respondent. The responsible authority's decision was affirmed. No permit was granted for planning permit application YR2021/1049.
Key principles
The permit application had to be assessed as a proposal to establish a new contractors' depot, on the assumption that the use had not commenced. Physical evidence of depot...
The proposed depot was unacceptable under the GWZ1 objectives and decision guidelines because it would remove a centrally located, comparatively flat area from potential...
The depot's conflict with the GWZ1 planning framework was strengthened by the site's interface with nearby residential land and the potential amenity impacts of a commercial...
Issues before the court
How should the proposed use be assessed where there was physical evidence of depot activity and a separate existing-use-rights application had been...
Was the contractors' depot compatible with the GWZ1 and the site's planning context?
Had the applicant demonstrated that noise impacts, particularly during the early morning, would be acceptable?
Were other off-site amenity impacts established as determinative?
Plain English Summary
VCAT refused the permit for a contractors' depot on land in the Green Wedge Zone. It treated the application as a proposal for a new use, rather than deciding whether any existing depot activity had legal status. The Tribunal considered the depot's location and its effect on the site's agricultural potential, the green wedge policies, and nearby residential land. It found the use incompatible with the zone and site. It raised unanswered questions about early-morning noise and other impacts, but did not resolve them because the planning-scheme conflict was enough to refuse the permit.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,499 words · generated 02/10/2026
What happened
In Maynes v Yarra Ranges SC [2023] VCAT 532, Robert Maynes sought review of Yarra Ranges Shire Council's refusal to grant a planning permit for a contractors' depot at 32 McKillop Road, Mt Evelyn. The proceeding was brought under section 77 of the (Vic). The land was in the Green Wedge Zone, Schedule 1 (GWZ1), and the Significant Landscape Overlay, Schedule 5. The judgment also records a Bushfire Management Overlay over the northern part of the property and an Erosion Management Overlay over a small section, neither of which applied to the principal depot area described in the application.
Cited legislation
3 cited instruments linked from this judgment.
Planning and Environment Act 1987
The proposed depot was a 60 x 60 metre area to the south-west of the dwelling. The application materials described storage of earthmoving fittings and attachments, garaging of three trucks, and up to six daily truck movements, with operating hours from 6:30 am to 6:30 pm. The Tribunal treated use of the driveway to McKillop Road as part of the proposal because the trucks were described as entering and leaving by that route. The applicant said the Lily Avenue gates would not be used for the depot.
The applicant's case was that the depot occupied a small part of a property used extensively for agriculture, was screened, and would not significantly affect environmental values. The Council's case included concerns about consistency with green wedge objectives and potential amenity impacts. Two statements of grounds from Lily Avenue residents raised concerns including noise and dust. The Tribunal inspected the site and surrounding area on 5 May 2023.
A separate VCAT proceeding had sought a declaration about existing use rights for parts of the property as an earthmoving contractors' depot. That application was withdrawn at a hearing on 6 April 2023. The Tribunal expressly made no comment on that proceeding. Its task here was to decide the permit application on the planning-scheme merits, not to determine enforcement questions or the withdrawn existing-use-rights claim.
On 11 May 2023, VCAT affirmed the Council's refusal and ordered that no permit be granted. Its principal reason was that the depot was not an appropriate use for this GWZ1 site and conflicted with the planning framework's protection of agricultural land and green wedge values. It also considered the residential interface relevant to whether the use and its likely impacts were suitable.
Why the court decided this way
The Tribunal first set the basis on which it would assess the proposal. It said the application was to be considered as a proposal to establish a new use, on the assumption that the contractors' depot had not commenced. Physical evidence of machinery, hardstand, and other activity could help the Tribunal understand what was proposed, but did not change the assumed starting point. It referred to Knox CC v Tulcany Pty Ltd [2004] VSC 375 and, through that authority, Van Egmond v City of Knox, Bassett & Ors. The principle quoted was that an applicant should neither be punished nor rewarded for undertaking work before obtaining a permit.
The central planning issue was compatibility with GWZ1. The Tribunal identified clause 35.04-6 decision guidelines, including the Municipal Planning Strategy and Planning Policy Framework, the suitability of the site, compatibility with adjoining land uses, agricultural production, rural land use, and landscape impacts. The policies it discussed described green wedge areas as supporting farming, biodiversity, valued landscapes, and other rural activities. The Council characterised the area as productive agricultural land under clause 02.03-1. The Tribunal also referred to regional and state policies aimed at avoiding permanent loss of agricultural land in green wedge areas.
The applicant relied on the depot's small footprint, describing it as less than four per cent of the site. The Tribunal did not treat that percentage as decisive. It considered where the depot was located: centrally, on a comparatively flat part of the property that could otherwise be productive agricultural land. It concluded that removing this portion could fragment steeper parts of the land and reduce opportunities for productive agricultural use. In the Tribunal's assessment, the site's agricultural capacity could not be assessed simply by comparing the depot's area with the total land area.
The Tribunal also rejected the comparison between the proposed depot and ordinary agricultural activity. It considered that a contractors' depot could require a greater extent of hardstand for employee vehicles and contractors' equipment than conventional agriculture. It distinguished the commercial depot's storage and regular vehicle movements from the range of equipment that might be associated with agricultural use.
Another important point was the nature of the business and its relationship to the land. The business was a regional earthmoving and civil construction company. The Tribunal acknowledged that the business had merit and might perform work for local farms, but found that much of its work was in a broader catchment. The application materials also indicated that much equipment was usually stored at infrastructure project sites. On the material before it, the Tribunal could not identify a need for this particular agricultural site to be used as the depot that outweighed the conflict with GWZ1 objectives.
The interface with nearby residential land added to the concern. The Tribunal noted that land west of the site, across Lily Avenue, was in the Low Density Residential Zone. It accepted that residents in a small residential pocket surrounded by GWZ1 land must expect some amenity effects, but considered those effects should remain commensurate with the green wedge's agricultural purpose and open rural character. It concluded that the proposed depot did not meet that expectation.
The Tribunal also considered noise, but did not make a final determination on compliance. The acoustic report assumed early truck departures between 6:30 and 7:00 am, a period the judgment identifies as within the night period under the Environment Protection Regulations 2021. The report was not tendered as expert evidence and its author was not called. The Tribunal questioned the location of the noise logger and noted an apparent gap in the report's background-noise data for Lily Avenue. It said it could not conclude from the material that the relevant requirements would be met. However, as the application failed for other reasons, it did not seek further evidence or determine whether the noise requirements would ultimately be satisfied.
The Tribunal took a similar approach to some other potential impacts. Dust suppression might be possible, but the proposal included hardstand beyond what it associated with conventional agriculture. Vehicle servicing, washing, or cleaning on the site was not adequately explained. The Tribunal said it had not pursued those matters because its findings under the GWZ1 objectives and decision guidelines were sufficient to resolve the review.
Before and after state of the law
The judgment presents itself as an application of the existing planning scheme, rather than a decision that changes planning law. The Tribunal applied GWZ1 clause 35.04-6 and the policies identified in the Yarra Ranges Planning Scheme. It did not announce a new legal test for contractors' depots, green wedge land, or the protection of agricultural land.
The assessment of the application as a proposed new use drew on the principle quoted from the authorities identified in the judgment: an applicant should neither be punished nor rewarded for work undertaken before obtaining a permit. In this proceeding, that meant the Tribunal did not treat physical evidence of depot activity as establishing that the permit application was for continuation of a lawful existing use. Nor did it determine the separate existing-use-rights question, which had been withdrawn.
The decision illustrates how the scheme's policies and decision guidelines were applied to the specific location and proposal. The Tribunal treated the size of the proposed area as only one part of the assessment. It also considered the land's capacity for agriculture, the position of the depot within the site, the effects on surrounding land, and the relationship between the use and the zone's purpose. The judgment does not establish that every contractors' depot in a green wedge is unacceptable. Its findings are tied to this proposal, this site's attributes, and the planning context described in the reasons.
Nor did the decision determine the noise issue as a standalone legal conclusion. The Tribunal identified evidentiary limitations and an inability to reach a conclusion on whether the relevant requirements could be met. Because the proposal was unacceptable on other grounds, the judgment did not decide what further evidence might have shown about noise.
Key passages with plain-English translation
The Tribunal explained its approach to pre-permit activity by quoting: “the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained” (reasons, “What is this proceeding about?”, paragraph 2). In plain English, the Tribunal assessed the application on its planning merits as a proposed use, rather than using the apparent presence of equipment or works as a reason either to penalise or benefit the applicant.
The Tribunal's zone-based reasoning is captured by its statement: “This is a location where the primary purpose of the GWZ1 is to accommodate sustainable agricultural uses” (reasons, “Is the proposed use compatible with the site's zone and context?”, paragraph 9). In plain English, the Tribunal considered agricultural use central to the planning purpose of this location, and assessed the depot against that purpose.
On the site's agricultural capacity, the Tribunal reasoned that the depot's effect was “not as simple as referring to it as 4%” (same section, paragraph 3). The point was that a small footprint can still matter if it occupies land suited to agriculture or divides other potentially productive areas.
The Tribunal also stated that it could not identify “any overarching need for it to be located on this specific site to the extent that it outweighs the conflict it creates with the GWZ1 objectives” (same section, paragraph 8). In plain English, the business's usefulness or success did not, on the evidence before the Tribunal, explain why this particular green wedge site was necessary for its depot.
On amenity, the Tribunal concluded: “We are not satisfied that the likely impacts from the proposed contractors' depot are commensurate with the expected amenity outcomes for a GWZ1 site, adjacent to a LDRZ area” (reasons, “Other issues”, paragraph 3). This reflects the Tribunal's view that the residential interface mattered, while recognising that some amenity impacts are expected in a rural setting.
What fact patterns trigger this precedent
The decision is relevant as an example of a permit review involving a non-agricultural commercial use proposed on land where the planning scheme gives importance to agricultural production and green wedge values. The facts that mattered here included the depot's proposed location on comparatively flat land, its central position within the property, the possibility that it would fragment other agricultural areas, and the availability of access to a public road.
It is also relevant where an applicant argues that a use has a small footprint, is screened, or resembles activities associated with farming. The Tribunal examined those claims in context rather than treating them as conclusive. It considered the character and intensity of a contractors' depot, including hardstand, equipment storage, employee vehicles, and regular early-morning truck movements.
The residential interface was another material feature. The nearby LDRZ land informed the Tribunal's view of compatibility and expected amenity. The decision may therefore be useful when analysing how a green wedge site's relationship to adjoining residential land forms part of a broader suitability assessment.
Finally, the judgment is relevant where there is visible evidence of activity before a permit has been obtained but the application is for a new use. The Tribunal stated that it would assess the proposal on the assumption that the use had not commenced, while treating the physical evidence as a way to understand the proposal. The judgment does not resolve existing-use rights, because the separate application on that issue was withdrawn.
These are features of the reasoning in this case, not a checklist that necessarily determines another application. The judgment does not say that a depot with any particular number of trucks, area, or operating hours must be refused. Its result arose from the combined planning and site circumstances before the Tribunal.
How later courts have treated it
The supplied judgment contains no discussion of later decisions applying, distinguishing, approving, or rejecting Maynes. It was delivered on 11 May 2023 and the provided text does not identify any subsequent judicial treatment. On this source alone, it is not possible to describe how later courts or tribunals have treated the decision.
Within Maynes itself, the Tribunal referred to Knox CC v Tulcany Pty Ltd [2004] VSC 375 and Van Egmond v City of Knox, Bassett & Ors (1985) 3 PABR 249 in addressing the assumption that the proposed use had not commenced. The judgment does not discuss a broader line of precedent about contractors' depots or establish a general rule that such uses are incompatible with green wedge land.
The outcome should therefore be understood as a fact-specific application of the Yarra Ranges Planning Scheme. The judgment's own stated limits are important: it did not determine potential enforcement issues, the withdrawn existing-use-rights application, or whether further acoustic evidence could establish compliance with noise requirements.
Still-open questions
Several matters remained unresolved because the Tribunal considered them unnecessary to decide. The first was whether the depot could meet the relevant noise requirements, particularly for truck movements between 6:30 and 7:00 am. The Tribunal identified limitations in the acoustic report and said it could not conclude that compliance had been demonstrated, but it did not reach a final finding of breach or non-compliance.
The judgment also did not determine how dust suppression, vehicle washing, equipment cleaning, or minor vehicle servicing would operate in practice. It identified uncertainty in the application material about those activities. It did not decide whether particular conditions could manage those impacts.
The separate question of existing use rights was left entirely open in this proceeding. The Tribunal noted that application P1361/2022 had been withdrawn and expressly made no comment on it. Its permit review was not a determination of whether any past or current activity had existing use rights.
Other potentially relevant matters include the history and planning status of the hardstand, covered area, and other buildings or works. The Tribunal said it was not aware of their history and that no application for buildings and works was before it. Its decision addressed the use application, not permission for physical works.
Finally, the judgment does not establish how a different site, a different depot layout, or a different relationship to agricultural activity would be assessed. It notes that the business had some local farming work but was principally a regional civil contracting business, and that the depot was not dependent on this particular site. Whether different evidence or site circumstances would alter the planning balance was not decided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using any draft based on this response, have it checked by a qualified Australian lawyer.
Judgment (23 paragraphs)
[1]
The applicant's submission refers to application material provided to the council in its 2021 permit application setting out that the use includes:
A 60 metre x 60 metre area of land in which earthmoving machinery fittings and attachments will be stored along with garaging of three trucks.
Truck movements to and from the area, via the entryway at McKillop Road of up six times per day, being the three trucks going in and out.
Operating hours of 6:30am to 6:30pm, with usual operation likely to finish earlier than 6:30pm.
Most operation will occur in the early morning and then afternoon as equipment and trucks depart and arrive. Occasional movement of machinery and transport and equipment may occur during the day.
The permit request does not include any storage or transport of soil, gravel or other earthmoving material.
The use proposal before us does not refer to any use of the accessway to McKillop Road on the land, however, this must be implied as part of the use, as the proposal refers to trucks entering and exiting from McKillop Road. There are three gates to the property from Lily Avenue, but we were advised these will not be used as part of the proposed contractors' depot.
Photographs tabled by parties also show earthmoving vehicles and trucks located in and adjacent to a shed described as an agricultural shed on the application plans, outside of the demarcated contractors' depot. These were also visible on our inspection. Other earthworks and agricultural equipment, as well as drainage pipes, bricks and pavers are also stored on the site. The applicant advised these are not part of the contractors' depot, but are related to the domestic operation of the dwelling and the agricultural use of the land.
We have, proceeded on the basis that the application is as described by the applicant, being only the 60 x 60 metre area, but we have assumed the depot relies on the main property access at McKillop Road as part of its use. The 60 x 60 metre area, as set out in the application plan is set out in figure 1 below.
[2]
Figure 1 - Plan forming part of the advertised permit application.
[3]
Figure 2 - Aerial image of the review site and surrounds taken from Nearmap. Image date 16 February 2023. We have marked an approximate 60 x 60 metre square where we understand the proposed use is to operate.
[4]
Photographs and inspection also indicate that the area to be used for the contractors' depot has had crushed rock and some drainage put in place. There is also a covered area supported by two shipping containers within the 60 x 60 metre area that the council says may exceed 100 square metres and therefore may require a planning permit for buildings and works.
We are unaware of the history of the establishment of any of these buildings and works. We were advised by the applicant that buildings and works on the site have occurred previously as part of the agricultural use of the land. There is no application before us for buildings and works and we make our determination based on the application before us, which is only for use of the land for a contractors' depot, not any buildings or works.
[5]
As we have set out, a planning permit is required for the use in accordance with the GWZ1 that applies to the land, as set out at clause 35.04 of the planning scheme. This is not disputed by the parties. Clause 35.04-6 sets out decision guidelines to consider a planning permit to use land in GWZ1. These include general, rural, environmental, and design and siting issues. Of relevance to the submissions made, and the use proposal before us, these include:
The Municipal Planning Strategy and the Planning Policy Framework
How the use or development relates to rural land use, rural diversification, natural resource management, natural or cultural heritage management, recreation or tourism.
Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
The need to minimise adverse impacts on the character and appearance of the area or features of architectural, scientific or cultural heritage significance, or of natural scenic beauty.
The maintenance of agricultural production and the impact on the rural economy.
With reference to the first of these decision guidelines, the Municipal Planning Strategy (MPS) includes settlement and green wedge policy that sets out that green wedge areas:
[6]
will continue to support a diverse mosaic of agricultural activities, rural lifestyle opportunities, tourism and bushland areas. New developments, subdivisions, and land use changes, will continue to be managed in a way that protects and enhances the primary Green Wedge values of supporting sustainable farming, retaining a healthy biodiversity and protecting valued landscapes.
[7]
The council's submission sets out that the site is in a nominated 'productive agricultural' area, being an area described in clause 02.03-1 as where most lots are currently used for agriculture or have realistic potential to be used for horticulture, livestock grazing or other forms of productive agriculture. Relevant strategic directions in clause 02.03-1 include to:
Protect the Green Wedge by ensuring use and development complements or enhances the primary values and characteristics of the Green Wedge.
Minimise residential subdivision in the green wedge.
Limit the use of rural land in the green wedge to agriculture, rural industry, tourist-oriented businesses or dwellings.
In this instance, some residential subdivision has already occurred in the area with land directly west of the site, across Lily Avenue comprising rural residential type lots in a Low Density Residential Zone (LDRZ). Managing this site interface is important, along with ensuring the review site itself responds to the strategic directions to support the area as one of productive agriculture. This is also consistent with broader regional green wedge policy at clause 11.01-1R - Green Wedges - Metropolitan Melbourne.
[8]
IS THE PROPOSED USE COMPATIBLE WITH THE SITE'S ZONE AND CONTEXT?
[9]
The applicant submits that the proposed use will not unreasonably impact the green wedge values of sustainable farming, healthy biodiversity and protection of landscapes as:
The 60 x 60 metre depot area is established and uses less than 4% of the site with the remainder of the site demonstrating active and extensive agricultural use over a long period.
The depot location is essentially an open area of the property that is well screened from external view by well-established dense boundary hedging.
The depot proposal does not have any significant impact on environmental values over the site and does not preclude regeneration outcomes.
In a zone, a location and on a site where agricultural use is encouraged and practiced, involving regular ploughing, slashing and other management of the land with a similar range of equipment and machinery, the concerns about impacts from this particular proposal are over-stated.
The nominated 60 x 60 metre area of the contractors' depot is a relatively small area of the land, although we note that the area is inextricably linked to the driveway area to its north to access McKillop Road. We have also assumed that other areas, notably the agricultural shed that currently contains earthmoving equipment, will not form part of the proposal and therefore this equipment would be moved into the 60 x 60 metre area.
The location of the proposed depot is quite central to the overall site. It is also a flatter part of the site that could otherwise be productive agricultural land due to its topography. We therefore find its loss as agricultural capacity is not as simple as referring to it as 4%, as described by the applicant. It fragments sections of the other steeper sections of the land for productive agricultural activity. We therefore concur with submission of the council that while small as a proportion of the overall site, the location of the depot will erode and prevent the encouragement of sustainable farming activities and reduce the opportunities for a variety of productive agricultural uses on the land.
We disagree that a conventional agricultural use of the land would result in a similar physical outlook to the proposed contractors' depot. Simply this is because there would not be the potential need for the extent of hard stand for employee vehicles and storage of contracting equipment. The area of the proposed use is, however, well screened from McKillop Road due to the site's elevation and distance from this road. The site is also generally well screened from Lily Avenue, other than for the areas where gates exist. If a permit were to grant there would be a need to provide increased screening to these adjoining residential properties.
[10]
IS THE USE LIKELY TO RESULT IN ANY UNREASONABLE AMENITY IMPACTS?
[11]
The council officer report sets out that potential amenity impacts may arise from the use through noise, dust and visual amenity. Statements of grounds received from two properties in Lily Avenue oppose the proposed use, referring to noise and dust impacts and the safety and physical impact of heavy trucks using the local rural roads of the area. One of the statements of grounds also questions the environmental impact on the area, from vehicles being washed and/or serviced on-site.
[12]
Clause 13.05-1S - Noise Management, in the planning scheme has an objective to assist the management of noise effects on sensitive land uses. It requires consideration of noise requirements set out in the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) and the Noise Limit and Assessment Protocol for the Control of Noise from Commercial, Industrial and Trade Premises and Entertainment Venues.[6]
The applicant's submission is accompanied by an acoustic report prepared by Acoustic Dynamics (13 July 2022) and provided to the council as information to address objections from neighbours about noise. The applicant commended this acoustic report to us noting that the council officer report does not take issue with the report's findings and comments that the noise generated by the use is unlikely to be extraordinarily high.
The council submission to the Tribunal concurs with this, but states the nature of the use generating the noise is not appropriate to the GWZ1. The applicant submits that this submission is misguided as it is the same type of equipment used and the same type of noise generated as a typical agricultural use on the land and on many nearby sites.
The acoustic report refers to EPA publication 1826 as the basis of its consideration. It acknowledges that the contractors' depot will have capacity to store earthmoving equipment that, by example includes a 14 tonne Hitachi excavator, a 5 tonne Kubota excavator and bobcat loader. The applicant does not dispute that it has many more vehicles and equipment but most is stored off-site, at infrastructure project sites. The exception to this is during the Christmas / new year period when more equipment is likely to be stored on-site during construction shut downs.
The acoustic report assumes a general day to day operation of up to two staff vehicles arriving at the site between 6:30 and 7:00am and up to two trucks departing during the same period, Monday to Friday. Between 4:30 and 5:30pm the trucks would return and staff vehicles would then leave. As the 6:30 to 7:00am period is within the designated 'night' period defined by the EPA, a sensitive approach needs to be taken.
[13]
The applicant acknowledges a need to address what it describes as 'a very limited number of vehicle movements over a well maintained internal driveway with regular use of dust suppressing as and when required.' Measures to supress dust can be taken, however the site includes a section of hard-stand for equipment, over and above the conventional area of exposed hardstand that would be associated with an agricultural use of the land. This is noting that aerial images of the land, as provided by the applicant, indicate that the area proposed to be used as a contractors' depot has previously been a grassed area and not an area of hardstand for equipment and truck storage. An example of the images provided by the applicant is in figure 3 below.
[14]
Figure 3 - Nearmap image of the review site - dated 28 June 2011, extracted from the applicant's submission attachments.
[15]
Traffic in this context is a management impact, but also relates to the general character expectation of a GWZ1 area with an interface to rural residential lots in LDRZ.
The applicant acknowledges that some minor servicing of vehicles may occur on the site and we expect that it would be a normal expectation of a contractors' depot that some washing or cleaning of equipment and vehicles would also occur on-site. We did not question the applicant about this in the hearing so how this would be managed is unclear from the material before us. As with noise, had this been an issue on which our decision would be determinative we would have sought further information from the applicant. Given we find the proposal is unacceptable when tested against the objectives and decision guidelines of GWZ1 alone we have not pursued this issue further.
[16]
The applicant's submission is that the proposed use is not dissimilar to agricultural activities that occur on other land, referring to other sites where there are large sheds and sometimes agricultural trucks or vehicles parked on-site. The applicant also referred to a number of other sites, some close by, where there appears to be an ancillary use of a truck stored on a site, or similar equipment.
There is no doubt that agricultural use of land has its own impacts. However, it is different from what is proposed for this site, which is for a commercial contractors' depot that relies on regular early morning truck movements, various other vehicle movements and storage of contractors' equipment. The scale and intensity is quite different to the general agricultural use of land. The proposed use of this land is further limited by the interface to the residential area to the west of Lily Avenue that further emphasises to us that this site is not appropriate.
The residents west of Lily Avenue must expect some amenity impacts being a small pocket of residential land surrounded by GWZ1 land. However, these impacts need to be commensurate with the purposes of the GWZ1 land to provide for agriculture, sustainable farming and the general open rural character of the area. We are not satisfied that the likely impacts from the proposed contractors' depot are commensurate with the expected amenity outcomes for a GWZ1 site, adjacent to a LDRZ area.
[17]
For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[18]
[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[19]
[2] The council submission refers to an area of 8.79 hectares, however, we concur with the applicant's description at 9.57 hectares from our review of Nearmap imagery and VicPlan property information.
Maynes v Yarra Ranges SC [2023] VCAT 532 (11 May 2023)
AI Analysis
Outcomerespondent
Disposition:
The responsible authority's decision was affirmed. No permit was granted for planning permit application YR2021/1049.
The policy framework of the planning scheme, at State, regional and local level consistently and repeatedly directs a need to protect agricultural land in the green wedge areas. This includes policy we have already set out is in the MPS and settlement policy at clause 11.01 of the planning scheme. It is further reiterated in clause 14.01-1S and 14.01-1R that has a strategy to avoid the permanent loss of agricultural land in green wedge areas. Local sustainable agricultural policy at clause 14.01-2L-02 also reinforces the objective to provide a secure, long term future for productive and sustainable agriculture that remains adaptable to the evolving needs of agriculture.
The establishment of the proposed non-agricultural use of the land is contrary to these policies. It is not a use that is dependent on this particular site, other than it is convenient to the owner of the business who resides on the land. The business is a regional earthmoving and civil construction company that requires a place to store vehicles and equipment as a contractors' depot. It is not dependent on the soil based agricultural land of this site and removes a central part of the site from such activity. In turn it has potential amenity impacts to the nearby residential area that we address below.
We appreciate that from submissions made, the business is a successful and growing business that plays a role in the broader economic activity of Victoria. It is therefore a business of some merit. The applicant also submits that the business owner has undertaken work for local farmers and undertakes earthmoving work for various local farming properties.
The business may include servicing some local farms, but it is evident from material provided about the business that the bulk of its business is in civil contracting in a broader catchment. The applicant indeed relies on submission that much of its equipment is usually stored at large infrastructure projects off-site, rather than on the review site. While there may remain some local catchment for the contracting services we cannot identify any overarching need for it to be located on this specific site to the extent that it outweighs the conflict it creates with the GWZ1 objectives. This conflict is emphasised in consideration of the potential amenity impacts to neighbouring residential land that we address below.
This is a location where the primary purpose of the GWZ1 is to accommodate sustainable agricultural uses. For this specific site this is further limited by the adjoining LDRZ land, that in turn limits the capacity of the land for uses that may conflict with existing residential use. We conclude the proposed use in this circumstance is contrary to the objectives of the GWZ1.
The council has assumed up to six staff vehicles may be parked on-site. Photos concurred with our inspection that four to six vehicles that appear to be staff vehicles may be parked on the site.
The acoustic report also sets out that the nearest noise sensitive receivers are dwellings located at 13, 15, 34 and 64 McKillop Road in the Green Wedge Zone A area north of McKillop Road, as well as 1 - 23 Lily Avenue in the LDRZ area to the west.
The acoustic report was not tabled as expert evidence. In the absence of the author of the report being called as an expert witness we asked the applicant some questions about this report. In particular, why the noise logger to establish existing background noise was located at the property boundary of McKillop Road. The applicant was unable to respond to this matter. We note that the nearest sensitive receivers to the active location of the depot on the site are at 15 - 17 and 19 - 21 Lily Avenue. These are the locations where statements of grounds have been received by the Tribunal and raise issues of noise, particularly a history of noise disturbing sleep in the early morning.
The acoustic report refers to short term background noise measurements being undertaken in Lily Avenue, including one between 6:00 and 7:30am. However, the table 2.2 that it says sets out the results of this measurement do not include this period for this location. The only complete data set is in the appendix B that relates to the unattended noise logger at McKillop Road. There were a number of other elements in the acoustic report we would have liked to explore but this would have been of limited utility given the report was tabled as a report to accompany the application, not the review to the Tribunal and its authors were not called to give evidence.
From the information before us we are unable to conclude that noise, particularly during the night period has been demonstrated to ensure that relevant noise regulations can be met. Had this been the only issue of concern we would have sought further information from the applicant to address our questions. Given we find the proposal fails for other reasons this has not been necessary.