Check v Frankston CC [2006] VCAT 2557

1 The application for an enforcement order is disallowed.

2 The application for review is disallowed.

3 The decision of the Responsible Authority dated 13 July 2006 is affirmed. A permit is granted for the construction of a shed, display of a business identification sign and the removal of one tree in accordance with the endorsed plans at 408 Warrandyte Road, Langwarrin South.

4 The Responsible Authority is directed pursuant to Section 85 (b) (ii) Planning and Environment Act 1987 to grant a permit for the construction of a shed, display of a business identification sign and the removal of one tree in accordance with the endorsed plans at 408 Warrandyte Road, Langwarrin South generally in accordance with the Notice of Decision to Grant a Permit dated 13 July 2006 but modified as follows:

External lighting must be designed, baffled and located so as to prevent any adverse effect on adjoining land to the satisfaction of the responsible authority.

1 Mr Ivan Check and others have lodged two applications before the Tribunal, one relates to the review of the decision of the Responsible Authority to grant a permit (P1940/2006) for the construction of a shed, display of a business identification sign and removal of one tree and the other seeks an enforcement order (P2114/2006) requiring the removal of illegal buildings and works including signs and lighting at 408 Warrandyte Road, Langwarrin South.

2 Mr Check is the owner of 410 Warrandyte Road. His property has a common boundary with the southern boundary of the subject land. The other applicants are owners of properties in Newton Avenue which is to the south and east of the subject land.

3 The site has a history of permit applications as well as disputes between the owner of the subject land and Mr Check and the other adjoining property owners.

4 The site is approximately 3.2ha in total area with a frontage to Warrandyte Road of 179m, a 230m northern boundary, a 244m southern boundary and a 100m rear eastern boundary. The site is contained in two titles and is used as a motor wrecking yard. Access to the site is from Warrandyte Road to an area for customer car parking which also provides access to a relatively new customer service building. There is an area containing several old buildings and what appears to be an old shipping container located close to the frontage of the site where cars are partly dismantled and parts are stored, as well as an area where cars are stored when first brought to the site. Two dwellings form part of the site one adjoining the area of the sheds and the other on the southern boundary. Both have their frontages to Warrandyte Road. The remainder of the site contains rows of stored cars separated by access aisles.

5 The site is located within the Low Density Residential zone under the Frankston Planning Scheme. It is also affected by Design and Development Overlay Schedule 4 (Langwarrin Rural Residential Area), Development Plan Overlay Schedule 1 (Carrum Downs, Langwarrin and Baxter Outline Development Plan) and Significant Landscape Overlay.

6 A motor wrecking business has been conducted on the site in various forms starting in approximately 1953-54 as a small garage and motor repair business. This use was expanded in 1958 with the purchase of an adjoining lot with the storage of motor vehicles on part of the land. The current owner of the site purchased the property in 1992 and has continued to conduct a motor wrecking business on the site.

7 Under the current planning scheme a motor wreckers yard would fall within the definition of industry which includes the dismantling or breaking up of any article and also includes storing goods used in the operation or resulting from it; providing amenities for people engaged in the operation; selling by wholesale, goods resulting from the operation; and accounting or administration in connection with the operation. Industry under the provisions of the zone is a prohibited use.

8 As the use has been conducted on the land for a considerable period of time the respondent relies upon existing use rights[1] to continue to conduct the use on the land. The applicants have questioned the existing use rights and the extent of those rights. A number of permits[2] have been granted in relation to buildings and works on the land based on the respondents existing use rights and there have been several Tribunal decisions[3].

9 The respondent proposes to demolish a number of dilapidated sheds and what appears to be an old shipping container on the site and in there place construct a shed 490m² at a maximum height of 5.65m. The new shed is to consist of 337.5m² of storage area and 151m² of vehicle dismantling area setback 4.5m from the Warrandyte frontage. The walls and roof are to be green colourbond. Signage on the façade of the existing building is to be repainted on the new building and a new sign is proposed to be constructed at the southern boundary of the Warrandyte Road frontage similar to the existing sign on the northern side. A eucalyptus tree in the eastern part of the site is to be removed to allow for the construction of the new shed.

10 The notice of decision to grant a permit requires a reduction in the area of the shed to 440m² being the combined area of the demolished sheds, the building to be setback 7.5m from Warrandyte Road and the deletion of the southern signage. The respondent has not appealed these conditions.

11 It is in relation to the dilapidated buildings proposed to be removed to enable construction of the new shed that the applicants contend have been placed on the site illegally, should be removed and the respondent should not be permitted to rely upon the combined area of these existing sheds to construct a shed of the size proposed.

12 Clause 63.01 of the planing scheme provides that an existing use right is established in relation to land if there is proof of continuous use for 15 years under clause 63.11. Clause 63.11 allows a person to rely upon the existing use having been conducted on the land for a period of 15 years or more and it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

13 The Tribunal in a determination dated 23 July 1997 concluded the land was used as a motor wreckers yard and it had been so used even prior to the first planning controls for the area in 1960. The Tribunal made reference to a letter dated 8 March 1988 from the Responsible Authority acknowledging the land had existing use rights and reached the conclusion that the whole of the land, that is the two lots that make up the subject site have exiting use rights. In reaching its conclusion the Tribunal referred to City of Nunawading v Harrington[4] which established that 'when land may be properly regarded as an integrated whole, it is unnecessary to show that all of it is used for the non-conforming use purpose: the whole of the land may be regarded as used for that purpose notwithstanding that part of the land is unused'.

14 The respondent, the current owner of the site has continued the use on the site since the purchase of the property in 1992. The existing use has therefore been carried out continuously for a period in excess of 15 years.

15 The applicants referred to a number of buildings on the site which they submit have been illegally constructed without the necessary planning permits. They were not able to provide dates as to when these buildings were illegally constructed.

16 The respondent submits all the buildings apart from the recent customer service building all existed on the site prior to the purchase of the site by the respondent in 1992. The respondent submits he has not constructed any of the buildings referred to by the applicants as illegal buildings. Even if the respondent has added to some of these buildings also alleged by the applicants and for which I make no finding, an existing use right can still be maintained even if the use did not comply with the scheme immediately prior to or during the 15 year period unless either before or after the commencement of the 15 year period the use had been held to be unlawful or during the 15 year period the Responsible Authority had given written direction for the use to cease.

17 The applicants indicated they had made several complaints to the Responsible Authority regarding the illegal construction of sheds in 1996 but no action was taken by the Responsible Authority. The Tribunal then concluded in its 1997 determination that the land had existing use rights. The plan provided at this time and which now forms part of permit 96-325 shows the extent of the existing buildings on the land at the time of the granting of that permit. Permit 96-325 allows for buildings and works in accordance with the endorsed plans. These works were described in the Tribunal's 1997 determination to include tree planting along the south and east boundaries; the laying of crushed rock for access aisles; extension of a temporary drain; construction of a screen 2.0 metres high fence generally in the south west corner of the site; and construction of a cyclone wire fence along the north east and south property boundaries. The endorsed plans although identifying the existing buildings on the site does not give planning approval to those buildings as they existed on the land prior to the Tribunal's determination in 1997 they form part of the existing use rights.

18 Based on the Tribunal's previous 1997 determination and the information put to me I find that the land has existing use rights which are continuing to this day. I also find that the use of the land as well as the construction of the buildings were possibly commenced and constructed at some point without a permit. Even though they may not have complied with the planning scheme I find that certainly immediately prior to the coming into force of the new planning scheme on 13 April 2000 they existed and during the previous 15 years there has been no decision of any court or tribunal determining the use or construction of the buildings that conclude the use is unlawful.

19 Although there has been several enforcement applications to comply with permit 96-325 there has never, to my understanding, been any specific written request by the Responsible Authority that the use cease due to its non compliance with the planning scheme. It is noted in this respect that the Responsible Authority as early as 1988 acknowledged the land has existing use rights; it has also granted permits for buildings and works in reliance on the existing use rights and has included a reference to the land having existing use rights within the planning scheme[5].

20 As the land has existing use rights even if the use is prohibited under the current zone provisions if a new building is proposed to be constructed on the land then under the provisions of clause 63.05 a permit is required for the construction of the new building and the relevant provisions of the planning scheme in relation to the requirements for the construction of buildings applies.

21 The applicants object to the construction of the new shed in place of the several dilapidated sheds that currently exist on the site and are proposed to be demolished. It is the applicants' view that reliance upon the total area of the existing dilapidated sheds is inappropriate in seeking to construct one shed of 490m². It is also their view that to permit a new shed in place of the existing dilapidated sheds will further entrench the existing use on the site and will lead to an intensification of the existing use.

22 The new shed will certainly improve the look of the site. At a height of 5.65m it is not considered it will dominate the area. It is noted that within this Low Density Residential area there are a number of large sheds on surrounding properties and it is not considered that this shed at the proposed size and height is unreasonable in this location.

23 It is recognised that if this new shed is not permitted the respondent can still continue to carry on his business on the site. Although an application for a shed with an area of 450m² [6] and a height of 7.25m was previously rejected by the Tribunal this did not result in the respondent relocating his business. It was evident from an inspection of the site that each of the dilapidated sheds to be removed are currently being fully used either as work or storage areas. It is not unrealistic therefore that a similar area is required by the respondent for his storage and work requirements. I do note that a part of the recently constructed customer service and amenity building is used for some storage but this is very minor, although this allows for the storage of parts to be sold across the counter referred to by the Tribunal in refusing the previous application for a new shed on this site.

24 Permitting a new shed to replace several dilapidated sheds is not permitting an extension of or for that matter an intensification of the use. It is I believe an unrealistic expectation by the applicants that by refusing to allow for a new shed on the site rather than having dilapidated sheds remain will result in the use ceasing. This use has continued for at least 50 years on the site. Although there is reference in the Outline Development Plan to not encouraging this use to continue there is nothing within the planning scheme itself that indicates an existing use right whether commenced illegally or not should not be permitted to continue to operate. The whole purpose of clause 63 of the planning scheme is to allow such uses to continue subject to the requirement for a permit for new buildings and works.

25 The provisions of clause 63.05 allow a prohibited use to continue provided any a permit is obtained for buildings and works. This provision came into effect when the planning scheme came into effect on 13 April 2000. Since that date it is understood that no buildings or works have been constructed without a permit.

26 The construction of a new shed in this location on the subject site will certainly improve the site which but for the dilapidated sheds appears to be a very well organised and well maintained motor wreckers yard. The applicants referred to the failure of the respondent to comply with the requirements of permit 96-325 in relation particularly to the planting of trees along the southern boundary as well as the construction of a fence in this location. An inspection of the site revealed that planting had been undertaken along this boundary and the fence was in the process of being constructed. I noted that planting has previously been carried out on the eastern boundary and this now provides a reasonable screen to adjoining properties.

27 Mr Check indicated he had not removed a number of dilapidated chicken sheds from his adjoining property so that he did not view the subject site. I see no real difference between the rather unsightly dilapidated chicken sheds on Mr Check's property and the rather unsightly and dilapidated sheds on the subject site, neither add to nor improve the general landscape or visual amenity of the area. Mr Check's land rises slightly above the subject land. The screen planting along the southern boundary, when it reaches maturity will provide a certain amount of screening of the subject site from Mr Check's property. I would expect that if Mr Check was really so concerned with being able to view the subject site that he could also undertake screen planting along his side of the boundary as well as slightly higher on his land in the vicinity of the old sheds.

28 The construction of the shed being the replacement of several other sheds is not seen as resulting in the activities currently occurring on the site being increased. Whilst there may at times be a certain amount of noise related to this use this has always been the situation. A new shed is not going to necessarily change the extent of any noise that from time to time emanates from the site. The openings of the new shed are to face north and away from the applicants' properties to the south and east and could provide for a more effective noise barrier than the existing dilapidated sheds. Instead of several dilapidated sheds with little or no room to carry out activities associated with the use it is more than likely the shed of the size proposed will result in more of the on site activities being conducted in the shed rather than in the surrounding yard area. This could result in less impact upon the surrounding properties.

29 Concern was expressed that the shed will allow for activities such as loading and unloading, pick up and delivery to be conducted anytime of the day or night, 365 days per year. As the site has existing use rights with no constraints on operating times these activities could occur at present without the new shed but it is understood that the activities are generally confined to daylight hours.

30 Great emphasis was placed on the failure of the respondent to comply in a timely way with permit 96-325. Failure to comply with one permit does not mean that a future permit will not be complied with but if this does occur then there are applications that can be brought to ensure compliance. Each situation must be considered on its own facts and circumstances. In the present matter the respondent is expected to have completed the outstanding landscaping and fencing requirements under permit 96-325.

31 As previously stated I find the whole of the site has existing use rights as a motor wreckers yard. The dilapidated buildings on the site were more than likely constructed illegally, without a permit they however form part of the land that has existing use rights and the existing use rights extend to these buildings. The dilapidated sheds said to be illegally constructed are to be removed to enable the construction of a new replacement shed. The new shed will assist in improving the site and as a result the visual amenity of the area. The new shed will not change the already existing activities that can occur on the site under its existing use rights. The size and location of the shed will be in keeping with other similarly sized sheds evident in the general area and will therefore not be out of keeping with the Low Density Residential nature of the area.

32 For the above reasons the application for an enforcement order is disallowed. The decision of the Responsible Authority to grant a permit for the construction of a shed, a business identification sign and removal of a tree is confirmed. I however consider an additional condition should be incorporated in the permit requiring any external lighting that might be placed on the new shed to be baffled to not cause unreasonable impact on adjoining properties.

[2] Permit 99073 31 March 1999 allows buildings and works within the 20m setback to install a septic tank system; Permit 99557 23 November 1999 allows buildings and works within 20m of a boundary to install cyclone fencing along he southern boundary; Permit 99616 17 February 2000 allows buildings and works to install an enclosure and removal of two trees; Permit 02559 10 September 2002 allows the construction of a shed to one of the dwellings; Permit 040597 10 September 2004 allows for a Customer Service and Staff Amenity Area.

[3] Harvey Wreckers v City of Frankston & Ors 1997/14018 (23 July 1997 and 10 October 1997); Frankston CC v Kaybea Pty Ltd and Harvey Wreckers Pty Ltd [1999] VCAT 1879 (3 November 1999); Frankston CC v Kaybea Pty Ltd & Harvey Wreckers Pty Ltd & Ors [2000] VCAT 1149 (12 May 2000); Frankston CC v Kaybea Pty Ltd & Ors [2002] VCAT 365 (14 May 2002)

[4] [1985] VicRp 64; (1985) 55 LGRA 139

[5] Clause 43.04 - Development Plan Overlay 1 (Carrum Downs, Langwarrin and Baxter Outline Development Plan)

[6] I Check and others v Frankston City Council & Harvey Motor Wreckers (1997/86823)