Hydro-Chem Pty Ltd v Kingston CC & Anor [2000] VCAT 1656

Mr Colin Taylor, solicitor of the firm of Russell Kennedy, solicitors, appeared for the Applicant Hydro-Chem Pty Ltd.

Mr Colin Bowden, town planner, appeared for Whites Heat Treatment Pty Ltd and its co-respondents.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.

Application under s.114 PE Act for an enforcement order.

Erection of cooling towers without planning permit alleged to be required.

Industrial 1 Zone under the Kingston Planning Scheme.

1. The proposed development is contrary to the Planning Scheme.

2. The proposed development adversely impacts on the amenity of surrounding land uses.

3. The proposed development constitutes a nuisance.

4. The proposed development is contrary to good planning principles.

1. These cases gave rise to some preliminary questions which were debated in the course of the hearing. Mr Taylor, who appeared for the Applicant Hydro-Chem Pty Ltd asked me to give a ruling on these points, if I was satisfied and comfortable to do so, as they would determine these proceedings if I found against him in relation to them. That would avoid the need to then proceed with the hearing on the merits and the calling of expert witnesses whose attendance he had arranged for later in the hearing.

2. After a full hearing of the points involved, and I acknowledged the assistance that Mr Taylor in particular provided to me to test out propositions put and to consider all that could be put on behalf of the Applicant, I announced my decision and gave oral reasons. The decision was against Mr Taylor and the result is that the application for review and the enforcement order application will be dismissed.

3. I do not propose to repeat here verbatim what was said in relation to reasons. However, I will give a summary outline.

4. The Respondent, Whites Heat Treatment Pty Ltd (Whites) conducts a factory on the land. The factory treats metal components with heat to harden them. Some of the material processed are machinery parts and others are portions of golf clubs. The product remains in the same shape and form after treatment as it was before, but it becomes harder.

5. Mr Taylor raised a question as to whether this was really an industrial process, but after hearing the above particulars, he conceded that it was.

6. The cooling towers are a fixed machine within a rectangular housing with metal sides mounted on metal legs at about head height in the driveway beside Whites' factory building. It appears from the photographs that a person or a vehicle could walk or drive under this machine. In the top of the machine there are two vertically exhaust fans. Although erected outside the main factory building there are pipes running to and from it and the device appears to be fixed in place on its supporting structure. There are also pipes and a ladder like attachment to the side wall of the factory building which further secure the cooling towers in position.

7. The cooling towers machine is not for cooling air, but for cooling water that becomes heated in the course of the manufacturing process.

8. The current Kingston Planning Scheme, according to its Clause 61.04, began on the date specified in the schedule to that clause which was the 22 December 1999.

9. The current Planning Scheme has been framed in accordance with the Victorian Planning Provisions in the PE Act. It supersedes the earlier Kingston Planning Scheme. The cooling tower structure was erected and has been used since before the coming into operation of the current planning scheme. At the time of its installation it was the earlier scheme that applied.

10. Mr Taylor concedes that, for his clients proceeding to succeed, he must persuade me that Clause 120-4 of the earlier planning scheme applied to the installation of the cooling tower facility.

11. Under the earlier planning scheme the land was zoned General Industry. In that planning scheme there was a distinction between light industry and general industry. Both were Section 1 uses under the table of uses in Clause 120-1.1 and as such no planning permit was required for the commencement and carrying on of either light or general industry. There was a condition applicable to general industry, but it is not relevant for present purposes.

12. There was no provision in the zone controls in relation to general industry, which are to be found in Clause 120 of the earlier Kingston Planning Scheme, requiring a permit for the construction of buildings and carrying out of works. There was, however, an unusual control in relation to building materials. That control is Clause 120-4, mentioned earlier. It reads:-

This clause applies only to Area C as defined in Clause 101A.

Except with a permit, the external walls of a building must be of brick, stone, concrete or other masonry.

13. It is common ground that the premises at 31 Viking Court, Cheltenham are within Area C as defined in Clause 101A.

14. Mr Taylor argued that the cooling tower structure is a building within the meaning of the earlier planning scheme. In this connection he relied on the definition of building in the Regional Section of that earlier planning scheme. It reads:-

v A structure and part of a building or a structure.

v Fences, walls, out-buildings, service installations and other appurtenances of a building.

v A boat or a pontoon which is permanently moored or fixed to the land.

15. This is an inclusive rather than an exhaustive definition. In other words, the items listed are included in the word building, for the purposes of the planning scheme, in addition to whatever else "building" would mean in any event.

16. It is clear that the word building as so defined includes things which would not be regarded as buildings within the ordinary English usage of that word. A boat or pontoon is not, in ordinary usage, a building. Nor is a fence. In fact the inclusion of structure extends the meaning of building beyond its ordinary meaning as does part of a building or appurtenance. On the basis of this extended inclusive definition a television antenna might be regarded as a building.

17. I am satisfied, as I have said during the hearing, that this cooling tower structure is a building within the extended inclusive definition of that term in the earlier planning scheme.

18. I am also satisfied that the extended inclusive definition includes items that are not buildings in ordinary usage and, furthermore, includes things as buildings that do not have walls.

19. It is probably quite possible to have buildings in the ordinary sense without walls. A carport or a hay shed would, I think, normally be regarded as being buildings, even although they do not, or may not, have walls. They may or may not have a floor. They do have a roof and they have posts or poles to hold up the roof. I reject Mr Taylor's suggestion that such a pole or post is a wall. It is, in ordinary usage, merely a pole or post. A wall is a vertical structure on the side of a building to exclude wind and weather.

20. Although I accept that the elevated cooling tower box in this case is a building because it is a structure, I do not think it is a building within the ordinary meaning of the word and I think it is a structure and a building that, like some others, does not have walls. The carport and hay shed are examples. A fence, defined in the planning scheme to be a building, is another example of a building that does not have walls. Many others can be thought of. A flag pole is an appurtenant still building, as is a television antenna. They do not have walls. All this is relevant because of Clause 120-4. I have already noted that it applies to building materials, rather than buildings and works generally. It controls only materials to be used in one aspect of buildings. That aspect is walls. Walls must be of brick, stone, concrete or masonry, unless a permit is granted. Thus, within Area C, a building wall to be constructed of corrugated iron or weatherboards, requires a permit. However, if the particular building concerned is a type of building that does not have walls, then it follows that the control relating to the materials to be used for external walls does not apply. One cannot construct the walls of a flag pole or a hay shed in brick, stone, concrete or masonry if it does not have walls. Equally, one cannot construct the walls of a cooling tower in brick, stone, concrete or other masonry, if it does not have walls. Furthermore, one is not required to obtain a permit to construct such external walls of something other than brick, stone, concrete or masonry, if no such external walls are contemplated.

21. As a matter of passing interest, the photographs show that behind the Hydro-Chem factory next door, at 27 Viking Court, there is a building that has no walls, or at least no wall on three of its sides. It is visible down the driveway of the Hydro-Chem factory. Both these factories are constructed of bricks and each has its driveway on the common boundary. Toward the rear of the Hydro-Chem driveway there is clearly visible a roof supported on posts but with no walls front or back or on the Whites' side. There may be a portion of this building that is enclosed by walls further away from the Whites' property, screened behind the main brick building of the Hydro-Chem factory. Be that as it may, the parking or storage area, or whatever it is used for, that is visible at the head of the driveway, is clearly another example of a building with no walls. If it had walls, then they would be required to be of brick, stone, concrete or other masonry unless a permit or some other external wall material had been obtained.

22. Mr Taylor argued that the sides of the cooling tower, that is to say the metal sides of the housing in which the machine operates, should be regarded as the walls of a building. I do not agree with this submission. I am not sure as to the vertical height of these metal sides. The photographs produced suggests that these sides may be less than a metre in height, or perhaps in the order of a metre in height. Their lowest edge is at about 3m or a little more above ground level and their upper edge at 4m or a little higher. I consider these sides to be the sides of an elevated machine fixed in position at about 3m above ground level, but not the "walls" of a building.

23. As the cooling tower structure does not have "walls", I do not think that the restriction on the building materials to be used for external walls applies to it and thus no permit is required under Clause 120-4 to have plate or sheet metal constituting its sides.

24. I am also satisfied that Clause 120-4 of the old planning scheme, relating to building material for external walls of buildings concerns the external appearance of buildings in this Area C, and not to other considerations. It controls wall materials, but only in relation to external walls. It is like an old "brick areas" by-law under the Local Government Act. You have to build in brick stone, concrete or masonry, unless you obtain a permit, and this requirement is to uphold and maintain a good quality of factories in this General Industrial Zone. You cannot here, unless you obtain a permit, have a Nissen hut or galvanised iron wall to factory or a timber workshop. The result is that the Hydro-Chem factory and the Whites' factory and others nearby and opposite are all in brick and present a better appearance than would otherwise be the case.

25. I reject Mr Taylor's suggestion that there are or may be other policy considerations behind Clause 120-4 in the earlier planning scheme. He suggested that brick stone, concrete or masonry sides, even if elevated at 3m, might have a greater acoustical screening affect than the sheet or plate metal sides that exist at present. That may or may not be the case, but acoustical screening is not the reason for the imposition of the control on the building materials to be used for the external walls of buildings in this area. Acoustical screening is not needed for an industry that happens to be silent or almost silent. I suggested the example of lace making. Also other building materials are as acoustically effective or more effective than brick, stone, concrete or masonry. Thick steel plates would be at least as effective. Battleships have very thick armoured steel plates, not for the purpose of acoustic screening, although such material would be very effective in that respect.

26. The result is that the cooling tower structure, erected under the earlier planning scheme in a General Industrial Zone did not require a permit under Clause

120-4 or otherwise. On this basis there is no contravention of the earlier planning scheme by erecting it without brick stone, concrete or masonry wall and without a permit under Clause 120-4. Insofar as the contravention alleged in the application for an enforcement order relies on absence of such a permit, the enforcement order application must fail.

27. In fact the Responsible Authority did not really accept that a permit was required under Clause 120-4, but in an excess of caution accepted an application for such a permit. The application contains a declaration dated the 4 July 1997 and was received by the Responsible Authority on the 10 July 1997. The Responsible Authority determined to grant a permit and issued a Notice of Decision to Grant a Permit on the 1 April 1998. That decision was to grant a permit allowing:-

To vary the building materials of a cooling tower on this site, in accordance with plans to be submitted pursuant to Clause 1 hereof.

28. The plans to satisfy condition 1 were to be plans generally in accordance with the plans submitted with the application but modified to show:-

Provision of an external colour schedule for all external surfaces of the cooling tower structure.

29. Apart from that requirement as to colour the plans were to be in accordance with the application plans which showed the elevated cooling tower structure and did not provide for brick, stone, cement or masonry walls.

30. If its sides were to be regarded as walls of a building, then permission was to be granted by the contemplated permit for them to be not of brick, stone, concrete or masonry.

31. Hydro-Chem had been an objector and on the 20 April 1998 appealed to the Administrative Appeals Tribunal against the decision of the Responsible Authority to grant the permit.

32. The Administrative Appeals Tribunal was the predecessor of the Planning List of this Tribunal. There have been delays in relation to finalisation of the appeal, which form of proceeding, since the advent of this Tribunal, has been known as an application for review. Several dates were fixed for hearing but there were adjournments. Since then the new planning scheme has come into force.

33. The application for review must be decided under the planning laws as they stand at the time of the determination. Thus it is the new planning scheme which would be applicable. However, there never was a need for a permit under Clause 120-4 of the earlier planning scheme for the reasons I have given, and it has no equivalent under the new planning scheme. There is, in relation to Industrial 1 Zone, a general requirement of a permit for buildings and works. However, the cooling tower structure was lawfully constructed before the coming into operation of the new planning scheme and so that permit requirement is inapplicable.

34. Hydro-Chem is concerned about the cooling tower because of complaints made on its behalf that the machinery is noisy to such an extent as to create a nuisance because of its impact on the neighbouring land, including the offices ancillary to the Hydro-Chem factory that are, apparently, on the Whites' side of the Hydro-Chem factory building. There is also some complaint about vibration and dust.

35. Noise, vibration and dust can amount to a nuisance at common law. Whether, in a particular circumstance, such things are a nuisance, depends on the circumstances, the nature of the area and uses of land in the area and the degree and frequency of the occurrences complained of. The question of nuisance, whether at common law or statutory nuisance as, for example, under s 40 of the Health Act, are matters for the courts, and not for this Tribunal.

36. The so called "conditions for light industry" under the earlier planning scheme meant that emissions of noise, vibrations and dust could, depending on degree, mean that the industry causing those affects was general industry rather than light industry. That is all very interesting, but the previous zoning of this land was general industry, and it followed that industry within that zone did not have to comply with light industry conditions in relation to noise, vibrations, dust and the like.

37. It appears that the new Industrial 1 Zone is the nearest equivalent of the earlier General Industry Zone. Industry, without the distinction between light and general industry, is a Section 1 use not requiring a permit provided that, amongst other things, the amenity of the neighbourhood is not adversely affected by the emission of noise, vibration, dust and certain other things. An industry that does not satisfy that condition will not be a Section 1 use and will fall under Section 2 of the zone controls so that a permit is required. However, for present purposes, there is no application here to commence the use of the land for industry. On the contrary, it commenced previously under the General Industry zoning of the earlier planning scheme. Under the existing use provisions it is entitled to continue. Mr Taylor agrees with this proposition.

38. In the circumstances, and for the reasons given, the application for an enforcement order will be dismissed. In relation to the application for review of the decision to grant a permit, the review is allowed, but on the basis that no permit is or was required. Therefore no permit is granted, but that does not inhibit the continued use of the land in its present style. It appears that Hydro-Chem's remedy, if it has one, will have to be in relation to nuisance proceedings in court.