Latitude 38 Pty Ltd v Mornington Peninsula SC [2019] VCAT 1796

Latitude 38 Pty Ltd v Mornington Peninsula SC [2019] VCAT 1796 | Case summary | Zoe

[14]

There is a long and complex planning history which has led to this proceeding being brought before this Tribunal. In simple terms, however, this proceeding has been brought to resolve a dispute about whether there are existing planning rights which allow the current occupant of the site, Latitude 38 Pty Ltd, (Latitude 38) to sell loose soil, sand, screening and other like garden supplies from the site.
Latitude 38 needs to rely on existing planning rights for the sale of these products, as the use of the site to sell garden supplies now prohibited on the site by the Mornington Planning Scheme (the Current Scheme). This means that no planning permit can now be issued allowing the use of the site for garden supplies.
Latitude 38 says there are existing rights. It applied to Council for a certificate to confirm that those rights allowed it to use the site for the sale of loose soil, sand, screening and other like garden supplies. When Council refused to issue this certificate, Latitude 38 appealed to this Tribunal for a review of that decision.
While Latitude 38 also suggested that it may have a right to use the site under existing permits, its primary submission is that existing planning rights arise because of the past use of the site for the sale of garden supplies for a continuous 15 year period. A large part of this past use was carried out by the previous occupiers of the site.
One of these previous occupiers was a business known as 'The Garden of Quasimodo' which Mr Peter Norford started running in or around 1996. The business sold garden related items to the public. Over the years the business evolved and the products it sold varied.
The other occupier was a landscape services business known initially as 'Quasimodo Landscapes' and later 'Qscape'. This business was run by Mr Norford's son, Joel, after he became a landscape gardener in around 2000.
Below is a Nearmap image showing the business in the north-west of the site on 4 November 2016, toward the end of the Norford's management. It appears in earlier aerial images in a relatively similar form.

[19]

I was provided with written statements and/or statutory declarations as well as sworn oral evidence about the use of the site from the following persons:
- Mr Joel Norford: who as I have already explained, is the son of the founder of 'The Garden of Quasimodo' and ran a landscaping service business from the site known as 'Quasimodo Landscapes/Joels QScape' (Qscape). He gave evidence about the use of the site during 1996 until Latitude 38 took over occupation in mid-2017. During this time he was variously assisting his father with 'The Garden of Quasimodo' business, the owner of Qscape, and the owner of 'The Garden of Quasimodo' after taking this business over from his father in 2012.
- Mr Paul Sayers: who is a landscaper working in the area and also has been associated with a nearby nursery business. He gave evidence about his purchases from the site from around 2001 until 2015.
- Mr Belinda Jane Foley: who with her husband owned a garden supplies business known as Mornington Garden Supplies from the end of 2014 until they sold the site on which this business operated upon. With her husband, she is an owner of Latitude 38. She gave evidence about the use of the site since Latitude 38 purchased 'The Garden of Quasimodo' and 'Qscape'. She also gave evidence relating to the site from earlier periods, including business records of 'The Garden of Quasimodo' and 'Qscape' and of suppliers of those businesses.
- Mr Mark Scot Foley: who is the husband of Mr Foley. He has a similar involvement in Mornington Garden Supplies and Latitude 38 to Ms Foley and gave evidence about his knowledge of the use of the site arising from his involvement in these businesses.
- Mr Matthew Astall: who was employed by Mornington Garden Supplies from around 1998. He has knowledge of the site since 1998 arising from Mornington Garden Supplies supply of garden supplies to 'The Garden of Quasimodo' and 'Qscape'.
- Mr Coleby McDonough: who was employed by Mornington Peninsula Shire Council from early 2004 and gave evidence about the site arising from his involvement with it as a Council planning officer during 2006.
- Mr Ronald Reaper: who gave evidence about the use of the site, as a resident and operator of a business on neighbouring land.
- Ms Tracey Ann Young: who gave evidence about the use of the site based Council records, aerial imagery and her inspections of the site as Council planning enforcement officer.
In addition to the above evidence I was provided with a statutory declaration from Laura Butler. While Ms Butler had been summoned to give oral evidence at the hearing, as neither Council nor the Tribunal had any questions for Ms Butler, she was released from this summons without being called. Her written declaration confirms the installation of a water fountain and loose potting mix from The Garden of Quasimodo in 2004.
Latitude 38 also filed a statutory declaration of Mr Peter Norford. I understand that Mr Norford now resides in interstate and is in poor health and was not summoned to give oral evidence for those reasons. There were matters contained in the statement of Mr Peter Norford which Mr Joel Norford referred to in his evidence.
Council also filed affidavits of Mr John Charles Stewart and Ms Jennifer Joy Stewart. However, it did not call either of these persons to give evidence at the hearing.
While there were some inconsistencies in the evidence, overall, I consider that the evidence has provided me with relatively consistent information about the use of the site over time. Based on that evidence, I find that, on the balance of probabilities, the use of the site from around 1996 until mid-2017 when Latitude 38 took over occupation has been as follows:
- In 1996 a business known as 'The Garden of Quasimodo' commenced operating on the site. It sold a range of items for installation or use in gardens/landscaped areas directly to the public. Its main public frontage was along Moorooduc Highway, and along this frontage it would display pots, concrete statues, pavers, retaining wall products, ponds, pizza ovens and other garden/landscaping products. The products it sold has varied over time and includes turf, pebbles and bagged potting mix. There have also been times (particularly in the early days of the business) where some of the statues and other concrete products were made on the site. Apart from the first year or so of its operation, the business has not generally sold plants. In 2012, its product range extended to selling swimming pools on commission for a separate company, with a display pool being developed within the part of the site closest to the Moorooduc Highway. The business largely operated out of the north-western corner of the site within an area enclosed by a fence (the Enclosed Area). However, car parking for the business was to the east of this enclosed area. The broader site was otherwise not generally used by the business except for water supply, septic effluent discharge and also in an ad hoc manner for the storage of excess products and waste.
- In around 2000, a landscaping service (which I refer to in these reasons as 'Qscape') also operated from the site under various business names. The scale of this business grew, particularly after 2007 as a result of increased involvement by Mr Joel Norford. Qscape used the site for its office/administration, for storage of vehicles and products, for meeting with its landscaping customers and for showing display products to customers. There was a high degree of integration between Qscape and The Garden of Quasimodo arising both from the synergies in the business offerings and because of the connected nature of their ownership. This integration included shared use of vehicles, the supply of garden and landscape items by The Garden of Quasimodo to Qscape projects, and, customers of products from The Garden of Quasimodo using Qscape to provide landscaping services associated with the installation of those products.
- In around 2012, Mr Peter Norford started a new business selling spas from the site. This business was also integrated with the others on the site because of its complimentary product offering and also the family relationship between the business owners.
- All of the three businesses had a need for loose sand, soil and like products. The landscaping services of Mr Joel Norford included the provision of such products as part of the landscaping being carried out on his customers land. Installation of garden features such as spas on customers properties also required loose sand and other like products. When concrete garden products were made on site, this required sand and aggregate. These products were also needed for maintenance and improvement works on the site itself. These sand and soil products were sometimes delivered by suppliers (including Mornington Garden Supplies) directly to the customers land upon which they were required. On other occasions, the products were delivered to the site before being taken to the customers land for use in the landscaping or installation work. There was an area of the site used from time to time for the storage of a small amount of loose soil, sand and like products in the south-eastern corner of the Enclosed Area. However often this area was full of other products sold by the businesses. Loose soil and sand was also stored in mounds from time to time near the car park. On occasion, some of these products were sold by the trailer load to customers of the business. As there was no equipment on the site for loading this material into trailers, Mr Joel Norford gave evidence that this material was only generally sold to regular customers of the businesses with arrangements made for collection of the material at times when the machinery used for the landscaping service was stored on the site. For example, Mr Sayers indicated purchasing small trailer loads of soil from time to time. While I accept that there were some instances where customers attended the site to purchase loose soil, sand and other like products, on the evidence before me I do not find this to have been a regular product offered for sale or to have been a significant component of any of the businesses. This is evident from the capacity for only small quantities of those products to be stored on the site, the lack of any evidence of those type of products on the site in various aerial images, the storage of those products in a relatively difficult to access part of the Enclosed Area or in an ad hoc and unsecured manner around the car park and the limited ability for these products to be loaded onto customer vehicles.
Later in these reasons I consider how the above use of the site should be described, in ordinary terms.

[28]

In these reasons, I refer to the permits listed in the above table together as the Permits and individually as the 1995 Permit and the 1998 Permit and in accordance with the date of issue of the relevant permit.
There have also been other permits issued in respect of the site. While none of them potentially authorise the current use of the site, they are still relevant in understanding the broader planning history of the site and the key issues to be determined in this proceeding. These other permits include:
- A planning permit issued in 2018 (Permit No. P17/1993) authorising the construction of buildings and works, including three roof structures and modified roller door access.
- A permit (Permit No. P12/1046) issued in 2012 authorising 'the development of a display swimming pool to be used in accordance with the existing use of the land as a plant nursery and associated works in accordance with the endorsed plans' (the Display Pool Permit).
- A permit issued in 1997 (Permit No. TP97/726) authorising the use and development of part of the site for rural industry; and
- A permit issued in 1993 (Permit No. M92-285) authorising the use and development of the site for a petrol station, restaurant and maze (tourist establishment).
For completeness I note that in addition to the above permits, an application was made to Council in 2017 seeking a permit for the 'extension to the existing garden supplies included associated buildings and works and vegetation removal'. The Council decided to grant the permit and issued a notice of its decision to the applicant and objectors. One objector sought review of Council's decision with this Tribunal. These proceedings were finalised in March 2018 by orders which set aside the decision of Council and directed no planning permit was to issue. Remarks attached to those orders indicate that the orders were made on the basis of written communication to the Tribunal by the permit applicant, indicating that it did not wish to proceed with the permit application and no permit should issue.
Council does not have a record of any plans being formally endorsed under the 1995 Permit, although there are some references in correspondence sent in the years following the issue of the 1995 Permit which suggest that plans may well have been endorsed. If there were any endorsed plans, no party was aware of them and I therefore presume they have been lost.
What Council records do indicate is that in early 1998, plans were submitted for endorsement under the 1995 Permit. However, as these plans included changes which Council did not consider to be minor variations it could authorise under the 1995 Permit, a further permit application was made to Council. Council issued the 1998 Permit in response to this further application, authorising the varied plans. The 1998 Permit largely replicated all of the permit conditions contained in the 1995 Permit, with some minor modification. A plan was then stamped as being endorsed under the 1998 Permit. That plan is extracted below:

[30]

At the hearing I asked the parties whether the 1998 Permit was intended to supersede the 1995 Permit (noting that it replicated all of the use conditions in the 1995 Permit with some minor amendments) or whether the 1998 Permit simply authorised further buildings and works. The parties had both proceeded on the assumption that the 1995 Permit and the 1998 Permit co-existed but they agreed that nothing turned on this question. In particular, the parties agreed that while the 1995 Permit purported to authorise wholesale and retail sales, it could not authorise wholesale sales as this was prohibited by the planning scheme in force at the time.[2] The parties therefore agreed that to the extent that the 1995 Permit may have appeared to authorise a broader use than the 1998 Permit, it could not have done so. The parties also agreed that while there were no plans endorsed under the 1995 Permit, the plans endorsed under the 1998 Permit should be taken to have been also endorsed under the 1995 Permit given the particular planning history of the Permits.
While I agree with the parties that nothing substantive turns on this issue and the situation is not clear cut, I consider the better view to be that the 1998 Permit superseded the 1995 Permit. I acknowledge that this is contrary to what is indicated by the words 'plant nursery additions' in the description in the 1998 Permit of what the use allows. However, I consider that there are other indicators which point to the 1998 Permit superseding the 1995 Permit, including:
- the inclusion of a use permission in the description of what is permitted by the 1998 Permit.
- the complete replication of the full conditions of the 1995 Permit (with conditions updated to reflect the endorsed plans and landscape plan, as well as there being other minor modifications);
- the plans endorsed under the 1998 Permit detailing the full use, development and landscaping of the site, not just the building additions which were the focus of the permit application made at that time;
Overall, I consider that there are more indicators pointing to the 1998 Permit as superseding the 1995 Permit and forming a new permission for the plant nursery in place of the 1995 Permit. For this reason, I refer to the 1998 Permit throughout the remainder of these reasons. If I am wrong about this, then the following reasons should be read as if references to the 1998 Permit were a reference to the Permits.

[34]

While there were land use definitions in other parts of the Old Format Planning Scheme, it was the definitions in the local section which were to prevail in the event of any inconsistency.[4]
Latitude 38 submitted that the sale of plants was needed for the use to be a plant nursery use. It said this was the ordinary meaning of the term and also evident from the word 'and' between the list of different items referred to in the definition. While I agree that ordinarily one would expect a plant nursery to sell plants, I am considering a particular town planning definition of that term, not its ordinary meaning. I do not agree that this planning definition requires the sale of plants. It would lead to absurd outcomes if the 'and' was read in the way suggested by Latitude 38 as it would mean that all of the listed activities would need to occur for a use to be a 'plant nursery'. This would mean that a plant nursery must both propagate and sell plants, and must sell all of plants, shrubs, trees and garden supplies (other than bulk sales of sand, soil, etc) to be a 'plant nursery'. A business, such as the one authorised on this site, which did not propagate its own plants would therefore not be a 'plant nursery'. Nor would a rose nursery business which only sold roses, or a plant nursery which did not sell any garden supplies.
Bearing in mind the context and purpose of this planning definition - to distinguish between different types of land uses for the purposes of planning regulation - I find that the definition of 'plant nursery' should be read as providing a description of the types of activities and product types which constitute a plant nursery use, not a list of all of the mandatory activities which must occur for a use to be a 'plant nursery'.
This means that while most people would expect a use called a plant nursery to sell plants, the particular definition in force under the Old Format Scheme also meant that a business selling garden supplies (other than bulk sales of sand, soil, etc) was a 'plant nursery' for town planning purposes. This situation arises because of the particular definition in the Old Format Scheme. I note that the definition of 'plant nursery' is now quite different in the Current Scheme and now describes the sale of garden products as being incidental to the sale of plants.[5]
It follows from the above that I find the term 'plant nursery' used in the 1998 Permit to have the meaning set out in the Old Format Scheme. That particular definition allows for the sale of 'garden supplies' (I explain what 'garden supplies' means below) and did not require this to be incidental to the sale of plants.

[39]

The definitions in the Old Format Scheme are poorly drafted. They capitalise words in a way that seems to indicate those words are defined terms. However, this cannot always be the case as those capitalised words are sometimes used in situations where they cannot or cannot sensibly be those terms as defined in the Old Format Scheme. For example, the definition of 'plant' contains a number of references to 'PLANTS', but they cannot be references to the defined term as they are part of the definition itself.
Another example and relevant to proceeding is the reference to 'GARDEN SUPPLIES' in the definition of 'plant nursery'. It says 'garden supplies' are a product type that may be sold as part of a 'plant nursery' use. However, the definition of 'plant nursery' also expressly excludes the sale of 'the bulk sale, storage and distribution of sand, soil and screening and other like materials'. This is exactly what 'garden supplies' is defined by the Old Format Scheme to be. This means that if the earlier reference in the definition was read as garden supplies as defined by the Old Format Scheme, then the definition of 'plant nursery' would be effectively including the sale of 'garden supplies' only to immediately exclude it.
The parties made submissions about the meaning of the term 'garden supplies' as used in the definition of 'plant nursery' in the Old Format Scheme and agreed that it should not be read as being the term as defined by the Old Format Scheme. Rather, the parties agreed the term should be given its ordinary meaning.
I agree with the parties that the reference to 'garden supplies' in the definition of plant nursery should not be read as a reference to the term as defined in the Old Format Scheme as:
- Principles of interpretation require subordinate legislation such as the Old Format Scheme to be read in a manner which gives effect to its purpose;
- The general purpose of the land use definitions in planning schemes is to enable broad land use types to be distinguished from one another so that the different uses can be regulated in different ways by other parts of the planning scheme;
- The land use definitions in the Old Format Planning Scheme clearly attempt to distinguish between defined 'plant nursery' and 'garden supplies' uses. If 'plant nursery' uses were not to sell any garden products then this could have been more simply achieved by omitting any reference to garden supplies in the definition of plant nursery. However, this is not how the definition is drafted. Rather, garden supplies were included as products which could be sold in a plant nursery, but the particular products which constitute the defined land use of 'garden supplies' were excluded. The purpose of drafting the definition in this way can only have been to allow certain types of garden supplies products to be sold at a plant nursery (for example, pots) but not those which were covered by the separate 'garden supplies' land use term.
As the reference to 'garden supplies' in the definition of 'plant nursery' is not a reference to a defined term, the term should be understood by reference to the 1998 Permit as a whole and given its ordinary meaning.
I consider the ordinary meaning of garden supplies to be products for the use in establishing, improving and maintaining a garden. This appears to be consistent with the plans endorsed under the 1998 Permit. From these plans it is evident that the scope of the 'plant nursery' use was envisaged to encompass not only the sale of plants, but also the sale of garden supplies, including pots, edging and other landscaping materials and garden products.
However, while the ordinary meaning of garden supplies would usually extend to the bulk sale, storage and distribution of sand, soil and screenings and other like materials, this activity is expressly excluded from the 'plant nursery' use as defined by the Old Format Scheme. Again, this is consistent with the plans endorsed under the 1998 Permit, with no indication on these plans of any bulk sale, storage and distribution of sand, soil and screenings and other like materials.
On the meaning of this exclusion, the parties made submissions as to the meaning of 'bulk'. 'Bulk' is defined in various ways depending upon its context. In respect of cargo, it is defined in the Macquarie Online dictionary:
- As a noun meaning -

[43]

I agree with the submission of Latitude 38 that while there have been various activities carried out on the site, in the main they have a common 'genus' in that they have been focused on the sale of gardening and landscaping products and services. It is this core, common purpose of selling garden supplies, which in my view is the appropriate way to describe the real and substantial use of the site during the period from 1996 until mid-2017.
While it is important to understand the activities which have been carried out on a site in order to determine the real and substantial purpose of its use, the use of a site is not determined by a meticulous cataloguing of those activities.[6] Therefore, while there have been some activities that may seem more loosely connected to the purpose of the sale of gardening and landscaping products and services (for example the sale of swimming pools and spas/the manufacture of concrete statutes), based on the particular use of this site, I am satisfied that none of these more loosely connected activities were of a type or scale to transform the use to a different one or to mean that the real and substantial use of the site should be described in some other way.
However, Latitude 38 says it has never relied on the 1998 Permit in carrying out that garden supplies use and it is not the source of legitimacy of that use. I do not agree. Based on the facts before me and my findings on the nature of the plant nursery use authorised by the 1998 Permit, I find that this garden supplies use of the site was carried out under the 1998 Permit for the following reasons:
- (a) The use and development of the site commenced in around 1996 in a manner broadly consistent with the Permits. In particular, the Enclosed Area is generally consistent with the fenced plant nursery area shown on the plans endorsed under the 1998 Permit. In addition, the proposed buildings shown on the endorsed plans within the Enclosed Area were developed and car parking and vehicle access was established generally in the location shown on the endorsed plans.
- (b) After its establishment, the site continued to operate under the authorisation provided by the 1998 Permit. It sold garden products generally of a type contemplated by the Permits. These included items shown on the endorsed plans, such as rock, timber and block display edging, pavers and pots. It sold those products within the Enclosed Area, as contemplated by the Permits.
- (c) The legitimacy of the use arising from the Permits was of continued benefit, enabling approaches to be made to Council about changes to the products sold from the site, including:
  1. A planning enquiry made in 2006 to Council about the potential sale of spas from the site as part of its 'garden supplies' products. In his oral evidence, Mr Coleby confirmed that he was the Council planning officer who responded to that query and it was his understanding that the basis of the existing rights to use the site for the sale of garden supplies arose from the Permits.
  2. The Display Pool Permit issued in 2012 authorising the development of a display pool as part of the existing plant nursery use.
- (d) I do not consider the use to have transformed over time, even though some breaches of the 1998 Permit may have occurred. The substantial use of the site at all times between 1996 and mid-2017 involved the retail sale of garden products as contemplated by 'plant nursery' use authorised the 1998 Permit. This is the case even though, for example:
  1. the bulk sale, storage and distribution of sand, soil and screenings and other like materials occurred. While this may have occurred in breach of the 1998 Permit, as I have already explained, I do not consider the evidence to indicate that this occurred to such a degree that it transformed the use of the land to being something other than that authorised by the 1998 Permit. Rather, I have concluded that the evidence before me indicates that the sale of such products was intermittent and minor in nature.
  2. a landscaping services business operated out of the site. The overwhelming majority of the Enclosed Area remained dedicated to and used for the purposes of the sale of garden supplies products other than bulk soil, sand etc. In many respects the landscaping services were incidental to the sale of those garden supplies products, and even where the services were broader in nature (and therefore potentially in breach of the 1998 Permit), I do not consider this to have transformed the whole use of the site to one which was not generally operating under the authority of the 1998 Permit.
  3. the business did not sell plants. While the cessation of plants as a product sold may have been inconsistent with the endorsed plans, as I have already explained, the particular definition of 'plant nursery' in force under the Old Format Scheme covered uses which only sold garden supplies (other than bulk sale, storage and distribution of sand, soil and screenings and other like materials). Therefore, it did not transform the use to something outside of the ambit of the 1998 Permit.

[45]

As I have explained above, there are existing rights to use the site for the sale of garden supplies (other than bulk sale, storage and distribution of sand, soil and screenings and other like materials) under the 1998 Permit. However, while the 1998 Permit may continue to authorise some of the garden supplies products sold by Latitude 38 (e.g. pots), I have found that it does not authorise the sale of loose soil, sand screening and other like material.
Latitude 38 says that there are broader existing rights to use the site arising under clause 63.11 of the Current Scheme which do authorise the sale of loose soil, sand etc. As I explain below, while I agree that rights also arise under clause 63.11, I consider those rights to be restricted by the 1998 Permit. In other words, while rights to use the site arise in two different ways, those rights are the same in substance.
The reasons I agree that rights also arise under clause 63.11 are:
- (a) Clause 63.11, in summary, says that an existing use right is established if the use has been carried out continuously for 15 years prior to the date of the relevant application or proceeding.
- (b) The 15 year period over which the use must have been carried out continuously is the 15 years immediately prior to the relevant application.[7] In this case, there is no controversy that this 15 year period is 23 November 2003 until 23 November 2018.
- (c) It does not matter for the purposes of clause 63.11 if the use complied with the scheme during the 15 year period, except if there has been action taken in respect of the non-compliance (eg. written direction by Council for the use to cease). During the hearing, Council confirmed that no such action had been undertaken.
- (d) As I have already explained, based on the evidence before me, I have concluded that the real and substantive use of the site over the relevant period, up until mid-2017 was for the sale of garden supplies. Since mid-2017, the site has continued to be used for the sale of garden supplies. It therefore follows that the use of the site has been for a consistent single purpose during the 15 year period relevant for the establishment of existing use rights under clause 63.11 of the Scheme. When Latitude 38 took over occupation of the site in mid-2017 there was a change in the garden supplies products sold, so that loose soil, sand and the like became a substantial component of the products sold. However, these products are still garden supplies products and in my view, such a change in the product offer does not mean that there has been a change to the real purpose for which the land is used.
- (e) It follows from the above, that I find that there has been 15 years of continuous use of the site for the sale of garden supplies over the relevant period which is sufficient to establish existing use rights under clause 63.11.
The reasons I consider those existing use rights arising under clause 63.11 to be restricted by the 1998 Permit are:
- (a) There is no dispute that the current use of the site is prohibited by the Current Scheme.[8] Clause 63.05 imposes a number of limitations or conditions on the right to continue a prohibited (or 'section 3') use for which an existing use rights is established. One of these limitations is that:
  - Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
- (b) The question of whether a use authorised by clause 63.11 is bound by a past permit has been considered in a number of cases.[9] Those cases have consistently found that where the benefit of a permit has been taken and the permit relied upon during the 15 year period relevant for the purposes of establishing existing use rights pursuant to clause 63.11, then the conditions of that permit are a relevant condition or restriction for the purposes of clause 63.05 of the scheme.
- (c) I agree with the conclusion of those cases. As noted by the Tribunal in Seers,[10] it would make a mockery of the whole planning system of regulating the use and development of land in Victoria if once a use had been going for 15 years under a permit, the restrictions and conditions of that permit could be ignored because an existing use right had been established under clause 63.11.
- (d) As I have already explained, the benefit of the 1998 Permit was taken and relied upon during the relevant 15 year period. It follows from this, that this use remains subject to the restrictions and conditions of the 1998 Permit. As I have explained, one of these restrictions is the scope of the use authorised by the 1998 Permit. The site has enjoyed the benefit of the particular definition of 'plant nursery' in the Old Format Scheme in its ongoing operations selling garden supplies. However, it also is limited by the restrictions of that definition, in particular its exclusion of the bulk sale, storage and distribution of sand, soil and screenings and other like materials.

At a glance

Court

Decision date

Source

Judgment (61 paragraphs)

Latitude 38 Pty Ltd v Mornington Peninsula SC [2019] VCAT 1796 (15 November 2019)

Parties

Legislation Cited (2)

Cases Cited (1)