The Planning Application Process

Overdue Planning Decision 

23 April 2010

In South Australia, planning decisions are generally made at the local level by Council-initiated Development Assessment Panels (DAP).

A long-running case in the Clare & Gilbert Valleys Council, extending for more than 4 years, was resolved on 19 March 2010 by the Council’s DAP. The issue was “Use of (Council) land for motorcycle enduro track and associated club activities”. The land is about 40 ha in area and lies adjacent to the western urban fringe of Clare township. The applicant was Clare Motorcycle Club Inc. (CMCC), which had unencumbered access to the subject land since about 1984. 

There has been considerable anger and conjecture recently about the decision to refuse use of the land by CMCC. Many comments have been made publicly without full possession of . Described in detail below are the circumstances surrounding the case, and includes my objective assessment.all the facts

How has it come to be that after more than 20 years of use of the land that the CMCC was finally required (in 2008) to seek Development Approval?

One reason is that at the expiry of the CMCC 10 year lease in 2005, a number of affected residents who were concerned about noise emanating from the land during motor cycle racing events decided to examine the conditions of use of the land. It was discovered that no Development Approval had ever been given. Furthermore, there had been several breaches of procedure (and possibly of law) by issuing a lease in 1995 without having gone through the proper planning process. As was discovered later (in 2009) there had been a succession of breaches of protocols.

An additional reason is that during all the years that CMCC had used the land Council officers had either not realised that planning approval was necessary, or that it was a case of “letting the sleeping dog lie”. Such a situation could not continue forever – because there will always come a day when it would be brought to account. This is what happened, and there are many lessons that need to be learnt by Council, its officers, users of land, and the wider community.

The most instructive lesson to have arisen from this case is that fairness and correctness must be applied in accordance with planning law and Council’s Development Plan. 

Read on for some details of the case. It is hoped that what is described is instructive about good leadership, foresight, and fair and proper application of planning principles.

Background About Past Decisions

From the very beginning (in 1984) Council (and the previous District Council of Clare) have made a succession of errors in allowing the use of the subject land for motorcycle racing. The land is owned by Council – i.e. the community. As with any use of land, it is a requirement under the Development Act and Council's Development Plan to obtain Development Approval. This was the case in the 1980's, and it is the case today. Although Council Committee approval was obtained in 1989 (some 5 years after first using the land), Council officers of the day did not advise Council members that Development Approval was necessary. This occurred again in 1995 when a lease was issued to CMCC. It occurred again in 1998 when the land incurred rezoning. It happened during the course of the lease, which incidentally had a number of conditions affixed to it, and were largely not enforced by Council staff.

At the expiry of the lease in 2005, Council was about to embark on lease renewal when it was advised that Development Approval was required so that a legal right to use the land was obtained. This began the next round of inappropriate decision-making, which has taken nearly 4 years to resolve. On 15 March 2007 the Clare Region Environment Focus Group (CREFG), which consisted of around 20 or so citizens, was concerned about the use of the land and the lack of environmental care, and subsequently attended a Council workshop to articulate its concerns. These concerns raised issues of non-compliance with the Natural Resources Management Act (because of soil disturbance and erosion that has occurred), Environment Protection Act (because of a lack of “general environmental duty” of care), and Council’s own Development Plan.

CREFG wrote to all Councillors to offer a solution. Here is a part of what was stated:


Council has an opportunity to avoid potential future conflict. There is no compatibility between motorbike racing and the environment at this locality. The conflict has not just surfaced overnight – it has been there for years. Contemplate what may happen in 2 years, 5 years, 10 years from now with respect to activities on the property.
There is an alternative approach.
Although the Club could be located to private land, Council is encouraged to examine its land bank to determine suitable land options for the Club. Has this happened? Has the Club been approached in relation to this?  By way of example, there is a site that may be suitable and that is on Council land containing the old quarry adjacent to the Mintaro-Manoora Road about 1 km east of Martindale Hall. There may be other suitable sites.
The final part of the solution is what then happens to Council’s Benny’s Hill property. Allow us to offer the following prospect.

*  Develop a land rehabilitation plan (CREG has offered to do this)
*  Introduce weed management strategies
*  Revegetate the land by a range of methods (e.g. direct seeding, natural revegetation,    
   but most importantly involvement of the community in tree/shrub/groundcover planting)
*  Participate in the “Carbon Neutral” program offered by Trees for Life and Men of the    
   Trees (WA) – this initiative is a way that Council can offset its carbon dioxide emissions
   from all its sources.


Unfortunately, CREFG's plea was ignored because the Council continued to allow “unlawful” use of the land until last year (2009). This “unlawful” status was confirmed by at least two independent legal opinions obtained by Council (see discussion below). It is of great concern that these opinions were ignored, as there was a risk exposure to Council and its ratepayers if an accident had occurred during a motor cycle racing event and an insurance claim was raised. It is conceivable that because no legal right to occupy the land had been obtained then it may have placed a potential liability on Council – including its officers and the ratepayers. A very worrying scenario indeed!


Emerging Conflicts and Final Decision

Foreseeing serious conflicts emerging from continued use of the land by CMCC, I met with Council’s CEO at the time in March 2007 and urged him to get all parties to the table to thrash out the major issues. Unfortunately, this was ignored. In January 2009 I approached the present CEO with the same plea, but this did not have any result. During 2007 I also had discussions with Council's former Manager of Environmental Services about how to resolve the situation of the use of the land – no result there. I raised the issue with the Mayor (when he first came to office) and a councillor about resolution of the problems. I offered to meet with CMCC's President on-site in Easter 2007, but this did not eventuate. In May 2008, I attended another Council meeting about the land use matter, and had a discussion thereafter with members of CMCC.
It was apparent that Council was not interested in resolving the issue, for whatever reason, and the CMCC was not interested in relocating. Together with another concerned citizen, I met with Council's Principal Planner towards the latter part of 2009, but already by this time it seemed that a course of action was in motion.

Legal Issues

The key issue was that Development Approval was necessary so that a lease could be given legal status. Without it, there was no legal right to use the land. During 2007 Council obtained legal opinions on the use of the land – these opinions asserted that CMCC was using the land “unlawfully” and that “Council should be examining alternative arrangements for continued activities of the CMC.” This is the nub of the problem.

In the years since expiry of the lease in 2005, it seems very clear that Council resisted the opportunity to establish real and meaningful alternative arrangements for CMCC. One of the legal advices stated - “we understand that the development is in a Landscape Zone and Rural Horticulture Zone in the Council's Development Plan and that the use may face certain difficulties in meeting the provisions of that particular zone.” Aside from this warning, I and others also cautioned about the risk posed by use of the land for motorcycle racing. This was the time when rational, collective thought should have been applied.
Ultimately Council had no choice but to require Development Approval to be obtained, as is the case with any other organisation, individual, or business wishing to use land in a particular way.

The Decision

In January 2009 the application for Development Approval was advertised. Disappointingly, it took 15 months for a decision to finally be made. My submission relating to the Application examined objectively the appurtenant documents. On balance I could not see how Development Approval could be granted because the use of the land could not meet numerous Objectives and Principles in the Development Plan, and eventually this is how the DAP saw it as well. Other representors (as the “objectors” are referred) had their own objections, but I was deeply concerned about the , and the . Council's own record in these respects has been diminished – they need to rectify this situation urgently.
The fallout from the DAP decision has resulted in anger from a section of the community. It should never have reached this point. Good leadership, foresight, environmental awareness, the ability to negotiate sensibly, and the capacity to accept change - from all participants - would have overcome the divisions that occurred. I warned Council of the latter several years ago. Instead, there have been no winners in this sorry saga – everyone has lost out – Council because of its poor handling of the whole affair stretching back to the 1980's, CMCC because of its intransigence to accommodate change and to plan for the future, and the few aggrieved objectors and the DAP who are now the subject of attack.


Conclusions

CMCC and other community supporters need to realise that motorcycle racing on the doorstep of Clare's urban area is not acceptable in the 21st Century. It is not acceptable where there is a conflict with urban areas. EPA's own “Separation Distance Guidelines” requires 3000 metres from housing. And incidentally, EPA’s submission on the Application was flawed because it overlooked its own Guidelines.

CMCC must abide by all planning laws, as does the rest of the community.

I have said and written repeatedly that CMCC deserves the assistance of Council to find another venue. CMCC needs certainty about its future, an aspect that it has never enjoyed at the Benny's Hill site. Several other Council lands are available that should be examined. Leadership must be shown.

In my experience there is a significant bank of goodwill in the community that could become involved in restitution of the Benny's Hill land. This site could become much more than allowing casual use – it needs to be opened up to the wider community.
As an environmental management consultant, I have become very concerned at the lack of action about environmental restoration in the Clare Valley region and beyond – time is running out for some elements of biodiversity, yet who would know this?

The Bennys Hill land is a landscape management and biodiversity issue.


The next part of this Case Study is "The Intervening Period".

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