Victorian Civil and Administrative Tribunal|2009-12-07

The applicant has submitted an acoustic report with the application prepared by a qualified acoustic engineer who determined that the noise generated by the activities carried out on the site and from vehicles entering and exiting the site is in accordance with EPA requirements.

The proposed landscaping will comprise designated landscape areas/beds along the north and south property boundaries of the site. Earth mounds, 2m wide and 1m high are proposed along the north side of the access roads and around the workshop and car parking areas, which will contain further planting. Further landscaping beds will be no deeper than 300mm comprising a mix of soil and mulch.

There are three main issues in this case. They are:

Characterisation, Is this really a contractors depot?

The question here is whether the proposal is really a contractors depot on the one hand, or whether the use should be characterised as "store" on the other. The distinction is significant. The land is in a Green Wedge Zone. The land use "store" is prohibited in that zone (unless it is a "Vehicle store" or a "Rural store"). Store is a variety of warehouse and warehouse (subject to some exceptions including "Rural store" and "Vehicle store") appear in section 3 of the Table of Uses in relation to the Green Wedge Zone found in cl 35.04-1 of the planning scheme. The uses in section 3 of the table are prohibited, and no planning permission can be granted for such uses.
Store is defined in the planning scheme to mean:

Store Land used to store goods, machinery, or vehicles.

If the responsible authority and the objectors could make good the contention that the proposed use is as a store, the use would be prohibited and the permit being sought could not be granted.
I suspect that those contending that the use is a store know full well that "Store" is not the correct characterisation and that permission can be granted. The case for the contrary view is very weak, as will appear later in these reasons.
The contention on behalf of the company, a view adopted by the officers' of the responsible authority, is that the correct characterisation of the proposed use is as a contractors depot. In this case, it might be described as an earthmover contractors depot. The land, the shed on it and a standing area round about is to be used in connection with the contracting business conducted by the company. It provides a place where vehicles and earthmoving plant can be parked or garaged overnight or when not in actual use. Such vehicles and equipment are removed from the site and taken to places where work undertaken by the company pursuant to contracts it has entered is in fact carried out. Afterwards, at the end of the day or at the end of the job, vehicles and equipment are brought back to this home base or "depot".
Employees whose duties include moving and operating the vehicles and equipment come to the site to pickup the vehicles and equipment, remove it to work sites and then bring it back. Some administrative work in connection with the business is carried out on site and some incidental activities such as vehicle and equipment maintenance and repairs can also be carried out from time to time.
In my opinion, it is plain that this is not a "Store" within the meaning of the planning scheme. To suggest that it is, is to confuse the concept of storing goods with the concept of parking or garaging vehicles and equipment. This is a significant and obvious distinction that cannot be glossed over or ignored.
Contractors depot is not one of the land uses defined in the planning scheme and it does not appear in the table of uses in relation to the Green Wedge Zone. However, section 2 of the Table of Uses in cl 35.04-1 contains the uses for which planning permission is required and can be granted. The last item in the table reads "Any other use not in Section 1 or 3".
Section 1 contains the land uses for which planning permission is not required and which can be carried on lawfully without permission. Section 3 contains the uses that are prohibited and for which permits cannot be granted.
The list of land uses defined in the planning scheme, and the list of land uses that appear in the several sections of the Table of Uses, are not exhaustive. There are other so called "innominate" uses meaning uses that are not so defined or nominated.
Contractors depot has been recognised in a number of cases as one such use. I am satisfied that it is the appropriate land use designation in relation to this case and that permission for it can be granted.
I question why this issue has been raised in the present case because the tribunal has already considered and determined it in a previous case in relation to this same use for the same land. The responsible authority and both the objectors in the present case were parties to that case who appeared or who were represented at the hearing.
The case concerned is Andsand Pty Ltd v Kingston CC, Glover and Defenders of the South East Green Wedge Inc[1].
That was a case heard over four days at the end of July 2008 with a written determination being given on 4 September 2008.
The proposed contractors depot use of the land is already being carried out on the land at the present time. At the time of the case in 2008, it was also being carried out on the land. However, findings of the tribunal in that previous case were that at that stage there were two uses of the land. The second use was as a refuse transfer station. That was the finding of the tribunal. That second use is prohibited and permission could not be granted for it.
The previous case sought planning permission to authorise the two uses (as found by the tribunal) that were being carried out on the land. As the second use was prohibited, the tribunal refused to grant a permit. That does not mean that the use that has continued since, and for which permission is now sought, is prohibited. Indeed the tribunal described that alternative use as "earthmoving contractors depot". At paragraph [14] to [17] of its decision, it dealt with that topic. Those four paragraphs read as follows:

[14] The characterisation of this part of the permit application is relatively straightforward. There is no planning scheme definition for "depot" and I consider that the defined land use terms in the scheme are not sufficiently specific to reflect this aspect of the proposal.

[15] The Tribunal has in the past described the innominate land use of a "depot" as meaning land serving as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions occur, such as the repair and maintenance of vehicles and equipment.

[16] Andsand physically carries on its earthmoving business across various construction and excavation sites, but proposes to rely on the subject land as a base for vehicles and equipment (generally in accordance with existing operating practices). The proposed land use has each of the same constituents as described above and I agree that these features, in combination, constitute a depot use land. Specifically, I find that the primary purpose of the storage of vehicles/machinery on the subject land and their dispatch and repair is for the use of the land as an earthmoving contractors depot.

[17] While there is an element of the storage of goods, machinery and vehicles on the land that is necessarily involved with this land use, I consider that the land use term "store" is not appropriate, in that this activity is not the real and primary purpose of the land use when viewed as a whole. Similarly, I do not agree with the submission made by the responsible authority that there is a single land use proposed, being that of a refuse transfer station. I consider that at least one real and substantial purpose of the land use is to store, dispatch and repair vehicles and equipment used in the earthmoving business which constitutes a distinct and identifiable depot use of the land.

There is a considerable amount of other authority on the point. The tribunal in that previous case, referred to the cases of Beninati v Greater Dandenong CC[2] and T.A. Lindsay Pty Ltd v Benalla Rural CC[3].
Although I suppose the responsible authority and the objectors might wish to persuade me that the decision of the tribunal in that previous Andsand case was decided incorrectly, I think that the decision of the tribunal in respect of characterisation was quite correct and I follow it. I would have reached the same decision myself, without the assistance of that case or the other cases referred to in it. When the other cases are taken into account, the authority for the proposition seems to me to be very strong.
The relevant portion from the Beninati case, at paragraphs [9] to [14] (as quoted to me) reads in part as follows:

In assessing these competing submissions, it is first necessary to classify with some precision the exact nature of the use proposed. The Tribunal agrees with Mr Underwood that the proposal does not fall easily within the definition of "vehicle store". It is, in reality, a contractor's depot. This question has arisen in several recent cases, all of which it would appear, resulted in the granting of a permit.

For example, in De Hann v Casey City Council, Alnut & Ors (P51123/2001) (noted at 11 VPR 123) the Tribunal had before it an application to review the Council's refusal to allow rurally zoned land for the purpose of "storing" commercial vehicles and construction machinery in conjunction with the Applicant's business of maintaining Telstra infrastructure. As in the present case, the review site was also covered by an Environmental Significance Overlay. In dealing with the correct categorisation, the Tribunal commented:

The first was that I was somewhat unconvinced that the use really falls within the definition of "Store". "Store" is within the "warehouse" group in the planning scheme's nesting diagrams. It implies that its land is used for storage or keeping of goods in some way for future use or shipment etc. Now whilst it is arguable that the parking of vehicles may be considered to be a form of storage, it seems to me that what is being proposed here is more consistent with the garaging of vehicles on an overnight basis. They come in, they get parked and they leave the following day. Equipment is used on an as needed basis. Jam somewhat unconvinced that "store" is a proper categorisation of this particular use.

However, in dealing with these two issues, it seems to me that the use which is being conducted on the land is more properly categorised as a type of "depot", which is not dissimilar to the permission originally granted by the Responsible Authority [ie: works machinery depot]. I say this because it seems to me that a "depot" typically operates as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions, such as the repair and maintenance of vehicles and equipment occurs. For example, this is the type of activity that occurs in a municipal depot. This is typically what I would call a "depot".

After having heard from the applicant and Responsible Authority, it seems to me that the application was made seeking permission to use the shed as a "store" because it is a land use term which is defined within the Planning Scheme, it is arguable that the parking of vehicles is a form of storage and the use conveniently falls within Section 2. However, not all uses are defined within the Planning Scheme and when put to the parties, it seemed to me that there was general consensus that the current use of the land does not fall neatly into any of the land use term definitions in the scheme.

The relevant passage in T.A Lindsay Pty Ltd v Benalla Rural CC is found at paragraph [34] to [38]. It refers to District Council of Mallala v Bishop[4] and the De Hann v Casey CC decision previously referred to. I do not think it necessary to set out the text of those decisions here, or of Lightowler v Casey CC[5] also referred to by Ms Susan Brennan, the barrister who appeared on behalf of the company.
I am not persuaded from the view I have expressed by reference that was made to Kraan v Cardinia SC[6] or Boroondara CC v Di Vicenzo[7]. Kraan was a complex case and I do not suggest that it was wrongly decided on its own facts and circumstances. I am not sure that it was necessary to decide this current characterisation point in that case. The Di Vicenzo case may not be quite the same as the current case. It apparently involved the overnight parking or garaging of a large commercial vehicle at or on a residential property.
The previous Andsand case is really identical to the present proposal except that the second use found to be prohibited is now not included. To accept the submission that the proposal is for a "Store" within the meaning of that land use in the planning scheme would require me to effectively overrule the determination of the tribunal in the previous case. That I decline to do, because I consider that case to be correct. The real gist of the distinction between contractors depot and store is the difference between parking or garaging vehicles and equipment at a depot and the use of the land simply for storage of goods for an indefinite period until sold or required elsewhere. Goods in storage are not continually being removed from and replaced in a store. Also they will not normally be returned to the store once their period of storage is over.

Having determined that it is open to grant the permit sought, it is then relevant to determine whether the permission should in fact be granted. In this connection, it would be relevant to consider the issues of policy and amenity. However, it is also relevant to consider the impact of the proposal.
New buildings are not required or envisaged. The existing building is sufficient and it is to be utilised, with some standing area thereabouts. The only real works proposed are amplification of existing landscape mounding and planting.
This means that allowing this use does not involve any substantial alteration to the condition of the land and does not commit its future. Some very large purpose built structure would involve a considerable investment and a considerable commitment. Nothing of that nature is involved here. If this use ceases the land will be as suitable then, as it is now, for any other possible lawful use that may be contemplated.
Furthermore, the proposed conditions include a time limit of 10 years. The applicant company is prepared to accept such a condition. The effect is not necessarily that the use must cease after that period but it does mean that its continued use would have to be reconsidered. In other words, the use must cease after 10 years unless a decision is made to allow it to continue thereafter. There will be no indefinite commitment to the use of contractors depot.
Having regard to these considerations, the possible ramifications of allowing the use on the basis of the proposed conditions are not at all daunting or occasion for considerable concern.

In the course of the hearing, I was taken upon an extensive survey of relevant State and Local policy considerations. My conclusion, having considered these matters, is that this proposal accords well with relevant policy matters.
The purposes of the Green Wedge Zone, apart from the general purpose of implementing State and Local Planning Policy, the Municipal Strategic Statement and Local Planning Policies are as follows:

To recognise, protect and conserve Green Wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with a sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agriculture uses.

To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

It is obvious that agriculture and farming are commonly part of the principal purpose of Green Wedge land. In this case, the land, its nature, its area and surrounds make it unsuitable for farming or agriculture. It is notable that these purposes do not include residential uses.
The three dwellings on the Glover land to the north are used for residential purposes. That is not to say those uses are unlawful, but they are in a place and in a zone not intended for residential purposes. Accordingly, they cannot expect the sort of residential amenity that would apply in a residential zone. On the contrary, they must accommodate themselves, and expect the impact and incidence of other uses appropriate to the zone. Submissions made on behalf of Mr Glover sought an exaggerated residential amenity, inappropriate in these circumstances.
I note that the land is also subject to a Design and Development Overlay in cl 43.02 of the planning scheme and schedule 5 thereto. However, those matters do not really impinge on this current case.
I do not think it necessary or desirable to discuss in detail all the policy provisions I was taken to. I note that they amount to a complex set of propositions, and in some cases they are badly expressed and not always appropriate to this large complex area in various stages of transition.
Clause 57 relates to Metropolitan Green Wedge land. The purposes of this clause are expressed as follows:

To protect Metropolitan Green Wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource and recreation value.

To protect productive agricultural land from incompatible land uses and development.

To ensure that the scale of use is compatible with the non-urban character of Metropolitan Green Wedge land.

To encourage the location of urban activities in urban areas.

To provide transitional arrangements for permit applications made to the responsible authority before 19 May 2004.

To provide deeming provisions for Metropolitan Green Wedge land.

The core planning provisions in cl 57.01 apply to land outside the Urban Growth Boundary unless the land is in one of several specified zones. This land is not in one of those zones. Clause 57.01-1 prohibits certain land uses including warehouse, which includes "Store". However, contractors depot is not caught by that provision.
I have already commented on the inapplicability of concern about productive agricultural land in the circumstances of this case.
The policy of confining urban uses to urban areas and non urban uses to non urban areas is a very sound planning principle. However, I have not found the submissions put to me as to the distinction between urban and non urban uses to be very helpful in the present case. This use of contractors depot can be suitably located in either, and can service either.
Clause 21.03 in relation to the Municipal Strategic Statement of the City of Kingston concerns land use challenges for the new millennium. Amongst other things this refers to extractive industries having been a longstanding feature of Kingston's non urban areas but that this era is coming to a close with key extraction declining but with tipping and landfill expected to go on for at least another 20 years.
There is also reference to a Sandbelt Open Space Strategy and the need to coordinate rehabilitation of landfill sites with timely development of regional open space networks through the Sandbelt Open Space Strategy.
Another paragraph refers to the importance of the non urban interface with reference to zones of impermanence, transition, instability, urban blight and the need for clear, stable and enduring edges.
Other policy provisions examined and considered include cl 21.10 in relation to non urban areas, cl 22.03 in relation to Sandbelt Open Space Project Policy and cl 22.04 in relation to South East Non Urban Area Policy.
These various provisions include reference to the idea of a "chain of parks". Indeed, that concept is well established in relevant policy, although some of the proposition in relation thereto is not very easy to understand. Nevertheless, this chain of parks concept is intended to be an important part of policy over an extensive area. That extensive area includes quite a lot of privately owned land. Whilst it is intended to protect the idea of a chain of parks, this does not mean that all of the area, including all of the private land, is to be devoted to the chain of parks or parks more generally. That would be unfair and absurd and, if it was being pursued, would really indicate that acquisition was indicated.
In fact, land required for the chain of parks concept is already defined at least sufficiently to show:

that not all of the land in the area is required for such purposes, 2. that this land is not required for such purposes,

that this land is not adjacent to land required for such purposes, or not adjacent in the sense of touching, and,

that this land is separated from land that is required by the Boral land and the Glover land.
Whilst recognising these policies, they are not prejudiced by this proposal. Indeed, I do not find any policy provisions that would exclude or indicate against this proposal.
There was some specific discussion as to whether this and surrounding land is intended to be used for equestrian purposes. No such proposition appears in the planning scheme. The planning scheme does refer to a reference document that is not an incorporated document and accordingly is not part of the planning scheme. That reference document did refer to equestrian activities as a possibility. No such notion has made it into the planning scheme or its policy provisions. The notion that the area or this land is to be used exclusively for equestrian purposes is fanciful and not justified by any policy provisions in the scheme.
This proposal is compatible with the policy provisions generally and the chain of parks policy. It might be said to enhance that later policy to some extent, but it does not derogate it and that would only be to a very minor degree.

Does the possibility of requiring landscaping justify the grant of a permit?

There was some mention of the notion that the grant of a permit has the incidental advantage of enabling the requirement of landscaping or enhanced landscaping. Although that might be true, it is an incidental benefit. My decision to grant a permit in this case is not influenced by that consideration.

The active part of the proposal is not visible from the road or the public realm. Visual amenity is not affected, except to the extent that it might be enhanced by improved landscaping. The question of the existing shed and its continued existence is not in issue. In any event it is remote, not only from the road but the houses on the Glover land.
The proposal would have no affect on visual amenity, except to improve it.

It is proposed to include a condition requiring compliance with a State Environment Protection Policy in connection with noise questions. I consider that to be suitable and a sufficient answer to this point.

Having regard to the distances involved and the nature of the land, I do not think that there is an amenity problem in relation to dust. I note the location of the houses on the Glover land. I have already referred to them not being in accordance to the primary purpose of the zoning. Unsealed driveways cannot really be objected to as being out of keeping with Green Wedge Zone environments.

There was some reference to a mediated agreement apparently reached in this case in relation to an enforcement application. On the materials I have seen, there is no enforcement order, but rather some heads of agreement or notes of agreement signed by the parties. It is not an enforcement order made by the tribunal. In any event, whatever its status, I am not bound by the agreement reached between the parties and I propose only to impose such conditions as I think justified in the circumstances. Even then, some suggested conditions have been retained because they are not objected to by the applicant company, although I might not have imposed them if there was contention in relation to them.
I have modified the draft conditions discussed at the hearing and eliminate two of them. One concerned development where this is a land use permit. That proposed condition was not appropriate, or even relevant. The other was not a condition at all but just a warning or reminder.
Some of the conditions in the draft have been retained because they were accepted by the applicant. I may not have imposed some if they had been contested.

In my view, the report and recommendations of the officers of the tribunal were correct and appropriate. For the reasons given above, I do not find the refusal or objections of the responsible authority and the objectors to be justified. I will grant the application for review and a permit for the use of the land as a contractors depot subject to conditions.

Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506 (7 December 2009)

Andsand Pty Ltd v Kingston CC, Glover and Defenders of the South East Green Wedge Inc [2008] VCAT 1804

Beninati v Greater Dandenong CC [2002] VCAT 61

T.A. Lindsay Pty Ltd v Benalla Rural CC [2003] VCAT 1621

District Council of Mallala v Bishop [1997] SASC 6340

Lightowler v Casey CC [2008] VCAT 2054

Kraan v Cardinia SC [2006] VCAT 1629

Boroondara CC v Di Vicenzo [2005] VCAT 2717

Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

Parties

Cases Cited (8)

Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506 (7 December 2009)