Mr Barry Jones, Planning Investigations Officer. Mr Jones gave sworn evidence on behalf of the council.

(Lot 12, PS 438895J)

Unauthorised use of land for the purpose of a Vehicle store contrary to clause 32.01-1 of the Casey Planning Scheme

1. By 6 February 2012, Ricky Graham Mettes must remove all vehicles from the land including trucks, backhoes, bobcats and associated equipment to the satsifaction of the responsible authority EXCLUDING the owner/occupier's personal car or boat and a single registered truck used for the owner/occupier's transport to/from work.
2. From 6 February 2012 the land must cease being used for a Vehicle store. The vehicles removed from the land under Order 1 must not be returned to the land except with the further consent of the responsible authority.
3. The applicant must serve a copy of this order on the owner and occupier of the land pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

1. The subject land is located in the Low Density Residential Zone. Recent aerial photography tendered at the hearing reveals a highly pleasant residential setting comprised of single dwellings on large, generally well landscaped and well maintained allotments.
2. The responsible authority alleges that in addition to the residential use of the property (which occurs within a shed type structure), the land is being used for the purpose of a Vehicle store or similar. It is concerned about the character and appearance of the subject land and has received complaints from local residents over approximately two years.

1. Mr Jones gave sworn evidence (supplemented by photographs) that the land is being used to store reasonably large numbers of vehicles and equipment.
2. The planning scheme at clause 74 defines Vehicle store as:

Land used to park or store vehicles in connection with a goods or passenger transport business.

This use is 'nested' within the broader land use term Warehouse.

1. Mr Mettes resides on the property and uses a truck in his occupation which he parks on the property when not in use. In addition, other people park their cars on the land and drive trucks and other vehicles (mostly 10 cubic metre tray trucks associated with a carting business) off the property in the morning, returning in the evening. These vehicles are usually parked on the property on weekends.
2. This is associated with a level of commercial activity and noise not ordinarily expected in a residential court location of this zoning.
3. The responsible authority was unsure where the business operated from in the sense of taking bookings or rendering accounts and the like. I note that there is no requirement in the definition of Vehicle store for the 'actual business' to be carried out on the land. So long as vehicles associated with the commercial haulage/cartage of goods are parked or stored on the land with the requisite scale and regularity, the purpose of the use will be made out.
4. Whilst it may be arguable that the land is being used for a car park or for an unspecified land use such as a contractor's depot, I am of the view that the definition Vehicle store is more aligned to the purpose of the actual use.
5. I was also advised by way of background that Mr Mettes had given certain undertakings to the Magistrates' Court in May 2011 to remove identified structures/equipment and vehicles from the land. The council considers that this undertaking has been breached in that no meaningful works have occurred since that time.[2]
6. I am satisfied that the land is being used for two purposes - as a dwelling (which is of right) and as a Vehicle store which is unauthorised in the Low Density Residential Zone. I propose to exercise my discretion to bring the land into compliance with the planning scheme since the current operations are clearly causing visual impacts on their surrounds. There also appear to be consequential noise and broader impacts involved with bringing commercial traffic such as that associated with a depot into this residential location on a regular basis.
7. I consider that the orders sought are reasonable, to require the removal of the vehicles and equipment and to require the cessation of the use within two months. This will allow time for the respondent to arrange an alternative, more suitable location for his operations.
8. At the same time, I propose to make an allowance for a single registered truck to park on the land provided it is used directly for the owner/occupier's travel to work. It is also reasonable to permit private passenger vehicles directly used by the owner/occupier in addition to a boat or similar which relates to the domestic use of the property.
9. I agreed to award costs against the respondent to cover the council's out of pocket fees for lodgement of the application, photography, title searches and the like. An itemised list was tendered at the hearing and is retained on the Tribunal's file.

[1] I am satisfied that the Tribunal's hearing notice appears to have been correctly addressed and posted with sufficient notice. In addition, Mr Jones gave evidence that a work colleague who knows the respondent personally had confirmed that he was aware of the proceeding.

[2] This is in addition to Planning Infringement Notices that remain outstanding.