Victorian Civil and Administrative Tribunal|2002-07-11|Before: Mr Roger J, Roger J, Mr P, Ms P

Krann v Cardinia SC & Ors [2002] VCAT 473 (11 July 2002)

Refusal, Request to Cancel, Application for Retrospective Approval,

Application for Declarations under s149A, Permit Conditions.

REQUESTORS FOR CANCELLATION: Glenn & Kelly Brooks-MacMillan and Ors

RESPONDENT OBJECTORS: Glenn & Kelly Brooks-MacMillan and Ors

DATES OF HEARINGS: 22 & 23 May 2001, 24 & 25 July 2001,

MEDIUM NEUTRAL CITATION: [2002] VCAT 473

1. The responsible authority is directed to cancel permit No T970652 issued 4 May 1998, on the ground that the permit holder has failed to comply with the conditions of the permit.

2. The responsible authority's decision to refuse the planning application in file No P63909/2000 is affirmed.

3. The responsible authority's application for declarations, file no. P51005/2001, under Section 149A of the Victorian Civil and Administrative Tribunal Act is refused.

4. The application for review of the responsible authority's refusal, under file no. P04257/2001, is upheld as to part and the responsible authority will be directed to issue a permit subject to conditions that will be finalised at the further hearing of this proceeding.

5. This proceeding is set down for a half day hearing commencing at 10.00am on 12 August, 2002, at 55 King Street, Melbourne to finalize the conditions and to deal with any other submissions by the parties.

Mr P. Walton, Town Planner, appeared for Responsible Authority on 22 & 23 May, 24 & 25 July 2001. Ms S Brennan of Counsel appeared for Responsible Authority on 30 August and 25 October 2001.

Ms P. Barber, Solicitor of Deacons, appeared for the Applicant Owner and he called the following witnesses:

Mr M. Townsend of Counsel under a direct brief appeared for the Respondent Objectors and he called the following witnesses:

1.1. This proceeding commenced as an application by the permit applicant, Mr R. Kraan, to review the responsible authority's, Cardinia Shire's refusal to grant a permit, File No. P63909/2000. The responsible authority refused to grant a permit for a 780 square metre storage shed on the subject land at 715 Gembrook Road, Pakenham Upper ("the subject property"). Local residents, S. & K. Thorpe and G. & K. Brooks-MacMillan lodged statements of grounds on 9 August 2000. This application was merely to legitimise the use of the existing storage shed of 780m2 on the subject property.

1.2. On 6 September 2000, G & K Brooks-MacMillan lodged an application to cancel or amend the existing planning permit, Permit No. T970682 issued 4 May 1998, in relation to the development of a farm building on the subject property and its use for commercial vehicle storage, see File No. P71303/2000. The respondent to the request to cancel or amend was the owner of the subject land, Mr R Kraan.

1.3. The third application in this proceeding is File No. P4257/2001, lodged by the permit applicant on 18 January 2001, for the review of the responsible authority's refusal to grant a permit the develop the land for the purpose of a building to be used for the purpose of the store. The adjoining neighbours G & K Brooks-MacMillan lodged statements of grounds as respondents to this review.

1.4. The final application in this proceeding is File No. P51005/2001, which is an application by the responsible authority for declarations under Sec. 149A of the Planning and Environment Act ("the Act") that:-

"1. Use of the land at 715 Gembrook Road, Pakenham. ("Land") for a vehicle, machinery and equipment store in association with a water carting and tree clearance and removal business carried out by Mr Kraan as a resident of a dwelling on the Land ("Proposed Use") requires a planning permit.

2. The Proposed Use does not enjoy existing use rights pursuant to Permit T970652 of 6 April 1998.

3. Earthworks carried out on the Land in association with the commercial vehicle store prior to 4 May 1998 are permitted by Permit T970652."

1.5. This proceeding is somewhat confusing both from the number of applications, amendments to those applications during the hearing and the factual matrix in which the applications are set. In an attempt to avoid confusion between the parties, given the number of applications in the proceeding, I will address Mr Kraan, the owner of the subject land and applicants in the reviews against the responsible authority's refusal to issue a permit, as "the permit holder" unless I address him by name. The requestors for cancellation and respondents to the reviews, I will address as "the objectors".

1.6. This proceeding, with its numerous applications and a long and complex factual matrix, involves many and various considerations and assessments, both factual and legal. Although it lengthens the decision considerably, I consider it is important that the factual matrix and the changing planning structure over the history of these applications is set down in some detail, so that all the parties can understand how and why I came to my conclusions. I will commence my reasons with the factual background. I will follow with the requirements of both the current and the superseded planning schemes. I will set out the issues in each application and the issues that were addressed in the proceeding. Following that, I will look at each parties evidence and then I will set out my assessment of the proceeding in relation to the reviews of the refusals and the request to cancel. Then, I will deal with the application for declarations and, finally, I will set out my determinations.

2.1. This outline of the background to this proceeding is taken directly from the responsible authority's submission. I have added to it where I consider more explanation or information is warranted.

2.2. By an application for a planning permit dated 24 October 1997, Bushy Miles, the responsible authority's building inspector, applied on behalf of Mr Kraan for a permit for a "Barn style building for the storage of equipment". The building was to be located in the south east corner of the property and setback 30m from the eastern boundary, that is the common boundary with the Brooks-MacMillan land. The proposed building had a floor area of 780m2 with the dimensions of 30m by 26m. The building comprised a central section 9m wide by 30m long and a maximum roof height of 9m. It was proposed to be constructed on a north south alignment. Two wings were located either side of the central section with a width of 8.5m and an outer wall weight of 5m. The walls of the building were to be constructed of mud brick with doors into the central section on the northern and southern end and 3 open bays on the eastern and western side of the building. No details of any earthworks or vegetation removal were shown on the submitted plans.

2.3. Following a query from the responsible authority regarding the size and use of the building, Mr Kraan submitted a letter to responsible authority dated 26 November 1997. The letter stated:

"My livelihood is a number of tasks - dependant on the season - for which I need a variety of equipment. At this stage my machinery is located at my parents property in Officer, which has become inconvenient for both parties.

Water cartage is one aspect of my work and for this I have a rigid truck with a tank. With the busy season just completed, and the forecast to come, I have purchased another two articulated tankers to help keep up with the demand. When not carting water, I am carting logs. This involves machinery to recover and load the logs as well as transport them. In addition, I have developed a machine which mulchs stumps on a large scale.

Relying on this equipment for my existence, I need to have it protected, therefore I need a large shed. The height is to allow my large mulcher and loaded truck to enter the building. The side bays will store the equipment while the centre bay will allow vehicles to pass through if required. The equipment will not be operating on the storage site, simply stored there when not in use. Often the machines are on work sites for months.

In addition to my work machinery, there are associated items such as tyres and spare parts which need to be stored out of sight. I also have two vehicles, a boat, caravan and several trailers to put under cover. Because of the acreage I am living on, I also have a tractor and several other implements such as a slasher, carry all, blade, sprayer, smudger, etc which will also occupy the building.

I appreciate this is a large shed in the context of many others around, but is small for what I need, and I hope this size is adequate without requiring additional space in the future."

2.4. By letter dated 1 December 1997, the responsible authority advised the applicant that:

"The additional information submitted appear to indicate that the proposed building is to be used for either a contractors depot or an unspecified use. Both uses are prohibited in the Conservation 1 zone within which the site is located. As the majority of the building is to be used for this purpose, Council would have no option but to refuse the application for the building. Council would favourably consider a modified application where it can be identified that the building is primary used for domestic/farm related activities which should involve a reduction in the size of the building."

2.5. Further advice was provided by the responsible authority to the applicant on 8 January 1998 which advised:

"Please be advised that Council cannot consider the application for a permit to construct a 780 square metre shed, as the use of the shed for the storage of trucks in particular is a prohibited use. Council officers are however of the opinion that on the adoption of an updated planning scheme in approximately 12 - 18 months, such a use could at least be considered. May I take the opportunity of recommending that you resubmit plans for a smaller building for farm machinery storage etc. On adoption of an updated planning scheme, Council could then consider a new application as a vehicle store."

2.6. By letter dated 18 February 1998, the permit holder advised:

"In consideration of the advice given in your previous letter, the owner has agreed to maintain the base for his equipment at his parents property in Officer, the current location. He has also agreed to reduce the size of the building, but rather than delete the wings off the barn style, he proposes to delete the last two bays, a 40% reduction in size. This will mean that the building can still maintain its shape and the mud brick frontage can be completed at the same time.

Usage of the building will primarily be for the storage of his farm machinery, caravan, boat, trailers, etc. The plan showing the amended size is attached for your reference."

The amended plan showed the building in the same location with dimensions of 26m by 18m, a floor area of 468m2.

2.7. Notice of the amended application was given under Section 52(1)(a) to the owners and occupiers of the adjoining land. Two objections were received to the application. The objections are summarised as follows:

* The applicant has created an eyesore by placing filling on the land in anticipation of being able to build his shed. The filling creates a wall of dirt along our common boundary. The shape of the land has been changed and is very unsightly. The applicant now expects to place a 9m high shed on top of this wall of dirt.

* Many trees have been removed which might have at least assisted in concealing the shed.

* The reason we moved to this area was to enjoy the bush and its peace, quiet and beauty. Had we known that the responsible authority would even consider this type of construction, we would not have purchased our land.

* The owner of the land has undertake a large amount of work without planning approval and in an area zoned for conservation.

* The impact on the environment, particularly flora and fauna in the area.

2.8. Prior to the consideration of the application by responsible authority, further discussions were held between Mr Kraan, the General Manager Planning and the planning officer dealing with the application. As a result of this meeting, it was agreed to reduce the size of the building to 243m2 being the central section of the originally proposed building. A plan of the building was prepared by the planning officer based on the discussions. The application was considered by responsible authority at its meeting on 6 April 1998. The responsible authority resolved to issue a notice of decision to grant a planning permit for a farm building to be used for the purposes of commercial vehicle storage. No appeal were lodged against the notice of decision and the planning permit was issued on 4 May 1998. The approved plan for the building under the permit as prepared by the planning officer showed a building with a floor area of 243m2 and the dimensions of 9m2 by 27m2.

2.9. A building permit was issued on 4 May 1998 for "The erection of a farm building to be used for the purposes of commercial vehicles storage generally in accordance with the approved plans", subject to the following conditions:-

SCHEDULE OF CONDITIONS IN RELATION TO PLANNING PERMIT NO. T970652

1. The layout of the site, and the size of the proposed buildings and works, must not be altered or modified without the consent in writing of the responsible authority.

2. Within three (3) months of the farm building being completed, the batters along the eastern and southern property boundaries, as well as the area surrounding the farm building, must be planted with trees and shrubs indigenous to the area to provide a visual screen to adjoining owners. Once planted the trees and shrubs must be maintained in a healthy condition to the satisfaction of the responsible authority.

3. Earthworks must be undertaken in a manner which minimises soil erosion, any exposed areas of soil must be stabilised to prevent soil erosion to the satisfaction of the responsible authority.

4. Only one (1) commercial vehicle as registered pursuant to the Motor Car Act 1958, whether with or without a trailer, with a carrying capacity exceeding two (2) tonnes may be kept on the property at any one time.

5. Noise levels emitted from the vehicle must at all times comply with all the relevant Environment Protection Authority requirements.

6. The use must not cause injury to or prejudicially affect the amenity of the neighbourhood, including and without limiting the generality of the foregoing, injury or prejudicial effect due to appearance or the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products or otherwise.

7. No major mechanical repairs, fuelling or panel beating may take place on the site.

8. This permit allows the use of the land for commercial vehicle storage only by Mr. R. Kraan. If Mr. R. Kraan ceases to use the land for this purpose, this permit will lapse.

9. If the development is not completed and the use commenced within two (2) years after the date the permit is issued, this permit will expire. The responsible authority may extend the periods referred to, if a request is made in writing before the permit expires or within three (3) months afterwards.

2.10. It should be noted that Mr Kraan commenced works associated with the building including earthworks, tree removal and construction of the structure prior to the issue of the planning permit and building approval.

2.11. Following the receipt of a complaint that the size of the shed being constructed was larger than that allowed by the planning permit, inspections of the building were carried out in October and November 1998 by officers of the responsible authority, these confirmed that the building was being constructed on the basis of the original plans submitted, ie. for a 780m2 building. Mr Kraan was verbally advised on the requirement for the building to be constructed in accordance with permits issued.

2.12. By letter dated 12 January 1999, the responsible authority's General Manager Planning wrote to Mr Kraan advising him that he had constructed a building different to and substantially in excess of the building approved, and that he appeared to have completely disregarded the planning and building permits issued. Further, the last sentence of the last paragraph of the letter stated: "You will recall that the building approved was with your agreement substantially reduced in area from the building for which you initially sought approval".

2.13. The letter went on to request Mr Kraan to advise why the building had been constructed in contravention of the planning and building approvals granted, what action was proposed to rectify the situation and why the responsible authority should not take enforcement action against him. Mr Kraan met with the General Manager Planning in February 1999 and he was requested to provide the responsible authority with a written response.

2.14. Mr Kraan submitted a letter to the responsible authority in June 1999 advising:

"Plans were submitted to Council in accordance with regulations.

After a phone call from Paula Van Der Hough to my parents advising that the plans had been approved of the said building, I went ahead building according to plans. After having completed the major construction of the shed I had been advised by George O'Brien that the shed was not according to plans. I have no knowledge of any other plans for my shed other than the ones I had submitted for the permit. I am not aware of any other plans submitted to Council for my shed"

The letter went on to reiterate the need for a larger shed to store the Mr Kraan's machinery and equipment.

2.15. The responsible authority contacted Mr Kraan in July 1999 to advise him to seek planning approval for the building constructed or face legal action being taken against him. Mr Kraan met with the Chief Executive Officer in early October 1999, who reconfirmed the advice provided to Mr Kraan in July 1999. On 12 October 1999, Mr Kraan applied for a planning permit (T990791) for the building as constructed and for the storage of vehicles, machinery and domestic items in the building.

2.16. Notice of the amended application was given under Section 52(1)(a) to the owners and occupiers of the adjoining land. Two objections were received to the application. The objections are summarised as follows:

* The building is not in accordance with the planning and building permits previously issued.

* The shed is being used for industrial purposes which is inappropriate in the area.

* Neighbours are affected by noise emissions from the shed.

* The environmental impact of the earthworks and vegetation removal.

* Development is not in accordance with sound planning policy.

* A retrospective permit would limit objectors rights to seek orders for a failure to comply with previous permits.

2.17. A copy of the application was also referred to the Department of Natural Resources and Environment as a referral authority under Section 55 of the Planning and Environment Act 1987. The Department responded advising that it was concerned that the previous permit and conditions had been ignored and that:

* The application is contrary to the previously granted permit and the provision of the planning scheme.

* The larger shed will have a significant and detrimental impact on an area of botanical and zoological significance.

The Department went on to advise that it would have no objection to the construction of a smaller shed for which a permit has already been granted.

2.18. The responsible authority considered the application at its meeting on 6 December 1999 and decided that the matter be deferred to enable a final attempt at resolution through discussion with adjoining owners and other parties, with authority to resolve the matter being delegated to the General Manager Planning. The responsible authority officers convened meetings with Mr Kraan, his legal representative and the objectors on 19 January 2000 and 1 March 2000. Notes of these meetings and an options paper were distributed to all parties. The new General Manager Community Planning also met with Mr & Mrs Brooks-MacMillan on 14 April 2000 and Mr Kraan and his representative on 2 May 2000 to inform himself of the matter, as he had commenced employment with the Cardinia Shire in March 2000 following Mr McCaffrey's departure as the General Manager Planning. By letter dated 17 May 2000, Mr McCaffrey informed the responsible authority that he had been retained by Mr Kraan to assist him in relation to the matter. A final meeting of the parties was held on 29 May 2000 in an attempt to see if any agreement could be reached. In summary there was little scope for a mediated outcome to this matter.

2.19. The matter was scheduled to be considered by the responsible authority at its meeting on 5 June 2000. By letter dated 4 June 2000 Mr Kraan requested that the matter be deferred, as he was prepared to remove part of the building and to accept a number of performance conditions including dense tree planting, hours of operation, bond or other security. The responsible authority decided to defer the consideration of the application for 14 days.

2.20. On 8 June 2000, responsible authority officers met with Mr Kraan and his representatives. Mr McCaffrey submitted a list of matters to be taken into consideration and a set of draft permit conditions. By letter dated 13 June 2000, Mr McCaffrey also submitted a plan showing the proposed reduction in the size of the building. The plan showed the removal of the southern wing which reduced the size of the building to 540m2 and having the dimensions of 18m by 30m.

2.21. The application including the option of reducing the size of the building was considered by the responsible authority at its meeting on 19 June 2000. The responsible authority decided issue a refusal to grant a planning permit for the application on the following grounds:

* The scale of the building and the proposed use are inappropriate in this area.

* The building and its proposed use will adversely impact on the amenity of neighbouring residents.

The responsible authority also decided to direct Mr Kraan to demolish the sheds constructed on the land without planning and building approval and undertake appropriate reinstatement works within 60 days.

2.22. Mr Kraan met with the responsible authority's officers on 6 July 2000 to discuss the refusal and alternative options. Mr Kraan raised the option of reducing the size of the building by 40% by removing the eastern end of the building closest to the neighbouring property which would create a greater buffer and allow for the reshaping of the fill embankment. The responsible authority officers indicated some support for the proposed option subject to justification being provided for the size of the building which would still be very large, professional plans being drawn and consultation with the neighbours.

2.23. On 8 August 2000, Mr Kraan lodged an application for review with the Tribunal, File No. 63909/2000, against the responsible authority's refusal to grant a planning permit for application T990791. The grounds of the application for review are outlined later in these reasons

2.24. On 6 September 2000, Glenn and Kelly Brooks-MacMillan lodged an application to cancel planning permit T970652 with the Tribunal, File No. P71303/2000. The grounds of the application to cancel the permit are outlined later in the submission.

2.25. On 3 October 2000, Mr Kraan lodged a planning permit application for machinery storage. The plans submitted with the application propose a building with a floor area of 468m2 with the dimensions of 26m by 18m.

2.26. By letter dated 6 October 2000, Mr Kraan was requested to provide further information under Section 54 of the Planning and Environment Act 1987. The information required was:

* The setback of the building from the eastern and southern boundaries.

* Cross sections of the batter for the filled area on which the building is located, and whether this has altered from the existing cross section on site.

* Whether the retaining wall shown on the landscaping plan is the existing retaining wall or a new structure.

* The height of the building as it had not been shown on the submitted elevation plan.

* A timeframe for the alteration of the existing building to conform with the current application if a permit is granted.

2.27. By letter dated 20 October 2000, the applicant advised:

* The existing shed is 15m from the eastern boundary and 30m from the southern boundary.

* Existing cross section has not been altered and is approx. 45 deg.

* The retaining wall shown on the landscaping plan is the existing retaining wall.

* The height to the proposed guttering is 4.8m. The height to the top of the lean to is 6m. The height to the proposed guttering in the middle section is 7m. The overall height of the middle section is 9.6m.

* For the eastern elevation, I will endeavour to salvage the existing mud bricks, and build with recycled mud bricks. If this does not work, I will use treated pine lining which is currently used on the building.

* As discussed with you, my timeframe for the alterations would be within 3 months. However if the alterations are required to be done in a dry period of weather, I could run into difficulties due to the high demand on my workload, and request that this be considered.

2.28. Notice of the application was given under Section 52(1)(a) of the Planning and Environment Act 1987 on 31 October 2000. A copy of the application was also referred to the Department of Natural Resources and Environment as a referral authority under Section 55 of the Planning and Environment Act 1987.

2.29. Two objections were received in relation to the application. The basis of the objections are summarised as follows:-

* The plan similar to the previous plan refused by the responsible authority.

* The visual impact of the building and earthworks.

* The building is out of proportion with the area and excessive in size.

* The introduction of an industrial activity into an area of environmental significance.

* Native vegetation was removed when the shed was constructed without approval.

* People who do not live on the property work as part of the business and are a cause of concern to the neighbouring residents.

* Mr Kraan has failed to meet planning scheme and planning permit requirements.

* The environmental impact of the buildings and works in an area of environmental significance.

* The is a lack of information on the plans and inconsistencies in information provided.

* The planning scheme must be upheld and the responsible authority has taken insufficient enforcement action to date.

* The application will set a precedent for the retrospective approval of illegal works.

2.30. By letter dated 9 November 2000, the Department of Natural Resources and Environment responded advising it has no objection to the proposal. The Department also advised that the responsible authority should ensure that:

* The retaining wall is constructed of suitable materials so as to be safe and secure and not prone to erosion.

* The planting's as proposed are undertaken immediately to stabilise disturbed areas and prevent erosion.

* The building is painted in mute tones to harmonise with the landscape.

* The site is suitably drained and sediment traps constructed if need be to ensure that there is no off site discharge of sediment.

2.31. The application was considered by the responsible authority at its meeting on 4 December 2000. The responsible authority decided to defer the matter until its next meeting on 18 December 2000. The application was considered by the responsible authority at its meeting on 18 December 2000. The responsible authority decided that, subject to the receipt of a written agreement from Mr Kraan within 21 days that a shed with a floor area of 360m2 is acceptable and will not be subject of a review by the Tribunal initiated by Mr Kraan. Officers of the responsible authority officers issued a notice of decision to grant a permit under delegation for application TO00769 for a storage shed at 715 Gembrook Road, Pakenham Upper subject to:

* The setback of the building from the Brooks-McMillan boundary being increased.

* Other conditions as considered appropriate by responsible authority officers.

2.32. The responsible authority officers met with Mr Kraan on 4 January 2001 in relation to the responsible authority's decision. As a result of these discussions, the responsible authority forwarded a copy of a draft set of conditions to Mr Kraan by letter dated 8 January 2001.

2.33. By letter dated 12 January 2001, Mr Kraan advised that he was unable to accept the proposal of a 360m2 building, as it will not be large enough to enable the storage of all his machinery and equipment. On 16 January 2001, a refusal to grant a planning permit was issued for application TO00769 on the following grounds:

* The scale of the building and the proposed use are inappropriate in this area.

* The building and its proposed use will adversely impact on the amenity of neighbouring residents.

2.34. On 18 January 2001, Mr Kraan lodged an application for review with the Tribunal, File No. P4257/2001, against the responsible authority's decision to refuse to grant a planning permit for application TO00769. The grounds of the application for review are outlined later in this submission.

3.1. Under the Cardinia Planning Scheme the subject land is in an Environmental Rural Zone (Schedule 1) and covered by an Environmental Significance Overlay: Clause 42.01.

3.2. I take the planning context for the current planning scheme ie. the Cardinia Planning Scheme, from the submission of the responsible authority. The Cardinia Planning Scheme came into operation on 26 August 1999, superseding the Pakenham Planning Scheme.

3.3. The purpose of the Environmental Rural Zone in particular is to:-

(a) give effect to the environment outcome specified in the schedule to the zone;

(b) conserve and permanently maintain flora and fauna species, soil quality and areas of historical, archaeological and scientific interest so that the viability of natural eco-systems and the natural and historic environment is enhanced;

(c) encourage the development and the use of the land which is in accordance with sound management and land capability practices, and which takes into account the environmental sensitivity and biodiversity of the locality; and,

(d) ensure sub-division promotes effective land management practice and infrastructure provision.

The environmental outcome specified in the schedule to the zone is the protection and conservation of the environmental values and landscape qualities of the land including habitat of botanical and zoological significance and the conservation of natural resources including native vegetation, waterways and soil.

3.4 Under the table of uses for the Environmental Rural Zone (Clause 35.01-1), a "Store" - is a "Section 2 - Permit Required" use. The store is defined as "Land used only to store goods, machinery or vehicles." The table of uses includes a condition that the store must be in a building, not a dwelling, and used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

3.5 Under the provisions of Clause 35.01-3 a permit is required to construct or carry out any of the following, inter alia:-

(a) a building or works associated with the use in Section 2 of Clause 35.01-1,

(b) excavate or landfill works which are in excess of the depth or height specified in the schedule to this zone,

(c) land forming if specified in the schedule to this zone; and,

(d) an outbuilding which has dimensions greater that those specified in the schedule to this zone.

The schedule to the zone does not specify any dimensions for an outbuilding at this stage; nor, any dimensions of earthworks.

3.6 Under the provisions of the Environmental Rural Zone, before deciding on an application to use or sub-divide land, construct a building or construct or carry out works, the responsible authority must consider, inter alia:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The capability of the land to accommodate the proposed use or development, addressing site quality attributes including soil type, soil fertility, soil structure, soil permeability, aspect, contour and drainage patterns.

* How the use or development relates to natural resource management.

* Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining and nearby land uses.

* The farm size and the productive capacity of the site to sustain the rural enterprise and whether the use or development will have an adverse impact on surrounding land uses.

* An assessment of the likely environmental impact on the natural physical features and resources of the area and in particular any impact caused by the proposal on soil and water quality and by the emission of noise, dust and odours.

* The impact of the use or development on the flora, fauna and landscape features of the locality.

* The protection and enhancement of the natural environment and the character of the area, including the retention of vegetation and fauna habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridge lines, property boundaries, discharge areas and recharge areas.

* The impact of the use or development on the existing and surrounding rural uses.

* The location of any building or works with respect to the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.

3.7 The purpose of the Environmental Significance Overlay is to, inter alia:-

* Identify areas where the development of land may be affected by environmental constraints.

* Control development which may have an effect on identified environmental values.

The statement of environmental significance contains the following:-

"These characteristics contribute to environmental values including landscape quality, water quality, and habitat of botanical and zoological significance. These characteristics are also a significant factor in terms of environmental hazards including erosion and fire risk."

3.8 The environmental objectives to be achieved are:-

* To protect the significant environmental and landscape values in the northern hills area.

* To ensure that the siting and design of buildings and works does not adversely impact on environmental values including: the diverse and interesting landscape; areas of remnant vegetation; habitat of botanical and zoological significance; and water quality.

* To ensure that the siting and design of buildings and works addresses environmental hazards including: slope; erosion; and fire risk.

3.9 Under Clause 42.01-2 of the Environmental Significance Overlay, a permit is required to construct a building, or construct or carry out works. This does not apply if the schedule to this overlay specifically states that a permit is not requited. The schedule to the overlay specifies that a permit is not required to construct a building or construct or carry out works provided the following requirements are met, inter alia:-

* The works must not involve the excavation of land exceeding 1 metre or filling of land exceeding 0.6 metre and any disturbed area must be stabilised by engineering works or revegetation to prevent erosion.

* If the building is an outbuilding ancillary to a dwelling, the gross floor area of all outbuildings on the land must not exceed 80m2.

* If the building is in a Rural Zone and is associated with the existing use of the land for agricultural purposes, the gross floor area of the building must not exceed 100m2.

3.10 Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, inter alia:-

* The statement of environmental significance and the environmental objective contained in the schedule to this overlay.

* Any other matters specified in the schedule to this overlay.

3.11 The schedule to the overlay specifies that the responsible authority must consider the following before deciding on an application:

* The Land Capability Study for the Cardinia Shire (February 1997).

* The protection and enhancement of the natural environment and character of the area.

* The retention of remnant vegetation and habitat, and the need to plant vegetation along waterways, gullies, ridgelines and property boundaries.

* The impact of any buildings and works on areas of remnant vegetation, and habitat of botanical and zoological significance.

* The impact of proposed buildings and works on the landscape character of the area, including prominent ridgelines and significant views.

* Measures to address environmental hazards or constraints including slope, erosion, drainage, salinity and fire.

* The protection of watercourses and water quality through the appropriate management of effluent disposal, erosion and sediment pollution.

3.12 Clause 65 of the Cardinia Planning Scheme also specifies that before deciding on an application or approval of a plan, the responsible authority must consider, a series of general elements.

3.13 Under the previous planning scheme, the Pakenham Planning Scheme, the existing permit was issued for "commercial vehicle storage" which was defined under the scheme as:

"Commercial vehicle storage means the keeping on land or within a building of not more than one commercial vehicle, as registered pursuant to the Motor Car Act 1958, whether with or without a trailer with a carrying capacity exceeding two tonnes and may include provision for servicing and running repairs of a minor nature, but does not include the fuelling of or major repairs to or panel beating of the vehicle within the curtilage."

The land was in a Conservation 1 Zone, in that zone "commercial vehicle storage" was a permitted use.

3.14 The Pakenham Planning Scheme recognised uses such as "contractors depot" defined as:

"Land used or intended to be used as a depot for the storage of materials or machinery used in the building or construction trades and includes the pre-fabrication of manufacture of building components but does not include any specific manufacturing process described elsewhere in this Local Section"; and,

"Land and/or buildings used or intended to be used as a depot for the storage of materials or machinery used for agricultural production by hire or contract."

Under the superseded planning scheme these uses together with innominate uses were prohibited in the Conservation 1 Zone.

4.1 This sections sets out for each application in this proceeding, the grounds of each application and any statements of grounds or grounds in response by the respondents.

4.2 In application No. P63909/00 the reasons for refusal were:-

1. The scale of the building and the proposed use are inappropriate in this area.

2. The building and its proposed used will adversely impact on the amenity of neighbouring residents.

4.3 The grounds on which the permit holder sought the review were:-

"1. The proposed development and use is not prejudicial to the amenity of the neighbourhood.

2. The building is necessary to enable the applicant to conduct his business.

3. The building and the proposed use are appropriate in the area.

4. In its present setting and with the additional planting proposed the building will not be readily visible from outside the site.

5. The conduct of the applicant's business in this area over many years has been recognised and supported by the Responsible Authority."

4.4 Objectors, Glenn and Kelly Brooks-MacMillan, lodged the following statement of grounds:-

"The permit application was made for approval of 537m2 of additions to a farm building completed without planning approval. The application was not, (as shown on the application review), an application to "use a building for a store ". Such an application was made in October 1997 and refused and no appeal was lodged against that refusal.

The applicants business, (currently unlawfully conducted on the site), appears to involve the following:-

Krann v Cardinia SC & Ors [2002] VCAT 473

At a glance

Court

Decision date

Before

Source

Judgment (438 paragraphs)

Krann v Cardinia SC & Ors [2002] VCAT 473 (11 July 2002)

Parties

Legislation Cited (2)

Cases Cited (1)