1. Having considered all the submissions and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are:
   • Is the construction of two farm store buildings on the site acceptable?
   • Is the location of the shed extension acceptable having regard to its proximity to 22 Lake Road and Lake Moodemere?
   • Is the proposed consolidated structure acceptable?

1. I have decided to grant a permit for the consolidated structure as with the changes I have required, I find that this structure is an acceptable response to the requirements of the Indigo Planning scheme. I have required the deletion of the shed structure from the plans, as whilst a second shed structure is acceptable on the site, the location of this building needs to be rethought and considered as part of a new permit application.

THE PROPOSED BUILDINGS ARE CONSISTENT WITH THE AGRICULTURAL USE OF THE LAND

1. The whole farm management plan indicates that the shipping container structure will be used for mushroom cultivation and seed propagation and for storage. The use of the shed extension has been described in the whole farm management plan as a 'planting shed'.
2. Agriculture is defined as:

Land used to:

a) propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf, and vegetables;

b) keep, breed, board, or train animals, including livestock, and birds; or

1. propagate, cultivate, rear, or harvest living resources of the sea or inland waters.

Land used to store unprocessed agricultural produce, or products used in agriculture

1. I am satisfied that the proposed use of the land and sheds as outlined in the whole farm plan is consistent with the definition of agriculture and does not need a planning permit for use under the provisions of the Farming Zone.

THE LOCATION OF THE SHED EXTENSION IS NOT ACCEPTABLE HAVING REGARD TO ITS PROXIMITY TO 22 LAKE ROAD AND LAKE MOODEMERE

1. The adjoining property at 22 Lake Road is a small lot used for residential purposes. The proposed shed extension is to be located 1.5 metres from the western boundary of this property, opposite an area which is used as the private open space of the dwelling at 22 Lake Road.
2. Under the provisions of the planning scheme, a planning permit is required to construct the shed extension as it will be less than 5 metres from the boundary and less than 100 metres from a dwelling not in the same ownership.
3. An application must be assessed under the decision guidelines of the FZ provided at Clause 35.07-6. None of these guidelines seek to protect the amenity of adjoining residential properties. However, the decision guidelines of the FZ require consideration of the following:

Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.

The impact of the siting, design, height, bulk, colours and materials to be used, on the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.

The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance.

To protect and enhance the rural setting surrounding Lake Moodemere.

To protect the Lake from inappropriate development.

1. Before deciding on an application, the ESO2 requires consideration of:
   • The design, height, mass and scale of the proposed development and buildings.
   • The proximity of all buildings to the Lake.
   • Effluent disposal systems and measures to improve water quality.
2. The proposed shed extension will have a length of 22 metres and have a maximum height of 3.3 metres. The length of the western boundary with 22 Lake Road is approximately 37 metres long. This section of the site is opposite the secluded private open space for this dwelling. Whilst the new structure will replace an existing lean-to structure, I agree with the respondents that this built form will appear imposing from this point.
3. I find that a setback of 1.5 metres is insufficient to provide sufficient landscaping to mitigate the impact of the development at this interface, and is insufficient to provide a rural setting as desired by the ESO2.
4. If approved, the works would also authorise the shed that was constructed between the existing shed and the water tank. As mentioned earlier, it is unknown whether approval was previously obtained for these works. I do note that the existing shed structure is located on the boundary of the Lake Moodemere reserve and located approximately 63 metres from Lake Moodemere.
5. The application was referred to the North East Catchment Management Authority ('NECMA'), who did not object to the proposal provided the proposed sheds were located a minimum of 100 metres from Lake Moodemere. The proposed shed extension is well within this location.
6. Whilst I find it acceptable that more than one shed is erected on the site to support the agricultural use of the land, I find that the proposed shed extension is inconsistent with the objectives and decision guidelines of the FZ and the ESO2. I have therefore required its deletion as a condition of permit.
7. The Council may wish to investigate the legality of the lean to structure and the shed that was been previously erected on the site between the rainwater tank and the existing shed and consider whether these structures should be removed from the site.
8. Should the permit applicant wish to apply for a second shed on the site this will need to be considered as a separate application. I would encourage the applicant to consider a location that is more than 100 metres from Lake Moodemere and more than 5 metres from the boundary of the property at 22 Lake Road.

THE PROPOSED CONSOLIDATED STRUCTURE IS ACCEPTABLE

1. The proposed consolidated structure was less controversial at the hearing. Its location complies with the requirements of the NECMA as it will be located more than 100 metres from Lake Moodemere. The consolidated shed will be located approximately 32 metres from the southern boundary of the property at 22 Lake Road, and 51 metres from the dwelling on this land.
2. A planning permit is required for the structure as it will be located less than 100 metres from the dwelling at 22 Lake Road and less than 20 metres from Lake Road.
3. The following images were provided by the applicant of similar structures:

1. It is the Tribunal's understanding that it will be the first image that more closely represents the proposal before the Tribunal, and the final building will be like other shed buildings, particularly if the structure is painted in the one overall colour.
2. Draft conditions provided by the responsible authority require the structure to be painted in non-reflective, neutral earthy colours. With this condition in place, I am satisfied that the structure will read as a farm shed in the landscape and is acceptable.
3. The ESO2 requires consideration of effluent disposal systems and measures to improve water quality. While an effluent disposal system will not be required for the structure, storm water from the roof structure will need to be managed to the satisfaction of the responsible authority. I have required a storm water management plan to be prepared which demonstrates how the storm water from the structure is to be managed so that it does not affect water quality in Lake Moodemere. This condition is complimented with the conditions imposed by the then Department of Energy, Environment and Climate Action ('DEECA') which includes the following requirement:

No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses on Crown land. Overland flow must be maintained at the same rate post-development as on the undeveloped land.

Runoff from buildings and other impervious surfaces shall be directed to a rainwater tank for re-use or on-site dispersal without impact on neighbouring properties to the satisfaction of the Responsible Authority.

1. It is unknown at this stage whether the existing water tank will be sufficient to accommodate the storm water run off from the consolidated shed, or whether an additional water tank will be required. This question will be resolved through the storm water management plan. I have amended condition 1 to include a requirement for the water tank to be shown on the plans if required.
2. With these conditions in place, I am satisfied that the proposed structure is acceptable.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

1. At the merits hearing of the 14 August 2025, Council sought an order for costs pursuant to Sections 109(3)(a)(i), (ii), and (iv) and 109(3)(b), of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

Matters in the proceeding relating to application for costs

1. This application has required two hearing days to hear the merits of the application, and five practice day hearings to resolve procedural issues.
2. In the applicant submissions for the hearing of the 25 February 2025, Ms Brown included documents which sought to amend the application under the Tribunal's Practice Note PNPE9. Concern was raised by Ms Deveny and Ms Honan prior to the hearing that these changes had not been circulated 30 days prior to the hearing as required by PNPE9. At this time, Ms Honan was not a party to the proceeding, as whilst she had lodged a statement of grounds, in those grounds she had indicated that she did not wish to be a party or participate in the proceeding.
3. The amended material was discussed as a preliminary matter at the commencement of the hearing on the 25 February 2025. At the hearing Ms Brown submitted that she:
   • was under the impression that if she wished to clarify any detail in the original application or add any additional items to the application that this was the process that she needed to follow;
   • had condensed a lot of the unnecessary information to a precise text;
   • advised that following an informal conversation with Council she decided to amend the application by removing one of the proposed sheds and putting the containers into one structure instead of two structures, to reduce the land use and visual impact of the proposal; and
   • initially sought three containers, which was reduced to two through the application process. She preferred at that stage to have three containers on the site but was prepared to reduce it to two shipping containers in a consolidated structure.
4. At the hearing, Council and Ms Deveny advised that they had not received the material provided to the Tribunal by the applicant prior to the hearing. Whilst this was the case, Council was happy to be 'nimble' and considered these changes could potentially be accommodated without further notice.
5. The Tribunal ordered the matter be stood down for an hour so that the material could be circulated and reviewed by the parties. When the hearing recommenced, Ms Brown submitted that she would prefer to amend the application to go with two shipping containers with the canopy.
6. The Tribunal then determined that the application would not be formally amended to reflect the changes sought by the applicant. The Tribunal then discussed with the parties whether the hearing could proceed on the basis that the applicant now sought the extension of the existing shed and the consolidation of the two shipping containers, which could be addressed through conditions if the Tribunal was of a mind to grant a planning permit. Ms Deveney advised that she was happy to proceed on that basis. Mr Song also indicated that Council was prepared to proceed on that basis.
7. Following the hearing, an accompanied site inspection was held on the 31 March 2025. Shortly after the inspection Ms Honan, approached the Council officers present and requested that they advise them of any changes to the proposed development. The Tribunal observed these discussions and advised Ms Honan to put any request in writing to the Tribunal.
8. On 3 April 225, the Tribunal received correspondence from Ms Honan requesting an opportunity to review the amended material to make an informed decision as to whether she would seek to be a party to the proceeding.
9. Correspondence was also received from Ms Deveny on the 7 April 2025 which included a compliant about the applicant's conduct regarding a sheet of tin placed on the fence, which is not relevant to this costs application.
10. The Tribunal's orders of the 16 April 2025 listed the matter for a practice day hearing on the 1 May 2025, the purposes of which are:
    • to consider whether additional notice of the material filed under PNPE9 is required;
    • to consider the matters raised in correspondence received from Amanda Honan and Kristine Deveny; and
    • to consider the future conduct of the proceeding.
11. The practice day hearing on 1 May 2025 had to be adjourned due to technical difficulties to another practice day hearing on the 15 May 2025.
12. In submissions for the practice day hearing, the responsible authority stated:

Council has no view on whether Ms Honan should be added as a party, or if further notice is required.

1. If Ms Honan is added as a party, then Council's view is, in order to provide procedural fairness and natural justice, the matter may need to be reheard, in order to provide Ms Honan an opportunity to fully respond to both cases. If the matter requires rehearing, Council requests that costs be reserved.
2. The changes proposed between the original application, as advertised, are limited. The primary changes, as understood by Council, are the relocation and change in form of the southern-most shed on the land.
3. The PNPE9 practice note envisages changes which do not "materially increase the scale or intensity of a proposal or to introduce significant new aspects that have not already been considered by the original decision-maker"
4. The proposed changes fit within this classification.
5. No formal plans have been prepared or submitted which include the proposed changes.
6. On its face this would appear to favour the Tribunal making an order requiring compliance with PNPE9.
7. On the other hand, the proposed changes are minor, of the sort frequently made 'in the running' at VCAT. The Tribunal often implements these requirements by permit conditions, rather than requiring amended plans by condition, rather than requiring strict compliance with PNPE9.
8. At the practice day hearing the Tribunal determined that given the submissions that were made to the Tribunal at the hearing, it was appropriate that notice of the changes be given to provide Ms Honan and the other persons notified in accordance with PNPE9 with an opportunity to file a statement of grounds and should they wish to do so, be joined as a party to the proceeding. The Tribunal listed the matter for an additional day of hearing and required notice to be given in accordance with the requirements of the order issued by the Tribunal on 15 May 2025.
9. Amended plans were circulated by the applicant for review on 13 June 2025, which included the construction of a dwelling, something which was not previously considered as part of the proposal before the Tribunal. This aspect of the proposal was subsequently withdrawn following concern raised by Council that they needed additional time to consider this aspect of the proposal. I note that should be applicant wish to construct a dwelling on this site or replace the administrative building this would need to be considered as a new planning permit application.
10. Notice of a further revised proposal was subsequently given on 17 June 2025. Additional notice was given on 15 July 2025 to overcome an administrative error caused by the responsible authority who failed to provide a complete list of names and addresses to the applicant.[2] Ultimately the Tribunal is satisfied that notice of the amended proposal has been given in accordance with Practice Note PNPE9, and the Tribunal's orders have substituted the revised proposal for the application.
11. Ms Honan submitted a revised statement of grounds on 5 July 2025, which indicated that she now wished to be a party to the proceeding[3]. No other statement of grounds was received in response to the notice.

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

(7) A power of the Tribunal under this section is exercisable by any member.

1. As outlined in the VCAT Act, the general rule in VCAT proceedings is that each party bears its own costs. Whilst Section 109 of the Act enables the Tribunal to make an order for costs, it must be satisfied that it is fair to do so.
2. Council submit that the conduct of the applicant, particularly the failure to comply with the notice requirements of PNPE9 has unnecessarily delayed the proceeding by resulting in the need for a second day of hearing to hear the merits of the case. They are seeking the sum of $2,500 plus GST, being the cost of Mr Song's attendance at the second day of merits hearing.
3. The applicant prepared a detailed response to the costs application, and she submits that the changes of the plans was because of negotiations that occurred during the first day of hearing and were sought in good faith to resolve the dispute.
4. The changes sought were first 'put on the table' in submissions lodged by the applicant with the Tribunal on 19 February 2025, prior to the hearing of the 25 February 2025. At that hearing Council did not object to the tabling of the revised material.
5. The process of circulating the material in accordance with the practice note was prolonged due to an administrative error on the Council's behalf and a desire by the applicant to avoid any unnecessary conflict regarding the construction of a dwelling on the site.
6. Whilst the Tribunal notes that the applicant is a lay person, it is incumbent on all persons who appear before the Tribunal to understand the requirements of the Tribunal, including the Practice Note PNPE9. This information is available on the Tribunal's website. It is apparent that Ms Brown was aware of at least some of the requirements of the Practice Note, as she included the form referenced in PNPE9 as part of her submissions for the hearing.
7. The decision of the Tribunal to require notice of the amended application provided an opportunity for Ms Honan, or any other affected people to lodge a revised statement of grounds and seek to be joined as a party to the proceeding. The second day of hearing may not have been necessary if no further statement of grounds were lodged in response to the notice. As an amended statement of grounds was received from Ms Honan and Ms Deveny a further hearing was required to hear from the parties on the proposal.
8. Whilst the second day of hearing could have been avoided entirely if the amended plans had been circulated in accordance with the practice note 30 days prior to the hearing of the 25 February 2025, the Tribunal finds that it would be unfair to award costs in these circumstances of this case. The applicant's conduct was made in good faith to try to resolve the dispute and did not disadvantage the responsible authority to the extent that would justify the awarding of costs, despite the resulting second day of hearing.
9. I find that Sections 109(3)(a)(i), (ii) and (iv) is not made out, as Ms Brown's actions prior to and on the first day of hearing did not cause an adjournment. It was only following the day of site inspection that further notice, and a further day of hearing was required. The additional hearing day was caused because of a series of events that unfolded during the proceeding, as well as varying submissions made by the Council, as detailed earlier. In the facts and circumstances of this case I find that it would not be fair to award costs against Ms Brown given the way in which the events unfolded.
10. For similar reasons I also find that having regard to Section 103(3)(b) is not made out because in these circumstances a second day was warranted and did not unreasonably prolong the proceeding. In any case, as explained above the second day of hearing was as a result of a series of events, not only Ms Brown's actions.

1. For the reasons given above, costs will not be awarded.

Construct a building within 100 metres of a dwelling not in the same ownership and within 20 metres of a road

Construct a building and construct or carry out works.

1. Prior to the development commencing, plans must be approved and endorsed by the responsible authority. The plans must:

(a) be prepared to the satisfaction of the responsible authority;

(b) be drawn to scale with dimensions;

(c) submitted in electronic form; and

(d) show the following details:

1. An accurate site plan providing clarification in respect of all existing buildings and works on site and the proposed location of the consolidated shipping container structure.
2. Deletion of the shed extension from the plans.
3. Floorplan and elevations of the shipping container structure, which show the completed structure as a enclosed building with roller doors.
4. If an additional water tank is required to meet the requirements of conditions 5, 8 and 11 of this permit, the location of the water tank.

The layout of the site, dimensions and elevations of the proposed development as shown on the endorsed plans must not be modified or altered without the written consent of the Responsible Authority.

1. The roof and cladding colour or colours of the building hereby approved, including water tanks if required must be non-reflective (i.e not zincalume). Neutral earthy colours are to be used (eg greens, greys or browns) so as to address the rural character of the area and blend all new buildings in with the landscape and preserve the visual amenity of the area to the satisfaction of the Responsible Authority. Colours not supported include black shades (eg 'Night Sky' and 'Monument') and white shades (eg 'Surfmist'), or colours from the metallic Colorbond range.

1. To minimise soil erosion during construction, the landowner and builder must ensure that any clearing or construction associated with development is conducted in accordance with sediment control principles as outlined in 'Construction Techniques for Sediment Pollution Control' (Environment Protection Authority 1991) or any updated relevant EPA protocol or guideline. Specifically, the landowner and builder must ensure:

(a) Grading, excavation and construction does not proceed during periods of heavy rainfall;

(b) Sediment traps are designed, installed and maintained to maximise the volume of sediment trapped from the site during development and construction;

(c) Top soil from the construction site or builders' sand is stockpiled in a location where it will not be eroded from the site;

(d) All erosion control measures are maintained after rainfall and are retained until the site has fully revegetated, and;

(e) Disturbed areas are stabilised and revegetated following the completion of works.

1. This permit does not authorise the use of any building on site for human habitation (ie dwelling) purposes.

1. Prior to the commencement of buildings and works a storm water management plan, prepared by a suitable qualified person must be submitted to an approved by the responsible authority. Once approved the plan will be endorsed and form part of this permit. The plan must detail how stormwater generated by the consolidated shipping container structure will be managed so as not to affect the water quality of Lake Moodemere and comply with the requirements of Department of Energy, Environment and Climate Action ('DEECA') and North East Catchment Management Authority ('NECMA').

1. No access is permitted to the subject land via the Crown land.
2. Adjoining Crown land must not be used for truck turning areas, entry points, parking areas or temporary stack sites during the construction of buildings or works.
3. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into drains or watercourses on Crown land. Overland flow must be maintained at the same rate post-development as on the undeveloped land.

1. Any onsite wastewater management system for the site must be suitably designed, located and sized to comply with the EPA Victoria's Code of Practice Onsite Wastewater Management, Publication number 891.4, July 2016, inclusive of Table 5 recommended setback distances from waterways.
2. New sheds / shipping containers must be located no less than 100 m from Lake Moodemere.
3. Runoff from buildings and other impervious surfaces shall be directed to a rainwater tank for re-use or on-site dispersal without impact on neighbouring properties to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:

(a) The use and development is not started within two years of the date of this permit.

(b) The development is not completed within two years of the date of commencement

The Responsible Authority may extend the periods referred to if a request is made in writing before the period expires or within three months of the date of expiration.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] The additional notice was discussed at a practice day hearing conducted on 10 July 2025.

[3] As a consequence of the PNPE9 process Ms Honan was made a party at this time.