The outbuilding hereby approved shall be used only for the purpose of domestic storage/hobby purposes and/or for the storage of equipment, goods or motor vehicles used in conjunction with the occupation of a resident of the dwelling on the lot. It shall not be used for human habitation or as a workshop for any commercial enterprise.

1. The Council refused to amend the application on the following grounds:
   1. The proposed development is of a scale far beyond that permitted for the existing 'Home Occupation' use, as defined and limited by the requirements of Clause 52.11 Home Occupation of the Frankston Planning Scheme.
   2. The proposed changes to endorsed plans are in conflict with the requirements of existing permit condition no. 5 which prohibits commercial use of the existing large shed beyond the limited home occupation use.
   3. The proposal does not meet the objectives of Frankston Planning Scheme, including:

1. The proposal does not meet the purpose of Clause 35.04 Green Wedge Zone nor the objectives of Clause 11.04-7 Green Wedges as it fails to recognise, protect and conserve green wedge land from inappropriate development, and fails to protect the scenic character of the open rural landscape.
2. The Council contends the subject land does not have existing use rights as the applicant is unable to comply with the requirement under the provisions of clause 63 in the Frankston Planning Scheme that the use has been operating as a contractor's depot for 15 years.
3. In this respect the Council contends that originally the primary use of the land was for a dwelling and at this time a 'home occupation' use as a drainage contractors business was also operating. This met the definition requirements for home occupation as a section 1 use for which no permit was required.
4. At some point, the Council contends, this use exceeded what was anticipated by the planning scheme and became a separate and distinct use as a drainage contractor's depot. This separate use commenced after the construction of the large shed permitted under the 2003 permit and therefore the 15 year rule cannot be satisfied.
5. Mr Boersma contends that the subject land has existing use rights and has operated as a drainage contractor's depot for more than 15 years. He further contends that the use does not fall and has never fallen under the provisions of 'Home Occupation' in the Frankston Planning Scheme.

1. Mr Boersma and his partner Thea Moerman live in the dwelling on the subject land and conduct their business Aussie Drain Pty Ltd from the subject land.
2. Mr Boersma described the business as 'an agricultural company predominately working on farms but also on recreation grounds'. He indicated the company undertakes subsurface drainage works which include the installing of perforated pipes in the ground connected to an outfall to prevent water logging and salinity.
3. Mr Boersma indicated that he keeps on the subject land the equipment used in the business, when it is not away on a job site. He routinely maintains the equipment on the subject land either in the large shed or outside. The nature of the work often requires different attachments to be placed on various pieces of equipment and this is carried out on the subject land. Not always but sometimes if he has a job in close proximity to the subject land other persons who he employs to operate the equipment will meet at the subject land, leaving their personal vehicle and often go to the job site in a work vehicle.
4. The types of equipment used in the business and often parked on the subject land includes trenchers with tractor and trailer; backhoes; gravel trailers, an excavator, a low loader and at least 6 tractors. This equipment is registered in the name of Aussie Drain Pty Ltd.
5. Photographs were provided of the subject land showing some large pieces of equipment currently parked on an area of hardstand.
6. Mr Boersma indicated the small shed in close proximity to the dwelling is used for storage and the large shed, approved under the permit is used to carry out routine maintenance on the equipment, as well as preparing the equipment in some circumstances for particular jobs.
7. A detailed description of the activity conducted on the subject site was set out in the letter to the Council dated 29 July 2014 as follows:
   1. During peak summer and dry weather months, anywhere up to 20 people are employed by the business which includes interstate/remote workers. At any one time, an average of 6 with up to 8 staff members present on site at any one time. We note that the number of staff fluctuates depending on the stage of a project i.e. when a job is commenced machinery/equipment is left on site for the duration of a project and workers generally drive direct to the job site.

2. The business operates from 7 AM to 5 PM Monday to Fridays.

1. The outbuilding and associated storage area is intended to be used for what the initial permit intended - the storage of machinery and goods associated with the occupation of the dwelling. The increased storage area is not intended to allow the extent of machinery stored to be increased on site or the use intensified but rather it is simply required to enable sufficient room within the shed for the machines/equipment to be worked on.

The nature of the business is that no project is the same. Each project requires ditches of differing spatial separation, depth, width and with differing soils. Accordingly, each project requires a machine to be fitted to suit the conditions and the type of agricultural project. When we say 'worked on', we mean that the machines are stored in the shed and fitted with the right equipment/parts to suit a particular job before being transported on site. Upon completion of the job the parts/attachments are removed. In addition, we note there will be some repairs/replacement of parts as required and there will be no noisy machinery ...

1. I agree with the Council's submission that 'taking a factual approach to assessing the real and substantial purpose of the use of the subject land and looking at the essential elements of the use, it is obvious that the Subject Site is currently being used as a drainage contractor's depot'. Whilst there is no specific definition within the Frankston Planning Scheme of a 'contactor's depot' what is occurring on the subject land, in my view, can be described as a 'contractor's depot' and if required more specifically identified as a 'drainage contractor's depot' as that is the business that Mr Boersma conducts from the subject land. In reaching this conclusion I adopt the principle enunciated in City of Nunawading v Harrington [2]:

The purpose of the non-conforming use is to be characterized by the appropriately designated purpose of the actual use at the approval date and not by its classification in the list of prohibited purposes such as to be found here in Column 5 of the PSO: _Shire of Perth v O'Keef_e [1964] HCA 37; (1964) CLR 529. That appropriate designation of purpose is a question of fact to be determined "by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date".'

1. Mr Boersma submitted that 'at present we have 30 pieces of equipment which are all on jobs through Victoria and New South Wales, however, on the occasional wet winter, most of that equipment will be stored in the machinery shed and some will be stored outside'.

HAS THE USE OF THE SUBJECT LAND COME UNDER THE DEFINITION OF 'HOME OCCUPATION' IN THE FRANKSTON PLANNING SCHEME?

1. From the information provided I am unable to conclude that the use of the land ever fell within the term 'home occupation' as defined in the Frankston Planning Scheme.
2. At the time of the granting of Permit192/2003/P on 6 May 2003 the land was zoned Rural and as now, under the table of uses in relation to the land zoned Green Wedge 'home occupation' was and is an unconditional permit not required use. However to be considered a 'home occupation' certain prescribed requirements must be met and these are referred to in clause 52.11 of the Frankston Planning Scheme.
3. The gross floor area used in conducting the home occupation, including the storage of any materials or goods, must not exceed 50m² or one third of the gross floor area of the dwelling whichever is the lesser. With a permit a 'home occupation' use can be increased to a floor area of 100m² or one third of the gross floor area of the dwelling, whichever is the lesser.
4. No permit exists relating to the use of the land as a 'drainage contractor's depot'.
5. The shed permitted under the permit measures 24m wide by 42m long and has a total area of 1008m². I accept that a 1000m² shed would significantly exceed one third of the gross floor area of the dwelling and does not meet the requirements of 'home occupation' and could not have done so when the permit was issued.
6. Other requirements under clause 52.11 that could not be meet even in 1994 relate to the number of persons who do not live in the dwelling working in the occupation. Mr Boersma as well as Mr Disney indicated not only did Mr Boersma and Ms Moerman work in the business but so did Mr Disney and at least one other person, neither being occupants of the dwelling.
7. As well as the employment of additional people no occupants of the dwelling in the business being conducted on the subject land, the storage of the equipment and vehicles even before 2003 occurred externally from the small shed, and this would not have met the requirements as 'materials used or goods manufactured, serviced or repaired in the home occupation must be stored within a building'.
8. The use of the land prior to the 2003 permit could not have been considered to fall within the definition of 'home occupation' and the permit could not have been limited to use of the land for 'home occupation' as what was being permitted did not comply with the requirements under the definition of 'home occupation' due to the size of the shed being permitted. It appears there has been some confusion with linking the conducting of the business of the owner of the subject land to the narrow definition of home occupation.
9. 'Clause 52.11 constrains the definition of 'home occupation' by essentially setting the level or scale of a home occupation beyond which it will be considered a separate and distinct use of the land where the use must separately comply with the planning scheme'[3].

DOES THE SUBJECT LAND HAVE EXISTING USE RIGHTS?

1. Under clause 63.01 of the Frankston Planning Scheme 'an existing use right is established in relation to use of land under this scheme if ... proof of continuous use for 15 years is established under Clause 63.11'.
2. Clause 63.11 provides:

...it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after the commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given written direction for the use to cease by reason of its non-compliance with the scheme.

1. Mr Boersma in his evidence indicated he had moved to the subject land in 1994 due to an increase in work in the Cranbourne, Kooweerup and Gippsland areas. He considered the subject land of 5 acres with a house and shed to be suitable to maintain, test and store his equipment. The existing shed on the land was also considered to be suitable for use as a workshop.
2. Mr Boersma indicated that as the business grew larger pieces of equipment were stored outside and there was a need for a larger shed to undertake repairs and maintenance of the equipment. Mr Boersma applied in 2003 for a permit to construct a large shed. This resulted in the granting of Permit 192/2003/P on 6 May 2003. The endorsed plans under this permit include detailed plans of a 2000 litre petrol and oil interceptor and a silt pit as well as a landscape plan.
3. Has the use changed from one type of use to another? The Council submitted the use had changed from being a 'home occupation' to a different use described by the Council as a 'contractor's depot'. The use has not changed, rather it has always been a 'drainage contractor's depot' and has merely intensified over time.
4. Mr Disney attested to having known Mr Boersma and Ms Moerman since 1994 when they moved to the subject land. He indicated he assisted in repairs and modification of the trenching equipment between 1994 and 1998, this occurred in the small shed next to the dwelling on the subject land. Since 2005 he indicated he has assisted from time to time with the maintenance and repair of equipment now undertaken in the larger shed on the subject land.
5. Mr Disney recalled that in the period 1994 - 1998 Ms Moerman operated the office for the business inside the dwelling. He indicated at least two people including Ms Moerman worked in the office and there was often at least two people like himself employed in the workshop. In 2005 a purpose built office was constructed near the large shed.
6. Mr Davis attested to being employed as a machine operator for Aussie Drain Pty Ltd from 1993 to 1994. He recalled that in 1994 the maintenance of machinery was carried out in the 'garage' small shed, on the subject land next to the dwelling.
7. Both Mr Disney and Mr Davis recalled large pieces of equipment, vehicles and machinery being stored and often maintained external to the small shed as these pieces of equipment, vehicles and machinery were too large to be put in the shed.
8. Mr Boersma attested to undertaking on the subject land the storage, maintenance and repairs of equipment used in his drainage contractor business since 1994. He indicated that when he made the application for the shed in 2003 the woman at the counter wrote on the side of the application 'for use as a vehicle/machinery store in conjunction with my occupation as a resident of the dwelling'.
9. I consider the use of the land as a 'drainage contractor's depot' has been continuously operating for a period of 15 years. This use includes the servicing, maintenance and repair of vehicles and equipment in relation to the business being carried out on the land. On the evidence provided I consider the use has been operating for approximately 22 years that is since Mr Boersma moved to the property and that some of the servicing, maintenance and repairs has been carried out firstly within the small shed, external to the small shed, as well as in the larger shed following its construction in 2003.
10. The only change that has occurred in relation to the use is that it has intensified as evidenced by Mr Boersma's application to construct a large shed. I adopt the relevant parts of the decision in Wellington v Surf Coast Shire Council & Ors[4].

1. I accept that Mr Boersma has and continues to carry out routine maintenance, repairs and storage of vehicles, machinery and equipment used in the conduct of his drainage contractors business in the large shed on the subject land. Condition 5 of Permit 192/2003/P links this to the occupation of the resident of the dwelling on the lot, namely Mr Boersma.
2. Mr Boersma carries on no other 'commercial enterprise' other than the drainage contractors business that he has so conducted on the subject land since 1994. The use of the large shed for the maintenance and storage of vehicles and equipment used in association with the business is part of the existing use right that attaches to the land.
3. The approval of the washing bay in my view also anticipates that ancillary maintenance activities to the storage of equipment, goods or vehicles will be carried out.
4. Condition 5 should be clarified as sought by the applicant to read as follows:

Nothing in this condition precludes the use of the shed hereby permitted to be constructed for the routine servicing, maintenance and minor repairs of machinery and vehicles use in conjunction with the occupation of the resident of the dwelling on the lot.

SHOULD THE WORKS RELATING TO THE HARDSTAND BE PERMITTED?

1. An amendment to the endorsed plans is sought to show a new 'outdoor enclosure', which is to consist of a large crushed rock parking area for the storage of machinery and agricultural equipment, enclosed with colourbond fencing and gates. This area is to be approximately 1395m². It is also proposed to infill and remove the existing dam and existing vegetation to provide space for the enclosed parking area.
2. There are two substantial Redgum trees on the land both located 30m away from the nearest works. No permit is required even though the land is located within Significant Landscape Overlay Schedule 2. Nor is there a permit requirement under clause 52.17 for the removal of native vegetation, although the property is over 4000m². The vegetation proposed to be removed is within 4m of a boundary fence and is exempt under clause 52.48 bushfire exemptions.
3. I do not agree with the Council's submission that the 'dedicated area for the heavy machinery contracting business of the size proposed will potentially create significant visual bulk and clutter that will detract from the open rural and scenic landscape value of the area.'
4. The enclosure will ensure the existing storage of large vehicles and equipment associated with the existing use of the land, as a 'drainage contractor's depot' will be enclosed, set well back from the boundaries of the subject land and will make no material difference to the way the land is currently being used. It is expected the hardstand enclosed by a 2m high fence will improve the look of the subject land. The existing landscaping around the perimeter of the land as well as the existing mounding will ensure the area is not visually intrusive.

1. For the reasons explained above, the decision of the Responsible Authority is set aside. Permit 192/2003/P is amended by the rewording of condition 5 and directing the endorsed plans be amended by substituting the plan 13-0476, Issue No. D prepared by Thomas Anderson Design.
2. It is considered appropriate in the circumstances of this case that a declaration is made pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 that the subject land at 490 Taylors Road, Skye has existing use rights as a 'drainage contractor's depot'.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] [1985] VicRp 64; [1985] VR 641

[3] Lagas v Brimbank CC (includes Summary) (Red Dot) [2009] VCAT 568

[4] (includes Summary) (Red Dot) [2011] VCAT 2317 at [84- 127]