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Development Assessment Commission v South Coast Motocross Club Inc [2006] SAERDC 8 (19 January 2006)

Last Updated: 20 January 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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DEVELOPMENT ASSESSMENT COMMISSION v SOUTH COAST MOTOCROSS CLUB INC

Judgment of Her Honour Judge Trenorden (ex tempore)

19 January 2006

LOCAL GOVERNMENT - TOWN PLANNING

Application to vary interim Order - community organisation - prejudice likely to be suffered taken into consideration - interim Order lifted.
Development Act 1993, referred to.
CPG Pty Ltd v Alaros Pty Ltd [1999] SAERDC 18; Garner v R & D Linkevics [2000] SAERDC 75, considered.

DEVELOPMENT ASSESSMENT COMMISSION v SOUTH COAST MOTOCROSS CLUB INC
[2006] SAERDC 8

THE COURT DELIVERED THE FOLLOWING EX TEMPORE JUDGMENT:

1 On the basis of what was before me on an ex parte application by the Development Assessment Commission (DAC), the Court made an interim order against the South Coast Motocross Club Inc (the Club) requiring it to refrain from permitting the use of motorbikes of engine capacity greater than 100 cc on its track. In effect, that interim order required the Club to comply with condition numbered 4 in the only current consent held by the Club under planning legislation.
2 The Club has sought to, in effect, revoke that order so as to enable it to continue to operate as it has been, pending resolution of an application that is before the relevant authority - the Onkaparinga Council.

3 There is a number of matters I have to take into account in deciding whether to allow the interim order to continue or to set it aside. I do have a discretion. To a significant extent, the considerations I have to take into account were set out in the two judgments of this Court that Mr Hilditch referred me to, namely CPG Pty Ltd v Alaros Pty Ltd [1999] SAERDC 18 and Garner v R & D Linkevics [2000] SAERDC 75. I have to look at all the circumstances surrounding the matter and must not have any pre-determined views.

4 There is, on the face of it, an alleged breach of a condition and therefore a breach of the Development Act 1993. That is accepted and that is the basis on which an order has been made that a summons issue. In terms of the breach, however, there is no final determination on that, that remains to be dealt with and I cannot reject the application solely on the basis that there appears to have been a breach of the Act.
5 I have to look at the nature of the breach, the extent of the prejudice that is likely to be suffered and what is just in the circumstances. The breach is that motorbikes - to use a general term - greater than 100 cc are being ridden on the land. That is the extent of the breach.
6 What is the extent of the prejudice being suffered? There is no evidence of complaints about bikes of greater than 100 cc being ridden on the land. It is fair to say that - and I took this into account originally - there were representations made to the DAC as part of its assessment of the Club’s application that was before it early in 2005. However, the DAC made its decision and no evidence has been put before me of any complaints either before or since that time about the operations or noise from the operations by the Club on its land. Now, I say ‘its land’; I mean the land it is operating on.
7 I have seen as part of the documents put before me the views of the Environment Protection Authority in relation to noise generated by the operations of the Club on the land; I have also seen a report of Bassett Acoustics. Without making any final decision about noise, because that is not my function today, it does seem to me that the noise generated from the operations by the Club is unlikely to be of significant concern in the general locality.
8 While there appears to have been a breach, I note particularly the evidence of Mr Burke that the Club has continued to operate at least since the DAC decision in May 2005, with what appears to be the tacit approval of Mr Freeman, an officer in Planning SA and having some official capacity with the DAC, as Mr Burke put it, and with Mr Sutcliffe, a senior officer at the Onkaparinga Council. I simply note that as a relevant factor in relation to the alleged ongoing breach.
9 I note that while there is an alleged breach and perhaps to some extent - this does not go to the final decision but perhaps to some extent an admitted breach - this is not a situation where the respondent is a commercial enterprise seeking to, or profiting from the breach. I have to take into account all of the circumstances and the circumstances here are that this is an incorporated association, it is a community organisation that facilitates, or that provides opportunities for persons including particularly young persons - called ‘juniors’ by Mr Burke - to engage in recreational pursuits, namely the riding of motorbikes (again, I use a general term) in a controlled environment under controlled circumstances on an off-road facility. I take that into account.
10 I take into account that the Club has recently - and I particularly note that this has occurred since the order was made - taken steps to either enliven or further its application to vary the condition which it is said to be in breach of. I do not have available to me what has passed between the relevant authority and the Club over the period of time since the DAC decision and its planning consultant’s letter to the Council dated 17 January 2006, but I do note that Mr Burke has been in communication with Mr Sutcliffe at the relevant authority and that the application is alive, according to what is before me.
11 Perhaps it is a case where the Club needed to be prodded to pursue its attempt to regularise the situation - I don’t know - but certainly what I have before me now is that further information has been provided to enable the relevant authority to assess the live application before it to vary the condition, the breach of which is complained of. If the order remains, I note that in particular the young people, the juniors, will be prejudiced. Those who have wished to, have not been able to attend the Club’s facility for practice sessions, which I have already noted are in a controlled environment, while the order has been in force. They will be further prejudiced if the order is to remain in force.
12 Lifting the order - and I say this quite clearly to the Club, Mr Hilditch - will not endorse the activity insofar as the machines used have a capacity greater than 100 cc. That endorsement has to come from the relevant authority, and it may well be ultimately, once these proceedings are heard and final orders are made, that the activity insofar as it may be in breach of the law will be stopped.
13 Finally, I note that if I lift the order the applicant is not precluded from taking any action as it sees fit. Lifting the order will merely mean the Club can continue to operate as it has been operating. However, if it is in breach of the law it will continue in breach and it will have to face the consequences of continuing to operate in those circumstances. Thus, even if I lift the order the Club must understand that it remains at risk if it continues to operate in breach of a condition of its consent.
14 In all the circumstances I have decided there is no sufficient basis for me to continue the operation of the order in light of the application to lift it. In so deciding I have taken into account all of the circumstances I have mentioned. The effect of my decision is that the order numbered 2 that I made on 11 January 2006 ceases forthwith and no order is made in its place.
15 I would simply now say to the Club that it needs to pursue with great vigour the resolution of the application now before the City of Onkaparinga.

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4	There is, on the face of it, an alleged breach of a condition and therefore a breach of the Development Act 1993. That is accepted and that is the basis on which an order has been made that a summons issue. In terms of the breach, however, there is no final determination on that, that remains to be dealt with and I cannot reject the application solely on the basis that there appears to have been a breach of the Act.
5	I have to look at the nature of the breach, the extent of the prejudice that is likely to be suffered and what is just in the circumstances. The breach is that motorbikes - to use a general term - greater than 100 cc are being ridden on the land. That is the extent of the breach.
6	What is the extent of the prejudice being suffered? There is no evidence of complaints about bikes of greater than 100 cc being ridden on the land. It is fair to say that - and I took this into account originally - there were representations made to the DAC as part of its assessment of the Club’s application that was before it early in 2005. However, the DAC made its decision and no evidence has been put before me of any complaints either before or since that time about the operations or noise from the operations by the Club on its land. Now, I say ‘its land’; I mean the land it is operating on.
7	I have seen as part of the documents put before me the views of the Environment Protection Authority in relation to noise generated by the operations of the Club on the land; I have also seen a report of Bassett Acoustics. Without making any final decision about noise, because that is not my function today, it does seem to me that the noise generated from the operations by the Club is unlikely to be of significant concern in the general locality.
8	While there appears to have been a breach, I note particularly the evidence of Mr Burke that the Club has continued to operate at least since the DAC decision in May 2005, with what appears to be the tacit approval of Mr Freeman, an officer in Planning SA and having some official capacity with the DAC, as Mr Burke put it, and with Mr Sutcliffe, a senior officer at the Onkaparinga Council. I simply note that as a relevant factor in relation to the alleged ongoing breach.
9	I note that while there is an alleged breach and perhaps to some extent - this does not go to the final decision but perhaps to some extent an admitted breach - this is not a situation where the respondent is a commercial enterprise seeking to, or profiting from the breach. I have to take into account all of the circumstances and the circumstances here are that this is an incorporated association, it is a community organisation that facilitates, or that provides opportunities for persons including particularly young persons - called ‘juniors’ by Mr Burke - to engage in recreational pursuits, namely the riding of motorbikes (again, I use a general term) in a controlled environment under controlled circumstances on an off-road facility. I take that into account.
10	I take into account that the Club has recently - and I particularly note that this has occurred since the order was made - taken steps to either enliven or further its application to vary the condition which it is said to be in breach of. I do not have available to me what has passed between the relevant authority and the Club over the period of time since the DAC decision and its planning consultant’s letter to the Council dated 17 January 2006, but I do note that Mr Burke has been in communication with Mr Sutcliffe at the relevant authority and that the application is alive, according to what is before me.
11	Perhaps it is a case where the Club needed to be prodded to pursue its attempt to regularise the situation - I don’t know - but certainly what I have before me now is that further information has been provided to enable the relevant authority to assess the live application before it to vary the condition, the breach of which is complained of. If the order remains, I note that in particular the young people, the juniors, will be prejudiced. Those who have wished to, have not been able to attend the Club’s facility for practice sessions, which I have already noted are in a controlled environment, while the order has been in force. They will be further prejudiced if the order is to remain in force.
12	Lifting the order - and I say this quite clearly to the Club, Mr Hilditch - will not endorse the activity insofar as the machines used have a capacity greater than 100 cc. That endorsement has to come from the relevant authority, and it may well be ultimately, once these proceedings are heard and final orders are made, that the activity insofar as it may be in breach of the law will be stopped.
13	Finally, I note that if I lift the order the applicant is not precluded from taking any action as it sees fit. Lifting the order will merely mean the Club can continue to operate as it has been operating. However, if it is in breach of the law it will continue in breach and it will have to face the consequences of continuing to operate in those circumstances. Thus, even if I lift the order the Club must understand that it remains at risk if it continues to operate in breach of a condition of its consent.
14	In all the circumstances I have decided there is no sufficient basis for me to continue the operation of the order in light of the application to lift it. In so deciding I have taken into account all of the circumstances I have mentioned. The effect of my decision is that the order numbered 2 that I made on 11 January 2006 ceases forthwith and no order is made in its place.
15	I would simply now say to the Club that it needs to pursue with great vigour the resolution of the application now before the City of Onkaparinga.