Response from other parties to application for costs

1. By 22 September 2025, any party who wishes to oppose or otherwise respond to the application for costs must give to the Tribunal and the parties:
   1. submissions which explain their position in respect of the costs application, including any basis on which they oppose the application; and
   2. a copy of any documents relied on in their submissions.

1. Unless varied by further order of the Tribunal, the hearing of any application for costs will be conducted 'on the papers' on 26 September 2025. No attendance is required.
2. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.

If any party objects to the application for costs being determined 'on the papers', they must advise the Tribunal and the parties of this by 24 September 2025 and provide reasons for their objection and the application for costs may be listed for a hearing online at a subsequent date, at the discretion of the Tribunal.

Nicholas Crawford, solicitor and town planner, TP Legal

He called sworn or affirmed evidence from David Boyde and Tracey Ridout, Council enforcement officers

For Down Town Entertainment Pty Ltd and Tom Jenkins

Tom Jenkins by zoom link on all days and in person at the accompanied inspection on 6 June 2025

Sophie Osborn, solicitor, Ashurst (hearing days 1 and 2)

1. The land is a large industrial property which includes substantial electricity infrastructure running through it, generally with a north-south alignment. It has a long entranceway running west to east.
2. The part of the land that is actively used adjoins a concrete batching plant to the west and approximately 30 residential properties to its immediate east. It also has an interface with VicTrack land to the west and south west.
3. An aerial photograph dated 4 March 2025 provides site context.[2]

1. The land has a notable history of having been granted a longstanding planning permit in 2007 for the use of Trade supplies subject to permit conditions ('the permit').[3]
2. Plans were endorsed under the permit in 2010.
3. The evidence provided by parties at the hearing indicates that the permit was acted on in a limited way. This included some trade supplies being brought onto the land. Shipping containers were also placed on the land, as was a site office/caretakers dwelling, but this was before the permit was amended to include this use/development.
4. Notably, the two sizeable warehouse style buildings that were approved to house the storage/display of trade supplies were never constructed.
5. To the extent any approved uses had been carried out, I find for reasons outlined below that such uses were in direct contravention of many permit conditions.
6. The evidence provided by Greater Dandenong City Council ('Council') also indicates that the land was used for other purposes not authorised under the permit.
7. After five extensions of time granted by Council, the permit expired on 3 March 2022.[4]
8. The evidence in this proceeding indicates that Council has been trying to bring this property into compliance with the permit and applicable planning scheme controls since late 2009, both during the life of the permit and afterwards.
9. Council now seeks an enforcement order requiring all unauthorised uses of the land to cease, for specified works to be removed and for certain areas of the land to be surveyed and remediated if required.
10. One motivating factor for Council's enforcement action has been a series of complaints from adjacent residential neighbours over time in respect of impacts on their amenity, including noise, dust, tall grass, vermin and the like.
11. Notably, Council does not seek any order to remove the shipping containers that were placed on the land during the life of the permit in the areas nominated under the endorsed plans.[5]
12. It considers this 'development' to have the benefit of section 6(3)(e) of the Planning and Environment Act 1987 (Vic) ('PE Act') to allow them to stay. That provision prevents a planning scheme from requiring the removal or alteration of any lawfully constructed buildings or works.
13. Likewise, Council does not seek any order for the removal of the site office/caretakers dwelling on the land for the same reasons.
14. However, it considers that if the shipping containers were used to store goods, this would require subsequent permission for the use of the land as a Store (noting they appear to be currently used for this purpose).
15. United Energy Distribution Pty Ltd ('United Energy') participated in the proceeding as an interested authority, albeit as a non-party. It made submissions supporting the issuing of an enforcement order in terms sought by Council.
16. United Energy was concerned about proposed safety and access in connection with its assets on the land, as well as potential impacts on ongoing supply to consumers if its infrastructure was damaged.
17. The respondent opposed the making of an enforcement order.
18. Mr Jenkins started the hearing by explaining that he was 'just here to get a permit and get on with life' and that he was a 'victim' who had done nothing wrong.
19. Mr Jenkins submitted he had a right to continue using the land for storage, including Trade supplies (as defined by the planning scheme and the permit) because the land benefits from existing use rights.
20. He considered that the activities occurring on the land have no impact on United Energy's assets and that access, safety and functionality had been maintained at all times.
21. He further advised that the land was 'clean', as evidenced by soil test reports, and opposed any proposed orders requiring further survey or remediation of parts of the land identified by Council.
22. He indicated he would like to seek permission from Council for a hard stand in the area generally as-existing and would not want to remove the gravel and other materials until such application was determined.
23. To the extent Council officers explained that residential neighbours had complained about water flows into their property, Mr Jenkins responded this was due to deficient Council drainage in the area.
24. As a matter of principle, he did not want any enforcement order that may be made in this proceeding to bind any future owners or occupiers of the land.[6]
25. I have considered all submissions and evidence and find that:
    1. the land has been used and developed in breach of the planning scheme. While the permit was operational, various uses were carried out that were not authorised or that did not comply with key requirements under the permit. Since that time, the land has been used and developed for uses that require a planning permit under the zone controls, when none have been obtained;
    2. it is appropriate to issue an enforcement order having regard to discretionary considerations, including the long history of Council seeking to bring the land in line with current planning scheme controls and the potential for ongoing amenity impacts to adjoining neighbours. Non-compliance with the planning scheme controls is likely to continue unless an enforcement order is issued; and
    3. the form of order will be generally in accordance with the amended application lodged by Council to require all unauthorised uses of the land to cease (and not to recommence without a planning permit) and to facilitate the restoration of parts of the land to remove hard stand areas and mixed waste materials.
26. My detailed reasons follow.

1. The PE Act provides a regime for planning enforcement in Victoria.
2. Council as the 'responsible authority' has a duty under section 14 of the PE Act to efficiently administer and enforce the planning scheme. This is in addition to its role to implement the objectives of the planning scheme.
3. Section 114 allows an applicant, including a council, to apply to VCAT for an enforcement order if:

a use or development of land contravenes, has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

1. The Greater Dandenong Planning Scheme ('planning scheme') applies to this land.
2. As part of Council's case, it provided 'proofs' of the applicable provisions of the planning scheme at relevant points in time and the former permit and endorsed plans, signed by its authorised officer pursuant to sections 140 and 141 of the PE Act.
3. I accept these certifications as true and correct.
4. The land is within the Industrial 1 Zone. Because of its direct abuttal to residential properties, the vast majority of land uses that involve machinery, equipment, dispatch and the like require a planning permit.[7]
5. It is not subject to any overlay controls within the planning scheme, but title to the land evidences that it is subject to easements in favour of the electricity and infrastructure authorities.
6. Clause 33.01-4 specifies that a permit is required to construct a building or to construct or carry out works.[8]
7. Section 117(1)(f) and (g) of the PE Act require the Tribunal to provide a reasonable opportunity for any person or entity who it considers may be affected by the alleged breach or the proposed orders to make a submission.
8. Section 119 enables the Tribunal to issue an enforcement order if it finds there is, has been or will be a breach of a planning permit or the planning scheme.
9. Such an order can be tailored to require any action to bring the land into compliance with the planning scheme or a planning permit. More specifically, section 119(b) enables the Tribunal to direct a person to stop a use or development, not to start a use or development or to do specified things within a specified period.
10. Section 119(B) further enables orders to be made to otherwise ensure compliance with the PE Act, a planning scheme or permit condition.
11. There are also broad powers conferred by section 119(A) to require land to be restored as nearly as practicable to its condition immediately before the use or development started or to a condition to the satisfaction of a responsible authority.
12. This power to issue an order and the content of that order is in the Tribunal's discretion, to be exercised on the particular facts before it.
13. In advance of the hearing, it became apparent that there were a number of people who were provided with rights to use parts of the land by the respondent. I issued an order requiring the respondent to provide details of these people/entities in a timely way.
14. I then directed notice of the hearing to these people and provided an opportunity to submit a statement of grounds in my order dated 26 May 2025. No person or entity took up this opportunity.
15. I also issued orders requiring the legal arrangements between the respondents and these occupiers to be provided. The respondents elected not to provide this information, if it exists.
16. However, I note that at the accompanied site inspection which formed part of the hearing, Mr Jenkins had arranged for a number of occupiers/tenants to be present and available for discussion.
17. It became apparent that there are at least 7 or 8 people or groups who have been given rights to use parts of the land as at the date of the hearing. These include skip bin operators, truck drivers/transport operators, friends and colleagues (mostly for storage).
18. I allowed this interaction on the basis that they had a claimed interest in the land or may be affected by the proposed orders, also noting that Council did not object to this course of action.

1. The statement filed by Council under section 141 of the PE Act confirms that Council issued planning permit PLN07/0531 on 3 March 2009. The permit allowed:[9]

To develop and use the land for the purpose of Trade Supplies (storage and resale of second-hand building materials for use in the building industry).

1. I have reviewed all conditions of the permit and identify noteworthy conditions relative to the issues in dispute:[10]
   • the development as shown on the endorsed plans must not be altered without Council's written consent (condition 2);
   • once the use has started it must be continued and completed to Council's satisfaction (condition 3);
   • a Site Management Plan and Waste Management Plan were required to be approved to form part of the permit, with certain specified contents (conditions 4 and 5);
   • the use must not commence and the site must not be occupied until all buildings and works and the conditions of the permit were complied with, unless with the written consent of Council (condition 6);
   • limitations on hours of use (condition 9);
   • goods, materials and equipment associated with the use must not be displayed or stored outside buildings unless permitted by Council (condition 11);
   • floor levels on the endorsed plans must not be modified without consent of Council (condition 14);
   • stormwater discharge must be retained to pre-development peak level (condition 16);
   • before the use starts, areas for parking and access must be constructed, formed and serviced as per condition 17 and parking areas must not be used for storage;
   • access to/from Whitworth Ave is limited to emergencies (condition 25);
   • a standard 'no detriment to amenity of the area' was provided in condition 27, to the satisfaction of Council;
   • noise was required to comply with SEPP No. N-1 (condition 29);
   • the surface of the land must be treated, primed and sealed to prevent loss of amenity by the emission of dust and discharge of drainage to Council's satisfaction (condition 33);

landscaping was required by condition 36, to be installed before occupation of buildings under condition 37, with the landscape plan to be endorsed under conditions 1 and 39; and

1. Additional conditions were imposed by Melbourne Water to protect against sediment and other discharge into drains, including a requirement for new fencing to the northern boundary.
2. Condition 42 confirmed that SPI PowerNet Pty Ltd retained relevant easement rights and that no buildings could be constructed or materials stored on the relevant powerline easement.
3. Condition 43 extended this limitation on buildings and works in respect of all easements and relevant authorities.
4. Plans were endorsed under the permit on 12 August 2010.
5. The permit was amended on 13 June 2014 and renamed PLN07/0531.02. The amended permit maintained the approved use in the same terms (subject to a change in operating hours to 8am), but also allowed a singular caretaker's house.
6. A new condition 47 was added as part of that amendment, that shipping containers on the land must not be double stacked. The Site Management Plan was also amended to refer to the storage of materials from demolition sites within shipping containers.
7. Plans were endorsed under the amended permit on 13 June 2024.
8. I note that a request to amend the permit to allow for an outdoor storage yard was refused by Council.
9. Council granted extensions of time under the permit on multiple occasions,[11] and the permit expired on 3 March 2022.
10. No other planning permits have been issued in respect of the use or development of the subject land for any relevant purpose that is the subject of this proceeding.
11. I accept from submissions from Mr Jenkins, supplemented by photographs and aerial photographs provided by Council, that the permit had been acted on while it was current.
12. When I say 'acted on', I find that only parts of the permit were acted on, but others were not.
13. The use of the land for Trade supplies appears to have commenced with some regularity and continued at least intermittently until the present time.
14. Significantly though, this use of the land did not comply with many conditions of the permit to which it was subject.
15. The most notable deficiency was that the approved buildings and works to 'house' the use never commenced.[12]
16. In addition, numerous other uses were operating on the land without any planning permission as required by the zone controls.
17. Council described this in the amended application for enforcement order as including Store, Materials recycling, Transfer station, Industry, junkyard/refuse disposal, contractors depot and the like.[13]
18. I accept submissions for Council that the evidence shows that the uses, properly characterised[14], fall within the majority of the planning scheme definitions provided by Council, albeit perhaps falling short of Industry in any real and substantial or sustained way.
19. As explained in these reasons, I have found on the facts before me that the land has been used unlawfully for most of the purposes alleged, since they either require a permit when none had been issued (e.g. Store[15]) or are either prohibited uses (Materials recycling and Transfer station).
20. For the record, I am not persuaded by submissions by Mr Jenkins that the land was meaningfully used for any purpose before late 2009 (claimed from 2007).[16]
21. There is no evidence of use before late 2009 when there is first documented evidence of such land use. Instead, the aerial photographs do not show any distinct activity on the land (aside from the infrastructure assets) before November 2009.
22. Despite Mr Jenkins' claims that an officer of Council permitted the use of the land before a permit was issued, there is no evidence of this claim. I also find this unsupported claim highly unlikely to be accurate, because such action would have been beyond the power of Council and entirely inconsistent with processes in the PE Act for permit applications.[17]
23. Irrespective, this issue is not determinative of the application for enforcement order because Council is not alleging that the use or development of the land commenced before the permit was granted.

HAS THE LAND BEEN USED IN BREACH OF THE PLANNING SCHEME?

1. I regard the essence of Mr Jenkins' defence as:
   • the former permit authorised all uses and development of the land (aside from the dumping of waste without his knowledge); or
   • the uses and development of the land are lawful because the land is zoned Industrial.

1. There is no dispute that the two main buildings approved to house the trade supplies use (shown on the endorsed plans) were never constructed.
2. However, Mr Jenkins appears to claim on behalf of the respondents that the uses of Trade supplies and Shipping container storage had operated on the land, and continue to this time.
3. I accept that there were some items brought onto the land during the life of the permit that would have come within the definition of Trade supplies. This was detailed in evidence from Ms Ridout and Mr Boyde (confirmed in photographs) and was not disputed by Mr Jenkins.
4. These supplies included bricks, roof tiles and other second-hand building materials.
5. I accept there is no evidence of any sale of Trade supplies from the land, but the planning scheme does not preclude such use from occurring in the absence of a retail/commercial component.
6. I further accept that the storage containers and temporary site office/shed were brought onto the land during the life of the amended permit, as confirmed by Council officers and verified in aerial photographs.[18]
7. I find that the combination of the Trade supplies use starting without the construction of the approved buildings is sufficient to justify a finding that conditions of the planning permit had been breached while the permit was operational.
8. This of itself can be the basis for an enforcement order under the legislation as outlined above.
9. I address just a few conditions which I regard as integral to the permission granted. There are numerous other non-compliances demonstrated by the evidence, such as a breach of approved operating hours.
10. Condition 6 provided that the use must not commence and the site must not be occupied until all buildings and works were had complied with, subject to all permit conditions.
11. In combination with condition 11, it is clear that condition 6 was an integral condition of the permit.
12. The permit was for the use and development of the land, in combination (i.e. a series of integrated permissions).
13. The grant of the permit was premised on a requirement to store all goods within one of the two large warehouse-style buildings to be constructed at the interface with the residential properties to the east.
14. While an area was identified on the plans for receipt of goods, the permit was clear that these would need to be relocated into a building within a specified time period.
15. From 11 January 2011, Council records indicate that enforcement officers observed a large amount of goods being stored in the open, including demolition waste.
16. Mr Boyde inspected the land on 14 August 2012 (and on other occasions) and it was apparent that the operations on site did not comply with permit requirements.
17. I find that the fact that the use commenced and continued while no buildings were constructed to house it was a substantive breach of the planning permit, notwithstanding that other buildings and works had been carried out in the absence of permission under the endorsed plans.
18. In terms of the Tribunal's discretion to issue an enforcement order, it also inherently generates far higher potential for impacts on amenity as a result of the use, given the numerous direct interfaces with the secluded private open space and habitable rooms of adjacent residential properties. I return to the evidence about this below.
19. This scenario invokes section 114(1) of the PE Act since the use of the land has contravened a condition of a permit.
20. In addition, I find that there have been numerous other breaches of permit conditions.
21. For example, the permit was subject to a condition requiring approval of a Waste Management Plan, which would form part of the permit. This document was approved by Council and confirmed that:[19]

It is not proposed to undertake the activity of dismantling or breaking up of goods or materials on site.

1. I accept Council's evidence there was non-compliance with this requirement since there are numerous instances where salvage-type activities were occurring on the land, such as separating mortar from bricks to make them suitable for resale.
2. Mr Jenkins repeatedly explained his view of the situation that he would not be in this proceeding if the permit had been extended.
3. In my view, this fails to take responsibility for the fact that there had been substantial non-compliance with the permit from the date of its grant until the date of its expiry.
4. Even if the permit had been extended (which I would regard as unlikely on the planning merits as they have come to pass and overall amount of time it was live), the respondents would not be in an improved position now to avoid the making of an enforcement order requiring compliance with all requirements of the permit as a minimum.

1. It is clear from the evidence of Council's enforcement officers, supplemented by aerial photography and confirmed by the accompanied site inspection, that there are numerous past and current uses of the land[20] that are not authorised under applicable planning controls.
2. I form this view notwithstanding that various parts of the land were used for various purposes over time, and these uses have increased and decreased over time as well. Ultimately, it is clear that these activities were sufficiently regular and ongoing and of a scale that constitutes a use of land.

1. I make the following findings on the basis of the evidence provided by Council in the proceeding, and tested by cross-examination.[21]
   1. The land was used for Trade supplies, principally while the permit was operational. However, there is no indication that this use continued in any meaningful or consistent way in recent times. As mentioned above, the use at that time was fundamentally in contravention of key conditions of the permit and was therefore unlawful.
   2. The land (or part) is being used for a Transport and skip bin Depot. This is currently the substantive use of the land (aside from the caretakers dwelling and shipping container storage which were authorised) which requires planning permission, and for which no permission has been granted.
   3. At certain times, the land was being used for Materials recycling or a Transfer station. These raised particular environmental and amenity concerns, but appear to have ceased in early 2025 in response to Council enforcement action.
   4. The land has been and is being used for a Store without a planning permit as required. Mr Jenkins and relevant occupiers appear to acknowledge that this use is unauthorised and were in the process of removing old faming equipment, refuse, vehicles and the like at the date of the accompanied inspection.
2. I summarise my key findings on the above, having regard to the evidence provided by Council and Mr Jenkins, confirmed on the site inspection and by relevant documentation filed in the proceeding.

1. Trade supplies is a defined land use term in Clause 73 of the planning scheme. It is defined as 'land used to sell by both retail and wholesale, or to hire, materials, tools, equipment, machinery or other goods for use in [certain nominated industries including building and industry]'.
2. On her inspection of 4 October 2022 (after the permit had expired), Ms Ridout recorded that an area towards the south of the property was being used to sort and store reclaimed bricks (some of which were stored on pallets, with damaged bricks dumped in piles).
3. It appears that this activity was continuing on the land as observed by Council officers on 21 June 2023.
4. Timber was stored further south on the land.

1. The land use term Depot is not defined in Clause 73 of the planning scheme.
2. I accept the reasoning in Andsand Pty Ltd v Kingston CC & Ors[22] that key elements of a contractors depot land use include land serving as a base where staff come to work to pick up vehicles and machinery, where administrative functions may be carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions may occur, such as the repair or maintenance of vehicles or equipment.
3. In the present case, I consider that the Depot use essentially has the character of a Transport depot for trucks/vehicles and a skip bin depot. The real and substantial elements of the use as described above are met on the evidence before me. It is not determinative whether or not administrative functions are carried out, since this is just an ancillary aspect.
4. Ms Ridout and Mr Boyde provided relatively consistent reporting of numerous trucks being brought onto the land and stored overnight (or for longer periods).
5. For example, on 4 October 2022, Ms Ridout documented her observations of a hardstand area formed from crushed rock that had a number of trucks parked on it. She formed the view that it appeared this area was being used for vehicle storage.
6. Towards the southern end of the land, she observed a number of areas used for skip bin storage, with a variety of different business names marked on them.
7. This activity continued as at Council's inspection on 2 November 2022 and a bin hire truck was observed inside the property on 24 November 2022.
8. Ms Ridout referred to her inspections from Newcomen Road (generally central location) and Nearmap images since that time. She gave evidence that she has seen the land uses and works on the land intensify.
9. On a number of site inspections, Council officers also recorded vehicles/equipment being repaired/serviced, including earthmoving equipment.
10. The photographs tendered at the hearing provided show a large number of passenger vehicles parked on hard stand areas, mostly during the daytime period.
11. On the accompanied site inspection, numerous occupiers indicated that they park trucks on the land and that drivers bring personal vehicles onto the land, drive the trucks to work sites and return them at the end of the day/shift. This land use occupies a substantial area of the land, mainly in the central portion.
12. The parties and witnesses also pointed out rudimentary 'line marking' for the parking of trucks, which Mr Jenkins explained was in response to his understanding of requirements under the permit to mark parking areas to Council's satisfaction.
13. On the facts before me, I find that the land use term Depot is appropriate for the activities associated with truck parking and dispatch and the activities of storage and dispatch of skip bins (both full and empty).

1. These land use terms are defined in Clause 73 of the planning scheme as follows.

Land used to dismantle, treat, process, store, recycle, or sell refuse, used or surplus materials.

Land used to collect, consolidate, temporarily store, sort or recover refuse, used or surplus materials before transfer for disposal, recycling or use elsewhere.

1. Both of these land uses are prohibited on the subject land under the table of uses to Clause 33.01-1 since the table to section 2 provides that these uses cannot occur within 30 metres of a residential zone. In this case, the land directly abuts a General Residential Zone for an extensive interface to the east.
2. The two affidavits of Council officers document the observations of Council's enforcement staff from 19 November 2009 that the occupier was running a materials recycling business and that shipping containers had been placed under the power lines and were blocking access to the easement.[23]
3. As mentioned, Council received a complaint in 2011 that the land was being used for materials recycling.
4. A further inspection in December 2014 indicated that a materials recycler/skip bin operator had started operating on part of the land.
5. At numerous points in time, the evidence by Council officers document their observations of materials being brought onto the land and sorted to varying degrees.
6. Ms Ridout presented numerous videos of part of the subject land taken in late 2022.[24] They were provided to her as part of a complaint from neighbouring residents.
7. In summary, the videos show trucks dumping waste (including furniture) and an earthmoving machine moving over the waste on the ground.
8. This was consistent with Ms Ridout's evidence of her observations on the site on 4 October 2022. She noted two white trucks with rubbish removal signage and documented waste, including wood, broken bricks, plaster, broken glass and household waste.
9. Ms Ridout gave evidence that it appeared to her that there was waste being buried on the land since she could 'see debris embedded within fresh soil on the land in the built up area'.
10. In other areas further south, she observed piles of concrete, rock and other materials.
11. Ms Ridout confirmed that she also observed an excavator and front end loader in another fenced off area where earthworks had been carried out. She explained that 'I suspected by the presence of broken bricks and rubble in this disturbed ground that waste may be buried in this area also'.
12. A further report was provided to Council on 21 October 2022 that a particular operator was continuing to sort and bury waste on the land.
13. This was consistent with the condition of the land observed by Ms Ridout from an adjacent property on 24 October 2022.
14. Additional videos and photographs were submitted to Council by neighbours in late September to early November 2022, recorded in Exhibits TR-13 and TR-14. The videos depict rubbish removal and skip bin companies bringing waste and emptying bins onto the land, with some of the waste being buried, worked into the ground or covered by a bobcat and excavator.
15. On the accompanied inspection, there were various locations proximate to the eastern property boundary where it was obvious that the natural ground level had been raised with a combination of soil and solid (probably inert) materials. My observations were consistent with Council officers, that the materials were generally comprised of broken up construction waste such as plastic pipes, brick shards, ceramic fragments and the like.
16. Mr Jenkins denied having provided any permission to particular occupiers to use the land for the purpose of sorting or disposing of waste materials. He particularly disputed any knowledge or involvement with a former occupier Scott Mead.
17. He also advised that he had required these operators to cease these activities and to leave the land as requested by Council.
18. In fact, Mr Jenkins was frustrated that these unauthorised operators were not prosecuted by Council. He asked a number of questions in cross examination about why these investigations did not lead to legal action being taken against these operators.
19. On the basis of this evidence I find that at various times, including in recent years, the land has been used for materials recycling to the extent that the land has been used to store and dismantle reused or used and surplus materials, including household furniture and used materials.
20. Likewise, I find that the land has also been used as a Transfer station from time to time, including in respect of the skip bin operations since it has been a location where refuse, used and surplus materials have been collected and temporarily stored (and to some extent, sorted) before being transferred elsewhere for disposal.

1. Store is defined in Clause 73 of the planning scheme as 'land used to store goods, machinery or vehicles'.
2. The evidence indicates that the land has been used for many years for the storage of goods, vehicles and equipment to varying extents and in numerous locations.
3. For example, Ms Ridout observed caravans and campers on her inspection of 4 October 2022.
4. Overall, there was a collection of goods, machinery and equipment in various conditions in numerous parts of the land, although I acknowledge that Mr Jenkins has made an effort to reduce or remove them since the application for enforcement order was lodged.
5. At the accompanied inspection, it was clear that many car bodies/parts had been stored on an area of the land towards the central western portion of the land. The owner of these vehicles explained his use of that part of the property.
6. It also appears that in more recent months, part of the land has been used by a friend of Mr Jenkins to store old farm equipment and goods that needed to be moved after a change in life circumstances. The owner of this equipment indicated that this was not intended to be a permanent arrangement.
7. It is clear on the facts of this case that the land has been used for a Store without a planning permit.

1. Council identified two main areas of concern relating to unauthorised buildings and works - a large area toward the eastern property boundary that has been raised compared with natural ground level and a small ramped concrete area towards the VicTrack land.
2. In addition, it also highlighted that the Materials recycling activities had resulted in fill and buried materials in the areas identified 'C' on its amended site plan.
3. Council submitted that neither of these sets of works were depicted in the endorsed plans under the former permit. It further clarified that no other permissions for these works have been granted subsequently.
4. Council sought orders to require the removal of these works.
5. Its immediate concern was the generation of dust when the unsealed hard stand area was used. This aligned with complaints made to Council by direct residential neighbours, as provided in evidence.
6. Mr Jenkins did not dispute that these works had been carried out. He explained on a number of occasions that it was necessary to form a sturdy base for parking areas for cars and trucks using broken bricks, crushed rock and the like which were subsequently compacted.
7. For what it is worth, he did not deny that he commissioned/carried out or had knowledge of these works.
8. However, he repeatedly explained that he had sought permission for these works and would want a further opportunity for them to be approved and retained to support the use of the land, even though the use to which they were being put was unlawful at present.
9. At the accompanied inspection, dust clouds were rising off this part of the land, noting that the area was experiencing high winds that day.
10. Mr Jenkins explained that this would be reduced once the crushed rock had been wet by rain but he had deliberately left this area as is to enable my fulsome inspection of the recent further works.
11. Council had also had concerns about the reshaping of this part of the land, with potential to cause drainage issues to residential properties which are at a lower level to the east.
12. This was expressed in general terms and by reference to complaints made to Council by some neighbours about the effect of water flows from time to time, but no engineering evidence was called on this issue.
13. Officers gave evidence of how this side of the property was built up compared with the level of the wire boundary fence.
14. This was clearly evident on the accompanied inspection, albeit not immediately adjacent to the fence line in all locations.
15. In addition, Council requested a more detailed order requiring an assessment of the contents of the materials in Area C on the marked up site plan,[25] which is focused on the north eastern corner of the subject land.
16. This would be a precursor to requiring the respondents to remove this material and to restore pre-development natural ground level.
17. This was the result of Council officer's observations of previous activities within this area, including the break up of various construction and discarded materials.
18. Mr Jenkins claimed that the land is 'virgin land' and that 'it is clean'. He relied on a soil test report carried out in July 2024 which did not identify any contamination (as part of a permit application by a third party that did not progress to approval).
19. Council submitted that the boreholes which formed the basis of this assessment did not include the north eastern corner of the site, with which it is concerned. Consequently, even though the soil test was recent, Council did not consider that this area of the site had been investigated.
20. More recently, Mr Jenkins submitted a statutory declaration referring to a subsequent expert soil test report purporting to indicate that the areas sampled are free from contamination.
21. The contents of the report itself were not provided, only Mr Jenkins' summary so it is unclear as to the areas and extent of testing or the outcomes reported.
22. However, in light of the scope of the enforcement order I propose to issue, I do not consider that the report is necessary in support of the respondents' case, since I do not consider there is sufficient evidence or site context to warrant comprehensive sampling and analysis for contamination as requested by Council.
23. In summary, it is clear that all buildings and works (except for some very limited exemptions that do not apply here) in the Industrial 1 Zone require planning permission.
24. It is also clear that the works that have been carried out on the land were not authorised under the former planning permit. They were not depicted on the endorsed plans in the areas they have been constructed and they have not complied with conditions of the permit including conditions 14, 16 and 17 as to drainage, finished levels and the like.
25. This aspect of the land's development has a history.
26. Mr Jenkins asked me on numerous occasions to seek to compel or persuade Council to give permission for these hard stand areas.
27. I explained that the Tribunal only has the powers conferred on it by the legislation. In this instance, the only application currently before me in relation to this land is an application for enforcement order by Council.
28. I do not have any opportunity currently to make any decisions about whether Council should approve the as-constructed or proposed development of the land, for hard stand areas or otherwise.
29. It was evident that a number of applications had been made to Council over time, either by Mr Jenkins or by various occupiers of parts of the site, for some form of hard stand area/s, but that these did not progress to approval.
30. I can somewhat understand Mr Jenkins' frustration about this, because he considers that the material requested by Council has already been provided on the relevant planning file.
31. However, it does not entitle them to be constructed in the absence of planning permission.
32. At the present time, there are no lawful uses proposed to be made of these areas, which is likely to be a practical obstacle to demonstrating their appropriateness.
33. For example, if the hard stand areas are intended to provide parking areas for trucks, vehicles and skip bins, the use of the land for a Transport and skip bin Depot is currently unauthorised.
34. If the respondents were serious about regularising the use and development of the land, I suggest they would need to submit an integrated permit application for Council to consider.

DOES THE LAND BENEFIT FROM EXISTING USE RIGHTS?

1. It is possible for a respondent to an enforcement order to claim the benefit of 'permitted' rights or existing use rights as a potential defence to an application for enforcement order.
2. Scope for this arises under section 6(3) of the PE Act which provides:

(3) Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -

(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works.

1. Council submitted that now that the permit has expired, there are no rights granted under it. This is legally correct.
2. However, Mr Jenkins repeatedly advised that the respondents are entitled to continue using the land for the purposes for which it has been used to date because the land benefits from existing use rights.
3. Clause 63 of the planning scheme provides for existing use rights in a way that is consistent with section 6(3) of the PE Act.
4. In summary, that section confirms that a planning scheme must not prevent the continuance of a use or development that was lawful at the relevant time.
5. There are a number of ways that permitted or existing use rights can accrue.
6. While the second dot point of Clause 63.01 refers to a permit being issued before the approval date, this is not a relevant ground on the facts before me since the permit was granted after the relevant planning scheme provisions had been enacted.
7. In any case, I accept Council's submission that once the permit had expired, it does not confer any rights to continue operating the use unless other provisions confer existing use rights.
8. It appears that Mr Jenkins is seeking to rely on rights that were granted under the permit or, alternatively, rights that have arisen because the use/s were carried out for 15 or more years.
9. It is possible that a use commences under a planning permit and that this gives rise to rights to continue that use even after the permit has expired. This would be if the relevant use/s had been demonstrated to occur for 15 or more years (whether during or after the permit).
10. Another way that existing use rights might arise is under the fourth dot point of Clause 63.01:

Proof of continuous use for 15 years is established under Clause 63.11.

1. It is not entirely clear which uses of the land the respondents claim are permitted under existing use rights.
2. On this basis, I have considered the potential for all previous and current uses of the land to be encompassed by this claim (i.e. Trade supplies, Store, Transport depot and the like).
3. Clause 63.11 elaborates on how this can be proven:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for a period of 15 years at any time before the date of the application or proceeding.

1. Importantly, existing uses are controlled by Clause 63.05. If a use is currently specified as a section 2 use in the zone - which also includes Trade supplies in this instance - it may continue, provided:
   • No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
   • Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
   • The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
2. It is obvious from my conclusions above that the respondents cannot demonstrate any of these conditions being met.

1. While the use of the land for Trade supplies was clearly approved under the permit, the first problem the respondents face is that there is no way that they could meet the requirements of Clause 63.05 for a lawful continuing use after the permit had expired.
2. The reason for this is that there are many conditions and restrictions to which the use was subject that are not able to be complied with (as outlined above).
3. It is also clear that buildings and works did not comply with permissions required.
4. The most significant obstacle for the respondents is that the use had to occur within approved buildings that were never constructed.
5. It is further problematic that the amenity of the area has been damaged or further damaged (as addressed below) by a change in the activities beyond the limited purpose of the use preserved by the existing use right, such as storage outside a building and a shift to other uses that were not approved.
6. For this reason, even if this use was able to demonstrate existing use rights over 15 years, this use could not continue after the expiry of the permit.

1. I have found that some uses of the land started in late 2009. The permit expired in early 2022. We are now in 2025 which provides a notional period of just over 15 years.
2. Even if other uses had been ongoing for 15 years, they are prevented from gaining rights under Clause 63.11 for reasons explained below.
3. In addition, any right to continue these uses (if established) would be ousted because of the provisions of Clause 63.05.

1. By contrast, I find that the use of the land for Shipping container storage is lawful since it was authorised under documents forming part of the permit and/or existing use rights for over 15 years had been demonstrated, provided it continues to comply with the requirements that applied under the former permit (as amended).
2. I find these requirements include:
   • a limit on the overall number of shipping containers stored (met in this instance);
   • a designated area for the containers (largely met at this stage, with some limited exceptions that can be fixed by relocation); and
   • a limitation on the height of the containers, to a stack of two (complied with).
3. Council submitted that shipping container storage is a form of development that has been approved under the permit, but that the placing or removal of goods in/from the shipping containers would require separate permission for use (which it says has not been obtained).
4. I am not persuaded by this submission. The evidence demonstrates that the land has been used for Shipping container storage for 15 or more years.
5. It is clear from the table of uses in Clause 33.01-1 that Shipping container storage constitutes a use of land.
6. This is reinforced by its reference that these structures must not be used for a purpose in the table to Clause 53.10 (relating to uses and activities with potential adverse impacts), otherwise planning permission is required. To this extent, it contemplates that the containers may be filled as part of the use, and not necessarily remain empty.
7. This was confirmed in the management plans endorsed under the permit.[26]
8. I agree with Council that, to the extent that the shipping containers were placed on the land and have some permanence from the passage of time, this activity could be regarded as development which is protected by section 6(3)(e) of the PE Act.
9. Section 68(4) of the PE Act applies, which provides:

The expiry of a permit does not affect the validity of anything done under that permit before the expiry.

1. Therefore, as long as applicable requirements continue to be met, I find that this use (and development) may continue on the land.

1. The insurmountable challenge for the respondents in this case is that it is subject to the important proviso in Clause 63.11 that:

An existing use right may be established under this clause even if the use did not comply with the scheme immediately before or during the 15 year period, unless any of the following apply:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.
• The use ceased between the end of the 15 year period and the date of the application or proceeding. [Tribunal emphasis]

1. Council referred to numerous letters in evidence that were sent to the respondents requiring all unauthorised use and development of the land to cease. These included:
   • a letter dated 19 December 2014 requiring the use of the land for Materials recycling and Waste transfer to cease immediately as it is prohibited;
   • a letter dated 1 February 2021 requiring all unauthorised uses of the land to cease;
   • a letter dated 12 May 2022 after the expiry of the permit, requiring all unauthorised uses to cease immediately and (amongst other things) to remove unauthorised buildings and works and all items from the 'southern portion' of the land by a nominated date. It reiterated that until the extension of time application was determined for the permit, the land must be used in accordance with conditions of the permit; and
   • a letter dated 20 June 2022 (after the period for review of the refusal to extend time under the permit) advising that the permit had lapsed and all unauthorised use and development must cease immediately. It required (amongst other things) that all stored items, goods, equipment and vehicles to be removed from the land by a nominated date and all unauthorised buildings and works (including fill) be removed by a specified date.
2. I find that these letters each constituted a direction to cease sufficient to meet the second dot point of Clause 63.11, with some having been provided before and others after the expiry of the permit.
3. This conclusively prevents any existing use rights accruing for any purpose, since all uses of the land were directed to cease, including after the permit had expired in 2022 (which was less than 15 years after any use had been demonstrated to commence).
4. Mr Jenkins did not deny receiving any of these letters and did not contest their contents (for example, that they constituted a clear and unambiguous direction to cease).
5. Instead, it appears that Mr Jenkins has his own version of events that do not accord with reality. For example, he asked 'what more could I have done [to comply]?'.
6. The answer to this had already been set out multiple times in clear correspondence to him from Council requesting the uses to be brought into compliance (while the permit was operational), and to cease once the permit had expired.
7. He repeatedly asked why Council did not take any action to require the uses/development to cease until when it lodged its application for enforcement order in late 2024.
8. In reality, I accept Council's submission that the application for enforcement order was lodged as a last resort after extensive enforcement attempts by Council officers since 2009.[27]
9. Significantly, it also followed a successful prosecution of both respondents by Council in the Magistrates' Court, with a plea of guilt on 31 July 2024 in respect of a breach of the PE Act and the planning scheme. The charge sheets and summonses allege the use of the land for Warehouse, Industry, Transfer station/Materials recycling and Shipping container storage and unapproved works (concrete workspace and filing and levelling land without a planning permit).
10. This is another definitive factor that would have prevented any relevant existing use rights from accruing as claimed (at least in respect of the uses that were the subject of the prosecution).
11. For these reasons, applying Clause 63.11 of the planning scheme, I find that the owners and occupiers of the land have lost the opportunity to claim existing use rights under the 15 year 'long user' rule.

1. Section 4(1)(e) includes an objective of planning to protect public utilities and other assets and to enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community.
2. United Energy benefits from a number of easements for power supply which generally run in a north-south direction. It has electricity distribution assets located within these easements, including 22kV and 66kV sub-transmission lines and ground type substations.
3. I heard submissions from this authority (as a non-party) pursuant to section 117(f) and (g) of the PE Act, consistent with section 98 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act').
4. In addition, there are other power supply easements on title to the land for the benefit of SP AusNet, but that authority did not participate in the proceeding.
5. Mr Jenkins advised that the respondents had permission to store at least shipping containers (no higher than double stacked) from SP AusNet. He relied on a letter dated 16 February 2013.
6. United Energy submitted that it requires unobstructed access to the entirety of the land burdened by the easements to carry out its functions and responsibilities as mandated under the Electricity Industry Act 2000 (Vic).
7. The evidence indicates that the respondents have stored shipping containers, building materials, skip bins and vehicles on the land, including on areas burdened by the easements. While the permit was operational, condition 42.3 expressly prevented the storage of materials on a particular part of the land (easement E-4 on title).
8. It advised that it had never provided the respondents with consent to storing any goods within the areas burdened by the easements.[28]
9. In one instance, photographs show a large transport vehicle and other goods stored in close proximity to one of the power poles,[29] although I accept that there is no consistent evidence in this proceeding of any direct interference with this infrastructure.
10. United Energy supported Council's position that the use and development of the land has contravened and continues to contravene provisions of the Industrial 1 Zone.
11. It explained:[30]

United Energy submits that the Respondents' use of the Land for unauthorised storage purposes or alternative uses such as "transfer station", "materials recycling", refuse disposal', "industry" or "junkyard" has adverse planning consequences for United Energy and the community including:

(a) obstruction of United Energy's access to the Land pursuant to the Easements;

(b) health and safety risks to United Energy's personnel accessing the Land;

(c) risks of damage to United Energy's infrastructure including electrical lines and substations on the Land;

(d) risks of interruption to the supply of electricity to the community and the operation of the electricity network; and

(e) risks to the safety and amenity of the local community and users of the Land.

1. United Energy submitted that the evidence of Mr Boyde in particular demonstrated there are potential electrical safety issues in respect of the current uses of the land. It considered this factor would weigh strongly in favour of the Tribunal exercising its discretion to make an enforcement order.
2. The existence of the electricity infrastructure on a substantial portion of the land creates a particular sensitivity and level of risk that is not present for conventional sites.
3. Requirements arising under title to the land require these areas to be kept free and unobstructed.
4. Beyond this, as a matter of orderly planning, it is necessary to protect this infrastructure for the benefit of the public and as a matter of site safety.
5. At present, the use of the land is entirely unregulated since there are no permit conditions or endorsed plans outlining the permitted use of the land.
6. Consequently, it is entirely up to the various users of the site to manage their own operations once allowed on the site by the respondents. There was no indication that these users were provided with any parameters about the use of land within these easements, or measures that may be required to protect the assets within them.
7. The areas around the power poles and pylons are not fenced off or otherwise separated from the remainder of 'working areas' of the land.
8. It follows that there is nothing to prevent them from being impacted or damaged as part of the ongoing unauthorised use of the land, especially when heavy vehicles are moving around and goods (including metal skip bins) are being stored, as has been the operating model in recent months.
9. The potential consequences of any impact or damage to these public assets, or even an obstruction to unfettered access could be severe.
10. This is a significant reason of itself to require all unauthorised uses of the land to cease by issuing an enforcement order.

Should an enforcement order be made? What should it require?

1. The application for enforcement order as originally lodged address the reasons why Council submits that the Tribunal should exercise its discretion to issue an enforcement order. It explained, as emphasised further in submissions at the hearing:
   1. At a fundamental level, it is important that the law is complied with, and upheld. The provisions (alleged to have been contravened) form part of the law, and it is incumbent on the Applicant to enforce such provisions, when contraventions are identified (subject to the usual discretionary considerations).
   2. The relevant use and development of the land, by their nature, give rise to relevant planning considerations, ie matters that warrant consideration pursuant to the Planning and Environment Act 1987 and Greater Dandenong Planning Scheme. Potential adverse planning consequences of the contraventions include further contamination of the land, failure to remedy existing contamination of the land, amenity impacts associated with the use of the land (including noise and odour), and adverse appearance and safety of the land.
   3. In the absence of a relevant permit application, there is no ability to properly and thoroughly assess the relevant planning implications of use and development of this nature. However, the Applicant has serious concerns about the use and development undertaken, and considers it important that the contravention be remedied, in the absence of a proper permit application and assessment.
   4. Having regard to the pattern of behaviour that the Applicant has observed, including the successful prosecution of the First Respondent and Second Respondent in the Magistrates' Court, the Applicant considers it unlikely that the existing contraventions will be rectified in the absence of Enforcement Orders.
   5. Having regard to the pattern of behaviour that the Applicant has observed, the Applicant considers there to be a risk that further, similar contraventions may occur on the Land, in the absence of Enforcement Orders
2. Each of these reasons has strong merit on the facts of this case.
3. The system of planning in Victoria as reflected in the objectives of section 4(1)(a) of the PE Act seeks to provide for the fair, orderly, economic and sustainable use and development of land, amongst other things. It also seeks to balance the present and future interests of all Victorians and to ensure a pleasant, efficient and safe environment for them.
4. These objectives seek to balance private and public interests, as well as to ensure protection of the environment. The whole system of orderly planning depends on maintaining the integrity of the applicable zone controls and permits issued under it.
5. Against this background, it is concerning that the respondents now claim that it can use the land for uses approved by the now expired permit in a way that is entirely unregulated or uncontrolled by the conditions of the same permit.
6. In trying to defend against the enforcement order, the respondents have also extended their claimed rights to being able to use the land for numerous other purposes that require permission under the zone controls, when no such permission has been obtained.
7. This is the opposite of orderly planning.
8. While the land is included in the Industrial 1 Zone and there may be capacity to permit certain uses that would not be allowed in other zones, the land has numerous, direct abuttals with a large number of residential properties.[31]
9. This is recognised as a constraint by the table of uses to the zone, since almost all uses of the land would require planning permission.
10. Likewise, all buildings and works in the zone requires planning permission.
11. It is clear to me that allowing the unauthorised uses and development of the land are causing and have ongoing potential to continue to impact the reasonable amenity of these neighbours.
12. A series of complaints have been received by Council, as documented in TR19 to Ms Ridout's affidavit.
13. Mr Jenkins as the responsible officer for the respondent company appears to have provided honest answers to all of my questions at the hearing, but I find that he was fundamentally misguided about the extent of Council's concern.
14. For example, he mentioned on numerous occasions that certain activities have now ceased, such as the dismantling/treatment of demolition waste, old furniture and the like while he was overseas for medical treatment.
15. This use was only one of many which were not compliant with the permit or the planning scheme as identified by Council over many years.
16. However, Mr Jenkins offers no legitimate defence to claims that he is still allowing the land to be used for various purposes that require planning permission but do not have such permission.
17. I find that there is a fundamental disconnect between Mr Jenkins' understanding of what permissions are required to use land in the Industrial 1 Zone.
18. Mr Jenkins has effectively turned a blind eye to both the limitations on the permission he was granted, and the current planning controls as they apply to this land.

He has given various people the right to conduct certain unauthorised activities on nominated parts of the land, as identified in the hand drawn site plan he provided on request by the Tribunal.

1. This occupation was entirely consistent with what I observed on the accompanied site inspection.
2. This is problematic because the land is being used for various activities that are simply not authorised in any way, although the land has an extensive and direct residential abuttal.
3. This is in direct contrast to a relevant purpose of the Industrial 1 Zone to:

To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities. [Tribunal emphasis]

1. It is not necessary for this work to have been undertaken with the specific knowledge or supervision of Mr Jenkins. Under the PE Act, including in Part 6, he and the owner company bear the responsibility for the use of the land as owner.
2. It is also clear that Mr Jenkins provided access to various occupiers without requiring them to comply with relevant planning laws or providing an adequate system for reporting or supervision. It is also reasonable to assume on all the facts of this case that he has realistic capacity to require them to vacate the property after conducting a clean up.
3. Therefore, it is entirely appropriate to require the respondents to ensure that all uses of the land must cease, noting there are no validly claimed existing use rights.
4. Because of the structure of the PE Act, an enforcement order 'attaches' to and 'runs with' the land. On this basis, it is automatic that it would bind any future owners and occupiers as expressed in section 124 of the PE Act.

1. Ultimately, I accept Mr Jenkins' request to be provided with additional time to seek planning permission for the hard stand area one further time, although I have some reservations about the likely outcome as outlined above.
2. I consider that an appropriate balance would be to require the hard stand areas and all associated materials to be removed to natural ground level if no such permit is granted, or to require the works to be brought into compliance with any requirements of a permit that may be issued.
3. As mentioned, Council sought an order requiring certain areas of the land to be tested and a remediation/removal plan to be developed.
4. However, no evidence was provided to me that the site was contaminated per se, as this term is used in the Environment Protection Act 2017 (Vic).[32]
5. The recent soil report indicates that the areas tested were free from contamination, but I acknowledge it did not cover all areas of concern for Council.
6. Having regard to the nature of the uses and activities that have occurred on the site over time and the zoning of the land, on balance, I do not consider that it is necessary for a comprehensive survey to be undertaken of the north eastern corner or the hard stand area.
7. Instead, I consider that the main concern is in respect of solid inert waste that appears to have been buried or partially buried in these parts of the site and the crushed rock and other materials that have reshaped these parts of the land without appropriate containment or engineering.
8. While there is no evidence of excavation of the site for waste disposal, it was clear on the accompanied inspection that various areas along the eastern boundary have been notably altered by a mixture of soil/fill and other materials, including broken up building materials.
9. This is clearly unauthorised development (even under the permit while it was operational). The definition of 'development' in section 3 of the PE Act includes the construction or carrying out of works. The definition of 'works' includes any change to the natural or existing condition or topography of land.
10. I find it is appropriate to restore the land to natural ground level in the areas identified by Council in line with section 119(A) of the PE Act.
11. I observe that this will probably be necessary as a matter of orderly planning in any event, to enable any reasonable future use of these parts of the land.
12. Likewise, although I accept that there is no obvious detriment from allowing the small concrete ramped hard stand area to remain on site, it is not approved and has no potential relationship with any approved uses of the land.
13. If it were allowed to remain, I consider there is a temptation for this area to be used to service vehicles (as mentioned by Mr Jenkins on the accompanied site inspection), despite the fact there are no currently approved uses of the land that would allow vehicles to be parked or serviced there.
14. In all the circumstances, this concrete should be removed and disposed of lawfully.

1. For the reasons above, it is appropriate to issue an enforcement order against the respondents, substantially in the terms sought by Council.
2. This would require all unauthorised uses of the land to cease - in effect all uses of the land that are not within section 1 in the table to Clause 33.01 of the zone.
3. Areas of the land identified by Council as containing mixed materials must be removed from the land.
4. In addition, if permission is not obtained for the hard stand areas as constructed by an identified time, they must be removed to the satisfaction of Council.

1. If the respondents do not comply with these aspects of the enforcement order, Council may have the right under section 123 of the PE Act to carry out this work itself and to recover the cost as a debt from the respondents.

Non-compliance with conditions of planning permit No. PLN07/0531 and subsequently amended (PLN07/0531.02)

Unauthorised use and development of land contrary to Clauses 33.01-1 and 33.01-4 of the Greater Dandenong Planning Scheme.

1. From 29 August 2025, and ongoing, the Respondents must not bring onto the subject land, nor allow to be brought onto the land, any vehicles, machinery/equipment, goods or waste (including skip bins, additional shipping containers or temporary structures), unless:
   1. authorised by a new planning permit that may be issued by the responsible authority, or
   2. constituting a use that does not require planning permission under Clause 33.01-1 of the Greater Dandenong Planning Scheme.

This does not apply to any trucks or equipment that may be brought on temporarily (during daylight hours only on weekdays), for the sole purpose of removing materials from the subject land to comply with these orders.

1. From 12 September 2025, the Respondents must commence the removal of the following from the subject land:
   1. all vehicles, machinery/equipment, goods or waste, which must be relocated to another location away from the land, in accordance with the law; and
   2. shipping containers from the areas marked with a Green 'B' in Appendix A, which may be relocated to area Yellow 'B', as long as the overall number of shipping containers do not exceed 30 in total.

Note: shipping containers within the areas marked in Yellow 'B' on Appendix A and the temporary site office may stay on the land in their current locations.

1. By 17 October 2025, the Respondents must complete all the removal and relocation work referred to in Order 2, to the satisfaction of the responsible authority.
2. Following compliance with Order 3, the Respondents must ensure that the use of the land for any of the following purposes (as defined in Clause 73 of the Greater Dandenong Planning Scheme, where applicable) does not re-commence without a new planning permit being granted:

Refuse disposal/junkyard, Store (including vehicle/skip bin store), Warehouse, Industry, Depot (of any kind), Trade supplies.

1. Following compliance with Order 3, the Respondents must ensure that the use of the land for any of the following purposes does not re-commence, being prohibited uses on the land:

1. By 2 February 2026, the Respondents must ensure that all fill mixed with waste or other demolition/household materials contained in the areas marked Blue 'C' in Appendix A are removed from the land and natural ground level is restored in that location, to the satisfaction of the Responsible Authority.

This work must be carried out during daylight hours on weekdays only, in a way that minimises dust and noise emissions to residents and any runoff or sediment into any drain or other land.

The disposal of this material must be undertaken lawfully.

1. By 2 February 2026, unless a planning permit is granted for the concreted area identified as Red 'A' on Appendix A and all hard stand areas constructed from broken brick and crushed rock/gravel on the land (wherever located), the Respondents must:
   1. remove all introduced materials including bricks, gravel, rock and concrete and dispose of it in another location away from the land in accordance with the law; and
   2. reshape the land to natural ground level in these locations, to the satisfaction of the Responsible Authority

This work must be carried out during daylight hours on weekdays only, in a way that minimises dust and noise emissions to residents and any runoff or sediment into any drain or other land.

The disposal of this material must be undertaken lawfully.

1. If a planning permit is granted by 2 February 2026 for buildings and works, the buildings and works must comply with all relevant requirements of any permit by the dates specified and the remainder of the work required by Order 7 (for any works that remain unauthorised) must be completed by 2 May 2026 to the satisfaction of the Responsible Authority.
2. The dates for compliance in this order may be amended by further order of the Tribunal at its discretion.

[1] 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. I have focused on making these reasons easily understandable to a self-represented respondent.

[2] Included within a series of aerial photographs in exhibit DKB-38 to Mr Boyde's affidavit.

[4] The applicant did not lodge an application for review with the Tribunal in respect of this decision. Mr Jenkins appears to have anticipated that Council would do this on his behalf, but this would not have been possible. In any event, the permit holder takes ultimate responsibility for any proceedings that may be necessary to extend the life of the permit and the relevant provision of the PE Act was clearly stated in the notice of refusal as required.

[5] Noting that the endorsed plans (as amended) showed 8 containers (for hire) and 22 containers (for storage).

[6] On the accompanied site inspection, I noticed a sign on the front of the site advising that the property could be purchased or leased and to contact the owner directly. I did not specifically confirm whether this mobile number was Mr Jenkins'.

[7] This is because of the structure of Clause 33.01-1 which provides a condition for uses not requiring a planning permit that the land must be a certain distance from residential zones, generally 30 metres or 100 metres (depending on the specified use). If this condition cannot be met, a planning permit would be required.

[8] None of the stated exemptions apply to the circumstances of this case.

[9] It also allowed a variation to loading and unloading provisions in Clause 52.07 and a waiver of bicycle facilities.

[10] I summarise these by way of background but defer to the full text in reaching my findings below.

[12] This was a distinct permission given under the permit, relative to Clause 33.01-4 of the planning scheme.

[13] By reference to definitions in Clause 73 of the planning scheme where one is available, and by common and ordinary meaning when one is not.

[14] In line with principles established in case law that were not contested in this hearing, such as Cascone v Whittlesea CC (1993) 11 AATR 175.

[15] Noting that an application to amend the permit to include this use was refused by Council with no appeal.

[16] This is consistent with the aerial photography provided by Mr Boyde in evidence, including in DKB-04.

[17] It appears that he has tried to use permission granted for the construction of a crossover as some form of approval for him to start the use of the land under the planning scheme. They are separate permissions provided by separate arms of Council. Mr Jenkins would have been well aware of the requirements of the permit in respect of the approved use.

[18] This was only approved later in the life of the permit, once amended as explained above.

[20] As at the date of the hearing and accompanied inspection.

[21] When I refer to 'the land', I refer to parts of the land within what has been used as the operational part of the site, as distinct from the accessway.

[22] [2008] VCAT 1804.

[24] Exhibits TR3 and TR4 to her affidavit dated 30 April 2025.

[26] At least in respect of 22 of them.

[27] With the first written request for compliance dated 27 November 2009 addressed to Mr Jenkins.

[28] As distinct from letters relating to electricity connection services.

[29] Observed by Mr Boyde on 19 March 2025.

[31] These residential properties are included in the General Residential Zone (Schedule 1).

[32] Referencing section 35 in particular. Likewise, there has been no enforcement action taken by the Environment Protection Authority to date (as far as parties made me aware), despite their investigation of this land at a point in time.