ROBERTSON and SHIRE OF MURRAY

The case of Robertson and Shire of Murray involved a dispute over the approval of a development application by Mr and Mrs Robertson to modify their property for the construction of a motorcycle track. The land in question was zoned as a Special Use Equestrian-based Zone, allowing only for activities such as horse training, trotting, stabling, and residential use. The Shire of Murray refused the development application, citing concerns over noise, dust, and the potential for unreasonable interference with the amenity of neighbouring properties. The Robertsons sought review of the Shire's decision by the Western Australian Civil and Administrative Tribunal (WCAT). The key issues before the court were whether the proposed development required approval, whether it constituted 'development' or 'work' under the relevant planning laws, and whether it complied with the zoning and local planning scheme provisions. Additionally, the court considered whether the operation of the motorcycle track was incidental or ancillary to the residential or equestrian use of the land.

The WCAT examined whether the proposed motorcycle track was a 'development' or a 'work' that required approval under the local planning scheme. The court held that the use of the land for regular and specific motorcycle training and testing, particularly for competition purposes, was a separate and distinct use from residential purposes. Therefore, the proposed use did not constitute an incidental or ancillary activity to the residential use of the land. Furthermore, the court noted that riding off-road motorcycles on the track was not exempt from development approval under the Control of Vehicles (Off-road Areas) Act 1978 (WA). The court found that the regular use of the land for professional training and testing purposes, such as for motorcycle competitions, was not incidental or ancillary to residential use. Consequently, the proposed development required approval under the local planning scheme.

In its decision, the WCAT emphasised that the noise impacts of riding motorcycles on a track within close proximity to common boundaries in an equestrian-zoned locality were inconsistent with reasonable amenity expectations of nearby residents. The Tribunal found that the proposed use of the land for motorcycle training and testing, for up to 10 hours a week, including four hours on weekends, would unreasonably interfere with the amenity of neighbouring properties. The court also concluded that the proposed development was not consistent with the zoning of the land and was therefore not capable of approval under the local planning scheme. The WCAT upheld the Shire's direction to remove the motorcycle track and restore the land, as well as to cease use of the motorcycle track, finding that the direction was not too broad.