Hoban v Mornington Peninsula SC [2007] VCAT 1931

1. In relation to application for review P305/2007, the application for review is granted and the notional refusal of the Responsible Authority to grant a permit is set aside. A permit is granted for the construction of 10 hangars on the land in accordance with the endorsed plans provided for in the following conditions which are to be the conditions in relation to the permit.

1. Prior to the commencement of buildings and works, amended plans must be submitted to and approved by the Responsible Authority. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved, the plans will be endorsed as evidence of their approval and they will then be the endorsed plans in relation to this permit. The plans are to show:

1. access to hangars 12, 13 and 14 to be from the west; 2. removal of the access to hangar 12 from the south elevation;

1. relocation of hangar 13 to show a 1 metre variation in alignment with other hangars in its setback from Stuart Road;

1. notation on the site plan indicating administration and office space having a finished floor level to be 300mm above the 1 in 100 year flood level or alternative level specified by Melbourne Water; 2. any necessary consequential amendments to location of taxi ways; 3. landscape plan including: 1. a vegetation buffer in the Stuart Road setback to provide visual softening and screening; 2. a schedule of all proposed trees, shrubs and ground cover including the location and size at maturity of all plants and the botanical names of such plans to be planted in the landscape buffer area. 2. The layout of the land, the size and type of the proposed buildings and works including the materials of construction on the endorsed plan must not be altered or modified without the consent of the Responsible Authority. 3. The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority. 4. Prior to occupation and use of the hangars hereby permitted the landscape works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. 5. The landscaping works shown on the endorsed landscape plan must be maintained in a healthy condition to the satisfaction of the Responsible Authority. 6. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority. 1. a Before the commencement of works on site, a detailed drainage plan for the development of the site in respect to new buildings and works generally in accordance with the report of John Fitzgerald, consulting engineers and project managers of 23 April 2007 must be submitted to Melbourne Water Corporation for its approval. 1. When approved, such plan is to be implemented and maintained to the satisfaction of Melbourne Water Corporation. 7. Prior to the occupation and use of the hangars hereby approved, areas set aside for access to each hangar and taxi ways as shown on the endorsed plans must be:

1. constructed; 2. properly formed to such levels that they can be used in accordance with the plans; and

all to the satisfaction of the Responsible Authority.

1. The access ways to the hangars hereby approved must to the satisfaction of the Responsible Authority be kept available for access at all times.
2. All taxiways are to be constructed and maintained in a good condition to ensure that a smooth even surface free of potholes is provided to facilitate aircraft taxiing with a minimum use of engine power to the satisfaction of the Responsible Authority.
3. External lights to illuminate the exterior of buildings and works must, to the satisfaction of the Responsible Authority, be fitted with cut-off luminaries to prevent the emission of direct light onto adjoining roadways and land.
4. This permit will expire if the development is not completed within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within the following three months.

1. Application for review P503/2007 is granted and the notional refusal of the Responsible Authority to grant a permit is set aside. A permit is granted for the construction of two aircraft hangars on the land in accordance with the endorsed plans provided for in the following conditions which are to be the conditions in the permit.

1. Prior to the commencement of buildings and works modified plans are to be submitted to the Responsible Authority for approval. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved, the plans are to be endorsed as evidence of their approval and they will thereby become the endorsed plans in relation to this permit. As compared with the application plans, the plans are to be modified to show: 1. a notation on the site plan indicating the finished floor level of the administration and office area at 300mm above the 1 in 100 year flood level as advised by Melbourne Water Corporation; 2. a landscape plan containing a schedule of all proposed trees, shrubs and ground cover indicating the location and size at maturity of all plants with botanical names specified of plants to be planted within the landscape buffer. 2. The layout of the land, the size of buildings and works, including materials of construction as indicated on the endorsed plan is to be implemented and not modified or altered without the consent of the Responsible Authority. 3. Except with the further consent of the Responsible Authority materials and colour of the exterior finish of the buildings must be in accordance with the endorsed plans. 4. Before the hangars approved by this permit are used, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority. 5. The landscaping works shown on the endorsed landscape plan must be maintained in a healthy condition to the satisfaction of the Responsible Authority. 6. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority. 7. Prior to the commencement of buildings and works drainage construction plans must be submitted to the satisfaction of the Responsible Authority and Melbourne Water. 8. Prior to the occupation and use of the hangars hereby approved, areas set aside for access to each hangar and taxi ways as shown on the endorsed plans must be:

1. constructed; 2. properly formed to such levels that they can be used in accordance with the plans; and

all to the satisfaction of the Responsible Authority.

1. The access ways to the hangars hereby approved must to the satisfaction of the Responsible Authority be kept available for access at all times.
2. All taxi ways are to be maintained in a good condition to the satisfaction of the Responsible Authority to ensure that a smooth even surface free of potholes is provided to facilitate aircraft taxiing with a minimum use of engine power.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses
4. Administration/office areas to have at least 300mm freeboard above the applicable flood level to the satisfaction of the Melbourne Water Corporation.
5. Prior to the commencement of works, volume calculations must be submitted to the satisfaction of Melbourne Water demonstrating that the volume of filling does not exceed the volume of cutting.
6. Any earthworks must be done to the satisfaction of Melbourne Water and the Responsible Authority such that the volume of cutting within the floodplain is equivalent to or greater than the volume of filling.
7. The development and works must be managed so that the amenity of the area is not detrimentally affected, including through the:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any buildings, works or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

1. presence of vermin.
2. Except with the prior written consent of the Responsible Authority, no aircraft components or parts are to be stored outside the hangars.
3. External lights to illuminate the exterior of buildings and works must, to the satisfaction of the Responsible Authority, be fitted with cut-off luminaries to prevent the emission of direct light onto adjoining roadways and land.
4. This permit will expire if the development is not completed within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within the following three months.

1. Application for review P516/2007 is granted and the notional refusal of the Responsible Authority to grant a permit is set aside. A permit is granted for the construction or erection of an aircraft hangar on the land in accordance with the endorsed plans provided for in the following conditions which are to be the conditions in the permit.

1. Prior to the commencement of buildings and works hereby permitted amended plans are to be submitted to the Responsible Authority for approval. Such plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed as evidence of their approval and they will thereafter be the endorsed plans in relation to this permit. The plans are to be varied from the application plan so far as necessary to show:

1. the hangar set back 20 metres from the eastern property boundary; 2. the removal of the access to the hangar from the southern elevation;

1. a notation on the plan indicating that access to the hangar is not to be obtained through the southern elevation;

1. a vegetation buffer in the setback from Stuart Road to provide softening or screening of use of the hangar; 2. schedule of all proposed trees, shrubs and ground cover with indications of location, size at maturity and botanical name; 3. elevation plans of the water tanks including capacity and height of the tanks above ground level which is to be no greater than 3 metres and indication of the colour of their external finish. 2. The layout of the land, the size and type of the proposed building and works including the materials of construction on the endorsed plan must not be altered or modified without the consent of the Responsible Authority. 3. The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority. 4. Before occupation and use of the hangar hereby permitted commences, landscaping works in accordance with the endorsed plans must be completed to the satisfaction of the Responsible Authority. 5. The landscaping works shown on the endorsed landscape plan must be maintained in a healthy condition to the satisfaction of the Responsible Authority. 6. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority. 7. Prior to the commencement of buildings and works drainage construction plans must be submitted to the Responsible Authority for its approval and when approved implemented. 8. Prior to the occupation and use of the hangars hereby approved, areas set aside for access to each hangar and taxi ways as shown on the endorsed plans must be:

1. constructed; 2. properly formed to such levels that they can be used in accordance with the plans; and

all to the satisfaction of the Responsible Authority.

1. The access ways to the hangars hereby approved must to the satisfaction of the Responsible Authority be kept available for access at all times.
2. All taxi ways relating to the development of this hangar are to be maintained to the satisfaction of the Responsible Authority in a good condition to ensure that a smooth even surface free of potholes is provided to facilitate aircraft taxiing with a minimum use of engine power.
3. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses
4. Administration/office areas should have to the satisfaction of the Melbourne Water Corporation at least 300mm freeboard above the applicable flood level.
5. Prior to the commencement of works, volume calculations must be submitted to the satisfaction of Melbourne Water demonstrating that the volume of filling does not exceed the volume of cutting.
6. Any earthworks must be done to the satisfaction of Melbourne Water and the Responsible Authority such that the volume of cutting within the floodplain is equivalent to or greater than the volume of filling.
7. The development must be managed so that the amenity of the area is not detrimentally affected, including through the:

1. transport of materials, goods or commodities to or from the land; 2. appearance of any buildings, works or materials;

1. emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

1. presence of vermin.
2. External lights to illuminate the exterior of buildings and works must, to the satisfaction of the Responsible Authority, be fitted with cut-off luminaries to prevent the emission of direct light onto adjoining roadways and land.
3. This permit will expire if the development is not completed within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within the following three months.

1. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue permits in accordance with Orders A,B, and C above.

_________________ ___________

Mr. Matthew Beasley, solicitor of the firm Deacons Solicitors appeared with Ms. Judith Pearlstein, solicitor of Deacons, for the responsible authority. He presented two written submissions in addition to oral argument and called two expert witnesses. They were Reuterward Gustaf Pontus, mechanical engineer and acoustic consultant who gave oral evidence and adopted a written report of Graeme E. Harding & Associates of 8 June 2007; and Allan Wyatt, landscape architect who gave oral evidence in the course of which he adopted a written report.

Mr. Ian Pitt SC, solicitor of the firm of Best Hooper Solicitors appeared for the applicant. He presented written and oral submissions and called four witnesses. They were: Peter William Gill, pilot and airbus captain; Cornelius (Neil) Huybregts, acoustic consultant; David Charles Crowther, town planner; and Mathew Ernest McFall, landscape architect and planner. Each of these witnesses gave oral evidence and the latter three adopted written reports.

Mr. Jason Kane, barrister, appeared on the instructions of the Environment Defenders Office for a number of objectors namely Rodney DuVe, Winifrede Agnew, Janet and David Lions, Ron and Margaret Elmore, Douglas and Lynette McDonald, Burke and Bronwyn Bradon, William Agnew, Katrina and David Chalke, Julie Doncovio, Andrew Doncovio, Suzanne Smith, John and Sonia Brennan, Audrey S. DuVe, Ian Hales, Stefan Berson, A.K.D. and J. Aitchison, Rodney DuVe, Tyabb & District Ratepayers, Rainer and Elizabeth Dittrich, Susan Weymonth, Michael Laurie, Leonie Laurie, M.J. Sonneveld, Chris Harford, Peter and Valerie Davis, Janet Loughman, Albert Loughman, Megan Loughman, Peter and Elizabeth Wall and Kevin Pagoni. He presented two written submissions in addition to oral argument.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

We have inspected the lands, the airport and the locality.

Three applications under Application under s.79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to grant permits within the prescribed time.

Special Use Zone (Schedule 3) plus partly under a Land subject to Inundation Overlay and, in relation to P503/2007 and partly under a Public Acquisition Overlay.

1. These three cases concern three separate areas of land that do not adjoin each other, but which do adjoin the Tyabb airfield. Each case concerns a proposal for the erection of one or more aeroplane hangars on the land. Each case is an application for review brought by the permit applicant against the failure of the responsible authority to grant a permit within the prescribed time.
2. The responsible authority subsequently determined that it was opposed to the grant of each of the permits sought. Mr. Jason Kane, barrister, appeared for a large group of objectors. He presented a joint case and joint submissions on behalf of these objectors. The case presented was also opposed to the grant of the planning permits being sought.
3. The real issue in this case, so far as the responsible authority is concerned, is opposition to the proposals on the basis of alleged or allegedly potential noise problems. Mr. Matthew Beasley, the solicitor who appeared on behalf of the responsible authority, said in the course of his submissions "If we did not have the noise I do not think we would have an issue".
4. Nevertheless, he did advance a case on a secondary issue relating to the appearance of the proposed new hangars. This complaint is firstly, the appearance of the hangars themselves which are large buildings with rather bland appearances. It is not that they are unduly high, but they are substantial in their other portions. This is hardly surprising in that they are intended to accommodate aeroplanes. All aeroplane hangars are more or less substantial in that way for that reason. Related to this is the proposed positioning of the intended hangars on the respective sites, with particular reference to setbacks from street frontages. Another related matter is the question of landscaping to soften, and perhaps substantially screen hangars from view from surrounding streets and houses. Hangars generally, but including these ones, would have substantial areas of wall with rather bland appearance with little in the way of articulation. The colouring of external surfaces is also relevant in this respect.
5. These are the issues raised by the responsible authority. Some minor matters, such as the suggestion that there be an access track in the substantial landscape setback from Stuart Street, are not significant and would not affect the outcome of the case.
6. The case presented by Mr. Kane on behalf of the objectors has struck us as rather a strange one. He said in his opening on behalf of his clients that the "case is not about hangars, it is about the future direction of the airfield". He faces a considerable difficulty in this respect. The application is for construction of hangars. We think the case is about the construction of hangars. Whilst there is a relationship between the hangars and the airfield, and the hangar sites are adjacent to the airfield, they are not on the airfield land and we have no application before us dealing with the use or development of the airfield. In short, we have no power in these proceedings to control the conduct of the airfield, now or into the future. The main thrust of the case put by Mr. Kane is beside the point so far as these cases and our determination of them is concerned.
7. He also mentioned the appealingly simply formulation that more hangars means more planes and therefore more noise and more amenity disturbances. Perhaps this proposition is also relied upon by the responsible authority in its concerns about noise. However, although appealingly simple, the formulation is essentially fallacious as we discovered when, in the course of the hearing, it became the subject of evidence and logical analysis. Ironically, the erection of some of the new hangars (depending on positioning) and the provision of intended water tanks will provide some acoustical screening so that, so far as noise is concerned, adverse affects beyond the airfield and associated land will be reduced, or at any rate maintained at existing levels.
8. Mr. Kane suggests that there has been a dearth of strategic planning. He says that the current proposals are premature and contrary to orderly planning. We consider that the fundamentally important strategic planning decisions had already been made and are in place. Secondary considerations as to the nature of uses surrounding the airfield area, and what sort of uses should be allowed in close proximity thereto, may have been neglected by the council as planning authority in relation to strategic planning considerations, but they do not impinge upon the current decisions that need to be made in relation to these proposals on these pieces of land.

Mornington Peninsula Airfield, its use, history and location

1. We were referred to the profile of the Mornington Peninsula at cl.21.02 of the planning scheme where, in relation to infrastructure, the following paragraph appears:

The Tyabb airfield has operated for many years and in addition to recreational flying provides a connection for some forms of commercial air transport to larger airports, including Moorabbin and Melbourne (Tullamarine) airports.

1. We will refer to Mornington Peninsula Airfield as the airfield. We note that Mr. Kane raised some arguments about whether or not it should be regarded as an airport. We do not think that the distinction between airfield and airport is material, so far as our consideration of this case is concerned. Nevertheless, although a significant part of the activities carried on in relation to the airfield are recreational flying, we note that there are other activities. It provides a link to other airports such as Moorabbin and Tullamarine and there is some commercial traffic. A good deal of the flying is by light aeroplanes and there are limitations preventing its use by heavy aircraft and jet aircraft. However, the airfield is also used for various emergency services involving aircraft, particularly helicopters.
2. It is the base for the Peninsula Aero Club Inc. which owns the airfield itself.
3. The airfield is located approximately 800 metres to the south-west from the village centre of the small township of Tyabb. It was established in the early 1960s and has been used as an airfield ever since. The airfield itself has been extended over the years and a number of ancillary facilities have developed over time. The initial planning permissions date back to the early 1960s, although there have been other subsequent permits. We are talking here about the airfield and the airfield land itself, as distinct from other adjoining land available for airfield uses and facilities. Although there is clearly a connection between these surrounding facilities and the airfield itself, the distinction needs to be borne in mind.
4. The airfield is located close to, but not at the south-west corner of the intersection of the Mornington-Tyabb Road (which runs east to west) with Stuart Road which runs north to south. The Mornington-Tyabb Road is a Road Zone category 1. There is an area of Industrial 3 Zone land at the corner, south of the Mornington-Tyabb Road and west of Stuart Road. The Peninsula Motor Inn is located in that area. There are other non-airfield activities in that corner, not necessarily exactly co-extensive with the Industrial 3 zone. Nevertheless, the airport itself wraps around that non-airfield corner.
5. The airfield has a frontage to the south side of the Mornington-Tyabb Road immediately to the west of that corner area, and another frontage to the west side of Stuart Road immediately south of the corner area. The main north-south runway runs south from the Mornington-Tyabb Road frontage for a considerable distance to the south. The north-south runway has been sealed, apparently with some assistance from the council.
6. There is a secondary, east-west runway which is not sealed. This secondary runway comes from the east, in the vicinity of Boes Road, the next north-south road to the east of Stuart Road. From there it runs to the east to form, in effect, a "T" intersection with the north-south runway. Most of the associated land not occupied with runways but used for airfield or related activities, and indeed some land not owned by the Aero Club, is concentrated on either side of the northern end of the runway with frontages to the Mornington-Tyabb Road to the north and otherwise to Stuart Road to the east.

1. The zoning of most of the airfield land (land owned by the Aero Club and used for the airfield itself) and this other land surrounding the north-south runway at the northern end is in the Special Use 3 zone. Each of the three areas of land related to these three cases now under consideration is within that zone. This zoning is of crucial importance, not only in relation to the airfield and its activities, but also in relation to the determination of these cases.
2. Apart from the purpose applicable to all zones, the purpose of Special Use zones is to recognise or provide for the use and development of land for specific purposes as identified in a schedule to the zone.
3. In the present case, the relevant schedule is schedule 3 headed "AIRFIELD DEVELOPMENT". The purpose of the schedule is:

To provide for the coordinated use and development of land in the vicinity of the Tyabb Airfield.

1. This zone, in relation to the Tyabb Airfield, is the only Special Use schedule 3 zone in the municipality. It is concerned, not only with the land occupied by the airfield itself, but also land in its vicinity, such as the sites to which these three current cases relate. It is plainly implicit that the use and development is to be co-ordinated in relation to the airfield and for the purpose of the airfield. Indeed the whole purpose of this Special Use zone is to accommodate the airfield itself and to provide for it, not only in terms of planning and zoning, but also in terms of facilities and, for that matter, neighbouring land uses.
2. There is something of a patchwork of zones in areas beyond the Special Use 3 zoning. To the south of the end of the north-south runway there is a substantial area of Special Use 1 zone. The focus of that zoning is for port related activities. Partially surrounding the airport, to the east and west of the main portion of the north-south runway there is Green Wedge 2 zone land. The east-west runway is within that zoning. On the western side it extends up to the Mornington-Tyabb Road, and indeed, across it as the land opposite the airport over that road is Green Wedge 2 with a bit of Public Use zone 1 (service and utility).
3. The Industrial 3 zone on the south-west corner of the intersection of the Mornington-Tyabb Road with Stuart Road extends across the Mornington-Tyabb Road where there is a more extensive Industrial 3 zone.
4. Apart from the Industrial 3 zone in the corner, the zoning at the northern end of Stuart Road is the Public Use 3 (airfield) zoning on the western side and an area of Residential 1 zone land on the eastern side.
5. Between those two areas, and the Green Wedge zone 2 to the south on either side of Stuart Road there is a small segment of low density residential zone land, also on either side of Stuart Road.
6. Thus on the eastern side of the north-south runway, between it and Stuart Road, there are a series of allotments that back on to the airport and that are used and intended to be used for residential purposes. However, this is not just any residential purpose, but rather airport residential uses so that people with aeroplanes can have rear access from their properties on to the airfield, perhaps as some waterside or marina properties have access to boat moorings.

1. Unfortunately, the three sites we are concerned with were identified by a variety of different names in the course of the hearing. We will attempt consistency. By "No. 86" we mean 86-98 Stuart Road, Tyabb. By "No. 73" we mean 73 Mornington-Tyabb Road. By "No. 114" we mean 114 Stuart Road. We refer to them in that order merely because that is the numerical order of the Tribunal's numbers for each of the respective cases.
2. No. 86 contains all of the actual No. 86 and part of No. 98. The actual No. 86 is owned by Second Chariot Pty Ltd and the actual No. 98 is owned by the Peninsula Aeroclub Inc. The total area we are concerned with (all of the actual No. 86 and part of the actual No. 98) amounts to 2.75 hectares. A land swap is involved in achieving this 2.75 hectare site. It is located to the east of the main north-south runway between it and Stuart Road and south of the Aero Club club rooms. There are a number of existing aircraft hangars on the land with a floor area, including some other buildings of 4,727 square metres and amounting to a site coverage of approximately 17%. There are existing taxi ways leading to the airfield.
3. It is proposed to demolish four of the existing hangars and to erect ten new ones. The new hangars will have floor areas ranging from 450 square metres to 684.6 square metres with a total new floor area of 5,067 square metres. Approximately 1,269 square metres of existing hangars will be demolished. The surviving existing hangars amounting to approximately 3,458 square metres together with the new hangars will give a total area of 8,525 square metres and a site coverage of 30%.
4. The new hangars will be approximately 6.2 metres high and clad in colourbond steel coloured "dune". Additional internal taxi ways will be constructed to lengthen existing taxi ways to the airfield. The hangars will appear like large sheds and be rectangular in shape with pitched roofs and gable ends. They will be variously located on the site but with a minimum setback to Stuart Road of 15 metres to provide substantial space for landscaping. No openings will face Stuart Road. Currently the site is used only during daylight hours. The 10 new hangars will have an aircraft garaging capacity of 30 representing an average of 3 per hangar although the loss of 4 existing hangars has to be set off against this. The whole site will then have undercover accommodation for approximately 65 aircraft, but that is only a net gain of 10 under cover. The aircraft parking capacity of the site is not limited to the within hangar capacity now, and it will not be so limited if the proposal proceeds. The parking capacity is the available hangar space plus available outdoor space. It is anticipated that the new indoor space will be taken up by aircraft currently accommodated on the site but in the open air. There are obvious reasons why owners prefer to store aircraft in hangars. Apart from the wear and tear of being exposed to the elements (particularly sunlight, salty air and wind) there are security advantages. Aircraft in hangars are much less likely to be damaged by trespassers or unauthorised interference and less likely to suffer depredations such as the stealing of parts or fuel.

1. This site is an elongated rectangle with an area of 3.96 hectares. One of its short sides forms its frontage to the south side of the Mornington-Tyabb Road. Its length stretches to the south, beside the north-south runway. On its western side, also fronting that road, there is a substantial industrial undertaking in the form of a concrete batching plant. There is a single existing hangar building on the northern portion of this land. The building is nevertheless well set back from the road frontage with space for landscaping, driveways and hardstanding areas. A driveway also goes around to the rear of the existing building and there is a taxi way on to the northern end of the north-south runway. This site stretches back to the south as far as the east-west runway so that access is available over that southern boundary.
2. This site is within the Special Use 3 zone, as is the site of the batching plant on its western side. The land immediately opposite the frontage of the site to the Mornington-Tyabb Road, and extending some distance to the east and west, is Green Wedge 2 zone.
3. There is an area of land running approximately diagonally across this site which is subject to a Land Subject to Inundation Overlay. Although, this land, the airfield and land round about is generally flat the overlay area runs from west by north-west generally in an east by south-easterly direction, and therefore diagonally, from the Mornington-Tyabb Road, through some allotments to the west and then across to the concrete batching plant site, this No. 73 site, the runway airfield area and then, tipping the south-west corner of No. 114 and part of No. 86, on to Stuart Road. This appears to be the direction of flow of some surface water in wet conditions but without there being the bed and banks of a watercourse. The direction of flow of this water runs across the north-south runway. There must be existing facilities to cope with that. We presume there would be some form of culvert under the seal of the runway.
4. There is one small depilated house on the Green Wedge land opposite No. 73. It is close enough to the northern end of the runway that aircraft commencing their takeoff run to the south are in some proximity to it. Conversely, aircraft taking off to the north will be airborne before reaching the Mornington-Tyabb Road and at some altitude as they pass this house. All these circumstances exist now and the situation will not be changed in any significant way if the current proposal is allowed to proceed. It has to be remembered that the Tribunal, in determining these cases, has no power to control, regulate or restrict the ordinary current lawful activities of the airfield.
5. Apart from the aircraft accommodation available in the hangar (13 aircraft of which five are airworthy) there is a great deal of space on No. 73 where aircraft can be parked in the open. In fact, aircraft can be plainly seen in the supplied aerial photograph parked to the south of the existing building.
6. The proposal is to erect two "Bellman" aircraft hangars on this site to the south of the existing hangar. They are to be relocated there from Port Melbourne. There has been some suggestion that these hangars are of heritage significance although the Heritage Council of Australia (Victoria) ultimately decided that the significance was insufficient to warrant inclusion on the heritage register. Each hangar would be sufficient to house 12-15 aircraft although, of course, hangars are also used for servicing, maintenance and repairs to aircraft and the storage of tools and equipment for such purposes as will be the situation here. Not all aircraft stored in hangars are intended to be flying aircraft. Aircraft of historic interest, whether able to fly or not, can and will be stored. Some aircraft stored in the existing hangar are likely to be transferred to one of the new ones. Of course, an increase availability of covered parking spaces for aircraft does not imply an increased number of parking capacity. In fact, the converse might be the case. It may be possible to park more aircraft in the open than can be accommodated if there are hangars on the land.
7. The proposed buildings are to be rectangular in shape with dimensions of 30 by 54 metres, and thus each with a floor area of 1620[1] square metres. With the new buildings the site coverage would be 4,480 square metres, still a mere 11% of the site. The buildings would have pitched roofs and gable ends with a total height of 7.9 metres clad in dune coloured colourbond.
8. The northern most of the two would be set back at 90 metres from the Mornington-Tyabb Road and both would be sheltered, both acoustically and visually by the existing hangar building on the site from the point of view of road users or the Green Wedge zone land opposite. Existing usage of the current hangar is 9am to 5.30pm on week days with occasional later or weekend usage, depending on work demand.
9. Some new internal taxi ways would link to the existing taxi way and also provide a link over the southern end of the site.

1. This site has an area of approximately 1.3 hectares and a frontage to the western side of Stuart Road to the north of No. 86, and divided from it by the area where the Peninsula Aero Club buildings are located. Thus, it is located between the north-south runway and Stuart Road. There are, at present, two aircraft hangars set back from the road by approximately 50 metres. They are used for aircraft storage, maintenance, restoration and associated activities. There is an existing taxi way connecting to the airfield.
2. The land is in a Special Use 3 zone, is not affected by any Public Acquisition Overlay, and only by the Land Subject to Inundation Overlay as to a tiny portion at its south-western corner.
3. The proposal is to relocate a "Butler hangar" of historic significance from its present site in Port Melbourne for reassembly on this land. The heritage significance of the building is recognised with inclusion on the Heritage Register and with conditions relating to its relocation.
4. One of the existing hangars with an area of approximately 230 square metres is to be demolished to make way for the proposed building. It is to be used for the display, storage and restoration of historic aircraft and other materials by the National Air Museum. There is no net increase in the number of hangars. The building could accommodate 15-20 aircraft, but some would not be air worthy or functioning, and some would fly very rarely. The property would not be open to the public. The new building would be rectangular at 37.2 by 49.2 metres and with a total floor area of 1,830.24 square metres. This would give a total site coverage of 3,780 square metres, or 29% of the site.
5. The building would have a pitched roof and gable ends with a total height of 12.5 metres. It would be clad in reclaimed original wall cladding and dune coloured colourbond roofing. It is to be sited with a setback of 20 metres from Stuart Road providing a substantial landscaping area. Six car parking spaces with an access driveway are to be located north of the structure to be reached by vehicles from the existing driveway, and to double as a taxi-way linking to existing taxi-ways and the adjoining airfield.

1. All three sites are in the Special Use 3 zone. Pursuant to the zone provisions, planning permission is needed for the construction of buildings and works. Clause 34.01-4 provides that a permit is required to construct a building or to construct or carry out works unless the schedule to the zone specifies otherwise. In any event, any requirement of the schedule must be met. The schedule does not provide otherwise. On the contrary, it provides, in cl.4 "a permit is required to construct a building or construct or carry out works". There are a couple of exemptions to this rule under cl.4, but they do not apply in these cases.
2. The question of whether such development permission should be granted is the fundamental question in each of these cases.
3. No. 73, but not the other two sites, are subject to a Public Acquisition Overlay. The overlay provisions are found in cl.45.01. Clause 45.01-1 provides, amongst other things, that a permit is required to construct a building or to construct or carry out works. Thus, permission is required under cl.45.01-1, although there is no reason in this case why such permission should not be granted. The strip of land along the road frontage to which the overlay applies will not be affected in any relevant way by the proposed buildings and works 90 metres and more further to the south. Insofar as there may ultimately be a public acquisition of the overlay land, it can be accommodated. It is not relevant to the current proposal. We note too that cl.45.01-2 exempts the application, so far as it relates to this overlay, from notice requirements under ss.52(1)(a), (b) and (d) and 64(1), (2) and (3); and also from third party review rights under s.82(1) of the Act.
4. There is a third provision pursuant to which planning permission is required in relation to the small portion of No. 73, a much smaller triangle in the north-eastern corner of No. 86 and a tiny triangle in the south-western corner of No. 114. These are the areas covered by the Land Subject to Inundation Overlay. The overlay provisions of which are found in cl.44.04 of the planning scheme. Clause 44.4-1 provides, amongst other things, that a permit is required to construct a building or to construct and carry out works including a fence and roadworks. That requirement is subject to some exceptions not here applicable. One of them, is if the schedule to the overlay specifically states that a permit is not required. Clause 1 of the schedule does contain some exemptions which would not extend to the proposed hangar buildings unless floor levels exceeded the 1 in 100 year flood level by at least 300mm in the case of a concrete floor or 150mm in the case of a dirt floor.
5. We are satisfied that suitable arrangements to meet the requirements and purposes of the overlay can be achieved. We therefore consider that development permission should be granted, insofar as required under this overlay, subject to appropriate conditions.

1. It was submitted, on behalf of the responsible authority, that permission is needed for the use of these three areas of land. We are satisfied that this submission is misconceived.
2. It is based on the proposition that an aircraft hangar comes within the land use "store" within the meaning of the planning scheme and as such is therefore associated with the land use of "warehouse". We consider this to be a misunderstanding. A store is a place where goods are stored, and a warehouse a place where they are stored in bulk or large numbers, although wholesale sales can take place for a warehouse. It does not include a place where an aircraft which is not for sale, not stored for sale and which is not in storage. The use of a hangar is more equivalent to a garage or carpark where a motor vehicle is garaged or parked (rather than stored) when not in actual use. We do not agree that planning permission is required for the land use "store" in relation to these proposed hangars.
3. It might be arguable, although it did not seem to be argued, that the use as hangars is within "industry". However, the repair and maintenance activities which might, in some circumstances, amount to industry as a separate use are, in the instance of a aircraft hangar, incidental of the true purpose of the hangar. In that circumstance, they are not a separate land use as industry.
4. In any event, if hangars are built on the airfield land, we would regard them as ancillary aspects of the airfield use. In those circumstances they would be regarded as part of it, and not as a separate land use. The situation would be similar to a garage as an ancillary to a house.
5. In these cases, the new hangars will be on land in common zoning with the airfield, but separate ownership. It is arguable that they constitute separate "planning units". In the circumstances the automotive equivalent might be carpark rather than garage. If it was necessary to characterise the use, it would be correct to designate it as the use of the land for the purpose of aircraft hangars.
6. As it happens, we do not really need to go into that characterisation exercise for the purposes of these cases. It is, in our opinion, abundantly clear that these proposals do not include a proposal to change the use of any land. Whatever the current use is, it is to be continued. If it is aircraft hangars, it will continue, although with an increase in the number of hangar buildings. If it is the equivalent of "garaging aircraft" whether within hangars or in the open air, that is to continue. There is no suggestion that the current nearby use of the airfield is unlawful, and there is no suggestion that the current use of any of these three sites is unlawful. The current use can continue pursuant to the existing use rights, see cl.63 of the planning scheme. At most, this might give rise to the need for permission for the development represented by the proposed buildings and works, which is required under the zone provisions and the overlays in any event; but that is a fundamentally different thing to saying that there is a need for planning permission to use any part of these sites for the purposes of which they are currently lawfully used.

1. Mr. Beasley sought to mount an argument on behalf of the responsible authority that perhaps the current "planning unit" in relation to No. 73 does not extend over the whole area of that property, but only to the area of the existing building, or perhaps that building and its immediate surrounds. We do not accept that proposition.
2. We are well aware that various complications can be encountered in relation to the definition of the extent of a planning unit. Frequently, and most usually, a planning unit extends to the extent of the title boundaries of the land concerned, but that is not always necessarily the case. It is possible for the facts and circumstances to justify finding that part only of the land in a particular title is used for a particular purpose in terms of planning, just as it is possible for the same assessment to be made in relation to the land in more than one title or parts of more than one title. It is even possible for there to be more than one use of a single planning unit.
3. In relation to this question of the extent of a planning unit, the Full Court of the Supreme Court of Victoria had something to say in its decision in City of Nunawading v. Harrington [1985] VicRp 64; [1985] VR 641 in numbered paragraphs 4, 5 and 7 beginning at lines 14, 19 and 32 on page 645. They read:
   1. Where land may properly be regarded as an integrated whole it is not necessary to show that all of it is used for the given purpose. Where part of the land is unused but part is used for the given purpose, the whole of the land may be regarded as used for that purpose: Eaton & Sons Pty Ltd v. Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270.
   2. Use of land does not necessarily mean physical use: Council of the City of Newcastle v. Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493; (1959) 10 CLR 1; Parramatta City Council v. Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1; Eaton & Sons v. Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, at p.273. These authorities also necessarily established that the use of subject land may serve a purpose of use of other land.
   3. Land kept vacant for use as the needs of a business demand is not of necessity properly designated as land not in existing use but merely intended for future use. Much will depend on the extent of its integration with the land in actual physical use and the nature of the business being conducted: Eaton & Sons Pty Ltd v. Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, at p.274, per Barwick C.J.; Parramatta City Council v. Brickworks [1972] HCA 21; (1972) 128 CLR 1.
4. All this is very interesting but we think that the current use, and the current extent of the planning unit, in relation to No. 73 is simple and plain enough. There is, on that land, a hangar building used for the purpose of a hangar. The land, inside and outside the hangar building is used for the activity of garaging aircraft. There is a considerable area available for that use which is apparently not currently actively used for that purpose. It does not follow from this that it is not available and kept available for that purpose and with a view to its active utilisation for such purpose or purposes and such activities as needed in the future.
5. The delineation of the extent of the current planning unit is a question of fact. We find, on the evidence available to us, that it extends to the whole area of No. 73. Indeed, we think it would be somewhat perverse of us to find otherwise in the circumstances of this case.
6. For these various reasons we consider that no use permission is called for or necessary. Permission for buildings and works is required under the zone provisions, the overlay provisions and the existing use rights conditions, but it is the granting of such permission in relation to the zone provisions that is in real contention. If that contention is resolved in favour of the applicant, and indeed in any event, there is no reason why the other permissions for development should not be granted (save for the confusion that might be created by granting on the one hand and refusing on the other).

Is the responsible authority obliged to follow the advice and recommendations in its officer's reports?

1. The responsible authority is not obliged to adopt and follow the professional advice and recommendations of its planning officers, as set out in the officers' reports. These reviews are so-called "failure reviews" in as much as the responsible authority failed to make a decision before the review proceedings were commenced following expiry of the prescribed time for the responsible authority to make its decision. Nevertheless, the matters were assessed and made the subject of a report to the responsible authority and this report did not contain advice and recommendations.
2. The responsible authority was called upon to bring its own judgement to bear on whether it should grant planning permissions that are sought of it. Planning officers' reports and recommendations are intended to be of assistance to it in the carrying out of this important duty. Frequently, indeed usually, such advice and recommendations are adopted and followed, but occasionally a responsible authority will make a different decision.
3. The advice and recommendations in an officer's report are those things, that is to say, advice and recommendations. The responsible authority is not expected to be "a rubber stamp". It might be anticipated that a responsible authority will pay due regard, and give substantial weight to the advice and recommendations it receives, but where it considers that there is sufficient warrant for doing otherwise, perhaps as a result of special local knowledge, a responsible authority can and should do what it thinks is best. In doing so, it should be exercising its judgement on the town planning issues concerned, not on political considerations like popularity or whether there are a lot of objectors. We think it is probably fair to say that it is the expectation of the community, and of the planning legislation, that the responsible authority will exercise its powers responsibly and that this will mean that it would depart from the advice and recommendations of its officers only where it considers that to be necessary for good, substantial and relevant reasons. However, a responsible authority is not required to give reasons for its decision, but only grounds. A responsible authority may choose to express its reasons in its resolution, but that is not the usual practice, and is not required.
4. The officers' report on these cases contains the mistaken notion that use permission was required in relation to these proposals.
5. In relation to No.86, the conclusion of the officers' report was that permission for use and development should be granted. Contrary to that advice and recommendation, the responsible authority determined to refuse both.
6. So far as No. 73 is concerned, the officers' recommended permission for the development and refusal for the use. The responsible authority determined to refuse both. For the reasons previously given we are satisfied that it is only permission for development that is required. It follows that the responsible authority rejected the relevant advice and recommendation of its officers in relation to that property.
7. So far as No. 114 is concerned, the officers' report recommended refusal in relation to use and development. That is what the responsible authority did.

1. As we have already said, the basic strategic planning that is relevant to this case has long since been put in place. The Tyabb Airfield and adjoining land, including these three sites, are located in a Special Use Zone schedule 3 specifically provided for the purposes of the Tyabb Airfield. This is the only land having that zoning. The airfield has been long established and operated. Although incompatible land uses, or land uses likely to cause problems to each other might be kept apart in accordance with good town planning, an established facility like this one, recognised as it is in the planning and zoning of the planning scheme, takes precedence over later comers. For example, the residential subdivision and development on the east side of Stuart Street has been quite recent. If incompatibility or amenity problems were perceived, such residential development should not have been allowed in such close proximity. That, of course, is a matter for strategic planning and the council in its capacity as planning authority, not as responsible authority, under the planning legislation. This is a situation where the residential newcomers, since they have in fact been allowed to come, must defer to the needs of the airfield, rather than vice versa. That does not mean that the airfield or activities of the airfield should go out of their way to impose unnecessary burdens on users of surrounding land, but it does mean that residential late comers cannot expect to be on an equal footing or to expect that the needs and activities of the airfield will be curtailed or receive only equal consideration to their wishes and desires.
2. The extent to which there may have been failures of strategic planning they are not in relation to the location and continued operation of the airfield. If anything, it has been the lack of consideration of the desirability of separation in allowing close by residential development. The needs and dangers in this respect have been recognised in as much as subdivision has been allowed only on the basis that agreements pursuant to s.173 of the Planning and Environment Act 1987 being made and endorsed on the titles of the residential lots created. These agreements serve the purpose of ensuring that purchasers have notice of the presence of the airfield. Of course, any inspection of the area would disclose the presence of the airfield readily enough. However, the s.173 agreements mean that purchasers cannot be heard to complain that they were unaware of its presence. That awareness was also reflected in high front fences evident in front of recently developed houses built along the east side of Stuart Street. These high fences do not look particularly attractive. We have little doubt that they have been erected in spite of their appearance, as a counter measure in relation to airfield noise.
3. Apart from s.173 agreements these needs and dangers might have been recognised by the imposition of overlay provisions such as Airport Environs Overlay or a Design and Development Overlay.
4. These principles in relation to separation, the continuation of the airfield and its protection from intrusive or demanding neighbours can be found in various policy provisions that we were referred to.
5. We have already mentioned the Special Use Zone and the purpose of the third schedule centring on the importance of the Tyabb Airfield. Clause 4 of the schedule deals with buildings and works. It contains a number of decision guidelines. Some of these relate to matters that might be anticipated such as street character, built form, landscape treatment, interfaced with residential areas, parking, access, loading and service areas, outdoor storage, lighting and drainage. However, they contain at the head of the list (apart from generalised considerations always applicable), a guideline that further recognises the importance of the airfield. It reads:

Whether the proposed development will prejudice the future use of the land as an airfield.

1. Clause 12 in the state planning framework part of the planning scheme deals with metropolitan development including "Transport and freight". This emphasises various transport gateways and links including:
   • Protecting the region's airports from incompatible land-uses.
   • Ensuring that in the planning of airports, land-use decisions are integrated, appropriate land-buffers are in place and provision is made for associated businesses that service airports.
   • Ensuring the planning of airports identifies and encourages activities that complement the role of the airport and enables the operator to effectively develop the airport to be efficient and functional and contributes to the aviation needs of the State.
2. Clause 18.04, also in the state planning framework, deals with airfields including the following:

To facilitate the siting of airfields and extensions to airfields, restrict incompatible land use and development in the vicinity of airfields, and recognise and strengthen the role of airfields as focal points within the State's economic and transport infrastructure.

New airfields should not be located in areas which have greater long-term value to the community for other purposes.

The location of airfields, existing and potential development nearby, and the land-based transport system required to serve them should be planned as an integrated operation.

The visual amenity and impact of any use or development of land on the approaches to an airfield should be planned to be consistent with the status of the airfield.

• Preclude any new use or development which could be prejudice the safety or efficiency of an airfield.
• Take into account the detrimental effects of aircraft operations (such as noise) in regulating and restricting the use and development of affected land.
• Preclude any new use or development which could prejudice future extensions to an existing airfield or aeronautical operations in accordance with an approved strategy or master plan for that airfield.

1. We were referred to other policy statements of less relevance to present purposes. For example, cl.19 of the planning scheme deals with particular uses and development including, at 19.03, Design and Built Form. Reference is there made to the worthy objective of achieving high quality urban design and architecture, and other values. We do not imply that such considerations are not important generally, or in relation to this case. However, they do have to be viewed in terms of this being an airfield around which there are already quite a number of hangars (as might be expected) and in relation to which some new or replacement hangars are proposed. Hangars, by their very nature, have to be large utilitarian buildings. They are generally fairly plain buildings. Sophisticated architectural features and elaboration would be likely to do more harm than good. On the whole, they must be recognised and accepted for what they are.
2. Clause 15 of the state framework provisions deals with environment and cl.15.05 refers to noise abatement. The relevant objective is -

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

1. These provisions do not have particular reference to airfields, or to the Tyabb Airfield; and do not make specific reference to special use zoning to accommodate such facilities.
2. Clause 15.05-2 deals with general implementation in the following terms:

Planning and responsible authorities should ensure that development is not prejudiced and community amenity is not reduced by noise emissions, using a range of building design, urban design and land separation techniques as appropriate to the land use functions and character of the area.

Decision-making by planning and responsible authorities must be consistent with any relevant aspects of the following documents:

• State environment protection policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (in metropolitan Melbourne).
• Interim Guidelines for Control of Noise From Industry in Country Victoria (EPA 1989).
• State environment protection policy (Control of Music Noise from Public Premises).

1. It is important to notice in this connection that the reference is to planning authorities, although responsible authorities are also mentioned. It would appear to be primarily relevant to the planning stage and to planning authorities. It is good planning to avoid problems rather than having to try and cope with them after they have been allowed to arise. Building design techniques, including placement of buildings, orientation of openings in buildings, and the placement of other structures in these proposals have been considered and planned so as to minimise the impact of noise emission, not so much from the new or replacement hangars, as from airfield activities including take-off, landing, warm-up and taxiing that already exist.
2. We are not aware of having been referred to the listed Environment Protection Authority documents as being of specific relevance in relation to these cases, although some guidance may be gained from the SEPP (N-1) in relation to the ground running of aircraft engines.

1. Whilst noise is the central issue in these cases, opposition to the proposals has been based on fallacies and unwarranted assumptions. This fallacious line of thought has been that more hangars will mean more aircraft and more aircraft will mean more flying and thus more noise. It is doubtful whether any link in this chain of reasoning is justified. More hangars do not, of themselves, mean more aircraft. It may only mean, as has been indicated to be the intention in these cases, that aircraft presently stored in the open will be stored within hangars. Furthermore, whether or not these hangars are built, and whether or not existing aircraft kept on the field are to be garaged in new hangars, there is nothing to stop more aircraft being kept on the field. There is plenty of space, and no restrictions on aircraft numbers. There are some restrictions on the movements of large aircraft and jet aircraft, but those restrictions apply anyway and they apply to the aerodrome and not the existing hangar areas. If it is true, as was suggested but not really demonstrated, that increased charges of other airfields such as Moorabbin are likely to cause increased usage of Tyabb, that can and is likely to go ahead, irrespective of whether these proposed hangars are constructed.
2. In fact, evidence advanced on behalf of the applicant indicates that there has not, in fact, been any significant increase in airfield usage over a number of years.
3. The acoustic evidence called on behalf of the applicant indicates that the net result in terms of aircraft noise is likely to be unchanged or even reduced if these proposals go ahead. That is because of acoustic screening due to the proposed placement and design of hangars. The only opportunity for any increased noise is some possibility of some very limited noise due to taxiing where it does not presently occur. However, nearly all taxiing, warm-up, testing, take-off and landing will be able to proceed as normal, whether or not these hangars are constructed. The greatest source of noise, the engine run ups, is largely confined to the designated area of the airfield, an area not relevant to these applications. Engine run ups at No. 73 may occur on the present apron but the extended hangar and apron areas create the option for such activity to be moved further south of the Mornington-Tyabb Road.
4. As we have said, we have no power to impose conditions on the general running of this airfield including the number of aircraft that use it. It is undesirable, and contrary to good planning, that such restrictions should be or should have to be imposed. Whether desirable or not, we cannot impose them where they do not arise from these limited development proposals. As previously noted the sites of these proposals are not even airfield land, although sharing a Special Use zoning. (There is one minor exception to this in as much as it is proposed that, in relation to No. 86, there should be a land exchange for the small area that is currently owned by the club. We do not regard that small exception as being of material importance.)
5. Hangar buildings will provide a degree of acoustic screening so far as activities conducted within them are concerned. In any event, such activities are normally day-time activities and the evidence indicates that they are not calculated to create acoustic problems.
6. Some criticism was sought to be made of the acoustic evidence called on behalf of the applicant saying that the evidence presented was insufficient. As to that, the acoustic expert concerned was available for cross-examination and the other parties, including the responsible authority, were able to call their own evidence. In fact, the responsible authority did call acoustic evidence, but it did not significantly detract from the case presented on behalf of the applicant. Some tame criticisms about further things could have been done in relation to preparing the report of expert evidence, or whether the resulting situation "could be intrusive" have neither diminished the case of the applicant in any significant way, nor advanced the case of those who are opposed to the proposal.
7. Our conclusion is that this primary issue fails as a reason for refusing these proposals.

1. The written submissions on behalf of the responsible authority made reference to discussions and negotiations that have been going on from time to time in relation to a "Fly Neighbourly Agreement" in relation to aircraft use of the airfield. These apparently intermittent discussions have been aimed at trying to achieve agreed arrangements to minimise noise or other impacts of the operation of the airfield on nearby residents. Like the suggestion of a master plan, such arrangements would only be achieved, insofar as they might restrict the use of the airfield, if voluntarily accepted by the club. No agreement has been reached. Perhaps it is understandable that club has a certain reluctance about tying its own hands in that sort of way. It provides "fly neighbourly" advice to airfield users with a request that the advice be followed by pilots with a view to minimising amenity impacts.
2. We can understand that residents, particularly new residents established in close proximity to the airfield, might be raising concerns about the operation of the airfield in spite of the proximity of the airfield having been evident at all relevant times. Agitation and complaints are likely to give rise to the responsible authority feeling a political need to appear to be doing something. Attempts to achieve a fly neighbourly agreement have not been successful, except to the extent mentioned above. Beyond that those attempts are not, in our view, really relevant to our determination of the current cases.

Visual bulk, streetscape and neighbourhood character

1. As we have observed, and as is obvious enough, aircraft hangars are large shed like buildings. They are designed and built for utilitarian purposes, rather than architectural expressions or structures of any particular beauty or interest. They are nevertheless useful and to be expected in the proximity of airfields. The presence of an established airfield creates a particular context and, for that matter, neighbourhood character. Hangars are to be expected and cannot reasonably be objected to simply on grounds of height, bulk, scale and the like. There is no reason why they should be unduly intrusive, ugly or dominant, but these proposed hangars will be well set back from streets affording substantial landscaping areas. Landscaping can provide substantial softening and quite a degree of screening. So far as the No. 73 proposal is concerned, that is hardly called for, at least so far as the new hangars are concerned.
2. Taking this view of the situation, as we do, we see nothing untoward about the proposed structures in terms of visual bulk, size, streetscape or neighbourhood character.
3. Of course planted landscaping takes time to grow. The same is true for the landscaping of the gardens around the new houses in and near Stuart Road. Such an observation is so obvious as to hardly need stating. We would not regard it as a reason to refuse these proposals that views of the new buildings will be more effectively softened and more screened as landscaping develops.

1. An argument was raised as to the expectations of residents. There is not much to be said on this topic. The only reasonable expectation in view of the long standing presence of the airfield, to say nothing of the Special Use 3 zoning, is that there is an airfield here that is well established and intended to remain. It is also a reasonable expectation that it will continue to be used, that its usage may increase, and that, in any event, new facilities such as hangars are to be expected.
2. There is no reason for refusing these hangars based on expectations in this situation.

1. There was but a passing reference to the question of car parking. It arose in circumstances where the responsible authority considered that use permission might be needed on the basis that hangars are to be regarded as being within the land use "Store". We have said why we do not agree with that view. In any event, the responsible authority took the view that there is no shortage of available car parking and that this consideration does not raise a problem. We agree.

1. There was also passing reference to the concept of net community benefit. This seems to have been an attempt to raise the question of a balance between the existence of the airport and of residential uses nearby. The continued existence and use of the airfield is a "given" in the circumstances. This proposal does not establish the airfield, but only the several hangars for which permission is sought. We have not been able to discern any community disbenefit from the construction of the proposed hangars in the circumstances. In terms of community benefit, the interests of residents who have established in close proximity to a long standing airfield must yield to the community benefit inherent in having such a facility. It is a community benefit that it should be maintained and utilised to its potential without being compromised or unduly restricted by new residential uses coming or to come on to land nearby.
2. Suggestions were made, indeed complaints were made, that there is no master plan for the Tyabb airfield. This is raised on behalf of objectors who would apparently like to curtail the use and future development of the airfield. Perhaps a master plan is seen as a means of trying to achieve that where other means of planning control are not available. A master plan would be, as far as we can see, a voluntary restraint which the club might take upon itself. However, it might also be reluctant to do that. In any event, we do not think that the current proceedings provide an opportunity for imposing a master plan, and neither do we see any other means of imposing it.

1. These are "failure" reviews. In other words, they are reviews of the failure of the responsible authority to grant permits within the prescribed time. As such, the responsible authority did not issue a Notice of Refusal containing grounds of refusal prior to the commencement of these proceedings. However, the responsible authority did subsequently determine that it would have refused the applications and did specify grounds. Most of the matters raised in those grounds have been adequately dealt with already and some are of scant relevance or importance. We will set out the grounds adopted in relation to each of the three cases with such further comments as we think warranted.

1. The officers' report recommended approval of this proposal but the responsible authority determined to refuse it on the following grounds:
   1. The proposal does not provide a satisfactory interface with the adjoining residential land located to the east of Stuart Road.
   2. The proposal will significantly impact on the amenity of the area and does not meet the reasonable expectations of residents and the community.
   3. The proposal has failed to demonstrate compliance with clause 15.05 - Noise Abatement.
2. Given the existence and planned continued operation of the airfield, this proposal involving the only demolition of several hangars and the construction of some new ones is quite satisfactory in relation to the interface with adjoining residential land to the east of Stuart Road. Neither the airfield and its operators, nor the proponents of this development are responsible for the development of residential uses in close proximity on the east side of Stuart Road which must have been with the knowledge and expectation of the airfield. Apart from visual manifestations there is no significant impact on the amenity of the area and the visual impact is appropriate in the circumstances. Any expectations of residents or the community to the contrary were unreasonable. We have already dealt with cl.15.05. Whether or not others have failed to comply with it in various ways, that is not true of this proposal.
3. The responsible authority passed a further resolution which in part said:

That if VCAT is of the opinion to support the application, that it is on the basis that there is no net increase in the number of aircraft being stored or capable of being stored on the land, the subject of this application.

1. Firstly, we have no power to impose such a condition. It relates to the use of the land which is not before us. It would not arise from the permission being granted or bear the necessary relationship to it. In any event, such a notion would be contrary to the basic planning which involves the continued use of this airfield and the Special Use zoning in relation to it.

1. In relation to this application, the officers' report recommended approval of the proposed buildings but not of use of the land as a store. The latter question doesn't arise. The only relevant question is the proposed development. The responsible authority determined refusal on the following grounds:
   1. The use of the land to store and operate historic aircraft will significantly affect the amenity of the area through the emission of noise generated by the aircraft.
   2. The application has failed to demonstrate compliance with clause 15.05 - Noise abatement.
2. It is very hard to see any relevant basis for objection to these two proposed hangars, having regard to their proposed construction and location. We find none. As to historic aircraft, it is not material whether they are stored in these hangars or elsewhere on the airfield. If they operate they will not operate in the hangars, but on and from the airfield. That happens now quite lawfully and we have no basis for interfering with that. No further comment need be made about cl.15.05 relating to noise abatement.

1. The following five grounds were adopted by the responsible authority:
   1. The proposal fails to address the interface with the adjoining residential land and the streetscape and will significantly affect the visual amenity of the area.
   2. The proposal is not site responsive and has failed to adequately address clause 21.07-2 - Local Area Character.
   3. The proposal fails to demonstrate compliance with clause 19.03 - Design and Built Form.
   4. The use of the land to store and operate historic aircraft will significantly affect the amenity of the residents in the area through the emission of noise generated by the aircraft.
   5. The application has failed to demonstrate compliance with clause 15.05 - Noise Abatement.
2. We need add nothing further to what we have already said as to interface with residential land, streetscape and visual amenity of the area. The proposal is, in its circumstances, quite appropriate having regard to local area character, design and built form for reasons already discussed. We do not need to add anything in relation to the fourth and fifth grounds mentioned.

1. There is a fundamental disconnection between these proposals and the case put against them on behalf of the objectors. It was said on their behalf that these cases are not about hangars but about the future of the airfield. On the contrary, the case is about hangars and is not about the future use of the airfield. We have examined and explained the distinction. We have also explained why we disagree that there has been a lack of strategic planning, at any rate in relation to the presence and continuance of the airfield. We do not agree that the proposal is premature for this reason. We would not be justified in the circumstances in delaying, apparently indefinitely, these specific proposals on the basis that some further form of future strategic thinking might be implemented. We note in this connection that no Airport Environs Overlay or Design and Development Overlay has been applied to land in the vicinity of the airfield but beyond the Special Use zone. They are matters the council, as planning authority (rather than responsible authority) could consider, but we see nothing about the possibility of these or other strategic planning developments that would indicate refusal of these proposals.
2. Insofar as the case put on behalf of the objectors is really criticising the planning scheme in its present form, there is nothing we can do about that. As was pointed out, although we stand in the shoes of the council, we stand in the shoes of the council in its capacity as responsible authority, not as planning authority.
3. It was said that incremental and piecemeal development of the airfield (in the absence of a master plan) will prejudice the orderly planning of the area. Development has been incremental, and is likely to continue to be incremental. Perhaps incremental is a similar concept to piecemeal development. However, it does not necessarily follow that such development, arising as need arises, is unplanned (in a general sense) or prejudicial to the area or the orderly planning of the area. The fundamental planning is already in place and these proposals conform to it. In any event, strategic planning is beyond our remit. We reject the suggestion that these proposals would be contrary to orderly planning.

_________________ ___________

[1] We were told 1565 but the arithmetic does not confirm that figure.