Able Demolitions & Excavations Pty Ltd v Yarra Ranges SC - [2007] VCAT 2394 - VCAT 2007 case summary — Zoe

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Able Demolitions & Excavations Pty Ltd v Yarra Ranges SC

[2007] VCAT 2394

Victorian Civil and Administrative Tribunal|2007-12-18

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Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2007-12-18

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

The applicant proposes to develop and use part of the land at 65 Quarry Road, Lilydale as a 'refuse transfer station'.
The applicant has applied for a planning permit for buildings and works associated with the proposed use. The responsible authority has refused the permit, and that refusal comprises the initial basis for this review proceeding.
The applicant contends that the 'use' of the land for a refuse transfer station is as-of-right, as it meets the conditions for 'Industry (other than Materials recycling)' in Section 1 of the Table of Uses in the Industrial 1 zone within which the land is situated. The responsible authority however disagrees that the Section 1 conditions are satisfied, and believes that the use also requires a planning permit.
If the use does in fact require a planning permit, it is obviously important to have the 'use' issues determined at the same time as the 'buildings and works' application, and this also potentially affects the form of the application as well as third party notice and review rights. The parties therefore agreed that this issue be determined as a preliminary matter, and Member Rickards made an order to this effect on 16 March 2007.
The question of whether the proposed use meets the relevant Section 1 conditions for 'Industry (other than Materials recycling)' raises the following subsidiary issues:
- What is the threshold distance that must exist between the land proposed to be used for the refuse transfer station and adjacent residential zoned land for the use to be as-of-right? Is it the default of 30 metres, or is the use for a purpose in clause 52.10 whereby the threshold distance is 300 metres? This turns primarily upon whether the use includes the 'treatment' of garbage as part of its operations.
- If the threshold distance is 30 metres, is that minimum distance satisfied here? This issue turns upon a consideration of what constitutes the 'planning unit' for the proposed use and development.

[2]

The proposed 'refuse transfer station' involves the construction of a large building, allowing trucks to deposit various refuse materials in different locations inside the building. In relation to each type of refuse (such as wood, paper, metals or garden refuse) the refuse will be piled up within the building and, within a week or so, removed to landfill or sold to recyclers. No putrescibles or food waste, liquid paints, industrial waste, chemicals, fuels or asbestos materials will be accepted.
The refuse transfer station is proposed to be constructed on land at 65 Quarry Road. This is comprised in Certificate of Title Volume 07132 Folio 363. The title area is roughly triangular, with a total area of about 5.2 hectares. The land is zoned Industrial 1, and there are no overlay controls. Quarry Road approaches the land from the south, with the land located about two kilometres north-east of the main Lilydale township.
The surrounding land features a mixture of activities, including a secondary college to the south, a tourist railway and water purification plant to the west, and land zoned Special Use Zone (Extractive industry) to the north. Significantly, land to the south-east of the site is zoned and used for residential purposes.
The distance from the closest title boundary of the land at 65 Quarry Road to the nearest section of the land to the south-east zoned Residential 1 is approximately 22 metres.
The proposed 'refuse transfer station' is to be sited on the south-eastern part of the land, within a site area comprising approximately one-quarter of the title area.
Importantly, as will be seen, the applicant proposes to exclude from this site area a small 'L' shaped parcel of land approximately 170 square metres in size. We will call this the 'excised area'. This excised area lies at the very south-eastern corner of the title and has the effect, in the applicant's view, of ensuring that the notional site area for the refuse transfer station is just over 30 metres from the nearest section of the land zoned Residential 1 (i.e. rather than the 22 metres from the title boundary).
Despite Mr Garde advising us that the applicant's lease of the site area excluded the excised area, the application plan before us on the first hearing day on 11 July 2007 showed the excised area being used for vehicle access between the proposed refuse transfer station and Quarry Road, and for some landscaping. In the course of questioning the applicant's town planning expert, Mr Radisich, some questions were put regarding whether or not this excised area should be considered to form part of the 'planning unit' for the refuse transfer station given its intended use to provide access to the site. Mr Garde subsequently requested an adjournment to allow the applicant the opportunity to prepare revised plans to address this issue. In allowing the adjournment on this basis, neither the responsible authority conceded, nor did we determine at that time, that any revised plans would necessarily resolve the issue of what constituted the 'planning unit'.
The applicant subsequently provided the Tribunal and responsible authority with revised plans, prior to the matter resuming on 15 October 2007. The responsible authority consented to the substitution of these plans. The key change for our purposes is that the amended 'site plan' now mirrors the applicant's lease of the site area[1], in showing the exclusion from the site area of the 170 square metre 'excised area' at the very south-eastern corner of the land. The amended site plan shows no landscaping within this excised area, and relocates the driveway entrance to the refuse transfer station off Quarry Road further along the eastern boundary of the site area - i.e. to avoid any access to the development through the excised area.
As we have indicated, the key practical implication of the exclusion of this excised area from the amended site plan is that the closest boundary of the revised 'site area' nominated on the plan is in excess of 30 metres from the closest boundary of the adjacent land to the south-east that is zoned Residential 1. Mr Garde advised us that the applicant now proceeds on the basis that the 'planning unit' does not include the excised area for the purpose of the permit application, but the issue remained contested by the responsible authority.

[20]

The proposed activity in Fulton involved building, landscape gardening and domestic garden waste being delivered to the subject land by small trucks. These items were then to be sorted, so as to then allow separate loads of various types of waste to be forwarded to landfill sites.
In Fulton, DP Gibson and Member Hewet agreed that 'refuse' and garbage' were interchangeable terms, but expressly disagreed with Rossi on what might constitute 'treatment'. The consequence was that the Tribunal thought the threshold distance for a refuse transfer station from Residential zoned land was 300 metres. In reaching this view, the Tribunal in Fulton noted other meanings of the verb 'treat' to that quoted in Rossi[5], and noted that the Macquarie Dictionary also defines 'treat' to include 'to handle (in literal sense)' and 'process' to mean 'to treat or prepare by some particular process, as in manufacturing'. They expressed a view that the ordinary meaning of the phrase 'treatment of refuse' is synonymous with the phrase 'processing of refuse', and that Rossi had drawn 'too fine a distinction' based on a very narrow definition of 'treat'[6].
Whilst acknowledging Fulton, Mr Garde argued that account needed to be taken of the decisions in Federal Commissioner of Taxation v Hamersley Iron Pty Ltd[7] and EPA v Daracon Engineering Pty Ltd[8] that had apparently not been brought to the attention of the Tribunal in Fulton, and that he argued may have led to that case being decided differently.
Hamersley Iron involved the operator of two major iron ore mines. Certain equipment was purchased by the operator for use in stockpiling and loading iron ore in such a way as to blend different types of ore to produce the desired overall ore mix. The operator sought to take advantage of a sales tax exemption for mining machinery used for mining operations or used in the 'treatment' of the product from those mining operations, and a key issue was therefore the interpretation of the word 'treatment'. The court stated:

[22]

Hamersley Iron was applied with approval in Daracon Engineering, where it was held that 'filtering' via a sediment pond was a form of treatment. On one view, it could be argued that the filtering was simply a form of separating or sorting the sediments. However, the court found in the context of that case and the governing legislation that the filtering reduced the quantity of pollutants being discharged, or changed the nature of the pollutants by rendering them less harmful, and was thus a 'treatment of pollutants'.
From these cases, it may therefore be deduced that 'treatment' includes not only chemical change, but also a physical alteration of a product designed to make it more marketable. However, there does need to be some change in the form, nature or condition of the goods as part of this alteration, and there is nothing in Hamersley Iron or in the examples quoted by the court that suggests that the mere handling, separation or sorting of goods is sufficient to constitute 'treatment' of those goods.
There is no doubt that there are difficult issues involved in how best to characterise the proposal before us. Ultimately, our finding is that the proposed refuse transfer station will not involve the 'treatment' of refuse, and is not therefore a use for a purpose listed in the table to Clause 52.10. We agree with Mr Garde that some weight ought to be given to the judicial views in Hamersley Iron and Daracon Engineering and the other cases cited in those decisions, and we believe that the 'treatment' of refuse involves more than the handling, separation or sorting of refuse and its removal elsewhere for landfill or recycling. We think that some physical alteration to the refuse would be needed for it to constitute 'treatment'. As the name implies, what is proposed here is simply a transfer station.
We do not necessarily disagree with Fulton that 'treatment' and 'processing' might in some contexts be interchangeable terms. However, in our view, 'processing' is a potentially broader term that may not always include 'treatment'. We do not believe that all refuse transfer stations should be regarded generically as being a 'Sanitary and garbage storage and treatment in transfer station' for the purpose of clause 52.10. Each case may fall for determination on the specific operations and activities proposed.
The 'processing' at the proposed refuse transfer station at Quarry Road is simply the process of handling, separation and sorting of the refuse without any 'treatment' by means of physical alteration through a change in the form, nature or condition of the refuse. We are unable to find on the evidence or submissions before us that the day to day operations of the specific 'refuse transfer station' proposed at Quarry Road, as described to us, involves any 'treatment' of the refuse in question. The responsible authority did not suggest that there was any 'treatment' under the judicial interpretation of the term that we have preferred, instead relying essentially on the alternative broader interpretation in Fulton.
Notwithstanding some ambiguity in the relevant dictionary definitions, in our view an ordinary person would regard the term 'treatment', in the context of refuse, as involving some physical alteration to the condition or character of the refuse. By way of example, this might comprise the composting of green waste, significant cleaning activities, active handling of industrial wastes, melting plastic/metal refuse, or the stripping of paint or removing nails from wood. No such activities are proposed for the refuse transfer station at Quarry Road.
It follows that, for the specific refuse transfer station proposed at Quarry Road, we are satisfied that no 'treatment' of refuse is proposed as part of the operations and the use is not 'Sanitary and garbage storage and treatment in transfer station' and therefore not for a purpose listed in the table to clause 52.10. A 300 metre threshold distance does not therefore apply. It follows that the correct threshold distance is that the land relating to the proposed use must be at least 30 metres from land (not a road) which is in a residential zone.
Although we believe this to be the correct position under the planning scheme, we have made some concluding comments below on the generally unsatisfactory situation that prevails, and the need for planning scheme clarification and/or updating on this issue.

[27]

In reaching this view, Fulton also considered applied an earlier decision in Stella v Whittlesea CC[12]. It can be seen that Rossi and Fulton are not necessarily at odds on this issue. A lease of part of land in a title can, in certain circumstances, create an area capable of being characterised as the planning unit for a particular use or development. The planning unit will however ultimately be determined as a matter of fact, rather than as an artificial construct. For the leased area to be treated as the planning unit, it must be created at arms length and give effect to something practical in planning terms.
We believe that Fulton provides a more sophisticated approach to this issue, and ought to be followed. In particular, we agree that the Tribunal needs to be careful to avoid a situation where permit applicants are tempted to put in place opportunistic lease arrangements that are not bona fide, but rather aim to circumvent the legitimate threshold distance requirements of the planning scheme to thwart third party notice and review rights and the Tribunal's jurisdiction.
In the present case, we are not satisfied that the lease arrangement here can be described as an arms length transaction. There is an overlap between the directors of the Lessee and the Lessor companies, and both have the same registered address. There is no common sense or practical basis for the lease boundaries in this case to be treated as defining the 'planning unit'.
Moreover, we do not agree with Mr Garde that the 170 square metre excised area is capable of forming a separate planning unit that is, in turn, capable of being separately used or developed for practical planning purposes. We regard the excised area as being so small and in such an isolated location that we are unconvinced that any legitimate separate use could be found for it. Even if the excised area was used, for example, as a benign landscape reserve, such landscaping could not be characterised as being anything other than a landscape buffer in relation to the use of the adjacent site as a refuse transfer station.
We note for the record that we received some correspondence from the applicant on this issue after the final hearing. We have given no weight to this material since no leave was granted for such purpose. However, we indicate in passing that this correspondence makes no difference to our overall conclusion. The possible use of the excised area for signage is not a use that necessitates a separate planning unit, nor would the signage necessarily be unrelated to the uses of the industrial land within the balance of the title area, including the refuse transfer station. More particularly, it does not alter what for practical purposes ought to be properly characterised as the planning unit for the proposed refuse transfer station. That is the leased area and the notionally excised area to the south-east corner of the land. We agree with the responsible authority that the lease of the excised area in this case is artificial and opportunistic and does not alter what is properly determined, in fact, to be the proper planning unit.
It follows that the proposed use, having regard to what properly constitutes the 'planning unit' for such use, is less than 30 metres from land in a residential zone. The proposed use of the land as a 'refuse transfer station' does not therefore meet a relevant Section 1 condition in clause 33.01-1 of the Yarra Ranges Planning Scheme, and the use requires a planning permit by reason of clause 31.02 of the planning scheme.

[29]

Although we heard expert evidence called by the applicant on planning, traffic and noise, this matter has ultimately been decided on the basis of legal characterisation of the use and the 'planning unit' and the proper application of the Section 1 condition relating to threshold distance (rather than the condition relating to amenity). We do not therefore address that evidence in any detail, and it becomes unnecessary to make any formal finding whether or not the use will adversely affect the amenity of the neighbourhood. This can be determined in any further planning permit process.
However, we offer the following brief comments in passing. The three expert planning, traffic and noise witnesses called by the applicant on the whole provided credible evidence. However, the wording of the relevant Section 1 condition is quite strict. For the use to be as-of-right having regard to this condition, the use must not adversely affect the amenity of the neighbourhood. Although there needs to be an objective consideration of what constitutes 'amenity' and the 'neighbourhood' in a given situation, the condition is set out in absolute terms. It does not provide a more moderate standard such as whether there will be any unacceptable amenity impacts. This again would be determined in any further planning permit process if a permit requirement is triggered.
A corollary of this is that, even if the proposed use does not meet an absolute standard of not having any adverse amenity impacts at all, that does not mean a permit should not ultimately be granted. The amenity impacts may well be minor and acceptable, and capable of being mitigated by appropriate conditions.
In this context, our preliminary impression is that the evidence provided by the three experts, considered in totality, did not provide a convincing case that there will be no amenity effects at all on the local neighbourhood. Indeed, all three seemed to tend more of the view that there were no unacceptable amenity impacts. It was perhaps significant that neither Ms Partinio nor Mr Burton went so far as to say that there would be no adverse noise or fume impacts at all on the occupants of the nearby residential properties to the south-east of the site.
Equally, the evidence did suggest that any amenity impacts on the nearby residents would likely be fairly modest, and therefore potentially capable of being mitigated. Perhaps importantly, whilst the threshold distance is less than 30 metres from site boundary to residential zone, the actual separation distance from the refuse transfer station to the nearest residence is also much greater. Moreover, in relation to the reasonable amenity expectations of the closest residents to the south-east of the site, these expectations would be tempered by surrounding land use. This includes the use of Quarry Road for more industrial-level traffic (as even its name implies), the zoning of the subject land as Industrial 1 (rather than Industrial 3 or a more sensitive zone), the close proximity to the west of the Lilydale water purification plant, and of land to the north zoned Special Use Zone (Schedule 1 - Extractive Industry).
Given our finding in any event that the use requires a planning permit, these are matters capable of being more formally considered and tested.

[31]

As we alluded to earlier, we believe the current planning scheme provisions with respect to the development and use of a 'refuse transfer station' to be somewhat unsatisfactory. This creates confusion for all stakeholders in a case such as this, and difficulty for the Tribunal in applying the provisions consistently.
In Fulton, the Tribunal had stated that "it would not be logical" to have a threshold distance as little as 30 metres for a 'refuse transfer station'[13], when compared to some other sanitary and garbage facilities in the table to clause 52.10. We think equally that the alternative of a 300 metre threshold distance is perhaps excessive. The EPA buffer distances (upon which the clause 52.10 distances were initially based) were prepared almost 30 years ago and do not reflect considerable operational and technological advances since then. Moreover, unlike the EPA buffer distances, the threshold distances in clause 52.10 are not applied as a 'minimum buffer' nor deal solely with air emissions, but are simply a threshold or a trigger as to whether a planning permit is required or not having regard to adverse amenity potential. An updating of the clause 52.10 threshold distances for waste facilities is overdue.
The problem of a potentially out-of-date threshold distance is compounded by the difficulty in distinguishing between a 'refuse transfer station' and 'materials recycling' for some waste facilities (given the potentially similar operations and overlapping planning scheme definitions). Added to this is the disparity in the terminology used as between these land use definitions and clause 52.10 (i.e. 'processing' vs 'treatment'), as highlighted by the different outcomes in Rossi, Fulton, and this case.
A further issue we have not dealt with directly in our reasons is the potentially different outcomes for 'use' and 'development'. The 30 metre threshold for 'use' is measured from the land (i.e. the site boundary of the planning unit) to the land in a Residential zone. However, for the buildings and works, the 30 metre threshold distance (relevant to the exemption from third party notice and review) is measured from the building or works, to the land in the Residential zone. For this case at 65 Quarry Road, we have found that the use is within 30 metres, but the buildings and works are arguably not, being well set back within the site area. This leads to a situation where both use and development require a permit, but only the use application is clearly subject to third party notice and review.
Our final comment is of a more general nature, stemming from the Section 1 condition for 'Industry (other than Materials recycling)' relating to adverse amenity impact. As we have indicated above, the condition is supposedly couched in absolute terms (i.e. 'must not adversely affect the amenity...'), rather than a consideration of whether an impact is acceptable or unacceptable. However, given that amenity is itself a nebulous concept, it will often be a matter of debate as to whether a use such as a 'refuse transfer station' meets the Section 1 condition and is as-of-right, or whether the use will potentially affect the amenity of the neighbourhood and requires a permit. This creates uncertainty for all stakeholders, and potential difficulty if later enforcement is warranted.
We are aware that the Department of Planning and Community Development is presently reviewing the planning provisions for waste facilities. Hopefully, some of the unsatisfactory aspects we have highlighted with the current provisions will be addressed in that review.

Able Demolitions & Excavations Pty Ltd v Yarra Ranges SC

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Judgment (41 paragraphs)

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Cases Cited (5)

Able Demolitions & Excavations Pty Ltd v Yarra Ranges SC (Red Dot) [2007] VCAT 2394 (18 December 2007)