Intervening Period

"Existing Use" Issue

In or prior to September 2009, the issue arose within Council of "existing use". Now, this is a perplexing matter, and one that has rightly been examined by Council because of the period of time that the Clare Motor Cycle Club had used the subject land. Here's my response to Council's Principal Planner at the time.


An Opinion Prepared By Des Menz

14 September 2009

What is the definition of “existing use” and “existing use rights”? These are two separate but related matters. I'm not able to find where they are defined in SA statutes, or at Planning SA's website. Interstate statutes provide definitions and guidance.

Nevertheless, if the use of the subject land has been lawfully obtained – i.e. with development consent - then there is possibly a lesser argument about the validity of the historic occupation of the land. It is understood that (Clare Motor Cycle Club) CMCC began occupation of the land about 1984. Development legislation was in force at the time. No development approval means no lawful use of the land.

Let's now consider a possible hierarchy of a lawful occupation - Development Approval, Council resolution, contract, agreement. If none of these was obtained by CMCC at the start of using the subject land (as I understand they were not), then there would be tangible evidence that “existing use rights” have not been consummated and in this respect, legal occupation of the land would not have been established.

In addition, a period of discontinuance of use occurred some years ago, around 2002-03 – such period extending for at least one year, and conceivably longer. It could be argued that there was an abandonment of the occupation of the land, and to then subsequently re-occupy the land could be deemed to be in contravention of the Development Act. This assertion is strengthened by the fact that no evidence has been supplied about the lawful use of the land.

In subsequent years, when zoning changes occurred on the subject land (in 1998 or thereabouts), the opportunity should have been taken to re-assess the appropriateness of the use of the land at the time including the compatibility of that use with the zones that were being created – the Horticulture Zone and the Landscape Zone.

If the use of the land was deemed to be suitable for motor racing in these zones then it should have been accommodated in the Development Plan amendments that resulted in the zoning changes in 1998. It was not.

It is contended that neither a “right” been established, nor what rights have been protected, how they are repealed, or how they are lost. In the latter case, although an agreement (a lease) existed between 1995 and 2005, it was not supported by legal planning instrument – in other words, an agreement was forged between Council and CMCC with the former not requiring (again) to obtain Development Approval. It is therefore contended that this agreement did not establish a lawful right to use the land. It could conceivably expose Council to litigation by CMCC, because it would be expected that Council would know the law (i.e. the Development Act 1993) that requires Development Approval to be obtained before assigning a lease of Council land. It has possibly placed CMCC in an invidious position.

If CMCC is to be favoured with “existing use rights” then it will need to be established that those rights do/did exist, and that such use has been continual and lawful.

It is clear in my mind that there is no “existing use” and no “existing use rights” as fundamentally there has been no lawful consent to use the site.

Council has unfortunately made the following irrefutable mistakes over the years.

  • Not requiring Development Approval in 1984 (or thereabouts)
  • Not reviewing the terms of occupation of the subject land for a period of 11 years (from 1984 to 1995)
  • When allowing a 10 year lease with CMCC in 1995, not requiring Development Approval to use the subject land
  • On expiry of the lease in 2005, allowing continued use of the land without Development Approval
  • Contrary to legal opinion, allowing continued use of the land by resolution of Council

In my opinion, these actions have shown either ignorance of the law or contempt for it. Council not only should uphold the law but also should be seen to be upholding the law.

Council's actions have caused an inflammatory situation that could and should have been resolved years ago.

I again appeal to Council to assist the CMCC to find another venue and avoid further divisions in the community.

Signed ... Des Menz  

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The Principal Planner's Decision Of "Reduncy" Of The Planning Application

As time passed, there seemed to be an ever-increasing intransigence to solve the whole issue. It became apparent that every avenue was being explored to knock out the planning process. Here was the latest, described in my letter to Council.

24 November 2009

Development Assessment Panel and Mayor & Councillors
Clare & Gilbert Valleys Council
4 Gleeson Street
Clare SA 5453

SUBJECT : Development No. 433/178/08 (Clare Motorcycle Club activities)

Dear Panel members, Mayor & Councillors

Following an absence from Clare for the past two weeks, I have returned to read a letter dated 6 November 2009 from David Case, Council's Principal Planner, declaring his opinion that the subject Development Application is redundant because of a decision made in 1987 about the use of the land by Clare Motorcycle Club – Adelaide Buggy Club Inc. That opinion, in my view, is flawed and I offer a number of reasons.

Before I continue, I take the opportunity to express the following.

This whole matter has gone on for far too long, and has merely continued the uncertainty for the Clare Motorcycle Club and for community members affected by the activities at the subject land. I will say again, as has been stated orally and in writing by me on at least four times previously, that the Club deserves a site where it can conduct its activities with certainty well into the future. The present site does not allow that to occur.

It appears that no effort has been made to follow up with my suggestions about alternative sites, and consequently this lack of action and initiative by Council and its officers has continued to result in the unwarranted divisions amongst members of the community.

Council can solve this whole matter immediately by supporting the establishment of a new facility at another site – a facility that can be one of the best in rural SA.

Now to the various maters of concern. My interest in this matter is about good planning outcomes and the observance of proper decision-making processes. What has gone wrong?

  • There is no, and has never been any, Development Approval to use the subject land by CMCC. As I understand the situation, the former DC of Clare's Works and Machinery Committee dealt with a request in March 1987 to allow use of the land by Clare Motorcycle Club – Adelaide Buggy Club Inc., approval of which was subsequently resolved by the Council of the day. Although not handled by the appropriate committee (the Planning and Building Committee), this in no way is Development Approval. As with the use of any Council land by an outside organisation, the correct procedure is to obtain Council approval first, followed by planning approval. One follows the other, and in the subject case, the latter did not occur. This fact seems not to have been understood by Council staff. Procedures may have been conducted a little differently back in the 1980's, but I was employed in local government then and there were particular processes about the use of Council land by organisations that had to be observed.
  • If the approval of the initial step was given to Clare Motorcycle Club – Adelaide Buggy Club Inc., it appears that this is a differently named entity to the one that exists today, the Clare Motorcycle Club Incorporated. The decision of March 1987 would therefore be made technically redundant – it would not apply to the actual named entity today.
  • Council has ignored the legal opinions from two separate legal firms about the use of the land by CMCC. It is absolutely clear that Development Approval is required for use of the land for motorcycle activities. Council has placed itself in a situation of risk by allowing an unlawful use of the site. As a principal planning decision-maker, Council should be seen to be upholding the law, as well as carrying it out. The consequences of not doing so are far-reaching.
  • The apparent ambivalence of Council and officers for almost three years now about examining an alternative for the Club, as well as the continual support for retention of the existing site, are mystifying to say the least. Good planning looks a long way into the future, it considers zoning requirements, social needs, and potential alternative uses of land, amongst many factors. Council's decision to assist with the relocation of Paine Crash Repairs from Gleeson Street a number of years ago is a case in point. The results are clear today. The same approach should apply with CMCC and the subject land. I have written and spoken publicly, and discussed with Council officers during the past three years about combining all motor sports in the region to a single site away from sensitive land uses. This is the way forward.
  • For “Motor Racing”, EPA separation distance is 3000 metres between a “sensitive receptor” (i.e. a house) and the land (refer to EPA Guidelines for Separation Distances 2007). The Guidelines state in the Introduction :

“The Guidelines for separation distances are for the use of the Environment Protection Authority (the EPA), planning authorities, developers,  planning consultants and the community as a tool in the development application processes for new or expanding developments. The recommended
separation distances are to be applied in the assessment of development proposals to ensure that incompatible land uses are located in a way that 
minimises impacts caused by noise, odour, polluting air emissions and/or water polluting activities.” 

Today's modern society demands greater planning for the future. Clare will continue to expand, thus it makes no sense to continue with a land use that is clearly

in conflict with commonly accepted separation distances. To deny this is to deny quality of life measures. These issues appear not to have been countenanced in

 the Principal Planner's opinion about the use of the subject land.

  • Given the above comments, and what has and has not happened to date, it is entirely inappropriate for a decision not to be made on the CMCC Inc. Development Application. The application has been running since 14 January 2008 when it was first advertised – a period approaching two years. It is an unacceptable period to consider the Development Application and denies all parties appropriate justice.

In conclusion, I have given considerable thought about whether it is right and proper to allow motor cycle activities to continue at the subject site, and whether these activities could co-exist with alternative uses of the land. I have searched for answers and can not find any that would support the case for Development Approval. In addition, I can not agree with the Principal Planner's opinion in his letter to me.

The Development Assessment Panel is charged with the responsibility to make a rational planning assessment of the Application, and it should proceed to do that.

Again, I implore Council and the DAP to look to the future with the use of the subject land. CMCC deserves a venue that allows its members to attain their aspirations and goals without the impediments inherent with the subject site.

Signed ... Des Menz

Postscript : Replies or acknowledgement to these two letters was not made by Council.

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During the early months of 2010 there were a number of letters to the local newspaper on the Clare Motor Cycle Club issue. Here is a reply to one of them, made privately in the interests of explaining about the planning and decision-making process. I have not identified the recipient of the letter.

9 April 2010


I am writing about your letter to Northern Argus ... relating to the Clare Motorcycle Club.

In the past week or so there have been a number of letters to the newspaper about Council's Development Assessment Panel decision. It is not my wish to inflame the whole CMCC matter through the pages of Northern Argus – there have been some incorrect statements made in some of these letters. Nevertheless, you are correct in your letter by saying that “Council has to take responsibility for this issue”.

As a representor objecting to the use of the land for motor cycle activities I would like to offer some further points of clarification to you.

  1. 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.

  1. 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 5 years to resolve. On 15 March 2007 the Clare Region Environment Focus Group (CREFG), which consisted of around 20 or so concerned 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. 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. The final part of the solution is what then happens to Council’s Benny’s Hill property.
Allow us to offer the following prospect.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.

  • 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 submission was apparently overlooked, because the Council continued to allow use of the land until last year (2009).

  1. Foreseeing serious conflicts emerging from continued use of the land by CMCC, I met with Mark Goldstone (Council CEO at the time) in March 2007 to implore 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 Rob Veitch (Council's former Manager of Environmental Services) about how to resolve the situation of the use of the land – no result here. I have spoken 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, and the CMCC was not interested in relocating. I also met with Council's Planner towards the latter part of 2009, but already by this time it seemed that a course of action was in motion. 

  1. The key issue however was that Development Approval was required so that a lease could be given legal status. 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 all the years since expiry of the lease in 2005, it seems very clear that Council has 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.

  1. 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. In January 2009 the application for Development Approval was advertised. Disappointingly, it took 15 months for a decision to finally be made. My submission examined objectively the application and its 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 had their own objections, but I was deeply concerned about the need to follow proper process, and the need for environmental protection. Council's own record in these respects has been diminished – they need to rectify this situation urgently.

  1. The DAP decision has angered community members and has caused concern from people like yourself and those at Clare Medical Centre. 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 have now occurred. I warned Council of the latter several years ago. Instead, there have 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, the few aggrieved objectors and the DAP who are now the subject of attack.

My final words will be these.

  • 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. EPA's own “Separation Distance Guidelines” requires 3000 metres from housing. 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. Our Council needs to become involved. For your interest, my concepts for this land will be placed on my blog at in the near future.

(name), this has become quite a long letter, but I hope that it provides some clarification. As you may see, there has been substantial behind-the-scenes discussion to try to resolve the land use matter.

As always, I am available for discussion on any matter relating to the environment and our community.

Signed ... Des Menz"

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