For the reasons set out above, my legal ruling on the question posed is that:
I am satisfied that the proposed 24 shipping containers constitute the use of 'Store'.
Clause 51.02 makes the use of 'Store' a prohibited use on the subject land.
It does not change this basic situation that the use of 'Store' is a permissive use pursuant to the SUZ4 which also applies to the subject land.
Ironically, at [30] of the applicant's written submission in this legal dispute, the applicant relies on a case (Noordnoorn v Mornington Peninsula SC[2008] VCAT 1588). On a careful reading, this case actually reinforces the basic position which I have just confirmed above. That is, Noordnoorn confirms that where two planning controls apply to a proposal (as here), and one makes the proposal permissive and the other makes the proposal prohibited (as here), "The proposal must comply with both sets of constraints"[5]. Could not have put it better myself!
If one looks at the purposes of Clause 51.02 that I have quoted further above, it should not come as a great shock that this situation has arisen. In the situation where these purposes indicate that Clause 51.02 is seeking to protect the valued environmental and agricultural features of Melbourne's metropolitan green wedge areas from incompatible land uses and promote productive farming of such land, there seems a real argument that '24 shipping containers' is just the type of outcome which these purposes are seeking to avoid in this type of more sensitive location.
For the removal of any doubt, it is irrelevant for the purposes of my ruling:
To what extent Council relied upon Clause 51.02 at the earlier stages of the processing of this proceeding. Rather, as a matter of procedural fairness, the key point is that the parties have been given the opportunity to make written submissions to the Tribunal about this legal ruling (hence I am satisfied that this has been a fair process). Clearly both sides have had a proper chance to put forward their considered submissions on this issue.
Whether or not the use of the proposed 24 shipping containers would have any commercial aspect to it or not, in terms of the application of the defined use of 'Warehouse'. There is no overt suggestion in the defined meaning of that term that a use has to be profit-based, to constitute a 'Warehouse' as defined.
I note that the applicant's written submission highlights (amongst other things) that at her paragraph 49, Member Halliday found that at the time of her decision, the 13 shipping containers which were on the subject land did not constitute "...the land being used for Shipping container storage". For the following two reasons, I consider this finding by Member Halliday to be consistent with my findings above.
If one looks at the definition of 'Shipping container storage' which I have quoted further above, this defined meaning in my view very much focuses on the type of dedicated shipping container storage that you see for example near the Port of Melbourne i.e. very high stacks of presumably empty surplus shipping containers which are temporarily unneeded. This seems a very different situation to the proposal here to use 24 shipping containers on the subject land on the edge of metropolitan Melbourne, presumably for the storage of vehicles or like items.
But also, I have noted above that the proposal before me is for the development of 24 shipping containers, being almost twice more than was before Member Halliday when she made the above-mentioned finding at her [49].
Before closing, I make three final points in passing.
First, I can indicate in passing that it also seems significant that the SUZ4 makes the use of 'Store' subject to the condition that:
[2]
Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.
[3]
Even if I was to put to one side the findings I have made above about the application of Clause 51.02 to this dispute about the use of the subject land, I see major challenges with the applicant being able to show that the proposed 24 shipping containers would satisfy the 'used in conjunction with' condition that applies to the Section 2 use of 'Storage' in the SUZ4. If this condition cannot be met, then the proposed 24 shipping containers would become separately prohibited under the SUZ4.
I refer here in particular to the fact that there seems major doubt whether it could be shown that the 24 shipping containers would be used "...in conjunction with the occupation of a resident of a dwelling on the lot". I refer here to the somewhat confined findings by Member Halliday, about what constitutes a reasonable level of cars/boats/caravans/trailers that she was satisfied could be said to be ancillary to Mr Hycenko's use of the subject land for Dwelling and/or Agriculture (see [45] of Member Halliday's decision).
Second, whilst I acknowledge that Mr Hycenko will presumably be disappointed by my legal finding in this decision, it remains the case that he can lawfully use the subject land for the purposes of Dwelling and Agriculture. In this context, it is my experience as a member and sometimes rural traveller that many rural or semi-rural properties in Victoria feature multiple conventional sized sheds and sometimes one or two shipping containers. Relying on this, it is my impression that (compared to a proposal for 24 shipping containers) it might be more realistic and fruitful for Mr Hycenko to focus on what extent of conventional structures on his property can still be said to be ancillary to its use for Dwelling and Agriculture in this type of semi-rural location. However Mr Hycenko should obtain his own professional advice on this point and this is now an issue for another day (to be assessed on its merits at the time).
Third, for the removal of any doubt, I have for convenience proactively issued this legal ruling on a stand-alone basis. It follows that Member Watson will I expect shortly issue her own final orders in her written decision, as the primary member dealing with this P2467/2018 proceeding.
[4]
[1] I refer here to SM Rickard's decision Hycenko v Mornington Peninsula SC[2019] VCAT 1232.
[3] See the useful summary of the 1045 Burke Road decision at [225] of the recent Red Dot decision of Dept of Environment, Land, Water and Planning v Yarra Ranges SC [2019] VCAT 323.
[7]
[4] It seems unnecessary for me to try to explain the legal point before SM Byard because it is quite involved. Hence suffice to say that it is comparable.
Parties
Applicant/Plaintiff:
Hycenko
Respondent/Defendant:
Mornington Peninsula SC [2019] VCAT 1464
Legislation Cited (2)
Civil and Administrative Act 1998
Environment Act 1987
Cases Cited (6)
Hycenko v Mornington Peninsula SC [2019] VCAT 1464 (19 September 2019)
Whilst this is a much narrower 'question of law' to be resolved, rather than a broader planning merits dispute, it still seems appropriate that I set out some context for the ruling which I need to make here.
The subject land is a large property located at 231 Old Camp Schanck Road in Boneo, with an area of 11.25 hectares. From the previous Tribunal decisions about the site I have read which are as recent as August 2019[1], I understand that the review site features a dwelling, various sheds, a garage, some shipping containers and a significant number of vehicles (as well as small number of the following - trailers/boats/caravans). I further understand that the property can be described as having a rural-residential character, as do other nearby properties, and that the western part of the subject land has a more agricultural character to it and vice-versa.
In terms of relevant previous Tribunal decisions, I have sighted a planning merits decision by Member Glynn for the subject land, being Hycenko v Mornington Peninsula SC[2017] VCAT 1955. That decision involved Member Glynn considering a proposal to construct a 2,854 square metre shed and associated works, including a 1452 square metre equestrian manege.
The Tribunal usefully summarises that the relevant controls affecting the subject land as Special Use Zone Schedule 4 (SUZ4), an Environmental Significance Overlay Schedule 28 (ESO28) and a Vegetation Protection Overlay Schedule 2 (VPO2).
At paragraph 11 of the discussion by Member Glynn, she notes that the Council advocate at the hearing before her (Mr English) submitted that the proposed large shed (which Council opposed) constitutes a 'prohibited use' under of the Planning Scheme. Council otherwise opposed the proposal on its merits.
In the final result, Member Glynn did not see it as necessary to deal with the 'prohibited use' legal argument, but rejected the proposed shed and works on the ordinary planning merits.
I have also sighted a planning enforcement order decision by Member Halliday (who is a legal member), being Mornington Peninsula SC v Hycenko[2019] VCAT 494. This decision involved an application by council that certain enforcement orders be made against Mr Hycenko, in relation to the subject land. As this is a quite detailed decision, I will not attempt to summarise same, but note that it discussed both the features of the subject land and the relevant case law in some detail.
Whilst the gist of the decision by Member Halliday was to essentially grant the planning enforcement orders being sought by Council, she did expressly say at her paragraph 75 that Mr Hycenko should still be given the opportunity to finalise his planning permit application for certain shipping containers to be placed on the subject land.
The most recent relevant decision for this site and Mr Hycenko that I am aware of is that of SM Rickards' decision to allow the amendment of the above-mentioned enforcement order[2]. For my purposes, SM Richards acknowledged that whilst Mr Hycenko has failed to comply with certain aspects of the planning enforcement orders of Member Halliday, real weight should be given to the fact that:
The process was still playing out with Mr Hycenko's request for planning approval to use 22 shipping containers on the subject land.
Mr Hycenko is concurrently seeking approval with his planning application P18/2444 for a proposed farm shed and certain other associated features.
With the benefit of a site inspection, SM Richards helpfully sets out at her [17-18] a description of those relevant items being kept on the subject land. This description is useful for my purposes, particularly as SM Richards has visited the subject land quite recently i.e. presumably sometime between the hearing before her on 5 August and her decision of 16 August 2019.
This brings me back to those more specific circumstances which are more directly relevant to the legal ruling which I need to make, as follows. In his "Application for a planning permit" form dated 25 May 2018, Mr Hycenko made a planning permit application for the following proposal - "Further farming... shipping containers for storage". Council did not support the proposal and issued a Notice of Refusal to Grant a Permit dated 16 October 2018. In terms of what it was refusing, Council described the proposal as follows:
In the following paragraphs of its written submission after [58], Council highlights that the use of 'Store' is 'nested' pursuant to clause 73.04 of the Planning Scheme as being a sub-category of the broader use of 'Warehouse'. Council relies on this in submitting that the use of 'Store' comes within the scope of the prohibition set out in the quoted text immediately above.
Council also relies on the fact that the previous Tribunal decision of Indigo v Carter[2014] VCAT 1273 in its view considers very similar issues, and conceptually came to the same conclusion which Council is advancing here.
Turning to a summary of the applicant's written submissions on this legal issue, I must say that I had some trouble seeking to follow the rather meandering (some might say confusing) narrative of the written submission for the applicant, which seems to take a rather scatter-gun approach.
In the middle part of its written submission, the applicant relies upon the fact that Council did not emphasise any role of clause 51.02 in its earlier dealings with the planning permit application for the proposed 24 shipping containers. At least loosely, the suggestion is that it is now unfair for Council to be seeking to rely on Clause 51.02 at this more advanced stage of this dispute.
In terms of seeking to understand the gist of the applicant's case here, I refer to the 'Conclusion' on the last page of its written submission (being paragraphs 46-51). The main points coming of this conclusion seem:
At [46-47] the applicant refers to passing comments by DP Gibson in Moyne SC v Phillips[2008] VCAT 247 at [6] to the effect that in that case, little in practice turned on what the landowner in question was keeping inside his or her own shed. DP Gibson also in passing referred to the legal expression 'de minimus non curat lex', which translates to 'the law does not concern itself with trifles'.
At [48] the applicant submits that with the facts here, Council should follow 'its own precedent' and maintain 'consistency with its decision making'. It is also argued that pursuant to Section 7(4) of the Planning and Environment Act 1987 (Act), the correct control to apply in terms of the status a 'Store' on the subject land is the SUZ4, not Clause 51.02.
At [49] it is highlighted that under the SUZ4, a 'Store' is a permissive use', provided the accompanying condition is met.
I understand that the applicant is inviting the Tribunal to take the view that this 'permissive' aspect is inconsistent with the Council-preferred position that the shipping containers are prohibited pursuant to Clause 51.02, and that such inconsistency should (as per Section 7(4) of the Act) be resolved by giving priority to the SUZ4 provisions ahead of the Clause 51.02 provisions.
Whilst it is not clear to me whether the point is being made in anything more than a rhetorical manner, at [49] the applicant appears to be also noting that a temporary use of the subject land or a use on the subject land which enjoys 'existing use rights' would also be a lawful use for the purposes of this legal ruling.
At her paragraphs 55-56, Member Halliday observed that the SUZ4 that affects the subject land requires planning permission for the carrying out of buildings and works, and that the certain exemptions which apply are not relevant to the subject land.
At her [57] Member Halliday relies on the previous Red Dot decision of Watson v Monash CC[2011] VCAT 2176, where the Tribunal found that a shipping container is a 'structure' for the purposes of the definition of 'building' in the Act, such that a shipping container required 'buildings and works' approval.
At [58], Member Halliday concludes that planning permission is required for the placing of shipping containers on the subject land and that no such permission had been obtained. Accordingly, Member Halliday found that any shipping containers on the subject land have the status of being unlawful.
It is central to the dispute here and important to understand that where any one planning permit application is made, the planning decision maker in Victoria (usually Council at first instance) needs to assess what planning controls are applicable. Having done this, the initial enquiry should be whether the proposal is prohibited, permissive or as-of-right. In relation to the 'permissive' aspect, it should be ascertained how many 'permit triggers' apply.
It seems fair to say that the more unusual the site and/or the more planning overlay controls that apply, the more likely there will be more than one permit trigger arising. Although with our modern format Planning Schemes in place since circa 2000 it is less common for uses to be designated as 'prohibited', this can still sometimes arise.
The key point here is that permit applicants cannot effectively 'pick and choose' which planning control applies to their planning proposal. It is irrelevant whether or not any one relevant planning control does or does not suit a permit applicant and/or may throw up awkward issues for that applicant. Rather, any one planning permit application must satisfy all of the relevant planning controls which apply to it. This includes the permit applicant establishing that none of these relevant planning controls make the proposal a 'prohibited use'.
To use an example, with a planning proposal for a 'medical centre', if it is fully as-of-right under the Planning Scheme, then in fact no planning permission is needed. If any of the relevant planning controls for that site make a 'medical centre' prohibited, that is the end of the debate. Where say a 'medical centre' use is 'permissive' and mostly straight forward on the planning merits, but throws up one difficult merits aspect under one of the relevant planning controls, the permit applicant needs to make out a fully acceptable planning merits case for the proposal (including justifying that more difficult aspect).
Whilst I would say this is 'town planning common sense', my point here is reinforced by the Victorian Court of Appeal decision of Boroondara CC v 1045 Burke Road Pty Ltd & Ors[2015] VSCA 27. This decision is authority that planning decision making needs to be done in an integrated manner, with regard to all of the planning permit triggers. Following this approach, a permit should not be granted unless all of the necessary permissions can be justified.[3]
Also relevant here is the line of caselaw that permit applicants should not make 'piece-meal planning applications', that only invoke part of the planning permissions which are truly needed for the project in question. The leading decision here is
Returning to the facts in question here, and relying on the preliminary findings that I have made above, the basic position then becomes that for the proposed 24 shipping containers to be approved on the subject land, the applicant needs to convince the planning decision maker that:
The proposal is either 'as of right' or at least permissive under the Planning Scheme.
If it is permissive, that it would be an acceptable planning merits outcome for permission to be granted pursuant to the applicable planning controls i.e. the SUZ4 and Clause 51.02.