Victorian Civil and Administrative Tribunal|2002-05-17

De Haan v Casey CC & Ors [2002] VCAT 644 (17 May 2002)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Planning List - Section 77 Planning and Environment Act 1987 - Casey Planning Scheme - Environmental Rural zone - Significant Landscape Overlay - Environmental Significance Overlay - Contractors depot - proper categorisation of use- planning policy - application of overlays - residential amenity in rural environment - traffic.

MEDIUM NEUTRAL CITATION: [2002] VCAT 644

The Responsible Authority's decision to refuse the grant of a permit with respect to permit application no. P108/01 is set aside. A permit is granted for the use of land at 135 Vowell Road Pearcedale for the purpose of a Contractor's Depot in accordance with the endorsed plan. The permit must contain the following conditions:

1. Prior to the commencement of the use, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved, to the satisfaction of the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(b) the internal layout of the shed including the use of each area and the layout for the parking/storage of vehicles and construction machinery;

(c) the area set aside for staff parking with not less than eight spaces to be provided;

(d) the area where commercial vehicles, construction machinery and materials are to be kept and/or stored outside the shed, and

(e) the removal of the cattle grid near the Vowell Road entry.

2. Not more than 10 staff members [including the residents of the dwelling, employees and sub-contractors) must be present on the land at any one time.

3. Not more than 10 commercial vehicles and 7 pieces of construction machinery must be parked or kept on the land at any one time.

4. Not more than a total of 3 commercial vehicles and/or pieces of construction machinery must be parked or kept on the land outside the shed at any one time.

5. Staff vehicles, commercial vehicles, construction machinery and other vehicles making deliveries must enter or leave the subject land only between the hours of 7 00 am and 6.00 pm Monday to Friday. This does not apply to vehicles associated with staff and/or subcontractors entering and leaving the land on Saturdays to carry out maintenance work on vehicles and machinery and vehicles associated with an emergency call out.

6. Maintenance work on vehicles and construction machinery and refuelling of vehicles must only take place between the hours of 7.00 am and 6.00 pm Monday to Friday and 7.00 am and 1.00 pm on Saturdays.

7. Repairs and maintenance of vehicles, equipment and construction machinery must not be carried out other than on vehicles, equipment or machinery normally parked and/or stored on land. Panel beating is not allowed.

8. The use of the land must not detrimentally affect the amenity of the area, including through the:

- Transport of materials, goods or commodities to or from the land.

- Appearance of any building, works or materials.

- Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

9. The layout of the uses on the endorsed plan must not be altered without the written consent of the Responsible Authority.

10. This permit will expire if the use is not commenced within two years from the date of this permit. The Responsible Authority may extend the time for commencement if a request is made in writing before the permit expires or within 3 months afterwards.

Mr C Tate, Town Planner, appeared on behalf of the Responsible Authority.

Mr A Robertson, planning consultant, appeared on behalf of the respondent objectors.

Mr A Finanzio, barrister, appeared on behalf of the applicant by direct brief.

1. This was an application under Section 77 of the Planning and Environment Act 1987 against the Responsible Authority's decision to refuse to grant of a permit with respect to Permit Application No. P108/01. The permit application, as lodged with the Responsible Authority, sought permission to use part of the subject land for the purpose of a "store".

2. The subject land is located at the southern end of Vowell Drive, Pearcedale. It is comprised of a 20 hectare parcel of land which is used as the applicant's place of residence and also as a place of business.

3. The main buildings on the land are a double storey dwelling and a large outbuilding or shed used in association with the applicant's business which essentially involves the installation and maintenance of Telstra pits. The shed is used for a variety of purposes associated with the business including vehicle parking, storage, maintenance of vehicles and administration. Various materials associated with the business are stored around the shed. These include pits, pipes and crushed rock which serve as a working supply of materials for day to day use. Machinery and other vehicles associated with the business are also kept outside the shed. The balance of the land is use for agricultural purposes namely, grazing.

4. Contextually the subject land is located within a rural setting with surrounding properties used for rural and rural residential purposes.

5. Vowell Drive has a length of about 1.3 km starting at the Baxter-Tooradin Road and then extending is southerly direction ending at the frontage of the subject land. Vowell Drive has a width of about 5 to 6 metres and has a crushed rock surface which is graded regularly by the Responsible Authority.

6. It was common ground that the existing use of the subject land was established under Planning Permit No. 950179 issued in July 1995 by the former Shire of Cranbourne. The permit allowed the use the subject land for the purpose of a "works machinery depot" and incorporated permission for the construction of the shed. Condition 2 on Permit 950179 states:

"The use hereby permitted shall at all times comply with the definition (and associated controls) of Works Machinery Depot as specified in the Cranbourne Planning Scheme."

7. There is no definition for "works machinery depot" under the planning scheme now in force. However, under the former Cranbourne Planning Scheme, "works machinery depot" was defined as follows:

"Land use for parking more than 1 (one) commercial vehicle or the storage or parking of more than 1 (one) construction vehicle or item of equipment or machinery."

8. Clause 159 of the former Cranbourne Planning Scheme specified controls relating to "works machinery depot". In particular, Clause 159-3 applied to properties larger than 8 hectares and stated:

"Land must only be used for a Works Machinery Depot if the following requirements are met:

* There is to be no more than 3 items of construction machinery.

* All commercial vehicles or construction vehicles, equipment or machinery must be parked or stored on site at least 10 metres from the frontage and screened from view from adjoining properties and public land to the satisfaction of the responsible authority.

"Repairs and maintenance of vehicles, equipment or machinery must not be carried out other than on vehicles, equipment or machinery normally stored on site and only if it is routine repairs and maintenance. Panel beating is not allowed."

10. A subsequent permit No. P942/98 was issued in February 1999 which allowed a two storey office ancillary to the existing business.

11. It was common ground that both permits have been acted upon.

12. It would seem that since the use was established, the business has grown so that the number of vehicles exceeds that which is permitted under clause 159-3 referred to above.

13. The permit application that is the subject of this review essentially seeks permission to allow the use to continue at the scale to which it has now grown.

14. Mr. Crowder described the proposal as one which is seeking to use the existing shed for the purpose of the storage of commercial vehicles and construction machinery associated with the business. It seems that there are ten commercial vehicles and some seven pieces of construction machinery now associated with the use. Mr. Crowder also said that the maximum number of staff including the applicant and his wife would not exceed ten. He explained that the eight staff members not residing in the house on the subject land typically arrive at about 7.30am, they then take vehicles or equipment to the work place for the day and then return to the site between 3pm and 4pm in the afternoon.

15. The delivery of materials occurs on about 5 occasions per week. These materials essentially provide for working stock for day to day use.

16. The business also provides an "on call" emergency service whereby vehicles may be required to leave the land after hours. Mr. Crowder and Mr. Finanzio were unable to provide me with any definite number of occasions upon which this would occur. It was simply put to me that the need for a vehicle to leave the land for an emergency would occur on an infrequent basis.

17. The proposal was originally put forward on the basis that the permission being sought was with respect to the use of the shed as a "store" as defined in the current planning scheme. Mr. Finanzio made it clear that the applicant would seek to use the land as it has been used in the past, relying on existing use rights, for the parking of up to three vehicles and keeping three pieces of equipment (as allowed under clause 159-3 of the former Cranbourne Planning Scheme) and the storage of materials outside the shed. He said that the permission being sought in this case was to allow additional vehicles and equipment to be "stored" in the shed.

18. During the course of the hearing I expressed concerns about this arrangement. It seemed to me that the whole proposal was based on what I consider a somewhat piecemeal approach, relying on a combination of existing use rights and permits. It was apparent to me that this would cause confusion and pose difficulties for enforcement. I will say more with respect to this issue later on in these reasons.

19. Under the current Casey Planning Scheme, the land is located within the Environmental Rural Zone, the provisions for which are at Clause 35.02. "Store" is defined as follows at Clause 74:

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

20. "Store" is a Section 2 "permit required" use within the zone subject to a condition which requires the use to be conducted in a building, not a dwelling, and it must be used in conjunction with the occupation of a resident of a dwelling on the lot. The implication of this is that a "store" use may only be permitted if it is conducted within a building.

21. Relevant decision guidelines are at Clauses 35.02, Clause 35.02-6 and Clause 65. The decision guidelines require consideration to be given to, amongst other things, rural and environmental issues, the design and siting of buildings, the planning scheme's policies, the purpose of the zone, orderly planning and the impact on the amenity of the area.

22. The land is also covered by two overlay controls, namely, the Significant Landscape Overlay (Schedule 2) and the Environmental Significance Overlay (Schedule 1). Other than perhaps demonstrating that the land is located within an area where such controls are warranted, these overlays are not particularly relevant to the consideration of the merits of the proposal. Permission for buildings and works is required under these overlays. No permit is required for the use of land. In this case, the application is seeking permission for the use of the land only and as such, the overlays do not come into play.

23. The permit application was lodged with the Responsible Authority on 26 February 2001. The Responsible Authority required the application to be advertised and nine objections were lodged in response. The Responsible Authority subsequently resolved to refuse the permit application on the following grounds:

1. The proposed use is contrary to the Municipal Strategic Statement and Local Planning Policy for the area, particular policies relating to The Bay, Natural and Built Assets and the Western Port Coast.

2. The proposed use is contrary to the primary purpose for which the land is zoned.

3. The proposal is out of character with the development of adjoining land.

24. The Application for Review was filed on 11 September 2001.

25. At the hearing Mr. Tate, Mr. Robertson and Mr. Finanzio tabled and spoke to written submissions to which they added further oral argument. I was also presented with other material including plans, maps, photographs, all of which have assisted my consideration of this matter. In addition Mr. Finanzio called two witnesses to give expert evidence, Mr. Crowder, a town planning consultant and Mr. Fairley, a traffic engineer. Both witnesses were made available for cross examination.

26. In between the two hearing days, I inspected the subject land and locality. My inspection included viewing the subject land from Mr and Mrs Alnut's property.

27. As I foreshadowed earlier in these reasons, before turning to the merits of the proposal, it is appropriate that I say something about the proposed use. The proposed use was originally described as a "store". Permission was sought for the use the shed as a "store" for the parking of vehicles and machinery. It was proposed that the storage of up to three vehicles and three pieces of machinery would occur on the balance of the land, that is, outside the shed relying on existing use rights.

28. As I indicated to the parties during the course of the hearing, I had two concerns with this approach.

29. The first was that I was somewhat unconvinced that the use really falls within the definition of "Store". "Store" is within the "warehouse" group in the planning scheme's nesting diagrams. It implies that its land is used for storage or keeping of goods in someway for future use or shipment etc. Now whilst it is arguable that the parking of vehicles may be considered to be a form of storage, it seems to me that what is being proposed here is more consistent with the garaging of vehicles on an overnight basis. They come in, they get parked, and they leave the following day. Equipment is used on an as needed basis. I am somewhat unconvinced that "store" is a proper categorisation of this particular use.

30. The second concern I had was with respect to the way that the proposal had been put together in terms of seeking permission to use part of the land thus making part of the use subject to conditions on one permit and then relying on the existing use rights and different restrictions with respect to the balance of what is essentially the same use. I think that this arrangement presents an unsatisfactory situation, particularly with respect to the enforcement of permit conditions. As I have indicated, such an outcome represents a piecemeal approach to planning and is not one which I would support.

31. However, in dealing with these two issues, it seems to me that the use which is being conducted on the land is more properly categorised as a type of "depot", which is not dissimilar to the permission originally granted by the Responsible Authority [ie: works machinery depot]. I say this because it seems to me that a "depot" typically operates as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions, such as the repair and maintenance of vehicles and equipment occurs. For example, this is the type of activity that occurs in a municipal depot. This is typically what I would call a "depot".

32. After having heard from the applicant and Responsible Authority, it seems to me that the application was made seeking permission to use the shed as a "store" because it is a land use term which is defined within the Planning Scheme, it is arguable that the parking of vehicles is a form of storage and the use conveniently falls within Section 2. However, not all uses are defined within the Planning Scheme and when put to the parties, it seemed to me that there was general consensus that the current use of the land does not fall neatly into any of the land use term definitions in the scheme.

33. It was also common ground that under the zone control, innominate or land uses which are not defined within the planning scheme fall within Section 2 of the land use table. As such, the practicality of the situation is that discretion exists under the planning scheme for a permit to be issued for the whole use and not just part of it.

34. In light of the above, I put to the parties that the application be amended so that it seeks permission for the use of the land as a whole, namely as a contractors depot. I put this forward on the basis that, firstly, it represents a more appropriate categorisation and secondly, the permission sought would enable consideration to be given to the operation of the use as a whole, and is granted and the permit acted upon, there would be no confusion with respect to which permit conditions and other controls apply. In my view, it is clearly better to consider an application for a use as a whole, rather than to have a number of permits regulating a particular use.

35. The parties agreed that this would be a better approach and offered no objection to the application being amended so that it embraces the whole use, namely a contractor's depot. I amended the application pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. It is on this basis, that permission is being sought for the whole use, that I have considered the merits of the proposal.

36. In turning my mind to the consideration of the merits, it is appropriate that I first make a number of observations.

37. The first is that the use for which permission is sought has already been allowed to be lawfully established on the land, albeit at a smaller scale. Whilst it was conceded by Mr Finanzio that the use would appear to have been operating outside permit conditions, the question before me is essentially one of intensity, that is, whether the intensity of the use for which permission is being sought is acceptable.

38. Second, it is also relevant that this application is only seeking permission for the use of the land. It does not seek permission for development. No new buildings are to be constructed.

39. Third, the fact that the use may have been operating unlawfully is not altogether relevant to my consideration of the merits of the proposal. The proceeding before me is a merits review. I am required to consider is the merits of the proposal. It is not open for me to deny the grant of a permit to punish the applicant. If the Responsible Authority considers that the applicant should be taken to task in relation to compliance or otherwise with respect to permit conditions, then this should be the subject of other action.

40. Fourth, it seems to me that the conditions on the existing permit are somewhat "scant" in terms of dealing with some of the issues that are the subject of the objectors concerns. For example, the conditions on the existing permit do not set limits on hours of operation, there are no limits on the number of staff, there is no control over when deliveries and refuelling may occur and the limit on the number of vehicles relates to those which may be present at any one time. The use could in fact have more than 3 commercial vehicles. It's simply the case that no more than 3 vehicles can be on the land at any one time. It may well be possible for the applicant to shuffle vehicles so that the maximum is not exceeded. Indeed Mr Finanzio indicated that in some cases, staff take vehicles home, at then return at various times simply to refuel or to pick up materials when other vehicles are out at jobs. I consider this relevant in assessing the merits of the proposed use.

41. Fifth, in relation to the consideration of the impact of amenity, it is relevant to note that this assessment needs to be made having regard to the rural context of the land. In this case the land is not situated within a residential area nor is it a rural residential area. To provide for residential use is not the purpose of the Environmental Rural zone. This can be distinguished from the Rural Living Zone where the zone purpose is, amongst other things, to provide for residential use in a rural environment. The decision guidelines in the Environmental Rural zone control do not make any reference to the need to consider residential amenity per se. As such I consider that the following comments made in Tylden Nominees Pty Ltd v City of Greater Dandenong and Others (No. 2001/16080, unreported) apply here:

"In relation to the third question on the amenity impacts of the proposal the first thing that needs to be said is that because the land is zoned for rural purposes this does not necessarily mean that it will be an area which is free from large buildings and amenity impacts such as noise and odour etc. It must be recognised that land zoned for rural purposes is not necessarily a haven providing for superior quality residential amenity. Rural uses will because of the buildings they require, the equipment that needs to be used and other agricultural practices, for example the keeping of animals, the use of fertilisers, sprays etc all have the potential to have an impact on amenity."

42. In my view, it is not necessarily the case that rural activities can go hand in hand with residential amenity. Rather, residential land use and the associated expectation with respect to amenity can, in some cases, pose difficulties and even threaten rural uses.

43. As such in considering the merits of the proposal, given that the use is one which already exists, no new buildings are required no additional land is required to accommodate the additional vehicles and equipment, I cannot find that the increase in intensity of activity, over that which has already been permitted is inappropriate on this particular site.

44. In relation to concerns raised by Mr. Tate and Mr. Robertson about the about the potential loss of agricultural land, these submission were not, in my view, based on a proper consideration of the proposal. This proposal does not result in the loss of agricultural land. The proposed use will only occupy that part of the site which has previously been used as a "works machinery depot". The balance of the land will continue to be used for grazing.

45. It is difficult to see how the proposal will affect the environment. There was no evidence at all as to how this would happen. It is clear that the land is located in an area which is attractive and has sensitive environmental qualities, but aside from general assertions, Mr Tate and Mr Robertson did not demonstrate, in a tangible way, how the environment would be affected.

46. In relation to traffic, it is clear that the proposal will result in more movements along Vowell Drive. However, there was no evidence that the road is not capable of absorbing the additional traffic associated with this particular use. The Responsible Authority's Traffic Engineer does not appear to have any problems with the level and type of traffic. Mr Tate also said that the Responsible Authority's Engineering Department did not raise any concerns with respect to the roads suitability having regard to its crushed rock surface. Mr. Fairley's evidence certainly did not indicate that there are going to be any problems. Taken overall, I am satisfied that the road has the capability of accommodating the type and amount of vehicle traffic associated with the proposal.

47. In relation to the impact on the visual environment, it is relevant to note that the buildings to be used already exist. Furthermore the appearance and size of the large shed are, in my view, consistent with those of a building that is typically found within a rural environment. Furthermore I agree with Mr Finanzio that it is not uncommon to see large vehicles such as farm equipment and trucks on rural properties or travelling along rural roads. Overall, I accept the evidence of Mr. Crowder that this proposal will not have any untoward visual impacts particularly given that the vehicles or the applicant has agreed that most vehicles are to be kept inside the shed when they are to be parked on the land.

48. Turning to the issue of landscaping, I can find no basis for requiring additional landscaping having regard to the type of environment within which the subject land is located. The distance between where the depot is located and where Mr and Mrs Alnut say it will impinge on the visual qualities of their land is simply too great.

49. In relation to orderly planning, it would be fair to say that the proposed use is not one which specifically responds to the purpose of the zone nor is it one which assists in achieving the outcomes sought by planning policy. However, I also do not think that the proposal works against them either. It seems to me that this is one of those cases where the proposal is what can be described as being "policy neutral", that is, it neither advances or detracts from the purpose of the zone or the planning scheme's policies.

50. I have also considered Mr. Sharkey's decision in Myers v Casey and McDonald (P50867/2001 unreported. However, I agree with Mr Finanzio that the circumstances Myers case can be distinguished from those in this case. In particular, the proposal in the Myers case the increase in the intensity of the use required a substantial amount of development in the form of a large shed (288 sq.m), excavation and a substantial increase in hard standing gravel areas (588 sq.m) No development is proposed in this case.

51. If the use had not existed then my consideration of the proposal may well have been different. However, the use already exists. It has already been permitted, albeit at a lesser intensity. None the less the current application provides the opportunity for the use to be better regulated by way of conditions which address issues that are not covered by the current permit.

52. So overall, I consider it appropriate that the Responsible Authority's decision should be set aside and a permit granted. The permit will allow the land to be used for the purpose of a contractor's depot. The conditions of the permit will require (amongst other things)

* the submission of plans which clearly set out the site layout with respect to the use of each area including where vehicles, machinery and materials are to be kept;

* no more than 10 staff (including the residents, employees and sub-contractors) to be on the land at any one time;

* the number of vehicles and equipment that can be kept on the land at any one time to be limited to ten commercial vehicles and seven pieces of construction machinery;

* the number of vehicles and/or construction machinery that can be kept outside the shed will be restricted to no more than three items at any one time;

* except for emergency call outs, the hours of operation (in terms of when staff and commercial vehicles and equipment arrive and depart and for deliveries) will be limited to between 7am to 6pm Monday to Friday;

* maintenance work and refuelling to occur between 7am to 6pm Monday to Friday and 7 am to 1 pm on Saturdays;

* the removal of the cattle grid (as agreed by the applicant) at the Vowell Drive entry; and

Civil and Administrative Tribunal Act 1998

Environment Act 1987

De Haan v Casey CC & Ors [2002] VCAT 644

At a glance

Court

Decision date

Source

Judgment (94 paragraphs)

De Haan v Casey CC & Ors [2002] VCAT 644 (17 May 2002)

Parties

Legislation Cited (2)