Victorian Civil and Administrative Tribunal|2005-11-18|Before: Ms J

The applicant had applied for a certificate under section 97N(1)(b).

8 The current hearing is to determine applications P1826/2005 and P1827/2005. Depending on their outcome a hearing may or may not be required in respect of P1238/2005 concerning the merits of the planning permit application for a refuse transfer station.

9 Both applications under current consideration involve a determination of what constitutes the 'planning unit' to which the planning permit application relates.

14 The proposed use of a refuse transfer station constitutes industry (other than materials recycling) and is an as of right use in the Business 3 Zone pursuant to clause 34.03-1 provided that the two conditions appearing in section 1 of that table are complied with.

15 The relevant conditions opposite industry (other than materials recycling) are as follows:

Must not be a purpose shown with a Note 1 or Note 2 in the table to Clause 52.10.

The land must be at least the following distances from land (not a road) which is in a residential zone, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre:

• The threshold distance, for a purpose listed in the table to Clause 52.10.

•

30 metres, for a purpose not listed in the table to Clause 52.10.

16 Materials recycling is a section 2 (permit required) use in the Business 3 Zone.

17 The definitions of refuse transfer station and materials recycling are as follows:[1]

Land used to collect, dismantle, store, recycle, or sell, used or scrap materials.

Land used to collect, temporarily store, and process refuse, or used or scrap materials, for disposal or use elsewhere.

18 Whether the proposed use is a section 1(as of right) use or a section 2 (permit required) use, turns on the characterisation of the use and on the classification of the use for the purposes of clause 52.10.

19 Clause 52.10 of the planning scheme contains the particular provisions relating to 'Uses with Adverse Amenity Potential'. The purpose of this clause is to define those types of industries and warehouses which if not appropriately designed and located may cause offence or unacceptable risk to the neighbourhood.

20 Table 1 to clause 52.10 prescribes various threshold distances that specified industrial and warehouse purposes should be located from particular sensitive land uses and from land in particular zones, including residential zones. Relevantly for present purposes, table 1 to clause 52.10 specifies the following threshold distances for the following types of operations:

• Landfill

• Recycling and composting centre

Sanitary and garbage storage and treatment in transfer station

21 When the planning permit application was initially made there was some confusion about the nature of the activities proposed to be conducted on the site. However, in a written statement provided for these proceedings by Mr Ken Fulton, the operator of the business who also gave evidence at the hearing, he indicated that the refuse handled would be building, landscape gardening and domestic garden waste, which would be brought to the site in mini skips by small trucks. All of the rubbish collected from the various sites is taken to landfill sites. The amount paid to dispose of the rubbish varies according to the nature of the rubbish. Rubbish which has already been sorted into various categories attracts a lesser tipping fee than mixed rubbish which has not been sorted prior to tipping. It is proposed that onsite activities would involve some sorting of the refuse so as to allow separate loads of garden waste, soil and mixed waste to be transported to the tip. Sometimes the refuse will be transferred directly into a large truck or trailer but at other times mixed loads of rubbish will be tipped onto the floor of the premises for sorting and then loaded for removal.

22 The subject land does not, prima facie, comply with the 30 metre setback requirement of clause 34.03-1, insofar as part of the land at 401 Tooronga Road is within 27 metres of the land zoned Residential 1 on the south eastern corner of the intersection of Bluff Street and Tooronga Road. In an attempt to circumvent this obstacle, the applicant has proposed to construct a masonry wall across the south east corner of the subject land, separating that part of the workshop which is within 30 metres of the residential land from the remainder of the subject site thereby creating a 'planning unit' for the refuse transfer station which achieves the required separation distance. (The applicant contends that the separation distance required is 30 metres although this is one of the issues in contention).

23 The plan prepared by John Paul, land surveyor, referred to above (see paragraph 6) depicts the location of the masonry wall, which will cut off a small triangular section of the site used currently for toilets and a[2]storage room.2

24 The declaration proceeding and the certificate of compliance proceeding raise a number of questions of law and fact for consideration by the Tribunal:

a What is the correct characterisation of the use proposed by the applicant?

b If the correct characterisation of the use is a 'refuse transfer station', does this use constitute 'sanitary and garbage storage and treatment in transfer station' for the purposes of table 1 to clause 52.10 of the planning scheme?

c Is the whole of the subject site the 'land' for the purposes of clause 34.03-1 and consideration of whether the land is within 30 metres of land in residential zone? In other words, what is the planning unit?

25 In writing this decision, we have used the plural throughout but all decisions on questions of law have been made by Deputy President Gibson.

26 Following the written statement being submitted by Mr Kevin Fulton and his evidence, it was common ground between the parties that the proposed use of the land should be characterised as a 'refuse transfer station'. No recycling of material is proposed. The land will be used to collect, temporarily store, and process (by way of sorting) refuse for disposal elsewhere.

27 We therefore find that the correct characterisation of the use proposed by the applicant is a 'refuse transfer station'.[3] This is included in 'industry', which is a section 1 use in the Business 3 Zone provided the conditions are met.

CHARACTERISATION OF USE FOR THE PURPOSES OF TABLE 1 TO CLAUSE 52.10

28 In determining whether the conditions are met in clause 34.03-1 it is necessary to determine whether the purpose is listed in the table to clause 52.10. If so, it must meet the threshold distance specified in the table in order to remain a section 1 use, otherwise it will be a section 2 use and require a permit. If it is not a purpose listed in the table to clause 52.10, it must be located 30 metres from land in a residential zone, in order to be a section 1 use. This is what the applicant contends and is the reason for the proposed masonry wall.

29 Council contended that for the purposes of clause 52.10 (and in turn clause 34.03) the proposed use must be considered as 'sanitary and garbage storage and treatment in transfer station'. In the table to clause 52.10 this industrial purpose has a threshold distance of 300 metres. This means that the proposed use must be situated in excess of 300 metres from land which is zoned residential if it is to escape the need for a use permit under clause 34.03. This contention was supported by Mr Finanzio on behalf of Bunnings Pty Ltd.

30 By contrast, Mr Testro for the applicant argued that there was no 'storage' or 'treatment' of garbage, hence the use did not fall within this purpose. Mr Testro relied on Rossi Recycling Pty Ltd v Maroondah City Council[4] which concerned a very similar proposition to the current circumstances. The business in Rossi included the receipt of hard rubbish, including concrete, tiles and bricks, scrap metal, car bodies, tyres and garden refuse. Some of this material was sorted and then relocated to a landfill. Other materials were temporarily stored on site and disposed of or used elsewhere. Member Rickards held that for the purpose of the table to clause 52.10, the temporary storage of refuse did not fall within any of the categories specified in this clause and no treatment of refuse was proposed. In particular, she said:

[34] I am unable to conclude that what is proposed to occur on this site namely the temporary storage of refuse falls within any of the categories in Clause 52.10 referred to by the Responsible Authority and respondents. I consider that what is occurring on the site would fall within the ordinary meaning of garbage which is another word for refuse. There is no disposal of garbage to a landfill on the site, no recycling or composting is taking place and there is no storage of any industrial wastes. Certainly there is temporary storage of garbage or refuse occurring but Clause 52.10 also refers to treatment and whilst there is sorting of the refuse or garbage carried out I am unable to conclude from my observation or the evidence presented to me that any treatment of the garbage takes place, that is the refuse being 'subject to some agent or action in order to bring about a particular result: to treat a substance with an acid' as 'treat' is defined within the Macquarie dictionary. If no treatment occurs then what is being carried out on the site does not fall within any of the purposes listed in the table to Clause 52.10.

31 With respect to Member Rickards, we disagree with her conclusions on this point and consider that the proposed use of the subject land must be considered to be for the purpose of 'sanitary and garbage storage and treatment in transfer station' within the meaning of the table to clause 52.10 for the following reasons.

32 Member Rickards properly equated the term 'refuse' used in the definition of refuse transfer station with the term 'garbage' used in the purpose described in the table to clause 52.10. She also properly conceded that the temporary storage of refuse at a refuse transfer station would equate to 'garbage storage' for the purposes of the table to clause 52.10. However, in the circumstances of the Rossi case she was unable to conclude that any treatment of the garbage took place. In reaching this conclusion she relied on the definition of 'treat' in the Macquarie Dictionary meaning "to subject to some agent or action in order to bring about a particular result; to treat

a substance with an acid". However, this is only one of 11 meanings of the verb 'treat' in the Macquarie dictionary. In the Oxford English Dictionary an even greater number of meanings are given. They include:

"(5) To handle (in literal sense);... (11b) To subject to chemical or other physical action".

33 The Australian Concise Oxford Dictionary includes seven definitions including:

"2. deal with or act upon (person, thing) with view to obtaining particular result, apply process to, subject to chemical agent etc."

34 The Readers Digest Universal Dictionary includes six definitions including:

"6. To subject to some process, action or change, especially: a. To give medical aid to. b. To subject to a chemical or physical process or application."

35 The Australian Concise Oxford Dictionary defines the verb 'process' to mean:

36 Similarly, the Macquarie Dictionary defines the verb 'process' to mean:

"9. to treat or prepare by some particular process, as in manufacturing."

37 The Readers Digest Universal Dictionary includes in the definition of the verb process:

"A series of actions, changes, or functions that bring about an end or result."

38 We agree with the submission of council that the ordinary meaning of the phrase 'treatment of refuse' is synonymous with the phrase 'processing of refuse'. The range of nuances in the various dictionary definitions of 'treat' and the definition of 'process' means that either of these words could be used to describe the process or treatment of refuse by handling, sorting and/or transferring it from one vehicle to another, which are the activities that the proposed use will entail. In out view, it is drawing too fine a distinction to focus on the very narrow definition of 'treat' that Member Rickards appears to do in Rossi. Both words are commonly used in a variety of senses and on occasions may be used interchangeably.

39 We do not consider that a distinction was intended to be drawn between the definition of 'refuse transfer station' in clause 74 of the planning scheme and the purpose 'sanitary and garbage storage and treatment in transfer station' in the table to clause 62.10. In common parlance, a garbage or refuse transfer station is a place where garbage or refuse is taken for transfer to somewhere else by some other person, or by some other conveyance or means, or at some other time. In our view, it is more important to focus on the ordinary meaning of 'transfer station' than to focus on distinctions in meaning that might have been implied by use of the term 'treatment' in the table to clause 52.10 compared with use of the term 'process' in clause 74. In our view, in the way they are used the terms are synonymous. We think it is highly unlikely that those people drafting the definition of 'refuse transfer station' in clause 74 turned their mind to the possible distinction in meaning between the word 'process' and the word 'treatment' in the table to clause 52.10.

40 This view is strengthened by considering the origin of the purposes listed in the table to clause 52.10. It is common knowledge that they were derived from the EPA Recommended Buffer Zones for Industrial Residual Air Emissions 1979. In translating the index of industry categories and the descriptions of industries within these categories into the some minor modifications to wording occurred. Thus, the EPA Recommended Buffer Zones for Industrial Residual Air Emissions includes the following under the hearing 'Transport and Storage':

(a)

Landfills

(b)

Recycling and Composting Centres

(c)

Transfer Stations

(d)

Depots for refuse collection vehicles

41 The buffer distances are the same as the threshold distances in the table to clause 52.10 and in our view the same types of facilities are being referred to in both places.

42 In addition, it would not be logical to presume that a refuse transfer station would be exempt from the need for a permit only 30 metres from sensitively zoned or used land simply because it cannot be said that the refuse is treated within the meaning described in Rossi (even though it might be said to be processed) when compared to the threshold distances for other uses involving sanitary and garbage services in the table to clause 52.10 and when compared to the original EPA Recommended Buffer Zones for Industrial Residual Air Emissions.

43 We therefore find that use of the land for a refuse transfer station as proposed by the applicant means that the subject site would be used for the purpose of 'sanitary and garbage storage and treatment in transfer station' under the table to clause 52.10 and hence will attract the 300 metre threshold distance set out in clause 52.10. On this basis it will not meet the condition applying to industry in section 1 of clause 34.03-1 in terms of being at least the threshold distance, for a purpose listed in the table to clause 52.10, from land (not a road) which is in a residential zone. A permit is therefore needed for the proposed use.

44 Based on the above conclusion it becomes strictly unnecessary to decide whether it is open to the applicant to wall-off the south east corner of the building to effectively exclude it from the planning unit that will be used for the purpose of a refuse transfer station and, by this means, ensure that the planning unit is more than 30 metres from land which is in a residential zone. However, given the focus on this issue at the hearing, we will set out our findings for the benefit of parties.

45 In our view, the circumstances which apply in Rossi Recycling Pty Ltd v Maroondah City Council can be distinguished from the present circumstances. The findings of Member Rickards in that case were that a site is not necessarily identified by title boundaries and it is not uncommon that a 'site' in planning terms occupies less than the whole of the allotment on which it is situated. We agree that the separation distance set out either as a condition in the table of uses for a zone or in the table to clause 52.10 should be calculated from the boundary of the zone to the boundary of the land being used for the purpose, and not necessarily the title boundary. However, the site must be a logical entity in planning terms, not an artificial device contrived to exclude the need for a planning permit or compliance with other planning controls. The concept of the 'planning unit' is well recognised in planning law and practice. What the planning unit may be in any case will depend upon the facts. Depending on the facts, it may be the whole of one or more lots; it may be the whole of the land in a title or only part of the land. But its determination will be practical rather than an artifice to avoid planning controls or rob the Tribunal of jurisdiction.

46 In Rossi there was a lease of part of the land within a title, which the Tribunal accepted as being the planning unit for the purpose of calculating the threshold distance. However, the lease was between parties at arms length. In the present case, the small triangular section of land to be walled off is not capable of separate occupation or use and the proprietary rights would be in common with, not separate from, the remainder of the building and site.

47 The situation is not dissimilar to that discussed by Justice Morris in A R Stella and Partners v Whittlesea City Council[5] where he was considering the same condition applying to industry in the table of uses in the Industrial 1 Zone to the condition presently under consideration. He said:

[5] The applicant pointed out that none of the factory buildings will be within 30 metres of the residential zone. Rather the plans show that the only portion of the land within 30 metres of the residential zone will be the body corporate land, which will only be used for car parking and landscaping. In such circumstances, the applicant seeks a declaration that the use of the land for industry or warehouse, in accordance with the proposed plans, does not require a permit.

[6] Accepting that the only activity that will take place on the portion of the land within 30 metres of the residential zone will be for car parking and landscaping, it does not follow that this land will not be used for industry (or warehouse). The use of the front portion of the subject land for car parking will not constitute an independent use of land; but will be ancillary to the use of the three factories for the purpose of "industry" (or "warehouse"). As such the front portion of the land is to be regarded, for the purposes of the scheme, as that of the substantive use - "industry" or "warehouse" - and not that of the ancillary use - "car parking". This conclusion is consistent with a long line of authority concerning the characterisation of the use of land: see, for example, Foodbarn Pty Ltd v Solicitor-General.[6] Thus a permit is required to use the land for industry or warehouse.

48 Similar findings were made with respect to the car parks of a brothel in Holyoak v Maribyrnong City Council[7].

49 On behalf of the applicant Mr Testro said:

It is submitted that in planning, that an applicant is entitled to choose whatever planning unit the applicant wants for a particular use or development. It is the applicant's choice for which the applicant cannot be criticised. It is much akin to the right of a person to order their financial affairs so as to avoid unnecessarily paying more tax.

50 We disagree with this proposition. It is open to the applicant to nominate what he considers to be the planning unit for a particular use or development but this will not necessarily be determinative of the question. Rather, what constitutes the planning unit in any particular situation is a question of fact to be determined on the facts and circumstances of each case. This is expressed by the findings in Rossi, Stella and Holyoak, which all turn on their own facts.

51 Therefore, if it was relevant, we would find as a fact that the planning unit that is proposed to be used for the purpose of a refuse transfer station is the whole of the lower level of the property at 401 Tooronga Road, including the small triangular separation in the south eastern corner that is proposed to be walled off.

52 Our conclusion is that a planning permit is required for use of the land as a refuse transfer station because it is a purpose listed in the table to clause 52.10 and the land is within the threshold distance of 300 metres from land (not a road) which is in a residential zone.

53 We therefore affirm the decision of the responsible authority to refuse to issue a certificate of compliance that the proposed use of refuse transfer station on a planning unit described complies with the requirements of the planning scheme.

54 In light of these conclusions, it is not appropriate to make the declarations sought by the applicant. Nothing would be served by making a declaration that a planning permit is required for the proposed use. That naturally flows as an outcome of this decision.

55 This decision means that application 1238/2005 in respect of the refusal by the responsible authority to grant a permit should now be considered on its merits. It is proposed to reconstitute the Tribunal pursuant to section 108 of the Victorian Civil and Administrative Tribunal Act 1998 so as to be constituted only by Member Hewet in order to determine the merits of the application P1238/2005. If any parties oppose the constitution of the Tribunal, they should make a submission in writing within 21 days of the date of this order. If no submissions are received within this time, the Tribunal will be reconstituted accordingly.

[1] See clause 74 Boroondara Planning Scheme.

[2] There was some discussion at the hearing about where the proposed masonry wall needed to be an arc or a chord to achieve the necessary 30 metre separation. A new plan was prepared by John Paul but it turns out not to be relevant in the context of the Tribunal's decision.

[3] Member Rickards reached the same conclusion in respect of a similar use of land involving similar activities in Rossi Recycling Pty Ltd v Maroondah City Council [2004] VCAT 687; 16 VPR 289

[4] [2004] VCAT 687; 16 VPR 289

[7] 2001 VCAT 1960; 9 VPR 298

Fulton Pty Ltd v Boroondara CC [2005] VCAT 2416 (18 November 2005)

Fulton Pty Ltd v Boroondara CC [2005] VCAT 2416

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Parties

Cases Cited (1)

Fulton Pty Ltd v Boroondara CC [2005] VCAT 2416 (18 November 2005)