Victorian Civil and Administrative Tribunal|2000-10-31

Greater Geelong CC v Filep I & V [2000] VCAT 2161 (31 October 2000)

Planning List; enforcement; storage of vehicles ranging in number between nine and approximately thirty-five over the years, including trucks and a tanker; hobby; whether ancillary to the use of land as a dwelling; whether use falls within the VPP format planning scheme definitions of `store', or `materials recycling'; whether sale an integral part of the definition of `materials recycling'; whether sufficient proof of sale of parts of motor vehicles; whether any contravention made out.

Planning List; enforcement; storage of materials such as tin for a shed, bricks for paving and timber for firewood; whether ancillary to the use of land as a dwelling.

APPLICANT FOR ENFORCEMENT ORDER/RESPONSIBLE AUTHORITY

Greater Geelong Planning Scheme - Rural Living Zone.

The storing of approximately thirty-five vehicles constitutes use of the land for the purpose of `store', which is a prohibited use in the Rural Living Zone of the Greater Geelong Planning Scheme pursuant to clause 35.03-1 without a planning permit and no planning permission exists.

1. The respondents, Istvan or Veronika Filep, being the owners and occupiers of the subject land, must within sixty days of the date of service of this Order on any one of them:

(i) cease to use the subject land for the storage of vehicles including trucks, vans and storage tankers whether registered or unregistered;

(ii) remove from the subject land all vehicles with the exception of vehicles referred to in Order 2.

2. Nothing in Order 1 shall require the respondents to remove from the subject land four of their own vehicles registered in their own name and used for their private use.

That the responsible authority serve a copy of this enforcement order personally or by post on Istvan and Veronika Filep in accordance with the Victorian Civil and Administrative Tribunal Act 1998, section 140.

For the applicant for enforcement order/ Ms Joanne Preece, Planning Enforcement

For the respondents: Mr Zoltan Filep, son of the respondents appeared. As Mr Filep is a lay person, the Tribunal gave him leave pursuant to the Victorian Civil and Administrative Tribunal Act 1998, section 62, to represent the respondents.

1. This was an application under section 114 of the Planning and Environment Act 1987 for an enforcement order to remove from the subject land vehicles and materials stored thereon in contravention of the Greater Geelong Planning Scheme, clause 35.03-1.

2. No statement of grounds had been received either by the Tribunal or the responsible authority from the respondents, so the matter was not expected to be contested. However, the respondents' son, Mr Zoltan Filep (`Zoltan') appeared to explain his father's ill-health and family circumstances which prevented Mr Filep's appearance and compliance with the planning controls.

3. The storing of approximately thirty-five vehicles and materials such as bricks and tin constitutes use of the land for the purpose of `store', which is a prohibited use in the Rural Living Zone of the Greater Geelong Planning Scheme pursuant to clause 35.03-1 without a planning permit and no planning permission exists.

4. The storing of approximately thirty-five vehicles and materials such as bricks and tin constitutes use of the land for the purpose of `materials recycling' which is a prohibited use in the Rural Living Zone of the Greater Geelong Planning Scheme pursuant to clause 35.03-1.

5. The responsible authority had been trying since 1991 to have the respondents remove their collection of vehicles, both registered and unregistered, from the subject land, or, in the alternative, have them housed them in a shed. At the time the council first started corresponding about the contraventions, in 1991, there were about nine vehicles being stored on the land.

6. The respondents kept explaining in 1992, an example of which follows, that they had no room on their business site in Geelong to store all the vehicles, so they kept them on the subject land. They were proposing to erect a storage shed.

I am writing to you regarding your recent letter:

Re: `Accumulation and collecting of motor vehicles on 365 Goldsworthy rd, Lovely Banks'.

We followed your request to clean up the site and it has been completed. However, finances have prevented us from erecting a storage shed.

Consequently, the house bricks have not been erected due to this.

Unfortunately, our car sales business, located at 284 Thompsons Rd does not have the capacity to store these motor vehicles and thus they must be kept on our property.

Please consider my application to permit the vehicles and bricks to remain on my property until further finance is available to fulfill your request.

7. However, Mr Filep Senior has not operated the car sales business in Geelong for some years now, and it is run from different premises by his son. Mr Filep Junior says there is no business connection between himself and the parents, as the father is a pensioner.

8. As Ms Preece for the responsible authority went through the history of the matter, it was apparent that council had no success, notwithstanding repeated inspections and requests. By 1999, the number of vehicles being stored increased to about sixteen.

9. Notwithstanding repeated requests by the responsible authority, to clear the cars from the subject land, the respondents have ignored all such requests. Therefore on 10 December 1998 and 14 January 1999 the responsible authority advised that it had no option but to pursue an enforcement application.

10. At the time the application was issued, the old format Greater Geelong Planning Scheme was in operation, under which `junkyard', `store' and `industry' were prohibited uses in the Rural Residential zone, the precursor to the VPP Rural Living zone. Section 3 uses encompassed "any use not in section 1 or 2" and none of the above were mentioned in either of sections 1 or 2.

11. On 27 July 2000, the VPP format Greater Geelong Planning Scheme was gazetted.

12. As the land is zoned Rural Living, it can be used for the purposes of a dwelling and home occupation under section 1, where a permit is not necessary. `Materials recycling' is nested under the definition of `industry'. `Industry' and `Materials recycling' are each a prohibited section 3 use and `store' is a now permit required section 2 use, subject to mandatory conditions. Innominate uses are also now able to seek a permit under section 2.

13. This VPP format planning scheme no longer contains the definition of `junkyard'. There were advantages associated with that definition which will become apparent later.

14. The respondents do not appear to carry on any trade with respect to the vehicles. The only activity that Ms Preece could prove was storage of vehicles and materials. Ms Preece referred to a conversation she had had with a Mrs Julia Filep, the Fileps' daughter-in-law, in which Julia allegedly stated that vehicles were stored there for parts for use in Mr Zoltan Filep's car sales business called `Thompson Road Autos' in Thompson Road, Geelong. Zoltan refuted this assertion, and there is no satisfactory evidence as to any commercial connection between the two entities.

15. Ms Preece could also not provide any evidence of dismantling, repairing or working on the vehicles. There are now (approximately) thirty-five cars stored on the land, in quite a neat arrangement. Ms Preece tendered photographs that either she, or council staff known to her, took on each of 11 May, 15 June, 30 June and 12 September 2000 (all of which remain on the Tribunal file). These photographs indicate a considerable number of vehicles being stored on the subject land. Ms Preece was able to identify the subject land from her own knowledge. Ms Preece estimated that there were about fifty vehicles on the subject land, including at least two trucks and a storage tanker. Mr Zoltan Filep confirmed there were about thirty-five vehicles on the land.

16. The responsible authority alleges that the storage of materials such as bricks, tin and timber is a contravention of the planning scheme. Zoltan explained that his father had been storing the bricks for paving, the tin for a proposed shed, and the timber (chopped wood) for heating purposes. Due to his father's ill health, neither the paving nor the shed had been commenced.

17. The photos indicate a neat stack of bricks, near the vehicles. I could not see the tin in the photographs, as the latter were taken some distance away. I find that the storage of the timber is ancillary to the enjoyment of a dwelling and the storage of the small quantity of bricks and tin are also ancillary to the use of the land for the purposes of a dwelling. It is not unreasonable to store a small quantity of building materials for paving or a shed. I decline to make an Order with respect to these items.

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

19. In a previous case I considered in Cardinia Shire Council v Rees (unreported Application for Review No 1999/012340) I was concerned that the inclusion of the word "only" in the definition of `store' meant that the storing of goods or vehicles must be the only use conducted on the land and this land is being used as a dwelling as well.

20. However, Ms Preece opined that the word "only" referred not to the opening words "land used" but to the verb `store' so that the purpose of the land use could only encompass the storage of the specified objects (goods, machinery or vehicles) and not any other activity associated with them, eg repair or servicing.

21. She continued to justify this position, explaining that otherwise there would be an absurdity in the mandatory condition attaching to the land use `store' in section 2 which mandates:

Must be in a building not a dwelling and used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

22. In other words, if the only "land use" could be that of `store', then it would be impossible to fulfil the mandatory condition in section 2 of the scheme.

24. There needs to be no commercial element in the storage, and I am prepared to find that the subject land is being used for storage, without planning permission, contrary to the provisions of clause 35.03-1. I find that storage of vehicles in the order of thirty-five in number, goes beyond anything that could be ancillary to the enjoyment of the land as a dwelling.

25. The definition of junk yard which was included in the old format planning schemes, has not been translated into the new format planning schemes with the precise words previously used. The definition of junk yard in the pre VPP format Greater Geelong Planning Scheme reads:

Land used to collect, store, recycle or sell scrap metal, second-hand timber, second-hand building materials, second-hand containers, waste paper, rags, bottles or similar material or to collect, dismantle, store, and salvage motor vehicles or machinery or parts of them. (Tribunal emphasis added).

26. The replacement definition in the VPP format planning schemes uses the word "materials recycling".

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

28. The problem with the `Materials recycling' definition in the planning scheme is that it involves sale and there is not proof that the respondents sell or trade in the cars or their parts. Another problem is that `materials' may not be so wide as to encompass vehicles (which was separately included in the old `junkyard' definition).

29. In Cardinia Shire Council v Rees (above), I also considered whether use of the land in that case fell within the VPP definition of `Industry', which reads:

Land used for any of the following operations: ...

b) dismantling or breaking up of any article; ...

e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; ...

30. However, this does not help the council here, as nothing more than storage has been alleged in respect of the vehicles.

31. I am only prepared to find a contravention of the planning scheme in that storage occurs without planning permission.

32. Mr Filep requested a sixty-day reprieve for his ill father to remove the vehicles, which I am prepared to allow. I make an Order in the above terms.

Greater Geelong CC v Filep I & V [2000] VCAT 2161

At a glance

Court

Decision date

Source

Judgment (55 paragraphs)

Greater Geelong CC v Filep I & V [2000] VCAT 2161 (31 October 2000)