Victorian Civil and Administrative Tribunal|2013-09-18

Finborough Terraces Realty Pty Ltd v Greater Shepparton CC [2013] VCAT 1637 (18 September 2013)

Section 82 of the Planning and Environment Act 1987; Greater Shepparton Planning Scheme; Business 4 Zone; Commercial 2 Zone; Materials Recycling; Existing Panel Beater; Main Road/Gateway Location; Mooroopna Growth Area.

The decision of the Responsible Authority is set aside.
In permit application no. 2012-122, no permit is granted.

Section 82 of the Planning and Environment Act 1987 seeking review of the Council's decision to issue a permit.

Section 80 to review conditions in the same Notice of Decision - Conditions 2(a), (e) and (f), 3 and 6.

The review site is on the north side of McLennan Street, on the western outskirts of Mooroopna. This is also known as the Midland Highway. The land is across two titles and is occupied by a panel beater/motor repairs premises.

To the north is a floodway that is part of a much larger land holding that is within the Mooroopna West growth corridor. The floodway land has been purchased by the Greater Shepparton City Council and will become a regional park as well as being used for flood mitigation in association with the new residential development that will occur in this area. Several businesses are on land to the east and west. To the south is a residential area.

Use the land for materials recycling (car recycling). The permit application also included vehicle sales and this is reflected in the Notice of Decision however the permit applicant wishes to delete conditions relating to this component of the proposal. Other contested conditions relate to landscaping and fencing.

Business 4 Zone/Commercial 2 Zone. Part Urban Floodway Zone. Land Subject to Inundation Overlay (LSIO).

Clauses 10, 11, 14, 15, 17, 18, 21, 52.06, 52.07, 52.10, 52.14, 52.34, 52.45 and 65.

4 September 2013 as parties were advised at the commencement of the Hearing and 8 September 2013.

An application was lodged by Mr Mgoter to use the review site for a car yard. The Council determined that the use was properly described as vehicle sales and materials recycling (car recycling) and advertised the proposal on that basis. It considered objections received and determined to issue a Notice of Decision to Grant a Permit subject to conditions.
Finborough Terraces Realty Pty Ltd has applied for a review of that decision. The grounds relied upon focus on the operation of the proposed use and its impact on the Mooroopna West growth corridor with respect to:
- Visual amenity;
- Interface with existing and planned adjoining sensitive uses;
- Road safety and access;
- On-site infrastructure and amenity provisions; and
- Potential environmental impacts and waste management.
Mr Mgoter has sought review of several conditions on the Notice to reflect his intent to delete the motor vehicle sales component (Conditions 2e, 3 and 6) and to change the proposed boundary treatment (Condition 2a and f). As I observed at the Hearing, several other conditions and the description of what the permit allows also refer to motor vehicle sales and these would need to be amended should a permit be granted and the motor vehicle sales removed.
The Tribunal must decide whether to a grant the permit and, if so, what conditions should be applied. The use that is the subject of the permit application (materials/car recycling) is occurring on the land. It must be recorded that the fact that this use is operating gives no advantage to any party and places no party at a disadvantage in this proceeding. I am required to assess the proposal afresh based on the relevant provisions and policies within the Scheme. The only benefit in the proposed use being undertaken is that I am able to view and assess its impact (accepting that conditions would make changes, such as fencing and the washdown bay).

What are the applicable planning and physical contexts?

The review site is located at the western end of Mooroopna on the Midland Highway, the main road into Mooroopna from the west. Land to the south has been developed with residential development in recent years.
The site is in a small group of lots that include an older dwelling and other commercial businesses on relatively undeveloped lots.
The review site has some large shedding structures, wide access areas from the Highway, bin storage, and is fenced with chain wire. Car bodies are seen across the rear of the site.

The land is zoned Commercial 2 having been Business 4 until recently. This same zone applies to the small group of lots within which the review site sits.
Another area of Commercial 2 land is to the east, beyond a wide Urban Floodway Zone, and this is also affected by a Design and Development Overlay (DDO8 - Mooroopna Town Entry West Precinct). That Overlay, which relates to development, does not include the review site.
Land within the Mooroopna West growth corridor is affected by a Development Plan Overlay. A development plan has been approved and a permit issued for the first residential stage including extensive infrastructure works. It is noteworthy that the review site and the other lots in its small group are not within the DPO, DDO8 or the concept plan for the Mooroopna West growth corridor. The concept plan does not designate the sites as having any specific intended use or as part of any precinct notwithstanding the fact that all of the land around them is nominated - for floodway (to become a regional park) or for acquisition by VicRoads for an extension of the Shepparton Bypass. That Bypass would be generally along the alignment of Excelsior Road with ramps at the Midland Highway. There is, therefore, clearly a vacuum relating to the review site and the adjacent lots. The intention for the area around them is much clearer in terms of its use, its imminent development, and the desire through DDO8 to provide high quality and well planned development in association with the western town entry.
The other Commercial 2 Zone to the east is shown on the approved development plan as possible future commercial development to be subject of separate approval.
I was referred to Amendments C75 (July 2010) and C152 (September 2011) that provide the basis for the current controls that derive from the Mooroopna West Growth Structure Plan. Both were the subject of Panel consideration. My attention was not drawn to any explicit reference to the review site in either Panel report of relevance to this proceeding.

Does the proposal satisfy the requirements of Clauses 34.02, 52.06, 52.07 and 52.10?

Mr Steigenberger submitted that many of the requirements of the Scheme have not been properly and fully addressed. This was particularly with respect to the permit application requirements in the Commercial 2 Zone, details about car parking, loading, manoeuvring for heavy vehicles, emissions and related matters.
In response, the Council and permit applicant referred to documents and information upon which they relied. These documents included a waste management plan relating to the storage and collection of oils, fuels and other materials as well as the conditions sought by the Environment Protection Authority.
The EPA's referral letter identified a number of gaps in the information relating to the proposal including the types of wastes/materials proposed to be stored and transported, separation distances from existing and potential nearby land uses, how vehicle dismantling with occur, what components will be recycled and how excess waste will be managed, and proposed sediment control measures. It proposed a number of conditions should a permit be issued. The EPA also suggested that the Council consider specifying the volume and type of waste that can be stored, hours of operation and financial assurance for the site if the risk of waste abandonment is deemed to be high.
Since that referral advice, and responses from other referral authorities, further information was provided by the permit applicant to the Council. I was also in receipt of additional information prepared by Mr Mgoter for the Hearing. He explained how vehicles would move around the site, how materials processing would occur, where items/products etc would be stored or collected, the expected number of vehicles, and the operation of a wash down bay with triple interceptors.
I appreciate that Mr Mgoter has provided further information and I am also aware that the Notice of Decision includes conditions relating to a waste management plan, the storage of wastes (oil), the sealing of the vehicle wash area within six months of the permit, and a requirement for all loading and unloading to carried out on the site and for vehicles to leave the site in a forward motion.
Despite this, I am concerned that there is limited information of the type referred to by the EPA that would, if the use was found to be acceptable, be dealt with by permit conditions. Clauses 34.02 and 52.45 set out the type of information that should inform a decision about a use such as this. Indeed, the information "must" be provided up-front to then enable an assessment under each of the Clauses and other applicable provisions as to whether an acceptable outcome would be achieved.
Specifically:
- I have no information about the quantity of all types of items to be stored and, while a condition seeks to ensure that car bodies are no higher than a fence, there is limited information to show how the quantity of car bodies already on-site can be managed with the other aspects of the internal operation such as vehicle manoeuvring areas.
- I do not think it is satisfactory adjacent to a floodway for matters such as sealing a wash down bay to be deferred for six months.
- Further, the same condition requires connection to a sewer that (based on submissions at the Hearing) is not immediately available to the site. I consider more details about the nature of this facility, interceptors and the ability to connect to a sewer (and when) would typically be required to ensure runoff does not affect the floodway.
- Similarly, I have a plan showing how the site is intended to work but insufficient details to demonstrate how vehicle parking and turning areas would operate mindful of larger vehicles that would service the site such as for waste collection.
The permit applicant may feel that sufficient information is available but I am not able to agree. I consider the EPA's advice is indicative of the information necessary to assess a proposed use and then apply conditions if appropriate, rather than just apply the conditions that the EPA suggested as seems to have occurred in this case. The site's inclusion in the floodway/Land Subject to Inundation Overlay add to the importance of this type of information. There is no information available to include limits on waste storage as suggested by the EPA as there is insufficient detail about the volumes and types of different wastes.
The review site is 85-96 metres to the nearest proposed houses. The different measures were given at the Hearing. Clause 52.10 (Uses with Adverse Amenity Potential) does not adopt a minimum distance instead stating that a distance is "dependent on the processes to be used and the materials to be processed and stored". I am not persuaded that I have sufficient information to ensure that the use would not have adverse impacts in terms of emissions.

Conditions 2(a) and (f) have been contested by the permit applicant. These require pool type fencing around the site and a solid colourbond fence within the site to screen car bodies or as otherwise agreed with the Council. They also require a 5 metre wide landscape buffer around the northern, eastern and western boundaries of the site.
Mr Mgoter opposed the provision of a 5 metre landscape setback because this would mean a loss of land and would incur significant cost with plantings and maintenance. He proposed a 2.5 metre high colourbond fence instead, located around the western, eastern and northern boundaries with chain mesh at the front, as shown on a plan he tendered. He said this solid fence would conceal car bodies (stacked two high).
The Council supported an alternative fence treatment around the northern, eastern and western boundaries but also said landscaping to the south (which is not mentioned in the Condition) is most important. Mr Murphy tendered a plan showing a 3 metre colourbond fence and landscaping that the Council would accept. Mr Mgoter said he would agree to a 3 metre high solid colourbond fence. Condition 12 limits the height of car bodies to no higher than the fence but behind container walls to assist screening.
Mr Steigenberger suggested that a 3 metre high fence would be insufficient to screen the car bodies and also stated such a fencing style would be undesirable with respect to the regional park.
The debate around fencing and landscaping is indicative of the different views as to what visual outcome is expected for a site in this location. The use of landscape buffers abutting a major park is typically sought rather than fencing or exposure to uses such as materials recycling/car bodies which detract from a park setting (notwithstanding that the park may also serve a flood mitigation function).
I do not consider that an open fence without landscaping would be an acceptable interface to the park and I also consider a 2.5 - 3 metre high colourbond fence would also not be preferable. Moreover, the local Catchment Management Authority may have concerns about the use of solid fencing within the Urban Floodway Zone/Land Subject to Inundation Overlay along the site's boundaries as this could affect the passage of water and flooding capacity. The suggested solid fence contrasts with Condition 2(a) that required open pool style fencing with a 5 metre wide landscape strip along the northern and western boundaries with solid fencing only within the site above Urban Floodway Zone area.
The front of the site would also need landscaping to enhance the presentation to the Highway but the permit applicant seeks to retain the chain mesh fencing. I consider a higher level of presentation to the Highway is necessary given the level of improvement being achieved along the Highway such as to the south even though the site is not within DDO8.

Will the proposal adversely affect the development of the Mooroopna West Growth Corridor?

Mr Steigenberger submitted that the site is on a major approach to Mooroopna and from the proposed Shepparton By-pass and consequently the site's appearance from the By-pass and Midland Highway are concerns. In addition, the site abuts a new regional park and its presentation here, too, would be inappropriate it was submitted. In addition to concerns about the visual amenity and glare, Mr Steigenberger referred to potential impacts such as airborne emissions, runoff of residues, dust and leaching of noxious liquids as some of the potential issues for the new regional park/floodway and the new, approved, Westwood Run residential estate.
Mr Murphy submitted the proposed use is around 96 metres from the nearest new residential area and this is a sufficient setback. He also submitted that the Council's conditions relating to fencing and landscaping would provide an improved outcome for the site relative to the new park and residential areas. He said the Council would not oppose the addition of a condition requiring the site to be kept in a neat and tidy state.
Mr Mgoter emphasised that he runs a panel beater and there are no limits on the number of cars on the land - the proposal will result in an improved amenity through fencing that he has agreed to as well as keeping car bodies to be no higher than the fence height.
Over time, the area of the review site will change in light of the growth corridor and, when/if funded, the Shepparton By-pass. Some of the changes will be long term while the residential estate and regional park are to be developed in the short term.
With these changes will be a much enhanced amenity and quality of development that one now expects with growth area planning. As I have indicated, the vacuum with respect to this pocket of land is something that the Council is encouraged to address to ensure a planned and consistent approach to Highway development in this part of Mooroopna.
My concerns about aspects of the proposed use, including uncertainties to which I have referred, are exacerbated by the improvements that are planned in this growth area. Authorising a new land use, of materials recycling, in this location should occur with the expectation of an enhanced site amenity commensurate with the broad urban design principles cited in Clause 21, the ambitions for this Highway setting, and similar important principles with respect to uses adjacent to key open space corridors. On the material available to me, I am unable to conclude that positive outcomes would result from approval of the permit application even with its conditions relating to the perimeter treatment.

For the above reasons, based on the information available, I am not satisfied that the proposal would represent an acceptable outcome. I will therefore set aside the Council's decision and direct no permit be issued. Consequently, the conditions appeal is dismissed.

[1] I have considered all grounds, written and oral submissions, although I do not recite all of the material in full in these reasons.

Finborough Terraces Realty Pty Ltd v Greater Shepparton CC [2013] VCAT 1637

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Finborough Terraces Realty Pty Ltd v Greater Shepparton CC [2013] VCAT 1637 (18 September 2013)

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