The earthmoving and transport business stores and operates three trucks and various earthmoving vehicles.

A shed will be constructed to store vehicles and equipment. The shed will have a footprint of 32 metres by 21 metres and will be located at an angle to the southern title boundary with a minimum of setback of two metres. It is open on the southern elevation. It will be a maximum height of 7.35 metres and constructed of Colorbond.

There will be two shipping containers placed on the land for storage.

The use of the site as a contractor's depot and the construction of the crossover to Clunes Road and roadworks within Government Road to the east of the site is retrospective.

Application under section 82 of the Planning and Environment Act 1987 (Vic) - to review the decision to grant a permit.

Clause 35.03-1: Use as a contractor's store in the Rural Living Zone

Clause 35.03-4: Construction of buildings and works associated with a section 2 use

Clause 52.29: Create access to a road within a transport zone[1]

Clauses 02.01, 02.02, 02.03, 02.04, 11.01-1R, 12.01-1S, 13.02-1S- 13.05-1S, 13.07-1S, 14.01-1S, 14.02-2S, 16.01-3S, 17.01-1R, 18.02-4S, 52.06, 52.17, 52.29, and 65.01.

The subject site is located on the southern side of Clunes Road, Creswick with a frontage of 166 metres.

The site has a total area of approximately 3.64 hectares.

The site is developed with a dwelling and outbuildings. The southern portion of the site has been used as a contractor's depot by the dwelling's occupant since 2019.

1. Hepburn Shire Council ('council') has issued a Notice of Decision ('NOD') to grant a planning permit for the use and development of a contractor's depot and a reduction in car parking on the site at 423 Clunes Road, Creswick.
2. Michael Gray and others ('applicant') are original objectors to the application and seek a review of council's decision.
3. The grounds relied upon by the applicant are:
   1. The land use is an inappropriate land use on this particular site.
   2. The land use as proposed is excessive in intensity and scale.
   3. The application lacks detail and is poorly resolved.
   4. The land use and built form relies on land outside of the legal title boundary to operate.
   5. The use causes excessive and unreasonable amenity impacts to abutting and surrounding properties.
   6. The land use has previously removed vegetation from the site contrary to the Environmental Significance Overlay 1 (ESO1) and the Native Vegetation provisions of Clause 52.17 that apply.
   7. The storage of fuel and pollutants on site is unresolved and has the potential to cause amenity, environmental and bushfire impacts.
   8. The land use that is operating retrospectively has altered Clunes-Creswick Road which has a Transport Zone 2 classification. The application does not include these works.[3]
   9. The application in general lacks sufficient detail and clarity.
   10. The built form is excessive in scale and will unreasonably impact on the amenity and character of the area.
   11. The layout offers insufficient space for landscaping.
4. The permit applicant ('respondent') states that the proposal is appropriate, as:
   • The Rural Living Zone is an active working zone, and a zone where agricultural uses are encouraged, and other commercial activities may occur;
   • The subject site is not in a pristine rural living environment, and amenity expectations ought to be tempered on the basis of other land uses that can establish in the zone; and
   • The use that is proposed is low intensity and relatively benign, and the proposed new shed will have little visual impact.
5. Having considered the submissions and evidence presented, in the context of the relevant policies and provisions of the scheme, I have determined to vary the council's decision, with a permit to issue. My reasons follow.

1. The Tribunal received no submissions that a contractor's depot, of which a permit is required for use and development, was not an appropriate characterisation under the scheme.

1. Whilst all parties agree that the application should include a permit trigger under clause 52.29 for the creation of the new access to a road in a Transport Zone 2 ('TRZ2'), in accordance with Myers v Southern Grampians Shire Council[4], the Tribunal can only direct the grant of a permit for the permissions that are before it, and it is a matter for the council to issue a permit with respect to any other permissions.
2. In this instance, whilst a permit is required to alter a road in a TRZ2, this component of the application is exempt from third party notice and appeal rights. As the proceeding is brought under section 82 of the Planning and Environment Act 1987 (Vic), the alteration access to the TRZ2 is not within my jurisdiction and cannot be considered in my determination of this proceeding.
3. As such the Tribunal's order 3 dated 28 February 2025 is vacated and included in the order above.

1. Whilst the NOD refers to 'reduction in car parking requirement', parties confirmed that no permit was required in this instance for a reduction in car parking requirement associated with the contractor's depot as it is not a use nominated under clause 52.06 of the scheme as a type of use with a specified car parking requirement. In accordance with clause 52.06-6 of the scheme:

Where a use of land is not specified in Table 1 or where a car parking requirement is not specified for the use in another provision of the planning scheme or in a schedule to the Parking Overlay, before a new use commences or the floor area or site area of an existing use is increased, car parking spaces must be provided to the satisfaction of the responsible authority.

1. Council is satisfied that there is sufficient car parking for the proposed use.

1. On day 2 of the hearing all parties confirmed that they consider the roadworks within Government Road as exempt under clause 62.02-2 of the scheme.

1. I find that it is not necessary for me to amend the application to include earthworks. There were no submissions put to me that demonstrated that the earthworks would change the rate or discharge point of water across a property boundary and therefore trigger a permit under clause 1.0 of schedule 1 of the Rural Living Zone. This finding is in accordance with the Tribunal's finding in Jordan v Baw Baw SC[5].
2. Furthermore, I note conditions have been sought to be imposed that seeks a stormwater disposal area located on the land, and Government Road to be drained. As such, I do not consider that I need to 'exercise an abundance of caution[6]' and amend the permit application to include earthworks.

1. A separate proceeding is listed with the Tribunal regarding an enforcement order sought by Mr Gray under section 114 of the Planning and Environment Act 1987 (Vic).
2. The Tribunal and the Supreme Court[7] have taken the view that a permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained, and that it is to be judged on the planning merits.

1. The site is located within the Rural Living Zone- schedule 1 ('RLZ1'). The purposes of the zone include, as relevant:

To provide for residential use in a rural environment.

To provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses.

To protect and enhance the natural resources, biodiversity and landscape and heritage values of the area.

To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

1. The site is located within the Environmental Significance Overlay- schedule 1 however all parties agree that the exemptions at section 3.0 of the schedule 1 to clause 42.01 Environmental Significance Overlay apply to this proposal.
2. It was proffered by the applicant that there has been native vegetation removal which requires planning approval under the Vegetation Protection Overlay -schedule 1 and clause 52.17 of the scheme. The application before me does not seek vegetation removal and furthermore, I do not find that the contractor's depot will necessitate vegetation removal in order to operate.
3. Clause 02.04 of the scheme includes the Strategic Framework Plan and clause 11.01-1L of the scheme provides policy for townships and settlements. The site is located outside the Creswick township area. Within the Central Highlands region, clause 11.01-1R of the scheme nominates Creswick as a town with medium growth, and the site has frontage to a key road corridor.
4. As the site is located within the RLZ1, clause 16.01-3S that applies to rural residential development is relevant. This clause seeks to manage development in rural areas to protect agriculture and avoid inappropriate rural residential development. It further directs rural residential use or development should maintain natural resources, protect landscape values and environmental qualities, and create buffer distances to animal production.
5. With respect to land use compatibility, clause 13.07-1S has the objective:

To protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts.

1. The following strategies apply:
   • Ensure that use or development of land is compatible with adjoining and nearby land uses
   • Avoid locating incompatible uses in areas that may be impacted by adverse off-site impacts from commercial, industrial and other uses.
   • Avoid or otherwise minimise adverse off-site impacts from commercial, industrial and other uses through land use separation, siting, building design and operational measures.
   • Protect commercial, industrial and other employment generating uses from encroachment by use or development that would compromise the ability of those uses to function safely and effectively.
2. Clause 13.05-1S which outlines noise management policy has the objective:

To assist the management of noise effects on sensitive land uses.

1. Clause 18.02-4S relates to roads and access and seeks:

To facilitate an efficient and safe road network that integrates all movement networks and makes best use of existing infrastructure.

1. There are policies in the scheme which are relevant, but not central to the matters of dispute, that address matters including bushfire planning, environmental values including biodiversity and water quality, employment and a diversified economy, and protection of agricultural land.

1. Based on the relevant decision making framework, the key issues that I find I need to determine are:
   • Should a contractor's depot be located within a rural Living Zone?
   • Will the proposed contractor's depot have an unacceptable amenity impact?
   • Will there be any other environmental impact?

SHOULD A CONTRACTOR'S DEPOT BE LOCATED WITHIN A RURAL LIVING ZONE?

1. The applicant submits that the proposal is at an intensity that is simply too great for its location and context given the number of vehicles and machinery, and the size of the shed. In particular, the applicant is critical of its impact upon the existing dwellings and recognises that other cases relied upon by parties will have different facts in relation to intensity and context.
2. It was put to me that the dominant land use in the RLZ1 in this particular pocket of Creswick is residential land use with hobby farms.
3. I am not persuaded that the RLZ1 is a zone to be used exclusively for residential purposes. I say this on the basis of the purposes of the zone that provide for residential use in a rural setting and agricultural uses. The purposes also encourages use and development of land based on comprehensive and sustainable land management practices and infrastructure provision. The zoning and informative policies asks potential uses and industries to co-exist with rural dwellings.
4. As agricultural uses, rural industries and other commercial activities can occur in the zone, I agree with the submissions of the respondent that the reasonable expectations of residential amenity in the RLZ1 is tempered.
5. While the business operated from the site may be agriculturally related as part of the business that stores and processes of organic waste, in addition to the civil construction and transport components, I do not find that this is determinative in support of the proposal in the RLZ1.
6. The locational attributes of the site lend itself to the proposal given its frontage to Clunes Road, nominated in the regional strategic framework plan as being a key road corridor.
7. The trainline located south of the site is also a locational attribute in this instance as it provides a physical barrier to the proposed contractor's depot to some of the nearby dwellings. For reasons outlined in my amenity findings below, I have placed greater weight that the location of the contractor's depot that has been located on the site adjacent to the trainline, rather than near the farming zone land located to the north-east of the site. This will be discussed as part of the amenity based assessment.
8. I recognise that the site is not located within the designated township area. I was not taken to any policy that suggests 'no' growth in areas outside the township area, noting that it is within the township area where more growth is encouraged by policy and expected.
9. I am not convinced that the scale of the business run by the dwelling occupants on the site, is one that would necessitate the business to be located within the designated township areas, and in particular the Industrial 1 Zone of the township area. I recognise the contribution that the proposal may have to economic prosperity and local employment. However, it is appropriate for conditions to be imposed that provides parameters for the use of the contractor's depot to ensure the scale of the use is compatible with existing uses in this location.
10. It was also put to me that there may be greater scope for more intense development or use if this business was located within the township boundaries. This may well be the case and may be an option for the business operators into the future.
11. Whilst from a town planning point of view it may be preferrable to locate a business of this nature within the Industrial 1 Zone of the township area, as observed in Knox City Council v Tulcany[8] an acceptable outcome may still be achieved when the proposal is assessed against the relevant policy framework, despite others having alternative submissions regarding more ideal or preferable outcomes.
12. For these reasons, I have considered that a contractor's depot can be contemplated on this site, subject to further amenity assessment.

WILL THE PROPOSED CONTRACTOR'S DEPOT HAVE AN UNACCEPTABLE AMENITY IMPACT?

1. The applicant submits that, in particular, it is the scale of the proposed use that is incompatible with adjoining land uses and that the decision guidelines of RLZ1 requires consideration:

Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.

1. Recognising that the RLZ1 is a rural zone, not a residential zone, I find that with carefully crafted conditions the amenity impacts arising from the proposed contractor's depot can be mitigated in this instance.
2. I place great weight on the fact that a new shed will be provided as a part of the proposed use and this shed will serve as a tool to mitigate some of the amenity impacts.
3. My assessment of amenity impact follows.

1. The applicant submits that the size of the shed and the contractor's depot will have an unacceptable visual impact from the nearby dwellings. The open landscape affords vistas, and there is an expectation that there is a sense of spaciousness[9] between properties.
2. I agree that the proposed shed will be large and visible from adjoining and nearby properties. While there is visibility of the shed, I am persuaded by the respondent that any views to the shed are not prominent or dominant.
3. On the basis that nearby dwellings will be located at least 138 metres[10] from the shed, I find that buffer distances of at least 138 metres will be generous and assist in mitigating the shed's impact.
4. In addition to the significant distances between buildings, there is the railway reservation with an embankment that partially conceals the proposed shed and activities of the contractor's depot from some nearby dwellings. Scattered vegetation between properties will also soften views of the shed from various vantage points.
5. I recognise that the site is not located in an area of recognised landscape qualities, and as observed during my site inspection that the site and area, is not a pristine[11] rural area given the location between main road and railway line. Large utilitarian buildings forms part of the character of the area.
6. Furthermore, I find the location of the proposed shed and contractor's depot as appropriate given it is adjacent to the railway reservation and behind the dwelling that has maximised its distance from Clunes Road.
7. The applicant submits that there is a lot of built form in a confined area of the site. I agree, but find that the siting adjacent to the railway reservation is design responsive.
8. The height of the existing shed was used to estimate the visual impact of the proposed shed. It was stated that the existing shed has a height of 7.0 metres and the proposed shed will have a height of 7.35 metres. Given the analysis undertaken, I have imposed a condition on the permit that seeks to have the proposed shed with the same (or lower) floor height than the existing shed.
9. I estimate, based upon my site inspection, that the ground level to the rear of the proposed shed (northern part of the building) will be raised approximately 1.0 metre. I base that estimation on the ground level height of the area beneath the existing shipping containers that are approximately in the same location as the proposed shed. Even with floor level elevated above natural ground levels, I find the proposed will not have an unreasonable impact upon the property at 443 Clunes Road, Creswick given the shed will be located approximately 220 metres[12] from the dwelling.
10. With conditions imposed that requires stockpiles of material, soil or rock and equipment to be stored within a building, the overall appearance of the site can potentially be improved. This would be particularly the case from 443 Clunes Road, Creswick which at present has views to equipment not currently contained within a building.
11. The appearance of the shed will be assisted by the colour of the shed to match the existing shed located on the site, or in a muted tone to blend into the landscape.
12. The council has also supported the application on the basis that a landscaping plan be prepared to provide an effective screen from all boundaries. There is some impracticality to the condition as drafted by council as it doesn't specify where targeted landscaping ought to be provided.
13. I accept Mr Spaull's evidence to provide additional landscaping strip to a width[13] of 3 metres, including trees, shrubs, groundcovers and grasses along the southern portion of the western and eastern boundaries of the site to provide an effective screen of the contractor's depot. I adopt this suggestion, together with the suggestion that plant selection includes locally indigenous plants from the EVC 55_61: Plains Grassy Woodland and EVC 20 Heathy Dry Forest[14].
14. Given the location of the railway embankment, I find landscaping to the south of the site is not needed on the basis that the character of the areas includes scattered vegetation and open paddocks.

1. The applicant states that the Government Road was not intended to carry traffic from the proposal. Furthermore, the applicant submits that there is no buffer between the Government Road and any use or development on the property at 383 Clunes Road, Creswick.
2. Material provided by the applicant includes videos of various trucks from the contractor's depot using the Government Road.
3. Firstly, I note that use and development of the road does not require a planning permit. Council seeks the road servicing the contractor's depot to be formed, drained and maintained to a suitable trafficable standard.
4. To the extent that the traffic volumes may affect the amenity of other property owners, I am persuaded that the number of traffic movements are low. On the assumption that there are three trucks with 15 earthmoving vehicles returned each day to the contractor's depot[15], there would be 30 heavy vehicle movements each day, together with a maximum of 20 passenger vehicle movements[16] each day. Additionally, I was informed that there is a petrol tank attending the site once a week to supply the fuel store.
5. Furthermore conditions have been included that reduces the heavy vehicle movements to hours of operation Monday to Friday 7am to 6pm and Saturday 7am to 1pm. The hours of operation will temper any perceived amenity impact arising from the use of the road.
6. It was put to me by the respondents that it would take approximately 20 seconds to drive out. Even if this is an underestimate of the time taken, it is a modest amount of time that the Government Road is in use based upon the estimated 50 vehicle movements each day.
7. Even if the heavy vehicle movements associated with the contractor's depot is more than what may be expected for a traditional farming operation, I do not find that it is inappropriate or results in unacceptable amenity impacts.
8. The conditions proposed by council seeks to limit vehicles and/or machinery associated with the contractor's depot starting up or idling outside the approved hours of operation which will also seek to reduce potential amenity impact arising from vehicles, including the loading of the earthmoving equipment.
9. I am also not persuaded that a buffer is necessary between the road and the property at 383 Clunes Road. A dwelling is not currently located on this site. Even if I were to consider potential impact on any future dwelling on the property at 383 Clunes Road[17] I am not persuaded that any disruption or amenity impact from the road will be discernible or unreasonable.

1. Concern is raised by the applicant regarding light spill arising from the sheds, and the contractor's depot more broadly. Light spill is particularly raised with regards to the proposed shed which will be open on its southern side.
2. Whilst the proposed hours of operation Monday to Friday 7am to 6pm and Saturday 7am to 1pm will be largely during the day, artificial lighting will be necessary within the shed, and within the yard at certain times of the year and in poor weather conditions. I appreciate lighting is needed for operation of the contractor's depot, safety and security.
3. I have no details what type of lighting will be provided, and the extent of light spill or glare that may ensue on adjoining properties.
4. The applicant requests lighting to be restricted to 7am to 7pm, broadly aligning with the hours of operation of the contractor's depot.
5. I find that I will impose a condition that requires any lighting outside the hours of operation of the contractor's depot must be sensor lighting calibrated to detect movement of an object no smaller than an adult human, and must be designed and baffled to prevent adverse light spill on adjoining land or road reserve to the satisfaction of the Responsible Authority.

1. The NOD includes a set of conditions that seek to regulate and manage the use and development of the contractor's depot. Conditions impose manage stormwater, waste water, noise, dust, environmental impact and traffic noise including reversing beepers, site management plan, no stockpiling of materials, light spill and hours of operation.

1. As stated above, it is suggested by the applicant that there has been some tree removal that has occurred. Tree removal did not form a part of the application. Based on current conditions, I do not anticipate that vegetation will be impacted upon for the proposed use and development of the contractor's depot.
2. Over time, the site has been graded however the changes in ground levels have not significantly changed the appearance of the property or likely to modify drainage patterns. Conditions have been suggested by the water authorities to ensure that there will be no impact on waste water disposal system or stormwater runoff.

1. Carefully crafting permit conditions is an important part of the council's role in determining a planning application. I say this as the planning permit will give an important right to the permit holder, but it is also something that may need to be enforced by council (and others) in the future. Therefore, it is crucial that permit conditions are properly formed and gives certainty to all parties involved.
2. For an application involving use, it is important that factors that describes the intensity of the use and activities that council determines as acceptable are imposed as conditions on the permit. For example, this application when it was presented to council sought four trucks for moving earthworks machinery. But what if the business expands into the future with ten trucks? In this case, the NOD contained no conditions regarding the number of trucks or where these trucks or earthmoving vehicles are to be stored/ parked.
3. The applicant's case was largely formed on scenarios that had not been adequately covered by permit condition, and the possible resultant amenity impacts.
4. The use of standard conditions can allow efficient decision making, but councils must also customise standard conditions to ensure that they are fit for purpose. For example, a standard landscaping plan condition was imposed. On a site of 3.68 hectares the condition ought to communicate where it is that council is seeking landscaping to be provided.
5. Despite discouragement from conditions using the word 'shall', this word appeared in a number of the conditions of the NOD, including those conditions sought by two referral authorities. 'Shall' is unclear whether the obligation is mandatory or discretionary, and should not be used[18].
6. When a retrospective (or part retrospective) approval is being sought, customised conditions may be required in relation of timing of further actions. The contractor's depot already exists on the land so conditions seeking quick resolution of outstanding matters ought to be imposed.
7. To this end, council sought a condition in the updated conditions that requires the stockpiles, equipment and vehicles to be stored in a building. However this building is not in existence. Whilst it was agreed by all parties that a separate condition ought to be imposed requiring all development to be completed within twelve months of the permit, I have modified conditions that require the vehicles to be stored in the building once it is completed or within the twelve month period which is the timeframe provided for by the applicant.
8. If an extension of time for the planning permit is necessary, this will be a matter for further consideration, if the need arises.

1. The applicant seeks a condition to be imposed that requires vehicle access via the existing driveway at 423 Clunes Road and not via the Government Road. Furthermore, the applicant seeks the government road to be fenced to prohibit access to the property at 423 Clunes Road.
2. I find that there is no need to limit access from Government Road. The Government Road land has been set aside to facilitate vehicle access to private properties and I find that there is no planning reason for the road not to be used by private properties, noting that a number of conditions will be imposed to ensure the suitable construction of the road.

1. As clarified at the hearing, the number of trucks servicing the contractor's depot will be limited to three and will not include any trucks of semi-trailer size.
2. After the hearing the respondent was asked to advise of the maximum length of the truck to provide clarity for any imposed conditions.
3. Initially the advice was 12.5 metres, but later correspondence suggested that the length should allow for a tolerance of 10%. The applicant provided a submission on the basis of the vehicle of 12.5 metres in length.
4. I have based my decision on the maximum vehicle length of 12.5 metres given that this was put to other parties in post hearing submissions.
5. The respondents submits that, on occasion the business operator may want to store extra vehicles on the property that may also be larger than the size of the vehicles sought in the day to day operation of the contractor's depot from the site. The likely scenarios cited includes change in staff, staff on leave or a hiatus between projects.
6. As a concept, this may operate with minimal discernible impact. For example a truck could be parked within the shed for a couple of weeks whilst a staff member is on leave. However, the difficulty is defining what is 'on occasion' versus what constitutes day to day operation of the contractor's depot. I have included in the condition relating to the truck size a facilitative function that allows the permit holder to seek permission from council on occasion that they seek a truck greater than 12.5 metres to be stored on the land. If a request is made, council can make a decision based on the particular facts and circumstances arising from the on occasion event.
7. To avoid any doubt, other than the condition that limits the contractor's depot to three trucks and the size of the vehicles to be a maximum of 12.5 metres, conditions relating to 'trucks' has been clarified 'vehicles and/or machinery associated with the contractor's depot'.

1. I have imposed a condition requiring a site plan showing the area to be used for a contractor's depot to clearly define the area of the approved use. Similarly, I have not required a condition to be imposed limiting the number of shipping containers to two as they are shown on the plans and any variation will necessitate an amendment to the endorsed plans.
2. I have broadened the condition that seeks any stock piles associated with the contractor's depot to also refer to equipment. The proposed buildings, including a very large shed and two shipping containers, ought to provide sufficient area for the storage to material and equipment, if needed. Standard general amenity conditions will be imposed to prevent amenity impact if material flies away from the partially open sided shed..

1. The colour and material of the shed to match the existing shed or otherwise be a muted tone.
2. The applicant requests that survey information be provided as they suggest that information provided on the plans may not be correct in relation to the existing layout of the property, including the setbacks of the existing shed. Based on material presented this well may be the case but I do not find it to be determinative in the matter before the Tribunal in this proceeding.

1. The applicant's concerns regarding the contractor's depot occupying land across boundaries will be addressed by the condition imposed by council seeking the fencing off of the southern boundary so that the contractor's depot is not occupying the road reserve to the south of the site. I do not consider it necessary to impose that the fence alignment to be set out by a land surveyor. If the fence is located in the incorrect location, this is a matter that council (and others) can pursue.

1. On the basis that I have required landscaping located on the south side of the property, and ensuring that it does not affect the turning circles of the contractor's depot, I have required a condition to show the turning circles. During the hearing it was suggested that the structure located on the south-west corner of the existing shed will be removed to facilitate traffic movement. This may be particularly necessary given the condition to be imposed by council that limits access to the Government Road on the southern side of the property.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

Use as a contractor's store in the Rural Living Zone

Construction of buildings and works associated with a section 2 use

1. Within 30 days of the date of this permit, three (3) copies of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted but modified to show:

(a) Elevation plans showing all proposed buildings (shed and shipping containers) and colour to match the existing shed or otherwise in a muted tone;

(b) Site plan to show areas to be used as the contractor's depot including the location of buildings, driveways and aprons;

(c) The finished floor level of the shed to be no higher than the finished floor level of the existing shed;

(d) Notation of the length, width and height of each of the shipping containers;

(e) location of the access and parking to ensure no access from the road reserve to the south;

(f) fencing along the southern boundary preventing access;

(g) turning circles with extra landscaping strips as required by condition 2;

(h) removal of the structure on the south-west corner of the existing shed if it interferes with turning circles;

(i) detailed layout plans of the areas set aside for parking of vehicles and access (other than the Government Road) demonstrating compliance with AustRoads Publication Guide to Traffic Engineering Practice: Part 11 Parking', Australian Standard "AS2890: Parking Facilities".

1. Within 60 days of the date of this permit and commencement of development, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions. The landscape plan must be generally in accordance with the evidence statement of Mr Marcus Spaull dated February 2025, except that the plan must show:

(a) Details of surface finishes of pathways and driveways;

(b) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;

(c) Landscaping and planting adjacent to the eastern and western title boundaries in locations outlined in the evidence statement of Mr Marcus Spaull; and

(d) Appropriate irrigation system.

All species selected must be to the satisfaction of the Responsible Authority.

1. Within six (6) months of the date of this permit, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.

1. The development as shown on the endorsed plan(s) must not be altered without the written consent of the Responsible Authority.
2. All works as shown on the endorsed plans must be completed within six (6) months of date of this permit, unless with the prior written approval by the Responsible Authority.

1. All stormwater discharged from the subject land must be connected to the legal point of discharge to the satisfaction of the responsible authority.

1. It is the responsibility of the permit holder to construct and maintain the unmade/unmaintained Government Road from Clunes Road to the contractor's depot, to the satisfaction of the Responsible Authority.
2. Within six months of the date of this permit, the road must be formed, drained and surfaced in accordance with detailed plans and specifications prepared by the permit holder and approved by the Responsible Authority.
3. The road must be designed and constructed to relevant Australian and VicRoads standards and in accordance with the requirements of Infrastructure Design Manual (IDM) and IDM standard drawing SD600. The road must comprise of:

(a) a. 4.0m pavement width comprising:

1. Minimum 200mm class 3 20mm FCR sub-base; or
2. Minimum 100mm class 2 20mm FCR base; or
3. 300mm approved gravel sub base;

(b) Table drains and culverts, culverts must be designed for the 1 in 100 year Average Recurrence Interval (ARI) rainfall event.

1. Within 60 days of the date of this permit, the areas set aside for parking of vehicles and access as shown on the endorsed plans must be:

(a) surfaced with an all-weather surface;

(b) drained in accordance with an approved drainage plan;

(c) provision for vehicles to pass on driveways; and

(d) constructed and completed to the satisfaction of the Responsible Authority.

1. All costs incurred complying with the above conditions must be borne by the permit holder.
2. Within 60 days of the date of this permit the fence along the southern boundary preventing access to the Government Road must be completed.

1. The amenity of the area must not be detrimentally affected by the use of the land through:

(a) Transport of materials, goods or commodities to or from the land;

(b) Appearance of any building, works or materials;

(c) Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

(d) Presence of vermin;

1. Operational noise from the land must comply with the requirements of Victorian Environmental Protection Authority at all times.

1. Within 60 days of the date of this permit, a detailed Operations Management Plan (OMP) must be submitted to and approved by the Responsible Authority for the contractor's depot. The SMP must incorporate, but is not limited to, the following matters:

(a) methods and proposed monitoring systems to minimise dust leaving the land including:

1. specifications and installation of any dust suppression sprinklers;
2. the maintenance of the dust suppressant surface;
3. the use of dust suppression chemicals to minimize dust generation;
4. the maintenance of the road and car parking/vehicle access surfaces;
5. measures that will be taken in advance to offset the impacts of adverse weather conditions;

(b) operational measures to minimise noise emissions including, but not limited to:

1. using broadband reversing beepers on vehicles and machinery;
2. turning off trucks during loading and unloading procedures;
3. turning off plant and equipment when not in use; and
4. guidelines on the use of air brakes within the site, and speed limits to be complied with on site;

(c) litter management, including details of methods to contain litter within the site, the management practices for litter collection and disposal including details of storage and regularity, and the location of rubbish bins and skips;

(d) weed management to prevent escape of weed species to the adjoining land;

(e) roles and responsibilities of those involved in the implementation of the OMP;

(f) overall environmental objectives for the operation of the use and techniques for their achievement relating to stormwater, pollution, runoff etc;

(g) procedures to ensure that no significant adverse environmental impacts occur as a result of the use;

(h) identification of possible risks of operational failure and response measures to be implemented;

(i) day to day management requirements for the use;

The approved OMP must be implemented at all times to the satisfaction of the Responsible Authority.

1. Any stock piles of material, soil or rock or equipment associated with the contractor's depot use must be stored within a building to the satisfaction of the Responsible Authority.

1. Any lighting outside the hours of operation of the contractor's depot must be sensor lighting calibrated to detect movement of an object no smaller than an adult human, and must be designed and baffled to prevent adverse light spill on adjoining land or road reserve to the satisfaction of the Responsible Authority.

Hours of Operation and Operation of the Contractor's Depot

1. Unless with the prior written consent of the Responsible Authority, the contractor's depot must only operate during the following hours:

(a) Monday to Friday 7am to 6pm;

(b) Saturday 7am to 1pm.

1. No vehicles and/or machinery associated with the contractor's depot may be started up or idled outside the approved hours of operation.
2. Unless with the prior written consent of the Responsible Authority, the contractor's depot must not store or keep no more than three trucks at any one time and any of the allowable trucks must not have a length greater than 12.5 metres.
3. Within 12 months of the issue date of this permit, or once the shed is completed, whichever is sooner, all vehicles and/or machinery associated with the contractor's depot must be stored or kept in the shed approved under this permit.
4. The vehicles and/or machinery associated with the contractor's depot use must not be washed on the land.
5. No mechanical repairs of the vehicles and/or machinery associated with the contractor's depot must be undertaken on the land.

(a) the use hereby permitted may operate outside of the hours specified in condition 19 on not more than ten (10) occasions per year, or more with the written consent of the Responsible Authority, for the limited purpose of attending emergency call-out events;

(b) the time and frequency of such events must not result in any loss of amenity to surrounding properties and must not impact on the amenity of the locality, to the satisfaction of the Responsible Authority;

(c) the owner/occupier of the land must prepare and maintain a log book at all times which provides full details of the time and duration of activities outside of the permitted hours of operation, along with the reason for these activities. A copy of this log book must be made available at the request of the Responsible Authority.

1. The proposed contractor's depot must not be used for any habitable purpose.
2. The proposed contractor's depot must be located clear of the wastewater treatment system and its disposal area located on the land.
3. Stormwater from the contractor's depot must be diverted clear of the wastewater treatment system and its disposal area located on the land.

1. All construction and ongoing activities must be in accordance with Environment Protection Authority Victoria Publication 1834.1 Civil Construction, Building and Demolition Guide (September 2023).
2. All wastewater from the site must be disposed of via connection to the existing wastewater management system. If necessary, the system must be altered and/or upgraded in accordance with the current Environment Protection Authority Victoria Code of Practice - Onsite Wastewater Management, and to the satisfaction of Council's Environmental Health Department.
3. The contractor's depot (shed) must not encroach on the wastewater treatment system or disposal area, or breach the minimum setback.

1. This permit as it relates to use will expire if the land is on sold or the business is no longer owned and operated by Mr and Mrs Butson unless with the written consent of the responsible authority.
2. This permit will expire:

(a) if the development is not completed within twelve months (12) months of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] This permit trigger is exempt from the review rights of section 82(1) of the Planning and Environment Act 1987 (Vic).

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] By the Tribunal's order dated 28 February 2025, the permit application was amended to include 'Clause 52.29: Create access to a road in a Transport Zone 2'.

[4] [2023] VSC 658.

[5] [2024] VCAT 444 at [30] - [32].

[6] It was the respondent's submission that there would be no stormwater discharged from the site however if I decided to exercise 'an abundance of caution', the application could be amended to include the earthworks, if necessary.

[7] Examples Knox City Council v Tulcany Pty Ltd [2004] VSC 375, [13]; and following the findings of Van Egmond v City of Knox, Bassett & Ors as cited in Tulcany with reference to (1985) 3 PABR 249, 250.

[8] [2004] VSC 375 at [13].

[9] The applicant suggests that a separation distance of 130 metres in a residential setting is different to 130 metres in a rural area.

[10] In nominating this distance, I am not confirming that the distance provided to me is correct.

[11] Page 5 and 16 of the respondent's written submission.

[12] Page 13 of the applicant's written submission.

[13] Mr Spaull's expert witness statement refers to landscaping to a depth of 3.0 metres. Given the landscaping will be located along the east and west boundaries which are side boundaries, for clarification, I refer to it as width.

[14] Ecological Vegetation Class (EVC) implemented by the Victoria Department of Energy, Environment and Climate Action (DEECA).

[15] Noting that the respondent suggests that for an on-going project earthmoving equipment may stay on the project site for the duration of the project.

[16] This quantity is based on plans showing ten car parking spaces associated with the contractor's depot. The respondent could not account for why ten car parking spaces were provided when the proposal only included two staff members that did not live on the property. Under clause 52.06 of the Hepburn Planning Scheme, council was satisfied with the provision of car parking.

[17] Noting that a dwelling is not present on the property at 383 Clunes Road and the respondent submits that a planning permit is required for the use of the site as a dwelling.

[18] See Writing Planning Permits - May 2023 publication prepared by State of Victoria Department of Transport and Planning.