Mr Nicholas Tweedie of Counsel instructed by Minter Ellison Solicitors.

• Mr Glen Kell, Town Planner, Beveridge Williams;
• Mr Michael O'Brien, Traffic Engineer, O'Brien Traffic; and
• Mr Gary Daff, land owner

• Ms Nicole Taylor, Town Planner; and
• Mr David Lean, Planning Enforcement Officer

The amended application seeks permission for a vehicle store, shipping container storage and earthworks

S 77 Planning and Environment Act 1987 - review of refusal to grant a permit

Use and development of land in Green Wedge Zone - clauses 35.04-1 and 35.04-5

Development of land under Land Subject to Inundation Overlay - clause 44.01-4

Clauses 11, 12, 13, 14, 15, 17, 18, 19, 21, 22.04 and 57 in addition to clause 65.[1]

The subject land comprises one of two lots in common ownership. All operations encompassed by the application are proposed on lot 2 (east of the drainage line separating the two properties), which has an area of just under 9,000 square metres.

At the request of the parties, I conducted an accompanied site inspection between the first and second days of the hearing.

1. Mr Daff's application as amended seeks permission to use and develop the subject land for the storage of trucks, skip bins and associated equipment as well as shipping container storage.[2]
2. The responsible authority opposed the grant of the permit on the basis that the proposal was a prohibited use in the zone. It expanded its grounds of opposition to include:
   • non-compliance with planning policy/orderly planning relating to the Green Wedge Zone;
   • the use would contravene an enforcement order made by the Tribunal;
   • the proposal would generate unacceptable amenity impacts on the locality; and
   • traffic impacts were not been properly assessed.
3. A similar position was taken by the Defenders of the South East Green Wedge (Defenders). In particular, they opposed the characterisation of the land as a depot and submitted that the proposal was contrary to policy and orderly planning.
4. It is unfortunate that the precise details of the application only became clear through the hearing process, to the frustration of the responsible authority and the Defenders. A complicating factor is that the land appears to have been used for somewhat different activities in the past. The amended application appears to propose variations to the activities comprising the use, although I was advised on a site inspection that the current use of the land is precisely the use for which permission is now sought. At the time of my deliberation, I am satisfied that I appreciate the nature of the proposal and the scope of the activities proposed.
5. Against this background, the responsible authority expressed a lack of faith in the application as described. Much of this stemmed from surveillance undertaken by council staff of activities on the land to date. The responsible authority also had concerns about the potential relationship between activities on lots 1[3] and 2 which are in common ownership but separated by the open channel drain. Similar concerns were echoed by the Defenders of the South East Green Wedge, particularly that the application was piecemeal in that it did not include the use of lot 1.
6. I am only empowered to consider whether a permit can and should be granted for the use of the subject land defined as lot 2. It is not open to me to make findings as to whether the use of the remainder of the land owned by Mr Daff has relevant approvals or benefits from existing use rights. This is an issue for another day.
7. In any event, I am satisfied that the application genuinely intends to confine the use to the subject land.[4] This is supported by an apparent inability for vehicles to traverse the open drain between the two parts of the property.

1. By way of background, an enforcement order was issued by the Tribunal on 30 April 2007. It required the respondent to cease using the land for Materials recycling or a Refuse transfer station and to remove materials relating to these land uses from the property. This order pertained only to the land east of the open drain. It expressly contemplated a separate or amended permit application being made (relating but not limited to soil piles on the land).
2. The responsible authority submitted that the proposed use would result in an inability to comply with the enforcement order. This was strongly disputed by the permit applicant.
3. It is clear to me that many if not all aerial photographs and the photographs taken by Mr Taylor and Ms Lean show numerous skip bins on the eastern part of the subject land that are full of materials, including demolition and construction waste. This appears to have been a component of the former/existing use of the land. However, even if this evidence was relevant, I would be unable to make any findings about the regularity of full bins being brought onto the land or the duration they were there before being removed or emptied.
4. Mr Tweedie submitted that it was irrelevant to consider how the land was used prior to the application. He further submitted that it was open to me to find that a part/s of the proposed use are prohibited. If I ultimately arrived at such a finding, he urged me to impose conditions on the use to exclude unlawful purpose/s. Notably, he explained that the applicant would accept a permit condition preventing the sorting of soil or waste or the recycling of materials on the land. Other similar offers were made to accept conditions preventing certain activities from taking place on the land, such as limitations on the extent of overnight storage of full bins.
5. For what it is worth, I am unable to conclude from the video, photographic and oral evidence of the two council staff members that the more recent former use of the land involved unloading or sorting of waste on site. I agree with the points raised by Mr Tweedie in cross examination that indicate that this part of the evidence is inconclusive.
6. Given my principal findings below, I am not required to assess whether the grant of permit would contradict or lead to a breach of the Tribunal's enforcement order, or whether this should of itself lead to the application being refused.

What is the purpose of the use for which permission is being sought?

1. My assessment of the proposal requires me to determine how to characterise the proposed use, having regard to the real and substantial purpose of the use.[5]
2. The responsible authority submitted that permission was being sought to regularise an existing use. It formed the view that the proposed activities inherently involved either the sorting or storage of construction and demolition waste on the land, particularly by full bins returning to the land each evening once nearby landfills had closed. Consequently, it submitted that the proposed use of the land was either for a Waste transfer station/Materials recycling that could not meet the section 2 condition or a Store (as distinct from a Vehicle store), both of which are prohibited in the Green Wedge Zone.
3. The permit applicant submitted that the application was for a truck and skip bin depot (an unspecified, innominate use) or, alternatively, for a Vehicle Store - both of which are section 2 uses in the zone.
4. I find that the use centres around the hire of skip bins loaded onto trucks and their dispatch to sites, delivery of full bins to landfill and their return to the subject land as a base. I was advised by the operator that there are no vehicles or machinery on the land used for activities other than the skip hire business and general site maintenance. No unloading of bin contents or sorting of material is proposed. This was consistent with my on-site observations.
5. On this basis, I find that the real and substantial use of the land is as a depot for trucks and skip bins, for parallel reasons to those I outlined in Ansand Pty Ltd v Kingston CC & Ors No. 1[6], relying on observations of other divisions of the Tribunal as to the common components of such use. For example, the land is used as a base for staff to collect and 'switch over' trucks and bins, for administrative functions of the hire business, for parking of trucks and bins and ancillary functions such as repairs.
6. I make this finding with one important proviso - if the temporary storage of bins full of construction and demolition waste occurred on the site with regularity and at a scale that would constitute an additional use of the land, this component of the use would constitute a Transfer station. It would fall foul of the section 2 condition within the use table in the zone and this component of the use would be prohibited.
7. The statement of intended land use suggested that full bins would be kept on site only in "unforeseen circumstances". This is not correct. It is clear to me that the business model put forward involves the regular albeit temporary storage of full bins on the land, since bins are collected by the operator most evenings after landfills in the area close. A truck movement log was prepared for a week in mid December and tendered at the hearing. The applicant advised that this is the most representative evidence of its intended operations. The trucking log demonstrates that the number of full bins on the site overnight varies between zero and two per night.
8. I would have been inclined to agree with Mr Tweedie that this 'sticking point' could potentially be overcome by a planning permit condition i.e. limiting the number of full skip bins on the land each night and/or requiring them to be dispatched to landfill by a nominated time each morning. At the same time, this could create an operational and potentially enforcement nightmare. However, in view of the decision I have made about the broader planning merits of the proposal, I do not ultimately need to determine this point.
9. I consider that the storage of bins, vehicles and other machinery when not in active use is an ancillary component of the truck and bin depot use. It is subservient to the principal use and is for the same purpose. I contrast this with a Store[7]/Vehicle store[8], where the real and substantial use most commonly involves the storage of goods/vehicles principally to facilitate their stowage, stockpiling, or off-road garaging for varying lengths of time until they are needed.[9]
10. For completeness, I touch on other potential land use terms I consider less appropriate in the circumstances. I do not find the land use term Transfer station[10] apposite to cover the primary activity on the land, since it does not involve bringing used materials onto the land on their way to disposal as the real and substantial purpose of the land.
11. While the use may have involved Materials recycling[11] in the more distant past, there was nothing in the application to suggest that the collection, treating/processing, storage etc of surplus materials would re-commence on the land if the application was approved. I am also inclined to think that an activity pertaining to the materials would need to occur to activate this characterisation (e.g. its treatment in some way), in addition to simply the storage of full bins. This feature is absent.

1. Having found that the use is one for which a planning permit can be sought, subject to restrictions on the extent of temporary storage of demolition/construction waste, I turn to whether the application warrants approval. The key issue is whether the use is compatible with the Green Wedge Zone in terms of both policy and land use.
2. A long line of case authority provides that the applicant is not entitled to any advantage by virtue of the unapproved use of the land, neither should his current application be prejudiced by it.[12] At the same time, I have had the opportunity to observe business operations on the land.
3. State planning policy pertaining to Green Wedge Zoned land aims to protect these areas from inappropriate use and development. A relevant strategy includes the strategic planning and land management of such areas to promote and encourage their key features and related values. At the same time, economic development within these areas is encouraged by policy where appropriate activities are proposed. More relevant uses that are expressly supported in clause 22.04 include agriculture, horticulture, extractive industry, landfill operations, public open space facilities and low density institutional uses.
4. A difficulty in assessing this application arises because 'long range' policy for this part of the green wedge is still emerging. This is acknowledged by the parties in addition to local planning policy at clause 21.10. It provides a strategy to "continue to protect land within Kingston's non urban areas for non urban purposes until such time as the long term future of these areas is identified through a structure planning process".
5. The objectives of the Green Wedge Zone include, in summary and as relevant:
   • furthering state and local planning policy;
   • recognising, protecting and conserving land for its agricultural, environmental, landscape, recreational and tourism opportunities, and mineral and stone resources;
   • supporting sustainable land management;
   • providing opportunity for a variety of productive agricultural uses; and
   • protecting, conserving and enhancing the character of open rural non-urban landscapes.
6. The land has no instant potential for agricultural use. I accept that this part of the Green Wedge Zone is not particularly scenic at present and does not have high environmental value. At the same time, I accept Mr Ross' submission that "approval of this application would ensure that it will never become [a high quality landscape]".
7. There are a number of positive features of the proposal. The earthworks proposed by the use in combination with its existing fencing and vegetation would largely screen views of the commercial activities but would not change the land irreversibly. It also seems that the proposal would not directly affect the achievement of the Chain of Parks objectives. I find that the proposal would not generate unreasonable amenity impacts in the context of a setting with high levels of heavy vehicle traffic and few nearby dwellings.
8. The planning scheme reiterates the need to protect non-urban land from the intrusion of urban uses. While uses supporting waste disposal have a mixed urban/non urban character and can service both sectors, I consider the proposed use does not advance the objectives of the Green Wedge Zone and is insufficiently linked to them. In my opinion, it is a use that would more appropriately be located in a nearby industrial zone for example.
9. At this point, surrounding land use includes agriculture/market gardens to the north, a residence and trotting track to the west, a substantial recreation reserve generally to the south and a number of eminent golf courses to the south.[13] Mr Kell particularises surrounding land uses including nurseries, crop raising, horse riding schools and stables, animal husbandry and egg farming.
10. I agree with Mr Ross that all of these are "ideal Green Wedge activities" that is, they conform very well with the purpose of the zone and relevant policy. Mr Ross goes further to say that the "industrial waste bin/transfer station activity is very much the odd man out and a blot on the landscape" in this context. I find that the use of land for a depot associated with waste collection is not consistent with either the character or function of this part of the Green Wedge Zone.[14]
11. The fact that the use involves the routine (albeit potentially limited and temporary) storage of bins with construction and demolition waste overnight is a further indicator that the use is not one that sits well with the Green Wedge Zone provisions as a whole. The zone controls attempt to prohibit refuse transfer stations and materials recycling operations involving scrap and demolition materials. The activities on this land would have some of the hallmarks of a transfer station use as I mentioned earlier.
12. Mr Kell pointed to numerous other skip bin hire or similar operations in the area to the north east[15], a number of which are larger than proposed by this application. However, his research reveals that none are the result of recent, considered approvals - they either have the benefit of existing use rights or may be unlawful.
13. I do not regard the ad hoc existing arrangement of bin hire or similar businesses in the area as reasonable justification for this proposal. I agree with the responsible authority that, more broadly, parts of the Kingston Green Wedge are on their way towards transition from an industrial area to a more traditional green wedge.[16] To my mind, the nature of the use is such that it should not be entrenched in this part of the Green Wedge at a time when an opportunity exists to move towards a refining policy vision for this area.
14. Mr Kell's examples also highlight the live issue of precedent - a concern expressed by the responsible authority. Mr McIlwrath emphasised that:

[the issue] requires determination and a consistent approach to uses which have a functional association with industry. To that end, the 'bigger picture' is more important than asking whether the proposal will detract from the Chain of Parks.

1. There are many other potential vacant or underutilised sites in the area with similar characteristics to this site[17] that could readily be converted to similar small to medium scale depot uses of one kind or another.[18] They too could rely on a claim to support landfill operations in the area without prejudicing the future use/development of land in line with Green Wedge Policy. The cumulative effect would be to undermine the character and function of this part of the Green Wedge.
2. In my opinion, the use does not get a policy 'leg up' by contributing to the reduction or recycling of waste. It has operated and is proposed to continue to operate in the traditional waste disposal model of collection and direct deposit to landfill. On the flipside, at its modest scale, I suggest that this proposal would have an almost imperceptible impact on the effective servicing or operation of landfills in the area.
3. I have carefully considered whether to permit the use to operate on a limited basis of say 10 to 15 years as an alternative to refusing the application.[19] I consider that even this period of time would not be justified given the absence of a direct relationship with the purposes of the zone. It would also have the potential to limit the opportunity for this land to be used and developed in line with emerging policy for this part of the Green Wedge in the short to medium term. I consider that this direction is in line with local planning policy that provides an objective to ensure that:

"activities in the non urban area must be consistent with, and contribute to, optimal long term planning solutions for the whole of the south east metropolitan non urban area".[20]

1. Even with the inherent constraints of the zone and policy, I do not consider that the only feasible use of this land is as a skip bin depot. I am not persuaded by the submission that no other type of use presents as more appropriate for this site. At minimum, the land may have commercial recreational opportunities recognising its main road exposure and abuttal to a significant reserve. Alternatively, it may have a role in servicing rural activities on nearby properties given the fragmentation of lots. Other options exist and would need to be evaluated.
2. It is trite that my decision is made on the basis of the zoning and policies at the time of this decision. Green Wedge delineation and policy has been known to change over time and is often influenced by political will. If the zoning or policy setting were to shift, any new application would be considered in light of that zoning and policy.

1. If I considered that current access points to the site required upgrading or a right turn lane into the site was justified, permission would be needed under clause 52.29 of the planning scheme. Accordingly, VicRoads was given the opportunity to participate in the hearing.
2. It submitted that the existing two access points should be rationalised and the main access should be upgraded. It also requested a right turn lane into the subject land to prevent vehicles backing up in Old Dandenong Road.
3. Having regard to my principal finding above, it is not necessary for me to determine this point, although I would have been generally inclined to support the consolidation and upgrading of access but not the provision of a designated right turn lane. The road alignment appears sufficiently wide to provide for a safe passing opportunity proximate to the subject land, provided that the verge is maintained. In addition, the volumes of anticipated traffic to and from the site are not such that these works would be justified at this stage.[21]

1. I refrain from making any findings as to the extent of compliance of the current use with the enforcement order issued by the Tribunal. Both the responsible authority and the applicant may wish to take further legal advice on this point following this determination.
2. I recognise that it is still open to the applicant to apply to the responsible authority for a certificate of compliance or a declaration by the Tribunal if it can demonstrate that the use enjoys existing use rights. This would be a valid alternative to applying for a planning permit for the skip hire business, and would need to be considered separately.
3. However, if existing use rights cannot be demonstrated to the requisite degree, the use (if it continued) would not comply with the planning scheme.

[1] I have also had regard to the new provision clause 22.18 relating to materials recycling in addition to clause 22.03 relating to the Sandbelt open space project by way of background.

[2] The original application involved materials recycling.

[3] Mr Tweedie submitted that this part of the land has existing use rights and therefore no planning permit was being sought in respect of it.

[4] Although a similar operation may be conducted by a different operator on part of the land on the other side of the drainage line subject to relevant entitlements/approvals.

[5] The approach to characterisation of land use has been well documented in numerous decisions of the Court and Tribunal, although I do not consider it necessary to recite these principles here.

[6] [2008] VCAT 1804.

[7] Defined as land used to store goods, machinery or vehicles.

[8] Defined as land used to park or store vehicles in connection with a goods or passenger transport business.

[9] A similar conclusion was reached by Senior Member Byard in Ansand Pty Ltd v Kingston CC & Ors No. 2.

[10] Defined in clause 74 as land used to collect, consolidate, temporarily store, sort or recover refuse or used materials before transfer for disposal or use elsewhere.

[11] Defined in clause 74 as land used to collect, dismantle, treat, process, store, recycle or sell used or surplus materials.

[12] See Knox CC v Tulcany Pty Ltd & Ors [2004] VSC 375.

[13] Moorabbin airport is located to the south.

[14] Referencing policy in clause 22.04 of the scheme.

[15] He referred to 12 other landholdings within a 1 km radius with similar characteristics.

[16] This is reflected in a number of Panel reports in particular, as quoted by Mr McIlwrath.

[17] Other than its flat topography, main road abuttal and lack of significant vegetation.

[18] This is more likely especially if there is an economic impetus.

[19] Noting that this was generally consented to by the applicant and was requested by Melbourne Water as a referral authority.

[21] Calculated by Mr O'Brien as 13 vehicles entering and exiting the site as well as staff cars. Mr O'Brien estimates than 5 trucks may turn right in the evening peak. The current vehicle log shows approximately 10 truck movements per day. While the number of trucks used for the business could increase, I would think that it could not more than double while the subject land remains of its confined size.