Mr Don and Mrs Carmen MacDonald, objectors, appeared in person.

On the day after the hearing, the Tribunal inspected the subject site and surrounds.

1. This application for review is one brought by the permit applicant in response to the decision by the Shire of Campaspe to refuse planning permission in relation to Permit Application TPA82-98-502. The application is to use and develop the subject land for the storage of trucks and excavators.

2. The subject land is known as Crown Allotment 3, Section D, Parish of Tongala. It is an irregularly shaped lot with a frontage to the northern side of Torney Street of 188.79m, a maximum depth of 119.13m and an area of 1.55h. The site is located at the "T" intersection of Torney Street with Cavell Street. The site is relatively flat and contains no mature trees and shrubs. Some planting has been established around the perimeter of the site. Vehicle access to the site is gained solely via Torney Street towards the eastern end of the frontage.

3. The subject site was formerly used by Dalgettys as a stock sales yard until the early 1990s. The appeal site contains a number of features which relate to its previous use as a stock sales yard including a timber rotunda and concrete pad within the centre of the site. The perimeter of the site is bounded by a low level rural style post and wire fence with an electric fence located within the fence line. It was explained that the electric fence was installed by the McGills to protect the Eucalypts which they had planted around the perimeter, from the cattle or sheep kept on the site.

4. To the immediate east of the subject land is a residential property occupied by the applicants for permit. It forms the westernmost of a line of residential properties extending along the northern side of Torney Street to the east . The next two residential properties to the east of the McGill property are occupied by the Tullys and the MacDonalds, who are objectors in these proceedings. The land generally to the north and west of the subject site is used as municipal parkland. To the south-east across Torney Street is the Tongala Primary School. To the south-west of the subject land are residential properties with frontage to the southern side of Torney Street west of Cavell Street.

"The overall impression of the area is one of openness which is characterised by the surrounding parklands and school. The surrounding residential environment is consistent with this theme given the substantial front and side building setbacks, the size of individual allotments and the predominance of single storey housing within the area."

The appeal site is located approximately 600m to the north-east of Mangan Street which contains the principal shopping precinct for the town. The main employer within the town is Nestlé which is located a further 400m to the south-west. Close to the Nestlé factory is an industrial estate, the use of which is being promoted by the Responsible Authority.

5. The surrounding street network is generally fully constructed with asphalt paving and concrete kerb and channel. Footpaths are usually provided on one side of the street only: no footpath is provided immediately adjacent to the site in Torney Street.

6. It is proposed to use only the south-eastern portion of the appeal site adjacent to Torney Street for the proposed storage of vehicles. That portion of the site has already had a 1.6m high cyclone wire fence placed around it. The fence extends some 45 to 51.7m into the site and at its closest point would be 7m from the eastern boundary of the site which abuts the McGill house site. The fenced off portion of the site has a rear boundary width of 48.8m and a frontage to Torney Street of approximately 80m. The fenced off area would embrace the existing concrete pad and rotunda. Within the fence there is also a small portable office which has been relocated onto the site. Cyclone wire access gates are provided at the existing concrete crossover to the site from Torney Street. It seems that the remainder of the site would continue to be used for grazing.

7. The subject site was purchased by the McGills in April 1998 and has for some months been utilised for the storage of heavy vehicles associated with the applicants' business. The appellants operate a vehicle cartage business which involves the transport of soils, building materials, and equipment throughout Tongala and the surrounding district. Five employees are associated with the business . Due to the nature of the business, the bulk of activities occur off-site. Four trucks are stored on the site - three 10m long rigid tip trucks which have a fixed bogey; and one low loader - an articulated vehicle with a prime mover. Three excavators which are 15 tonne vehicles with caterpillar tyres are also stored on the site. I was advised that one of those was only purchased a short time before the appeal hearing and was only stored on the site for a short time before its allocation to its first off-site contract. The excavators need to be towed to and from the site. They generally stay off-site for extended periods for the duration of a particular project. All those vehicles are diesel fuelled. Four employee vehicles would also be parked on the site during the day.

8. I was told that the business generally operates between 7.00 a.m. to 4.30 p.m. The on-site operations principally involve employees arriving at the site in the morning, the fuelling and warming up of vehicles and then their departure to particular jobs. Trucks and drivers return later in the day. Mr McGill himself gave evidence concerning the operations of the business indicating that he would be prepared to operate from the site within those hours, despite longer unregulated hours of operation to date. Exceptions to the permitted hours were requested to accommodate emergency situations. He indicated that the trucks would not be fuelled on the site though there would be fuel stored in the excavators. It was also indicated that vehicles completing contract jobs later than the 4.30 p.m. return time could be stored elsewhere. It was further indicated that any running repairs to the vehicles would only be minor.

9. I was also advised that security lighting has been installed on the site: spotlights triggered by movement are located on each corner of the portable office building.

10. It was also indicated that additional landscaping of the site might occur if this was seen as appropriate to protect amenity

11. The application was lodged with the Responsible Authority on the 15th of September 1998. At that time the subject land was zoned Rural B under the former Shire Planning Scheme. The use was prohibited in the zone. However, by the time of the Council's consideration of the application, the new - format Campaspe Shire Planning Scheme based on the Victoria Planning Provisions had come into effect. Under that Scheme, the subject site and surrounds are zoned Township. The purposes of the Township Zone are:

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

* To provide for residential development and a range of commercial, industrial and other uses in small towns."

12. Under the new Scheme, "store" is defined as "land used only to store goods, machinery, or vehicles". Store is included within the broader definition of "warehouse" which is a Section 2 use within the zone (Clause 32.05-1 applies). The use is thus discretionary within the zone. Clause 32.05-7 imposes the need for planning permission for the construction of a building or the carrying out of works for a use in Section 2 of the Zone.

13. Clause 32.05-3 specifically relates to industry and warehouse uses. That clause provides that:

"The use of land for an industry or warehouse must not adversely affect the amenity of the neighbourhood, including through:

* The transport of materials or goods to or from the land.

14. That clause goes on to say that unless the circumstances do not require it, an application to use land for an industry or warehouse must be accompanied by specified information. Those matters include the likely effects, if any, on the neighbourhood, including noise levels, traffic, airborne emissions, emissions to land and water, light spill, glare, solar access; and hours of operation (including the hours of delivery and dispatch of materials and goods).

15. The clause further goes on to say that before deciding on an application to use land for an industry or warehouse, in addition to the decision guidelines at Clause 65, consideration must be given to a number of matters which include:

"* The effect that existing uses on adjoining or nearby land may have on the proposed use.

* The effect of traffic to be generated by the use.

* The interim use of those parts of the land not required for the proposed use."

16. Clause 32.05-8 lists general matters for consideration in relation to applications in this zone which include:

"* The protection and enhancement of the character of the town and surrounding area including the retention of vegetation."

17. The matters listed in Clause 65 of the Scheme are those which apply to all permit applications made to the Responsible Authority. Consideration is required to be given as appropriate to a number of matters which include the purpose of the zone, overlay or other provision; the orderly planning of the area; and the effect on the amenity of the area.

18. The various operational clauses of the Planning Scheme thus in turn refer to the State and local planning policy components of the Scheme. Consideration of the planning policies is a key factor in the determination of any application under a new format planning scheme. As Mr Tweedie submitted:

"New format planning schemes place increased importance upon the identification and implementation of local planning policies. New format schemes are not prescriptive and do not seek to make statements that expressly prohibit uses in what are increasingly standardised zone controls. Rather, it is submitted that they operate to provide wider discretion to planning policies, but recognise, and require, that this discretion will be guided by local policy."

19. I was referred to various components of both the State and local planning policies of the Scheme. Some of the most relevant are the following:

* At Clause 13 the principles of land use and development planning are set out. They include a statement relating to "economic well being":

"Planning is to contribute to the economic well being of communities and the State as a whole by supporting and fostering economic growth and development by providing land, facilitating decisions, and resolving land use conflicts, so that each district may build on its strength and achieve its economic potential."

* Clause 15.04 relates to air quality and has an objective as follows:

"To assist the protection and improvement of air quality."

"Responsible authorities should have regard to the potential for conflict between land uses or development within the zone due to air emission impacts."

* Clause 15.05 relates to noise abatement and has the objective "to assist the control of noise effects on sensitive land uses".

"Planning and responsible authorities should ensure that development is not prejudiced and community amenity is not reduced by noise emissions, by ensuring that there is suitable separation between potentially amenity reducing and sensitive land uses and developments."

* Clause 17.03 relates to industry and has as an objective:

"To ensure availability of land for industry and to facilitate the sustainable development and operation of industry in research and development activity."

"Planning authorities should zone land for industrial development in urban growth areas where good access for employees and freight transport is available and where appropriate buffer areas can be provided between the proposed industrial land and nearby sensitive land uses."

* The Municipal Strategic Statement outlines that Tongala is the main service centre for its immediate rural community. The town primarily caters for high frequency lower order shopping and specialises in meeting the particular needs of local dairy farmers. Agriculture, especially dairying, is the most significant industry in the town's economic structure. Food processing is also a major feature of the town's economy.

The MSS contains a planning vision statement as follows:

"The Shire of Campaspe and its residents are working in partnership to ensure the balanced physical, economic and social development of the urban and rural communities. Development and growth of sustainable and viable agricultural, commercial, service, industrial and tourist enterprises is strongly encouraged.

Priorities for the Shire of Campaspe and its residents are: the effective management of natural resources, agriculture and the environment; enhancement and promotion of the unique characteristics of the Shire; and the maintenance of a safe and prosperous living environment for existing and future residents."

Key objectives within the Municipal Strategic Statement include protection and management of the environment which is recognised as of critical importance to the economic and physical future of the Shire.

"Increased diversity of the industrial base of the Shire is recognised as an important means of creating employment opportunities and wealth. To ensure long term well being, industry must operate in an environmentally sound manner and have access to appropriate infrastructure. The Shire is concerned to ensure adequate support and encouragement is provided to existing and potential new industry to improve international, national and State competitiveness and to capitalise on the Shire's local competitive advantages."

* Ms Murray advised that Town Structure Plans have been prepared for nine of the Shire's main urban areas as referred to in the MSS. The Tongala Structure Plan outlines that the town is well catered for in terms of land zoned for industry to the south-west of the town. This is recognised as meeting the needs of the town beyond the next 15 years.

* Local planning policies have been developed and included in the Scheme for key strategic issues facing the Shire. Relevant policies in relation to the application are:

"E6 to encourage agriculture and other industries to conserve water and minimise wastes; minimise discharges to air and water; and minimise noise emissions through the adoption of accepted environmental standards and controls.

R7 to ensure that appropriate separation is established between residential, agricultural, industrial, waste water treatment and disposal facilities in environmentally sensitive areas.

I1 to support the growth of existing industries, and the attraction of new industries to the Shire.

I9 to establish industrial areas where industries are not likely to create detrimental effects for other land uses particularly residential and agricultural uses.

I11 to encourage small scale compatible industrial development in Township Zones."

20. I was also referred to the Council's Small Towns Strategy of 1998 which was part of the Shire's Economic Development Strategy. It related inter alia to Tongala. The profile of the town outlined in the study, identifies the opportunity within Tongala for serviced land for industrial development and notes that Tongala has the only offensive industrial zone in the Shire.

21. Upon receipt of the application, the Responsible Authority required it to be advertised. In reply six individual letters of objection were received, a petition containing 85 signatories, and 29 proforma objections. Ms Murray's submission to the appeal hearing summarised the grounds of objection as follows:

"Access - the location of the access to the site is dangerous being only a few metres from the "Y" intersection of Torney and Cavell Streets.

Air emissions - the proposal creates air emissions, ie. unburnt fuel vapours.

Attitude of applicant - the applicant believes that he can do whatever he likes.

Buildings - a number of objectors believe the rotunda and toilet facilities (lack of) would not comply with building standards.

Damage to local roads - the proposal results in mud and gravel deposits on local roads, which create a traffic hazard.

Devaluation - the proposal will devalue the surrounding properties.

Disturbance to native birds - the proposal disturbs native birdlife.

Electric fence - there are no warning signs regarding the electric fence.

Hours of operation - the applicant operates outside the hours stated in his submission.

Incorrect information - the applicant has provided Council with incorrect information in relation to the proposal in particular in relation to the use of the site and the equipment to be stored on site.

Location - the site is inappropriate to the proposal and should be located within an industrial area.

Noise - the proposal creates noise through the starting and warming up of vehicles, vehicle movements to and from the site and throughout the surrounding area, washing down vehicles and employees yelling.

Parking of vehicles in adjoining streets - the trucks are in and out of the residential area at all times of the day and frequently park in Torney Street and block Cavell Street.

Pollution - the objectors are concerned about possible diesel leaks particularly from the mobile/transportable diesel tanks stored on site and the disposal of water after the vehicles are washed down on site.

Precedent - the proposal will create a precedent for other illegal activities.

Safety - the proposal will affect the safety of children and elderly people in close proximity to the site.

Storage of hazardous materials - the proposal involves the storage of fuel on site.

Toilet facilities - there are no toilet facilities on site for employees to use.

Traffic - the proposal creates a traffic hazard as trucks enter and depart form the site.

Unsightly yard - the proposal has created an unsightly yard.

Use - the proposal also includes welding, truck maintenance and the washing down of trucks on site. A number of objectors indicated that they had hoped that the site would be incorporated into the adjoining parkland."

22. The application was also referred to Council's Building Surveyor and Consultant Engineer for consideration. No objections were raised. The standard issues of the need for building permission and lawful drainage were raised.

23. In addition, comments were sought by the Responsible Authority from Fisher Stewart Pty Ltd, Engineers, in relation to traffic matters. By letter of the 20th of January 1999 they advised that relocation of the gate to the property would enable a 16.9m long articulated vehicle, when entering the depot, to cross the centre line of Torney Street to a lesser extent than is required with the gate in its current position. The engineers nevertheless commented that the location of the driveway (25m east of the Cavell Street intersection) should not constitute a traffic hazard. They also advised that the road pavement depth (300mm) was considered adequate for the traffic loading resulting from the operations on the site. It was suggested that the operator should be required to institute a clean up procedure to deal with any mud and dirt deposited on the road. They also commented that parking should only be allowed in accordance with the Planning Scheme.

24. The Responsible Authority subsequently considered the application on the 28th of January 1999 and resolved to issue a Notice of Refusal to Grant a Permit. The Notice of Refusal included the following grounds:

"1. The proposal is not consistent with the State Planning Policy Framework and the Local Planning Policy Framework in that the use is inappropriate within a residential area.

2. The proposal is contrary to the orderly and proper planning of the area.

3. The proposal does not comply with Clause 32.05-3 of the Township Zone and may adversely affect the amenity of the neighbourhood including surrounding residential properties.

4. The proposal would create an undesirable precedent."

25. The applicant for permit then sought a review of that decision on the following grounds:

"The proposal is consistent with the State Planning Policy Framework and the Local Planning Policy Framework and it is appropriate commercial use in a small country township.

The proposal is appropriate to the orderly and proper planning of the area and it is a considerable improvement on the previous use of the property as cattle sale yards.

The proposal does comply with Clause 32.05-3 of the Township Zone and does not adversely affect the amenity of the neighbourhood including surrounding properties. There is no transport of material or goods to or from the site. The appearance of the stored machinery is a considerable improvement on the dilapidated condition of the former cattle sale yards on the property. Issues including appearance, traffic generated by the use and emissions from the land can be covered by appropriate permit conditions.

The subject property adjoins land used for recreational purposes and the appellants' home property. Land in Tongala's industrial estate is inappropriate to the appellants because of the costs of developing the industrial land and vandalism problems."

26. At the hearing of this application for review I was presented with oral and written submissions on behalf of all parties. Mr McGill was himself called by Mr Connor to give evidence concerning the nature of the business he now operates and his business intentions. Mr Tweedie called Mrs Tully to give evidence concerning her experience with the existing on-site operations. Mr Connnor also called Mr Fallaw to give expert town planning evidence.

27. At the conclusion of the appeal hearing I requested the drafting of conditions which might be included on any permit granted for the proposed use and development. Those conditions were received after the hearing together with comments on them by the other parties. The appropriateness and effectiveness of those conditions is a matter which the Tribunal has also taken into account in its determination.

28. The essential question to be addressed in this appeal is whether the nature of this particular use is such that it is one which can be accommodated within this generally residential sector of the township, or whether the scale and nature of the operation is such that the off-site amenity impact for surrounding land uses would be unreasonable.

29. Mr Tweedie as part of his submission to the Tribunal for the objectors argued that the implications of the local policies of the Planning Scheme are clear: that separation of incompatible land uses is encouraged, and industrial uses are to be established in designated areas where they are unlikely to cause detriment to residential and/or agricultural areas. He said that the proposed use was indeed essentially industrial in nature. He went on to say that those local policies are consistent with established principles of orderly and proper planning. He said:

"The separation of industrial and residential uses has long been regarded as the single most effective method of ensuring that noise, odour and/or visual impacts of industrial uses do not adversely impact upon residential properties."

30. He went on to say departure from the general principle and expressed policy - that there should be a separation of residential and industrial uses - should be allowed only where there are cogent reasons to compel such a result. There were no such reasons present in the current application, Mr Tweedie said, given that the Tongala Town Structure Plan recognises the township as one well catered for in terms of land zoned for industry. Further, he argued, the applicants' expressed wish to not locate within the industrial area for reasons of cost and vandalism were neither convincing nor planning reasons to depart from sound planning principles and local policy. He also argued that proximity of the subject site to the Tongala Primary School is a factor of significance: "commonsense compels the conclusion that a depot for heavy trucks and vehicles should not be located opposite a school attended by young children where that can possibly be avoided".

31. The particular types of residential amenity impacts identified by Mr Tweedie included the movement of heavy vehicles from the site at 7.00 a.m. - at a time when surrounding residents might be reasonably expected to be especially sensitive to that noise. He further said that visual intrusion was an issue and a parking lot for heavy vehicles in a residential section of a pleasant rural town was not appropriate. Any landscaping was as yet unresolved, he said.

32. The MacDonalds expressed concerns about noise and traffic levels and outlined their expectations at the time of purchase of their land.

33. It was Ms Murray's submission for the Responsible Authority that the Authority was concerned that the location adjacent to residential properties would inhibit the ability of the business to operate effectively, and at the same time would adversely affect community amenity through noise emissions. She again relied on local planning policies in support of the need to avoid such situations arising. She advised the Council therefore did not believe that the proposal is appropriate within the Township Zone or indeed within the town itself.

34. All of the above parties raised the matter of whether the applicant could be reasonably expected to comply with conditions, given the illegal start-up of the business and its continuing operation in the absence of planning permission.

35. Against this, Mr Connor argued on behalf of the permit applicant that the proposal was a small scale industrial use compatible with the purposes of the zone. Those purposes include accommodation within the zone of a range of commercial, industrial and other uses as well as those of a residential nature. He referred also to the Local Planning Policy Framework Industry Objective which seeks to increase the diversity of the industrial base of the Shire, and to the local policy to "encourage small scale compatible industrial development in Township Zones" .

36. Mr Connor said that "trucks are part of the fabric of life in rural Victoria. The proposal is consistent with the surrounding uses of land consisting of a rural community and township".

37. Mr Connor called upon Mr Fallaw's expert evidence in support of the acceptability of the proposed use. Mr Fallaw again noted the accommodation within the Township Zone of non-residential uses and argued that disamenity arising from emissions from the site, including noise, would be minimal given the setback of the principal objectors' properties from the subject land. He noted that within the township and other nearby townships, machinery storage facilities are dotted throughout the urban fabric.

38. The permit applicants' case in part relied upon the non-suitability of the industrial estate for Mr McGill's needs. It was argued that the estate was remote and insecure and property on the estate was subject to vandalism. It was also argued that the land in the estate was not sewered, and therefore discharge of oily wastes would be a greater problem there than on the subject land which is sewered and drained.

39. I have considered the submissions and evidence and have formed the view that the permit should be refused. I recognise that the Township Zone adopted in this locality is one commonly applied in small country towns where a mix of land uses occur throughout the urban area. I acknowledge also that the zone specifically identifies non-residential uses as appropriate. However, it is also clear that consideration needs to be given to the nature of the particular part of the Township Zone. Further consideration needs to be given to the particular use and development proposed. Thus, the question to be determined is, whether the use is one which is compatible with other uses in the particular area Where it is not, the policies of the scheme encouraging separation of incompatible uses come into play.

40. In the case of the subject use, I am not persuaded that it could operate without adversely affecting the amenity of surrounding residential properties. Those properties form part of an established residential area: it is an uninterrupted residential area - one adjacent to schools and parkland, incorporating special accommodation for the elderly, and with access to commercial facilities. I believe the proposed use would principally erode the amenity of that area in terms of the noise disturbance to residential properties by trucks moving to and from the subject land, particularly in the early hours of the morning. The objectors' properties would be largely shielded from site noise, it is acknowledged, by the McGill's own house. However, there are other residential properties opposite to the south-west, and no shielding would occur for any property once trucks moved onto the roadway. It is my belief that it would be contrary to orderly planning to introduce such a use offering a serious erosion of the amenity of that established residential area. I also believe that the use would be visually inappropriate one. While views from parkland and residential properties to the east might in time be shielded by vegetation, views into the site at the wide entry gate would inevitably remain.

41. I also share Mr Tweedie's safety concerns about the undesirability of locating what is essentially a "transport depot" opposite a school given that there is a gateway to the school on Torney Street. Also, while it was suggested that the trucks would be returning to the depot after school closing times, it was nevertheless Mr McGill's own evidence under cross-examination that the trucks sometimes return earlier. I think to establish potential road hazards by juxtaposing a use which involves the movement of trucks to and from a site and a school for young children would be contrary to orderly planning.

42. Further, I am of the view that if approved, the use would establish a poor precedent for other uses which would further erode the amenity of the area.

43. As I earlier indicated, I have also considered the conditions which were suggested to be imposed on this business to assist its integration with the residential neighbourhood. It seems to me, however, that the severity of restrictions upon the operations of the business which would be required to be imposed to achieve a satisfactory integration with the residential area, would be such that they would over time represent unacceptable limits on the operation of the business. Further, it seems to me that the nature of this business, and especially the variable time of truck movements, is such that compliance with time restrictions as a routine matter would be extremely difficult.

44. In finding that the use is not appropriate in this location, it is not to say that the only alternative site is one within the industrial estate to the south-west of the town. There may well be other sites in other parts of the township which are suitable: for example one on a major roadway or which is less proximate to residential uses.

45. I have thus found that the Responsible Authority's grounds of refusal have been made out. Accordingly I will make an order refusing the permit.