1 Before the development and use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a)

Areas to be landscaped including treatments and species types.

(b)

The inclusion of 3 staff car parking spaces in the rear yard.

(c)

The method of trapping and containing waste including any requirements set down by the Environmental Protection Authority.

(d)

Deletion of reference to a spray booth.

2 The layout of the site and size of the proposed buildings and works must be generally be in accordance with the plans submitted and must not be altered or modified, (whether or not to comply with any statute, statutory rule or by-law or for any other reason) without the consent of the Responsible Authority.

3 The use hereby permitted must be such that the building or works occupied and the activity carried on will not cause injury to or prejudicially affect the amenity of the locality by reason of the appearance of such building or works or activities or by reason of the emission of light, external storage of goods, noise, waste products, oil, grit, smells or fumes.

4 The hours of operation under this permit is limited to between 8am and 5pm Monday to Friday and 8am to 1pm Saturday.

5 No fewer than 5 car spaces (including staff parking) must be provided on the land to the satisfaction of the Responsible Authority.

6 All car spaces and access lanes on the land must be formed to such levels that they can be utilised in accordance with the endorsed plan and must be drained and surfaced with an impervious surface to the satisfaction of the Responsible Authority.

7 All car spaces and access lanes on the land must be drained and must be treated and maintained to prevent the emission of dust.

8 Construction plans for all parking areas and access lanes and the drainage thereof must be approved by the Responsible Authority prior to the commencement of any building or works authorised or required by this permit.

9 The area set aside for car parking as shown on the endorsed plan must be used for the parking of vehicles and for no other purpose.

10 The loading and unloading of vehicles and delivery goods to and from the premises are confined to the rear yard or within the building and must not be undertaken from public streets. Loading an unloading must only take place within the hours of operation.

11 All external lighting of the site must be located, directed and shielded, and of such limited intensity so that no nuisance is caused to nearby residents and motorists to the satisfaction of the Responsible Authority.

12 All materials stored on the site must be stored out of view in an appropriate place of storage in such a manner so as not to cause unsightliness to persons on nearby lands or roadways.

13 Noise emissions from the site must not exceed the standards set out in State Environment Protection Policy No N-1 (Control of noise from commerce, industry and trade).

14 The use authorised by this permit must not be varied except with the further consent in writing of the Responsible Authority.

15 No spray painting shall take place, unless otherwise approved in writing by the responsible authority.

16 This permit will lapse if:

(a)

The development is not completed within two years after the issue of the permit; or

(b)

The use does not start within two years after completion of the development; or

(c)

The use is discontinued for a period of two years.

The Responsible Authority may extend any of the above time limits if the owner or occupier of the land requests, in writing, an extension of time before the permit expires or within three months after the permit expires.

1 This is an application for review by Chriss Kennedy, the owner of 14 Franklin Street Warracknabeal against the decision of the Shire of Yarriambiack which refused an application for permit to use existing premises for machinery workshop for turning and fitting, spray booth, goods manufacture and machinery repairs.

2 Yarriambiack Council refused the application on seven grounds principally relating to:

•

Nuisance

•

Emission of dust, fumes and runoff

•

Increase in traffic

•

The narrow width of the rear laneway

•

Inconsistent with the purpose of the Residential 1 Zone

•

Not consistent with State Planning Policy for housing or industry

•

Not consistent with Local Policy in particular the Settlement Strategies

3 Mr Kennedy refuted the grounds of refusal on the basis of:

• Unfair rezoning of land

• Misinformation given by Council

• Objections already solved

4 There were various objectors to the application, however at the review hearing Ms Downes expressed concerns about:

•

Additional traffic in a residential street

•

Car wrecks and scrap metal lying around

•

Noise pollution

•

Building not used as a business in recent years

•

Loss of land values

•

The use should be located in an industrial area

5 Ms Youll and Mr David Chessun, on behalf of the permit applicant, explained the intended use. It was explained that Mr Kennedy intended to use the premises for his own personal use in restoring old cars, storing equipment associated with his own building business, and also engaging Mr Chessun, a fitter and turner, in undertaking a light machinery workshop operating machines such as a lathe, milling machine, drilling presses, power hack saw and a shaping machine. It was also intended to employ an apprentice.

6 The plans submitted at the review hearing showed the front section of the property will be a display area (no machinery) with a small office, customer waiting area and lunch room. The section behind this area will comprise a machine shop, a separate wood working area and another section for "personal use" only to contain hoists, presumably for motor repairs/restoration of vehicles. To the rear of this section was a spray booth with a compressor shed. During the hearing Ms Youll advised that the spray painting activity was no longer being pursued.

7 Three workers car parking spaces were shown in the rear yard which would be accessed via an existing laneway. Two customer car parking spaces are shown on the eastern side of the site with direct access from Franklin Street.

8 No building works are proposed although based on my inspection it would possibly be necessary to put a new floor in the small office area.

9 The site is located on the northern side of Franklin Street about 40 metres east of Thomas Street in Warracknabeal. The site has a frontage of about 15 metres and a depth of about 40 metres. The site contains an existing corrugated iron shed. There is a small sign on part of the existing shed describing the premises as "Workshop".

10 Franklin Street is a formed and sealed roadway with gravel shoulders and open cut drains. The un-named laneway at the rear is gravelled and provides access to the rear allotments adjoining it.

11 Surrounding properties consist predominantly of residential development. Immediately to the east are three dwellings facing Thomas Street. Land to the west comprises 5 single storey attached dwellings. Land further to the west comprises detached dwellings. Similarly land on the southern side of the street is predominantly single storey detached housing.

12 The subject site and all abutting properties and properties opposite are zoned Residential 1 under the Yarriambiack Planning Scheme.

13 Under normal circumstances the existing use and the proposed machinery workshop is best described as "industry" which is a prohibited use in a Residential 1 zone.

14 There is evidence as described later in this decision that the premises have existing use rights so an application for permit may be made for an alternative prohibited use under Clause 63.08 of the Yarriambiack Planning Scheme.

15 The subject site is also located in a Land Subject to Inundation Overlay however this is not of relevance in this matter.

16 There are various planning controls and policies of relevance in this matter including:

•

Clause 11

•

Clause 14.01 Planning for Urban Settlement

•

Clause 15.05 Nose Abatement

•

Clause 21 Municipal Strategic Statement

•

Clause 63 Existing Uses

•

Clause 65 Decision Guidelines

17 Clause 63.01 of the Yarriambiack Planning Scheme relating to extent of existing use rights states:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

•

The use was lawfully carried out immediately before the approval date.

•

A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.

•

A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.

•

Proof of continuous use for 15 years is established under Clause 63.11.

•

The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

•

No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

•

Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

•

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.

Clause 63.08 relating to Alternative uses states:

If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use which does not comply with this scheme. The responsible authority must be satisfied that the use of the land for the alternative use will be less detrimental to the amenity of the locality.

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

•

At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.

•

During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

18 At the review hearing Mr Young and Ms Youll provided detailed written submissions whilst Ms Downes provided an oral submission in support of her written submissions. I was provided with photographs of the subject site and surrounding streets, locality plans, zoning information, correspondence from previous owners of the property and various written submissions. I undertook an inspection of the site prior to and following the review hearing.

19 I consider the site enjoys existing use rights beyond the claims of the responsible authority and I consider that much of the use sought in this application will be or that conditions can be imposed to ensure it is less detrimental than the previous use preserved by the existing use right. Whilst there may be some concerns expressed by residents and the responsible authority about potential amenity impacts of the proposed use, I consider it is appropriate in this circumstance to apply various strict conditions on the permit to address these matters.

20 There was dispute between the parties about the extent of existing use on the land. Mr Young acknowledged that the site did enjoy existing use rights and claimed it was limited to storage of motor equipment and associated material. Ms Downs also considered that as far as she could recall since she had lived in Franklin Street, the premises had been operated as storage.

21 Ms Youll on behalf of Mr Kennedy relied on correspondence from Gavin Morrow, the previous owner/occupier of the premises who provided a statement in a letter to the Council dated 7 July 2005 which stated:

In relation to your request for a detailed use of our building at Franklin St. Warracknabeal. We purchased the property in 1974 which was used as a panel shop until 1982. We continued to use the building for Used Truck reconditioning occasionally until 1984 where we operated from full time with two staff until 1986. Since 1986 we have used the majority of the building for storage of parts, new and used vehicles, forklift etc, and right up to when we sold the property to you, we occasionally used the building for medium term truck reconditioning (Up to 3 weeks work at a time), assembling steel ute trays onto new cab chassis utilities, storing damaged vehicles that had been towed in from accidents etc.

While over a 12 month period we didn't go around to the property every day. Looking back over the last four or five years, there would be times where we would go around everyday for a three week period, then we wouldn't go around for two weeks, then maybe twice the following week, then another break for two weeks, so although our use varies quite considerably we consider that we continually used the building over the whole 30 years of our ownership.

22 It is noted that there were two letters dated 7 July 2005 but one was making reference to the history of the zoning of the land which really did not assist me in determining the existing use issue.

23 It is acknowledged that in recent years the premises have not been occupied as frequently by the previous occupier, it is also apparent that it has not been as intensive as it once was. This does not necessarily mean the preserved rights for the activity have lapsed. In this regard I am guided by a number of landmark tribunal decisions including:

•

City of Nunawading v Harrington (1985) 55 VR 1985 at 641

•

Two by Two Hotels Pty Ltd v Shire of Mornington (1991) 6 AATR 237

•

Braida v City of Melbourne (1985) 3 PABR 318

•

White v Shire of Ballan (1986) 4 PABR 272

24 Some of the principles deriving from these cases include:

•

The Tribunal.... "..has serious reservations whether or not any definitive principles can be laid down for cases involving non-conforming use rights. It may well be that, in some cases, it is realistic to expect that the rights should ultimately come to an end ... However, the nature of the use, the amenity of the area, the impact on the use on the locality are all factors which vary enormously from case to case. In the experience of the tribunal, each non-conforming use case has unique facts which require very careful assessment in the light of particular circumstances." (Two by Two Hotels)

•

Non conforming use right provisions should be construed as liberally as the language in its context allows: (Braida and White).

25 I consider that there is satisfactory evidence from the applicant that the preserved use is more than just the storage of motor vehicle equipment. Instead the evidence leads me to accept the preserved existing use right extends to the storage of motor vehicles and related equipment, mechanical repairs to vehicles including truck reconditioning and the partial assembly of trucks (assembling steel ute trays onto new cab chassis utilities).

26 Whilst I acknowledge there was some panel shop activity in the past, the evidence is less clear about the extent of this activity to satisfy me that it is contained within the preserved use right. This issue became lees relevant because at the commencement of the hearing I was informed that spray painting was no longer was to be carried out on the premises as part of the new use.

27 I have come to the conclusion having regard to all the submissions and my site visit that the new activities on the site are unlikely to have a greater detrimental impact on the amenity of the area than the preserved existing use rights. I acknowledge the new activities may appear to be intensifying activities above the current activities on the site, but the test relates to what the preserved existing use right is and that includes the partial manufacturing of motor vehicles and motor repairs.

28 So whilst the storage facilities undertaken on the land were relatively innocuous the motor repairs and truck/vehicle assembly, whilst relatively dormant in recent years, is still allowed.

29 Objectors raised concern about the potential for additional noise, and other amenity impacts including unsightly storage facilities. Where there may be some doubt about some of the amenity issues related to the new activities on the land, and in particular the machining practices I consider these can be addressed by the insertion of conditions on the permit. The placement of conditions concerning the emission of noise, the maximum number of employees on the premises, the limitation on hours of operation, the placement of loading and car parking and storage of materials will assist to limit offsite impacts.

30 These conditions are an important component of my determination concerning the extent of the new usage. These conditions will provide clearer boundaries for all parties about the extent of the allowable use on the land and they will assist to ensure that the use is less detrimental to the amenity of the area than that allowed by the preserved existing use rights. I consider this is to be preferred than to leave doubt about what is and what is not permitted and controlled on the land.

31 If the applicant finds that the business is so successful and needs to grow, then the applicant will need to make decisions about relocating to more appropriately zoned land rather than attempting to shoehorn the activities into what is a relatively old and confined workshop area.

32 I consider it should be acknowledge by all parties, including the owner/occupier that the general planning principle for non-conforming uses is that in time, they should be phased out and that land should be brought into conformity with the intent and purpose of the (Residential 1) zone. This is probably more apparent in this site context where the existing old workshop building sits amongst residential properties in a clearly defined residential 1 zone. It is in terms of use and appearance an aberration in this section of Franklin Street. Accordingly the owners should acknowledge that opportunities for expansion of the use and possibly the extension of any commercial or industrial activities outside the building are severely limited by the existing use rights, the limitations on this permit and the provisions of the planning scheme.

33 Sections 63.05, 63.06 and 63.10 place limits on the use. Importantly if the use lapses for 2 years or if the building is severely damaged or destroyed the land must be used in conformity of the Planning Scheme unless a permit is granted to continue the use. These clauses are clearly intended to protect existing use rights but at the same time provide a warning about continuing an existing use.

34 I have examined the site and the opportunities for car parking and loading facilities and I have included conditions on permit requiring at least three car parking spaces for staff in the rear yard. I have also inserted conditions requiring all loading to take place either within the building (if entry is made from the Franklin Street entrance) or within the curtilage of the rear yard if access is obtained from the rear laneway.

35 I have placed a maximum number of persons employed on the site, whether these are in the machinery workshop operation, wood working area, storage and display of vehicles or repairs or servicing of vehicles. The intent behind this condition is to make it quite clear that the maximum number of people employed in one practice or another should be limited to four and that all operations are essentially limited to normal business hours.

36 I have placed conditions concerning the emission of noise from the premises. I have not insisted on any particular works to ensure that mechanical noise does not emit unreasonably on neighbouring properties but I consider the onus is upon the operator to ensure that the emission of noise does not exceed State Environmental policies and in particular N1. In this regard the applicant may need to engage the services of an acoustic engineer to undertake preliminary tests about of activities on the site and provide advice about the State Environment Protection Policy.

37 There were other matters raised during the hearing including the allegation of incorrect information about the zoning of the land or that the land was near enough to a Business 4 zone to be included in it. The land is clearly and unambiguously zoned Residential 1. The Business 4 zone is located further to the south-east of the site. If the applicant did wish to seek a rezoning of the land it could make a request to the planning authority although I caution such approach because "spot" re-zonings are generally not encouraged in principle in the midst of residential zones.

38 There were also requests to have a number of the objectors either struck out or not included as parties. In this case I allowed Ms Downes to be a party. I am satisfied that she had a genuine objector interest in the application. In fact some of the information she provided to the tribunal confirmed existing use issues.

39 There also appeared to be an undercurrent of disputation or disagreement either between previous Council officers and the applicant or other people, however this information was of little assistance to the Tribunal in determining the merits of the application and only tended to serve as a distraction.

40 Following the review hearing further correspondence was received from Mr Kennedy. The submission of further unsolicited correspondence was inappropriate. I note that Mr Kennedy was not in attendance during the hearing and did not hear me caution all parties about making no further submissions outside the hearing room. Accordingly I have disregarded the additional correspondence but I have made a determination on the basis of the information presented at the review hearing, the documentation on file and my own observations during the site visit.

41 For the abovementioned reasons the responsible authority's decision is set aside. I consider the site enjoys existing use rights and that the proposed usage will, subject to various conditions, be able to operate in a manner that does not result in any further detriment to the amenity of the area.