Addressing misconceptions about the approval and appeal process

There is currently a lot of talk on the closed Facebook page group Memories of Gatton about the proposed motocross facility and the opposition to it.  Unfortunately a lot of what is being said is based on misunderstandings or misinformation.

I think it's time to address some of the claims being made.

Only six people are opposing the motocross facility

232 people formally opposed the proposal during the Development Application process.

The advertising of the proposal in late November 2014 led to 232 objecting submissions being lodged with the Lockyer Valley Regional Council by the cut-off date in mid-December.  This was an incredible response, given that because of the way it was advertised the proposal did not begin to be known by more than the immediate neighbours until there were only 10 days of the public notification process remaining.  Had the process gone on longer there would have been many more objecting submissions.

Those objecting submissions will be considered by the Judge of the Planning and Environment Court who will decide whether or not the appeal should be allowed.

Only two supporting submissions were made.

When the developer (technically Drywound Pty Ltd, but it's sole shareholder is Colby Steer) lodged an Appeal in the Planning and Environment Court against the Council's unanimous refusal of the development application, the Lockyer Valley Regional Council was the "Respondent" i.e. they formally opposed the appeal which sought to overturn their decision.

Six members of the community nominated to become "Co-respondents" to the appeal.  That is, they agreed to respond alongside the Council, to oppose the appeal.  In effect, they stand as the representatives of the much larger group of those in the community opposing the motocross facility.

This is a particularly brave stance for ordinary people like retirees, farmers, and small business owners, because in 2012 the LNP State government overturned a long-standing principle that people who stand up for their rights in town planning appeals should only have to pay their own costs.  The LNP changed the law so that there is the potential for co-respondents to be required to pay the costs of the appellant.  Had this not been the case there would likely have been several tens of co-respondents, as in the Bella Creek moto park appeal in the Gympie Regional Council area some years ago, prior to the LNP changes.  By the way, like many motocross proposals these days the Bella Creek proposal did not go ahead.

In addition, a local community group also elected to become a Co-respondent in the appeal.

None of this changes the fact that the main respondent to the appeal is the Council, acting on behalf of the Lockyer Valley community, because they made a decision to refuse the application based on what was in the best interests of the whole community, not just the wishes of a single-interest group.

"The six complainants have hardly spent a dime..."

The six co-respondents have to raise the money to pay their solicitor, barrister, noise expert, koala ecology expert, and town planning expert.  As you would expect, this is an expensive proposition.

Luckily, because there is so much opposition to the proposed motocross facility, the community has been willing to assist with the costs and a large number of people (including the co-respondents) have contributed several tens of thousands of dollars.

As the number of objecting submissions showed, the proposal is opposed by a community, not by six individuals.

The motocross proposal comes from a "locally owned and operated business"

The proposal comes from a company with only one shareholder.

That company is not registered to an address in the Lockyer Valley Regional Council area.

The sole shareholder does not live in the Lockyer Valley Region and does not own any operating business in the area.

Those opposing the motocross proposal are putting a financial burden on the community by way of Council's legal costs

Once someone lodges an appeal, the Council has no option but to oppose an appeal against their properly made decision.

That the Council took nearly six months to assess and evaluate the proposal shows that they did not make their decision in haste or carelessly.  Further, the Council's decision was unanimous.  It wasn't a "near thing" - every Councillor was opposed to the proposal.  Not only that, the Council's planning staff, who submitted their report to the Council meeting where the decision was made, recommended, for a wide variety of reasons, that the development not be approved.

Thus, the situation is this:

• a record number of objecting submissions were received by the Council; 
• the Council planning staff recommended for a range of reasons that the development not be approved; and 
• every Councillor voted to refuse the development application;

 and in the face of this, the developer (Colby Steer) still decided to lodge an appeal!

It's clearly not those opposing the proposal who have been the cause of the Council's expenses in fighting this appeal.

People don't understand why there is opposition to the motocross proposal

Colby Steer has posted the Council's grounds for continuing to oppose the appeal on the Memories of Gatton website.  Admittedly those grounds are framed in difficult to understand town planning terms, but that is because the application was made under the Gatton Planning Scheme which uses the same language.

To get a more digestible version of the reasons you could go to the minutes of the Council meeting where the application was refused and read the staff report which recommended against approval.

You could also have gone into the Council office any time in the nearly six months when the application was under consideration and had a look at the submissions from the 232 people who don't want this development to go ahead.

Or to get a feel for the reality of motocross impacts you could have a look at some of the heartfelt comments of people who have had to live with motocross operations in their area.  There's more here  and here.

A lot of these impacts on people living with motocross activities have to do with noise.  It often isn't until people have to live with motocross noise that they realise that the problem isn't just the loudness.  Check this out for an overview of the health impacts of motocross noise.

Progress with the Adare motocross facility Appeal

It's more than one year since the Lockyer Valley Regional Councillors unanimously refused permission for the motocross training facility at Adare, citing a range of grounds based on non-compliance with the Gatton Planning Scheme.

This followed a public notification process in which 232 objecting submissions were received and only 2 supporting submissions.

On 3 July 2015 the applicant (Drywound Pty Ltd - sole shareholder Colby Steer) lodged an appeal in the Planning and Environment Court.  From that date, under the Court rules he had six weeks to progress the appeal.  In fact it was around four months before he took any further action.  That delay was a foretaste of the way he was to conduct the appeal until now.

I'll skip the intervening stages until on 3 March 2016 the Judge in the Planning and Environment Court issued a Court Order setting out the substantive stages in the appeal process, leading to a Court Hearing in September this year if no agreement on a mutually acceptable outcome had been found before that.

First there was a Mediation Meeting in mid-April to see whether was any commonly agreed outcome possible at that stage.  Unsurprisingly, there wasn't.

The next two stages in the process were to be the nomination of experts by the parties in relevant specialist fields.  This was to be done by 29 April.  By that date the Council had nominated experts in the fields of noise, ecology and town planning, and the group of six Co-respondents who are being assisted with fundraising by Lockyer Community Action Inc. had nominated experts in the fields of noise, koala ecology and town planning.

Drywound had not nominated any experts by the deadline.

The next deadline was to be meetings of the experts in the various fields, which were to be convened by 13 May (apart from town planning, which group meets later and has access to the reports of the other groups).

As of 13 May, Drywound had still not nominated any experts, so the expert group meetings had not been able to be held.

For a man who has apparently been so keen to get his motocross facility up and running, Colby Steer has been remarkably casual about pursuing the appeal process.

In the 49 weeks from when Colby Steer lodged his appeal until 12 June this year, more than 34 weeks had been wasted as a result of his non-compliance with deadlines set in Court Orders and the Planning and Environment Court's Practice Directions.

That amounts to 70% of the elapsed time.  Keen to get the track operational?  It doesn't look like it.

In commenting on his review of the progress of the Appeal the Judge commented that if an application were to be made for dismissal of the Appeal on the grounds of further delays, he would be inclined to look favourably on it.

The Appeal is now in the stage of Joint Expert Group meetings where the experts nominated by the various parties meet in "subject" groups (e.g. noise, ecology, town planning) to determine what they are able to agree on about the proposed development and where their areas of disagreement lie.

We won!!

Sorry it has taken a few days to get around to updating the situation here.

We won!!

After so many months of not really feeling that we were getting anywhere, we still had no good feel for which way the decision would go, right up until the Council's Assessment Manager read out the Council staff recommendations on the proposal.

What a fantastic win for the community and the environment!  And so good to see that it was unanimous, though it would have been difficult to imagine another outcome after the summary of the staff findings in relation to town planning issues.


It took a while to fully believe that we had won.  Then so many people to thank.  An incredible number of people and organisations have supported us, provided advice on different issues, and taken their own initiatives in response to the motocross proposal.

If you are among the (hopefully small) number who haven't yet received a phone call or email thanking you for your support, please take this as a heartfelt "thank you" for your input.  The Adare / Vinegar Hill community - and those in the wider Lockyer Valley community who understand the real and varied impacts of motocross operations - owe you all a debt of gratitude.

I'll post the Council staff report and recommendations on this website when I get a chance.

Of course there is still the possibility of an appeal by the applicant, but to judge from the verbal summary of the report given before the Councillors voted on the application, it sounds like a pretty tight argument.  We will be ready to deal with an appeal if it happens.

Council meeting on Wednesday 27 May 2015

UPDATE - 12.15pm Tuesday 26 May

Confirmation from Council - the Motocross application will be decided on Wed 27th

27 May, starting at 10.00am

upstairs in the Council Offices in Railway Street Gatton

Please be there - numbers count.  Get there early to secure a seat.

NOTE: There will be presentations by Lockyer Community Action and the Applicant at the meeting.

+++++

A surprise letter from a Councillor - and some advice

Nowadays it is very rare to receive a personal letter in the mail, and much more unusual to receive a carefully handwritten letter.

The other day I received the following from an ex-Councillor in Tenterfield Shire.  I should point out that I had not contacted John prior to receiving his letter and did not know of his existence.  He does not say how he got my address.  I have John's permission to pass this on:

My name is John Macnish and I was a councillor on Tenterfield Shire Council when we made the ill informed and wrong decision to allow that Mx bike park called Emu Creek Extreme Retreat.[material removed here that may identify certain individuals]

On reflection we should have been more diligent and saved the local people down there 10 years of torment as this ‘business’ was totally inappropriate for the area.  I guess the message from all of this is to closely scrutinize the council proceedings when dealing with your case.  Councillors are not infallible and when the council staff, for whatever reason, do not follow correct procedures, poor decisions can be made and these can be very hard to reverse.

The locals at Emu Creek under Christine and Brian Baker did a fantastic job of organising the protests and coordinating the action against this park and through their persistence got this venue closed.

All the very best in your endeavours

John Macnish
+++

John's reference to “10 years of torment” reminded me of the file that I have been compiling for the last few months of people's experiences of living with motocross in many different places.  You can see some selected quotes here.

Motocross Training Facility or Trojan Horse?

Trojan horse (n): a trick or stratagem whereby something that has been made to appear desirable actually contains within it something harmful, dangerous or threatening.

The application for a Material Change of Use of the land at the end of Adare Road north of Gatton to allow a "motocross training facility" to be established describes a two-stage development, which in total appears to be considerably beyond motocross training.  

Let's take a look at different aspects of the application, starting with Stage 1 and Stage 2.  Keep the Trojan Horse in mind.



Stage 1 will involve:

• creation and operation of 1 Motocross Track;
• providing a sealed access from the property frontage to the track area, including a culvert creek crossing;
• constructing and operating a canteen for up to 150 people;
• constructing a toilet suitable for 150 people per day;
• operating hours from Tuesday to Friday 4.00pm to 9.00pm; and Saturday and Sunday 9.00am to 4.00pm;
• traffic volume around opening and closing times of up to 150 vehicles per hour.

The Application document for Stage 1 stands out in a number of ways, few of them good.  For the purposes of this discussion it is notable that it has been cleverly "trimmed" so that there is virtually nothing in the Stage 1 application which is going to require the involvement of State or Commonwealth government agencies.  And it's wrapped in a warm and fuzzy "training facility" blanket.




But Stage 2 will add:

• four more Motocross Tracks, to make a total capacity of 200 bikes at a time on the tracks;
• camping and cabin accommodation for 100 people;
• expanded toilet and shower amenities;
• expanded canteen;
• a caretaker's residence;
• "occasional" "event weekends" (racing) when the opening hours on Saturday and Sunday will be from 9.00am to 9.00pm;
• more noisy nights (6/week instead of 4/week when events are held);
• noise going later at night because of campers and cabin occupants;
• at least five times the traffic on local roads (5 x no. of bikes + campers).

All of the harder to sell stuff is in Stage 2:

• 200 bikes at one time;
• the possibility of clearing vegetation to fit in the extra tracks, the camping and accommodation;
• the expanded sewage treatment and disposal; and particularly
• the "events", which can only be a weasel word for someone who doesn't want to say "race meetings" out loud.  

The extreme noise produced by motocross bikes means that it is becoming more and more difficult to gain permission for establishing a motocross track, let alone multiple tracks.  Including racing events into the mix makes it even harder.   In general it is difficult to get permission for motor racing of any kind anywhere near a sizeable population.  This is particularly the case where the racing events will be frequent and will affect a significant number of residences.  Many jurisdictions require motor racing to be confined to special precincts.

This property at Adare where the proposed motocross activity would be located is not in such a precinct, and the area would be unlikely to be declared a motor racing precinct through any transparent and public process.  

Maybe labelling Stage 1 as a "training facility" might just sneak in? 



But, if this is about “training", where are the trainers and trainees?

The Adare Road Stage 1 application is for a "motocross training facility".   However, the words "train", "trainer(s)" and "trainee(s)" do not appear anywhere in the Application document.  Neither is there any reference to "pupil(s)", "student(s)" (at least, not in relation to the proposed activity), "practise"/"practice" (except in "Practice/Training Sessions").

There will be a full-time staff of four - but their list of duties do not include the words "training" or "coaching", and there is no mention of any intention to employ part-time trainers.

In a Gatton Star article on 17 December, the owner of the applicant company made much of the intention to train and provide coaching for "kids" and "recreational beginners" in a "family" sport.  But, the following relevant words DO NOT appear in the Application: child, kids, recreational beginners, beginners, or coaching.  "Children" occurs, but not in relation to the proposed motocross activity.  "Family" occurs but only in relation to biological taxonomy.  Remember, this is in addition to the missing words: train, trainer(s), trainee(s), pupil(s), student(s), practise and practice as mentioned above.

No trainers?  No trainees?

Also, if this is about a “training facility” where is the demand and business case?

So far as can be ascertained, there are no other motocross operations in Australia that are solely training facilities.  Apparently no one else has identified sufficient market demand to base a motocross business solely on training.  This would be something new and different.   

Strangely, the application contains not a single word about the need that the proposed "motocross training facility" will be serving.  Nothing about the size of the market or the demographics and ability to pay of the potential client base. In fact there's no demonstration of need or likely financial viability at all.

This is important because "training" implies something different to what users get at a recreational motocross facility.

It implies instruction, personal attention from qualified trainers, and care and attention to safety, because it is catering in part for newcomers to the sport who can be expected occasionally to do stupid things.  But even for more advanced trainees, "training" implies that they are being taken to a higher level of skill, being pushed beyond their current abilities and limits.  Again, extra service, care and individual attention beyond what is the norm at a recreational motocross facility.  And presumably extra risk (remember this is an extreme sport) and higher insurance premiums.

In every way, this extra level of attention and care would unavoidably mean extra costs for a business running this kind of training, and this extra cost will have to be passed on in higher charges to patrons than are being levied by existing recreational motocross tracks.

So a demonstrated demand and a business case are important - if only to convince us that this really is intended to be a training facility, and not just a cover for a recreational motocross track that will later become a race event facility.

The application does say that the number of patrons on the site at any one time will be limited to 150 but does not say specifically that these will be trainees.  In fact, if there were to be 150 trainees at one time, you'd expect to see a quite a lot of trainers on the staff, at least on weekends when you maybe could get 150 actual trainees.

The need to provide an adequate ratio of trainers to trainees is important, certainly to the proponent, and certainly to people who send their kids along to a training facility to learn an extreme sport.  It is no less important to those of us who might be impacted by a recreational/racing motocross track masquerading as a training facility.

No identified market?  None of the training-related words in the Application?  No estimate of number of trainees at any one time? No trainers? No business case?




Then there's "practice": what’s the difference between practice and recreational motocross riding? 

The application makes it clear that the activities that will be undertaken at all times in Stage 1 will be "Practice/Training Sessions".

  Maybe there will be "practice" but without any training?  How does that kind of practice differ from the kind of recreational riding that is done at any motocross track?  It seems like the same activity to me.  Same motocross bikes going round and round, up and down.  Same 'as fast as they can go' riding. Same very, very noisy activity - the type of activity that is very difficult to get approved in any area where there are 900 people living within four kilometres.



Trojan Horse?  Couldn't happen - the Council wouldn't be so silly?

It's happened before - remember Black Duck Valley (three deaths, multiple serious injuries, massive noise impact on local people - that Black Duck Valley) - well that was permitted by Council as a Material Change of Use for Outdoor Entertainment Off Road Education.

What it's like to live with motocross

I've been compiling a file for the last few months of people's experiences living with motocross in many different places, not just in South East Queensland but all over Australia.  Here are some selected quotes gathered from personal interviews, messages people have sent to me, and other sources.

I hope you will read all of them and think about the lives of the many people behind these statements - and then think about the impact on the community at Adare and Vinegar Hill in the Lockyer Valley.

“The loss of peace and quiet and our rights to quiet enjoyment of our property.”

“The barrage of threats from the owners and users of the establishment, toward us living here in the valley ...”

“If you are anywhere outside the house and visible from the road you are likely to get abuse hurled at you by passing motocross traffic.”

“We had people in passing cars throwing empty stubbies at cattle in the paddock.  There were stubbies, plastic bottles, bongs and other rubbish in the crops near the road so that after it was ploughed it was impossible to walk barefoot to adjust the irrigation.  In one paddock beside the road I picked up about 12 bongs, made from plastic soft-drink bottles and bits of hose, in one day.”

“The health and wellbeing of the community where the stress and strain ... put strains on marriages and people’s health.”

“The valuations of our properties dropping with nobody wanting to buy as soon as they heard the noise from the place or heard there was a Mx Park down the road.”

“After five hours of the noise you’d gladly take a chainsaw over there and have a go at them.”

“You’re saying, ‘God, are the motorbikes going to start up?’ So even though they’re not there, you’re on edge because you don’t know... you think, ‘next ten minutes will tell’ ....  And like I say, it’s not [just] when the noise is going, you’re on edge all the time.”

“Friends and family do not want to come and visit anymore as we never know if we are going to be subjected to offensive noise  .... No social life anymore.”  

“We live 7.5km from Echo Valley, luckily it only operates 2-3 times per month as the noise is sometimes incredibly offensive”.

I've lived near there [at Vinegar Hill] previously for the peaceful natural landscape and wildlife. I would like to think this is still valued and protected.  I've experienced the fairly typical behaviours and attitudes of dirt bike enthusiasts and have come away discouraged and dismayed about the self centered uncaring nature of this "sport".

“We have first-hand experience of the excessive noise created from 200+ motocross bikes after camping at the Western Trailhead at Wyaralong Dam in July this year for a horse trail ride. The Western Trailhead campsite is less than two kilometres from the Queensland Moto Park and the noise created from the motocross park disturbed the amenity and in many ways ruined the experience of camping in an otherwise quiet and peaceful location.”

“Living near a motocross track destroys your life in every way - emotionally, financially, and your quality of life.  It causes enormous stress.  This is your home, you have nowhere else to go.”  

“When I travel to the family farm there is constant traffic on the road which at times when groups [going to or from Qld Moto Park] are travelling on convoy and don't know the road has been very dangerous at times. Also there are the usual testosterone filled P-platers that can't handle the narrow windy road and there have been several near misses.”

“We’ve had people in the farm sheds, even driving in at 3am, looking around.  There have been fences pushed over and bikes riding around our property.”

“The traffic on the road is horrific - thrill seekers and adrenaline junkies - they drive the way they ride.  Four times I came very close to an accident because of them.  The creek crossing was a major risk area.”

“Kids without licences and on unregistered bikes would ride for miles on back roads and across country, cutting through fences if necessary, to avoid the coppers on the road to the park.”

“I've experienced first hand the impact that persistent motocross noise and activities can have on a community. ... The noise was insistent and unsettling for all neighbours, particularly as many had young families or had moved to the area for its' lifestyle value - quiet and peaceful. The end result was a lengthy (years) legal battle between Council, the Motocross enthusiasts and the surrounding landholders. Three families sold their properties and left the homes where they had intended to settle, including my own, because of the noise and disrespect of the motocross users and lack of action from Council. It is not a small issue that makes a family give up the home they have built and the place their children have grown up in. I would strongly advise Council to reconsider the application for the Motocross track at Adare and to listen to the concern of the local residents.”.

“Stressful, depressing, suffering physical & mental abuse, tension is causing me personal relationship conflicts, lack of relaxation is health threatening, (hypertension) violation of my chosen lifestyle & of raping me of my rights to enjoy my home in my chosen location. I have lost my composure on numerous occasions screaming out obscenities above the OFFENSIVE disturbing MX moto bike NOISE pleading for the NOISE to STOP. I DO NOT LIKE THE WAY THIS NOISE TORTURE EFFECTS ME> live on acreage & do not want to have to lock myself away from this offensive noise with radio turned up full blast to disguise this invasive torturous din that envelopes me on my own property.”