Victorian Civil and Administrative Tribunal|2000-08-31

Cardinia SC v K J Rees [2000] VCAT 1659 (31 August 2000)

APPLICANT FOR ENFORCEMENT ORDER/RESPONSIBLE AUTHORITY

3 Kinsella Court, Pakenham (also known as Lot 170, PS129638, Parish of Nar Nar Goon)

1. The respondent, K J Rees, being the owner and occupier of the subject land, must within 60 days of the date of service on him of this Order:

(i) cease to use the subject land for the storage, dismantling and repair of derelict or faulty vehicles and vehicle parts;

(ii) cease to use the subject land for the purpose of Industry;

(iii) remove from the subject land all stored, dismantled, faulty, or derelict vehicles and vehicle parts.

2. Nothing in Order 1 shall require the respondent to remove his own registered motor car for his private use from the subject land.

3. The respondent must pay the Responsible Authority's Costs of this application for Enforcement Order fixed at $141.50.

1. That the responsible authority must serve a copy of this enforcement order on KJ Rees by personal service or by prepaid certified mail requesting acknowledgment of receipt.

Mr Barry Jones appeared for the responsible authority.

1. To remove all derelict vehicles, unregistered vehicles and vehicle parts from the front of the land and restore the land to its original condition.

2. The responsible authority alleges that the storage and dismantling of derelict vehicles and the storage of motor vehicle parts on the land is a prohibited use in the planning scheme.

3. When this application for enforcement order was first issued on 17 February 1999, the allegation was that the storage and dismantling of derelict vehicles and the storage of motor vehicle parts came within the definition of a `junk yard' which was a prohibited use in the Residential 2 Zone of the Pakenham Planning Scheme. On 15 June 1999, Duffy and Simon, Lawyers for the respondent, wrote to council admitting that their client stored vehicles in front of and behind the dwelling at 3 Kinsella Court, Pakenham, and seeking adjournment of the enforcement application pending the lodging of a planning permit. That letter in part reads:

Would you therefore consider consenting to adjourn the matter without hearing for a period of say five (5) weeks to enable our client to obtain the Planning Permit, obtain the Building Permit and to erect the garage.

At our meeting we also undertook to provide you details with the steps our client would take with the vehicles that are presently out the front or behind the fence at our client's premises.

The van, which is used for storage purposes, will go into the garage after construction.

The 1963 Toyota Sedan will also go into the garage.

The blue Datsun Station Wagon will be stripped for useable parts, the body will then go to the tip.

The two (2) green Toyota Station Wagons will be inspected. Parts from one will then be retained, the body then to the tip - the other green Toyota Station Wagon will be registered and become a driving vehicle.

The Torana Holden, which is parked in the driveway, is a registered and driving vehicle which our client uses.

The two (2) small trailers in front of the house will be rationalised. One will go to the tip, the other will go to the back yard, possibly into the carport.

The two (2) separate parts of the former vehicle will go to the tip.

The three (3) Toyota 1967 motor vehicles are to be rationalised. The best of the vehicles will be retained for ultimate registration and use. The other two (2) vehicles will be stripped for parts and in the meantime they will either be stored in the garage or in the car port which can house two (2) motor vehicles and which presently is used as a storage area but not fully utilised.

Would you please consider the contents of this letter urgently and then indicate to us what further steps you require from our client to ensure that the proceedings are adjourned as requested above.

4. On 23 July 1999, a planning permit issued in respect of 3 Kinsella Court allowing:

The use and development of the land for the purpose of a hobby workshop/garage generally in accordance with the approved plans.

5. That permit was subject to conditions, some of which read:

1. The use and/or development must not be commenced until three copies of plans have been submitted to and approved by the Responsible Authority. ...

4. The workshop/garage must not exceed 80 square metres floor area without the further written consent of the Responsible Authority.

5. The use of power tools, chain or circular saws, compressors, pneumatic tools, hammers or other impacting tools, or grinding equipment must be restricted to between the hours of 8am-8pm Monday to Friday and 9am-8pm Saturday. These tools may not be used on Sundays and public holidays.

6. No nuisance or annoyance shall be caused by any activity associated with the outbuilding. In particular tools listed in Condition 5 must not be used for extended periods or in a manner which might cause a loss of amenity to neighbours.

7. The building may only be used for the storage of vehicles and goods for domestic purposes. The building must not be used for the manufacture of any type of product for sale or exchange, except in accordance with the home occupation provisions of the planning scheme.

8. No unregistered or unroadworthy vehicles associated with the hobby are to (sic) left parked in Kinsella Court or on any part of the land between the house and the street.

6. On 10 November 1999, the responsible authority endorsed plans under Condition 1 of the above permit.

7. This planning permit has never been acted upon and the respondent has not built the aforesaid garage.

8. In the meantime, the Pakenham Planning Scheme, on 26 August 1999, became the new VPP format Cardinia Planning Scheme.

9. Notwithstanding repeated requests by the responsible authority of the respondent to clear the cars from his front yard, nature strip and his backyard and put them into the garage for which he now had a permit, the respondent has ignored all such requests. Therefore on 21 February 2000 the responsible authority advised that it had no option but to continue with its enforcement application.

10. The problem is that there is no longer a definition of `junk yard' in the new format planning scheme. Mr Jones was struggling with trying to slot the use of the land by the respondent into the prohibited section 3 land uses of the Residential 1 Zone, otherwise it could form an innominate section 2 use.

11. As the land is zoned Residential 1, it can be used for the purposes of a dwelling and home occupation under Section 1, where a permit is not necessary. `Industry' and `Motor repairs' are each a prohibited Section 3 use and `store' is a permit required section 2 use. `Materials recycling' is nested under the definition of `industry'. Innominate uses are able to seek a permit under Section 2.

12. Some of these definitions have problems associated with them, in trying to relate them to the former junk yard use and definition. These definitions are:

Land used for any of the following operations: ...

b) dismantling or breaking up of any article; ...

e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; ...

If on the same land as any of these operations, it also includes:

a) storing goods used in the operation or resulting from it;

b) providing amenities for people engaged in the operation;

c) selling by wholesale, goods resulting from the operation; and

d) accounting or administration in connection with the operation.

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

Land used to collect, dismantle, store, recycle, and sell, used or scrap materials (Tribunal emphasis added).

Land used only to store goods, machinery, or vehicles.

15. Mr Jones advised the Tribunal that the respondent does not carry on any occupation on the land with respect to the vehicles thereon. It is his hobby to collect cars and dismantle them or parts of them. There are (approximately) nine cars stored on his land, most in the front yard and some in the back. Mr Jones tendered photographs that he took on 14 December 1999 and 8 March 2000 as well as photos taken by his predecessor on 28 May 1999, 16 June 1999 and 22 June 1999 (all of which remain on the Tribunal file) which indicate at least nine car bodies and cars being stored on the front yard and backyard of the subject land.

16. The problem is however that the definition of junk yard which was included in the old format planning schemes, has not been translated into the new format planning schemes with the precise words previously used. The definition of junk yard in the pre VPP format planning scheme reads:

* Collecting, storing or selling scrap metal, second-hand timber, second-hand building materials, second-hand containers, waste paper, rags, bottles or similar materials vehicles.

* Collecting, dismantling, storing or salvaging motor vehicles or machinery or parts of them.

17. However there is now no definition of junk yard in the VPP format schemes, and the problems with the current definitions in the planning scheme are as follows:

(i) Materials recycling involves sale and Mr Jones advised the Tribunal that the respondent neither sells, nor trades in, the cars or their parts.

(ii) The storing of goods or vehicles must be the only use conducted on the land and this land is being used as a dwelling as well.

18. Therefore, unless Mr Rees' hobby can be caught under the definition of `industry', there appears to be a hiatus in the planning controls, whereby what could previously have been caught under the definition of `junk yard' as a prohibited use in the residential zones, is no longer caught in precisely the same way. Certainly the mere collecting and storage of `junk', in the vein of Steptoe and Son (where the article is not at the same time being dismantled or repaired) would, it seems to me, not be caught by the VPP definition of `industry'. On the other hand, were there some sort of commercial element involved with these cars or their bodies or parts, the respondent could be in breach of the materials recycling definition in the planning scheme.

19. The responsible authority should look urgently to advising the Minister of the defect in the materials recycling definition of the subordinate legislation, which should be remedied to then give the council a cause of action in the Steptoe and Son scenario.

20. The question I have to consider is whether the use of the land for the hobby of tinkering with and dismantling cars and car parts is ancillary to the dwelling, and therefore a lawful one which cannot be caught under other provisions of the planning scheme, or whether it can be caught under the definition of industry. The previous `junk yard' definition was so broad as to include that hobby, with no commercial element whatsoever, as a prohibited use.

21. The "home occupation" definition does not help Mr Rees because the parameters of the requirements of that definition are exceeded in this case. I refer to the gross floor area used in conducting the occupation not permitted to exceed 50 square metres or one-third of the gross floor area of the dwelling, whichever is the lesser (without a permit) and materials or goods must be stored within a building.

22. Whether a use of the land is ancillary to the dominant use (in this case of a dwelling) is always a matter of fact and degree. See Lizzio v Ryde Municipal Council (1983) 155 CLR 211. In that case it was held that having regard to the regularity and extent of the activities involved in selling out the front of the house, flowers grown on the land and neighbouring land, the activity was not incidental to use of the land as a dwelling. The High Court adopted the opinion of Cripps, J of the Court of Appeal:

In my opinion the selling of fifty bunches of flowers each week in the manner these flowers are sold could not be described as an activity ancillary to the use of a dwelling-house in the sense that it should be regarded as an integral part of that use (as for example in the case of a garage attached to a dwelling-house). The mere fact that an item had been sold from a dwelling-house would not, in my opinion, necessarily require the conclusion that the activity resulted in a separate use; but the sale of fifty bunches of flowers each week from a make-shift stall could not be regarded as an activity ancillary to the ordinary use of a dwelling house.

23. In Shire of Flinders v. Dalton (1990) 5 A.A.T.R. 174, Mr. G. Testro referred to a decision of Ms Helen Gibson in City of Whittlesea v Russell P89/1016 heard 19 July 1989):

"The activities of Mr. Dalton might appear to gain some support from City of Whittlesea v Russell (Appeal No. P89/1016 heard on 19th July 1989). In that case, a Division of the Tribunal constituted by Mrs. H. Gibson had to give consideration to the use of property in a Residential C Zone. It was said that repair work was carried out on various vehicles at the address and that the back yard was littered with car doors, tyres, motor mowers, bikes, tools and equipment, a trailer, various cars and other bits and pieces. It was described as a "messy backyard".

The Tribunal held that the use was not that of a junkyard and that:

"the items stored there appear to be no more than are ancillary to...(the) ....use of the land as a residence and activities which he legitimately carries out there as a resident. To be using land as a junkyard implies that the goods or materials collected, stored or sold go beyond what may be reasonably deemed to be personal belongings. The Tribunal does not consider that the definition of junk yard can be used to impose some arbitrary standard of tidiness on the resident. The Collection, storage or sale of goods or materials must constitute a separate use in itself of the land and not be merely ancillary to some other use, for example a detached house used as a residence".

The use which is complained of in the current Appeal, in the view of the Tribunal, had grown to such an extent that it could no longer be regarded as reasonably incidental to the residential use of Mr. Dalton's property and this, therefore, distinguishes it from Russell's case."

24. In my opinion, the use of the land for the hobby of dismantling, storing and repairing approximately nine cars and car parts is out of proportion to what could reasonably be accepted as an activity incidental to a residential use, or ancillary to the ordinary use of a dwelling. The very number of cars, car bodies and car parts militates against this as an ancillary use and pushes it `over the boundary' as a separate and distinct use of the land. It is not merely a `messy back yard'. Shire of Flinders v Dalton (1990) 5 AATR 174 @ 179 followed; City of Whittlesea v Russell distinguished.

25. Is Mr Rees' use an industry? It is clear from the photographs and evidence provided by Mr Jones that the respondent is dismantling, breaking up, and possibly repairing vehicles that he stores on the subject land.

26. Taken at face value, the definition of industry does not mandate a commercial element, although in Monash v Wood [1999] V.C.A.T. 1882 (3 November 1999), Deputy President Bruce thought a commercial element may be implied in the former (pre-VPP) definition of industry.

27. Certainly, in the definition of industry, there is a secondary, or ancillary, list of activities, some of which contain a commercial element, eg selling by wholesale or, in the case of materials recycling, may be sold by retail. However, in my opinion, the introductory words "if on the same land as any of these operations, it also includes', are not intended to include matters which must exist as part of the base definition in every case. These words merely indicate that where these additional or ancillary uses are present, they can be regarded as part of the land use term `industry'. That leads to the conclusion that the absence of any of those secondary matters in this circumstance, is no bar to characterising the use as `industry' if it falls within any of the first six paragraphs of the definition.

28. I am fortified in this view because, were it otherwise, a whole class of previously objectionable land uses, inappropriate in residential areas, would be free from the sanction which the previous `junk yard' definition applied to them.

29. Accordingly, I issue the Enforcement Order in the above terms, but urge the Minister and draftspersons responsible for the VPP-format planning scheme definitions to give consideration to amending the definition of materials recycling or including the pre-VPP format definition of junkyard in the VPP-format schemes.

Cardinia SC v K J Rees [2000] VCAT 1659

At a glance

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Decision date

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Judgment (77 paragraphs)

Cardinia SC v K J Rees [2000] VCAT 1659 (31 August 2000)

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Cases Cited (1)