Victorian Civil and Administrative Tribunal|2008-10-08

Lightowler v Casey CC [2008] VCAT 2054 (8 October 2008)

Application under s. 77 of the Planning and Environment Act 1987 against Council's Refusal to Grant a Retrospective Permit for a Transport Depot; Casey Planning Scheme; Green Wedge Zone (Schedule 3); Lack of Policy Support for Proposed Use.

Lightowler v Casey CC [2008] VCAT 2054

The decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

This is a sec. 77 review under the Planning and Environment Act 1987 against Council's refusal to grant a permit to use part of the land at 115 Moores Road, Clyde, for a transport depot. The grounds of refusal were:
1. The proposed use would result in unreasonably impact on the amenity of the surrounding area with respect to frequency of vehicle movements to and from the subject site.
2. The proposed use constitutes a "Transport Depot", an unspecified use, which is considered to be contrary to the purpose of the Green Wedged Zone, particularly the need to conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.
3. The proposed use is inappropriately located along and dependent upon access from an unsealed road.

The day prior to the hearing, the Tribunal received a document from the review applicant that the number of trucks to be stored in the proposal is five rather than four as stated in the permit application form. This document foreshadowed a request to amend the application to this effect.
At the haring, Council opposed the proposed amendment at such a late stage.
The Tribunal declined to amend the application, based on the reasons that it was lodged so late and without following the procedure in the Tribunal's Practice Note. Further, apart from Council, this request has not been served on any other potentially interested parties.
Following a brief discussion between Mr. Hooper and his client, they indicated that they would revert to the proposal of four trucks, and would seek a further permit to accommodate five trucks at a later date.
A second matter is the characterisation of the proposed use. The permit application described the use as the parking of four trucks. Council refused the application as a vehicle store. It, however, submitted that the proper characterisation is transport depot. The permit applicant also agreed that the proper characterisation is a transport depot. The Tribunal accepts a transport depot as the appropriate characterisation of the proposed use, given the consideration given to such a use by several Tribunal decisions[1]. The Tribunal would proceed to deal with the proposal as a transport depot.

The review site is located on the north side of Moores Road between Derricks Road and Campbells Road, Clyde. It is a regular allotment with a frontage of 107 metres, a depth of 193 metres, and a site area of approximately 2 hectares. It was a former market garden. There is a house towards the southern end of the land. An area near the southeast corner of the land and behind the house is used for the parking of several trucks and cars. This area, 44 x 49 metres, is hard paved with crushed rock. The balance of the land is made up of the disused market garden paddocks and a dam at the northwest corner.
Land uses in the area are market gardening, grazing, other forms of farming and a plant nursery to the immediate west of the land.
The application came about following a complaint received by Council and a subsequent investigation into the use without a permit. Notwithstanding that, the Tribunal notes that there was no objection to the proposal from the public notice process. In fact, there are letters of support despite the earlier complaint.
This application is, therefore, a retrospective application for a permit to legitimise the current use.

The proposal is to pave an area of approximately 2000 sq m and use it to store four trucks. These trucks are of a main vehicle and trailer combination, each with a tare weight of 16 tons and gross weight of 28 tons. These trucks are used for an earthworks contracting business which operate off site during the day. The trucks are collected and taken off site by their drivers before 8:30am and return after 4 pm, but mostly between 6:30am and 3:30om. The trucks remain on site overnight. The drivers of the trucks, as observed, leave their commuting vehicles on the site during the day.
Access to the parking area is from the same crossover as the house from Moores Road. Basic maintenance of vehicles is carried out on the land. The existing shed near the parking area houses the maintenance equipments.

The review site is in the Green Wedge Zone (Schedule 3) under which a transport depot is an innominate use, a discretionary use. The decision guidelines of Clause 35.04-6 apply.
No overlay applies to the site.
Relevant provisions and policies are Clauses 12.02 (Better Management of Metropolitan Growth), 21.07 (The Farm), and 65.
Council also advised that it has at present a planning scheme amendment to deal that would affect the proposal. This amendment, C93, seeks to introduce a new local policy to manage non-agricultural uses in green wedge areas. Although this amendment has yet to be adopted by Council before the Minister's approval, Mr. Ness advised that it has been through the exhibition process and that there were only two submissions received. He advised that Council is having on-going discussion with these two parties[2] and expects that these submissions would be withdrawn with some minor amendments to be introduced into the policy. When that is the case, there will be no need for a panel hearing and the Council would adopt the amendment and then forwarded to the Minister for approval.
This new local policy seeks to discourage the intrusion of urban type uses into green wedged areas. Such uses include vehicle stores and transport depots. According to this policy, the proposed use in this review will be discouraged in the area.

At the hearing, both parties spoke to written submissions. The Tribunal reserved its decision and indicated that it would inspect the site before doing so. It has inspected the site and surrounding area.

The issue of this review is whether there are adequate planning merits for the proposed transport depot against the planning controls and policies of the Scheme. The Tribunal concludes that there is not. In doing so, the Tribunal has had regard to the decision guidelines for the use in the Zone and relevant policies.
The visibility of the transport depot is not the major reason why the Tribunal does not support the proposal. As Mr. Hooper pointed out, the visibility of the proposal can be reduced and in effect concealed by landscaping and screen planting along the eastern boundary of the site.

The site is in the Green Wedge Zone Schedule 3 of the Scheme. The purpose of this zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

To recognise, protect and conserve green wedge land for is agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

To encourage use and development that is consistent with sustainable land management practices.

To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.

To conserve and enhance the cultural significance and character of open rural and scenic non-urban landscapes.

To protect and enhance the biodiversity of the area.

These objectives clearly stated the planning focus of retaining and enhancing the rural and open landscape of green wedge areas and about protecting the farming productivity and activities of the land.
In deciding on a permit application, Clause 35.04-4 provides the decision guidelines. These guidelines require the responsible authority to consider how the proposed use or development relate to the rural land use, rural diversification, natural resource management, natural or cultural heritage management, recreation or tourism, and whether it is compatible with adjoining land uses. As well, the responsible authority is to consider whether a proposal is essential to the health, safety or well-being of Victoria if a particular proposal is not appropriate to be located in urban areas.
These guidelines require the responsible authority to consider the impact of the proposal in terms of rural, environmental and design and siting issues, which are:

The maintenance of agricultural production and the impact on the rural economy.
The environmental capacity of the site to sustain the rural enterprise.
The need to prepare an integrated land management plan.
The impact on the existing and proposed rural infrastructure.
The potential for the future expansion of the use or development and the impact of this on adjoining and nearby agriculture and other land uses.
The protection and retention of land for future sustainable agricultural activities.

The need to minimise any adverse impacts of siting, design, height, bulk and colours and materials to be used, on landscape features, major roads and vistas.
The location and design of existing and proposed infrastructure services which minimises the visual impact of the landscape.
The need to minimise adverse impacts on the character and appearance of the area or features of archaeological, historic or scientific significance or of natural scenic beauty or importance.

Apart from these considerations required by the zone, policies in the SPPF acknowledges a need to manage metropolitan growth by the protection of green wedge areas and by means of an urban growth boundary (Clause 12.02)
In terms of local policies, the relevant one is Clause 21.07 (The Farm). The Farm is the farming belt on the south side of Casey that consists of the areas around Clyde, Cranbourne South, Devon Meadows, Five Ways, Junction Village and Pearcedale, and area that contain high quality and versatile agricultural soil. It is an area mainly used for agricultural purposes such as beef cattle, vegetable and flower growing. Most of the produce is sold in metropolitan Melbourne. Other identified rural activities are poultry farming, horse racing and agistment, animal boarding and dog breeding. This policy acknowledges that the agricultural output from this area makes a significant contribution to the local and metropolitan economy.
Clause 21.07 seeks to consolidate urban development within the boundaries of existing rural settlements and planned commercial nodes, to retain quality land for intensive agriculture and ensure the viability and prosperity of agricultural activities is not compromised. To achieve these objectives, it is strategy to, among others, safeguard the natural resources through encouraging and assisting sustainable farm practices, promote and encourage the continued increase in the technical and economic efficiency of intensive irrigated and dry land farming system, and discourage the establishment of unwanted urban land uses.
The proposed local policy for Non-Agricultural Uses in Green Wedge Areas in a new Clause 22.21 to be brought into the Scheme by Amendment C93 is to provide additional policy guidance and reinforces the idea of discouraging non-urban land uses in the green wedge area. When it becomes part of the Scheme, this policy is to, as relevant:
- exclude industrial/warehouse type uses, except 'Rural Industry' or 'Rural Store' as defined in the Scheme or where there is a clear link between the proposed activity and agricultural production, are not to be located in green wedge areas;
- non-agricultural uses, except those in conjunction with related agricultural activities located along sealed roads that are capable of carrying anticipated traffic volumes and designated as public transport routes can be located in green wedge areas;
- ....
- A land management plan to ensure that the balance of the site can still be used in a productive and sustainable manner, and the non-agricultural use to support the retention and viability of existing and/or future agricultural activities on the land.
Council did not support the proposal because it was not satisfied that the proposal meets the objectives of the zone and the policy context of the site, and that the proposed use is inappropriate for the locality. Mr. Ness submitted that the proposed use is effectively an industrial use in a green wedge area of open landscape. To Council, it is contrary to the open rural character of the area. He argued that the trucks and associated large shed, paved areas, fuel pump, shipping container and other ancillary items are a detriment to the open nature of the locality. The lack of vegetation along the eastern and western boundaries and the area of hard standing used for the parking of trucks and trailers are highly visible when viewed from the easterly and western directions. Mr. Ness submitted that the proposal is contrary to the MSS policy relating the "The Farm" and contrary to the purpose of the zone.
Council also submitted that Moores Road is an unsealed road that is maintained by Council. It submitted that it is inappropriate for this type of use to locate along and rely on access from an unsealed road. With regard to other trucks using Moores Road, Mr. Ness explained that they service the surrounding market gardens, an agricultural use encouraged for the area. Instead, the constant truck traffic generated by the earthmoving business is not related to agricultural production despite a "no-dust" speed that the permit applicant's drivers are supposed to undertake. Mr. Ness predicted that the end result as detrimental to the amenity of the area and additional maintenance needs for the road.
On the other hand, Mr. Hooper submitted that the use would not result in unreasonable impact on the amenity of the surrounding area. He tabled eight letters of support from businesses and residents of the surround area. He submitted that the use will generate 10 vehicle movements a day, and that other farming activities also generate movements from large trucks, a normal part of rural existence similar to the previous use of the land for market gardening. He argued that the area is not one of cultural significance and that the use is well screened to the west and south and partially to the north. His client, however, would accept a permit condition requiring a landscape plan to provide suitable screen planting. Having said that, he also submitted that the hard paved crushed area is generally vacant during the day. With regard to Council's criticism of the use relying on unsealed road, he submitted that Council's own engineer has not objected to the proposal.
The Tribunal's inspection of the site and area confirms the agricultural land use of the area. It also confirms the effective screening of the truck parking area along the southern boundary by virtue of a cypress hedge and the existing house. The visibility of the proposed parking area is, however, high along the eastern boundary. When the trucks are on the job, the area is used for parking by the workers who came in to pick up the trucks in the morning. It is presumed that visibility of this parking area from the northern boundary would also be high.
The Tribunal considers the visibility of the trucks of secondary concern, one that can be addressed by screen planting. Screening of the parking area by vegetation would not be out of place in a rural area and that can be achieved by planting along the eastern boundary of the land, thus screening the parking area from public view. If visibility is the only issue, there is in principle no problem with the use of the entire 2 hectares as a transport depot as long as the use can be screened from view.
It is not. The test is whether the proposed use is an appropriate response to the zoning of the land and the policies that affect it.
The proposed use is not related to agricultural production or rural enterprises. It is one that is not encouraged in the zone and unable to meet the decision rural issues guidelines of Clause 35.04-6 and the policy for "The Farm" at Clause 21.07 particularly in the aspect of protecting agricultural production and activities of the land.
Apart from the land use aspect, the Tribunal is not persuaded that the proposed use would not cause detriment to the amenity of the area. The trucks involved are not small vans or small delivery trucks. They are of a truck and trailer combination for the purpose of earthmoving. Moores Road is unsealed. The Tribunal's inspection of the road is that any fast moving traffic will cause dust. The permit applicant proposes a "no dust" speed for his drivers. He explained at the hearing that it means a speed of 5-10 km per hour or dependant on the driver's personal judgement and conditions of the road.
The Tribunal is not persuaded that drivers will travel at that slow speed in Moores Road that such a slow speed is acceptable to other road users. Further, such a speed will be notorious for driver to adhere to and difficult for Council to enforce. If the traffic is generated to support a farming activity or agricultural production, that is ancillary to an encouraged use. The proposed traffic is not.
Mr. Hooper indicated that the land is not sustainable as a farming unit, that it is too small to generate income to support his client. One allotment is not expected to support the livelihood of a family. Farms are often made up of a number of allotments or titles. Shared farming or agistment of livestock on other people's land is not an uncommon agricultural practice in Australia. The Tribunal is not persuaded by this argument to justify the proposed use.

The Tribunal can find no planning support for the proposed use.
It thought about a temporary permit so that there can be a period of time that the permit applicant can relocate. However, it is preferable to grant a permit when the responsible authority is assured of its merits. Council, as the responsible authority of the Scheme, can always negotiate a period of time for the use to cease as part of its enforcement action.

The decision of the Council to refuse the application is upheld and a permit is not to issue.

[1] De Haan v Casey CC and Ors [2002] VCAT 644, Beckman v Port Phillip CC (31 March 2001), and Yarra Ranges v Hunter (31 December 1999).

[2] These two parties are the Farmer Federation and the Eastern Grower Association

Environment Act 1987

Lightowler v Casey CC [2008] VCAT 2054

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Lightowler v Casey CC [2008] VCAT 2054 (8 October 2008)

Parties

Legislation Cited (1)