a. 2 fully registered vehicles per occupant of the dwelling (for their private use and for commuting between the land and their place of work); and

c. A reasonable number of caravans, trailers and boats which are in good working order and which are actively used from time to time in association with the use of the land for a Dwelling and Agriculture.

The motor vehicles, trucks, trailers, boats and other items which may be retained on the land pursuant to order 1 above are to be stored (where possible) inside the garage adjoining the dwelling and inside the two enclosed, lockable sheds on the land. Where the motor vehicles, trucks, trailers, boats and other items cannot be stored inside these structures, they must be stored close to the dwelling (or the two sheds) and covered in a tarpaulin or car cover (where possible).

The requirements of order 1 may not be varied on an ongoing basis without the written consent of the responsible authority.

Except with the authorisation of the Tribunal in proceeding P2467/2018 (or unless there is an order of the Supreme Court to the contrary) Mr Victor Hycenko must remove all shipping containers from the land no later than 60 days after:

(a) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning permit application P18/0981 for 24 shipping containers.

(b) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the responsible authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/0981.

By no later than 7 June 2019, Mr Victor Hycenko must:

(i) in the north-west corner of the land, adjacent to Old Cape Schanck Road and north of the driveway that leads to the dwelling; and

1. Mr Hycenko has not complied with order 1 in that no motor vehicles, trucks, trailers, boats and other items have been removed from the land by 7 June 2019 which date has now well and truly passed.
2. Mr Hycenko says he has complied with order 5 in that he has moved or reduced the earth mounds. This was disputed by the council, but nothing turns on that as this order was not being sought to be amended.
3. Mr Hycenko seeks the following additional amendments said to be to order 1 but in my view appear to relate more to order 4 and which will be more evident from the comments given later in this determination:

(c) The Responsible Authority has determined to approve the planning application P18/2444 for a planning permit for the development of a proposed farm shed, indoor riding arena, b & b building, short term horse agistment and proposed olive grove ("the planning application").

(d) The Responsible Authority has refused the planning application and the Tribunal has affirmed the Responsible Authority's decision to refuse the planning application P18/2444 for application for the development of a proposed farm shed, indoor riding arena, b & b building, short term horse agistment and proposed olive grove ("the planning application").

(e) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the Responsible Authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/2444.

1. Planning application P18/2444 was referred to by the Tribunal in its consideration of the enforcement order, but it is understood the planning application had only recently been sent to the council. The Tribunal did not make any reference to it in the specific enforcement orders.
2. The amendment request was drafted by the applicant on the basis that the council had not made a decision relating to planning application P18/2444. That has now changed with the council determining to refuse the application as recently as 2 August 2019. It is understood the applicant intends to seek a review of the decision in the Tribunal and it is expected that such an application, to be lodged in the near future, will require advertising as this was not carried out by the council.
3. The review process will therefore be required to run its course and may take some time. In the meantime, Mr Hycenko seeks the additional orders to allow for both his applications, that is in relation to the shipping containers and in relation, in particular, to the farm shed to be fully dealt with before he is required, if it comes to pass, to remove the shipping containers.
4. The council strongly opposes the amendment. The council submits the proposed amendment is seeking to in effect retry the original enforcement order application. In this respect reference was made to the determination in Australian Native Landscapes Pty Ltd v Yarra Ranges SC[2] which noted that an application under section 121 of the Planning and Environment Act 1987:

opportunity to retry a matter that has been already heard and determined...

an opportunity for a rehearing to enable a party to amend a case where the party has subsequently regretted having omitted or overlooked some evidence or argument that could or should have been advanced at the original hearing.

enables adjustment to enforcement orders to accord with changed circumstances or, for that matter, circumstances that had not been appreciated or fully appreciated at the time the enforcement order was made.

1. Whilst it appears the planning application in relation to the shed was briefly referred to at the hearing of the original enforcement order, this application was in its infancy and now several months after the hearing this application has only recently been determined by the council. Mr Hycenko appeared on his own behalf and as a lay person is not expected to understand the various nuances of permit applications. I disagree with the council's view that this is an attempt to retry the original enforcement order application. Rather I see it as seeking to, as referred to in Australian Native Landscapes Pty Ltd, rely upon 'circumstances that had not been appreciated or fully appreciated at the time the enforcement order was made'.
2. As highlighted in the previous Tribunal determination 'at least 13 cars are stored inside at least 13 shipping containers'. These vehicles were previously described by Mr Hycenko as most of his 'collectable vehicles' (hobby vehicles).
3. The applicant indicated he had submitted a Land Management Plan as part of planning application P18/2444. I was taken to one particular section which referred to 'proposed farm structures' which in particular relates to the farm shed, included in the planning application:

Construction of a 90m x 22m farm shed at site 1 is proposed to enable the landowner to use approximately 70% of the enclosed area and 40% of the open undercover area for farming purposes.

The dimensions of the shed are: fully enclosed 67.5 metres long and 21 metres wide surrounded by open shed and veranda, which bring the total roof area to 90 metres by 28 metres wide.

The enclosed part of the shed is divided into five sections. Areas of:

• 30 metres long by 21 metres wide will be utilized for parking of farm machinery, storage of farm equipment, and space for fodder and feed concentrates for equine business clients' use (45% of shed space).
• Seven and a half metres long by 21 metres wide will provide storage for olives (fruit) and house the olive oil press and bottling plant (11% of shed space).
• 15 metres long by five metres [by] wide will store horse riding equipment and tea room (5% of shed space).
• 16 metres long by 15 metres wide will be a farm and general workshop (17% of shed space).
• 21 metres long by 15 metres wide will be allocated for hobby vehicle storage (22% of shed space).

1. The applicant submitted it was necessary to allow for an amendment to the enforcement order to allow for the appeal process to be finalised in relation to planning application P18/2444 as the proposed farm shed is required for the storage of farm machinery and 'hobby vehicles'.
2. The council submits there is no nexus between the removal of the shipping containers, if this is the determined outcome, and the approval of the farm shed. Neither can be used as a 'store'.
3. In the Tribunal's enforcement order, there is no requirement for the removal of any farm machinery from the land. Whether the existing farm machinery is located within a shed or not is not dependent on the outcome of planning application P18/2444. Although it was noted that equipment used as farm machinery was generally already located within the existing sheds on the land.
4. The Tribunal in determining the enforcement order made several findings including:

17. It is clear from the evidence of the responsible authority's officers (and from my inspection of the land and Mr Hycenko's submissions) that there are various types of motor vehicles and other items being stored on the land, including the following;

1. On the order of 30 motor vehicles which are stored out in the open, including cars (approximately 5 of which are covered in tarpaulins or car covers), vans, trucks, and a bus. Most of the motor vehicles that are uncovered do not have registration plates, although 2 of these uncovered motor vehicles have 'club' registration plates of the type issued by VicRoads under the 'club permit' scheme restricted to historic vehicles; and
2. At least 13 cars inside at least 13 locked shipping containers; and

1. In the order of 11 vehicles inside the garage and the two locked sheds; and

1. In the order of 3 caravans, a small sailing boat and several trailers.

18. The motor vehicles (including those inside the shipping containers) and other items which are not kept inside the garage and the two sheds are stored in various locations on the land, including south of the dwelling on the land, and in an area of approximately 100 metres in length and about 2000 square metres in area located adjacent to the northern boundary of the land with the adjoining property at 219 Old Cape Schanck Road.

19. From the evidence of the responsible authority's officers and from my inspection of the land, I find that there are mounds of earth in the north-west corner of the land, adjacent to Old Cape Schanck Road and north of the driveway that leads to the dwelling, and also adjacent to the northern boundary abutting 219 Old Cape Schanck Road. Mr Hycenko stated to an officer of the responsible authority that he placed the earth mounds there in around November 2016, in an area around where the dam is going to be.

1. The Tribunal's order 1 identifies the requirement to 'remove all motor vehicles, trucks, trailers, boats and other items from the land', except as specified under order 1 (a), (b) and (c).
2. At paragraphs 28-31 the Tribunal concluded the number of vehicles stored on the land was not ancillary to the use of the land for a dwelling and agriculture. In this respect the Tribunal found that 'the use of the land as a Store has surpassed its use for the purposes of a Dwelling and Agriculture and has become a separate (and not ancillary) use of the land'. The Tribunal concluded at paragraph 53:

I find that the keeping of more than 2 vehicles per occupant of the dwelling and 10 other vehicles is a separate use of the land as a Store and in a contravention of the Scheme.

1. The Tribunal at paragraph 75 considered it appropriate to provide Mr Hycenko with time to finalise his application for review to the Tribunal in relation to the shipping containers. The Tribunal stated:

... I observe that it is not a matter for me to assess whether or not Mr Hycenko will obtain permission to construct 24 shipping containers or a shed on the land. If Mr Hycenko is successful in obtaining such permission, it may be possible to reconsider what number of vehicles are ancillary to the predominant uses of the land.

1. Mr Hycenko has not removed any vehicles from the land as stipulated in order 1 of the Tribunal's enforcement order. The date for the removal has passed. Mr Hycenko appeared to believe that if he is granted a permit for the shipping containers and for the farm shed, he will be able to retain all 'motor vehicles, trucks, trailers, boats and other items' as referred to in order 1. This is an incorrect presumption of Mr Hycenko, as the Tribunal was clear that, but for the specified items under order 1 (a), (b) and (c), all other vehicles etc must be removed.
2. The date for removal, 7 June 2019 has long passed. It would be open for the council to take immediate action in the Magistrates' Court for breach of this order. In my view, and having discussed this with the parties, it is appropriate that Mr Hycenko be given a longer period of time to comply. This may assist in allowing at least one of the permit applications to be determined.
3. The council considered Mr Hycenko could be given until 6 September 2019 to remove the additional vehicles. Mr Hycenko requested at least 3 months' additional time. I have concluded that the order be amended to allow Mr Hycenko at least 3 months from this hearing to remove the vehicles.
4. Although Mr Hycenko may live in hope that he will not have to remove all vehicles, not specified by the Tribunal in order 1, as he will either have a permit for shipping containers, a farm shed or both that he can 'store' the vehicles in. I point out to Mr Hycenko that the Tribunal has already determined that the number of vehicles, etc on the land far exceeds what could reasonably be considered to be part of a hobby and therefore ancillary to the use of the land as a dwelling. In such circumstances it is unlikely that the Tribunal, at some future time, will allow all of the vehicles to remain as being ancillary to the use of the land. Whilst the Tribunal in its previous determination considered the number of vehicles regarded as ancillary may slightly change, it is unrealistic for Mr Hycenko to believe he will be allowed to retain all vehicles. I say this as a 'store' is a prohibited use[3] within the area in which the land is located and 'storing vehicles' within shipping containers or a farm shed would only be permitted if ancillary to the use of the land as a dwelling or for agriculture.
5. I have therefore considered in the circumstances, that order 1 should be amended to give Mr Hycenko some time to remove the surplus motor vehicles etc from his land, keeping in mind that the Tribunal has allowed a certain number of vehicles to remain on the land, as specified in order 1.
6. I will amend order 1 to read as follows:

1. By no later than 6 November 2019, Mr Victor Hycenko must remove all motor vehicles, trucks, trailers, boats and other items from the land except for:

1. 2 fully registered vehicles per occupant of the dwelling (for their private use and for commuting between the land and their place of work); and
2. 10 cars, trucks, vans and other motor vehicles;

1. A reasonable number of caravans, trailers and boats which are in good working order and which are actively used from time to time in association with the use of the land for a Dwelling and Agriculture.

1. I have noted the Tribunal's comments regarding the reconsideration of the number of vehicles to remain on the land dependent on whether a permit is obtained for the shipping containers, as well as the farm shed. I therefore consider that given the recent refusal by the council in permit application P18/2444 and the expected application for review, the requested amendment based on my comments above would be more appropriate to be included in order 4 rather than as indicated by the applicant in order 1. I will therefore allow the amendment.
2. The amendment of the order will allow Mr Hycenko additional time for the removal of the shipping containers if he is unsuccessful in relation to order 4 (a) and (b), that is until such time as application P18/2444 is fully determined. Whilst council considered there to be no nexus between the retention of the shipping containers and the farm shed, allowing the shipping containers to remain until the determination of the farm shed allows Mr Hycenko to retain his 13 collectable or hobby vehicles that are stored within the shipping containers until he can resolve whether they are ancillary or not to the use of the land as a dwelling.
3. Order 4 will now read:

Except with the authorisation of the Tribunal in proceeding P2467/2018 and any additional proceeding in relation to permit application P18/2444 (or unless there is an order of the Supreme Court to the contrary) Mr Victor Hycenko must remove all shipping containers from the land no later than 60 days after:

(a) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning permit application P18/0981 for 24 shipping containers.

(b) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the responsible authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/0981.

(c) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning application P18/2444 for the development of a proposed farm shed, indoor riding arena, b & b building, short term horse agistment and proposed olive grove ("the planning application").

(e) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the Responsible Authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/2444.

1. The council has sought its costs fixed in the amount of $4,500 in relation to Mr Hycenko's application for amendment of the enforcement order.
2. The application is opposed by Mr Hycenko.
3. The council submits the application for amendment has 'no tenable basis in fact or law'. Further it would be unfair to require the 'general body of ratepayers to bear the costs incurred by council'.
4. The application by the council has been made on the basis that the application 'was doomed from the outset to fail' and, as such, the application is 'a waste of time and costs'.
5. Given that Mr Hycenko has been successful in amending the enforcement order it cannot be concluded that the application was doomed to fail or that the application has no tenable basis in fact or law.
6. Mr Hycenko is entitled under section 121 of the Planning and Environment Act 1987 to make an application to amend an enforcement order.
7. The application for costs is refused.

Use of land as a Store in contravention of clause 37.01-1; unauthorised buildings and works contrary to clause 37.01-4 of the Mornington Peninsula Planning Scheme.

1 By no later than 6 November 2019, Mr Victor Hycenko must remove all motor vehicles, trucks, trailers, boats and other items from the land except for:

1. 2 fully registered vehicles per occupant of the dwelling (for their private use and for commuting between the land and their place of work); and
2. 10 cars, trucks, vans and other motor vehicles;

1. A reasonable number of caravans, trailers and boats which are in good working order and which are actively used from time to time in association with the use of the land for a Dwelling and Agriculture.

2 The motor vehicles, trucks, trailers, boats and other items which may be retained on the land pursuant to order 1 above are to be stored (where possible) inside the garage adjoining the dwelling and inside the two enclosed, lockable sheds on the land. Where the motor vehicles, trucks, trailers, boats and other items cannot be stored inside these structures, they must be stored close to the dwelling (or the two sheds) and covered in a tarpaulin or car cover (where possible).

1. The requirements of order 1 above may not be varied on an ongoing basis without the written consent of the responsible authority.
2. Except with the authorisation of the Tribunal in proceeding P2467/2018 and any additional proceeding in the Tribunal in relation to permit application P18/2444 (or unless there is an order of the Supreme Court to the contrary) Mr Victor Hycenko must remove all shipping containers from the land no later than 60 days after whichever is the later:

(a) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning permit application P18/0981 for 24 shipping containers.

(b) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the responsible authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/0981.

(c) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning application P18/2444 for the development of a proposed farm shed, indoor riding arena, b & b building, short term horse agistment and proposed olive grove ("the planning application").

(e) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the Responsible Authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/2444.

1. By no later than 7 June 2019, Mr Victor Hycenko must:
   • (a) Remove the earth mounds located as follows:

(i) in the north-west corner of the land, adjacent to Old Cape Schanck Road and north of the driveway that leads to the dwelling; and

1. The applicant must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

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

[2] [2009] VCAT 2561

[3] Clause 51.02 Mornington Peninsula Planning Scheme