A rectangle of land having a frontage of 20.12m to the west side of the Bunyip-Modella Road, a depth of 100.58m and an area of 2023.67 sq m.

MEDIUM NEUTRAL CITATION: [2003] VCAT 103

1. The respondent Tony Lamanna is ordered, within 90 days of service on him of a copy of this order, to cease using the land for materials recycling and/or as a store (within the meaning of those terms in the Cardinia Planning Scheme) and to remove from the land the accumulation of used motor vehicle tyres stored in the open thereon and he is further ordered not to start or recommence either such use of the land (except, in relation to the use of the land for a store, if and when a valid planning permit is in force for such use as a store) and he is further ordered not to store or accumulate used motor vehicle tyres in the open air on the land or to bring or return such tyres onto the land for storage in the open air.

2. The respondent Tony Lamanna is ordered to pay $397.15 to the Responsible Authority for costs in relation to these proceedings within 21 days of service on him of a copy of this order.

3. Leave is granted to the Responsible Authority to withdraw this application in so far as it relates to Timothy Frederick Gray and the application, in so far as it relates to Timothy Frederick Gray is withdrawn in accordance with such leave.

Mr Barry Jones, Planning Enforcement Officer of the Shire of Cardinia, appeared for the Responsible Authority.

There was no appearance by or on behalf of the Respondents.

Application under Section 114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Storage of used tyres contrary to Condition 6 of Planning Permit T94/467 issued by the Responsible Authority on the 31 January 1995.

The abovementioned Respondent Timothy Frederick Gray.

The abovementioned Respondent Tony Lamanna and his wife Bernadette Lamanna.

Industrial 1 Zone and subject to a Land Subject to Inundation Overlay under the Cardinia Planning Scheme.

1. This case was before me on the 30th of September 2002. On that occasion Mr Tony Lamanna, the first-named respondent, appeared in person. Following the hearing on that day I issued an interim determination dated the 8th of October 2002. In that document I set out the circumstances in relation to the case and explained, in some detail, the legal position in relation to it. This was in an attempt to assist Mr Lamanna, and to ensure that he understood his position.

2. On that previous occasion the case was adjourned to an Administrative Mention on the 12th of December 2002. This adjournment was on the basis of an undertaking by Mr Lamanna that he would remove from the land one-third of the used vehicle tyres stored out of doors on the land by Monday the 9th of December 2002. He also undertook not to bring any more such tyres onto the land in the meantime.

3. Mr Jones' evidence on the 21st of January 2003 is that this undertaking was not honoured. One-third of the tyres were not removed from the land by the 9th of December 2002, and have not since been removed.

4. It was contemplated at the hearing on the 30th of September 2002 that Mr Lamanna would apply to the Responsible Authority for a planning permit to use this land for an industrial purpose namely the collection, sorting and sale or shredding of used motor vehicle tyres. The land is in an Industrial 1 Zone. As such a permit is needed to use the land for industry. A permit is not needed for industry if certain conditions specified in Section 1 of the Table of Uses in the relevant zone provisions are satisfied. However, in this case one of the conditions is that the land must be not less than 30m from land used for a school. In this case the land is less than 30m distant from a primary school. In fact it is only 3 or 4m away. Consequently a permit would be necessary to use the land for any form of industry. No such permit exists.

5. Notwithstanding the above provision in relation to industry, materials recycling is a form of industry that is prohibited under the Planning Scheme and for which a permit cannot be granted The proposed activity of storing, sorting, selling and shredding of tyres is prohibited if it comes within the definition of materials recycling. This matter was discussed in the previous interim determination. The evidence given by Mr Lamanna on the previous occasion indicates that this is the reason for the collection of many thousands of used tyres on the land. Even if the activity was regarded as a store for used tyres, a permit would be required. No such permit exists.

6. Mr Lamanna lodged a permit application on the 13th of November 2002 and notice of the application was given. Three objections were received. Two were from people occupying nearby houses in the Industrial 1 Zone and the third was from the nearby school.

7. The Responsible Authority subsequently considered the application and the objections and determined to refuse to grant a permit. A copy of the Notice of Refusal to grant a Permit dated 20th of January 2003 was tendered at the latest hearing. I note that this Notice was only given to Mr Lamanna on the day before that hearing. The refusal is on the ground:

"The use of the land for Materials Recycling is a prohibited use under Clause 33.01-1 Industrial 1 Zone of the Cardinia Planning Scheme."

8. It can be seen from this notice that the Responsible Authority has taken the view that the proposed use is for materials recycling. That, as I have said, is a prohibited use for which permission cannot be granted.

9. As a matter of procedure, it is possible for Mr Lamanna to appeal against the decision of the Responsible Authority to refuse to grant him a permit. However, in that event, he would have to overcome the proposition that the correct classification of his proposed activity is materials recycling. He would have to persuade the Tribunal that his activity was really some form of industry other than material recycling or, perhaps, use of the land for a store. Even in those circumstances he would still need to persuade the Tribunal, on the planning merits, that such use was appropriate in town planning terms. In doing this he would have to deal with the circumstance that the land adjoins the school.

10. Mr Jones gave evidence that he had spoken to Mr Lamanna on the day before the latest hearing. He reports Mr Lamanna as saying that he would attend if he could but that, in any event, he wished to be given reasonable time to acquire other premises and to relocate the tyres. There was no mention of an intention to apply to this Tribunal for a review of the decision of he Responsible Authority to refuse to grant the permit it applied for.

11. Mr Lamanna has already had considerable time in which to deal with his problem in relation to these premises. The hearing on the 30th of September 2002 was over three months ago, and he has apparently taken no steps to take advantage of the consideration extended to him at that time. In particular he has failed to make good his undertaking in relation to the removal of tyres.

12. The problem of his tyres on this land has been accumulating over the calendar year 2002, and the Responsible Authority first took action in relation to the matter in May 2002 which is, of course, over six months ago.

13. It appears that Mr Lamanna has got himself into a difficult situation. He has acquired this huge number of tyres now stored on the land with a view to shredding them. In doing so he has received payment from other tyre businesses wanting to get rid of the tyres. I do not know what Mr Lamanna has done with the funds so acquired, but he has not obtained suitable premises and planning permission, nor, as far as I am aware, a shredding machine or finance to purchase such a machine. He has the difficulty of now having to remove the tyres from the land and to find him somewhere to place or dispose of them, to say nothing of the expense of doing so. Mr Jones informs me, by the way, that he has a similar problem in relation to his residential property at 94 Hope Street, Bunyip. That house is in a Residential Zone. Apparently he has many more thousands of tyres stored on his house property.

14. Whilst it is easy to have sympathy with the predicament in which Mr Lamanna has placed himself, I also note that he has not taken advantage of the opportunities and assistance that has been extended to him in relation to extracating himself from that position. The fact that he has placed himself in some difficulty does not justify him in continuing to break the law in relation to misuse of this land and his storage of tyres upon it.

15. I should add, as was discussed in the previous interim document, the Responsible Authority claims that the storage of these tyres is in contravention of Condition 6 to Planning Permit T94/467 in relation to the land. It was pursuant to that permit that the existing factory building on the land was constructed. Condition 6 provides that the use of the factories (three were originally contemplated although only one has been constructed) is not to detrimentally affect the area by way of (amongst other things) "waste products, unsightly material or otherwise". I consider that the huge accumulation of used tyres in the open air on the land is a contravention of that condition.

16. I have mentioned that the factual and legal position in relation to Mr Lamanna's use of this land is set out, in some detail, in the remarks attached to the interim determination. I adopt what I said in that document.

17. I am satisfied, on the evidence, that the use of the land, in so far as it relates to the accumulation of used motor vehicle tyres in the open air on the land and without planning permission is contrary to the Planning Scheme, quite apart from any contravention of Condition 6 of the above-mentioned permit. In the circumstances Mr Jones has renewed the application, on behalf of the Responsible Authority, for an enforcement order. He has asked for an order requiring removal of the tyres within 90 days. This is a generous allowance of time, but I understand it is suggested because of a recognition that there are genuine difficulties. Nevertheless, the existence of such difficulties does not justify a continuing breaking of the law or a continuing failure to rectify the situation. I accept the proposal that 90 days should be allowed. I do not think that it would assist greatly to specify so short a period with which Mr Lamanna would have no real chance of complying. Nevertheless I allow the 90 days in the expectation that it will be complied with.

18. Mr Jones has sought an order for $397.15 costs in relation to disbursements incurred by the Responsible Authority in bringing these proceedings. I will make such an order.

19. Mr Jones also sought leave to withdraw the application in so far as it relates to Mr Timothy Frederick Gray, the owner of the land. Such leave is granted.