Date of Hearing 5 and 6 December 2000 and 5 and 6 February 2001

Medium Neutral Citation [2001] VCAT 1520

Subject Land 18-22 Blissington Street, Springvale

Ms Jeanette di Salvatore, an Objector/Applicant for Review appeared on behalf of all Objectors/Applicants for Review. She called the following witnesses:

Mr Ross Knight, Environment Protection Officer of the Environment Protection Authority;

Mr Andrew Ostrowski, Planning Investigations Officer;

Mr Tien Dung Pham, one of the Applicants for Review who is a nearby resident. He gave evidence with the assistance of an interpreter (Mr Dominic Nguyen of Tis Interpreters);

Messrs Demetriou Guerrieri and Csaba Gyurcsik; and Ms Jolanta Marszalkowski, all being other nearby residents and Applicants for Review.

Mr John Rantino, Solicitor of the firm Maddock Lonie and Chisholm, appeared for the Responsible Authority.

Mr Dominic Scally, Solicitor of the firm Best Hooper, appeared for the Permit Applicant. He called the following persons to give evidence:

Mr Albert Blashki, the owner/occupier of the subject land;

Mr Gregory Tucker, Traffic Engineer of GTA and Associates; and

Mr Stelios Constantopoulou, Builder/Developer and the Applicant for Permit.

1. This application for review is one brought by objectors in response to the decision by the City of Greater Dandenong to allow the use of the subject land for the purpose of a warehouse. The site has been used since the mid 1950's for the manufacture of wire and metal products, including shelving and other small wire or metal items such as telephone tables, display stands etc. Under the Residential 1 Zone of the Greater Dandenong Planning Scheme which applies to the land, both the existing and proposed uses are prohibited. Discretion to allow the proposal thus needs to be found in the existing use provisions of the Planning and Environment Act 1987 and the Planning Scheme. The availability of discretion as well as the planning merits of the proposal were both issues in contention in this review.

2. At the outset of the proceeding, consent was sought from the parties, in accordance with Clause 66(1)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, for my determination of any questions of law arising in the proceeding. This was required as I am not a legal practitioner. That consent was forthcoming.

3. The subject site is located on the western side of Blissington Street, Springvale, in the section of that street between Fairview and Hope Streets. Blissington Street itself is a residential road with a 7.6m width.

4. The land in the general locality south of Fairview Street, is used as well as zoned for residential purposes (with the exception of the subject site itself). To the north of Fairview Street land is included in an Industrial 1 Zone, with uses generally reflecting the zoning.

5. The subject land has a frontage to Blissington Street of in excess of 54m and a depth of 41.2m It is developed with an industrial building with a brick façade and a saw toothed roof. The building was constructed in stages from the 1950's and behind the brick façade is in only fair condition. The building has a total area of 1730sq m and has limited boundary setbacks. The 6m front setback of the building, together with the former nature strip and footpath in the road reserve, have been converted to a concrete apron for parking associated with the factory. Nine car parking spaces and a small electricity sub-station are located in this front area. A small area of landscaping also occurs at the south-eastern corner of the site adjacent to the office portion of the building.

6. Mr Rantino's submission on behalf of the Responsible Authority at the hearing of the application for review provides a convenient summary of the relevant planning history of the site - which commenced with the relocation of a wooden or galvanised iron industrial building from Williamstown to the land in the early 1950s:

"The Blashki family has owned the subject land since 1954. At that time the subject land and surrounding land was designated as a "business area" under the second schedule to the Shire of Dandenong Bylaw No. 103. Clause 8(d) contained a list of prohibited uses which allowed for the establishment of light industrial uses in the business area.

In 1954 there was little development in the vicinity of the site, particularly residential development.

The subject land and environs was zoned Residential C under the Melbourne Metropolitan Board of Works Interim Development order gazetted on 1 March 1955. By this time Ace Wire had established its use on the subject land.

The Melbourne and Metropolitan Board of Works issued planning permit No. 5913 on 11 April 1957.

Planning Permit No. 5913 authorised extensions to the building already in existence on the subject land. The building referred to in Planning Permit No. 5913 is in fact the building which is presently on the subject land.

The conditions imposed on Planning Permit No. 5913 were:

1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan shall not be altered or modified without the consent of the Board.

2. The area set aside for the parking of vehicles and coloured red on the endorsed plan (being an area available for the parking of not less than 12 vehicles, exclusive of aisles and drives) shall be made available for such use and shall not be used for any other purpose.

3. The loading and unloading of vehicles shall at all times be effected within the curtilage.

4. In the event of default being made in the observance or performance of any of the above conditions, the responsible authority may by notice forthwith cancel this permit.

The Melbourne Metropolitan Board of Works Interim Development Order was the planning control affecting the land until the Melbourne Metropolitan Planning Scheme was gazetted and came into operation on 22 May 1968.

Under the planning scheme gazetted in 1968 and as subsequently amended the land was zoned Residential C. Under this zone the use of land for the purposes of light or general industry was a prohibited (section 3) use.

However, the use of the land for industry continued pursuant to the existing use provisions of the Scheme and then later under the post 1988 schemes and section 6(3) of the Planning and Environment Act 1987."

7. With the introduction of the new format planning scheme for the municipality on 26 March 1999, the subject land came to be zoned Residential 1.

8. The use which was made of the factory from the 1950's was, as earlier stated, for the manufacture of a variety of small wire and metal products, including display stands and shelving. Some of the items produced included masonite and/or plastic components. From time to time, items were powder-coated or painted. The business was initially run by Mr Blashki as a sole trader but from 1977 he traded as "Ace Wire". By the 1990's, the success of the business was such that the operations effectively outgrew the site. From the mid 1990's onwards, disamenity effects of the on-site activities became acute for the residents of the locality, especially as caused by noise emissions and truck movements and parking. At the end of 1997, Ace Wire's major operations were moved to larger premises in Hallam, and a "For Sale" notice was put up on the Blissington Street site. (Mr Constantopoulou has now contracted to buy the site.) However, I was told at the hearing that certain items of machinery were left on the site, some goods were stored there from time to time, spray-painting of peg board for shelf backing took place for a time, and some light assembly work occurred over a period of some months. Some of these activities were conducted for Ace Wire and others for another wire products company of which Mr Blashki's son is the principal and Mr Blashki is a part-owner. That company is known as "Wiredex". The question of whether these post-1997 activities have maintained the factory's existing use rights is a key issue in this Tribunal proceeding.

9. The present application for permit was lodged with the Responsible Authority on the 18th of October 1999. The applicant is a builder who is a prospective purchaser of the land and who intends to use at least part of the site for storing equipment and materials associated with his business. The application before the Responsible Authority was described in the following terms on the application form:

"Retain use of part of building for light industry and change use of part of the building to a warehouse."

10. The existing use of the land was described on the application form as "light industry/warehouse and associated offices".

11. The plans accompanying the application (Drawing TP01 dated September 1999 by Millar Watson Architects for Job 99728), indicates the internal partitioning of the building by the construction of a wall approximately 31m to the north of the southern boundary of the land. In the proposal that was before the Responsible Authority, it was said that the smaller partitioned section of 750sq m was proposed to continue to be used for light industry: Mr Rantino described that light industrial use as the on-site manufacture of small building components, storage of building materials, tools and equipment and the distribution of materials to building sites and associated office facilities. That description relied on material supplied by the applicants then planning consultant. The other partitioned area of 980sq m was proposed in the application for use as a warehouse. No details of any proposed occupancy for this part of the building were provided. It was also proposed that each section of the building would be serviced by a loading bay. Six of the car parking spaces at the front of the building were proposed to be allocated for use by the warehouse, with the remaining three for the continuing light industrial use.

12. Prior to the hearing of the application for review by the Tribunal, Mr Scally for the permit applicant wrote to the Tribunal (on the 1st of December 2000) advising that the applicant for permit sought to "clarify" (or rather amend) the proposal so that the use of the whole site would be for warehouse. That amendment to the application was allowed on the first day of the hearing under Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

13. A further amendment was proposed at the outset of the hearing which was for the demolition of the existing SEC sub-station at the front of the building and the provision of additional car parking in that location. Mr Tucker's evidence given on behalf of the permit applicant indicated that, because of the need to better facilitate truck turning, only one additional parking space should be provided in the SEC sub-station location rather than the two spaces which could be physically accommodated within the space. He also suggested setting aside some space inside the warehouse, just to the north of the loading area against the eastern wall, for six additional car parking spaces arranged in tandem.

14. As noted at the outset of these reasons, the past use of the land for "industry" and the proposed use as a "warehouse" are Section 3 or prohibited uses under the Residential 1 Zone of the Greater Dandenong Planning Scheme (see Table to Clause 32.01-1). While a "store" being "land used to store goods, machinery or vehicles", might be a definition applicable to the proposed storage of building supplies and equipment, and is a discretionary use within the zone, it is conditional upon the store being used in conjunction with the occupation of a resident of a dwelling on the lot. This condition is not met and thus even this use is prohibited on the land (Clause 32.01-2).

15. As also noted at the commencement of these reasons, therefore, the application for permit relies upon the discretion available under the existing use provisions at Clause 63 of the Planning Scheme.

16. That clause, consistent with the provisions of Section 6(3) of the Act allows existing uses of land which were lawfully established before the approval date of the Planning Scheme (and unlawfully established in some circumstances) to continue, subject to certain requirements.

17. So far as established uses which are now Section 3 in a zone are concerned, Clause 63.05 provides:

"A use in Section ... 3 of a zone for which an existing use right is established 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."

18. The application in its amended form, however, does not now propose the continuation of the existing use but rather a change to another non-conforming or Section 3 use. Clause 63.08 is therefore the clause which offers the vehicle for consideration of the application. It provides as follows:

If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use which does not comply with this Scheme. The Responsible Authority must be satisfied that the use of the land for the alternative use will be less detrimental to the amenity of the locality."

19. The clause therefore firstly requires the establishment of an existing use right for the land. So far as that issue is concerned, the following further parts of Clause 63 are relevant:

An existing use right is established in relation to use of land under this Scheme if any of the following apply:

* The use was lawfully carried out immediately before the approval date.

* A permit for the use has been granted immediately before the approval date and the use commences before the permit expires.

* A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

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

20. That clause in turn refers to Clause 63.11 which outlines the requirements for establishing proof of continuous use. It provides:

"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 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

* 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."

21. Also relevant is Clause 63.06 which qualifies the concept of "continuous use" and describes the circumstances in which an existing use right will expire as follows:

"* The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.

* In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession."

22. Further, in considering the matter of the continuity of the existing use, the characterisation of the use has been an issue in this proceeding. Clauses 63.02 and 63.03 are relevant. They provide:

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

63.03 Effect of Definitions on Existing Use Rights

The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment."

23. Guidance to the exercise of the discretion to be exercised under Clause 63.08 is provided by the decision guidelines of Clause 63.12. That clause provides so far as is relevant:

"Before deciding on an application under Clause ... 63.08 ..., in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the Responsible Authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met."

24. Also relevant to the application are the provisions of Clause 65 of the Scheme which set out guidelines for all types of permit applications. That clause directs attention amongst other things, to relevant State and local planning policies of the Scheme, the orderly planning of the area and the effect of the proposal on the amenity of the neighbourhood.

25. Another matter included in the decision guidelines of Clause 65 is the purpose of the zone. Mr Scally argued that zone purposes, which in this case include "To encourage residential development...", are not relevant in the context of an application to change from one non-conforming use to another. This is presumably on the basis that inconsistency with the purpose of the zone will always recommend against approval of non-conforming uses, which would be in conflict with the availability of the discretion which the Scheme otherwise affords. The primary purpose of the zone is relevant, in my view, however, in so far as it assists in assessing the amenity effects of the proposed alternative use to which Clause 63.08 directs attention. That approach is consistent with the decision in Fraser v Shire of Lilydale 13 APAD 200, a decision by the Victorian Planning Appeals Board to which I was referred.

26. Similarly, the State and local planning policies do not have a large part to play in the present application for permit. Mr Rantino made some desultory reference to them as part of his submissions. In particular he referred to the vision for Greater Dandenong at Clause 21.03, in which reference is found to enhancement of the natural and built environment of the city, and to Clause 21.04-1 which refers to the residential objectives for the municipality. The latter clause includes as an objective:

"To provide residential environments with a neighbourhood focus that enhance residential amenity, accessibility, safety, enjoyment and quality of life of the community."

27. In my view, these objectives do not take the consideration of the issue of residential amenity, which is a central issue in this application for review, a great deal further than had they been absent from the scheme.

28. Clauses 52.06 and 52.07 relating to car parking, and the loading and unloading of vehicles respectively, also are relevant to the application. The issue arose in the hearing as to whether the waiver, available under both those clauses for parking and loading arrangements not meeting the Scheme requirements, was required to be part of the application for permit or was indeed available to a proposal for a new non-conforming use.

29. The requirements relating to car spaces at Clause 52.06-1 relate to new uses, and the extension of floor area for existing uses. Mr Scally argued that the clause does not apply in so far as the proposed non-conforming use would enjoy existing use rights under the Scheme transferred on from the former use - as is provided by Clause 63.1 at the third dot point. That scheme provision is that an existing use right is established if "a permit for the use has been granted under Clause 63.08 and the use commences before the permit expires".

30. The loading and unloading provisions at Clause 52.07 are triggered by the construction of buildings and works for the manufacture, servicing, storage or sale of goods and materials.

31. I am inclined to the view that Mr Scally is correct in asserting that these particular provisions of the Scheme do not strictly apply to the present application (at least in relation to the use component), except in so far as they might be viewed as "other requirements of the Scheme which might reasonably be met", as referred to in Clause 63.12. It has not been finally necessary to determine this issue, however, in light of the overall determination in relation to this proceeding.

32. Upon receipt of the application for permit, the Responsible Authority required it to be advertised and in response 25 objections were received. The grounds of objection were summarised n the Council's submission to the review hearing as follows:

"(a) Concern that the proposal will increase traffic and in particular truck activity in the nearby streets

(d) The inappropriateness of a factory in a residential area

(e) Danger to children and the elderly from traffic hazards

33. On the 13th of June 2000, the Responsible Authority determined to issue a Notice of Decision to Grant a Permit, in accordance with the recommendation made by the Planning Officer in his report to the Council.

34. An application for review was then lodged by Mr Gyurcsik. The grounds for that review related to the zoning of the land, parking and traffic issues, development not meeting the local area streetscapes, danger to the residential area, devaluation of properties, and noise. Some months later the Tribunal allowed an extension of time for the lodging of a further review by Mr Guerrrieri. Mr Guerrieri's application for review which was supported by 25 others was based on grounds summarised by Mr Rantino as follows:

"(i) Council is not entitled to grant a permit under Clause 63 of the Scheme as any existing use rights have expired because the property has been vacant for a continuous period in excess of 2 years.

(ii) The changes proposed are likely to impact adversely on the amenity of the area.

(iii) The proposed access to the premises is inadequate for large trucks.

(iv) No plans have been provided detailing the development proposal.

(v) Ace Wire gave undertakings that they were closing down their operations and relocating to Hallam. The relocation took place in 1997 and the premises have been vacant since that date until approximately April 2000.

(vi) The Responsible Authority has not provided objectors with adequate details of the proposed alternative use of warehouse. However the hours of operation have been extended. Therefore the use of the land as a warehouse will have a more detrimental effect on the amenity of the locality, including but not limited to, increased traffic, noise, congestion, etc.

(vii) There is a safety issue in that the factory is located close to a children's park in Hope Street. Trucks delivering to the premises will risk the safety of the elderly and children who would be at risk crossing the street.

(viii) The Responsible Authority has not considered the extent to which compliance can be achieved with the proposed permit conditions and other scheme requirements.

(ix) The proposal is inconsistent with orderly and proper planning in the area.

(x) The hours of operation proposed by Condition 4 are excessive given that this is a residential area.

(xi) The Appellants allege that in April 2000 Ace Wire placed a single spray painter to work at the premises in order to make it appear that they were continuing scaled down operations and to protect purported existing use rights."

35. The opening submissions by Mr Rantino on the substantive issues, usefully identified four matters for determination in this proceeding:

* Does the subject site enjoy existing use rights?

* What is the proper characterisation of the existing use right? Mr Rantino said that this is a necessary precursor to the determination of the rules for granting a new permit - it allows the question of whether the proposed use is less detrimental to the area to be answered.

* Will the proposed use be less detrimental to the amenity of the locality than the existing use? If it will not be so, no permit is allowed to be granted.

* If the permit can be granted, should it be granted having regard to the decision guidelines in Clause 65 and any other requirements of the Act, together with the consideration identified in Clause 63.12 of compliance with Scheme requirements that can be reasonably met?

36. The first two issues identified by Mr Rantino were intertwined in the submissions made to the Tribunal.

Does the Land have Existing Use Rights and for What Purpose?

37. Ms di Salvatore on behalf of the objectors submitted that the manufacturing use initially conducted on the land is properly characterised as a "light wire works industry" subject to the conditions and restrictions imposed by Permit 5913.That permit was issued in 1957 and as noted earlier provides that 12 car parking spaces are required to be provided and that loading and unloading must be effected within the curtilage of the land.

38. Ms di Salvatore argued, however, that the existing use rights as a light wire works industry were lost in 1994 when the use came to meet the definition of a general industry under the then Planning Scheme. This is because changes in the activities on the site led the use to no longer comply with the definition of light industry under the Scheme in place at the time. A light industry by definition was required to not adversely affect the amenity of the locality by reason of the appearance of any buildings, works or materials, the transporting of goods to or from the premises and emissions from the site. The objectors' submission was that the use did not operate within that definition between 1993 and 1997. Evidence was called in relation to disamenities caused at that time, including traffic movements and emissions. It was further submitted by the objectors that a subsequent change in 1999 to a "spray painting plant" was a change to a "hazardous industry", as the emissions from the site caused illness to nearby residents, including Mr Pham and his family. Ms di Salvatore submitted that the use of the factory between 1994 and 2000 was not the lawfully established use which the Act is designed to protect.

39. In relation to Clause 63.11 which allows an existing use right to be established if it has been carried out continuously for 15 years prior to the date of application or proceeding , Ms di Salvatore submitted that the use was not lawfully carried out immediately prior to the approval date nor carried out continuously for 15 years prior to this date. In this respect, Ms di Salvatore argued that the main use of the subject site between 1997 and July 2000 was ancillary to the dominant purpose of the Wiredex company, which undertook most of its operations elsewhere, and which was in any event a general engineering company and not simply a light wire works manufacturing business. She submitted that the activities which took place in what was "an empty factory shell" after December 1997 by a different company amounted to "minding the store" and it was not a continuation of the earlier use by the other company.

40. Ms di Salvatore also made reference to the qualification to the 15 year rule which occurs in Clause 63.11. The 15 year period must be free of a written direction from the Responsible Authority to cease the use by reason of its non-compliance with the Scheme. She referred to the notice which had been served on Mr Blashki of Ace Wire Works Victoria Pty Ltd, as owner of the site, on the 5th of May 2000 by the City of Greater Dandenong which is headed "Planning Contravention Notice". The notice records that an inspection of the land on the 3rd of May 2000 revealed the use of the land to be in contravention of the Planning Scheme and Mr Blashki is guilty of an offence pursuant to Clause 126 of the Planning and Environment Act. The notice goes on to say:

"The following matters require urgent attention to make the land comply with the Greater Dandenong Planning Scheme:

The spray painting operation currently being conducted must cease, and must not recommence until such time as a fumes extraction system approved by the Environment Protection Authority is in place and used as part of the operation."

The notice further says that unless the matters are attended to immediately the Council may issue a planning infringement notice which may include directions to require works to be carried out to make the land comply with the provisions of the Scheme, or alternatively action in a law court or before the Tribunal for an enforcement order would be contemplated.

41. Mr Rantino for the Responsible Authority argued that the existing use is not properly characterised as a wire works factory, but rather as an industry. He said that the use of the term "industry" to describe the use should not be seen to be adopting a Scheme definition, but rather as an ordinary use of the word applicable to a factory which produces a variety of wire and metal products. It was also his submission that the use had not been interrupted and had been conducted continuously without a break. In this he submitted that the spray painting which was carried out on the site post-1997 was part of the industry, as was the storage of pallets. Mr Rantino's argument that the use is an industry overcomes any break in the conduct of the use brought about by the disamenities identified by Ms di Salvatore which would change the use from light industry to general industry.

42. Mr Rantino also noted that the establishment of existing use rights no longer requires the lawful establishment or operation of the use. The "15 year rule" of Clause 63.01 makes no reference to lawfulness. This overcomes any concern about the effects upon continuity of a use operating outside its conditions, Mr Rantino said. He further noted that the provisions of Clauses 63.01 and 63.11 do not require the 15 year period to be "immediately prior" to the date of application or proceeding but rather "prior". He nevertheless conceded that the expiry condition of Clause 63.06 also applied, and a use must not stop for a continuous period for two years or two or more periods which together total two years in any period of three years, in the period leading up to the time of the application or proceeding.

43. The submission on behalf of the permit applicant by Mr Scally was that the land has been used for industrial purposes from 1955 to date. He described how Mr Blashki first operated the "wire works" on the site as a sole trader, and how in 1977 "Ace Wire" was incorporated and had its principal place of business on the site until around December 1997 when they relocated to Hallam (although "Ace Wire" did not relocate its principal place of business to the Hallam address until 23 November 1998). He said that Ace Wire continues to conduct activities forming part of its industrial operations on the land. The land has also been used for industrial operations by the company "Wiredex". It was Mr Scally's submission that the evidence of Mr Blashki indicated that the land has been used for the following purpose since 1955:

"The manufacture, assembling, storage and wholesaling of an assortment of products made primarily of wire, flat metal, and tube metal component parts, but using other materials from time to time (eg. timber and masonite). Many of the products made are applied with surface finishes (eg: paint and powder coated finishes)."

44. Mr Scally argued that the objectors' characterisation of the purpose for which the land was being used as "light industry" was inappropriate as it was an adoption of a use definition contained in the Planning Scheme at the time. Further, in so far as the objectors alleged that Permit 5913 was not complied with, and enforcement order proceedings were brought before the Tribunal in 1996 by Mr Guerrieri (seeking to require the parking of trucks by the occupier within the curtilage of the land in accordance with the permit), that proceeding was struck out in 1999 for want of prosecution. Mr Scally further argued that there was no change in the early 1990s to another use as a result of the increased activities on the site and the same purpose was served. In this he referred to the decision by the Supreme Court in City of Nunawading and Harrington [1985] VicRp 64; 1985 55 LGRA 139. Similarly reduced activity on the site since December 1997 also does not mean that the use of the site has changed, Mr Scally submitted. In this he referred also to Norman v Gosford Shire Council [1975] HCA 15; (1974-75) 132 CLR 83.

45. Mr Scally went on to say that it is not relevant whether Ace Wire has moved its principal place of business elsewhere because it did not matter who was undertaking the activities furthering the purpose of the use. In any case he said the evidence of Mr Blashki was that both Ace Wire and Wiredex had continued activities on the land in furtherance of the use. He said also that spray painting was alone sufficient to continue the use as painting had always been part of the finishing of some of the products manufactured on the land. Thus the activities since 1997 were a continuation of the wire works use, Mr Scally said.

46. So far as this matter of the establishment of the existing use rights is concerned, it is my view that the correct characterisation of the use of the land is for the purpose of production of wire and metal based items. To my mind the characterisation of the use with this level of particularity is consistent with the decision by the High Court of Australia in Shire of Perth v O'Keefe and Another [1964] HCA 37; 10 LGRA 147 which characterised the use of land in the proceeding before it as being for the purpose of pottery making, rather than as light industry as had been the approach taken by the lower Court whose decision was under review. The Court referred to the importance of referring to "the end which is seen to be served by a particular use of premises, rather than in a subjective sense to indicate the object in the minds of particular individuals". The Court was of the opinion that while there might be changes in methods and designs involved in the pottery making, the use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose. Similarly, I am of the view that the use of the subject land for making anything other than wire based products, albeit involving some metal and wood component, would be use for a different purpose.

47. I am of the view also that the other characterisations of the use as industry or light industry inappropriately adopt use classifications included in the current Scheme (as is recommended against by Clause 63.02) or in previous schemes. Further, to adopt the classification of the use as industry as recommended by Mr Rantino, even if it is a common use of the term rather than adoption of a definition from the Scheme, would have the effect of increasing the extent of the existing use rights which again is impliedly inappropriate having regard to the provisions of Clause 63.03.

48. In finding that the purpose of the use of the land is for the manufacture of wire based products sets aside the issue raised by Ms di Salvatore about the change of use brought about by the disamenities of the early 1990s.

49. Also, there simply was no challenge to the claim for continuous use of the land for at least a 15 year period (leaving aside the issue of its lawfulness) to the end of 1997.

50. The question which then arises is whether the 15 year period needs to occur immediately prior to the date of application for permit or the proceeding. On this issue, I agree with Mr Rantino, that there is no requirement in the Scheme that the period end "immediately prior" to those dates: the reference in Clause 63.11 is simply to "prior to the date of the application or proceeding". The words are clear, and can be contrasted with references in Clause 63.01 and elsewhere to existing uses being carried out "immediately before" the approval date.

51. In so far as the 15 year period can conclude in 1997, this sets aside the issue as to whether the planning contravention notice issued on the 5th of May 2000 represents the circumstance referred to in Clause 63.11 whereby a "Responsible Authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the Scheme". It is not necessary therefore to determine whether or not the direction to cease spray painting amounted to cessation of the overall use or not.

52. This leaves the matter of whether the on-site activities since December 1997 have been of a nature that the use was not discontinued in that period in the terms of Clause 63.06.

53. In this respect I have formed the view, based on the evidence presented by witnesses on both sides of the debate, that activities associated with the manufacture of wire products have continued on the subject site in a manner which has not caused the expiration of existing use rights under Clause 63.06. In particular I find that the time-line presented as Attachment 3 to Mr Scally's evidence is a true indication of the continuity of the various activities which have occurred on the site as described in the evidence by the various witnesses. In particular, I accept that certain items of equipment remained on the premises even after the major activities had been removed, including a mesh welder, presses, a cutting saw and saw bench for masonite. I also accept that the site has been used for the storage of finished and unfinished products, albeit intermittently. In this respect, while many of the lay witnesses gave evidence that they did not observe items being stored at the times when they observed spray painting taking place, this may well have been due to the limited view available into the factory. I further accept that the spray painting of pegboard, however problematic it was for neighbours, was again associated with the production of primarily wire based display stands and continued the use. Similarly, I have taken into account the hand assembly of stands for service station oil containers described by Mr Blashki.

54. Two further matters warrant comment. Ms di Salvatore sought to distinguish this case from Nunawading and Harrington, where existing use rights as a bakery were affirmed, on the basis that while the baking activities had been relocated elsewhere and the site was being used as a distribution depot for bread, (most or all) other baking equipment was left intact on the land and maintained. I am of the view, however, that the case is on all fours with Nunawading and Harrington for the reason that major items of equipment (directly relevant to the production of wire items) are still present on the subject land. Ms di Salvatore also sought to make something of the conduct of the activities on the subject site by the Wiredex company and its general engineering operations. I have accepted, however, that Ace Wire has continued to conduct activities on the site. Thus even if Wiredex has been partly responsible for activities there, I am satisfied that the same general purpose has been served.

55. Therefore it is my view that existing use rights have been established for this land which have not been extinguished by interruption. Those existing use rights are to be characterised, however, as the use of the land for the purpose of the manufacture of wire based products. The existing use right is, furthermore, as limited by the planning permit issued in 1957.

Would the Proposed Use be Less Detrimental to Amenity?

56. As noted earlier, a permit may be granted for a non-conforming use under Clause 63.08 only where the responsible authority, and hence the Tribunal on review, is satisfied that the use of the land for the alternative use will be less detrimental to the amenity of the locality.

57. With respect to this issue, Mr Rantino submitted for the Responsible Authority that the proposed use would be less detrimental in a number of ways. He said that the use of the subject land as a warehouse would be quieter than an industrial use as no manufacturing would take place. He said it was likely also there would be fewer staff in a warehouse and therefore there would be a lower parking demand. Importantly, he said that a change of use of the subject land would enable the Council and the Tribunal to impose conditions on the use of the site which would give greater control of the operations. He noted that under the current existing use rights and the 1957 permit, the Responsible Authority had no ability to regulate car parking, hours of use and deliveries, landscaping and other visual aspects of the development. By contrast, he said, the new permit might require a comprehensive landscape plan, additional car parking, regulation of hours from 7.00 a.m. to 6.00 p.m. Monday to Saturday, loading from within the loading bays, the application of State Environment Protection Policy N-1 - Control of Noise from Industrial, Commercial and Trade Premises, and there could be the application of a general amenity condition.

58. Mr Scally similarly identified the fact that there are no restrictions on the number of employees who can work on the subject site at present. He said that there have been as many as 30 employees working from the premises at any one time. He said it was likely the warehouse activity would have less employees and be less detrimental to the amenity of the area in terms of noise, and parking and traffic impacts. He noted also that should the proposed use be authorised, all parking and loading could be accommodated within the curtilage of the site. He referred to the fact that Mr Tucker had given evidence that the on-site parking provision could be increased to 17 cars. Mr Scally indicated also that the applicant would accept a permit condition prohibiting re-establishment of industrial use of the site (under an agreement made pursuant to Section 173 of the Planning and Environment Act 1987). He also indicated that the applicant for permit would not object to a condition requiring forklifts to have warning reversing lights rather than reversing alarms installed, and the applicant was content to adopt the Council's recommended hours of use of 7.00 a.m. to 6.00 p.m. Monday to Saturday. He contrasted those hours to the much longer hours during which the use operated at times in the past.

59. Mr Constantopoulou was also called to give evidence concerning the proposed activities on the site. It was his evidence that he had no employees and ran a small-scale building/development business. He said that he carries out his own development projects. He explained that he wished to use the site as a warehouse to hold equipment and materials associated with his business, including ladders, portable toilets, scaffolding, and props for concrete slabs. He indicated that he hired some of this equipment at the present time. Mr Constantopoulou also indicated that he may store materials for use in the building business on the site, such as tiles which might be bought in larger quantities for multiple jobs. He further said that he might use the site as a wholesaling display centre for parquetry or other building materials.

60. He went on to explain that he envisaged tradespersons attending the site to pick up equipment, perhaps on a daily basis, and that he might be attend himself on a daily basis. Mr Constantopoulou nevertheless envisaged contractors to his business having key access to the property so that they could visit while he was not in attendance. He indicated he was happy to have the number of persons on the site limited to five at any one time. He indicated also that he would be doing no manufacturing on the site,such as joinery. He said that he would also accept a condition prohibiting painting on the land. He did indicate that he would likely use a forklift on the site but a warning light might be fitted rather than a reversing bleeper.

61. So far as the issue of the relative detriment of the two use scenarios is concerned, the submission by Ms di Salvatore on behalf of the objectors was that it was necessary that Mr Constantopoulou enter into a Section 173 Agreement to preclude continued use for manufacturing, to avoid increased detriment as a result of multiple uses or activities. She also expressed concern that the unknown warehouse use could be relatively intensive and there was no information at present about the quantity of goods, the type of trucks required to transport the goods, or the extent of the company's activities. She said in the absence of this information the application should be refused. The objectors were also concerned about the structural ability of the building to be modified so that large trucks could be accommodated within the loading bay. She said on the information provided it was impossible to conclude that the material detriment by the new use(s) would be less than that of light industry (or the existing use).

62. Concerning this issue, I agree with the objectors' submissions that the variable activities which can be conducted under the use "umbrellas" of a wire products manufacturing business and a warehouse, make it difficult to compare the relative levels of material detriment. Part of the uncertainty arises from the fact that land uses generally, and these land uses in particular, can be operated in quite different fashions by different individuals and can change in intensity even under the same operator. Such operating differences are critical in circumstances, such as apply here, where what are essentially incompatible land uses are not separated by commonly accepted buffer distances.

63. Certainly the warehouse activity proposed to be conducted immediately by Mr Constantopoulou is described in reasonably "low key" terms. Nevertheless, the on-site activity might increase beyond the level now described by him, and in particular the arrival and departure of a large number of large vehicles and the operations of a forklift could be significantly detrimental to the amenity of the surrounding residential area (even though a limit might be placed on the numbers of persons permitted to be on the site at any one time). It is also relevant that persons attending the site are not proposed to be under the supervision of the land owner. The unallocated warehouse area is even more uncertain in terms of its amenity impacts, with the likely major problems associated with the use again being noise and traffic movements.

64. A further difficulty in making the required comparison of amenity impacts is determining the impact of the existing use. It is clear that the use to be assessed is the manufacture of wire based products as governed by the 1957 permit. Nevertheless even in the context of the use as so defined, the intensity of on-site activities varied considerably over the years. It is true to say that some of the off-site disamenity which arose was a result of the industry operating outside the terms of its permit (that is that loading was not confined to the site), but nevertheless the movement of vehicles to and from the site along the residential street seems to have altered over the years as did off-site air and noise emissions.

65. In light of these assessment problems, I have formed the view that despite the ability to regulate the new use on the land by an enforceable permit which does offer some prospect of the new use being less detrimental to the amenity of the area than the existing use, it is not possible to be satisfied that the detriment will be less. Thus the bar in Clause63.08 to consideration of whether a permit should be granted applies.

66. I advise, however, that had no such bar been identified, I would nevertheless have refused the permit. I go on in the following section of these reasons to identify why such a refusal would have been given.

67. This is the last of Mr Rantino's questions and is the ultimate test for this application. While the application has failed the penultimate test, it also fails this one. In considering this issue, Clause 63.12 of the Scheme directs attention to the decision guidelines in Clause 65 as well as the extent to which compliance can be achieved with all Scheme requirements that can reasonably be met.

68. In relation to this ultimate question in the exercise of the discretion, Mr Scally indicated that the applicant agreed with the submissions by the objectors that non-conforming uses should not be entrenched and enlarged. However, he said that granting the permit would further that goal by allowing a less detrimental Section 3 use to replace a non-conforming existing use of land. He also said that it was evident that the objectors would like any manufacturing use of the land to cease, and the applicant for the proposed warehouse use would accept a permit condition prohibiting industrial use of the site. He said that it should be borne in mind that in 1955 when the use was established, the environs of the site was a green fields one, and the residential area has developed around the industrial use. He also noted that the industrial use of the land had coexisted with the residential uses for many years without complaint and without control by way of permit conditions. He also said that the area cannot be described as a pristine residential area: there are non-residential uses located within 100m of the property in Fairview Street, Mr Scally submitted.

69. The submissions by the objectors on this issue of whether a permit should ultimately be granted, turned principally on the matter of the potential for the increased detriment which they saw would be occasioned by the new use(s). They argued that the bulk of the building products proposed to be stored on the site would be greater than the products of the previous use, and the use of large trucks which create dust, noise and fumes would continue, as would direct noise emissions from the site. Again, the concerns that the use of a large part of the factory site remained unknown were raised. Moreover, it was said that the permit applicant is purchasing a factory which is too large for his present needs, but he was showing a disinclination to allow some of the space to be used to provide the parking required by planning regulations. It was said in summary that to grant the permit would be to both entrench and enlarge a non-conforming use, one which has a long history of causing considerable anguish to nearby residents, whose suffering could only be described as torment or torture.

70. I have given consideration to all the matters that have been placed before me on this final question. I have formed the view that even if discretion were not barred, I would not have granted a permit for this alternative non-conforming use. My reason for that view is that I believe that the time has come in the history of this site for its use to convert to one more closely in accord with the nature of the residential zone. I believe that if the permit is refused that there is a prospect of that occurring. This is based on Mr Blashki's advice that there would not likely be another wire works factory which would seek to occupy the land. I believe that if I were to allow another non-conforming use of the site, non-conforming activities would inappropriately become further entrenched. There are a number of factors relevant to my forming that view.

71. Firstly, at the end of 1997, the industrial activities were in large measure removed from the site. A "For Sale" notice was put up and the factory was largely left locked up with only minimal on-going activity, including the storage of some difficult to move machinery. It has happened that the small amount of on-going activity has been sufficient to keep the use legally alive, but I am nevertheless of the view that there was an intention to abandon industrial use of the land. This accords with objector reports of conversations with Mr Blashki at the time. It is acknowledged that Mr Blashki did make use of the subject site for activities associated with his business at the new Hallam site, but it seems to me that this was for the convenience of the relocated business rather than with any deliberate intent to retain the Blissington Street site in industrial use. While there was comment made during the course of the hearing that it would be "unrealistic" for the land owner not to seek to maintain his existing use rights in relation to the land, thus implying some economic foresight on the part of the owner, it seems to me that this is a rationalisation after the event.

72. . The removal of a reasonably substantial industry away from the subject land in 1997 was said to be because the business had outgrown the premises. The use had indeed outgrown the premises, I believe, not only in terms of the requirements of the business, but also in terms of its relationship to the surrounding residential area. The area around the factory has a well established residential character. Housing is developed at conventional densities and families live on properties directly abutting the site. It seems inevitable that nearby residents will continue to suffer amenity impacts while the use of the land is for a Section 3 or non-conforming purpose. The age and poor condition of the fabric of the factory will fail to allow it to adequately contain noise and other emissions - as it has failed in the past. The narrow road formation of Blissington Street will also mean that large vehicle movements will continue to be problematic. In summary, the relationship of the subject site to other land in residential use and the condition of the development on the land recommend against continued non-conforming use of the site.

73. Further, I agree with the objectors' submission that this site is one which might be readily developed for multi-unit housing consistent with the purpose of the zone. I also believe that this might occur at no significant financial disadvantage to the landowner in comparison to the circumstance where the land is used for warehousing or industrial purposes. My inspection of the factory revealed that the premises are in a marginal state of repair, and the brick wall facing the street hides some quite old building fabric.

74. In summary, it is my view that it is appropriate that the non-conforming use of this land should now come to an end in the interests of orderly planning of the locality. I believe that to authorise a new non-conforming use, would entrench a non-conforming activity on the land for many years to come. By refusing the permit I would hope to assist in the process that would see this land convert to a purpose consistent with the residential zoning.

75. In taking this approach, I follow that by the Tribunal in More Land Pty Ltd v City of Hawthorn 12 APAD 459 where it was proposed to re-utilise a printing and carbon paper manufacturing premises, zoned for residential purposes, as offices. The Tribunal in that case upheld the Responsible Authority's decision to refuse the permit recognising that the land was correctly zoned residential and "the opportunity now exists to phase out a non-conforming use". The Tribunal agreed with the planning witness who put the point of view that if the opportunity was not taken at that time and a different non-conforming use such as the proposed office were established, it would be impossible to phase that non-conforming use out during this century. That decision was made in 1994. The Tribunal went on to make observations which are relevant in the present case:

"Inspection shows that many of the houses in the Westley Street are ripe - if not overripe - for re-development. Therefore, the sensitive and sensible development of the subject land for residential purposes could well set the pattern for a substantial improvement of the residential amenity of the neighbourhood. By contrast the granting of the permit sought will in my opinion greatly impair the residential quality of the area presently existing and be prejudicial to the future enhancement of the amenity."

76. Those comments, I believe, are also relevant to the orderly planning of the Blissington Street neighbourhood.

77. The objectors' appeal will therefore be allowed and the Responsible Authority's decision to grant a permit set aside.

The order in this proceeding was issued on 7 June 2001.