1. The applicants and the respondent/responsible authority agree that the following facts are not disputed:
   • (1) The subject land is known as 678 Chiltern-Barnawartha Road, Barnawartha, more particularly described as Crown Allotment 12, Section 19, Parish of Chiltern, being the whole of the land contained in Certificate of Title Volume 4845 Folio 950.
   • (2) Since 23 January 2010, the applicants have been registered as the joint proprietors of the subject land.
   • (3) The subject land is within the municipal district of the Indigo Shire Council and is subject to the provisions of the Indigo Planning Scheme.
   • (4) The subject land is subject to the reservations, exceptions, conditions and powers set out in the crown grant that relate to mining. There is no section 173 agreement or registered restrictive covenant that affects the subject land.
   • (5) At all relevant times, and at least since 22 January 2010 (Amendment VC65), the subject land has been subject to the following planning controls under the provisions of the Indigo Planning Scheme:
     • 5.1 Rural Living Zone (clause 35.03);
     • 5.2 Schedule to the Rural Living Zone;
     • 5.3 Environment Significance Overlay (clause 42.01);
     • 5.4 Schedule 3 to the Environment Significance Overlay;
     • 5.5 Development Plan Overly (clause 43.04);
     • 5.6 Schedule 5 to the Development Plan Overlay.
   • (6) The subject land is approximately 7.4 hectares in area and presently, amongst other things, there is a dwelling and two sheds situated on the subject land.
   • (7) Attachment 1 to this statement is a copy of aerial photographs of the subject land, extracted from Nearmaps, dated 20 August 2014.
   • (8) On 6 April 2011 the Council received planning application P11-0072, which proposed the development of the two sheds that are presently situated on the subject land.
   • (9) The planning application form described the proposal as being for a garage (Garage) near the house and a farm shed (Shed) to store tractors and hay. It also described the use of the subject land at that time as being for the purpose of a 'single dwelling'.
   • (10) On 11 May 2011, the Council issued planning permit PP11-0072, which allowed the subject land to be 'developed by the construction of two sheds in accordance with the endorsed plans and the following conditions.'
   • (11) On 11 May 2011, three plans were endorsed under planning permit PP11-0072. Those plans show the Shed as 300m2 in area on a reinforced concrete slab 37m from the southern boundary of the subject land and 23m from the eastern boundary of the subject land.
   • (12) On 8 May 2012 the plans endorsed under planning permit PP11-0072 were amended to allow an increase to the size of the Shed from 300m2 to 353.7m2.
   • (13) Attachment 2 to this statement is a copy of planning permit PP11-0072 and the endorsed plans dated 11 May 2011 and 8 May 2012.
   • (14) The Shed was constructed on the subject land in approximately November 2012.
   • (15) Shortly prior to the erection of the Shed, a graded gravel hardstand area was constructed on the subject land around where the Shed was to be constructed.
   • (16) The gravel hardstand area was constructed to provide a level, free draining area around the Shed. No planning permission has ever been sought or granted for the gravel hardstand area.
   • (17) Amongst other things the gravel hardstand area was to provide an area to store various items including farm machinery. It was also, and continues to be, used to park the applicant's prime mover and semi-trailer(s) when not in use.
   • (18) Until sometime during the latter part of 2012, Mr Carter had a contract with a corporation forming part of the Toll Group. The contract was for Mr Carter's freight transport business and allowed seven prime movers and a number of semi-trailers to be parked at the Wodonga Logic Centre, which is situated in Alberston Road, Barnawartha North.
   • (19) The contract was not renewed and since approximately late 2012 or early 2013 the following activities have been, and continue to be, carried out on the subject land:
     • 19.1 when not in use, and most typically over weekends, up to eight prime movers and a number of semi-trailers used as part of Mr Carter's freight transport business are parked on the gravel hardstand area on the subject land;
     • 19.2 while driving the prime movers during weekdays as part of Mr Carter's freight transport business, the drivers of the prime movers leave their personal cars parked on the gravel hardstand area on the subject land;
     • 19.3 the Shed and containers situated on the gravel hardstand area are used to store spare parts, machinery and materials;
     • 19.4 the Shed and the gravel hardstand area are also used to carry out regular safety checks and to service, maintain and carry out repairs exclusively to the prime movers and semi-trailers used as part of Mr Carter's fleet, including the changing of trailers;
     • 19.5 the service, maintenance and repairs of the prime movers and semitrailers used as part of Mr Carter's fleet, is carried out on weekends during daylight hours, but may also occur on weekdays and early evenings. A mature aged mechanic apprentice is employed as part of Mr Carter's freight transport business and if required he also drives trucks. A mobile mechanic also attends the subject land from time to time.
   • (20) Attachment 3 to this statement is a copy of photographs showing the subject land, Shed, the gravel hardstand area and some of the activities carried out on the subject land.
   • (21) On 14 March 2013 planning permit application PP13-0052 was lodged with the Indigo Shire Council which proposed to use the subject land 'to park B. Double vehicles'.
   • (22) On 13 June 2013, Indigo Shire Council advised the applicants that if the vehicles are not parked within a building, the use of the subject land for this purpose is prohibited in the Rural Living Zone.
   • (23) On 20 August 2013 planning permit application PP13-0052 was deemed by the Indigo Shire Council to have lapsed and the planning application fee was refunded to the applicants.
   • (24) By letter dated 12 June 2014 from Russell Kennedy on behalf of the Indigo Shire Council the applicants were requested to show cause why enforcement proceedings should not be commenced in relation to the use of the subject land.
   • (25) On 4 July 2014 planning permit PP14-0112 was lodged with the Indigo Shire Council which proposed the use of the subject land for the purpose of 'Vehicle store and ancillary vehicle servicing/repair purposes'. A proposed Development Plan, dated 2 July 2014, was submitted together with planning permit application PP14-0112.
   • (26) On 22 July 2014 Council issued a Notice of Refusal in respect of PP14-0112. The covering letter dated 30 July 2014 also advised that the Indigo Shire Council did not consider the Development Plan to be satisfactory.

1. The qualified mechanic comes to the site to carry out other repairs and maintenance or to assist and direct the apprentice as required. That does not mean that other repairs might have to be carried out elsewhere.
2. Although the shed is a substantial one it is by no means sufficient to house all the commercial vehicles when they are on site, for example, over a weekend. They are kept out of doors on the hardstand area where drivers cars are kept when the trucks are abroad. The condition specified in the table of uses that I have mentioned calls for internal 'storage'. The commercial vehicles are not kept in buildings when on site. If compliance with indoor storage turns out to be necessary it may be possible to build new buildings although the extent of buildings required may well be prohibitive and therefore impractical.
3. Administrative work such as bookkeeping etc in connection with the business is carried out onsite although that is not mentioned in the agreed statement of facts.
4. Mr William Bartley, the solicitor who appeared on behalf of the responsible authority, pointed out this omission and that it had not been agreed by his client. Nevertheless, I do not suppose that the responsible authority would be in a position to contradict the statement as to administrative work, and in any event it does not materially alter the case.
5. Like cleaning, maintenance and running repairs; administrative work is a common ancillary activity in relation to businesses of the sort being conducted by Mr Carter.

What is meant by 'Depot' or 'contractors depot'?

1. In its glossary of words and phrases 'Planning and Environment Victoria' (the Green Book) published by LexisNexis (the law book publishers) the following is found at [435,665.93]:

Land used as a place for parking or garaging commercial, earthmoving etc vehicles and machinery used for work elsewhere has been held to be a "depot" rather than a "Store" as defined in cl 74 of the VPP planning schemes. The essential difference is between parking or garaging on the one hand, or storing goods as a place to keep them until sold or relocated for use or display for sale etc. The vehicles and equipment are not used on the site, but collected by employees for relocation to work sites and for later return for garaging until again required. The land may or may not have buildings on it, administrative work in relation to the business may be carried out on the land, and incidental repairs and maintenance might be carried out on the land without changing the land use. This land use is not defined in the VPP planning schemes, but is rather an "innominate" use in terms of the planning scheme and the various tables of uses applying to various zones within planning schemes. There can be various types of depots such as contractors depot, cartage contractors depot, earthmoving contractors depot, municipal depot, etc. The concept is discussed in Andsand Pty Ltd v Kingston CC No.2 [2009] VCAT 2506 at [21]-[42] and other cases referred to therein and in [2.95.35] Plant v Casey CC (2011) 40 VPR 47; [2010] VCAT 1699.

1. That quotation contains an attempt to encapsulate the notion of a contractors depot. On that understanding Mr Carter's business is cartage contractor and the base of the business on the review site is a cartage contractors depot. However, there are some complications that I will need to deal with.
2. I note that the above quotation refers to several different sorts of depots or contractors depots. In the course of the hearing I was referred to over 20 previous cases, most of them dealing with the notion of contractors depot and distinguishing it from Vehicle store and other potentially relevant land use terms. I have read the relevant parts of all of those decisions. I note that the list of the sorts of contractors depots appearing in the above quotation is incomplete. The cases referred to include a number of other sorts of contractors depots including, for example, fencing contractor and Telstra pit, construction and maintenance contractor.
3. It is quite possible for one business to involve more than one form of contracting. For example, a business might be an earth moving contractor and a cartage contractor using the one base or depot.
4. On the face of it the notion of contractors depot is one land use, whether it be fencing contractor, earth moving contractor, cartage contractor or whatever. However, the present case will raise a problem in relation to cartage contractors having regard to the planning scheme definition of 'Vehicle store' to be discussed below.
5. But for that complication, I would take it as obvious that Mr Carter's land use is cartage contractors depot. I do not think that the essential nature of the land use changes with whether it happens to be a cartage contractor or an earth moving contractors depot or some other form of contractors depot. In the case of a single depot for both earth moving and cartage contracting I would regard this as one land use, not two.
6. If it were not for the definition of Vehicle store in clause 74 of the planning scheme this would have been a simple and straightforward preliminary hearing.
7. I notice that the definition quoted from the Green Book includes the phrase 'parking or garaging'. Having read the cases mentioned above and considered present problems I think that 'garaging' is the preferable word and that 'parking' in that context creates avoidable doubt.

1. The first proceeding is an application by the responsible authority for an enforcement order in relation to Mr Carter's use of the land. It alleges use as a 'Store' as defined in clause 74 of the planning scheme. As previously mentioned, clause 35.03 of the planning scheme contains the zone provisions in relation to the relevant Rural Living Zone. Clause 35.03-1 contains a table of uses in relation to use of land in that zone. The table is divided into three sections. Section 1 contains land uses can be lawfully carried on without a planning permit provided that any condition specified in the table is complied with. Section 3 of the table contains land uses that are prohibited and for which permission cannot be granted. Section 2 lists those land uses that are lawful if a valid planning permit exists for such use. Some of the uses in section 2 are accompanied by a condition or conditions set out in the table. In those circumstances the condition must be complied with, in addition to the obtaining of the relevant land use permit. If the condition is not or cannot be complied with, then the land use, notwithstanding its appearance in section 2, becomes a prohibited section 3 use for which a permit cannot be granted.
2. The land use 'Store', although in section 2, is subject to such a condition (to be discussed below). However, in any event, Store would require a planning permit. No such permit exists.
3. An initial response of Mr Carter has been that the land use is not 'Store' but 'Vehicle store' as also defined in clause 74. His subsequent position is that his land use is really contractors depot. That expression is not defined in clause 74 of the planning scheme. It is a so called 'innominate' use, in other words, one that is not named or defined in the table of uses or in the land use terms in clause 74. The last item in the list in section 2 of the table of uses reads:

Any other use not in Section 1 or 3.

1. An innominate use such as contractors depot comes within that last item. Consequently it is a section 2 use, so far as the table of uses is concerned, and requires planning permission.
2. No planning permission currently exists for use of the land as 'Vehicle store' or 'contractors depot'. Consequently, however it might be classified amongst the land uses argued for, a permit is required and is lacking. The current use of Mr Carter's land as a base for his cartage business is in contravention of the planning laws. To be lawful it requires planning permission. As a result, Mr Carter has applied for such permission. That has given rise to the second proceeding.

1. Mr Carter has applied for a planning permit to use the land for Vehicle store. This is the second proceeding. It seeks a review of the refusal by the responsible authority to grant the permit applied for. As previously mentioned, it is now contended on his behalf that Mr Carter's land use should be characterised as contractors depot rather than Vehicle store.

1. This review under s 149 of the Planning and Environment Act 1987 (PE Act) has been applied for by Mr Carter. This results from a realisation that the Development Plan Overlay applies to the land. Pursuant to that overlay permits are not to be granted to use or subdivide land until a development plan has been prepared to the satisfaction of the responsible authority, see clause 43.04-1[4]. Any permit that is granted must be generally in accordance with the development plan and must include any conditions or requirements specified in a schedule to the overlay[5].
2. At this stage, no development plan under the overlay has been approved by the responsible authority or declared by it to be to its satisfaction. On the contrary, the responsible authority has expressed dissatisfaction with the plan presented to it.
3. In the absence of such a development plan, the permit sought by the second proceeding cannot be granted. Consequently the third proceeding has been commenced to obtain approval or responsible authority satisfaction to the development plan proposed by Mr Carter. This application for review refers to his current use and proposed continuing use as contractors depot.

1. Clause 71 of the planning scheme provides that a term in the planning scheme has its ordinary meaning unless the term is defined in the planning scheme or the PE Act or the Interpretation of Legislation Act 1984. However, the definitions in the Acts yield to any contrary definition in the planning scheme.
2. What then is meant by 'ordinary meaning'? As previously observed, many English language words and expressions have multiple meanings. The ordinary meaning must mean the ordinary English language meaning but in the relevant context in which the word or expression appears. Thus a word carrying multiple meanings must be given that meaning, that ordinary meaning, that applies in the relevant context.
3. Dictionaries are frequently useful in this connection however a good dictionary will list several different definitions for a word that has more than one meaning. Again, it is necessary to distinguish which of those definitions is the appropriate one in the context. Furthermore, it sometimes occurs that a word, in its relevant context, is not defined in a dictionary. That can more particularly be so in relation to a concise dictionary, but this can occur with large dictionaries too. The English language is continually evolving and existing words can take on new meanings and a particular meaning in a particular context may nevertheless be overlooked by lexicographers[6].
4. There can be a variety of different contexts. One of many is that, for the purposes of Victorian planning schemes, we are concerned with Australian English where it might differ from United Kingdom English or other varieties of English. In some instances the context might be Victoria or a part of Victoria.
5. The word 'park' can be a noun or a verb. In some of its usages it is more common in England and rare if extant in Australia. For example, the first definition of park in The Concise Oxford Dictionary of Current English 5th edition commences with park as 'Large enclosed piece of ground, usu. with woodland & pasture attached to country house etc...'. The Macquarie Dictionary 2nd revised edition commences with definitions more relevant in this country although the third one reads:

3. Chiefly Brit. A considerable extent of land forming the grounds of a country house.

1. The interpretation of words in particular contexts is not always as simple as it might sometimes appear.
2. I have been using the term 'contractors depot' in an attempt to distinguish it from other usages of the word 'depot' such as fuel depot or milk depot where goods are kept for wholesale or retail sale and distribution. That is quite a different concept to that of a contactors depot where vehicles or machinery are kept whilst not in use until required for use again and nothing is sold.

1. Clause 74 of this and all Victoria Planning Provisions planning schemes[7] deals with land use terms. It contains an extensive table in four columns. Before the table there are seven paragraphs or groups of paragraphs of text dealing with interpretation and the operation of the table.
2. The table is in four columns. The first column contains land use terms to be defined. The second column provides the definition in relation to each of the defined land use terms. Some land use terms appear in the first column and are thereby recognised as a land use although no definition is provided in the second column. Perhaps some of the terms are so obvious as not to need definition. In any event, some such terms are included because of the operation of the third and the fourth columns.
3. The first paragraph under clause 74 recognises that the list of land use terms in the table is not exhaustive. There are land uses and land use terms that do not appear in the table at all. The last sentence in that paragraph reads:

However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously and commonly included in one or more of the terms listed in the table.

1. It therefore appears that a land use term that appears in the table is to be preferred if it is 'obviously and commonly' applicable rather than that the land use should be regarded as an innominate one that is different to the nominated and defined one.
2. However, this only applies where the land use is 'obviously or commonly' included in one of the land use terms listed in the table. The table is not exhaustive and this implies that there are other land uses not included in the table. Where a land use is not obviously included in one of the terms in the table or not commonly included in one of those terms, it is not to be forced into a land use term that is in the table. Some land uses are obviously not included in the table and some are not commonly so included.
3. When it comes to the characterisation of land uses the very well known High Court case of Shire of Perth v O'Keefe[8] is to be borne in mind. That case indicates that the characterisation is to be in accordance with the real and substantial purpose for which the land is used to be determined by an examination of the use as a whole rather than a separate consideration of each activity that might be part of the use. The question is one of fact and degree. Some cases may be perfectly clear whilst others, near the centre of a spectrum of possible uses, may be less clear and even a matter upon which reasonable views could differ. Of course the name of the proposed term and any definition are relevant but a land use is not to be characterised under a particular term and definition if it is obviously not within the relevant concept and not commonly accepted as such.
4. The structure of the table can be helpful and important in this task. A badly worded definition can be misleading and may cause confusion.
5. The structure of the table is obvious from the table itself and from the preliminary paragraphs of clause 74, reinforced by the so called 'nesting diagrams' in clause 75. These diagrams set out, in diagrammatic form, the interrelationship of terms in the table. If there is inconsistency between the diagrams and the text and table in clause 74, the latter is to prevail. I am not aware of any relevant inconsistency for present purposes.
6. The term 'nesting' is perhaps an odd one to have been used in this context. When this aspect of the Victoria Planning Provisions was in contemplation, seminars were held and a suggestion was made that a much clearer form would be to refer to boughs, branches, twigs and leaves on a tree. This is to explain the situation where some of the defined land use terms are broad and contain various subcategories. In some instances the subcategories contain sub-subcategories of themselves. None of this implies that a general land use term contains only its listed subcategories. There may be other examples. The same applies in relation to the subcategories. Lists of subcategories and sub-subcategories are not exhaustive.
7. The headings of the four columns in the table are 'Land Use Term', 'Definition', 'Includes' and 'Included in'.
8. The effect is obvious enough from the table itself. It is reinforced by the nesting diagrams, and it spelt out in the preliminary paragraphs or goups of paragraphs of clause 74. The fourth such group has a heading and text as follows:

Terms which specifically include other listed terms

A term listed in the first column, under the heading 'Land Use Term', which has other terms listed beside it in the third column, under the heading 'Includes', includes[9] any term so listed in the third column and any term included within that term in the third column, but does not include any other term listed in the first column.

A term listed in the first column which has other terms listed beside it in the third column may also include other terms which are not listed in the first column.

All terms listed in the third column are also listed in the first column.

1. I emphasise the use of the word 'includes'. An interpretation which excludes rather than includes is not correct. That has arisen in some of the submissions in the present case.
2. The fourth column contains land uses within which the first column use is included. For that to operate the first column use must be a subcategory of a broader term.
3. An illustration of all this is 'Exhibition centre'. It is included in 'Place of assembly'. In other words, it is a variety of place of assembly. There are other subcategories of Place of assembly that appear in the table and there may be other places of assembly that do not appear in the table at all.
4. Exhibition centre itself includes two subcategories namely 'Art gallery' and 'Museum'. Accordingly art gallery and museum are subcategories of exhibition centre and exhibition centre itself is a subcategory of place of assembly. Art galleries and museums are exhibition centres. They are particular examples thereof. Exhibition centres are places of assembly. They are a particular variety of place of assembly. Art galleries and Museums are not only that but they are varieties (sub-subcategories) of Exhibition Centre.
5. This notion of inclusion as opposed to exclusion appears in the wording, not only of the fourth groups of paragraphs of clause 74, but also in the fifth, sixth and seventh. I do not think that there can be any real doubt as to what 'includes' and 'included in' mean in this context in spite of some submissions to the contrary.
6. I note in passing that the third paragraph in clause 74 uses the expression 'ordinary meaning' in its heading and in its text. I have already discussed that notion in relation to clause 71.

1. The land use 'Store' appears in the relevant table of uses for the Rural Living Zone. It is a subcategory of (that is it is included in) the wider land use term 'Warehouse'. It is part of what is called the 'Warehouse group' in the nesting diagrams see clause 75.15 of the planning scheme. It is one of five such subcategories, the others being Commercial display area, Fuel depot, Mail centre and Milk depot.
2. Store itself contains five subcategories (each of which can be regarded as a sub-subcategory of Warehouse. The relevant one for present purposes is 'Vehicle store'. The others are Boat and caravan storage, Freezing and cool storage, Rural store and Shipping container storage. There may be other subcategories of Store and other subcategories of Warehouse, but each of those mentioned appears in the clause 74 table and all of them, except for Freezing and cool storage are defined in that table.
3. Those requiring consideration for present purposes are Warehouse, Store and Vehicle store. They need to be considered in terms of their definitions, in relation to each other and in relation to the notion of contractors depot.
4. The land use 'depot' in that sense is well known and well established in planning. Although not mentioned or defined in clause 74 or in tables of uses for various zones under the Victoria Planning Provisions planning schemes, it was well known and defined in many planning schemes that pre dated the introduction of the Victoria Planning Provisions. The question arises as to whether that recognised and quite important land use is now to be found in the Warehouse group as a Store or Vehicle store, or whether it is to be regarded as a separate innominate use.
5. The current relevant clause 74 definitions are as follows:

Land used to store or display goods. It may include the distribution and wholesale selling of the goods.

Land used to store goods, machinery, or vehicles.[10]

Land used to park or store vehicles in connection with a goods or passenger transport business.

1. I note that the definition of Store refers to 'goods, machinery or vehicles'. In the eyes of the law, vehicles are goods and so is machinery unless permanently affixed to the land in which case it is regarded as a fixture and part of the land rather than as a chattel or goods.

1. Whilst Store appears in section 2 of the table of uses for the Rural Living Zone, it is subject to a condition and is only a section 2 use if that condition is met. Otherwise it becomes a section 3 or prohibited use.
2. The condition reads:

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.

1. The condition imposes several requirements but one of them is that the goods being stored must be stored in a building. As previously noted, the vehicles used in connection with Mr Carter's business are kept on the land when not otherwise in use, but not in a building. Furthermore, it is doubtful whether it is feasible to house them in a building. For present purposes the condition is not met. On that basis the current use is a prohibited section 3 use for which permission cannot be granted, and not a section 2 use for which a land use permit can be granted.

Does the condition apply if the use is 'Vehicle store'?

1. The view of the responsible authority is that Vehicle store is a variety of Store and as such is covered by that land use in section 2 of the table of uses. On that basis the condition applies, whether the land use is regarded as Store or Vehicle park. The condition applies to all stores including all subcategories thereof. If the condition was not intended to apply to Vehicle store, then the specification of Store in the table would contain an exemption such as 'except for Vehicle store'. In those circumstances Vehicle store could then appear separately in the list of land uses in section 2 without the condition. That practice is quite often followed in the drafting of the contents of tables of uses and should have been adopted here, if that had been the intention. It would be wrong to regard the 'included' use of Vehicle store as not being a Store and not subject to the condition.
2. I am satisfied that this approach is correct and that the contrary one, urged on behalf of Mr Carter, is untenable. I think that the word 'includes' as well as the whole structure of clauses 74 and 75 preclude that approach.
3. It was argued that the definition of 'Vehicle store' is different to the definition of Store. Of course it is, but that does not prevent it from being a Store so long as there is no incompatibility between the definitions. A German Sheppard is a particular variety of dog, and so is a King Charles Spaniel; but they are both dogs. A prohibition or condition applying to dogs generally applies to all dogs including all German Sheppards and all King Charles Spaniels.
4. It is argued for Mr Carter that Vehicle store is really a quite distinct land use, separate from Store.[11] It is said that Vehicle store includes the parking of vehicles where Store 'excludes' such parking. It was submitted that the Carter use is plainly not a Store and it was claimed that the definition of Vehicle store means that it is 'not a perfect fit' when nested with Store.
5. Several cases are cited in this connection, and in particular Gormacile Pty Ltd v Kingston CC[12]. The reasons in that case discuss Store at [26] to [30] with some discussion of Vehicle store at [33], [34] and subsequent.
6. Paragraph [28] of the reasons in that case says:

[28] The important distinction between Vehicle store and Store is that the former includes and the later excludes the parking of vehicles. Although a Vehicle store is nested within a Store, a Vehicle store is not perfectly nested in this sense. It means that even if a use is not a Vehicle store it does not necessarily follow that it is a Store.

1. With respect, I am unable to agree with this.
2. I recognise that there are real difficulties with the clause 74 definition of Vehicle store and how it is worded. However, I consider that there are even greater difficulties with an interpretation that says that Vehicle store, though repeatedly said to be 'included' within Store is nevertheless actually excluded from that concept. It runs contrary to the whole scheme of clauses 74 and 75. I do not think that the problem can be accounted for by asserting imperfect nesting in circumstances where it is clearly and actually nested or included within Store.
3. I fear this is one of the circumstances where there is a piece of drafting in the planning scheme that makes it difficult or perhaps impossible to happily reconcile all provisions, one with another. Whichever way one goes, and whatever interpretation is adopted, there are some parts of these definitions that appear to be irreconcilable. I think that the fault, if fault there be, has to be in the drafting of the definition of Vehicle store, and not with the whole scheme of clauses 74 and 75 with its notions of subcategories being included in broader categories and sub-subcategories included within such subcategories.
4. In paragraph [29] of the Gormacile reasons go on to refer to a decision of mine, namely Andsand Pty Ltd v Kingston CC (No.2)[13]. That case concerned a use which is essentially similar to that of Mr Carter but proposed for land in a Green Wedge Zone. It is pointed out that I accepted a distinction between storing goods and parking or garaging of vehicles.
5. That is true. I regarded the passive keeping of goods in a store as something distinct from the keeping of goods that are in continuing use during intervals when they are not being used. Hammers and hacksaws and other tools are being stored in a warehouse pending their distribution to hardware retailers. That is quite different to a carpenter or a motor mechanic leaving his tools of trade, that he uses day by day, in his utility or workshop or back porch when not actually engaged in using them. They are kept but not 'stored' if words are used correctly. Mr Carter's weekend keeping of his commercial vehicles is analogous to the carpenter's tools at rest on the Sabbath, rather than them being retained passively in the store pending some new evolution in their history.
6. If I was writing the reasons in Andsand (No.2) now I would draw the distinction between storing goods and garaging vehicles and I would leave out the reference to 'parking'. It is an ambiguous expression with more than one meaning, some of them wide and some of them narrow. It is also liable to be misleading.
7. The word 'parking' might be used in relation to any situation where it is left standing without a driver. That could be in the street, in a car park, on private land, at a depot and so on. Such usage may be observed in careless speech. To make sense of these provisions and these definitions I think it is necessary to avoid such loose use of language and to be more precise with regard to the true essence of terms being employed.
8. I said earlier in these reasons that I was employing the word 'kept' as a neutral one in relation to vehicles not in use. In Andsand (No.2) I was trying to distinguish between storing of vehicles and garaging of them. At least I did use the word garaging, as I find I have done in other decisions in the cases to which I was referred.
9. I notice that in Yarra Ranges SC v Hunter[14] the word 'garaging' was used in relation to a similar use to the Carter business and 'parking' was avoided when garaging was intended. In that case it was the 'garaging' of two trucks. An issue in that case was whether the keeping of one truck associated with a business at a residential property in the course of using it to commute to work was an ancillary part of a residential use or a home occupation as defined in the planning scheme. It was said, in that connection, that:

Once more than one vehicles (sic) used for carrying goods for hire or reward is shown to be regularly garaged there, unless at the activity is ancillary to another use of the subject land, the definition of 'transport depot' is met.

1. That was a pre VPP planning scheme which contained a definition of Transport Depot transcribed in paragraph [24] of the reasons in that case and the following terms:

Transport Depot means a building or land used for the garaging and/or parking of motor vehicles used for carrying goods and/or persons for hire, or reward, and may include the transfer of goods and/or persons from one vehicle to another, but does not include the storage of goods.

1. It is a virtue of that definition that it maintain a clear distinction between the storage of goods and the garaging of vehicles that are not being 'stored', even if it does include the word 'parking' in relation to motor vehicles. With the notion of storage of goods, whether they be vehicles or any other goods, the passive keeping of them is an end in itself. This is to be contrasted with a depot or other place of keeping (such as the carpenter's toolkit) where such keeping is ancillary to some other purpose and where the essential purpose is not the mere keeping, but is the active use such as moving contractors business or cartage contractors business, to which the keeping is ancillary. The ancillary keeping of vehicles, even if confused by saying that it is 'parking' of them, as opposed to 'garaging' of them, is something different to 'storing'. It is also different from the strict meaning of 'parking' as will be seen below.
2. Of course that definition does not appear in the VPP planning schemes or clause 74 thereof leaving transport depot and similar depots as innominate use and raising the question as to whether they are within the definition of Store, Vehicle store or the innominate contractors depot.
3. I mention Hunter's case here because I note the care in use of words employed by the Tribunal in that case where 'garaging' can be distinguished from both 'storage' and 'parking'.
4. I would now refer to the keeping overnight and at weekends of vehicles at a contractors depot as garaging rather than parking or storing.
5. I have already distinguished between storing and garaging. What differentiates parking?
6. When a vehicle is garaged, whether within a building or not, it has completed one journey and awaits the commencement of another. Although often loosely used, when precision is applied to 'parking' it can be seen to apply to a temporary leaving of a vehicle, probably unattended by its driver, in the course of a journey. It is something that happens in the course of a yet to be completed excursion between when it left its place of garaging and when it returned to that place at the end of its journey or excursion. It may be parked several times in the course of one journey or excursion, but that is a different notion to that of garaging.
7. Storing, in relation to vehicles, would clearly cover a situation like the paddocks at the rear of General Motors in Dandenong or on the road to Geelong where multiple examples of new vehicles are stored pending distribution to retailers. Although you might say they are parked there, they are really stored. The same might be said in relation to vehicles kept for sale at the premises of a car dealer, at a used car yard, or perhaps even at motor wreckers.
8. Whilst happy enough with these differentiated and carefully considered (rather than loosely expressed) definitions they do not altogether resolve the problems raised by the wording of the definition of Vehicle store as it currently appears in clause 74 of the planning scheme. I know that definition has stood for a long time, but it has also caused a lot of difficulties, doubts and problems. A reconsideration of its wording, and the possible desirability of including a definition of contractors depot or the like might be warranted. I will analyse the present wording in due course. In the meantime I would now draw the Andsand (No.2) distinction between storing goods and garaging vehicles (which are goods) omitting reference to parking because of the confusion and ambiguity that it introduces.
9. Gormacile does not disagree with the distinction and points out that Plant v Casey CC[15] followed it. Gormacile at [30] accepted the characterisation in Andsand (No.2) and Plant as being a depot or contractors depot. However, at [45] Gormacile sought to distinguish De Hann v Casey CC[16]. De Hann is a case in line with the others that I think are correctly decided in relation to contractors depot. At [45] the Tribunal in Gormacile said:

I rely on the Tribunal's reasoning in De Hann that the proposal is not a depot or, more particularly a contractor's depot, primarily because there are no administrative, repair or maintenance functions carried out on the land.

1. I too agree with De Hann however I must respectfully disagree with Gormacile on this point. It is relevant to ask, in relation to a business said to be a contractors depot as to what is the essential element or elements warranting that characterisation. What, in terms of Shire of Perth v O'Keefe is the 'real and substantial' use of the land and what are the elements that constitute that use?
2. It is obvious from many of the definitions of land use terms in clause 74 that some elements are essential to a particular definition whilst others are optional extras. A currently relevant case in point is 'Warehouse'. A Warehouse, as the definition says, is 'land used to store or display goods'. That is the essence of it. The definition goes on to say 'it may include the distribution and the wholesale selling of the goods'.
3. It does not have to include the distribution or the wholesale selling of goods. They are optional extras. A warehouse is just as much a warehouse if it lacks those elements.
4. In the course of a hearing the sponge cake parallel was employed. This involved the consideration of two sponge cakes. One is a simple sponge cake that is not cut through the middle and has no jam, cream, icing or candles. The second is cut through the middle, has jam and cream between its upper and lower halves, is iced and decorated with candles. The jam, cream, icing and candles are optional extras so far as the fundamental notion of sponge cake is concerned. The first example is just as much a sponge cake as the second, and the second is just as much a sponge cake as the first.
5. The same applies in relation to a contractors depot. The essence of it is that it is the base for a contractors business whether an earth moving contractor or a cartage contractor or whatever. It is a place where vehicles used in connection with the business are garaged when not in active use for the purposes of the business. The carrying out of administrative work, maintenance and running repairs are entirely optional. A land use that is a contractors depot is just as much a contractors depot if there is no administration, repairs or maintenance, and so is a contractors depot that includes those facilities. They are ancillaries, indeed optional ancillaries, to the real and substantial use and they are not definitive of what that use is.
6. I have mentioned that I find some difficulty with the definition of Vehicle store. My difficulty is the inclusion of the alternatives in the phrase 'park or store'. If the definition included the word 'store' but did not mention 'park or', all would be well. After all, Vehicle store, as its name suggests, is a store, a place of passive keeping; and it is included in the broader concept of 'Store'. To recall, Store is land used to store goods, machinery, or vehicles. In other words, it is land used to store goods. Vehicle store is land used to store goods but restricted to vehicles. Why is the word 'park' included? Is it an ill considered inclusion?
7. If the definition included goods only it would clearly not apply to Mr Carter's contractors depot. Depending on the interpretation of parking, the inclusion of that word raises doubts.
8. It is a rule of statutory interpretation that effect should be given to all the words in the provision if that is possible. Prima facie the inclusion of both parking and goods joined by the word 'or' should mean that each of those conjoined words have a meaning that is, at least to some degree, different as a result of the inclusion of each of them. They may be entirely different or they may overlap, but parking should mean something that storing does not and vice versa.
9. I have not been able to discern an intelligible distinction in this instance. If land is used to park cars it would be a 'Car park'. That land use is defined in clause 74 as follows:

1. I think this must mean the parking in the narrower and more precise sense that I have distinguished above. A cartage contractors business, like that of Mr Carter, is not essentially about providing a car park or, for that matter, parking of vehicles in a Vehicle store. It is certainly not storing them.
2. I think that the gist of Vehicle park has to be that it is a particular variety of Store namely a Store for the storing of vehicles and that the inclusion of a notion of parking of vehicles has to be read as if parking used here means a form of storage or simply means storing.
3. The dilemma is not, I think, to be overcome by observing that a Store will have staff and may have other business people or customers who might park (in what I have discerned to be the precise sense) their vehicles when visiting or coming to the place for work purposes. Such parking is a mere incidental or ancillary of whatever the primary use of the land is. It is part of the primary use and not a separate and distinct land use in those circumstances.
4. I realise that my resolution of this dilemma is not a felicitous one that fits in all respects. It is, however, the best I can do in the circumstances.
5. I consider that the real and substantial purpose of the use of Mr Carter's land (apart from his residential use of it) is not as a Warehouse or a Store or a variety of a Store namely a Vehicle store. It is a different land use that does not partake of storage in its essential elements and which must now be regarded as a separate distinct innominate use, notwithstanding that a number of pre VPP planning schemes specifically catered for and defined such uses.
6. I say this notwithstanding the difficulties of the definition of Vehicle store including the requirement of connection to a goods or passenger transport business. I fear that the wording is mistaken when it refers to parking and perhaps even in its reference to transport business. Perhaps a definition of Vehicle store, separate from Store, is not really needed. The present confusion arises because Vehicle store is a variety of Store yet its definition includes not only the notion of Store, but also notions that are incompatible with Store.

1. Having read the various cases referred to I will summarise them but in my view the correct characterisation of Mr Carter's business is cartage contractors depot and not Vehicle store.
2. As such it is an innominate use within section 2 of the relevant table of uses free of the condition that applies to Store in that table.
3. However, if the correct characterisation had been Vehicle store, then, being included within Store, it would have been subject to the Store condition. On that basis, the current use would be prohibited and no permit could be granted.
4. As things stand, on the basis of the conclusions I have reached, it is open to the Tribunal to grant a permit for cartage contractors depot subject to whatever conditions might be appropriate, or to refuse to grant such a permit, in accordance with whatever view it takes of the planning merits of the proposal.
5. However, there is a condition precedent imposed by the Development Plan Overlay. Such a permit cannot be granted until there is a development plan to the satisfaction of the responsible authority and then only on the basis that the proposal being permitted will accord with that development plan.
6. Accordingly there are two planning merits questions to be considered in relation to the second and third of the proceedings before the Tribunal. It appears appropriate that a hearing should be fixed for their consideration. The enforcement application should be listed at the same time but, unless there is some urgent reason to the contrary, I anticipate that it can be held in abeyance until the decision is made on the approval of a development plan and the granting of a cartage contractors depot land use permit.
7. At the hearing before me it was indicated that it was thought that the appropriate way to proceed would be to fix an administrative mention a convenient time ahead so that the parties can consider what submissions they would wish to make in relation to the future conduct of these proceedings.

1. As yet I have not dealt with the submission made on behalf of the responsible authority that Mr Carter's business is, in fact, two land uses the second being motor repairs. That land use is defined in clause 74. It is included in 'Service industry' and it includes 'Panel beating'. It is defined as follows:

Land used to repair or service motor vehicles, and includes the fitting of accessories.

1. It was suggested on behalf of the responsible authority that, because repair and servicing of motor vehicles takes place, there is this second and distinct use of land.
2. I am satisfied that this submission is incorrect. This cartage contractors depot does not look for or receive business repairing or maintaining vehicles belonging to the public generally, but only to the vehicles of Mr Carter used in the course of his contracting business. As such, these activities are ancillary aspects of the cartage contractors business. They are quite typical of such businesses. They are not essential but they are part of such businesses and not distinct land uses in the circumstances.
3. The Gormacile case previously referred to is unusual in that the business there contemplated involves the keeping of commercial vehicles belonging to a variety of persons or businesses, and not just vehicles belonging to the person or company conducting the site. It is not necessary, for present purposes, for me to go into whether that circumstance has an effect upon the characterisation of the use in that case. It may make no difference if depot facilities are being offered to a variety of customers needing such facilities. Whether that be so or not, I do not think that the land use in that case would be transformed into two uses, with one of them being motor repairs, unless motor repair facilities or services were being offered to the public in general. If maintenance and running repairs were to be carried out on that land in relation to the trucks of somebody garaging them there pursuant to an agreement with the entity conducting business on that site, I think such maintenance and repairs would remain ancillary. They would not constitute a separate and second use.

1. In terms of the first paragraph to clause 74 I think that Mr Carter's use of his land is to be characterised as a separate use of land, and in particular, the use of land separate from Warehouse, Store and Vehicle store. I do not think that his land use is obviously included in one or more of the terms listed in the table. On the contrary, I think it is clearly not so listed. Furthermore, I do not think it is commonly included in one or more of those listed terms. On the contrary, the cases referred to indicate that it is commonly regarded as a different innominate use of contractors depot (of one sort or another). That was so in cases determined before the VPP planning schemes and on the basis of definitions contained in those earlier planning schemes. It is also true of the preponderance of decisions reached since the introduction of VPP planning schemes with their clause 74 definitions. The contrary cannot be said to be 'common'. On the contrary, they are unusual, to say the least. In so far as any of them suggest that the correct characterisation of a land use such as that of Mr Carter is Store or Vehicle store, I disagree with them.

1. I have already explained why I do not consider that the essential gist of Car park is applicable to Mr Carter.
2. Section 3 of the table of uses containing the prohibited uses includes 'Transport terminal'. That term is defined in clause 74 as:

Land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvrer vehicles. It does not include a tramway.

1. It includes subcategories of Airport, Bus terminal, Heliport, Railway station, Road freight terminal and Warf.
2. Of course Mr Carter's use has nothing to do with passengers. Furthermore, it is not used to assemble or distribute goods. It is not a transport terminal.
3. The prohibited uses in section 3 of the table also include Industry (other than Rural industry).
4. The definition of Industry in clause 74 is a long one. It includes manufacturing, dismantling or breaking up particles, treating waste materials, extracting stone and minerals, testing or analysis and laundering, repairing, servicing and washing any article, machinery or vehicle. Although there can well be washing or repairing of vehicles that is not the essential use of Mr Carter's use of the land. On the contrary, it is a mere ancillary and part of his cartage contractors use.
5. It can be noticed that the entry for Industry in section 3 of the table excludes Rural industry. Rural industry (other than Abattoirs and Sawmill) appear in section 2. This is an example of the planning scheme and the tables of uses extracting a particular subcategory of a use and dealing with it differently to the rest of the broader land use. As it happens, Warehouse is another example in section 3 of this table of uses. The item reads 'Warehouse (other than Store)'. This is another example.
6. If Vehicle store was to be excluded from the condition applicable to Store in section 2 that should be said, in brackets, beside the word 'Store' where it appears in the use column of the table in section 2.

1. In the above reasons I have sought to set out my view of what I consider to be the correct approach to be taken on the question of characterisation of the land use being conducted, and sought to be conducted, by Mr Carter. In doing so I recognise that my solution is not entirely satisfactory from every point of view. I do not think that an entirely harmonious and satisfactory approach can be achieved in the circumstances. In Gormacile it was said that the Vehicle store definition 'is not perfectly nested' within Store [28]. The submissions on behalf of Mr Carter at 2.2 say of this 'it quite clearly is a not a perfect fit'.
2. I must agree but the failure to fit is the problematic wording of the definition of Vehicle store. In fact, I think the wording creates problems generally or in any event, as well as when the attempt is made to reconcile it with the status of Vehicle store as a subcategory of Store. I prefer to regard the problem as a localised one within that definition, rather than to make havoc of the whole concept and structure of clause 74, its table and the notion of 'nesting'. I think that I cannot just regard Vehicle store as a separate and unnested land use like those listed in clause 75.17. If that is intended, then this use should appear there. It clearly is not intended. It is a use within Store.
3. I realise that I am repeating myself on this point but I think that it is borne out in the numerous previous decisions that I have referred to or that I was referred to. That does not mean that everything said in every case points in that direction, or that I agree with everything in every case. Nevertheless, I think that the preponderance of previous decisions, with the leading ones repeatedly cited and relied on in later ones, justify what I have said.
4. The submissions on behalf of the responsible authority sought to divide cases into two groups, namely depot cases and Vehicle store cases. I have preferred to read them chronologically. This gives a more helpful understanding of how and when the relevant principles have been expounded, developed and subsequently relied upon.
5. I propose now to provide a summary of the cases. This list is not exhaustive, but I think it relevant. In some instances I have already extracted useful information or passages from previous reasons. I do not seek to repeat all that. I think it will be convenient if I mention each case, in chronological order, with separate notes or summary where I think that useful.
6. Yarra Ranges CC v Hunter[17] was an enforcement order application in relation to a depot type business and land use of the sort under consideration. It was a pre VPP planning scheme which contained a definition of transport depot as defined in the then planning scheme. The use was distinguished from home occupation and ancillary activities within a residential use because there were two commercial vehicles being garaged at the relevant site. The reasons specifically used the word 'garaged'. It is perhaps a pity that I and others have not since sustained that terminology. It might have been a home occupation or part of a residential use if only one vehicle was involved, in spite of it being a transport vehicle, if it was merely used to commute to and from work. The land use was found to be transport depot and prohibited. The enforcement order was made.
7. In McGill v Campaspe SC[18] the land use involved four large trucks and three excavators on caterpillar tracks. The business involved both transport and earth moving contracting. There was on site washing and running repairs to vehicles. This is a transitional case. The land was in a Rural B Zone under the pre VPP planning scheme but, by the time of the decision, was in a Township Zone under the new VPP planning scheme. The case was dealt with on the basis that the use was Store. Warehouse was a section 2 use. It was recognised, correctly in my view, that Store was therefore a section 2 use being included within Warehouse, although Store was not specifically named in the table. The definition of Store at that stage included the word 'only'. I do not know whether the land use term Vehicle store was included in clause 74 at that stage, but it is not referred to. Objectors submitted [30] that the use was depot for heavy vehicles. The Tribunal found [41] that it was a 'transport depot' and refused to grant a permit on planning grounds.
8. Bernhardt v Whittlesea CC[19] is another transition case in which an enforcement order to restrain use as a transport depot was sought and where a permit for such use was sought. Under the original planning scheme the zoning was reserved light industrial and transport depot, which was a discretionary use, defined as:

Land used to park at least 2 motor vehicles that carry goods for gain or to transfer goods from one of these vehicles to another.

1. Under the new VPP planning scheme the zoning became Industrial 1 Zone and Vehicle store was defined as the term is now defined in clause 74 [32]. In [33] Vehicle store was recognised as a variety of Store which in turn was a variety of Warehouse under the 'nesting provisions'. That paragraph goes on to say, correctly in my view:

The implications of this is that unless the land use table for any zone specifies the land use term 'Vehicle Store', then the use for which permission is sought would fall within the definition of 'Store', and if 'Store' does not appear in the land use table then the use would fall within the definition of 'Warehouse'.

1. Neither Vehicle store nor Store were listed in the table and Warehouse was in section 1 of the table subject to conditions including minimum distances from certain other zones, hospitals, schools etc [34]. As the land was within 30 metres of a Residential Zone, the condition was not met. That meant that, in this instance, Vehicle store became a section 2 use for which permission was required. At [45] the Tribunal recognised that the applications referred to 'transport depot' but it was said that, under the new planning scheme, the use was 'Vehicle store'. This was simply a bold assertion with no reasoning. The question of whether depot should have been the preferred characterisation under the new planning scheme, rather than Vehicle store, appears not to have been raised, discussed or determined. In that absence, and in the absence of reasons, I would not conclude that this case determined that potential issue, nor would I regard it as persuasive in relation to that issue.
2. Tully v Casey CC[20] concerned the parking of two trucks at a residential property in a Low Density Residential Zone. Only one of the trucks was parked in a building. It was said [19] that Store and Vehicle store are separately defined in the planning scheme with Vehicle store 'nested' under Store which in turn was included in the Warehouse group. Store was defined as at present except that it included the word 'only'. The condition applied [20]. The responsible authority maintained that 'Vehicle store' was an innominate use and the Tribunal agreed [21].
3. I do not agree that 'innominate' should apply where it is recognised that Vehicle store is part of Store and Store is nominated. An innominate use means one not named, either under its own name or as part of a broader named use. The present case concerns land in a Rural Living Zone. The table of uses in relation to that zone is found in clause 35.03-1 of the relevant planning scheme. The land use 'Store' appears in section 2 of that table. The land use 'Vehicle store' is not an 'innominate use' in that table because it is included within Store. The innominate uses in that zone are those which come within the last item in the list in section 2 of the table. That last item reads 'Any other use not in Section 1 and 3'.
4. It was submitted [42] that the more specific Vehicle store should be preferred to Store. Reference was made to McGill and Bernhardt. There was no servicing or maintenance of vehicles other than those connected with the business. There was an issue, not now relevant, as to whether 'only' in the definition of Store implied exclusivity. Washing and maintenance of trucks did not make it an industry [60]. It was said [72] that only one of the trucks needed to be kept within a building although that appears to be contrary to the condition. This appears to have been an objector's appeal. The Tribunal upheld the responsible authority in granting a permit but for a Vehicle store for two trucks. At [47] the Tribunal said it had reviewed the definitions of Vehicle store, Store, Industry, Service industry and Transport terminal and concluded that Vehicle store was appropriate. I do not see that it considered the issue of whether depot or contractors depot was appropriate. I do not know if it was assumed that only those land use terms defined or mentioned in clause 74 were available.
5. Beckman v Port Phillip CC[21] was really an existing use case. It concerned the keeping of two trucks in connection with a furniture removal business on a conventional residential block of 609m2. By now the word 'only' had been deleted from the definition of Store which was a discretionary section 2 use subject to the condition. The condition was not met therefore the use was a prohibited section 3 use. It had been carried on since 1983. There was an attempt to rely upon the so called '15 year rule' where an illegal use may be deemed no longer prohibited if it has been carried on for 15 years but this is subject to there having been no unequivocal direction to cease. There was such a direction in this case. Existing use rights did not apply. It was held to be a prohibited Vehicle store because of non compliance with the condition. The question of whether it should have been regarded as a depot was not dealt with.
6. Manningham CC v Nicolosi[22] was an enforcement order case where the Tribunal made an order specifying what could and could not be done in relation to the keeping of trucks on land in a Residential 1 Zone. The order regards the use as Vehicle store and refers to storage, garaging and use without differentiating. There is reference to old transport depot definitions and several old cases being Waverley Municipal Council v Rolley [23], Ferrigno v Keilor SC[24], French v Berwick CC[25], How Seng Ng v Monash CC[26] and Yarra Ranges v Hunter[27]. There was also reference to Beckman and its finding of a depot for the storage of trucks. It is clear that the Tribunal had in mind previous utilisation of the notion of transport depot. Its detailed enforcement order sought to require compliance with the Store condition, presumably on the basis that it applied. Otherwise I am not sure if it greatly advances resolution of the depot versus Vehicle store issue.
7. De Hann v Casey CC[28] is an important case that has subsequently been repeatedly referred to, cited, relied upon and quoted from. It was an applicant's review of the refusal of a responsible authority to grant a permit. A permit was granted for a 'Contractor's Depot' subject to conditions. It was a depot for a business in relation to the installation and maintenance of Telstra pits. At [3]:

The shed is used for a variety of purposes associated with the business including vehicle parking, storage, maintenance of the vehicles and administration. Various materials associated with the business as stored around the shed. These include pits, pipes and crushed rock which serve as a working supply for materials for day to day use. Machinery and other vehicles associated with the business are also kept outside this shed. The balance of the land is use (sic) for agricultural purposes, namely 'grazing'.

At [27] it was observed that the proposed use had originally been described as 'Store' with permission sought for a Store for the parking of vehicles and machinery. It was proposed to keep up the three vehicles and three pieces of machinery. At [28] the Tribunal had two concerns with that approach and at [29] said:

[29] The first was that I was somewhat unconvinced that the use really falls within the definition of 'Store'. 'Store' is within the 'warehouse' group in the planning scheme's nesting diagram. It implies that its land is used for the storage or keeping of goods in someway [sic] for future use or shipment etc. Now whilst it is arguable that the parking of vehicles may be considered to be a form of storage, it seems to me that what is being proposed here is more consistent with the garaging[29] of vehicles on an overnight basis. They come in, they get parked, and they leave the following day. The equipment is used on an as needed basis. I am somewhat unconvinced that 'store' is a proper categorisation of this particular use.

[31] However, in dealing with these two issues it seems to me that the use which is being conducted on the land is more properly characterised as a type of 'depot', which is not dissimilar to the permission originally granted by the Responsible Authority [ie: works, machinery, depot]. I say this because it seems to me that a 'depot' typically operates as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions, such as the repair and maintenance of vehicles and equipment occurs. For example, this is the type of activity that occurs in a municipal depot. It is typically what I call a 'depot'.

[32] After having heard from the applicant and the Responsible Authority, it seems to me that the application was made seeking permission to use the shed as a 'store' because it is a land use term which is defined within the Planning Scheme, it is arguable that the parking of vehicles is a form of storage and the use conveniently falls within Section 2. However, not all uses are defined in the Planning Scheme and when put to the parties, it seemed to me that there was general consensus that the current use of the land does not fall neatly into any of the land use term definitions in the scheme[30].

The application was amended to refer to a 'contractors depot'.

1. Beninati v Greater Dandenong CC[31] was a case concerning the keeping of four commercial vehicles in connection with a demolition contractor business on a 2.19 hectare site in a Rural Zone. An application had been made for a permit for a Store. The responsible authority had treated the characterisation as 'Vehicle store'. The Tribunal disapproved of both those characterisations. It referred with approval to De Hann adopting the quotes above from its paragraphs [29] and [31]. It proceeded to grant a permit for a depot for four commercial vehicles, not a Store.
2. In T.A. Lindsay Pty Ltd v Benalla Rural CC[32] the Tribunal made a preliminary ruling on a question of law in relation to a fencing contractors business in a Rural Living Zone. Part of the land was used exclusively to keep materials, vehicles and equipment for that purpose. Industry and materials recycling were prohibited uses and Store was a section 2 use subject to the condition. The Tribunal at [31] cited Tully for the proposition that washing, servicing and running repairs are ancillaries at least if the vehicles are in association with the business. At [34] it relied upon De Hann and a South Australian case of District Council of Mallala v Bishop[33] in relation to the depot characterisation of the use.
3. Andsand Pty Ltd v Kingston CC[34] is a different decision to my case of Andsand Pty Ltd v Kingston CC (No.2). However, it concerned the same parties and land. The land, in a Green Wedge Zone, was used for the keeping and dispatch of earth moving and related vehicles and equipment. At [14] the Tribunal said that the characterisation was relatively straightforward, that there was no planning scheme definition of depot and that the defined land use terms were not sufficient to reflect the proposal. At [15] there was reference to past Tribunal decisions finding an innominate land use of depot with reference to Beninati and T.A. Lindsay Pty Ltd. At [16] there is reference to the earth moving, construction and excavation activities together with the vehicles and equipment associated with this land used as a base or depot.

Specifically, I find that the primary purpose of the storage of vehicles/machinery on the subject land and their despatch and repair is for the use of the land as an earth moving contractors depot.

1. Then at [17] it was held that this is not a Store because that is not the real and primary use of land even if some goods, machinery and vehicles are, in a sense, stored there.
2. At [28] there is reference to the Supreme Court decision in Able Demolitions & Excavations Pty Ltd v Yarra Ranges CC[35] where Kyrou J held:

The definition of 'transfer station' in cl 74 of the Scheme emphasises that storage is temporary. This recognises that storage is not an end in itself, but a use connected with another activity. The context indicates that the relevant item requires that the storage be for the purpose of treating the refuge and subsequent 'transfer' elsewhere.

1. Another way of saying this would have been to refer to an activity connected with another use. In the present case I consider that the real and substantial purpose in the present case is not Store or any kind of Store and accordingly is not a Vehicle store.
2. In Lightower v Casey CC[36] four trucks were kept or to be kept on land in a Green Wedge Zone. The responsible authority referred to Vehicle store but said it was really a transport depot. The Tribunal agreed, especially in light of De Hann, Beckman and Yarra Ranges SC v Hunter. Beyond that this is merely a case on the planning merits and contributes nothing further to an understanding of the depot versus Vehicle store issue save that this was accepted to be a depot.
3. Andsand Pty Ltd v Kingston CC (No.2)[37] is a decision of mine previously referred to. In that Green Wedge Zone Store was a prohibited use. I said that I suspected that the parties full well knew that 'Store' was not the correct characterisation and that permission could be granted, the case to the contrary being very weak [24]. I held that administrative work and maintenance and repair of vehicles from time to time were incidentals or ancillary activities, that the use was not Store but an earth moving contractors depot [36]. There was reference to previous decisions including Beninati with quotations and including reference to De Hann, T.A. Lindsay Pty Ltd and District Council of Mallala. Krann v Cardinia SC[38] and Boroondara CC v Di Vicenzo[39] did not persuade me to the contrary. The real gist of the distinction between a contractors depot and a Store is the difference between parking or garaging of vehicles and equipment at a depot and the use of land simply for the storage of goods for an indefinite period until sold or required elsewhere [42]. I would now be content now to say the garaging of vehicles without mentioning the word parking as, in my opinion, it only confuses the matter.
4. Johnston v Cardinia CC[40] is another decision of mine in relation to a contractors depot where again Store and Warehouse are distinguished and where Andsand Pty Ltd (No.2) was followed with reference to the definition of depot in Planning and Environment Victoria.
5. Plant v Casey CC[41] is yet another decision of the Tribunal (not constituted by myself) where this sort of use involving the keeping of three trucks, an articulated low loader, four excavators and a bobcat were characterised as a contractors depot and not a Store (which was prohibited in the Green Wedge A Zone). Again book keeping and repairs were regarded as ancillary. It was held not to be a Vehicle store and the cases of De Hann, Beninati, Andsand Pty Ltd (No.2) and cases referred to therein were followed. A permit for the depot was granted.
6. W. Osborne and Son Pty Ltd v Greater Geelong CC[42] is another decision of myself in relation to what was held to be a cartage contractors depot being the base for six big trucks on 2.1 hectares of land in a Rural Living Zone. It was held to be clearly a contractors depot with no issue of it being a Store or Vehicle store. A permit was refused on the planning merits and an enforcement order was made.
7. Pyke v Wyndham CC[43] is a case where a permit was sought for an existing Vehicle store. There was no issue as to the characterisation of the land use which was taken to be Vehicle store. The evidence of the existing use was consistent with that. It was said that Mr Pyke stored vehicles and other things 'as an adjunct to the transport operations conducted elsewhere' [7]. There was no reference to past cases or even definitions as there was no issue as to characterisation. This case therefore makes no contribution to the characterisation issue that has arisen in so many other cases.
8. Reliable Low Loaders Aust Pty Ltd v Hume CC[44] does centre upon the question. Land in an Urban Growth Zone had been used for the storage of one low loader and permission was sought for a second. A permit was granted for a Vehicle store although there was reference [14] to the past Tribunal decisions of Beninati, Andsand Pty Ltd (the first one) and Pyke. It was said that these references related to activities that were of a much higher scale and intensity than proposed in the case then under consideration. I must respectfully disagree with this conclusion. It was a question of what is the nature and substantial purpose of the use or proposed use, not how intense or large, or for that matter small it might be. A corner milk bar is just as much a shop as the Myer Emporium in Bourke Street. Accordingly I have considered the attempted distinction from the previous cases cited is a mistaken one. In that particular case the innominate uses were in section 3 of the table of uses and therefore prohibited so that a permit could be granted if the use was Store or Vehicle store. In my view the reference [21] to there not being large numbers or multiple numbers of vehicles was beside the point.
9. Landforming to Perfection Pty Ltd v Wyndham CC[45] is another of my decisions. I should note that I have mentioned my responsibility for all of these cases that I have decided and it follows that all the others are decided by members of the Tribunal other than myself. Here permission was sought from the earth moving contractors depot on 3.25 hectares of Green Wedge Zone land. There was an issue as to whether earth moving contractors depot was the correct characterisation. The vehicles and machinery concerned included seven tractors, five laser buckets (large levelling machines towed behind tractors), three excavators (ranging in size from 5 to 30 tonnes), four utility vehicles, a maintenance truck and a forklift. The characterisation issue was discussed at [40] and following. I followed Andsand Pty Ltd (No.2) and the definition of depot from Planning and Environment Victoria in finding that this was an earth moving contractors depot and, at [55], that it is not a Vehicle store. In that zone, Industry and Store, except for Vehicle store is prohibited. This shows how the planning scheme can and should exempt a subcategory such as Vehicle store from a rule that applies to a broader use such as Store where such exemption is intended.
10. In the present case the applicant, fearing the Store condition, and that the correct characterisation might be Vehicle store has ignored that appropriate technique and argued for similar effect on what I consider to be an unacceptable basis that Vehicle store is an uncomfortable fit. Comfortable or not, that subcategory land use is subject to any condition or prohibition applicable to Store unless exempted by the technique adopted for the Green Wedge Zone as found in this land forming to perfection case.
11. The only other case is Gormacile Pty Ltd v Kingston CC[46] previously mentioned. It concerned 9.75 hectares in a Green Wedge Zone where an application was made for a permit for Vehicle store to keep allowed trucks of various sizes belonging to other businesses. I have nothing to add to my previous discussion of that case.

1. This has been a very long winded discussion leading to the conclusion that the use proposed in the present case is contractors depot, not Vehicle store. Accordingly a permit can be granted if the planning merits of the proposal warrant such a course, provided that such permit accords with an approved development plan under the overlay. These matters can be considered on their merits.

[4] The clause includes an exception where a schedule to the overlay states that a permit can be granted before a development plan is approved if that is provided for in a schedule to the overlay. The schedule that is relevant in this case is schedule 5 and it does not provide for such an exception.

[7] Of which the Indigo Planning Scheme is one.

[8] [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147; [1965] ALR 70; (1964) 38 ALJR 82.

[10] The original VPP definition of 'Store' included the word 'only'. It read 'land used only to store goods, machinery, or vehicles'. The word 'only' no longer appears. Its removal has also removed arguments that 'Store' as defined required it to be the exclusive use of the land concerned. See for example McGill v Campaspe SC [1999] VCAT 1636. Several of the early cases that I was referred to dealt with the definition of 'Store' when the word 'only' was still in its definition.

[11] See part 2.2, page 4 of 8 of written submissions.

[12] [2013] VCAT 815.

[13] [2009] VCAT 2506.

[14] [1999] VCAT 2141.

[15] [2010] VCAT 699.

[16] [2002] VCAT 644 at [31].

[17] [1999] VCAT 2141.

[18] [1999] VCAT 1636.

[19] [1999] VCAT 2161.

[20] [2001] VCAT 1907.

[21] [2001] VCAT 444.

[22] [2001] VCAT 2166.

[23] (1975) 30 LGRA 392.

[25] Tribunal no. P90/03853 unreported but noted at 5 AATR 4.

[26] [1997] VICCAT 228.

[28] [2002] VCAT 644; (2002) 11 VPR 123.

[31] [2002] VCAT 614.

[32] [2003] VCAT 1621.

[33] [1997] SASC 6340.

[34] [2008] VCAT 1804.

[35] [2008] VSC 294.

[36] [2008] VCAT 2054.

[37] [2009] VCAT 2506.

[38] [2006] VCAT 1629.

[39] [2005] VCAT 2717.

[40] [2010] VCAT 1129.

[41] [2010] VCAT 1699.

[42] [2012] VCAT 1683.

[43] [2012] VCAT 1870.

[44] [2013] VCAT 8.

[45] [2013] VCAT 1703.

[46] [2013] VCAT 815.