Victorian Civil and Administrative Tribunal|2007-08-01

The application proposes the establishment of a materials recycling facility on part of the site, and a reduction of the car parking requirement.
The materials receiving and processing aspects of the proposed materials recycling facility would operate from Buildings A and B which are located in the north eastern corner of the site. The buildings have an area of 2170 square metres and 3435 square metres respectively and are proposed to contain plant and equipment used to sort materials[1]. It is anticipated that materials will primarily come from householders and demolition/building contractors. Materials will be sorted; reusable materials will removed for cleaning and sale; the remainder will be sorted into recyclable glass, plastics, paper/cardboard, metal etc. and non-recyclable waste for sale or disposal.
Building C is proposed to be used for warehousing of reusable materials. Building D is to be used for the retail sale of reusable materials. Existing offices are to be used for administration. An unsealed car parking area to the south of Building D and accessed from Mackey Street, is to be used in association with the proposed use
The existing central driveway through the site will continue to be used by the existing businesses that operate from the site.

Materials recycling is a defined land use term under the planning scheme provisions ie:

Land used to collect, dismantle, store, recycle or sell, used or scrap materials.

Materials recycling is nested under industry under the planning scheme provisions, the definition of which provides in respect of materials recycling:

If materials recycling, goods resulting from the operation may be sold by retail.

We are satisfied on the basis of the materials which accompanied the application, Mr Ballis's evidence, and our inspection, that the proposed land use could as a matter of general principle be described as materials recycling. Aspects of the proposed use might for example fit within the definition of other land use terms like refuse transfer station. However, this is simply a product of the fact that these are conceptually similarly land uses, and does not imply that the proposed land use is anything other than materials recycling.
In simple terms materials recycling involves waste materials being received, and processed, usually by sorting, so that the sorted materials can be sold either for re-use or re-processing. The selling of the processed materials is intrinsic to the use. The planning scheme allows the materials to be sold either by wholesale or by retail and the existence of "tip shops" suggests that retail sales are a relatively common characteristic of materials recycling.
The proposed facility occupies a large floor space, and the proposed retail component of the use similarly occupies a very large floor space, 4,000 square metres (or 3100 square metres in accordance with the conditions proposed by the Responsible Authority). Ms Katz summarised the positions of the parties, when she suggested that it was the retail aspect of the use that was the key consideration. Bearing this in mind we think that there are three land use questions to be resolved in this application: they are-
- Is materials recycling, in general terms, an acceptable use of land within this Industrial 2 Zone?
- Will materials recycling as it proposed in this case result in the encroachment of a sensitive or incompatible use into this Industrial 2 Zone?
- Is the scale of the retail component so large as to make this a separate use?

The Industrial 2 Zone area within which the subject land is located is essentially a buffer area to the Special Use Zone which contains Corio Quay, a part of Geelong Port. The function of the Industrial 2 Zone is to provide industrial land which can accommodate industrial land uses which either benefit from a close association with the Port or the isolation of the area from more sensitive land uses[3]. Moreover, the Industrial 2 Zone is itself part of the buffer between the Port and its intensive and industrial activities and more sensitive land uses.
State Government policy generally, and the State and Local Planning Policy Framework within the planning scheme in particular, recognise the vital economic role of the state's major ports, in particular Geelong Port. An important aspect of orderly planning in respect of ports, and in respect of land within Industrial 2 Zones, is to avoid the encroachment of more sensitive land uses from compromising efficient operation of the port, or the role of the Industrial 2 Zone land to provide a location for industry with adverse off site amenity effects, which might not be acceptable in other locations.
While materials recycling may not be regarded as a heavy industry, it is nevertheless an industry which will have some detrimental off site impacts, including the emission of noise, the emission of dust, and the movement of heavier vehicles on nearby streets. The planning scheme discourages the establishment of materials recycling close to residential areas.
As a matter of general principle, Industrial 2 Zones are suited to the establishment of materials recycling facilities because inherently they are established to accommodate industries which may require buffering from sensitive land uses such as residential land uses. Materials recycling is not a port related use, but we do not think that industrial uses which rely on the port are the only types of industrial uses which can be established within this Industrial 2 Zone.
The subject land is affected by a Heritage Overlay, and indeed most of the former Classweave industrial buildings on the subject land are protected by being included on the Victorian Heritage Register. In our opinion, this is a factor which tends to support the use of the land for materials recycling because it is a use which can utilise the protected buildings and coexist with the industrial amenity of the area.
It follows from this that as a matter of general principle, we think that materials recycling is an acceptable use of the subject land, provided that the use does not compromise the function of the zone by allowing a more sensitive use to encroach into the zone area or by traffic related impacts.

Zoning is a very long established planning tool designed to segregate different categories of land use. Zoning can have important economic advantages, arising from the synergies which are created by the agglomerations of like land uses and the efficiency with which infrastructure required by the land uses can be delivered. However, from the outset, the primary purpose of zoning was to protect the amenity of particular land uses, particularly residential land uses. Indeed it was the separation of noisy, dirty, noxious 19th century industries from residential areas which was a driving factor in the development of modern town planning.
Because our ability to manage impacts has improved, more complex mixes of uses are emerging in our cities. But it nevertheless remains important that land must be set aside to accommodate what we will call heavy industry so that it is segregated from sensitive land uses.
In this case, it is argued that retail customers of the proposed materials recycling centre will bring with them an expectation for a higher level of amenity than that which can reasonably be expected within the Industrial 2 Zone. It is argued that the consequence of this is that this expectation will ultimately compromise the strategic purpose of this area to accommodate heavy industry.
This adverse effect can be overstated. It is unlikely that a person will come into an area, which is clearly industrial in character, for the purpose of buying recycled goods with the expectation that the level of amenity they will enjoy in that environment will be similar to that which they experience in Malop Street. It is unlikely that an irregular shopper visiting this zone will be intolerant of the traffic, the noises and the smells of the industrial area.
However, it is our everyday experience that the demand for car parking and the character of traffic in our retail centres is quite different to that which is ordinarily found in areas such as this accommodating large scale industrial uses. The road network surrounding the subject land is robust, with considerable capacity to absorb on street car parking and traffic movements. Nevertheless, the more recent history of the use of the subject land suggests that retail uses on the land attracting large numbers of customers parking on street, looking for car spaces on street, and moving to and from vehicles on the street, can compromise the safe and efficient functioning of the surrounding road network for the purpose of heavy industrial traffic.
Mr Turnbull in his evidence acknowledges the large site area and its capacity to contain car parking and the inherent capacity of the surrounding road network. Essentially, it was his opinion that if the 4,000 square metres designated as the retail space for the proposed materials recycling facility was to operate akin to that of a busy trash and treasure market, then car parking demand and traffic congestion on the surrounding road networks would be unacceptable having regard to its strategic function.
On one hand, if the retailing proposed as part of this application operated as a large scale tip shop, like that at the Douro Street materials recycling centre, then in our view it would be highly unlikely that the proposed car parking would be insufficient or that there would be any unacceptable traffic impacts arising from the proposed use. The difficulty with this scenario is that there is the possibility that, with a slightly more sophisticated and comprehensive approach to the processing of the reusable materials, the retailing activity would approach that of a busy trash and treasure market with the adverse consequences foreshadowed by Mr Turnbull.

The real issue in this case is the scale of the retail use proposed. 4,000 square metres of retail floor space is the size of an average, major supermarket. Even reducing the floor space to 3,100 square metres, as proposed by the council, does not alter the fact that the retail component of this use is substantial and will far exceed the floor space area actually devoted to the materials processing aspects of the proposed materials recycling facility. There is an apprehension that the proposed use of materials recycling is no more than a ruse to legitimise the retail use which has been previously rejected. Mr Ballis has not assisted in dispelling this apprehension through his apparent failure to yet remove all the goods in Building D, which were previously stock for the Mill Markets operation.
We identified four streams of materials from the evidence given by Mr Ballis.
- (a) Mr Ballis said he anticipated that there would be household furniture, and goods, bric a brac, clothing and collectables received as waste, which second hand dealers like his stall holders in Newcomb and Daylesford would be interested in purchasing. These goods are of sufficient value to justify their cost of transport to a separate sales location. He anticipates that an important clientele for his materials recycling business will be such people.
- (b) A further stream of items having resale potential includes building materials (timber, bricks etc), building components (doors, windows, trusses etc), machinery, appliances and other mechanical/electrical equipment. A large storage area for such bulky goods is required, and in this respect the subject site is ideal. However, whilst these goods would be offered for resale, their value would not justify the cost of transport to an alternative sales location. Therefore, if these type of materials are to be resold, from a practical perspective it would need to be from the subject land. Mr Ballis anticipates that the market for such materials would include trades people as well as members of the public.
- (c) The third broad stream of materials likely to be generated from the materials recycling business is recyclable waste such as glass, plastics, paper/cardboard, metal etc. Such waste will be sorted into bins and sold to dealers.
- (d) Finally, there will be a stream of non-recyclable waste not suitable for sale, which ultimately will be disposed of off site.
We do not see any potential conflicts arising with traffic associated with the sale or disposal of materials in categories (b), (c), or (d). It is the retail sale of materials in category (a) that we are concerned about.
We consider that the retail sale of items in category (a) from a floor space having an area of 3000 - 4000 square metres could be akin to a busy trash and treasure market. It was the type and volume of traffic from such a use that Mr Turnbull was concerned about in terms of presenting conflict with industrial traffic. We do not consider that potential for this type of conflict within this Industrial 2 Zone should be sanctioned or encouraged.
We consider that the primary purpose of the Industrial 2 Zone for heavy industrial uses should be respected. Any risk of compromise to this purpose by way of the "back door" introduction of major retail outlets should be resisted. In our view, the definition of industry, which allows goods resulting from the operation to be sold by retail if the industry is materials recycling, must still meet the relevant planning tests for an ancillary use. In other words, the retail component of materials recycling must remain an ancillary component of the overall use. Whether one use is ancillary to another is not necessarily a function of the area devoted to each use. But the relative scale of different activities may be indicative of whether one particular activity is ancillary to the primary use or constitutes a separate use in its own right.
Especially in light of the history of the subject site, and the continued presence of substantial amounts of stock from the operation of the site as the Mill Markets, we consider there is a real question mark over the retail component of the proposed materials cycling use and whether or not this constitutes a separate use of the land for shop. Even if it does not, we still consider that the potential traffic and car parking effects associated with the use of 3000 - 4000 square metres for the retail sale of household furniture and goods, bric a brac, clothing and collectables would be contrary to the primary purpose of the Industrial 2 Zone and would compromise its functionality for key industries located there.
We consider that if the component of the proposed use comprising the retail sale of household furniture and goods, general bric a brac, collectables and clothing was deleted, then the proposal would be acceptable and would be consistent with the general purposes of the Industrial 2 Zone. A restriction in the permit to this effect would not preclude the sale of such goods on a wholesale basis to stall holders of Mill Markets at Newcombe and Daylesford, or to other second hand dealers. Rather, the intent is that there be no general invitation to large numbers of the general public to visit the subject site to purchase goods of this nature.
We do not have similar concerns about members of the general public visiting the site to purchase building materials or other recycled goods because we do not consider their numbers will be so great. We doubt there will be concentrations of people visiting the site for this purpose or that there will be conflict between traffic associated with this aspect of the use and general industrial traffic.

The subject land, and the Industrial 2 Zone in which it sits, is very closely associated with Geelong Port, and therefore as a matter of policy it is necessary to be very cautious about the implementation of land uses which might compromise its strategic function.
Our solution to the dilemma created by this proposal is to allow the use of the land for materials recycling, but to restrict the sale of recycled goods falling generally within the categories of household furniture and goods, general bric a brac, collectables and clothing to sale by wholesale only.

[1] A moving floor, conveyor belts, bins and the like.

[2] Part of the land to the west of the subject land is affected by Heritage Overlay 1722

Environment Act 1987

Ballis v Greater Geelong CC [2007] VCAT 1332 (1 August 2007)

Ballis v Greater Geelong CC [2007] VCAT 1332

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Ballis v Greater Geelong CC [2007] VCAT 1332 (1 August 2007)