1. The Tribunal finds that:
   • The 1988 Planning Permit No. P20/88 authorises the use of 'Veterinary surgery and animal hospital' in relation to the whole of the subject land.
   • The as-built improvements on the subject land are generally in accordance with the relevant endorsed plans.
2. Accordingly, the Tribunal declines to make the enforcement orders sought by the applicant.
3. The costs of this enforcement proceeding are reserved. Any party wishing to make a costs claim herein must within 21 days of the date of this order lodge with the Tribunal and serve on the party against whom costs are claimed a written costs submission itemising the costs being claimed and providing supporting arguments why a costs order should be made. The party against whom costs are claimed shall then have a further 14 days to circulate any written costs submissions in response. Unless the Tribunal considers a further costs hearing to be necessary, it is anticipated that a costs order will in due course be issued 'on the papers'.

1. The decision of the Responsible Authority is varied.
2. In Planning Permit application No. 005.2016.00000053.001, a permit is granted and directed to be issued for the land at 634 Benetook Avenue, Mildura, in accordance with the endorsed plans and on the conditions set out in the Appendix to this decision. The permit allows:
   • Development of the land for storage and animal treatment (2 sheds and paddocks) in association with the existing veterinary clinic.

For Regional Building Consultant and William John Sutherland

Ms Carly Robertson of Counsel instructed by Best Hooper Lawyers. She called sworn lay evidence from Dr William Sutherland.

Development of the land for storage and animal treatment (2 sheds and paddocks) in association with the existing veterinary clinic

P1294/2016 - application under section 82 of the Planning and Environment Act 1987 to review the decision to grant a permit

P196/2016 - planning enforcement proceeding under Section 114 of the Planning and Environment Act 1987

Design and Development Overlay (DDO) Schedule 9.

Development Contributions Overlay Schedules 1, 2, and 3.

Clause 33.02-1: a permit is required to carry out at buildings and works on land zoned IZ3

Clause 43.02-2: a permit is required for 'buildings and works' pursuant to the DDO9

Clauses 11, 17.02, 21.02, 21.03, 21.07 and 21.08-4.

The subject land lies on the eastern side of Mildura and has an area of 2.023 hectares. It features a significant veterinary building at its front section. Whilst it is a matter of strong debate of the middle and rear sections have been used since the front section of the land had the clinic built, it is common ground that over this period this middle and rear section has featured a 'vine growing' aspect.

1. The subject land at 634 Benetook Avenue lies on the eastern side of the Mildura CBD, with Benetook Avenue being a significant through-road. It is owned and operated by Dr William Sutherland, whose occupation is a Vet. The review site is zoned Industrial 3 and the relevant planning framework is targeting this location at a future key industrial area in Mildura. The site is of a substantial size at about 2.023 hectares, with a rectangular shape. The subject land is relatively flat and features a veterinary clinic building of some considerable size at its frontage, together with associated car parking. This clinic building was built pursuant to a 1988 planning permit.
2. Putting to one side for the moment what planning rights exist and instead focussing on the improvements are actually built, the area further behind the clinic building has over time featured some degree of sheds and paddocks. In relation to the balance of the land over its rear and middle areas, the relevant aerial photos confirm that over most of the period since 1988, these middle and rear areas were planted with grapevines. However the aerial photos show that during the 2012-2014 period these vines were removed and these areas from that point on more operated as elongated paddocks.
3. In relation to the other nearby users, the abutting site to the south west (which has similar dimensions) owned by BSFW Investments Pty Ltd is used for caravan-hire/agri-business activities. It similarly features significant structures at the front but has an open character over its middle and rear areas. Recently planning approval was sought to use this neighbouring land as a go-kart track, which Dr Sutherland opposed. The Tribunal refused this go-kart proposal in the resulting Tribunal proceeding Sutherland v Mildura Rural SC [2015] VCAT 1132. At his paragraph 8, Mr Wong's written submission in this proceeding before me states that 'The Adjoining [ie BSFW] Land has a current planning permit authorising the use and development of the Adjoining Land for warehouse, service industry and restricted retail premises'. The permit Mr Wong is referring to is Permit No: 005.2012.00000011.004 dated 22 June 2012.
4. I understand that the land to the north-east of the subject land is also owned by Dr Sutherland. It is used for agricultural purposes and features a dwelling on the lot closest to the subject land.
5. The relevant planning framework tells us that this area forms part of an Urban Transition Area between Mildura and Irymple and that Benetook Avenue is intended to form part of a heavy vehicle by-pass for Mildura, which would also involve Seventeenth Street.
6. Looking at the planning permit history of the subject land in more detail, Planning Permit No. A20/88 (1988 Permit) was granted on 16 February 1988 and authorised the construction of 'a building approximately 19.2 squares in area for the purpose of establishing a Veterinary Surgery and Animal Hospital...'. On the 1988 Permit, the land is described as 'Part Lot 4, Benetook Avenue'. Endorsed plans were approved pursuant to the 1988 Permit which have ended up playing a critical role in this proceeding.
7. An extension Planning Permit No PO5/598 dated 22 March 2006 was granted but lapsed. However a further Planning Permit No. 5.2010.358:1 was approved on 25 November 2010, authorising the development of the review site for a store, in addition with Veterinary Clinic. In addition another extension Permit No. 5.2010.411.1 was issued on 20 September 2013 and the expansion of the main clinic building went ahead pursuant to this permit. A further amendment Permit No 5.2010.411.2 approved certain signage - this permit was granted on 20 September 2013.
8. In relation to the day-to-day operation of this veterinary clinic which continues to be owned and run by Mr Sutherland, I am told that it has a significant 'teaching' aspect nowadays. While I understand it mainly deals with smaller animals, Dr Sutherland gave evidence (and it was not disputed in itself) that the clinic is the only one in this region of Victoria which offers the service of treating horses/horse surgery on-site on a 24/7 basis.

1. Starting off with the simpler aspects, all parties agree that the front section of the subject land and immediately adjacent car parking areas can be legally used for the purpose of a veterinary clinic. Similarly no party contends that there has been any break for more than two years in the continual operation in this front area of the veterinary clinic.
2. However the side-neighbour to the south-west (BSFW Investment Pty Ltd) contests whether the balance of the review site to the rear of the clinic building and associated car parking (Balance Area) has any 'use' approval for the purpose of a 'veterinary clinic'. Rather BSFW Investments Pty Ltd (BSFW) asserts that the Balance Area has only ever been used for the purpose of agriculture (essentially vine-growing).
3. Following this approach, Dr Sutherland has never had any valid planning approval to use the Balance Area as part of his veterinary practice and any such use of the Balance Area has been and remains unlawful. For similar reasons, BSFW also challenges whether the 25 November 2010 'store' development permit was unlawfully granted, as BSFW's view is that the necessary 'use' permission that was required for this permit was missing. BSFW has also queried if all necessary 'development' controls have been complied with.
4. In this context, BSFW had initiated planning enforcement proceeding P196/2016 against Dr Sutherland. As updated during the hearing process, the enforcement orders sought by BSFD are as follows:
   • That the Owners have breached the Mildura Planning Scheme
   • That the Owner is in breach of Planning Permits P20/88, 2010.00000358.001 and 005.2010.00000411.002.
   • Planning Permit P20/88 is the only permit authorising the use of the land at 634 Benetook Avenue, Mildura for the purposes of Veterinary Surgery & Animal Hospital.
   • Planning Permit P20/88 only authorises part of the land at 634 Benetook Avenue, Mildura to be used for the purposes of Veterinary Surgery & Hospital and more specifically that land shown on the endorsed plan to this permit.
   • That the use of the Shed, other than for storage purposes only cease immediately and the established rear paddocks for storing horses cease immediately.
   • That all development associated with the rear paddocks be removed within 4 weeks.
   • That the respondent pays the costs of the Applicant.
   • Any other orders the Tribunal considers appropriate.
5. This enforcement proceeding is strongly opposed by Dr Sutherland, with the support of Council.
6. Concurrently, Dr Sutherland has sought fresh planning approval for 'Development of the Land for Storage and Animal Treatment (2 sheds and paddocks) in association with the existing veterinary clinic'. Council has issued a Notice of Decision to Grant a Permit in this regard. Council does not consider that any 'use' requirement arises with the granting of this permit, as Council accepts that the whole review site already has the benefit of planning approval (either by permit or by 'existing use rights') to be used for the purpose of a veterinary clinic.
7. BSFW has initiated a merits review against Council's support for this fresh permit application, being proceeding P1294/2016. In the final result, both proceedings were run together in a two day hearing before me over 11 - 12 January 2017. During the hearing I received various submissions, an extensive range of photos and materials and the sworn lay evidence of Dr Sutherland. I appreciate the 'tribunal book' prepared by Mr Bartley, being 431 pages long (!), which made the hearing much easier for all concerned.
8. If there was agreement at the hearing on one point, it was that the stand-out issue in this case has been whether or not the Balance Area right through to the rear boundary can validly be used for the purpose of a veterinary clinic. This stand-out issue not only in itself featured strongly in the hearing discussion, but also has a real influence on some of the other related queries raised by BSFW in the enforcement order it is seeking.
9. In light of the Seers decision discussed immediately below, the best way forward with the balance of these reasons seek to:
   • First, consider whether or not the Balance Area can be validly used for the purpose of the veterinary clinic operations under the 1998 Permit.
   • Second, review (as necessary) whether existing use rights exist under Clause 63 of the Planning Scheme.
   • Third, provide the Tribunal's findings on the residual other enforcement issues.
   • Fourth, deal with the Tribunal's findings on the merits of the permit application for the two sheds and paddocks.

1. The recent decision of Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 similarly involved a hard fought case and 'less than simple' background circumstances, albeit Seers involved an Application for Declaration pursuant to Section 149B of the Planning and Environment Act 1987.
2. The key issue arising before DP Gibson was whether the building in question in a rural location was validly used over an extended period as an art gallery, in the situation where Council and the main objector were submitting that any such planning approval had lapsed over time. There was some crossing-over in the submissions before the Tribunal as to whether any such valid use over this period could be justified pursuant to the planning permit in question or alternatively by way of Clause 63 of the Planning Scheme i.e. continuous use for over 15 years (or possibly some combination of the two).
3. For our purposes, the key aspect of this decision is that DP Gibson emphasised that with this type of planning dispute, the starting point is establishing whether or not the contentious activity under the planning scheme is as-of-right or whether any relevant planning permit has continued to validly operate over the period in question, so as to authorise the contested activities. If the answer to either of these questions is 'yes', then Seers is authority that there is no need for the planning decision maker to delve into Clause 63 'existing use rights' considerations. However if the party seeking to validate the contentious activities is not successful with these initial considerations, then it is appropriate to consider the '15 year rule' with 'existing use rights' and so on under Clause 63.

1. Following the preferred approach set down in the Seers decision as discussed above, it is appropriate I now consider the situation under the 1988 Permit.

What extent of land gained the 'use' benefit of the 1988 Permit?

1. During the hearing I was given copies of and we discussed two endorsed plans pursuant to the 1998 Permit, one of which was marked up with a brown and green highlighter pen.
2. I am satisfied that the 1988 Permit endorsed plans do authorise the use of the whole of the review site for the purpose of a 'Veterinary surgery and animal hospital'.
3. On the one hand, I do not rely on the description of the land on the cover page of that permit being 'Part Lot 4, Benetook Avenue'. I say this because of the following complication. It was common ground between the parties that under the relevant historical subdivision plans, the original 'Part 4' area shown for this location was twice as big as the current subject lot which is the focus of this proceeding. However this larger original lot was subdivided into halves over time, with the (smaller) lot in question here then apparently being referred to in some instances as 'Part Lot 4'.
4. In summary then, it is ambiguous and uncertain whether the reference in the 1988 Permit to 'Part Lot 4' is intended to refer to merely the front section of the subject land, or alternatively whether this is a reference to the whole of the subject land using this historical title situation.
5. By contrast, the endorsed plans in my view are much more precise and offer a reliable way of ascertaining the true intent behind the granting of the 1988 Permit.
6. The critical features of the endorsed plan (marked up with a brown and a green highlighter) are that:
   • The side-boundaries of the subject land are expressly dimensioned with their full length of 304.77 metres.
   • There is a 'break' in the (apparently hand-drawn) line marking each side-boundary. It seems reasonable to assume that this break is more than just a 'glitch' but rather is intended to signal that that the rear-most sections of the side boundaries shown on this plan (i.e. on the far side of the 'break' are effectively showing the rear corners of the whole lot).
7. In other words, while acknowledging that most of the details shown on this endorsed plan simply involve the approved clinic building in the front section of the subject land, the listing of the full 304.77m side dimensions and the 'break' in the representations of the side-boundaries are convincing signs that it was the whole of the subject land which is being represented in in this plan and which gains the benefit of the 1988 Permit 'use' approval for 'Veterinary surgery and animal hospital'.
8. Whilst they are more secondary points, I also see weight in Dr Sutherland's sworn evidence that:
   • a use such as a veterinary clinic inherently may at least from time to time benefit from access to a larger area of the land than just the clinic building and associated car park e.g. to walk animals being treated, bury dead animals (notably in a trench at the rear of the subject land) and/or to grow pasture which can be fed to some of the animals being kept at the clinic; and
   • at the time of the granting of the 1988 Permit, it was anticipated that the approved veterinary clinic would over time gradually expand its operations

with these two points in my view corroborating the conclusion that the 1988 Permit endorsed plans were intended to show the whole of the subject land right through to the rear boundary as having the benefit of the 'use' approval authorised by that permit.

Since 1988, has there been any break in the use of the whole of the subject land for 'veterinary surgery and animal hospital' purposes for over two years?

1. Pursuant to Section 68(3)(d) of the Planning and Environment Act 1987, a permit expires if the use in question is '...discontinued for a period of two years'.
2. It is appropriate that the Tribunal satisfy itself whether the available evidence indicates that since 1988 there has been any break in the relevant use here for over two years?
3. In this regard, Dr Sutherland provided sworn evidence at the hearing regarding the use of the subject land since 1988, speaking to his sworn written statement. This Statement has annexed to it written statements commenting on the use of the subject land since 1988 by the following persons - Tracey Callander (a veterinary nurse who has worked at this clinic for the last 15 years), Dr Joanne Scott (a vet who has worked at this clinic since January 2004) and Mr Dave Garrett (an excavator contract who did trench digging at the back of the subject land during 2016). The gist of Mr Garrett's statement is that he did trenching works at the rear of the subject land in late 2016, which dug up various bones from dead animals that had been buried in this rear location.
4. Turning to my findings, I am satisfied that the above-mentioned range of evidence presented at the hearing has established that the operation of this veterinary clinic has involved the consistent use over time of the whole of the subject land, such that there was no 'discontinuance for two years' for the purposes of Section 68(3)(d) of the P & E Act. Some key examples of the evidence of this 'consistent use over time' are:
   • The burying of dead animals, notably in the rear of the review site.
   • The walking of animals being treated around different areas of the subject land.
   • Growing pasture across the subject land, to be fed to animals being treated.

More than one substantial use in the middle and rear areas?

1. Having found that the whole of the subject land enjoys 'use' rights for 'veterinary surgery and animal hospital' pursuant to the 1988 Permit, query where this leaves the situation of the majority of the subject land featuring vines over the period 1988 to 2012-2014?
2. Whilst it is more unusual, there is nothing in the planning system excluding the possibility of the one area of land featuring more than one substantial use occurring concurrently.
3. Where the relevant aerial photos tell us that the middle and rear sections of the subject land featured vines and associated improvements over the period between 1988 and 2012/2014, I accept that over this period there were two substantial uses occurring over these middle and rear sections. That is, there was the use approved by the 1988 Permit but also the second agricultural use of the growing of the vines and related activities.

1. Having found that the 1988 Permit provides 'use' approval over the whole of the subject land for the purpose of 'Veterinary surgery and animal hospital', I not required to make any 'existing use rights' findings pursuant to Clause 63 of the Planning Scheme.

TRIBUNALS FINDING ON CONDITION 2 OF THE 1988 PERMIT

1. Condition 2 of the 1988 Permit requires the preparation of a revised plan for endorsement. The last paragraph of Condition 2 reads:

Upon receipt of such plan, it shall be endorsed to form part of this permit issued. The endorsed plan shall not be altered or modified without the content of the Responsible Authority.

1. Whilst it is not clear cut, I consider the better view (following the 'purposive' approach to statutory interpretation) to be that this last paragraph in practice means that the as-built development authorised by the 1988 Permit must be generally in accordance with the development shown in the endorsed plans. The line of thinking that that this requirement merely applies to changes to the endorsed plans surely was not what the draftsperson of the final paragraph was trying to achieve.
2. Applying a healthy dollop of common sense where Tribunal enforcement proceedings are a discretionary remedy, and as I consider it appropriate to give some weight here to the legal principle of de minimis non curat lex (the law does not concern itself with trifles), I am satisfied (with two provisos) that the as-built development on the subject land is generally in accordance with the development shown in the 1988 Permit endorsed plans.
3. The two provisos are that:
   • Further development on the subject land had been authorised since 1988 pursuant to the other permits in question.
   • Whereas Mr Wong's submissions about allegedly unlawful improvements on the subject land assumed that any existing fencing required a permit, I have found further below that 'fencing' is exempted from requiring a planning permit pursuant to Clause 62.02-2 of the Planning Scheme.

TRIBUNAL'S FINDINGS ON CONDITION 2 OF PLANNING PERMIT NO. 005.2010.00000358.01 DATED 25/11/10 AND CONDITION 3 OF PERMIT NO. 005.2010.00000411.001 DATED 21/04/2011

1. Condition 2 of the 358 permit and Condition 3 of the 411 permit both have the equivalent wording to Condition 2 of the 1988 Permit. For the same reasons as I have already explained above, I am unconvinced that a literal interpretation of these conditions is appropriate.
2. In this context, the key issue here in practice is whether the relevant as-built improvements on the subject land are generally in accordance with the endorsed plans under these two permits?
3. The first in time of these two permits is the 2010 permit authorising the development of a 'store in association with Veterinary clinic'. I have expanded above why I accept the whole subject land enjoys 'use' rights for 'veterinary surgery and animal hospital' purposes. Following the same approach as already set out in paragraph 40 above, I find that the relevant as-built shed and associated development is generally in accordance with the endorsed plan for this 2010 permit. With the benefit of numerous aerial photos and ordinary photos of the subject land, any differences between the endorsed plans for this 'store' permit and the as-built situation are very marginal and of no consequence.
4. Where during the hearing Mr Wong sought to highlight differences between how the endorsed plans show the elements of this approved shed and how the photos indicate that Dr Sutherland has used this shed day-to-day, I am satisfied that any differences are very minor and do not warrant any enforcement action. For example I do not regard Dr Sutherland's use of certain veterinary equipment inside this shed as causing any concern, where I have found that the 1988 Permit allows the whole of the subject land to be used as a 'veterinary surgery and animal hospital'.
5. I make the same finding about the 2011 permit which authorised the extension of the main veterinary clinic building on the front section of the review site, noting that at the hearing BSFW in practice (with one proviso) did not pursue any real challenge to the validity of the expanded main clinic building at the front of the subject land. The proviso is that Mr Wong did submit that without a 10 metre front landscaping buffer area which he argued was a mandatory requirement of the DDO9, this 2011 permit was invalid. However I have indicated in the final discussion further below why I reject this interpretation of the DDO9 by BSFW.

TRIBUNAL'S FINDING REGARDING FENCING AND DRAINAGE INFRASTRUCTURE OVER THE BALANCE AREA OF THE SUBJECT LAND

1. Assuming for the moment that the existing fencing and drainage infrastructure in the middle and rear sections of the subject land did require planning permission, my finding is as follows. Relying on the enforcement proceeding seeking discretionary remedies and following the principle of de minimis non curat lex, I see no reasonable basis for making an enforcement action requiring the removal of any of the existing fencing and/or drainage infrastructure in the Balance Area.
2. I rely here on:
   • This fencing and these drainage improvements being very common improvements in this rural region.
   • These being visually benevolent improvements.
   • The absence of any credible evidence that these improvements are causing any negative amenity impacts on any neighbouring properties.
   • The fencing being of a more open, rural style, rather than being solid fencing.
3. However in addition, I accept the position advanced by Dr Sutherland and Council that the contentious fencing is in any case exempted from requiring the planning approval due to Clause 62.02-2 of the Planning Scheme. Under this clause, the default position is that constructing a fence does not require a permit unless '...a permit is specifically required for any of these matters' (such as a specific planning permit requirement for a fence).
4. Whilst acknowledging that the subject land is affected by two overlay controls as well as the primary zoning, my conclusion is that none of these three require any specific planning permissions for a fence.
5. The applicant urged the Tribunal to find that where page 1 of Schedule 9 of the DDO states that 'The above setback and landscape requirements cannot be varied by a permit', and where there is a sub-heading of 'Fences' on page 2 of Schedule 9, the practical effect is that DDO9 specifically imposes a permit requirement for any new fencing which cannot be varied by permit. This was strongly contested by Council and Dr Sutherland.
6. Turning to my findings, I am unconvinced that DDO9 imposes any specific planning permit requirement for proposed 'fencing', relying on the following points. First, although there is a sub-heading of 'Fences", there is no expressly imposed requirement that a new fence requires a planning permit. Rather, there are provisions in the nature of design-guidelines for proposed front, side and rear fences, all sitting under the overall heading (with my emphasis) of 'All buildings and works should comply with the following requirements'.
7. In summary then, I consider that these fencing provisions on page 2 of Schedule 9 are in the nature of preferred but not mandatory design-guidelines for front, side and rear proposed fencing, rather than imposing a specific planning permit trigger for new fencing. I therefore accept that the more relevant provision for existing fencing is Clause 62.02-2, which provides a planning permit exemption here for fencing.

TRIBUNAL'S FINDING ON MERITS OF THE PROPOSED TWO SHEDS AND PADDOCKS

1. I find that the planning permit application for the two sheds and paddocks is relatively straightforward and should be approved. I am satisfied that the proposal is consistent with the objectives and provisions of the Industrial Zone Schedule 3 and the Design and Development Overlay Schedule 9.
2. It has been explained why I accept these proposed works already have the benefit of 'use' approval for a 'veterinary surgery and animal hospital'. Hence, I agree with the Council that the proposed permit preamble correctly merely seeks 'buildings and works' approval.
3. Starting with the two proposed sheds, they would be of a conventional size and are a common improvement in this type of rural location. Similarly the construction of sheds is a common outcome on land zoned for industrial purposes. With this type of rural location one frequently sees multiple sheds on the one property. The sheds will be well set back from the nearest boundaries and I am struggling to see that they will cause any amenity impacts on any neighbouring properties.
4. More particularly, it is a plus for the proposal that the sheds would be set back from Benetook Avenue by over 100 metres. The side setback would be five metres and the rear setback over 100 metres. Each shed would have a low-pitched roof and a modest maximum height of about 4.5 metres. The floor size of each shed at 72 square metres and 95 square metres is unremarkable for this type of rural location. These new sheds will themselves provide a visual and noise buffer vis-à-vis the nearest areas of the neighbouring BSFW land, thereby assisting with separating the activities on the two sites.
5. Some further positive features are helpfully explained at paragraph 41 of the Council merits written submission as follows:

A three metre wide landscaping strip is proposed on the Subject Land along the common boundary between the Subject Land and the adjoining land to the south-west. This landscaping will assist to soften the appearance of the sheds when viewed from adjoining land. A permit condition will require the external cladding of the sheds to comply with the provisions of DDO9 which require the sheds to be muted and non-reflective.

1. Even if (contrary to my conclusion above) it was established that a permit is needed for a new fence on the subject land, I regard the 'paddocks' aspect of the proposal to be straightforward and benevolent. This type of paddocks is common and visually benevolent in this type of rural setting. The fencing involved is rural-style wire fencing rather than solid urban-style fencing.
2. In the situation where the Tribunal has accepted that the whole of the subject land enjoys 'use' approval for a veterinary clinic, I am unconvinced that allowing the proposed two sheds and paddocks is incompatible with the Industrial 3 zoning or that such approval will place any future limitation of any real note on the day to day use of the BSFW land. Currently the middle and rear sections of the BSFW land appear to be relatively vacant and utilised in a low-key way.
3. Where Mr Wong argued that allowing the proposal would unreasonably prejudice the ability of BSFW to act upon the aforementioned planning permit for the redevelopment of the BSFW site, this submission carries little weight when:
   • The development being approved is quite modest ie two sheds and paddocks.
   • There is no guarantee that BSFW will actually act upon its permit.
   • I see weight in the argument that the two new sheds will in some ways provide a useful visual and acoustic separation of the activities taking place on the subject land vis-a-vis the BSFW land.
4. Where at the hearing Mr Wong emphasised that:
   • the subject land lies within one of only two areas in Mildura being promoted by Council's strategic planning for greater industrial activity; and that
   • Strategy 4.1 in Clause 21.08 of the Planning Scheme encourages focusing local industrial development into the existing and planned industrial precincts in Mildura

I am unconvinced that approving the two proposed sheds and associated paddocks will either cause 'land use conflicts' and/or compromise these strategic aims in any significant way. The reality is that the whole of the subject land already enjoys 'use' rights for 'veterinary surgery and animal hospital' and these are relatively modest additional structures being proposed. As mentioned above, I see real weight to the submission that the construction of the two sheds will have the benefit of assisting with visually and acoustically separating the activities taking place on the subject land and the BSFW land.

1. One other point to address is the following. Schedule 9 to the DDO has on the first page the heading 'Buildings and works', with the next sentences underneath being:
   • The above setback and landscape requirements cannot be varied by a permit.
   • All buildings and works must comply with the following requirements:
2. With the merits proceeding, the two proposed new sheds comply with the relevant setback requirements under the sub-heading of 'Setbacks'. However in relation to the next sub-heading of "Landscape", the first of several listed landscaping requirements is that '...there must be a minimum 10 metre landscape buffer along the front boundary to Benetook Avenue'.
3. It is self-evident that this requirement is not met at the front section of the subject land, and that to do so would require major works. BSFW urged me to find that because of the initial use of the words 'The above setback and landscape requirements cannot be varied by a permit', it is a mandatory requirement of any development application such as here that there be a 10 metre landscape buffer strip at the front of the subject land. Following this line of thinking, for the Tribunal to approve the two sheds and paddocks without this 10 metre front landscaping strip would be unlawful. BSFW sought to rely on the decision of Freeman v Mildura Rural SC [2013] VCAT 1857 as allegedly reinforcing his position on this issue.
4. I find BSFW's position here to be unconvincing, for the following reasons. First, as a matter of 'orderly planning' and common sense, surely this type of 'front landscaping treatment' requirement only makes sense to impose for 'big picture' planning proposals like sub-division or where new development is proposed at the front section of the land in question. The Freeman decision is consistent with this finding, as Freeman involved a subdivision proposal which included consideration of the front boundary treatment. Surely it was not the intention of the draftsperson of this 'minimum 10 metre landscape buffer' provision that this requirement would apply in a 'blanket' manner to any form of planning permit application (big or small), applying to any section of the land in question.
5. Beyond this type of 'first principles' analysis, I also agree with Council and Dr Sutherland that it is critical for the purposes of this issue that the various setback and landscaping requirements on the bottom half of page 1 of Schedule 9 fall under the words 'All buildings and works must comply with the following requirements:' which appear about half way down that page.
6. In other words, I agree with Council and Dr Sutherland that this reference to 'All buildings and works must comply with the following requirements:' has the practical effect in this type of situation that the various setback and landscaping requirements apply to nothing more or less than the actual buildings and works being put forward in the relevant planning permit application. As the planning permit application here is simply for two sheds and paddocks in the middle to rear section of the subject land, the scope of the relevant 'buildings and works' does not affect the front section of the subject land (making any setback requirements for 'front landscaping' irrelevant).
7. This need for a more selective application of the various landscaping provisions at the bottom of page 1 and the top of page 2 of Schedule 9 is reinforced by the fact that some properties affected by DDO9 do not even have a frontage to Fourteen Street. Yet if BSFW's logic here was fully applied, a planning permit application on such a property would still have to satisfy the mandatory requirement that there be a '4 metre landscape buffer along the front boundary to Fourteenth Street' (which would be nonsensical).
8. Turning now to my conclusion, for the reasons explained above, I have refused to grant the enforcement orders sought and directed that a permit issue in relation to the merits review. I have also reserved the costs arising in the enforcement proceeding - see my orders above.
9. For completeness, I can indicate that I have considered the proposed extra permit conditions put forward in hand-written form by BSFW at the end of the hearing, but have found same to be either misguided or excessive. With respect to the question of 'amenity impacts', I note that the 1988 Permit already has a form of 'amenity impacts' permit condition at Condition 6.

634 Benetook Avenue MILDURA, Lot 1 TP 749381U Sec 35 Blk F

Development of the land for storage and animal treatment (2 sheds and paddocks) in association with the existing veterinary clinic, in accordance with the endorsed plans:

1. Before the use and development starts, amended plans to the satisfaction of the responsible authority 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 drawn to scale with the dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) Cladding of proposed sheds to accord with the provisions of the Design and Development Overlay Schedule 9.
2. The development as shown on the endorsed plans must not be altered or modified in any way without the prior written consent of the responsible authority.
3. Prior to the development commencing, a landscaping plan designed in accordance with the provisions of Design and Development Overlay Schedule 9 must be submitted to and endorsed and will then form part of the permit. The landscaping shown on the endorsed plan must be planted prior to the use commencing and maintained to the satisfaction of the Responsible Authority. Any dead, diseased or damaged plants are to be replaced to the satisfaction of the responsible authority.
4. The proposed sheds must be sound-proofed to the satisfaction of the Responsible authority prior to the commencement of the use.
5. Prior to the development commencing, a drainage design prepared in consultation with Council's Asset Services Department must be submitted and approved by the responsible authority. When approved, this plan will be endorsed and form part of the Permit.
6. All works required as per the endorsed drainage plan must be completed prior to the commencement of use.
7. Site stormwater discharge and detention must comply with and be maintained to the satisfaction of the Responsible Authority.
8. Prior to the development commencing, if either or both of the approved sheds involve the need to dispose of waste, a Land Capability Assessment (LCA) for Domestic Wastewater Disposal (as specified in the Environment Protection Authority Code of Practice Onsite Wastewater Management 2013 (Publication 891.3) as amended form time to time) must be carried out by a qualified consultant and must be consistent with the requirements set out in the Municipal Association of Victoria's Victorian Land Capability Assessment Framework (2nd Edition 2014) (VCLAF) as amended from time to time. Alternatively, if either or both of the approved sheds involve the need to dispose of waste, then same must be connected to Lower Murray Water's sewerage when available.
9. A development contribution must be paid to the responsible authority in accordance with the provisions of the approved Development Contribution Plan contained in the Mildura Planning Scheme, prior to the issue of any Building Permit for the two sheds approved by this permit. Such payment must be in cash, although the responsible authority may, in its discretion, accepts works in kind in lieu of the requisite cash payment.
10. All relevant materials, good and supplies to be stored within the sheds approved by this permit must be properly contained within same.
11. Prior to the occupation of the two new sheds authorised by this permit, the landowner must enter into an agreement with the Responsible Authority in accordance with Section 173 Agreement of the Planning and Environment Act 1987. The agreement must be prepared by Council to provide the following:
    • Unless agreed otherwise in writing by the Responsible Authority, a rear acoustic wall of at least 3.5 metres in height (inclusive of any mounding) must be erected along the rear boundaries. The fence must be constructed upon the rezoning of the adjoining land to the south east of 634 Benetook Avenue described as Certificate of Title Vol.06570 Fol.940 or any land forming a new title from the aforementioned land parcel or at any subsequent time directed by the responsible authority. The wall must be constructed to the satisfaction of the Responsible Authority in accordance with the design principles outlined in point 2 of schedule 9 of the Design and Development Overlay.

This agreement is to be registered on the title of all lots and all reasonable costs associated with its preparation must be borne by the owner.

1. Outdoor lighting must be designed, baffled and located to prevent any adverse effect on adjoining land, to the satisfaction of the Responsible Authority.
2. The above-mentioned planning permit expires if;

a) the development or any stage of it does not start within two years of the date of issue of the permit or;

b) the development or any stage of it is not completed within four years of the date of issue of the permit.

The permit time may be extended pursuant to Section 69 of the Planning and Environment Act 1987 if a written request is received by the Responsible Authority before the permit expires or;

• within 6 months of the expiry date if development has not commenced; or
• within 12 months of the expiry date if the development has commenced and was lawfully started before the expiry date.

[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.