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

RESPONDENT OBJECTORS: 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:-

- storage of earthmoving/ tree felling equipment, industrial bins, fuel tank and trucks both outside the unlawfully constructed shed and in breach of Condition 4 of Council's permit T9 70652.

No permit should issued to authorise such business activities.

Neither the building or the proposed use are appropriate in the area.

The bulk and scale of the building and works will render it visible and promotes excessive noise levels.

The conduct of the applicant's business from this site has been unlawful from June 1998."

4.5 Kerrie & Stuart Thorpe, objectors, lodged the following statement of grounds:-

"1. We believe there. has been concealment of the facts with regard to the extent of this development and its proposed use.

2. Business not appropriate for area or zoning & concealment of facts with regard to proposed use.

3. Size of building and earthworks render the building visible and allow noise to travel to adjoining properties.

4. Works have been unlawful and impacted on us and the environment since approx March 1998, (and since work began on site, approx October 1997).

6. Works and development have been and do impact on the environment.

7. Planning and building process was not adhered to by applicant or responsible authority."

4.6 In the request to cancel the existing permit No. T970652, File No. P71303/00, the objectors, Glenn and Kelly Brooks-Macmillan, relied on the following grounds and alleged facts:-

"(a) there has been a material mistake or concealment of fact in relation to the permit application;

- original permit gave no reference to vegetation removal or 8 - 10 metre wall of dirt on our boundary.

- Works were to be 15m from our eastern boundary and 30 from southern boundary.

- Original building to be 5m high. Made of mud brick.

(b) any substantial failure to comply with the conditions of the Permit;

- batters not vegetated with indigenous trees and shrubs

- earthworks undertaken which has contributed to soil erosion

- more than one commercial vehicle kept on property not belonging to applicant

- the use has resulted in the emission of noise, vibration, smell, fumes, smoke, vapour etc

- major mechanical work has been undertaken fuelling and panel beating

(c) there has been a material mistake in relation to the grant of the permit;

- the responsible authority was not aware of the 8-10 meter wall of dirt on our boundary and the impact it would have on the enjoyment of our property.

(d) a material change of circumstances has occurred since the grant of the permit;

- the permit was not referred to the DNRE and any application today have to be referred to them

"Objectors were not given notice of granting of permit and hence unable to appeal to VCAT."

(9) to comply with building regulations under the Building Act 1993;

"Approved building permit does not represent the works actually undertaken"

4.7 In contesting the request Mr Kraan relied on the following grounds:-

"1. The owner of the land and holder of the permit contests each of the grounds relied on by the applicants in this matter.

2. There has been no material mis-statement or concealment of fact in relation to the application for the permit.

3. The owner of the property sought to rectify matters of failure to comply with the permit through a separate application which is currently seeking review before this Tribunal.

4. There was no material mistake in relation to the grant of the permit.

5. There has been no material change in circumstances since the grant of the permit which would give weight to the application.

6. There was no failure to give notice of the application under Section 52.

7. The building complies with the building regulations and a building permit can be issued for the structure.

8. The application should be dismissed because the applicants have not responded immediately as required by Section 89(3) of the Planning and Environment Act.

9. The permit has been properly issued and cancellation is not an appropriate action to be considered."

4.8 In the running of its application the objectors based their request on one ground, that Mr Kraan had substantially failed to comply with the conditions of permit T970652.

4.9 The responsible authority refused planning application, in No. P04257/01, on the following grounds:-

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

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

4.10 The permit applicant sought a review of the responsible authority's decision on the following grounds:-

"1. The proposed building is entirely appropriate in the area surrounding the subject land.

2. The proposal is consistent with the character of the area and would not give rise to any increase in detriment to the amenity of local residents.

3. In deciding to refuse to grant a permit, the Responsible Authority has failed to have regard to factors favourable to the grant of a permit, has taken inappropriate or irrelevant considerations into account and has failed to exercise its discretion properly.

4. The proposal accords with all proper town planning principles.

5. Under all of the circumstances, the Responsible Authority ought to have decided to grant a permit.

6. To the extent not already addressed in these grounds, the Applicant takes issue with the reasons for refusal given by the Responsible Authority."

4.11 Objectors, Kerrie and Stuart Thorpe, supported the decision of the responsible authority on the following grounds:-

"1. Proposed building and proposed use of building is not appropriate for the area.

2. The proposal is not consistent with the character of the area and would give rise to increase in detriment to the amenity of local residents.

3. The responsible authority must implement their own planning scheme and controls.

4. The actual/proposed use is not within planning principles.

5. Under all of the circumstances, the Responsible Authority needs to implement it's planning procedures and the breaches that have occurred need to be dealt with.

6. To the extent not already addressed in these ground, we as objectors take issue with the applicants use of building and breaches of the planning laws and processes."

4.12 Glen & Kelly Brooks-MacMillan, objectors, supported the responsible authority's decision on the following grounds:-

"1. The proposed application is to seek a retrospective permit which is entirely inappropriate to the area.

2. The proposal already exists and the character of the area has been adversely affected with local residents having clearly made the responsible authority aware of their concerns.

3. The responsible Authority has apart from serving an order for prosecution has given the owner 3 years to implement factors favourable to grant a permit. These factors have not been adhered to due to inappropriate or irrelevant reasons and hence the Responsible Authority has exercised its discretion properly.

4. The proposal is retrospective and if correct planning principles were adhered to the proposal would never have been considered and illegal works may not have been undertaken.

5. Under all of the circumstances, the Responsible Authority ought not to grant a permit.

6. The Responsible Authority's reasons for refusal of this permit are appropriate."

4.13 The hearing of this proceeding was difficult because of the number of applications, the number of times parties changed their positions on how the proceeding should be heard and the number of times parties changed their position in relation to what they sought.

4.14 On the first day of the hearing, 22 May 2001, I was informed that the parties concurred that the hearing should be in two stages. Firstly, I should initially hear the applications against refusal, P63909/2001 and P4257/2001, which are merits reviews. If I decided that a permit shouldn't issue for the applications sought then the request to cancel could be heard, P71303/2000. If I upheld either of the permit holders reviews, the hearing of the request would be unnecessary.

4.15 When the hearing of the proceeding recommenced on 24 July 2001, the objectors, represented by Mr Townsend of Counsel, changed position in relation to the two stage hearing and submitted all applications should be heard together. After hearing submissions from the other parties, I accepted the objectors request as I considered the most efficient hearing was to structure the hearing around the request to cancel as a merits review is a stage in the assessment of that application; acknowledging that there were two applications against refusal.

4.16 It was during the July hearing that the objectors forcefully submitted that the earthworks associated with the constructing of the shed didn't have planning approval. The responsible authority and the permit applicant maintain these earthworks were approved under the existing permit, T970652.

4.17 It was during the July hearings that the Mr Barber commenced development of his ultimate submission on 30 August 2001, ie. that his client required a development permit only as he had existing use rights under the existing permit T970652.

4.18 As a result of this manoeuvring the responsible authority filed an application on 29 August 2001 for the declarations set out above. These were later amended to:-

"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.

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

4.19 As Mr Barber's stance in relation to rights of the permit applicant was not finalised until the hearing of 30 August 2001, I allowed the parties time to consider the permit applicant's submission and to respond on the final day of hearing, 25 October 2001. This final day was also necessary for the parties to respond to the responsible authority's application for declarations.

5.1. The factual evidence as to the activities on the Kraan land and the use made of the shed were much in dispute. My decisions on the factual evidence will be determinative in a number of my assessments in this proceeding. Therefore, I intend to set out the parties evidence and submissions and my findings in relation to the factual evidence in this section of the reasons.

5.2. Evidence was given by a number of neighbouring objectors as to Mr Kraan's use of his land and shed. The first to give evidence was Mr Glenn Brooks-MacMillan. He gave evidence of many activities on the Kraan land in relation to the movement of vehicles, the grinding of metal, the banging of metal, explosions, the movement of materials such as tubes, pipes and logs, and the working of heavy earthmoving equipment and other machinery. This has taken place since the earthworks were carried out and the barn was erected in 1998. There is also dust and exhaust fumes. The noise can be heard within the Brooks-MacMillan House. There is external floodlights on the shed lighting up the working area between the shed and the boundary of the allotment. Also, there are large skylights in the shed which are lit up late into the night. Mr Brooks-MacMillan kept a detailed contemporaneous diary of the activities he claimed are carried out on the land; he also produced a video showing the manoeuvres of large vehicles and noise coming from the shed and its surrounds.

5.3. He gave evidence that prior to the earthworks for the shed site being carried out a number of indigenous trees were removed and the top of the hill was excavated to form the flat area for the siting of the shed and the working area at the rear of the shed. This resulted in the large embankment which has its toe immediately on the boundary between the Brooks-MacMillan land and the Kraan property.

5.4. He considers that his amenity has been substantially and detrimentally effected by the large fill embankment close on the boundary and also the size and bulk of the shed close to his boundary.

5.5. His evidence was corroborated by his wife Ms Kelly Brooks-MacMillan and an adjoining neighbour, who also adjoins the subject land, Ms Kerry Thorpe.

5.6. Ms Brooks-MacMillan gave evidence that there had been substantial impacts on their amenity arising from the Mr Kraan's use of the shed and surrounding area resulting in constant loud industrial type noise indicated by:-

* Front end loaders going inside the shed and out to unload into large industrial bins, with the bins being shaken and dropped, possibly for compaction, then return trips back and forth at many times throughout the day;

* further noise due to further clearing, earthworks on many occasions and another large shed being built illegally as far as I know, again in an area of remnant vegetation;

Ms Brooks-MacMillan said that the video illustrated a number of the activities set out above.

5.7. She gave evidence that there had been visual impacts resulting in a loss of amenity due to:-

* industrial bins, metal scrap and junk bins stored along the southern boundary and eastern boundaries of the Kraan property;

5.8. She gave evidence that noise from the Kraan property could be heard all day from within the house and often was heard over the noise of the television.

5.9. Ms K. Thorpe gave evidence of the noise and many movements of large vehicles and machinery, her evidence was similar to that of the Brooks-MacMillan.

5.10. Given the detailed and consistent evidence of the objectors, I consider the most significant aspect of this proceeding is the failure of Mr Kraan to give evidence. Serious and cogent allegations have been made by the objectors to the manner in which Mr Kraan uses his land and the use he makes of the existing shed. Under the principles of Jones v Dunkel (1959) 101 CLR 298, I can draw an inference that Mr Kraan's evidence would not have assisted his case: see Jones at 308, 312 and 320-1, O'Donald v Riechart [1975] VicRp 21; [1975] VR 196 at 929.

5.11. As set out in Cross on Evidence at paragraph [1215]:-

"The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled for evidence would not have assisted the parties case. The appropriate circumstances exist where it was within the power of the parties who tendered the evidence which was not tendered."

"The significance of the inference depends on the closeness the relationship the absent party with the party who did not call it. Considerable significance may be attached if the absent party is either the party or a senior executive of a corporate witness closely engaged in the transactions in question and present in court during the hearing."

5.12. I accept that the rule does not permit an inference that the untendered evidence would in fact have been damaging to Mr Kraan; and, further, the rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference: see Jones at 308, 312, 320-1.

5.13. As noted in Cross at paragraph [1215] the rule only applies where a party is "required to explain or contradict something": see Jones at 321_._ What a party is required to explain or contradict depends on the issues in the case as thrown up in the grounds taken by parties and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts "requiring an answer": see Jones at 322.

5.14. This is why the failure of Mr Kraan to give evidence is so crucial in this case. The serious allegations of his use of the land and the shed put by the objectors required an answer, required an explanation. Mr Kraan could have given evidence and provided that answer. When asked if Mr Kraan was going to give evidence his representative, Mr Barber said that it was his prerogative whether he did or did not and Mr Kraan chose not to put himself before the Tribunal. That is a choice Mr Kraan has made but he must understand that from his failure I consider I can draw a strong inference that his evidence would not have assisted his case when such evidence was necessary to answer the clear evidence of the objectors. It follows that I must and I do accept the evidence of the objectors. The evidence of the objectors was not contradicted by any witnesses produced by Mr Kraan.

5.15. Another source of evidence of Mr Kraan's use of his land is the reports of the responsible authority's officers to the numerous applications by Mr Kraan for planning permits to retrospectively approve of the size and form of the shed. In reporting on application T990791 to the meeting of the responsible authority on 6 December 1999, the officer reported that currently the building is used to provide for both commercial vehicle, and domestic storage, as well as a workshop which is used predominantly for the maintenance and manufacture of the applicant's business related equipment. The report went on that the applicant operates a water cartage business and tree lopping service, therefore large equipment is often stored on the site, such as a prime mover, semi-trailer mounted water tank, numerous flat tyre trailers and front end loaders, welding equipment, a quantity of steel and machinery spares. The officer reported that an inspection of the property revealed that the applicant uses the shed for storage of business and domestic items. Also, that the applicant's shed accommodates a large number of tools and equipment often associated with the engineering trade. It is considered that the building could be used for the maintenance and fabrication of machinery. This report also notes that the officer considered that Mr Kraan was refuelling vehicles on the site.

5.16. On the date of the officer's inspection of the property a large stump mulcher was found within the building, and it was evidence that the item was being constructed or assembled by the applicant. This was also the case on the date the Tribunal inspected the property, the large stump mulcher was also present and we were informed its fabrication had not been completed. Mr Barber informed me that he had been instructed that Mr Kraan had stopped fabrication of this piece of machinery in the shed.

5.17. In a report in relation to a further permit application by Mr Kraan to retrospectively approve of the 780 square metre shed, the officer reported that he considered the store as effectively a depot for a business which employs people other than Mr Kraan and involves maintenance work on a large range of machinery. This corroborates the evidence of the objectors that there were other people employed by Mr Kraan working on the property and in the shed.

5.18. Mr Barber submitted a substantial list of equipment that Mr Kraan keeps in the shed. This consisted of a Scania truck with rigid frame and there were two large water tanks and three truck trays to fit the rigid chassis, plus a large articulated trailer the truck can tow. There were a number of other trailers and two diesel fuel tanks either trailer mounted or capable of being placed on a trailer.

5.19. In relation to the tree removal business there was a large log skidder, a large tree grabber, and various other large implements that fitted onto the log handling vehicles. One of the large log handling vehicles appears to be registered. There is the larger tree stump mulcher which the applicant had been developing in the shed. This involved heavy engineering metalwork and welding; Mr Barber submitted that this development work had ceased. There were a number of large sets of harrows in the shed and Mr Barber submitted that the tines of the harrows were replaced in the shed. This I consider would involve substantial metalwork. Hammering to get the worn tines off the harrow spikes; further hammering to get the new tines on, substantial grinding to maintain the tines during their working life.

5.20. There was a large amount of smaller farming equipment which was, prima facie, of an appropriate size for the agricultural use of the subject land. There was also extensive personal machinery including a speed boat, camper trailer, etc.

5.21. As Mr Kraan submitted in the list there is a "Full complement of workshop equipment; drills, welders, grinders, etc." On the inspection other equipment observed were a heavy metal press and substantial metalwork materials. The list also states that there is a forklift, presumably for moving materials around the shed. A bobcat for the excavation of soil and soil transport was observed.

5.22. The list refers to "Full workshop supply of spare parts for all machinery" and "Spare tyres for machinery".

5.23. There is a large fuel tank on a high stand which could be used to fuel vehicles and fuel the site fuel tanks which are transported on trailers to fuel vehicles and equipment onsite. Fuelling on the subject land is not allowed by the conditions of permit T9700852. Mr Barber said the elevated fuel tank was taken to the work site to fuel equipment onsite, however, it did not appear readily transportable and there were two trailerable site fuel tanks. Mr Barber submitted the commercial vehicles were fuelled at a service station in the Pakenham area and accounts from that service station were produced by Mr Kraan. However, there was the strong smell of diesel in the triple trap at the view. The existence of the tank and the smell of diesel in the stormwater drainage system all point to an inference that fuelling takes place from this tank, either of machinery or vehicles or both. This inference was not met by any cogent evidence or submission that it did not take place. I consider it more likely than not that fuelling of machinery and vehicles take place onsite.

5.24. The list on its last page sets out the activities Mr Kraan says takes place onsite and in the shed as:-

1. Routine service and maintenance of truck and ancillary machinery.

2. Routine service and maintenance of agricultural equipment.

3. Routine service and maintenance of chain saws and personal speed boat.

4. Minor maintenance on Krann logging equipment ninety five percent (95%) of maintenance is done on the work site and all major work is conducted at the premises of various companies engaged to perform such work.

5.25. No evidence was given to ground Mr Kraan's list of activities. If his list, especially the last one was correct, it would fly in the face of the evidence of the objectors. Their evidence was uncontradicted. If Mr Kraan carried out all maintenance and repairs on the logging and water cart machinery and vehicles on site, for which he had a complete supply of spare parts and a complete complement of all necessary workshop equipment; this would provide a satisfactory explanation for much of the evidence of the objectors as to the activities and noise generated from the property and the shed.

5.26. Mr Barber agreed that previously Mr Kraan had fabricated machinery on the site eg. the development of the large mulcher, had stored inappropriate materials on the site eg. shipping containers; he submitted that now Mr Kraan did not do any of these activities which contravene the planning scheme. However, no evidence was produced that this was so. The reports of the officers of the responsible authority raised clear inferences that Mr Kraan has consistently and knowingly contravened the requirements of the planning scheme and had not complied with the conditions of his planning permit. However, no evidence was produced to refute the inferences contained in the reports of the responsible authority.

5.27. The unrefuted evidence of the objectors is sufficient to convince me that Mr Kraan does not use the subject land and the existing shed for "commercial vehicle storage" but some other use.

5.28. Taking all of the above evidence and submissions together is indicative to me that Mr Kraan uses the shed and his property to operate and maintain a substantial and successful water carting and tree removal and disposal business. I agree with Ms Brennan of Counsel, for the responsible authority, that the most appropriate categorisation of the use to which Mr Kraan puts the shed and his property would be that of "agricultural contractors depot". Under the superseded Pakenham Planning Scheme this use was defined as "land and or buildings used or intended to be used as a depot for the storage of materials and machinery used for agricultural production by hire or contract". Under the Pakenham Planning Scheme this was a prohibited use of Mr Kraan`s land.

5.29. Another factual aspect I wish to consider (although it does not have a great deal of relevance to my decision) is the issue of the first permit, as it appeared to assume some importance in the submissions and evidence called by the permit applicant. Mr McCaffrey, who appeared as a planning expert for Mr Kraan was at the time of the issue of the first permit the General Manager Planning for the responsible authority. Mr McCaffrey gave evidence that when the first application for the shed of 780m2 was received Mr Kraan was informed by the responsible authority in writing that a shed of this size was considered inappropriate for his land as it could only mean it was being used as a contractors depot. Mr McCaffrey gave evidence that Mr Kraan attended a meeting with him at which it was agreed that the size of the shed should be reduced to approximately 270m2. According to Mr McCaffrey the revised plan was drawn up by Paula van der Hough, a planning officer with the responsible authority. According to the evidence of Mr Heinrich Kraan, father to Mr Kraan, Paula Van Der Hough rang him once the amended plan had been approved and the permit issued to tell him that Mr Kraan's permit had passed. Mr Kraan senior said he then rang Mr Kraan and informed him of this fact. When asked in cross-examination if he knew that Mr Kraan had previously had discussions at the officers of the responsible authority Mr Kraan, Senior answered it was none of his business. In its letter to Mr Kraan of 12 January 1999, noting his non-compliance with the endorsed plans and building the shed to the original size of 780m2 the letter signed by Mr McCaffrey states:-

"You will recall that the building approved was with your agreement substantially reduced in area from the building for which you initially you sought approval."

However, Mr McCaffrey could not recall in his evidence what was discussed and agreed at this meeting.

5.30. Mr McCaffrey acknowledged in cross-examination that he was the General Manager Planning for the responsible authority at the time the permit was originally awarded. He had responsibility for what was contained in the reports put to responsible authority that recommended against a shed of 780m2. He agreed that he was now giving evidence that completely changed that opinion and which now considered a shed of 780m2 satisfactory. I do not consider Mr McCaffrey produced any cogent professional or factual evidence to substantiate how he could change his opinion. I find his evidence as a professional planner extraordinary and there appears to me to be only two possibilities:-

(a) firstly, he did not properly carry out his duties as the Chief Planner for the responsible authority and he incorrectly refused Mr Kraan a permit for a shed of 780m2; or,

(b) his evidence is partial because he has been employed by Mr Kraan to provide an expert opinion.

In either case, given the change in his professional opinion, I do not consider his evidence can carry any real weight.

5.31. Further Mr Kraan, Senior gave evidence under cross-examination that Mr Kraan, the permit applicant, had difficulty reading and writing. It was never directly submitted by Mr Barber that Mr Kraan's illiteracy coupled with the phone call his father took from Paula van der Hough regarding the issue of the permit was the explanation for why Mr Kraan built the shed at the size in original application of 780m2, however, I reject this inference on two grounds.

5.32. Firstly, on the grounds of relevance, to establish this as an exculpatory explanation as a legal defence, Mr Kraan would need to establish some form of estoppel against the responsible authority. But there was no evidence any officer of the responsible authority represented at any time that Mr Kraan could build a shed at the size indicated in the original application ie 780m2.

5.33. Secondly, on a factual basis, I accept the statement in the responsible authority's letter to Mr Kraan of 12 January 1999, that Mr Kraan expressly agreed at a meeting with officers of the responsible authority to reduce the size of the shed to that shown in the permit as issued ie. 27 by 9m, 243m2 and 5m high. I consider I can draw this inference from Mr Kraan's failure to give evidence and McCaffrey's failure to recall the agreement with Mr Kraan regarding the size of the shed at the meeting in January, 1999.

5.34. Therefore, I consider Mr Kraan has no real, and in particular, no satisfactory explanation at to why he built the shed with an area of 780m2 and a height of approximately 9.6m, far in excess of 5m. This is clearly a failure to comply with the conditions of the existing permit T970652; and for which I find there is no satisfactory explanation.

6.1. My assessment of the various applications in the proceeding are now set out. As stated earlier in the introduction, to cover the most ground as efficiently as possible, I start off with assessment of the application to cancel permit No. T970652. Secondly, I will deal with the two applications to review the responsible authority's refusal to grant retrospective permits; and lastly, I will provide my assessment of the declarations.

6.2. An assessment of an application to cancel or amend a permit is often considered to be a two stage process. First, there is a threshold test as to whether one of the grounds in Sec. 87 of the Act are made out. If that answer is affirmative the second stage assessment is a merits review of the proposal to establish on planning grounds whether a permit should issue under the current planning scheme for the development or use complained of: see Bell v Melbourne City Council [2001] VCAT 522 at para [2]. A close reading of the Act leads me to believe it is more like a seven stage process, which I have set out below. The sequence of the assessment so set out, is governed by a desire for hearing efficiency, ie. to conduct the assessment of the application to cancel or amend in the shortest time possible; and, secondly, to consider specific stages of the assessment where so required by the Act; for example see Sec. 91.

6.3. The stages are assessed sequentially and a negative answer to any of the stages means the request must fail.

6.4. The seven stage assessment process for an application to cancel or amend a permit flows as follows:-

(a) was the request made as soon as practicable after the requestor had noticed - subsec 89(3);

(d) is one of the required grounds made out, considering the provisions of the planning scheme in force at the time the permit was issued - subsec 87(1);

(e) given the current planning scheme, does a merits review of the proposal indicate that the issue of the permit in its existing form, or at all, is inappropriate - Sec. 90A;

(f) the requestor could not have been reasonably expected to have notice of the permit - subsec 91(2)(a)(i);

(g) the Tribunal is satisfied the requestor is substantially disadvantaged by the issue of the permit - subsec 91(2)(a)(ii); and,

(h) the Tribunal is satisfied that the cancellation or amendment is just and fair in the circumstances - subsec 91(2)(e).

7.1 The requestors say they acted promptly, as soon as they found out there had been non-compliance. But their action was not to lodge the request but to complain to the responsible authority. This is not what subsec 89(3) requires. The sub-section requires that the request to the Tribunal under s87 of the Act be made as soon as practicable after knowledge of facts in support of the requests. This is particularly so where requests are made by third parties and not the responsible authority or the holder of the permit. Director of Housing v Whittlesea CC [1998] VCAT 462.

7.2 It should be noted that the Tribunal has a complete discretion as to whether or not to refuse to consider a request on this grounds; the use of the word "may" in subsec 89(3) indicates that discretion. The factors that may be taken into account in exercising this discretion are unlimited; they may well involve the actions and behaviour of the parties.

7.3 Both the responsible authority and Mr Kraan submitted that I should refuse the request on this basis. However, I disagree. In the exercise of my discretion I consider it important that the requestors made a complaint to the responsible authority as soon as they became aware of the non-compliance with the conditions of the permit. This led to the responsible authority negotiating with Mr Kraan, in an attempt to get him to comply with the conditions or some modification of them. This was to the benefit of Mr Kraan.

7.4 I consider it is primarily the responsibility of the responsible authority, under the Planning and Environment Act, to ensure that its planning scheme and the conditions of its permits are complied with; it should not be necessary for individual citizens to have to make application to ensure that blatant non-compliances with conditions, as in this case, are attempted to be rectified.

7.5 Mr Kraan and the responsible authority negotiated for a number of years in an attempt to reach some compromise that was agreeable to the objectors, the responsible authority and Mr Kraan. A full mediation process was entered into and it was only after a number of mediations meetings when it became apparent that Mr Kraan was not going to significantly compromise on what he had already built and the use he was making of his property and shed that the mediation process broke down and the objectors made their request to cancel the permit.

7.6 The planning officer commented in the report to the meeting of the responsible authority on 19 June 2000 following the responsible authority's mediation attempts, that:-

"In summary, there is little scope for a mediated outcome of this matter. Mr Kraan during the course of mediation sessions indicated he would not be prepared to modify the buildings or earthworks. He was willing to accept a number of conditions relating to landscaping, stabilisation of earthworks, hours of operation and noise generated from activities. In view of Mr Kraan's past attitude, there is a concern and respect of the future compliance with permit conditions."

7.7 Lastly, and importantly, I do not think that the law should be used to perpetrate an injustice. I consider that Mr Kraan deliberately or with wilful ignorance built the shed at its existing size in defiance of the conditions of permit T970652. When this breach of the condition of the permit was pointed out to Mr Kraan, he has consistently refused to comply with the conditions of the permit. As such I do not consider that I should use my discretion to aid the continuation of his contravention of the conditions of the existing permit; particularly, as the contravening use he makes of his property and shed are continuous and continuing.

8.1. Mr Barber submitted that the building was completed and therefore the Tribunal does not have jurisdiction to hear the request.

8.2. Mr Townsend submitted as the building was not in conformity with the conditions of the permit it could not be said that the development had been completed in accordance with the permit; therefore, the development could not be completed: see Riordan v Bayside City Council {2001] VCAT 237. I consider there is logic in Mr Townsend's submission.

8.3. Further, an application to cancel or amend a use is allowed at any time: Section 88(c): see Logie v Campaspe City Council [1999] VCAT 431. It appears to me that the most substantial part of the objectors complaints is the use to which Mr Kraan puts the shed and his land. Thus, I consider I can hear the request. In relation to the shed I consider Mr Townsend's submission is the correct one.

9. SECTION 87 GROUNDS

9.1. The only ground argued under Sec. 87 was a substantial failure to comply with the conditions of the permit. Mr Kraan has obviously failed to construct the shed in accordance with the approved drawings. The approved drawings showed a shed of approximately 261m2 with a height of approximately 6.2m to the ridge line and 5m to the eave line. Mr Kraan built to the drawings he originally submitted to the responsible authority for a permit and which he was told would be refused, which was a shed of 780m2 and approximately 9.6m to the ridge line. Clearly this is a substantial failure to comply with a condition of the permit and I consider the ground made out under Sec. 87(1)(b). There are also other failures to comply with the conditions and these will be dealt with below.

10.1. I consider the merits review must consider whether the issue of a permit is inappropriate when assessed against the current planning scheme. To consider the review in the light of the planning scheme under which it was issued could cause an injustice or result in an absurdity. Therefore, this merits review will be considered under the provisions of the Cardinia Planning Scheme.

10.2. The only development and use that was submitted as being appropriate was a "Store" defined under the scheme as "Land used only to store goods, machinery or vehicles". My findings of fact clearly preclude Mr Kraan from this use, as he uses his land and shed to maintain and service heavy machinery and vehicles and for other industrial uses.

10.3. Further, a shed of the existing size is far too large for the equipment that could effectively be used in an agricultural use of the property.

10.4. The use of the shed by Mr Kraan in the development, servicing and maintaining his equipment, machinery and vehicles is not ancillary to the use of the property as a dwelling or for any agricultural use. The use of the shed for his business is separate to the use of the property for dwelling and agricultural purposes. I find the business/industrial use of the shed to be the most substantial use on the land; therefore, it cannot constitute an ancillary use to the dwelling and agricultural use.

10.5. I consider the shed, and the use Mr Kraan makes of it, to be intrusive, overbearing in size and height, noisy and likely to result in significant risk of water pollution of the surrounding area and waterways by the escape of hydrocarbons, such as diesel fuel, lubricating oils, etc. As such this is an inappropriate development and use to site in an Environmental Rural Zone (Schedule 1) and in an area covered by an Environmental Significance Overlay. Therefore, a permit should be refused for any application to build the existing shed and use the shed and property as it is currently being used by Mr Kraan; this use with its noise and potential for airborne and waterborne pollution is entirely inappropriate in this zone, particularly in view of the overlay.

10.6. I accept the responsible authority's comments in its report of 19 June 2000 regarding Mr Kraan's application for a permit to retrospectively approve of the existing shed for use as a `store' under the Cardinia Planning Scheme:-

"While a store is an allowable use within the zone provided it is used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of the dwelling on the lot, it is considered that the scale of the activity should be ancillary to the residential use of the property. In this case, the store is effectively the depot for a business which employs people other than Mr Kraan who is resident on the land and involves maintenance work on a large range of machinery. It is not considered that a use of this scale is appropriate in the area, and such activities would more appropriately located in an industrial zone. While the special nature and needs of Mr Kraan's water carting business are acknowledged, they can be accommodated in a building of the order of 200 square metres to 300 square metres as approved by the Council in 1998 as demonstrated on the plans submitted by Mr Kraan, and justification for a larger storage shed has not been justified."

11.1 It is obvious from my findings of fact that the size of the dwelling, the location and amount of earthworks and Mr Kraan's use of his land that the objectors are substantially disadvantaged by the Mr Kraan's failure to comply with the terms of the existing permit.

12.1. Obviously, the cancellation of the permit would have a substantial effect on Mr Kraan's operation of his business. It would put him to substantial cost in modifying the existing shed. It would put him to further substantial cost to relocate the operation of his business to another site. I need to balance the detrimental effect on Mr Kraan with the current and substantial detriment that I have found that the objectors suffer as a result of Mr Kraan's use of his property.

12.2. I accept and agree that in assessing whether to cancel or amend a permit the element of punishment of the person that does not comply with the conditions of a permit is irrelevant to my considerations. However, I do consider the element of deterrence can have some relevance at this stage of the assessment. The legislature and the community expect land owners to abide by the planning scheme and the conditions of any permit issued under it. If people fail to abide by the conditions of their permit and that is not recognised and acted upon in the community then the control and management of the planning system will fall into disrepute. Accordingly, I consider that deterrence is a relevant consideration for me to take into account in assessing whether it is just and fair to cancel this permit; however, it is not a consideration of great weight and it is not determinative as to whether I would consider it just and fair to cancel this permit.

12.3. Mr Barber submitted that Mr Kraan was of exemplary character and submitted documents to establish the voluntary assistance he had given to the Country Fire Authority and the State Emergency Service, especially with his cartage of water. This is of minor relevance and no matter what his standing in the community it does not exempt Mr Kraan from complying with the requirements of the planning scheme.

12.4. Without putting it in precise words, Mr Barber implied that the responsible authority had somehow acted improperly in granting the initial permit without specifically drawing to Mr Kraan's attention that the shed size was 9m by 27m. in plan area and not 780m2 as per the initial application plans.

12.5. I have dealt with this implication in my factual findings above, I concluded that Mr Kraan had to actually know or was wilfully blind as to the area of shed that was approved. I do not consider that Mr Kraan's inability to read in any way affected his knowledge in regard to what was the approved size of the shed in Permit T970652d issued on 4 May 1998. If I am wrong in this Mr Kraan has his remedies against the responsible authority.

12.6. On balance, I consider that the protection of the surrounding neighbours in an Environmental Rural Zone covered by Environmental Significance Overlay clearly outweighs the cost of relocating the industrial use Mr Kraan makes of his land; therefore, I consider that it is just and fair to cancel this permit.

13.1. The first refusal of permit, file P63909/2000, was an application to extend an existing shed to 780m2 for use as a vehicle storage. The second refusal, file P04257/2001, was an application for machinery storage which was accompanied by a plan showing a shed with a floor area of 18 metres by 26 metres ie. 468m2.

13.2. Mr Barber amended the grounds of the application for review to that of development only, claiming that Mr Kraan had existing use rights for "commercial vehicle storage" under existing Permit 970652. I accept this could be the case. However, analogous with Mr Townsend's application that the development could not be regarded as complete if the shed had not been built in compliance with the conditions; similarly, a use cannot be said to exist, if it never did exist in fact. Mr Kraan never used the shed on his property in conformity with the requirements of "commercial vehicle storage" or the conditions of the permit. As evidenced from the activities of Mr Kraan's use of the shed and property noted in the diary of the Brooks-MacMillan, evidence which I accept, Mr Kraan commenced running his contracting water carting and tree removal business from the site as soon as the existing 780m2 shed was erected; and he has continued to run his business on the property and in the shed ever since

13.3. As I have set out in my factual findings, he has always used the shed and his property in an industrial manner involving the development, maintenance and servicing of his business machinery, equipment and vehicles. Therefore, I do not consider Mr Kraan can have existing use rights to use the shed and property for "commercial vehicle storage", as this is a use he has never established in fact that he carried out on his property or in the shed. Therefore, I consider Mr Kraan does need a permit both to develop the shed and for its use.

13.4. Mr Barber called Mr Wyett, Landscape Architect of Environmental Resources Management Australia Pty Ltd, who gave evidence that he considers that the existing shed needs a vegetation screen. However, he acknowledged that under the Environmental Significance Overlay any planting should enhance the existing environmental significance of the area and as such you should not plant at densities much greater than the normal tree density in open sclerophyll forests. However, to effectively screen the existing building in the area between the building and the common boundary with Brooks-MacMillan, Mr Wyett conceded would need a density far greater than the existing density in the surrounding forest.

13.5. Further, Mr Wyett submitted that the planting should be of predominantly Blackwood (Acacia Melanoxylon), which is indigenous to this open forest and this area. However, blackwoods only predominate in this open sclerophyll forest in the damp gullies and along watercourses. I consider a relatively dense and coppice type planting on a ridge line of blackwoods would look alien and out of place; I do not consider such planting would enhance the existing environment significance of the area.

13.6. From my earlier findings in relation to the factual evidence and under the merits review I don't consider it is sufficient to provide screening in this area so as to allow the existing building or one reduced to approximately 470m2. I consider the major task is to ensure that Mr Kraan's use of his land does not involve industrial activity for the purpose of operating and managing his water carting and tree removal business.

13.7. Therefore, I consider, prima facie, that the responsible authority's refusals to grant the permit as sought should be upheld, unless some other benefit can be found by upholding one of the reviews subject to conditions I consider satisfactory.

14.1. The final application to be considered in this proceeding is the application for declarations under Section 149A of the Act by the responsible authority, file No. P51005/2001. The declaration sought are:-

1. Use of 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 970652.

I will deal with the applications for the first and second declarations together; I will deal with the third application, in relation to earthworks, separately.

14.2. The responsible authority submits that unless Mr Kraan can establish he has existing use rights in relation to vehicle, machinery and equipment store in association with his water carting and tree removal business it will be necessary to apply for a permit to use as well as develop his land under the current planning scheme. At paragraph 24 of its submission the responsible authority accepts that the existing permit allows the use of land for both commercial vehicle store and farm building.

14.3. It is Mr Barber's submission that Mr Kraan complies with the use of the shed as a farm building to be used for commercial vehicle storage. In his submission Mr Barber submitted that the use of commercial vehicle storage could take place anywhere on the land. I am not so sure, as the commencement of the development and use under the existing permit is for the erection of a farm building; however, I do not consider that anything turns on it and I will not pursue it further.

14.4. Mr Barber submission in relation to existing use rights under permit T97065 is correct if Mr Kraan had used the land in compliance with the definition of commercial vehicle storage and the existing shed as a farm building and had complied with the conditions pertaining to the existing permit. As I have found above, Mr Kraan did not ever use the land and shed for commercial vehicle storage; and, therefore, I consider no existing use rights arise: see para. 13.3. Accordingly, I do not consider there is any need to make the first or second declaration.

14.5. In relation the earthworks, the responsible authority submits that a reading of the conditions of the permit TP970652 shows that the earthworks carried out by Mr Kraan, without a planning approval, were retrospectively approved by that permit. The earthworks are in the south-east corner of the land and were carried out to provide a foundation pad and surrounding working area for the existing 780m2 shed. The responsible authority submits that this implication is apparent from:-

(a) the reference to "earthworks" in the delegates report preceding the grant of the permit;

(a) the reference to "earthworks" in Condition 2 of the permit which requires planting of batters on the eastern southern boundaries; and,

(b) Condition 3 which requires "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";

14.6. The responsible authority submits that what is authorised by a permit is principally construed by reference to its terms: BDL Cable and Electrical Code Pty Ltd v Brighton City Council (1990) 72 LGRA 227. The responsible authority submit that if the permit is ambiguous it is appropriate to refer to extrinsic documents as an aid on the question of interpretation.

14.7. Mr Kraan does not support the responsible authority's position. Mr Barber for Mr Kraan submitted that there are other potential forms of relief and declarations ought not to be given unless they are considered really necessary.

14.8. The objectors submit that the earthworks carried out by Mr Kraan to site the existing shed were not authorised by the existing permit, T970652 on the grounds that the earthworks were not described in the application for the development and use, nor were the earthworks allowed for in the conditions of the permit itself; nor, in the plans approved as part of the permit.

14.9. The objectors submit that the Tribunal in its decisions has routinely refused to allow reference to extrinsic documents such as a planning officer's report, in the interpretation of permits: Partland v City of StKilda (1989) 3 ATTR 166 at 173, King Rose v Shire of Metcalfe (1990) 5 AATR 269 at 270.

14.10. Alternatively, the objectors submit that Condition 2, referring to the earthwork batters is void for lack of certainty.

14.11. To a significant extent the application is academic, as my assessment of the request to cancel has been upheld and I have determined to cancel permit T970652; and, therefore, if retrospective approval of the earthworks existed, it is now cancelled. It is a principle of law that a declaration should not be made where it would be futile: Perder Investments Pty Ltd v Elmer (1991) FCR 201 at 204. Therefore, I decline to make the third declaration.

15.1. I consider the earthworks carried out by Mr Kraan to seriously contribute to the potential for erosion in this area, a significant concern under the overlay. It was the evidence of Mr Fairbairn, Consulting Civil Engineer, that the slope is too steep for the type of material in its composition leading to erosion and the potential for slippage, which would lead to severe erosion. In his reply to the responsible authority's request for information, Mr Kraan replied on 20 October 2000 that the existing batter slope was 45s, which is 1 in 1, a batter far too steep for long term stability and erosion control.

15.2. Further, the toe of the batter is too close to the common boundary with the Brooks-MacMillan land resulting in erosion of material into the Brooks-MacMillan property and the concentration of drainage water on to the Brooks-MacMillan property, which will also contribute to greater erosion.

15.3. The planning officer's report to the meeting of the responsible authority of 6 December 1999 noted in the "Background" that the permit holder, Mr Krann, had been instructed on several occasions to replant vegetation and stabilise the earthworks. The applicant had demonstrated little regard for the officer's advice and although some replanting had taken place much of it was inappropriate. Also when Mr Kraan first applied for retrospective approval to the existing shed the responsible authority's report noted that the earthworks had not been carried out in accordance with the conditions of the permit. This was further recognised by the responsible authority in the officer's report to its meeting of 19 June 2000 which noted that no landscaping had been established around the shed.

15.4. In relation to the application for a "machinery storage" on 2 October 2000, the Department of Natural Resources and Environment ("DWR6") as a referral authority, under the Environment Significance Overlay replied that it had no objection to the proposal provided the responsible authority ensured that:-

(i) the retaining wall is constructed of suitable material so as to be safe and secure and not prone to erosion;

(ii) the planting was as proposed and used local indigenous plant species is undertaken immediately to stabilised disturbed areas and prevent erosion;

(iii) the building is painted is painted in muted tones to harmonise with the landscape;

(iv) the site is suitably drained, and sediment traps constructed if need be, to ensure there is no off-site discharge of sediment.

15.5. To provide the assurances required by the requirements of the DNRE letter of 9 November 2000, and taking into account Mr Fairbairn's evidence, I consider that at a minimum four actions are required. Firstly, the toe of the batter needs to be taken back into the Kraan land at least two metres from the common boundary with the Brooks-MacMillan land. This is so to ensure that the drainage of the embankment does not occur in a haphazard fashion into the Brooks-MacMillan land. An open swale type drain can be installed at the toe of the embankment in the Kraan land and this will control the run off from the embankment within the Kraan land and if it proves necessary there can be a single sediment trap installed to comply with the DNRE requirements.

15.6. Secondly, the batter will need to be laid back to ensure an erosion free and stable slope for the future. There were various submissions at to what was the material in the embankment. The objectors maintained it was in situ material excavated from the surrounding area. The permit applicant maintained it was mine tailings but no source was indicated. There was no proof of the type of material. Whatever its source it has a high clay content and appears it may be susceptible to dispersion. Therefore, to ensure the embankment has a long term stable face and is not visually intrusive, I consider the batter slope of the embankment should not be greater than 1 in 4.

15.7. Thirdly, to ensure that there is sufficient ground cover to minimise the visual impact of the embankment I would require that a 100mm of top soil be laid over the embankment.

15.8. Fourthly, for stability and to minimize any potential for erosion the log retaining wall should be removed altogether. To ensure that the embankment is not visually intrusive no retaining walls should be allowed on the embankment.

15.9. Obviously, the landscaping required by Condition 2 of the permit has never been properly carried out and this is another failure of Mr Kraan to comply with the conditions of the permit. As the permit is cancelled it will be necessary to address these issues if any other permit is granted.

16.1. Given my findings, what are the appropriate determinations? The responsible authority submitted that I should affirm the refusals and not cancel the permit, leaving the ultimate resolution to further proceedings for an enforcement order.

16.2. I consider the approach of the responsible authority is inappropriate on a number of grounds. Firstly, the parties will be put to the added expense of a further extensive hearing. Secondly, I consider there are long term problems that are likely to develop with the present location and form of the existing embankment. Problems which could not be addressed in an enforcement of the existing permit. The responsible authority considers that the existing earthworks have been approved by existing Permit T970652 but I consider those earthworks inappropriate.

16.3. The permit applicant, submitted that if I found against him, I should allow one of the reviews of the responsible authority's reviews of an application for a permit subject to the conditions I consider appropriate.

16.4. The objectors submitted that I should cancel the existing permit; and, similar to the permit applicant, allow one of the reviews in part, such permit to be subject to the conditions I consider appropriate.

16.5. I consider I have sufficient information to issue a permit subject to appropriate conditions that would satisfactorily reduce the impact of the shed on the neighbouring property and which would require Mr Kraan to use the land only as a store and for the agricultural use of the property only, plus ensure the earthworks are in a satisfactory state for long term performance. I consider this the proper course to prevent a substantial further cost to all parties.

16.6. Accordingly, existing Permit T970652 will be cancelled under request P71303/2000. The decision of the responsible authority in application, P63909/2000, is affirmed. I refuse to make any of the declarations sought in application P51005/2001.

16.7. I allow the application to review the responsible authority's refusal to issue a permit under P4257/2001, in part. I consider that the size of the shed should be substantially reduced, to the size stated in the original permit of 27m by 9m and 5m in height. The earthworks and batter should be dealt with as set out above. The conditions I consider appropriate to achieve this are set out below to minimize the opportunities Mr Kraan has to maintain and service his machinery from the property. Accordingly, I have included a condition that requires that no diesel fuel or lubricating oil be stored on the property and that no fuelling of machinery or vehicles takes place on the property. This is also to minimize the potential for pollution in an area subject to an Environmental Significance Overlay.

16.8. The conditions I consider appropriate are in draft form only, the parties may well have suggested amendments that make the operation of the conditions simpler, more efficient and more effective for all parties provided the intent is not changed. With this in mind and to deal with any other submissions of the parties, I have fixed this proceeding for a half day hearing commencing at 10.00 am on 12 August, 2002 at 55 King Street, Melbourne. After this hearing I will issue the conditions of the new permit in final form and make any other final orders arising from the further hearing.

16.9. My determination in application P4257/2001 is that the review is allowed in part and the responsible authority will be instructed to issue a permit subject to the following draft conditions, the form of which will be confirmed in my final determination following the hearing of 12 August 2002:-

(1) Within 10 weeks from the date of issue of this permit the applicant must submit amended plans to the satisfaction of the responsible authority, showing:

(a) the reduction of the area of the existing building from 780m2 to 243m2;

(b) amendment to the roof line such that the maximum height of any portion of the roof does not exceed 6.5 metres in height;

(c) the existing location of the south-west corner of the existing building will remain the same in the amended building;

(d) the southern face of the amended building and the western face of the amended building will be in the same location as they presently exist;

(e) the major access of the amended building ie. the longest side in a rectangular building, will be its north-south axis.

(f) remove any skylight or dorma windows to the south of any east west roof ridge line or to the east of any north south roof ridge line.

The plans must be drawn to scale with dimensions and three copies must be provided. When approved by the responsible authority the plans would be endorsed and will then form part of the permit.

(2) Within ten weeks of being informed by the responsible authority that the amended plans have been approved, the applicant will have carried out the amendments to the existing building to the satisfaction of the responsible authority.

(3) Within 10 weeks of the issue of this permit, the applicant will submit to the satisfaction of the responsible authority plans showing the amendment of the existing earthworks, amended to show:-

(a) the toe of the eastern face of the earthworks being at a minimum of two metres from the eastern boundary of the subject land;

(d) the reduction of the existing slope on the eastern face of the earthworks to a maximum slope of one in four or 11½ø;

(e) place a minimum of 100mm consolidated depth of top soil on the eastern face;

(f) construct a shallow earthen drain, of the swale type, parallel to the boundary between the toe of the eastern embankment and the boundary fence to discharge any storm water or seepage so as to minimise any erosion to any land and any nuisance flows to any adjoining land;

(4) Within ten weeks of the date the issue of this permit the applicant must submit to the satisfaction of the responsible authority, a Landscape Management Plan showing:

(a) screen planting from the existing eastern and southern boundaries for a width of 30 metres landscaping with indigenous trees and plants from the surrounding area;

(b) detail on the drawings or in an accompanying document a schedule of the species and numbers of trees, the plans to show their location;

(c) detail on the plans or in an accompanying document the provisions to be made for the management of the landscaping to ensure its vigorous growth and continued health.

(5) The applicant must maintain the landscape planting in a healthy condition and any dead or dying plants must be replaced. To secure performance of the landscaping work and its maintenance the Applicant must lodge with the responsible authority a bond of $10,000 prior to the responsible authority informing the applicant of the approval of the Landscaped Management Plans.

(6) Providing the Landscape Management Plan has been satisfactorily carried out for a period of two years from the date of completion of planting the responsible authority will return the bond to the applicant.

(7) At any time the responsible authority may write to the applicant requiring compliance with the Landscape Management Plan. If the applicant fails within 3 months to bring about compliance with the Landscape Management Plan, the responsible authority may, without any notice, transform the bond into cash and use the money to carry out the works necessary to ensure compliance with the Landscape Management Plan. The applicant by the acceptance of this permit acknowledges and allows the free and unhindered access for the responsible authority, its officers and agents, to the land to ensure compliance with the Landscape Management Plan.

(8) The residents on the land shall not keep on the land any vehicles other than their own automobiles, a single prime mover and one only trailer with a carrying capacity exceeding two tons and the agricultural machinery, equipment and materials necessary to farm the land. Within 4 months of the date of issue of this permit the applicant will provide the responsible authority with a schedule of the automobiles, prime mover, trailer and farm machinery and equipment being stored on the land.

(9) All vehicles, machinery, equipment and materials, other than those denominated above, will be removed from the land within 4 months of the date of issue of this permit.

(10) Other than those used to farm the land, no vehicles, machinery or equipment will be maintained on the land; this includes but is not limited to any engineering or metal fabrication work.

(11) No diesel fuel or lubricating oil will be stored on the site nor will any fuelling of vehicles or machinery, take place on the site other than one medium sized agricultural tractor.

(12) The amenity of the area must not be detrimentally affected by the use or development through:-

(a) the transport of materials of goods to or from the land;

(b) the appearance of any building, works or materials;

(c) the emission of noise, artificial light, vibration, odour, smoke, dust, storm water, waste water or waste products.