give them the second direction under s 255(1) of the PD Act, they presented their case on the basis that the proceedings were also for review of the decision to give the second direction. As Mr and Mrs Robertson presented their case on this basis, and as, for reasons set out below, I consider that both directions should be confirmed, I am content to grant leave to amend the application for review to incorporate the review of the decision to give the second direction.

Proposed development

In late February 2009, Mr and Mrs Robertson applied to the Shire for retrospective development approval for a modified motorcycle track on the site, described on the development application form as 'domestic motorcycle track containing of [sic] 6 elements more than 600 mm above natural ground level'.
The proposed modified motorcycle track would:
•be approximately 356 metres in length, being a reduction in length of the existing motorcycle track of 109 metres or approximately 23%;
•contain seven jump elements, being a reduction of five elements from the existing motorcycle track; and
•contain eight banked turns, being a reduction of two banked turns from the existing motorcycle track.
The development application does not nominate the heights of the six elements identified as 'more than 600 mm above natural ground level'. Having walked the entirety of the motorcycle track with Mr and Mrs Robertson and the parties' representatives, it appears that these elements are, and are proposed to remain, at a height of up to 1.0 metre - 1.5 metres. Some of these elements have a substantial length and footprint.
The proposed modified motorcycle track would have a surface area of approximately 1,400 square metres and would include sections that are substantially parallel to the northern boundary of the site and parts of the eastern and western boundaries of the site. In particular, an approximately 70 metre length of the track would be located within approximately 2 metres to 5 metres of the northern boundary, an approximately 65 metre length of the track would be located within approximately 3 metres to 7 metres of the western boundary and an approximately 40 metre length of the track would be located within approximately 2 metres of the eastern boundary. The existing and the proposed modified motorcycle track also winds back and forth in four lengths connected by sharp turns in sections between the parts that are adjacent to the eastern and western boundaries of the site. In total, the part of the site that comprises the proposed modified motorcycle track has an area of approximately 4,500 square metres and occupies essentially the whole of the northern part of the site between the shed to the north of the house and the northern boundary. This area occupies approximately 26.5% of the total site area and approximately 30% of the site area excluding the access handle.
The development application also proposed the following restrictions on the use of the proposed modified motorcycle track:
•a maximum of two riders would use the track at any one time;
•the track would be used for a maximum of two hours per day during daylight hours only, with no use on Tuesdays or Thursdays;
•only motorcycles which have been 'officially noise tested' would be used on the track; and
•additional landscaping would be installed between the track and the western property boundary.
In addition, Mr and Mrs Robertson had previously offered to build a bund near to their common boundary with Mr and Mrs Hazelden's property to the west in order to screen the view of the track from the adjoining property and to mitigate its noise impact.
The development application was advertised by the Shire. A total of 17 submissions were received. Seven submissions were individual letters of objection from residents within 200 metres of the proposed modified motorcycle track, one submission was from Mr and Mrs Robertson's planning consultant, one submission was an individual letter of support and seven submissions were pro forma letters of support. The owners of five properties adjoining the site supported the proposal while the owners of three other adjoining properties objected to it. In addition, the resident of one of the adjoining properties supported the proposal although the property owner objected to it.
On 28 May 2009, the Council accepted its officer's recommendation to refuse development approval for the proposed modified motorcycle track under TPS 4 for the following six reasons:
(a)a motorcycle track is not permitted under the 'Special Use' zoning of the land and cannot reasonably be determined as being incidental to the residential enjoyment of the land;
(b)the use of the motorcycle track would add significantly to the level of noise expected in an area specifically established for equestrian‑related purposes;
(c)the nature of the proposal is incompatible with the intended character and amenity sought by the equestrian-based zoning of the land;
(d)approval of the proposal would be detrimental to the owners of adjacent land who, quite reasonably, have purchased their land with the expectation that surrounding land would be developed consistent with its zoned purpose;
(e)approval of the proposal would be inconsistent with the principles of orderly and proper planning; [and]
(f)approval of the proposal would set an undesirable precedent[.]

On 5 June 2009, with the consent of the Shire, the Tribunal granted leave to Mr and Mrs Robertson to amend their application to the Tribunal to seek a review of the Shire's decision to refuse development approval for the proposed modified motorcycle track under s 252(1) of the PD Act. While, strictly, a fresh application for review was required to be filed under s 252(1) of the PD Act, the matter has proceeded on the basis that the proceedings involve the review of each of three decisions of the Council, namely, the decisions to:
•give the first direction;
•give the second direction; and
•refuse to grant development approval under TPS 4 for the proposed modified motorcycle track.
The Tribunal will determine the proceedings on this basis.

Issues for determination

The following five principal issues arise for determination in these proceedings:
1)Whether the proposed development requires development approval under the Scheme.
2)Whether the proposed development is capable of approval under the Scheme.
3)Whether the proposed development is acceptable in relation to noise impact.
4)Whether the proposed development is consistent with the zoning of the site.
5)Whether the directions should be confirmed, varied or set aside.
The Tribunal will consider each of these issues in turn.

Does the proposed development require development approval under the Scheme?

Clause 3.1.2 of TPS 4 states as follows:
Subject to the provisions of the Scheme, a person shall not commence or carry out the development of any land:
(i)without the approval of the Council to carry out that development; and
(ii)if that approval is granted subject to any conditions, otherwise then in accordance with and compliance with those conditions.
The term 'development' is defined by cl 1.7 and Appendix 1 of the Scheme as follows:
'Development' - means the development or use of any land, including any demolition, erection, construction, alteration or addition to any building or structure on the land and the carrying out on the land of any excavation or other works …
In University of Western Australia v City of Subiaco (1980) 52 LGRA 360 (University of Western Australia) at 363 ‑ 364, Burt CJ said in relation to a definition of 'development' which was, relevantly, substantially the same:
In my opinion the definition of 'development' in the Town Planning and Development Act makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself': see Parkes v Environment Secretary (1978) 1 WLR 1308 at 1311 per Lord Denning MR.
The Shire contended that the proposed modified motorcycle track involves the carrying out of 'development' in both the sense of physical alteration to the land with a requisite degree of permanence to the land itself and the 'use' of the land for the riding of motorcycles on the track. The Shire argued that, for both of these reasons, the proposed development requires development approval under cl 3.1.2 of TPS 4.
In contrast, Mr and Mrs Robertson contended that their proposal does not involve the carrying out of 'development' in either sense of physical alteration or use. Consequently, approval of the proposal is not required by the Scheme.
Mr and Mrs Robertson argued that the proposal does not involve physical 'development' requiring approval under the Scheme because:
(a)the surface area of the Modified Track is less than 10% of the total area of the [site] and therefore would result in a negligible degree of change to the residential and equine use of the [site];
(b)the Modified Track interwinds with the native vegetation so as to minimise alterations to the [site];
(c)parts of the Modified Track are either naturally occurring features of the landscape or involve only minor modifications (less than 600 mm) to the natural contours of the [site]; and
(d)the [site] is located in a rural type setting.
Alternatively, Mr and Mrs Robertson submitted that only those parts of the proposed modified motorcycle track 'which involve a not insignificant degree of physical alteration (more than 600 mm above natural ground level) to the [site] constitute "development" and consequently require planning approval'.
Mr and Mrs Robertson also argued that the proposal does not involve 'development' in the sense of land 'use' requiring approval under the Scheme, for two reasons.
First, Mr and Mrs Robertson argued that the proposal is incidental to the residential and equestrian-related use of the site. Referring to the discussion of the phrase 'incidental to' by Johnson J in City of Swan v Taylor [2005] WASCA 88 (City of Swan) at [67], Mr and Mrs Robertson submitted that the proposed modified motorcycle track 'naturally attaches to their use of the [site] particularly given their son Liam's long-term involvement with motocross and the fact that [they] and their family have ridden motorcycles on the [site] for almost 20 consecutive years'. They submitted that the following factors indicate that the proposed modified motorcycle track is incidental to the residential use of the site:
(a)the sole user of the Modified Track would be [Mr and Mrs Robertson's] son Liam Robertson, who resides on the [site] and is engaged in fulltime employment;
(b)the use of the Modified Track would be subject to the Proposed Restrictions;
(c)the surface of the Modified Track would cover less than 10% of the total area of the [site]; and
(d)the Modified Track does not impinge on the ability of [Mr and Mrs Robertson] to use the [site] for equestrian-related purposes.
Second, Mr and Mrs Robertson submitted that 'the [Shire] has no power to prohibit the riding of off-road motorcycles on the [site] as this would be inconsistent with s 6 of the [Control of Vehicles (Off-road Areas) Act 1978 (WA)] which permits such activity'.
The Tribunal considers that the proposed modified motorcycle track involves the carrying out of 'development' in both senses referred to by Burt CJ in University of Western Australia and requires development approval under cl 3.1.2 of TPS 4 for the following reasons.
A 'work' is 'the physical product of labouring operations': The Council of the City of Parramatta v Brickworks Limited (1972) 128 CLR 1 at 24 per Gibbs J with whom Barwick CJ, at 3, and Owen J, at 4, agreed. In Parramatta City Council v Shell Company of Australia Limited (1972) 26 LGRA 25 (Parramatta) Street J in the Supreme Court of New South Wales said the following, at 31, in the course of his Honour's consideration as to whether the depositing of 1,200 cubic yards of fill on land constituted 'development':
As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a 'work', and thus a 'development', within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might very well not be of such significance as to amount to a 'work'. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point 8 feet 6 inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this, is, in my view, a 'work' within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to 'development' …
Having referred to the statement by Burt CJ in University of Western Australia and the statement by Street J in Parramatta, Pidgeon J in the Supreme Court of Western Australia held in Claude Neon Limited v City of Perth (1982) 53 LGRA 267 at 270, in the course of determining whether signs proposed to be erected on a building in Perth comprised a 'development', as follows:
I consider therefore that the answer to [this] question is dependent upon a finding of fact as to the degree of change of use or physical alteration to the land and it would include as envisaged by [Burt CJ] an examination of the degree of permanence of the physical alteration. It must be looked at subjectively having regard to the location of the land concerned and the area it is in.
Having regard to these authorities, the proposed modified motorcycle track in this case is clearly a 'work' which involves significant physical alteration of a permanent nature to a substantial part of the site, and is therefore, 'development'.
The surface area of the proposed modified motorcycle track would be approximately 1,400 square metres. It would be established over a total land area of approximately 4,500 square metres or approximately 30% of the area of the site excluding the access handle. The quantity of fill that has been imported for the purposes of constructing the proposed modified motorcycle track, namely, initially approximately 450 to 500 cubic metres of soil, and, more recently, semi-trailer loads of earth delivered over a number of days, is significant in the context of the size of the area over which the track is formed. The proposed modified motorcycle track and, in particular, the substantial, filled parts of it, are visually apparent not only from within the site but from the adjoining properties, particularly given the close proximity of long sections of the track to property boundaries. As noted earlier, certain elements forming part of the track are of a height of up to 1.0 metre - 1.5 metres and have a substantial length and footprint.
While it is correct that parts of the proposed modified motorcycle track are naturally occurring features of the landscape, it is not correct, as contended by Mr and Mrs Robertson, that other elements that are less than 600 millimetres in height involve 'only minor modifications … to the natural contours of the [site]'. While some elements of the track are not significant in themselves, they clearly present as part of a significant and permanent work, namely, the track.
While the site is located in a rural-type setting, it and surrounding properties are zoned and generally developed for equestrian purposes. Other than the area comprising the proposed modified motorcycle track, the site and surrounding properties appear to be generally flat. In contrast, the area comprising the proposed modified motorcycle track has been significantly altered in its landform for the purposes of constructing the track. Because of the significant alteration in the landform of the northern part of the site for the purposes of the proposal, and because of the track itself, approximately 30% of the area of the site excluding the access handle would not be available, or at least would not be readily available, for horses.
While some native vegetation has been retained within the northern part of the site, the degree of physical alteration to the land is substantial, with a sufficient degree of permanence, such that the proposed modified motorcycle track is a 'work' and, therefore, 'development' requiring development approval under cl 3.1.2 of TPS 4.
Under cl 3.5(c) of TPS 4, a single house and its ancillary outbuildings is exempt from the requirement to obtain development approval under the Scheme. However, the proposed modified motorcycle track is not incidental or ancillary to the residential use of the site, nor is it incidental or ancillary to its equestrian use. In City of Swan, Johnson J held at [67] that the determination of whether a particular land use is 'incidental to' another land use:
… requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use.
In the circumstances of this case, the riding of motorcycles on the proposed modified motorcycle track is not consequent on, nor naturally attaching, appertaining or relating to either the residential or equestrian use of the site. There is plainly no relationship or connection between the riding of motorcycles on the proposed modified motorcycle track and the keeping of horses on another part of the site. The only relationship or connection between the riding of motorcycles on the proposed modified motorcycle track and residential use of the site is that the principal proposed rider currently resides with his parents at the site. However, the use of the site for the riding of motorcycles on the proposed modified motorcycle track is not consequent on, nor naturally attaching, appertaining or relating to, the residential use of the site, because, as Mr Rodney Peake, a town planner and the Shire's Director of Planning and Development Services, said in evidence:
The physical extent of the track and the amenity implications of its use, particularly in the context of an equestrian-based area, is more than that which could be reasonably argued as being 'incidental' or 'ancillary' to the residential use of the land …
The significant physical extent of the track was discussed earlier in these reasons. The adverse amenity implications of the use of the track in terms of noise impacts, particularly in the context of an equestrian‑based area, are discussed below in relation to issue 3. While Mr Brian Robinson, a consultant town planner who gave evidence on behalf of Mr and Mrs Robertson, said that he was aware that 'historically within the Shire[,] residents on land of more than one hectare have traditionally used motorbikes for private recreation purposes, in most cases riding along internal firebreaks', there is no evidence that lawful, or even unlawful, motorcycle tracks of the nature proposed in the development application are located in the area.
It is recognised that:
Rural areas generate a variety of 'externalities' - mainly noise and dust emissions. One cannot expect to reside in such a zone and necessarily expect a quiet and serene rural environment. (Marley-Duncan v Corporation of the Town of Gawler [2003] SAERDC 28 at [21])
and
'People … who choose to live beyond the urban fringe should do so in the knowledge that they may have to live with a less pleasant environment than they may have originally expected. (Australian Racing Drivers' Club Limited v Baulkham Hills Shire Council (1981) 2 APA 127 at 130).
However, the noise impacts of riding motorcycles on a track with a significant length and, for large parts, within just a few metres of common boundaries, in a locality zoned and generally developed for equestrian purposes, for up to 10 hours a week, including up to four hours on weekends, is plainly inconsistent with reasonable amenity expectations of residents in the locality. As the Tribunal found in relation to a similar proposal in a similar location in Townsend and Shire of Donnybrook/Balingup [2005] WASAT 276 at [70]:
Reflecting the activity that produced it, the noise here is not, in the Tribunal's view, comparable to the 'usual' but largely transient and intermittent sounds that one might be exposed to in a rural residential area.
A further reason why the proposed use is not incidental or ancillary to the residential use of the site is, to quote Mr Peake's evidence:
The purpose of the track is to provide for the regular and specific motorcycle training and testing needs of the owner's son for competition purposes. Such needs are more akin to a use in its own right than that which would generally be expected in an incidental domestic situation;
As Mr Robertson said in evidence, his son Liam Robertson would use the proposed modified motorcycle track for testing, tuning and running in motorbikes, prior to competing in motorcycle events throughout Australia. The regular use of land for the purposes of one's profession, occupation or calling, including training for motorcycle competitions, is not incidental or ancillary to residential use, even if one also resides on the land. The use is not consequent on, nor naturally attaching, appertaining or relating to the residential use, but rather is a separate and distinct use.
Mr and Mrs Robertson relied on s 6, s 45 and s 47 of the Control of Vehicles (Off-road Areas) Act 1978 (WA) (Off-road Vehicles Act) in support of their argument that the riding of off-road motorcycles on the proposed modified motorcycle track does not require the Shire's approval. Section 6(1) of the Off‑road Vehicles Act creates an offence for a person to drive or use an off-road vehicle otherwise than on private land by consent or on land comprised within a permitted area, with certain exceptions. Section 45 of the Off-road Vehicles Act permits a local government to make local laws for the purposes of that Act. Section 47(1) of the Off-road Vehicles Act authorises the Governor, by notice published in the Government Gazette, to revoke or amend a local law or local planning scheme which, in the opinion of the Governor, is 'repugnant to or inconsistent with the provisions of this Act … insofar as it is so repugnant or inconsistent …'.
However, the Off-road Vehicles Act does not obviate the requirement to obtain development approval for the construction or use of the proposed modified motorcycle track under cl 3.1.2 of TPS 4. The Off‑road Vehicles Act does not purport to override planning laws, except through the process prescribed in s 47 of the Act. There is no evidence that a notice has been published in the Government Gazette revoking or amending any part of TPS 4 under s 47(1) of the Off-road Vehicles Act.
It follows that the proposed development requires development approval under the Scheme.

Is the proposed development capable of approval under the Scheme?

As noted earlier, cl 6.6 of TPS 4 states that no person shall carry out any development in the Special Use zone 'except in accordance with the Special Provision[s] applicable to the specified land'. The Special Provisions, relevantly, include that the land 'may only be used for training, trotting and stabling of horses and associated activities including residential'. The proposed development does not involve the training, trotting or stabling of horses or associated activities.
Notwithstanding these provisions, Mr and Mrs Robertson contended that the proposed development is capable of approval under TPS 4 for each of two reasons.
First, Mr and Mrs Robertson submitted that the proposed development is incidental to the residential and equestrian-related use of the site. This argument was considered, and rejected, in relation to the first issue above.
Second, Mr and Mrs Robertson submitted that, in any event, the Council has the power to approve the proposed modified motorcycle track irrespective of any non-compliance with the Scheme by virtue of cl 13.3.1 of TPS 4 which states as follows:
Except for development in respect of which the Residential Design Codes apply, if a development is the subject of an application for approval to commence development and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the non-compliance, approve the application unconditionally or subject to such conditions as it thinks fit.
However, in O'Donovan and Town of Vincent [2005] WASAT 120, the Tribunal held, at [39], as follows:
[A] 'standard' is a level which is regarded as normal, adequate or acceptable, and a 'requirement' is something which is demanded, obligatory or needed. It is, therefore, apparent that these terms refer to something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development.

The Special Provision relating to the site that the land may only be used for training, trotting and stabling of horses and associated activities including residential is not a 'standard or requirement prescribed under the Scheme' within the meaning of cl 13.3.1 of TPS 4, because it is a provision that absolutely prohibits, or does not permit under any circumstances, a particular type of use or development, rather than something which regulates an aspect of a permitted use or development. As the riding of motorcycles on the proposed modified motorcycle track does not involve the use of the site for training, trotting and stabling of horses and associated activities including residential, it is absolutely prohibited by the Special Use zoning of the site, with the consequence that the proposed development is not capable of approval under the Scheme.
In consequence of this finding, it is strictly unnecessary to address issue 3 and issue 4. However, as the assessment of issue 3 bears, to some extent, on the Tribunal's analysis in relation to issue 1, and as these issues were addressed in evidence and submissions, the Tribunal will proceed to consider them.

Is the proposed development acceptable in relation to noise impact?

The Tribunal had the benefit of expert evidence in relation to noise from two acoustics engineers, Mr Timothy Reynolds, called by Mr and Mrs Robertson, and Mr Michael Cake, called on behalf of the Shire. The noise experts agreed that, if reg 7 of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) applies to the proposed development, then it is likely that the noise emission would not comply with the assigned levels when received at the nearest noise-sensitive premises and, therefore, would not comply with reg 7. Mr Reynolds calculated the exceedance as between 12 dB(A) and 17 dB(A) at the nearest noise-sensitive premises, whereas Mr Cake calculated the exceedance as 22 dB(A).
However, the noise experts also referred the Tribunal to reg 14 of the Noise Regulations. Regulation 14 of the Noise Regulations states as follows:
(1)In this regulation ‑
specified equipment means any item of equipment which requires the constant presence of an operator for normal use.
(2)Regulation 7 does not apply to noise emitted from residential premises from the use of specified equipment on any day if ‑
(a)the specified equipment is used in a reasonable manner;
(b)the specified equipment has not been used –
(i)in the case of equipment other than a musical instrument, for more than 2 hours since the beginning of the relevant day; or
(ii)in the case of a musical instrument, for more than one hour since the beginning of the relevant day;
(c)the noise resulting from the use of that specified equipment on those premises, having regard to the duration of the noise emission, the frequency of similar noise emissions from those premises and the purpose for which the equipment is used, does not unreasonably interfere with the health, welfare, convenience, comfort or amenity of an occupier of premises receiving the noise; and
(d)the specified equipment is used ‑
(i)between 0700 hours and 1900 hours on Monday to Saturday inclusive; or
(ii)between 0900 hours and 1900 hours on a Sunday or public holiday.
While the noise experts disagreed in relation to whether para (a) and para (c) of reg 14(2) of the Noise Regulations would be met in the circumstances of this case, they agreed that a motorcycle is 'specified equipment' and that the site is 'residential premises' for the purposes of reg 14 of the Noise Regulations. However, the proper interpretation of the terms 'specified equipment' and 'residential premises' is a question of statutory interpretation for the Tribunal. The Tribunal invited the parties to make specific submissions in relation to these issues in their submissions in reply and gave each party the further opportunity to reply to the other party's submissions on these issues.
The Tribunal considers that reg 14 of the Noise Regulations is not applicable in the circumstances of this case for the following three reasons.
First, motorcycles are not 'specified equipment' within the meaning of reg 14. The most apposite meanings of the noun 'equipment' in The Macquarie Dictionary (4th ed, 2005) (Macquarie Dictionary) at 479 are:
1. anything used in or provided for equipping … 5. a collection of necessary implements (such as tools).
The verb 'equip' is defined as follows:
1. to furnish or provide with whatever is needed for services or for any undertaking; to fit out, as a ship, office, kitchen, etc. 2. to dress out; array.
A motorcycle is not something used in or provided for equipping, or a necessary implement, and is not, therefore, 'equipment'. Indeed, the Noise Regulations recognise that a motor vehicle is not equipment, because it separately refers to noise emissions from motor vehicles: see reg 3.
Section 3(1) of the Environmental Protection Act 1986 (WA) (EP Act) states that in that Act 'unless the contrary intention appears':
Equipment means any apparatus, appliance, boiler, chimney, crane, device, dredge, engine, facility, fireplace, furnace, generator, incinerator, instrument (including musical instrument), kiln, machine, mechanism, oven, plant, railway locomotive, retort, structure, tool, vehicle or vessel or any other equipment of any kind whatsoever.
While the definition of equipment in s 3(1) of the EP Act significantly expands the ordinary meaning of that word, and includes, in particular, 'any … vehicle', a contrary intention to the application of the definition appears in reg 14 of the Noise Regulations. Regulation 14 relates specifically to noise emitted from specified equipment used on 'residential premises'. Many of the types of 'equipment' referred to in the definition in s 3(1) of the EP Act, such as crane, dredge, furnace, plant and railway locomotive, are plainly inapplicable to residential premises. In consequence, the ordinary meaning of the word 'equipment' applies to the expression 'prescribed equipment' in reg 14 of the Noise Regulations.
Furthermore, a rider of a motorcycle is not an 'operator' and the words 'the constant presence of an operator for normal use' are not apt to include the riding of a motorcycle. The noun 'operator' is relevantly defined in the Macquarie Dictionary at 1006 as follows:
a worker; one employed or skilled in operating a machine, apparatus, or the like; a wireless operator; telephone operator.
The verb 'operate' is relevantly defined as 'to work or use a machine, apparatus, or the like'.
The riding of a motorcycle does not involve the working or using of a machine.
Second, notwithstanding Mr and Mrs Robertson's submission to the contrary, and the Shire's concession that the site 'is capable of being described as residential premises, as it is occupied mainly for residential purposes', the site, and certainly the part of the site comprising the proposed modified motorcycle track, is not relevantly 'residential premises' within the meaning of reg 14 of the Noise Regulations.
Rather, than 'residential premises', the site falls within the definition of 'rural premises' in reg 2(1) of the Noise Regulations, namely:
Premises used primarily for pastoral or agricultural purposes on land classified or zoned agricultural or rural use, or for rural lifestyle living, under a town planning scheme prepared or adopted under the [PD Act].
Although the site is zoned 'Special Use', Special Provision (i) applicable to the site is relevantly classification or zoning for rural use under the Scheme. The adjective 'rural' is defined in the Macquarie Dictionary at 1421 as follows:
1. of, relating to, or characteristic of the country (as distinguished from towns or cities), country life, or country people; rustic. 2. living in the country. 3. of or relating to agriculture: rural economy.
Zoning restricting the use of land for training, trotting and stabling of horses and associated activities involves use relating to, or characteristic of the country, as distinguished from towns or cities. The keeping of livestock, including horses, is use for a pastoral purpose: see the definitions of 'pastoral' at 1048, 'stock' at 1387 and 'livestock' at 836 of the Macquarie Dictionary.
Mr and Mrs Robertson referred to the statement by the Full Court of the Federal Court in Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299; (2004) 214 ALR 190 at [57] that the expression 'residential premises' 'includes premises which are occupied as a residence, or intended to be, and capable of being so occupied'. However, read in the context of the Noise Regulations as a whole, land that falls within the definition of 'rural premises' does not constitute 'residential premises', even though, as is characteristic of rural premises, people may reside in a residence located on the rural premises. It should be noted that this does not mean that rural premises are not 'noise-sensitive premises' for the purpose of determining the assigned level which is not to be exceeded at affected premises under reg 7, reg 8 and reg 9 of the Noise Regulations. 'Rural premises' are expressly included in the expression 'noise-sensitive premises': see definition of 'noise-sensitive premises' in reg 2(1) and Sch 1 Pt C.
Furthermore, the part of the site comprising the proposed modified motorcycle track is not occupied as a residence and, as found earlier, the riding of motorcycles on that part of the site is not incidental or ancillary to residential use of the site. While reg 14 is not restricted to noise emitted from specified equipment used within a residence or ancillary structures, and can extend to noise emitted from specified equipment used outside, for example a lawnmower, the regulation is not intended to extend to the use of specified equipment on land that is used otherwise than for residential purposes.
Third, assuming that a motorcycle is 'specified equipment' and that the site is 'residential premises' for the purposes of reg 14 of the Noise Regulations, para (a) and para (c) of reg 14(2) are not satisfied in the circumstances of this case. In particular, the motorcycles would not be used in a reasonable manner and the noise resulting from the use would unreasonably interfere with the amenity of occupiers of premises receiving the noise.
As Mr Peake said:
The use of the motorbike track to the extent and frequency proposed in the application is not considered consistent with the noise levels that would otherwise be expected in an equestrian-based zone and in my view the noise levels would therefore be inconsistent with the zoned purpose of the land and inconsistent with the character and amenity that the [Shire's] Scheme has sought to establish for the area. This is reinforced by the ongoing complaints that have been received by the [Shire] by an abutting landowner.
The abutting landowner referred to by Mr Peake is Mr Hazelden. Mr and Mrs Hazelden purchased their property six years ago 'as it is situated in an equestrian area, and we keep and train horses'. Mr and Mrs Hazelden's house is set back approximately 120 metres to 130 metres from the common boundary with the site. Mr Hazelden gave the following evidence, which was not questioned or contradicted, and which the Tribunal accepts:
When the bikes are being used on the track [on the site,] it is not possible to hear the television in our house unless the back door to the house is shut. It is not possible to have a normal conversation on the telephone with the back door open. …
The noise from the motorbikes used to stir our horses up. One was injured when it ran into a fence to get away from the noise after revving of the motorbikes started.
On one occasion, at about teatime (6pm)[,] motorbikes were being used on the Robertsons' property and my wife went to calm one of our horses down to try to stop it from smashing into the fences. She was injured when she tried to calm the horse down. …
We had to sell the horses we originally kept on the property because they kept reacting to the noise from the motorbikes, and getting injured. We presently have a trotter and a girl's pony as they were purchased after the Shire ensured the use of the track ceased. These animals have also been spooked by the revving of motorbikes. …
I am aware that the proposal now made by the Robertsons seeks approval for the use of the track for a maximum of two riders at any one time, for a maximum of two hours per day during daylight hours, but with no use on Tuesdays or Thursdays. But as stated previously the horses are there permanently (as it is a horse zone) and a family member is generally always home. Therefore there will still be a noise problem and the likelihood of injury to the horses from being spooked. …
The noise from the use of the track by up to two motorbikes, for up to two hours per day, is far too much. While the motorbike track is in use[,] it is impossible to not only enjoy a normal life in what is meant to be a quiet equestrian area[,] but we are unable to safely train and own horses on our property. This is the reason we purchased the property in the first place.
Having regard to this evidence, and assuming that a motorcycle is 'specified equipment' and that the site is 'residential premises' for the purposes of reg 14 of the Noise Regulations, the use of up to two motorcycles for up to 10 hours a week, including up to four hours on weekends, is not use in a reasonable manner in a locality zoned and generally developed for equestrian purposes. Furthermore, having regard to the contemplated duration and frequency of noise from the proposed development and the purpose for which the motorcycles would be used, namely, testing, tuning and running of motorbikes prior to competition, rather than the equestrian-based purpose of the zoning, the noise resulting from the use would unreasonably interfere with the amenity of an occupier of premises receiving the noise, namely, Mr and Mrs Hazelden.
Mr Robinson gave evidence that, in considering the potential impact of the noise, regard should be given to both the existing and likely future amenity of the area and, in particular, to the fact that the site is located approximately 500 metres from future industrial land, 150 metres from a commercial trotting track and with frontage to a significant rural road. However, the fact that the site is 500 metres away from future industrial land and 150 metres from the trotting track does not make the likely noise impact of the proposed development in any way acceptable. The extent of noise impact from possible future industrial development half a kilometre away is entirely speculative. The nature of noise from a trotting track is different to a motorcycle track. Noise emissions from vehicles operating on roads are not subject to the Noise Regulations: see reg 3(a).
Mr Robinson also said that he was aware that, historically within the Shire, residents on land of more than 1 hectare in area have used motorbikes for private recreation purposes, in most cases riding along internal firebreaks, and that, given the size of land parcels in the area, some noise from motorbikes can and should be anticipated. However, there is no evidence of any lawful, or even unlawful, motorcycle track in the locality of the nature proposed in the development application.
Mr Robinson also sought to draw in aid the fact that five out of the eight adjoining landowners have supported the application. However, as Barker J said in Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 (Sunbay) at [30]:
Planning law 'is concerned with the use of land – and not with the identity of the user': per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. The identity of those who undertake development and those who are affected by it are likely to change during the lifetime of a development. The task of a planning consent authority, including the Tribunal on review, is to consider the objective impact of a development on the existing and, where relevant, likely future amenity of the locality, including impact on adjoining or adjacent properties, irrespective of current ownership arrangements.
Objectively determined, the impact of the proposed development on the existing and likely future amenity of the locality is unacceptable. Significantly, the site and adjoining properties constitute half of a group of lots that have been specifically zoned 'Special Use' for equestrian‑related purposes. The zoning contemplates residential use associated with equestrian purposes. The evidence clearly indicates that the noise that has been generated by the riding of motorcycles on the existing motorcycle track has had significant adverse impacts on residential amenity and the wellbeing of horses. The amenity of the locality is not likely to change. While the proposed development would limit the use of the proposed modified motorcycle track to up to 10 hours per week during daylight and to no more than two riders at any one time, as Mr Hazelden said, the horses are present at all times and a family member is generally always present.
Finally, Mr Robinson suggested a condition requiring the construction of a bund wall adjacent to the western boundary of the site. However, as Mr Peake observed, given the proximity of the proposed modified motorcycle track to the boundaries of the site, the construction of a bund 'would be impractical unless the track was redesigned in a manner that provided a greater setback from the side boundary'. Furthermore, as Mr Peake observed, a potentially substantial bund 'would … tend to reinforce the inappropriateness of the track in an equestrian‑based area'.
It follows that reg 14 of the Noise Regulations does not relevantly exempt the proposal from the operation of reg 7 of the Noise Regulations. The noise experts agreed that the proposal does not comply with the prescribed standard for noise emissions in reg 7 of the Noise Regulations. On either of their evidence, the exceedance would be substantial.
As Barker J held in Sunbay at [41]:
[S]ubject to any applicable planning provision to the contrary, evidence of likely non-compliance by a development with the Noise Regulations in a planning assessment might well indicate that the noise generation of the development will give rise to an adverse impact on the amenity of the locality.
In this case, the likely exceedance by the proposal of the prescribed standard for noise emissions under reg 7 of the Noise Regulations by a significant degree indicates that the proposed development is unacceptable in relation to noise impact.

Is the proposed development consistent with the zoning?

The Tribunal accepts Mr Peake's evidence that 'there is an obvious incompatibility between equestrian uses and the motorcycling activity[,] and the use of land for each of these two uses would result in significant differences in terms of character and amenity'. This opinion is supported by Mr and Mrs Hazelden's experience about horses being 'spooked' and injured as a result of the use of the existing motorcycle track.
Furthermore, the area comprising the track is a substantial part of the site which would not be available, or, at least, not readily available, for equestrian purposes.
Finally, Mr Robinson expressed the opinion that 'the compatibility of the zoning is … demonstrated by the number of landowners in the vicinity that own and use private motorbikes on their property for recreation purposes'. However, as noted earlier, there is no evidence of any lawful, or even unlawful, motorcycle track of the nature proposed in the development application in the locality.
It follows that the proposed development is inconsistent with the zoning and, in particular, with the Special Provision applicable to the site and surrounding properties that they may only be used for training, trotting and stabling of horses and associated activities.

Determination in relation to development application

Development approval under TPS 4 is required for the carrying out of the proposed development involving the proposed modified motorcycle track. However, the proposed development is not capable of approval. If, however, the development application were capable of approval, then, for reasons discussed earlier in relation to noise impact and zoning, the application would warrant refusal in the exercise of discretion.

Determination in relation to directions

In Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 (Morea) at [63], the Tribunal referred to five important matters for consideration in the exercise of discretion as to whether a direction should be given under s 214 of the PD Act. These considerations are as follows:
•it is in the public interest of orderly and proper development (including use) of land that planning laws should generally be complied with. It is expected that, normally, those who use or physically develop land should comply with the planning legislation and any applicable approval in relation to that activity;
•the impact of the contravention of the scheme on the affected locality and environment;
•the factual circumstances in which the contravention of the scheme took place;
•the time which has elapsed since the development was undertaken in contravention of the scheme; and
•the expense and inconvenience which would be involved in the remedying of the contravention of the scheme.
Having regard to these matters for consideration, the Tribunal considers that each of the directions should be confirmed.
It is in the public interest that planning laws should generally be complied with. Mr and Mrs Robertson have carried out development, namely, the construction and use of the existing motorcycle track, without development approval.
The impact of the contravention of the Scheme on the affected locality and environment is apparent from the evidence of Mr Hazelden referred to earlier. The impact of the contravention is unacceptable in relation to noise.
There is nothing in the factual circumstances in which the contravention of the Scheme took place which would warrant the setting aside of the directions.
While a substantial period of time has elapsed since the construction of the original multi-purpose track in the early 1990s, considerable additions and modifications were made to the track in late 2006 or early 2007. The Shire acted reasonably in investigating the complaint received in early 2008 and in issuing the directions to abate the subject matter of the complaint.
There will no doubt be considerable expense and inconvenience in remedying the contravention of the Scheme. Although I consider that a period of three months, rather than 28 days, should be given for compliance with the first direction to remove the development and reinstate the land, the expense and inconvenience of remedying the contravention does not warrant that the unlawful development should remain.
As the Tribunal observed in Morea at [62], the factors which guide or inform the exercise of discretion under s 214 of the PD Act cannot be exhaustively stated. A further factor which, in my opinion, is relevant in the present case is that the physical alteration of the site for the purposes of the existing motorcycle track precludes, or at least impedes, the use of the northern part of the site for equestrian purposes. Given that the site and 15 other lots in the vicinity have been specifically zoned for equestrian purposes, it is appropriate that the site should be restored as nearly as practicable to its condition before it was altered for the purposes of the track and therefore be available for equestrian purposes.
Finally, it is noted that in the application for review, Mr and Mrs Robertson contended that the first direction was too broad to be able to be complied with and did not provide sufficient particularisation. This contention was not advanced in their evidence or submissions. In any case, the Tribunal considers that the first direction is clear and able to be complied with. Compliance with the direction requires the removal of all earth, gravel, topsoil and other materials between the shed to the north of the house and the northern boundary of the site that have been taken to that part of the site since the early 1990s for the purpose of constructing the motorcycle track. The direction also requires the restoration of the site as nearly as practicable to its condition immediately before physical works for the purposes of the original multi‑purpose track commenced in the early 1990's. This requires the original contours of the site to be re‑established as nearly as practicable once the imported material has been removed.

Orders

The Tribunal makes the following orders:
1.The applicants have leave to amend the application to include an application for review of the respondent's decision made on 31 October 2008 to give a direction to the applicants under s 214(2) of the Planning and Development Act 2005 (WA) requiring the applicants to immediately stop, and not recommence, the use of the motorcycle track on Lot 21 on Diagram 73689 for the riding of motorcycles.
2.The application for review is dismissed.
3.The direction given by the respondent to the applicants on 20 August 2008 under s 214(3) of the Planning and Development Act 2005 (WA) requiring the applicants to:
(i)remove the motorcycle track consisting of berms, tabletops, ski jumps, ramps, bunds, a bridge/flyover with tunnel and any associated raised earthworks (development) within 28 days of the service of the direction, and
(ii)restore Lot 21 on Diagram 73689 as nearly as practicable to its condition immediately before the development started to the satisfaction of the Shire,
is confirmed but varied to require the applicants to remove the development and to restore Lot 21 on Diagram 73689 under the direction by 4 December 2009.
4.The direction given by the respondent to the applicants on 31 October 2008 requiring the applicants to immediately stop, and not recommence, the use of the motorcycle track on Lot 21 on Diagram 73689 is confirmed.
5.The decision of the respondent made on 28 May 2009 to refuse development approval under the Shire of Murray Town Planning Scheme No 4 for a motorcycle track at No 64 (Lot 21) Greenlands Road, Pinjarra is affirmed.

I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER