MEDIUM NEUTRAL CITATION: [2002] VCAT 614

The decision of the Responsible Authority to refuse a permit is set aside. The Tribunal orders that a permit be granted for the development and use of part of the land situated at 41 Elms Road, Bangholme for the purposes of a depot involving the storage of not more than 4 commercial vehicles in accordance with an amended plan required under Condition 1 hereunder. The following conditions shall apply:

1. Before the use and development starts, three (3) copies of an amended plan/plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit.

The plans must be generally in accordance with the plans submitted with the application, or some other specified plan, but modified to show:

1.1 that part of the land to be devoted to the use;

1.2 the provision of additional landscaping along the frontage of the site, shielding the vehicle storage area, with the use of plants indigenous to Greater Dandenong and in accordance with Condition 22; and

2. The use and development as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.

3. Once the development has started, it must be continued and completed all to the satisfaction of the Responsible Authority.

4. The permitted use must not commence and the subject site must not be occupied for that use until all landscaping and works and the conditions of this permit have been complied with, unless with the further written consent of the Responsible Authority.

5. No more than four (4) commercial vehicles may be stored on site, without the further written consent of the Responsible Authority.

6. Elms Road must be kept in a trafficable condition at the cost of the permit holder and to the satisfaction of the Responsible Authority.

7. Goods, materials, equipment associated with the use hereby permitted of the land must not be displayed or stored outside the buildings and vehicle store enclosure, without the further written consent of the Responsible Authority.

8. The loading and unloading of goods from or to vehicles must only be carried out within the vehicle storage area designated on the plan, all to the satisfaction of the Responsible Authority.

9. Other than for routine maintenance, no vehicles are to be serviced, repaired or fuelled on the site.

10. Provision must be made for the drainage of the land including landscaped and surfaced areas, all to the satisfaction of the Responsible Authority.

11. Before the use of the land starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

11.1 Constructed in accordance with the endorsed plan(s).

11.2 Properly formed to such levels that they can be used in accordance with the plans.

11.3 Surfaced with crushed rock or gravel of adequate thickness to prevent the formation of potholes or depressions including measures to prevent emission of dust or transportation of mud or other material onto nearby roads.

12. The amenity of the area must not be detrimentally affected by the use and development on the land through the:

12.1 Transport of materials, goods or commodities to or from the land,

12.2 Appearance of any building, works or materials,

12.3 Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, water products, grit or oil.

All to the satisfaction of the Responsible Authority.

13. Noise emitted from the premises must not exceed the permissible noise levels determined in accordance with the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. 1.

14. Bins or other receptacles for any form of rubbish or refuse that is associated with the use, must not be placed or allowed to remain in view of the public, and smell must not be emitted from any such receptacle.

15. All plant and equipment associated with the use must be located within the vehicle store enclosure, so that it does not adversely affect the amenity of the area due to the emission of noise, all to the satisfaction of the Responsible Authority.

16. All wastes associated with the use must be disposed of to the satisfaction of the Responsible Authority and no liquid waste or polluted water shall be discharged into sewer or stormwater drainage systems or natural water table.

17. The site shall be kept in a neat and tidy condition at all times, all to the satisfaction of the Responsible Authority.

18.1 Pollution and sediment laden runoff shall not be discharged directly or indirectly into Melbourne Water's drains or waterways during the construction and use of the development.

19. (a) A landscape plan for the site prepared by a person suitably qualified in landscape design shall be submitted to the Responsible Authority. The details of that person's qualifications must be given and the plan must show existing vegetation to be retained, all proposed trees, shrubs and ground cover, including botanical names and sizes at maturity of all plants and the location of all areas to be covered by grass, lawn or other surface material to be specified. The use of the land shall not be commenced until such time that the submitted plan has been approved by the Responsible Authority, and the landscaping has been planted to the satisfaction of the Responsible Authority.

(b) Once planted all landscaping must be kept in a tidy condition and a vigorous state of health to the satisfaction of the Responsible Authority.

20.1 The development does not start within one (1) year of the date of this permit; or

20.2 The development is not completed within two (2) years of the date of this permit.

20.3 The use does not start within one (1) year of the completion of the development, or

20.4 The use is discontinued for a period of two (2) years.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Mr J. Nasr, Town Planner, represented the Responsible Authority.

Mr G. Underwood, Town Planning Consultant, represented the Applicants for Review.

Application under S.77 of the Planning and Environment Act 1987 (PE Act) for review of a decision to refuse to grant a permit.

1. The subject land is situated on the eastern side of Elms Road, Bangholme. It has a frontage of 92.94m, a depth of 235.75m and a total site area of 2.19 hectares. A single storey brick residence is situated on the land.

2. The Applicant is a contractor engaged in the business of demolition. As such, he operates a small fleet of four trucks, which are used, in his business operations. He seeks a permit to "store" these vehicles on his land in the normal course of his business. It is proposed to fence an existing paddock encompassing 12762, which includes an existing garage, with a 1.8m high fence. Drivers would attend the site and leave their own vehicles within the fence compound while operating the trucks.

3. The Responsible Authority treated the application as one involving a "vehicle store". The application was advertised but no objections were received. On 30 January 2002, the application was refused on the following grounds:-

1. The proposed use is contrary to the objectives of the State Planning Policy Framework.

2. The proposed use is contrary to the Municipal Strategic Statement as expressed within the Greater Dandenong Planning Scheme in accordance with Clause 21.04-4 "Green Wedge".

3. The proposed use is contrary to the provisions of the Rural Zone.

4. Approval of the proposed Vehicle Store would set an undesirable precedent for the area.

4. The Applicant seeks a review of the Responsible Authority's decision. At the commencement of the hearing Mr Underwood tabled an amended plan, which indicated a modified layout, and limiting new access to the road to one driveway. The Council did not oppose the substitution of this plan and accordingly, pursuant to Clause 64, Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal gave leave.

5. The review site is located in a Rural Zone and is subject to an Environmental Significance Overlay. However, it is important to note that this is not an area devoted to large scale farming operations. The lot size pattern is small and indicative more of a rural residential life style. Surrounding land uses include two caravan parks and a cemetery. The land is also flat and generally featureless. Indeed, its identification as being of "Environmental Significance" is somewhat mysterious. There do not appear to be any environmental constraints affecting this particular parcel of land.

6. In relation to this, the Responsible Authority stated:-

Clause 21.04-4 - Green Wedge of the LPPF gives forth Council's "Green Space" vision, which clearly defines the use of rural enterprises that complement their surrounds and satisfy buffer requirements from sensitive uses.

Consideration of Clause 22.02 - Green Wedge Local Planning Policy and in particular the Buffers Precinct provisions contained within Clause 22.02-6 is required. The vision for the Buffers Precinct indicates that new uses will be supported that are consistent with Council's "Green Space" ideals and will not compromise the operation of the resources that the buffers are designed to protect.

It is recognised that some existing uses have developed that are not consistent with the Buffers Precinct policy and these will not be encouraged to expand, if in conflict with the uses the buffers are designed to protect. Allowing the proposal to be approved would encourage further non-rural uses and developments within the sensitive Buffers Precinct.

7. The Responsible Authority also expressed concern regarding precedent. It feared that the grant of a permit would lead to a spate of similar applications.

8. In presenting the Applicant's case, Mr Underwood stressed that the use would be of limited intensity and did not justify the purchase of a separate industrial site for the intended purpose. He pointed out that the presence of truck activity was commonplace in a Rural Zone, that the extent of works associated with the use was limited and that there were countless non-rural uses conducted in the vicinity of the subject site.

9. 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.

10. 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 someway 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. I am 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.

12. It is difficult to see how State and Local Planning Policy objectives would be impaired by the grant of a permit, as was contended by the Responsible Authority. The keeping of four vehicles is a relatively low key use. The land is not used for agricultural production, and given its limited size, is unlikely to be so used in the future. It is however of sufficient dimensions to ensure that the amenity of nearby property owners would not be affected, a conclusion perhaps reinforced by the lack of objection. As Mr Underwood indicated, the presence of trucks in a Rural Zone is by no means uncommon.

13. In granting a permit in the De Hann case, the Tribunal summarised the policy situation as follows:-

In relation to orderly planning, it would be fair to say that the proposed use is not one which specifically responds to the purpose of the zone nor is it one which assists in achieving the outcomes sought by planning policy. However, I also do not think that the proposal works against them either. It seems to me that this is one of those cases where the proposal is what can be described as being "policy neutral", that is, it neither advances or detracts from the purpose of the zone or the planning scheme's policies.

14. The Tribunal believes a similar finding is appropriate in the present circumstances.

15. The review site is low-lying land, which is not highly visible. The Tribunal finds it hard to accept the argument that the use will "degrade the significance of the natural landscape" which, at this point, is flat and almost totally devoid of significant vegetation.

16. Perhaps the key to this matter relates to the provision of a landscaping screen to surround the trucks. In this regard, it agrees with the Responsible Authority that professional assistance is essential in order that a luxurious buffer of fast growing vegetation will be planted around the storage area. Such a screen should also include a number of more mature trees in order that any delay in establishing a suitable buffer will be kept to a minimum. The Tribunal has deliberately worded the condition in a manner which requires that the landscaping plan be approved, and the vegetation put in place, prior to any vehicles being parked on the land.

17. There remains the question of precedent. It is perhaps a truism to point out that every planning application must be judged on its own merits. This is a relatively unintensive use. Providing appropriate conditions are imposed, its impact will be very limited. There are a number of non-rural activities conducted in the vicinity, and the allotment pattern is not conducive to a large-scale agricultural operation. In all these circumstances, the Tribunal does not believe that any "precedent" would be established, let alone a "bad precedent".

18. It follows from all the foregoing reasons that the Tribunal believes that the Responsible Authority's decision should be set aside and a permit granted subject to conditions.