Mr N Crawford, solicitor of TP Legal, solicitors appeared for Landforming to Perfection Pty Ltd.

He presented written and oral submissions and called three expert witnesses who each gave oral evidence and adopted a written report. They were Deborah Donald, Traffic Engineer, Giovanni Gattini, Town Planner and Frank Butera, Acoustic Consultant.

Ms N Sommer, solicitor, of Maddocks solicitors appeared for the responsible authority.

She presented written submissions (in two documents) and oral submissions.

Mr Peter O'Farrell, barrister, appeared on the instructions of his clients for Roy Pearce and Janice Pearce. He presented written submissions (in two documents) and oral submissions. He also tended a data stick.

He called Mrs Janice Pearce and Mr Roy Pearce as witnesses.

Ms Sarina Ferlazzo appeared in person for herself and for Ross Ferlazzo.

Various plans, photographs and other documents were tended in evidence. A data stick was tended and video recording and sound recordings were played. The evidence and submissions in paper documentary form have been retained on the file of the Tribunal.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit

Permission is required under the Green Wedge Zone provisions in Clause 35.04-1 of the planning scheme to use the land as an earthmoving contractor's depot

Crown Allotment 18F (or part thereof) Section D Parish of Deutgam being the land in Certificate of Title Volume 9471 Folio 748

A quadrilateral (almost rectangular) area of land with an area of 3.25 hectares on the south side of Aviation Road that was originally part of a larger property but which is now landlocked from Aviation Road by the other half of the original land known as 845 Aviation Road, save for a right of way from Aviation Road along the western boundary of number 845

Alexander George Tauntzis and Vanessa Anne Frangapane

Pioneer Concrete (Queensland) Pty Ltd v Brisbane CC (1980) 145 CLR; 44 LGRA 346; [1921] VicLawRp 111; 28 ALR 1

Andsand Pty Ltd v Kingston CC (No. 2) [2009] VCAT 2506

Mollica v Bulla SC (1992) 9 AATR 157

Cascone v Whittlesea CC (1993) 80 LGERA 367; (1993) 11 AATR 175

The original permit application described a proposal for which permission was sought as "TO USE THE SITE FOR STORAGE OF FARM MACHINERY AND FOR SUB-CONTRACTOR BASED REPAIRS AND MAINTENANCE ON THE MACHINERY."

The use sought has been amended to read "earthmoving contractor's depot"

1. Landforming To Perfection Pty Ltd (the company) is seeking planning permission to use land as an earthmoving contractor's depot. It is seeking a planning permit to use the land for that purpose but it is not seeking permission to develop the land. It becomes important to keep this distinction in mind.
2. Notice of the permit application was given. There were objections including from the objectors who appeared or who were represented at the hearing of this case.
3. The responsible authority considered the application and the objections and determined to refuse to grant a permit. This lead the company to apply to this Tribunal for a review of that decision.

1. The hearing of this case occupied five days. In the course of that lengthy hearing, quite a number of matters were raised, discussed or mentioned. Some of them were minor, by the way, or irrelevant. I will not attempt to deal with everything that got a mention along the way but there are several main issues that I need to deal with.
2. The essential, and indeed the main issue is as to whether the proposed use is suitable, on its planning merits, for this location. This will involve a consideration of the planning merits of the proposal and that needs to be done with reference to the purposes of the zoning of the land and various planning policies, principles and decision guidelines that are relevant to the circumstances of this case. It is also necessary to consider the review site, its characteristics, surrounds, existing assets and access.
3. It is argued that the proposal should not be approved because of alleged adverse effects that the proposed use will have, indeed has, on surrounding properties. These amenity considerations (excluding minor matters referred to along the way) are three. These alleged amenity detriments are:

1. the appearance of buildings and works on the land.
2. There is an incongruity about the third of those alleged amenity detriments. That is because this proposal does not include an application for permission for any buildings or works on the land. The evidence and submissions in that respect are actually beside the point. If there are questions or problems about such buildings and works or how they came to be on the land or whether they are appropriately on the land from a planning viewpoint they may require consideration, but in other proceedings. The point has been correctly made by the representative of the company that there are clear and definable limits to this application and what is relevant to this proceeding. No enforcement order is sought here, nor any declaration, nor any other relief.
3. There is a contest in this case as to whether "earthmoving contractor's depot" is the correct and appropriate designation or characterisation of the land use for which permission is being sought. Ordinarily, a permit applicant is able to designate the land use for which permission is sought. If a permit is granted, the permission exists for that land use and not some other. A planning permit application for permission for land use presupposes that such a permit is necessary and can be granted. Some uses in some zones can be carried on without permission, whilst others are prohibited and cannot be commenced. In either of those situations, there is no question of a planning permit being granted for use of the land. In saying this, I am disregarding planning law in relation to "existing use rights" but I can safely do that in this case as no one has raised or seeks to rely on such rights.
4. If a permit is granted the occupier of the land can use the land for the purpose permitted, subject to any conditions that might be included in the permit. If the applicant has made a mistake as to the land use it wishes to conduct, it may have to make a new application for the correct land use.
5. Nevertheless, there can be arguments as to what is the correct characterisation of the use contemplated. A land use permit application will normally state the use for which permission is sought and may contain further information describing and defining the use. If the information is insufficient, the responsible authority can seek further information before making a decision.
6. It will be necessary, in seeking to understand this case and its context, to review how it has arisen, as well as the planning scheme provisions that are relevant to it. For the moment, it is sufficient to observe that the company is already conducting a business on the land. It has been challenged as to whether the business is lawful, and it is seeking planning permission to authorise the use of the land for the purposes of that business. That means that there is more information than might usually be available as to the nature of the business, as well as its impacts. All this can be helpful in throwing light on the proposal and enabling a proper assessment to be made. It is long established that such circumstances do not enhance or disadvantage the prospects of permission being granted.
7. Nevertheless, there is a certain danger. There is a tendency for people to latch on to certain aspects of what has gone on in the past and to assert that it is necessarily implied that, if permission is granted, it will continue in the same way. However, it is entirely possible for some aspects that might have had detrimental effects in the past to be prevented, by the imposition of conditions, from being continued into the future. Some aspects or activities might be required to be changed without that changing the real and substantial purpose for which the land is being used.
8. Another question was raised on behalf of the objectors Mr and Mrs Pearce on the second day of the hearing. This argument centres on buildings and works that already exist and for which no permission is now being sought. Nevertheless, an attempt has been made to invoke a well-known decision of the High Court of Australia which opposes so-called "piecemeal" applications. In short, this notion is that, where two or more planning permissions are required to enable a proposal to proceed, they should (I presume assuming that there is no good reason to the contrary) be all applied for together so that they can be considered together and in relationship to each other. This is a very sound approach that is well recognised in planning law and the leading case commonly cited in this respect is the High Court's decision in Pioneer Concrete (Queensland) Pty Ltd v Brisbane CC.[1] It is argued that the current case falls foul of this principle.
9. I note that this matter was raised on the second day of hearing. Unfortunately, the original hearing was fixed for one day which was insufficient for the purpose. It was adjourned for a hearing when two days were fixed. The amount of time occupied by this piecemeal application argument occupied so much of the second day as to make it impossible to complete the hearing by the end of the third day. I note too that notice of this issue was not given in the objection of Mr and Mrs Pearce or their statement of grounds or otherwise so that the company and its representative were taken by surprise when it was raised on the second day.

1. The review site is known as 847 Aviation Road, Werribee South. It is on the south side of Aviation Road but does not have a direct frontage to it. Originally, it was part of a larger allotment constituted by what is now 845 and 847 Aviation Road. That larger allotment had a frontage of or about 149.27m to the south side of Aviation Road. It has been subdivided into the two present allotments with approximately 60% of the area constituting the review site at 847 and the balance at 845 occupying the road frontage. The division between the allotments is roughly east-west but on a slightly oblique angle. The common dividing boundary runs just south of a transverse drainage reserve containing an open drainage channel that runs from west to east along the southern edge of the northern allotment.
2. The actual review site is a quadrilateral and would be a rectangle but for the oblique alignment of its boundary along the southern edge of the drainage channel. Its southern boundary is 149.27m long, with the northern oblique boundary measuring 158.62m. The western and eastern side boundaries are 189.20m and 246.83m respectively. The area is 3.237ha.
3. The site would be landlocked but for a right of way in its favour along the eastern boundary of number 845. There is a track or driveway on this right of way which is constructed and formed but not sealed.
4. Aviation Road is a sealed carriageway, a Road Zone Category 2 under the planning scheme and an important thoroughfare. The shoulders on either side of the sealed portion are unsealed. There are other roads in the vicinity that are not sealed, and the same is true of most of the driveways giving access to the various properties along Aviation Road.
5. The review site and its surrounding area are located Green Wedge Zone and is part of an important market gardening area. The land roundabout appears flat although there is some slight fall. The soil is a sandy loam, very valuable for market gardening and irrigation water is reticulated for use for that purpose. Spray irrigation is commonly used and garden crops like broccoli and cauliflower are common. A good deal of the land roundabout is used for growing such garden crops, but there are other rural or farming uses as well. It was said that this is a market garden area of state, and indeed national, significance. Notwithstanding that, landowners or occupiers are not obliged to use their land for such purposes unless they wish to do so.
6. The right of way giving access to Aviation Road runs north from the drainage channel with garden paddocks on either side. Then, for the last 60 or so metres before Aviation Road, it passes between two dwellings. The one on the western side of the lane is located in a small excision with the rest of the original property on that side used for market garden purposes. The house to the east of the right of way has a large shed across the rear of its curtilage and another house adjoining to its east. The balance of that property is used for market garden purposes. It has a dam in its southwestern corner.
7. The objectors, Mr and Mrs Pearce, live in the next property to the east in a house situated just south of the drainage channel. Theirs is the house closest to the review site. However, neither they nor the objectors R & S Ferlazzo (who live in one of the houses already mentioned that front the south side of Aviation Road) actually conduct market gardening themselves. They use their properties for residential purposes whilst others tend to growing vegetables, presumably on the basis of leases or share farming agreements.
8. There is no house on the review site itself. However, there are some developments on the land. Something over half of it has been and is used by Alexandar Tauntzis for the growing of broccoli. He, together with Vanessa Frangapane, is the owner of the land. The market garden activity is not carried out in the name of the company. The company's activities are on the western side of the land starting near the drainage channel and continuing south to a square irrigation dam in the southwest corner which is used for irrigating the garden area.
9. There is a large blue shed on the company portion of the land and set to the northern portion of it close to the drainage channel. It has a concrete floor and is surrounded by a concrete apron. This includes a strip down the western side of the building between it and the western side boundary and across the rear of the shed with wider areas of concrete in front of (to the north) and on the eastern side of the shed. Behind the shed, and behind the concrete apron, there is an area of unsealed hard stand running back to the irrigation dam.
10. The interior of the shed itself, and the hard stand areas around it, are available for, and are used for, the parking of temporary "garaging" of vehicles and earthmoving plant and equipment. Cars visiting the property are parked on the northern apron between the shed and the drainage channel. In this locality there are two smaller sheds used as offices and reception area. The large blue shed has two sets of large doors in its eastern wall which can admit large vehicles and equipment into the shed.
11. Large and very large sheds are commonplace in this area.
12. Not all of the land is occupied with the company's shed and hard stand on the one hand and the garden area and dam on the other. Centrally located at the northern end of the land, and to the east of the shed and its concrete apron, there is a vacant area where some fill has been placed on the land. The owners of the land hope to obtain permission to construct a dwelling on that area. I presume that is with a view to them living there so as to be handy to the business and the market garden. However, the question of the possibility of such a house and the question of the laying of that fill are not part of this case and not relevant to it. I do not propose to seek to determine the legality or otherwise of the placing of that fill, notwithstanding that it is part of what has aggravated objectors and caused them to make their initial complaints to the responsible authority in relation to the use of the land. It appears from the evidence that the major initial prompt to complaint was another activity that was being carried out on the land. This involved stone crushing which was noisy and dusty.
13. I believe that would have been an industrial activity prohibited in the Green Wedge Zone that applies to the review site. Officers of the responsible authority investigated the complaints and the stone crushing activity ceased as a result and has not been resumed. Although part of the history, and although causing the aggravation that provoked initial complaints, these circumstances are not relevant to the current proceedings. Nevertheless, having been so provoked, the objectors have continued their objections to activities on the land in spite of the cessation of the stone crushing activities.
14. There has been some planting of little palm trees and the construction of boundary fencing. I doubt that either landscaping or fencing required planning permission but whether that is correct or not, these matters are not relevant to the current case.
15. Airborne dust is common in the area when conditions are dry due to vehicles running over unsealed roads and driveways, and vehicles and other equipment operating in the market garden paddocks. Vehicles and equipment operating on roads, driveways and paddocks generate noise, as do aircraft utilising the nearby air force base, although much of the air traffic is directed out across Port Phillip Bay.

1. The company is conducting an earthmoving contractors business using the site as its base or depot. This business started in a small way with one unit of earthmoving plant and with most of the earthmoving work being contracted for and carried out in the surrounding market garden areas. Since then the business has prospered and grown. The number of employees and the number of vehicles and earthmoving machines varies somewhat but 12 people are employed. Numerous slightly varying tallies of equipment and vehicles have been provided but at one recent stage the "fleet" was comprised of seven tractors, five laser buckets (large levelling machines towed by tractors), three excavators (sizes ranging from five to thirty tonnes), four utility vehicles (one stored on site), one maintenance truck (stored on site) and one forklift.
2. It is said that the laser levelling that the company contracts to carry out is of a specialist sort and that this company, and another in Shepparton, are the only operators within Victoria. Laser levelling is often utilised for various forms of farming and market gardening. The company also contracts for other forms of earthmoving including the construction of dams (again useful for farming and market gardening) and what was called in the hearing "civil construction work". Forms of work mentioned in connection with this included earthwork associated with road construction and development. I take the latter to mean roads or other works, perhaps including levelling or "benching" of house sites, in connection with subdivisions or residential development.
3. Although some arguments were raised about the proportions of business in these various forms, the evidence suggests something in the order of 50% (or thereabouts) being attributable to local rural and market garden works and that this proportion (although not necessarily net amount of work) has decreased as the business has grown and other work further afield has been engaged in. It will become apparent that local earthmoving works associated with market gardens or other rural activities can be argued to be a consideration in favour of granting a permit. If the business is established and able to operate, and able to carry out similar and other forms of earthmoving work, I think it is unrealistic and unnecessary to try and confine it solely to local market garden laser levelling and dam construction. It might be relevant that there is an element of such works in the "menu" of work undertaken by the company, but I see no reason why other work of a similar nature should be taken to be a reason for refusing this proposal.
4. The contracting work undertaken by the company is not carried out on the site, although I dare say that some work in relation to the garden could be carried on. The company contracts to conduct work at other locations. The tractors involved are very big, although they are approved for use on roads. Necessarily, they must travel at relatively low speeds compared to motor car traffic. Over longer distances, heavy equipment is carried to work sites on low loader vehicles. The company contracts with others for that form of transport work. It does not have low loaders itself.
5. Earthmoving work at particular sites will be carried on for varying lengths of time, according to the amount of work to be done. Generally speaking, the tractors and other equipment are kept on those sites until the job is finished. When finished, they are moved to the next work site. However, they may be relocated to the depot for garaging or for maintenance or repair work. Most of the time, most of the equipment is off site.
6. Mr Tauntzis is the manager of the company's business and a director of it. He divides his time approximately half and half between being on site and out at work sites. There are two receptionist administrative workers on site and a mechanic is employed. The mechanic carries out maintenance and running repairs on vehicles and equipment. Some of this work is done out on the work sites and some of it back at this base or depot. He is on site for approximately half of his working time. It is economic for work to be done out on the construction sites if that is possible. Sometimes vehicles or parts are brought back for work to be conducted on the site. Sometimes work must be done elsewhere. Sometimes people doing work in connection with the vehicles and equipment that is outside of the scope of the mechanic go to the outside sites or to the home base to carry out such things as auto electrician repairs.
7. The mechanic has a maintenance vehicle. It carries some fuel and tools and equipment out to work sites. At one stage there was a large fuel tank on the site but it has been removed.
8. Plant and machinery operators are only seldom on site during their working hours but it is the "home base".
9. Some of the equipment used in or outside the big blue shed creates noise. Noise is an issue in this case. However, I accept that only one mechanic is employed. I am not concerned that the possibility of more than one maintenance or repair activity being carried on at the one time. Although it is possible for the mechanic to ask a plant operator to assist in some way, with one mechanic I anticipate one job at a time would be the general rule and two jobs going on simultaneously would be very occasional. In any event, the increased noise of two noise generators operating simultaneously is not the cumulative adding together of the two noise levels measured in decibels. Normally the increment is relatively small.
10. Administrative work in relation to the business is conducted in the small sheds where there is a counter, telephones, office equipment and the like.

1. The original permit application giving rise to these proceedings was prepared by Mr Tauntzis without assistance or advice by any lawyers or town planners. He is a lay person, so far as town planning law and practice are concerned. In answer to the question "For what use...do you require a permit?", he inserted the following in the application form:

"TO USE THE SITE FOR STORAGE OF FARM MACHINERY AND FOR SUB-CONTRACTOR BASED REPAIRS AND MAINTENANCE ON THE MACHINERY"

1. That might be a fair enough lay person's attempt at formulating a statement of the proposed purpose for which the land was to be used. However, professional town planners assisting the objectors Mr & Mrs Pearce suggested several times that this was an incorrect description and that the land use should be characterised as earthmoving contractor's depot. I am quite satisfied that these planners were perfectly correct in saying that.
2. Since then however, representatives of the Pearce objectors and the responsible authority have tried to argue that the correct characterisation of the use is as industry. There have been quite a number of past cases in which the characterisation of this sort of activity have been discussed. Many were cited in argument. They include my own decision in Andsand Pty Ltd v Kingston CC (No. 2).[2] There is also discussion of the concept of "depot" as a land use in the glossary section of Planning and Environment Victoria see [435,665.93] therein. That annotation refers to there being various types of depot including contractor's depot, cartage contractor's depot, earthmoving contractor's depot, municipal depot, etc.
3. Most commonly, the controversy has been as to whether a particular use should be regarded as a "store" as opposed to some form of depot. In this particular case, the suggestion is that the use ought to be regarded as "industry". It has not escaped notice that industry is a prohibited use in this zone for which planning permission could not be granted, whereas earthmoving contractor's depot would be a so-called "innominate"[3] use. In other words it is an unspecified use within section 2 of the Table of Uses relating to the Green Wedge Zone. Uses in section 2, including innominate uses, can be granted planning permits.
4. I am satisfied that the understanding given in the Andsand case and other cases is correct and that this current activity is an accurate example of just what is meant by an earthmoving contractor's depot. Such depots are now well recognised as a land use. They are a land use that can be clearly distinguished from industry.
5. Clause 74 of the planning scheme contains land use definitions for the purpose of the scheme. One of the defined land use terms is "Industry". It is a fairly extensive definition and contains a number of some categories of industry. The land is in a Green Wedge Zone. Subject to several specific exceptions, the land use "Industry" is a prohibited use in that zone. If it were to be established that the proposed use is really industry rather than earthmoving contractor's depot, then it would be impossible to grant a permit for the existing and proposed use of the land unless the variety of industry concerned was "Rural industry". Rural industry is a variety of industry but it is a particular type of industry and it is in section 2 of the Table of Uses found in clause 36.04-1 of the Green Wedge Zone provisions of the planning scheme. There are a couple of other subcategories of industry that are also in section 2 of the Table of Uses so that they can be carried on subject to the obtaining of a planning permit. However, those other subcategories are not relevant in the present case.
6. The basis for claiming that this is industry relies on a part of the definition of industry in clause 74 of the planning scheme. The relevant portion, for the purposes of this argument, reads:

1. ...
2. laundering, repairing, servicing or washing any article, machinery or vehicle other than on-site work on a building, works or land;"

1. The basis for claiming that the company's business is industry within that definition is because repairing, servicing and washing of vehicles and machinery takes place on the land within the shed or on the hard stand areas, and it is intended that such activities are to continue. Superficially, it might appear that this portion of the definition of industry is satisfied. However, the business conducted by the company, and the essentials of its use of the land, is not repairing, servicing or washing machinery or vehicles. Those activities are mere ancillary aspects of the land use of earthmoving contractor's depot. It would be different if vehicles and/or machinery, not being the tools and equipment of the business itself, were being brought onto the land for the purpose of repairing, servicing or washing. An example would be if the business was the washing of taxis not owned by the company or the maintenance of vehicles of members of the public bought to a mechanical workshop for such treatment. Here, the vehicles and machines are the working equipment of the company used for its business of earthmoving contracting. The work of the mechanic is ancillary. It is to keep the vehicles and machinery in a serviced and serviceable condition so that the drivers and operators can get on with the essential business of the company that is carrying out earthmoving works.
2. There are office facilities in the small sheds on the land. Such office is also an ancillary aspect of the land use. If the office was somewhere else on other land not otherwise associated with the business of the company, that other land might well be being used for the purpose of an office within the meaning of that expression and the planning scheme, and that would be particularly so if it was taking in administrative work for other individuals or businesses. As it is here, it, like the repair works, is a mere ancillary of the real and substantial land use of earthmoving contractor's depot.
3. The correctness of that approach is so well established and so long established in planning law that it is not necessary to further expound the reasoning here or to cite authorities but I will mention two, namely Mollica v Bulla SC[4] and Cascone v Whittlesea CC.[5]
4. In the course of the hearing there was even a passing suggestion that the repair activities might come within another part of the definition of industry, namely where land is used for:

1. There is no manufacturing or manufacturing equipment on this land. It is possible that the mechanic, for the purposes of a repair or servicing, might fabricate some part or another, although it is common to use items manufactured elsewhere as replacements where such needs arise. I suppose the need for a gasket could arise in the course of a repair or maintenance work. If no standard manufactured part was available, I suppose the mechanic could create one by cutting the necessary shape out of a sheet of cork. That might be quicker than sending off for the part, which may or may not be available, and may be just as effective. It could be said that cutting out the gasket was fabricating something, and I suppose that, in a sense, could be said to be manufacturing it. However, it is obvious that this would be a mere ancillary or incidence of the ancillary activity of repairing or maintaining the vehicles and earthmoving machines. The argument just does not hold water.
2. I am quite satisfied that the use to which the company has been putting the land and the use to which it desires to have permission to use it for is earthmoving contractor's depot. The professional town planners employed by the Pearces were correct in this from the beginning. The attempt to manufacture or manoeuvre to a suggestion that the use is really industry fails, as far as I am concerned. In fact, the authorities indicating this is so clear, so well established and so long established that, in my opinion, it should not have been necessary to deal with this matter. Experienced town planners and planning lawyers should be familiar with those authorities.
3. I do think it is necessary, for present purposes, to consider further the possibility that the activity could be "Rural industry" as defined in the planning scheme. I have considered the matter but I think it is fair to say that the argument was not really advanced if, for no other reason, than because that land use is permitted and if it was the right categorisation a permit could be granted.
4. In any event, this use is not rural industry even though the definition of that land use in clause 74 includes "service or repair plant or equipment, used in agriculture". The same sort of distinctions as apply to "industry" also apply to this particular sub-category of industry. The repair and service of equipment here is not the real and substantial use of the land but a mere ancillary of the real and substantial use, namely earthmoving contractor's depot.
5. According to clause 74 of the planning scheme, "Store" is a variety of "Warehouse". Both of those land uses are defined. So far as the relevant Table of Uses is concerned, all warehouses, including all stores (Subject to several exceptions), are prohibited uses for which land use permits cannot be granted. They are not relevant here. I suppose there could be argument that the exceptions include "Rural store" and "Vehicle store". I am satisfied that the use proposed here is not vehicle store or rural store and I do not need to go further into that question. That is because the point was not argued and also because, in any event, those land uses are not prohibited. They are land uses that are either in section 1 of the Table of Uses so that they can be carried on without a permit, or in section 2 so that they can be carried on lawfully if a permit is granted.
6. Other forms of "Store" are prohibited and it was not argued that they would be applicable to the proposed use in this case. As previously noted, many of the characterisation cases dealing with various forms of depot have been concerned with differentiating that land use from store. That line of argument is a (metaphoric) horse that will not run and I suppose the advocates in the case recognised that to be the situation.
7. I am satisfied that the purpose for which land use permission is being sought is earthmoving contractor's depot and that it is a section 2 use in the relevant Table of Uses so that the permit sought can be granted if the proposal is acceptable on its planning merits. It is not prohibited.

1. There are existing buildings and works on the land. Some of them are used, and are intended to be used, in connection with the company's earthmoving business (although some of the works are not so used or intended). Principal among them is the big blue shed. I am not sure whether the office structures are fixtures attached to the land but they could be included. The concrete floor of the shed is part of the shed but the concrete apron outside the shed and the unsealed standing area between the shed and the dam amount to works.
2. They all exist and did exist at the time that the permit application was made.
3. It is convenient to talk about the big blue shed without repeating and listing those subsidiary works at each mention.
4. The shed was constructed by the applicant company or by the land owners shortly after their acquisition of the land. Before proceeding with construction, an application was made for planning permission for that building. The responsible authority considered the proposal and decided that no planning permit was required. It advised the permit applicant to that effect and returned the application fee. This was presumed to be the correct position. Application was then made for building approval under the building control legislation. This was granted. The building was constructed and approved after a final inspection pursuant to that other legislation.
5. This current land use application did not include an application for development permission for the buildings and works intended to be used in connection with the depot land use. The application proceeded on the basis that no such development permission was required.
6. If someone wants to change the use of land, or commence an additional use of land, without needing to carry out any buildings or works in connection therewith, the proper course is the one that was followed here, namely to apply for the land use and not to apply for any development permissions.
7. The point can be illustrated by consideration of the change of use of a house building from a dwelling into an office. If there is an existing building that has been used as a dwelling and is proposed to be utilised for the office not thereby requiring any further buildings or works, the only planning permission that will be required (if any) will be a use permit for the office. There is no occasion to apply at the same time for the permission to construct the house. That is already a lawful building so far as planning law is concerned.
8. If, per chance, planning permission had been required for the construction of the house at the time it was built, and that permission had not been obtained, that could amount to a contravention of the planning laws. That could be a matter for prosecution or for an enforcement application. If the point is doubtful, it could perhaps be tested by declaration proceedings.
9. If it was found that there should have been planning permission, that might not necessarily result in the demolition of the house. A retrospective application might be made to obtain the necessary permission. There may be no reason, in the circumstances of the particular case, why such permission should not be granted.
10. If there is a need for rectification or for enforcement proceedings or for a planning permit, that need would exist and subsist quite independently of whether somebody later sought permission to use the house as an office.
11. In the present case, the advocate on behalf of the Pearces has found some provisions in clause 35.04 relating to Green Wedge Zone land under which, he suggests, permission might after all have been required for the construction of the big blue shed and other buildings and works in spite of their existing on the basis of the responsible authority having determined that no permission was required.
12. Clause 35.04-5 does specify that planning permission is required in certain circumstances for some buildings and works. There are arguable points as to whether they have application to the big blue shed or other existing works on this land. If somebody had commenced enforcement proceedings or declaration proceedings as to these matters, and I was called upon to consider those proceedings, I would need to determine whether planning permission really was required and should have been obtained. One of the disadvantages of these questions being raised without notice on the second day of the hearing is that other parties have no opportunity to consider them. If persuaded that such extra permission was needed, proper notice would have enabled such extra planning permissions to be applied for, if necessary, perhaps with an adjournment to enable all matters to be considered together.
13. Clause 35.04-5 provides that a permit is required for a building which is within 100m of a waterway. It is suggested that the drainage channel is a waterway for this purpose. The big blue shed is within 100m of it. I think that is it a mute question, indeed a quite doubtful proposition, as to whether the drainage channel is a waterway within the meaning of this provision.
14. It is pointed out that the expression "waterway" is not defined in the planning scheme. Clause 71 of the planning scheme provides that the term is to have "its ordinary meaning" unless the term is defined in the planning scheme, the Planning and Environment Act 1987 (PE Act) or the Interpretation of Legislation Act 1984. There is no such definition in PE Act but there is in the Interpretation of Legislation Act. That definition provides that "waterway" means a waterway as defined in section 3(1) of the Water Act 1998.
15. The definition in the Water Act is quite a long one. I consider it doubtful that the drainage channel is a waterway within that definition and that further evidence would be needed to establish that it was within that definition. The various concepts within the definition, with a particular exception, appear to be naturally existing rivers, creeks, streams, lakes, lagoons, etc. The exception is the inclusion of a "channel". In some contexts, "channel" might include a human-made or artificial structure. Such a thing only satisfies this definition if it is wholly or partly an alteration or relocation. The definition maintains a distinction between natural phenomena and "artificial" channels or works, etc. At present, I do not have sufficient evidence to determine whether the drainage channel is within the definition. It certainly appears to be artificial. As I have said, no doubt I would need to consider this if other proceedings had raised the question. These proceedings do not.
16. I add this comment, that if a permit was required for the big blue shed to be constructed within 100m of the drainage channel, there is no apparent reason why such permission should not be granted (whether prospectively or retrospectively). The raising of this question appears to have been an attempt to complicate or confuse the current proceeding. I say again, if such permission was required, it was required before the big blue shed was constructed, during its construction and since, and such requirement, if it exists, has existed and exists irrespective of whether an application is made for the current depot permit. As far as is apparent, a correction of this administrative slip, if that is what it was, is a technicality. I am not saying that it cannot or should not be corrected, if it really exists, but there appears to be no reason why it cannot or should not be corrected by the grant of a permit if that is required. (That, of course, is a tentative view that a full hearing might show to be wrong.)
17. A similar situation applies to the other provisions under which it was belatedly suggested that permission was required for the shed and/or other works. Clause 35.04-5 in relation to buildings and works in the Green Wedge Zone also provides that a permit is required for earthworks specified in a schedule to the zone if on land specified in the schedule. There is a schedule to the Green Wedge Zone provisions in the Wyndham Planning Scheme. Amongst other things, it provides, in effect, that a permit is required for:

"Earthworks which change the rate of flow or the discharge point of water across a property boundary."

1. This applies to all land in Wyndham Green Wedge Zones.
2. This provision relates to earthworks, not buildings like the big blue shed or, for that matter, other works.
3. It is obvious enough that the big blue shed catches and concentrates the rainwater that falls on it. I suppose that downpipes carry this to underground pipes discharging, appropriately enough, into the drainage channel. No doubt evidence as to this would be forthcoming in any proceedings to which it was relevant. This provision does not relate to the shed and it is very doubtful as to whether it applies to the concrete apron. Even if it does, it is not apparent that the concrete apron, or for that matter the unsealed standing area, would change any rate of flow across a property boundary. The location and edges of those facilities are at some distance from property boundaries, or at any rate, the property boundaries relating to the objectors. There is opportunity, and in some respects ample opportunity, for any runoff or rain falling on these areas to soak in long before reaching a property boundary.
4. The northern edge of the concrete apron is not so far from the drainage channel and I understand the drainage channel to be just inside the property boundary of the property to the north. Even so, the purpose of the drainage channel is to carry away drainage in the form of runoff water. It is not clear to me that there would be any change to the rate of flow across a property boundary or that any such flow, if there was any, would be anything but trifling. I say that bearing in mind the legal maxim de minimis non curat lex which means that the law takes no account of trifles or does not concern itself with trifles. In other words, if change does exist but is trifling, it will be no occasion for a planning permit. Even if more than a trifle, and even if a permit is technically required, there is no apparent reason why it should not be granted. Indeed, as with the 100m of the big blue shed from the drainage channel, it appears obvious that such permission should be granted if it is required, (again a tentative view).
5. There was some suggestion that fill that has been placed on land to the east of the concrete apron and to the west of portion of the broccoli garden area might affect drainage flow. It is not apparent that this is so. Even if it is, that has nothing to do with the current depot use permit. That area has not been used and is not intended to be used for the depot. There is a suggestion that the owners would like to construct a house there but that is another matter and would require another permit.
6. Reference was even made to little palm trees having been planted and to a boundary fence. Likewise, these are not required for the proposed use. The fence is not an earthwork and I am not clear that permission is required for the planting of little palm trees or, perhaps, other landscaping works. No doubt these matters can be considered if and when proceedings raising them are brought. In the meantime, they are beside the point for present purposes.
7. The final point under clause 35.04-5 in relation to buildings and works in the Green Wedge Zone is that a permit is required to construct or carry out buildings or works associated with a use in section 2 of the Table of Uses in clause 35.04-1. Of course it is true that the depot use requires such land use permission. However, the additional development permission for buildings and works is only required when it is proposed to construct them. Here there is no proposed construction. They are already constructed. If the construction did require planning permission, that is a matter for other proceedings. So far as this provision is concerned, I consider it to be covered by the house used as an office situation. The buildings and works are there. On the face of it, they came to be constructed lawfully. If they are not there lawfully, other proceedings might need to be taken in relation to them. If that is so, it is not because of this land use permit application. On the contrary, so far as the current land use permit application is concerned, no development permission is required because no development is proposed. I use the term "development" here to include both buildings and works.
8. The notion of a "piecemeal" application is where more than one permission is needed and where they should be sought together. Here, no development permission is required on account of the land use. If development permission is required, and I am not satisfied that it is, it is required quite apart from the proposed land use. In these circumstances, I do not regard this as a situation to which the "piecemeal application" doctrine applies. On the contrary, I regard it as an irrelevant distraction. The real issue in this case is whether planning permission should or should not be granted on the planning merits of the proposal and, if so, what conditions, if any, should be imposed on such permit.

1. In assessing the planning merits of the proposal and suggested amenity detriment, it is appropriate to consider the zoning of the land. The zoning of this site is Green Wedge Zone and it is set within a larger area of Green Wedge land. It is also located beyond the Urban Growth Boundary for the metropolis of Melbourne. However, it is not a great distance from the Urban Growth Boundary.
2. Green Wedge Zone is one of the rural zones provided for in the Victoria Planning Provisions and in the Wyndham Planning Scheme. Rural zoning often connotes farming activities and not residential uses. The purpose of the Green Wedge Zone is to be found in clause 35.04 of the planning scheme. It contains several paragraphs including a standard general one of implementing state and local planning policy. It goes on to deal with more specific purposes including to recognise, protect and conserve Green Wedge land for its agricultural (and some other) opportunities. Use consistent with sustainable land management policies is encouraged, as are sustainable farming activities. Another purpose is to protect, conserve and enhance the character of open rural and scenic non-urban landscapes. Residential uses do not get a mention. Indeed, residential uses as such are appropriate for urban locations and zoning, and not Green Wedge land.
3. One of the problems of rural planning is the temptation and tendency to use or allow the use and development of rural land, including Green Wedge land, for what are essentially residential purposes. Many cases have analysed the problems in connection therewith and why this is a highly inappropriate practice. Just because the planning scheme might allow excisions, for example, for rural houses, does not imply that permission for such developments and uses should be granted. On the contrary, they should not be granted unless justified by what will normally be unusual planning considerations.
4. One of many problems associated with such uses and developments is the blight that they can impose on more legitimate uses of rural land. People using land for residential purposes are inclined to start demanding town services and constraints on rural and farming activities to protect residential amenity and enhance it to levels that are really only appropriate in urban contexts.
5. There is some recognition of the need for rural houses to accommodate people who work on the land, but mere residential uses are another matter. I do not know the circumstances in which the rural excision has given rise to the site for the house on the southwest corner of the intersection of the driveway to this review site with Aviation Road. I note that the objectors who appeared or who were represented, and who make complaints and terms of their residential amenity, are residing in their houses but do not themselves work the rural land around about them (or on their own holdings) located in the Green Wedge Zone.
6. If people are able to use land in such situations for residential purposes, they come into the rural context on the farming (and market gardening) terms of the primary purposes of the zoning. They certainly cannot expect the sort of residential amenity that they might both expect and be entitled to in the midst of a Residential 1 Zone and in an urban context.
7. There are various amenity detriments that are commonly be associated with the sort of rural activities appropriate in rural zoning, including Green Wedge Zone land. These can include the passing of vehicles, including large vehicles, at night or in the early hours of the morning. According to circumstances, these might include milk tankers, cattle trucks, and vehicles conveying fodder, rural farm stock and so on. Furthermore, dust from unsealed roads and driveways, as well as from the ploughing or other treatment of ground and its fertilization (eg. spreading super phosphate) are also to be expected, sometimes along with spray drift from spraying. Furthermore, the appearance of land and developments on land can be expected to include structures and buildings, as well as machinery and vehicles, relevant to rural activities. Various legitimate farming activities also generate noise, including vehicle and machinery noise relating to the growing of pastures or crops, animal husbandry and even the droving of livestock. The purposes of land designated as rural, including Green Wedge, should not be inhibited by the demands in relation to amenity matters of people who are residential users.
8. In this particular case, the land is zoned Green Wedge but it also has some particular and special characteristics because of its location and characteristics that make it suitable for market gardening activities and whereby it has become a very significant area for that form of agriculture. That is not to say that all the land in the zone is used for such purposes or that it need necessarily be so used. Nevertheless, such features are recognised and such uses and related activities need to be accommodated and protected.
9. Land uses and facilities that assist or support rural farming activities have a place in such zones, a favour not be enjoyed by residential users.
10. The zone provisions reflect a sensitivity to the intrusion of "accommodation" land users and, indeed, all but a restricted list of such uses are prohibited by appearing in section 3 of the Table of Uses. Other zone provisions reflect a sensitivity to accommodation users.
11. Clause 35.04-6 contains some decision guidelines to guide discretion in relation to the granting of permission for use and/or development of land in the zone. The guidelines are divided into several categories. The first is "General issues". These include the capacity of the land to accommodate the proposed use, how the use is related to the rural land use and whether the site is suitable for the use, including the compatibility of the proposal with adjoining land uses. Adjoining market garden and other primary production uses are central in this context.
12. Another general issue is whether the use is essential to the health, safety or wellbeing of the state or area and what is not appropriate to locate in an urban area because of the effect it may have on existing or proposed urban uses.
13. In my view, the proposed depot use would not be appropriate in most urban areas, although I do not propose to go so far as to say that it would necessarily be inappropriate in all urban areas without more consideration of the question. Generally speaking, I think such uses are more appropriate to a location like this one and I assume that is why they have tended to establishing such environments.
14. I do regard land uses of this sort, including this one, as relevant to and related to rural land uses, including market garden rural land uses. Various forms of earthmoving are relevant to the agricultural activities in this area, as well as to agricultural activities more generally. These include the forming of roads, driveways and tracks, laser levelling and the construction of dams. I do not mean that list to be exhaustive. I am not concerned if some earthmoving work is accepted by the company that is not directly relevant to market gardening or other rural land uses. I accept that the company's business has grown and that such other contracts are accepted and carried out. That does not mean that a significant proportion of the work of the company is not related to market gardening and rural land use. Proportions may vary with time, seasons and circumstances. Nevertheless, I regard the work so related as a consideration in favour of the proposed and I do not regard work not so associated as a consideration against the proposal. That does not imply that non-rural related earthmoving work is a recommendation of the proposal; rather, it is neutral.
15. I do not think it necessary to discuss each and every decision guideline under the other subheadings like "Rural" issues, but I have considered them all and I accept that the existing business and the proposed future use does relate positively to, enhance and serve rural land uses in the immediate locality and beyond, including market gardening activities.
16. I note that the schedule to this Green Wedge Zone contains a map that designates the "WERRIBEE SOUTH INTENSIVE AGRICULTURAL PRECINCT". This review site is within that precinct. I accept that this designation, this precinct and the intensive agriculture to which it relates are specifically directed to market gardening.
17. The schedule also designates another area as land between Point Cook residential areas and the Werribee South Agricultural Precinct. Zoning controls in the schedule clearly seek to inhibit closer settlement and subdivision in this buffer area and I do not doubt that this is to protect the intensive agricultural precinct.

1. The municipal strategic statement in the local provisions of a planning scheme is intended to be a brief overview of the nature and purposes to be achieved by local planning policies. The policies themselves should appear in clause 22 of a particular planning scheme, rather than clause 21. The municipal strategic statement in the Wyndham Planning Scheme is so extensive that it appears to have run away with whoever was supposed to draft it. It has many sections. Clause 21.05-9 is concerned with Green Wedge protection.
2. It recognises that there are two designated Green Wedge areas in Wyndham. The one we are concerned with here is the Werribee South Green Wedge. After a plan delineating it, the following appears:

"Extensive areas of Wyndham support agricultural production, contributing to Wyndham's economy and identity. However, urban and rural activities are often incompatible, and conflicts typically result in constraints on rural activities and their viability.

Within the Werribee South Green Wedge, the Intensive Agriculture Precinct is recognised as a market gardening area of State significance. Although there are some pressures by and for urban development, the value of the area's production, its remoteness from mass public transport and the cost of extending urban services help explain its inclusion in the Green Wedge.

Development pressures and land speculation at the rural-urban interface can reduce the productivity of broad hectare areas. The interface areas are also the worst affected by conflicts with urban activity."

1. These points are timely reminders and well taken.
2. In pursuit of an objective to sustainably manage Wyndham's Green Wedges, there are, in clause 21.05-9, a number of strategies. Some of these are general and some particular to the Werribee South Green Wedge. I do not propose to refer to them all and the ones I mention are not necessarily the only ones having some relevance. Nevertheless, in the general strategies I note:

" ● Protect Wyndham's Green Wedges from inappropriate development and urban intrusion, including strategies to create physical buffers where warranted."

1. Residential intrusions are probably the most threatening and the strategy can be seen by the designation of the Werribee South Intensive Agriculture Precinct and the land between Point Cook residential areas and Werribee South Intensive Agriculture Precinct found in the schedule to the Green Wedge Zone that I have already referred to.
2. A further general strategy is:

"Encourage farming and other compatible rural activities in areas beyond the Urban Growth Boundary."

1. I note that this strategy recognises compatible rural activities in addition to farming itself. I regard this proposal as compatible. The amenity concerns specifically raised of noise, dust and the appearance of the blue shed are not, in my view, incompatible with the market gardening activity. In any event, the existence of the blue shed is, for reasons I have already given, beside the point. Nevertheless, its appearance does not adversely affect the cultivation of broccoli or cauliflower or other market garden products. The same is true of noise. There is no evidence that noise adversely affects such gardening.
2. There was an attempt to make a case that dust might affect a couple of rows of cauliflowers, if so planted on either side of the access driveway.
3. If it remains unsealed, as is so common in this locality, then any vehicles related to any reasonable use of this land are likely to generate some dust. Actually, this particular view, as proposed by the company, does have the advantage that the company has the facilities to spray the driveway to suppress dust in dry circumstances. In any event, the driveway is necessarily a low speed environment, particularly for large and heavy vehicles. This is due to it being relatively narrow and short, and to the relatively difficult manoeuvres, at least for large vehicles, on entering and exiting at the edge of Aviation Road. Little traffic is to be expected, and the degree of dust generated is likely to be slight compared to the considerable dust demonstrated in the evidence to be produced by vehicles on unsealed roads and involved in soil preparation in the locality.
4. It was also suggested that the proposal is adverse to market gardening in the area because it takes land out of that use. I think it can generally be said that this effect is slight compared to the danger and reality of residential intrusions. The present building and hard sand are already achieved so that those particular areas cannot be cultivated. Most of the balance of the land is in fact used for market gardening. The proposed use will support market gardening and other rural activities and the area lost is minor in the circumstances. Unlike the situation in relation to residential intrusions, that minor loss is compensated for by the contribution the land use is able to make.
5. Although I do not regard it as relevant, I nevertheless note that although the large blue shed is certainly quite a large structure, this is an area where large sheds are quite common so that it is nothing out of the ordinary. There are other and similar large structures around about. Some of them are smaller whilst some are larger than this shed, but they create an environment in which it is not out of place. If I was considering whether the shed is acceptable from an appearance point of view, I doubt that I would have had concerns about it. I note that it is located at some distance from the public realm represented by Aviation Road because it is set so far to the south beyond the drainage channel and away from the road.
6. I will still need to deal with the question of noise, although not in relation to its effect on vegetable growing, but the above represents the reasons for my conclusion in relation to the dust and appearance amenity issues argued against this proposal.

1. The actual local policy provisions are found in clause 22 of the planning scheme. Those relating to the Werribee South Green Wedge policy area are in clause 22.08. According to that provision, the Werribee South Green Wedge is made up of eight precincts, the relevant one of which is the Intensive Agriculture Precinct.
2. The policy basis in 22.08-1 recognises the importance of the Werribee South Green Wedge and the value and potential of the precincts within it. The vision is that these precincts should be environmentally, socially and economically sustainable and areas where opportunities for agricultural innovation and diversification (amongst other things) are realised. That subclause then goes on to consider development rather than use.
3. Clause 22.08-2 notes that it is the objective to enhance the unique qualities and characteristics of the individual precincts within the Werribee South Green Wedge and, in respect of the Intensive Agriculture Precinct, the particular objective is:

"To protect agricultural land from incompatible land uses and promote the continuation of agricultural activity and its viability within the local economy."

1. I consider that this proposal is in accordance with that objective. I hold the same view in relation to the local policy provision in clause 22.08-3 which declares it to be policy that land use be appropriate to the precinct in which it is located.
2. That subclause then goes on to document various policies in relation to various precincts. In relation to the Intensive Agriculture Precinct, the importance of the precinct is recognised and it is to be retained as an agricultural area as opposed to a rural residential community.
3. The provision then goes on to note 15 policy propositions. Not all of them are relevant to the present case and the importance of some that are relevant varies. I propose to quote a number of them in bold type to be followed, as appropriate, with my commentary in ordinary type:

• "Agriculture takes precedent over non-agricultural land uses."

This appears as an appropriate policy but it does not exclude all non-agricultural land uses and, in particular, should not exclude them where they support agriculture and where the land lost to direct agriculture is minor in extent.

• "Agricultural production should not be detrimentally impacted upon or unreasonably constrained."

In my view, this proposal does not compromise that sensible policy provision.

• "Agricultural land uses and activities should be separated from residential, commercial and industrial development and facilities, with buffering where necessary."
• As previously noted, various planning scheme provisions, including the schedule to the Green Wedge provisions, are aimed at this effect. The effect is not detracted from by the current proposal as previously explained.

1. There are two further policy statements concerning rural stores and new stores but this proposal is not for a store or a rural store and hence they do not apply to this proposal. The same is true in relation to a further policy statement concerning transport terminals. This is not proposed to be a transport terminal. The next policy is highly relevant:
   • "New depots and loading facilities designed to accommodate heavy articulated vehicles should be located in Duncans Road, Diggers Road, and the section of Aviation Road east of Duncans Road."

This policy statement strikes me as being of key importance. It deals with new depots. I have already referred to there being various types of depot, but they include earthmoving contractor's depots such as is here proposed. The other reference, that to "loading facilities" is not here relevant.

1. This proposal is for a site that is located in Aviation Road east of Duncans Road. Thus, it is in one of the quite limited localities specifically recognised by local policy as being suitable. It was suggested on behalf of the responsible authority that this site in this locale and in this precinct and zoning is not suitable for this proposal. I cannot understand how this suggestion is to be reconciled with this specific local policy provision. I consider the site in its location to be suitable for the proposed land use and I find that view, which I would have concluded in any event, to be supported by specific local policy for which the Council, as planning authority, is responsible. In any event, that provision did enter the planning scheme on 9 June 2011 by amendment C96. If that entry was in opposition to the views of the local planning authority, it is nevertheless part of the planning scheme and thus part of the law of Victoria to be taken into consideration in determining proposals of this sort.
2. Clause 22.08-4 contains a number of decision guidelines that are to be taken into consideration as appropriate. Some of them are not appropriate in this case as they are not relevant. I will mention only four to which reference was made in the course of the hearing, although my mentioning them does not mean that each one of them is ultimately relevant. I will again adopt the device of putting the guideline in bold and the comment in ordinary type:
   • "The association between a rural store, depot or transport terminal and the source and origin of agricultural produce to be stored within it."

This is not a rural store or transport terminal and it is not the sort of depot in which agricultural produce would be stored. Hence, this guideline is not technically relevant but I note that there is a relationship between market gardening and other farming activity in the locality and beyond and the services offered by the company through its existing and proposed earthmoving contractor's depot.

• "The capacity of the road network to accommodate new depots, transport terminals or loading facilities."

There is no valid basis on the evidence for a suggestion that the road network is inadequate in relation to this proposal. Aviation Road itself is sealed and it connects with other sealed roads. Large vehicles turning into and out of the driveway use small portions of the road reserve beyond the seal. Vehicles turning right into the driveway make some use of the northern shoulder of the road to the north of the seal and some improvement to that area to support such use is evident. In addition, vehicles merging from the driveway onto Aviation Road utilise some gravelled splay areas to left and right where their driveway meets Aviation Road and its sealed carriageway. Such circumstances are common enough in the locality. It would be possible to impose some adjustments in relation to these features by means of the imposition of conditions.

1. Some mention was made at the hearing as to whether access arrangements are safe. I do not find the suggestions of unsafety be justified. Vehicles, large or small, may need to give way to oncoming traffic before, for example, turning right into the driveway. There is no unusual danger about this. Vehicles following them can either stop behind them or, if safe, it is lawful to pass on their near side when they are signalling to turn right.
   • "The potential impact of non-agricultural development on agricultural production and activities is to be considered in assessing planning applications."

This is not strictly relevant as no development is here proposed. I have already dealt with the suggested impacts of noise, dust and visual amenity and I have also noted the relationship to agricultural production in this locality and elsewhere.

• "The sensitive nature of rural interfaces and the need to buffer and protect existing agricultural activities is to be considered in assessing planning applications."

I have noted that various local planning provisions have the question of buffers and protection in mind. These are expressions of planning on the broader scale. I do not consider that this guideline is a consideration to the disadvantage of this proposal.

1. The only expert evidence in relation to the question of noise is that of the acoustics consultant Frank Butera. He has made an assessment of existing and potential noise and considered the proposal against the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No N-1 (SEPP). In so doing, he has determined noise limits for day, evening and night in accordance with that SEPP. Differing limits apply for the three time periods. Day is 7.00am to 6.00pm, evening is 6.00pm to 10.00pm and night is 10.00pm to 7.00am the following day.
2. The limits have been set in relation to the nearest affected residential properties at 835, 845 and 855 Aviation Road. The assessment indicates that noise levels in relation to the workshop activity in and around the big blue shed comply with the SEPP during day time and evening periods, except for tractors arriving to the subject site during the evening period and metal on metal impacts (such things as sledgehammers used to straighten wheel rims) when conducted outside the big blue shed or within the shed with the doors open.
3. It is perhaps a pity that the large doors of the big blue shed should have been put into the side of the building facing east towards the Pearce property. However, it is appropriate that such activities should take place within the shed with the doors closed. Electric power is available in the shed, although it is not, at the present stage, served with fixed lighting. Nevertheless, it is equipped with powerful portable lighting powered by electricity. Although the convenience and pleasantness of working with the doors open can be appreciated, those tasks should be performed with the doors shut and illuminated, if necessary, with such lighting as is available.
4. The excess over the limit by tractors arriving or departing in the evening period is only 2dB(A).[6] 2dB(A) is so slight an excess as to be unable to be detected by the human ear. The difference, though able to be detected with sensitive instruments, but nevertheless is undetectable by the human ear, rather seems to me to be in the category of de minimis non curat lex (a trifle of which the law takes no account). In any event, the hours of coming and going of such vehicles can be regulated by conditions.
5. I note that there are other noise sources in the area including agricultural machinery, traffic noise from Aviation Road and the fly over of aircraft associated with the Point Cook air force base. Farming equipment and the air base are excluded from consideration under the SEPP. Nevertheless, they are in fact part of the noise environment, the noise environment in which at least farm machinery noise is to be anticipated and tolerated.

1. I have dealt with the issues of significance raised in relation to this case. A minor matter that did get a mention was an attempt to make something of lights at night when work was being conducted in or around the big blue shed. Conditions can control hours of work in any event, but in an environment such as this, and at such a distance, I do not think the use of lights, at least through part of the evening period, ought to be regarded as objectionable. Perhaps objectors became sensitised during the stone crushing period and have maintained their hostility even when those activities have ceased. In any event, regard has to be had for the nature of the area, its relatively sparse settlement, and the circumstance that a robustness of amenity conditions beyond that to be tolerated in a Residential 1 Zone is to be expected.

1. For the above reasons, I have concluded that a permit to use the land as an earthmoving contractor's depot should be granted subject to conditions.

1. Conditions were discussed in the course of the hearing on the basis of a draft prepared on behalf of the responsible authority. Ultimately, I am responsible for the conditions, including the limitations that they impose, as well as the setting out and English expression. I will impose the conditions that I consider to be appropriate. However, in some cases, conditions are consented to on behalf of the company which may not have been imposed but for such consent.
2. I have mentioned that a certain robustness in relation to amenity considerations is appropriate in a context like this. That does not mean that nuisance conditions should have to be tolerated. Nevertheless, I consider some of the draft conditions proposed to be excessive for this context. Perhaps some are so-called "standard conditions" designed for other situations that have been imposed here without proper consideration. Indeed, some of the draft conditions have been imposed with either an excessive zeal or with a failure to review them having regard to the context.
3. Some of the draft conditions are adequately covered, in any event, by other legislation and I have deleted some draft conditions on that account. Some examples are matters dealt with adequately by environment protection legislation or the expiry of permit in relation to which I propose to allow the provisions in PE Act to apply.

The decision of the responsible authority to refuse to grant a permit is set aside and a permit is granted to use the land as an earthmoving contractor's depot in accordance with the following conditions

1. Within three months of the date of this permit, a site layout plan is submitted to the responsible authority for approval. The plan is to be drawn to scale with dimensions, and three copies are to be submitted. When approved, the plan will be endorsed as evidence of its approval and will thereby become the endorsed plan in relation to this permit. Such plan must show:

1. an existing conditions plan; 2. staff and visitor car parking spaces and areas for parking of other vehicles and equipment;

1. north point and the nominated scale reference; 2. access details to the site, including width of driveway, splays and the road name of Aviation Road; 3. the location extent any (by notation) nature of any widening of or improvement to the northern verge of Aviation Road approximately opposite to the access driveway crossing to that road to facilitate right hand turns from the road into the driveway; 4. delete reference to possible future house; 5. correct location of neighbouring dwellings and outbuildings, and neighbouring property boundaries; 6. details of existing drainage channel or its reserve on the northern boundary of the land; 7. proposed treatments of boundaries to neighbouring properties; 8. extent of sealed and unsealed hard stand areas;

1. identification of the portion of the land holding to be used in relation to the earthmoving contractor's depot.

1. Except with the prior written consent of the Responsible Authority, repair and maintenance work may only be carried on outside the large shed and tractors may only use the access driveway to Aviation Road between 7.00am and 6.00pm Monday to Saturday and repair and maintenance activities involve percussive impacts of metal on metal (including sledgehammers or similar devices impacting metal) must only be carried on within the large shed on the property and with the large east facing doors thereto closed.

1. The use permitted must not adversely affect the amenity of the locality to the extent of creating a nuisance by reason of the processes carried on, including but not limited to:

1. the transportation of materials, goods or commodities to or from the subject land; 2. the appearance of any buildings, works or materials;

1. the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit or oil;

1. All fixed outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority so that no direct light is emitted beyond the boundaries of the subject land to the extent of causing a nuisance.

1. Noise levels associated with the use must comply with the State Environment Protection Policy (Control of Noise from Industry, Commerce and Trade) No N-1.
2. Except with the written consent of the Responsible Authority, all trucks, front-end loaders and any other mobile plant used on the site must be fitted with reversing beepers of the broadband type.

1. Any alteration to or construction of turning splays at the intersection of the access driveway and Aviation Road or treatment of an area beyond the northern edge of the sealed carriageway of Aviation Road to enable large vehicles to turn right into the driveway as shown on the endorsed plans are to be constructed to the satisfaction of the Responsible Authority and thereafter maintained to the satisfaction of the Responsible Authority.

1. The loading and unloading of vehicles and the delivery of goods in connection with the use hereby permitted must be undertaken within the boundaries of the portion of the site depicted on the endorsed plans as being for the use permitted.

1. The land including any landscaped or paved areas must, to the satisfaction of the Responsible Authority, be drained to the open drainage channel located just north of the northern boundary of the land.

1. There must be no discharge of wastewater or contaminated stormwater beyond the boundary of the premises.
2. Suitable drains, interceptor pits, sumps, pumps and water collection and treatment facilities must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority to ensure that wastewater or contaminated stormwater generated on the premises is captured and treated or removed to the satisfaction of the Responsible Authority.
3. All wastewater generated on site must comply with City West Water Trade Waste requirements and EPA wastewater requirements before discharge to the reticulated sewerage system.

[1] (1980) 145 CLR; 44 LGRA 346; [1921] VicLawRp 111; 28 ALR 1.

[2] [2009] VCAT 2506

[4] (1992) 9 AATR 157

[5] (1993) 80 LGERA 367; (1993) 11 AATR 175