[2006] VCAT 59

1 Application P2118/2005 for an enforcement order is dismissed. Costs of that application are reserved.

2 In application for review P2537/2005 the decision of the responsible authority in relation to planning permit application no. PP10564 is set aside. A permit is granted and the responsible authority is directed to issue a permit for the land at 2 Vaughan Street, Sunbury allowing the construction of buildings and works in accordance with the endorsed plans. It is directed that the permit contain the following conditions:

1

Within three (3) months of the date of this permit three (3) copies of amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application.

2

Within three (3) months of the date of this permit a satisfactory landscape plan of the southern boundary of the site must be submitted to and approved by the responsible authority. Such plan must show the area(s) set aside for landscaping and in accordance with council's guidelines and include a schedule of all proposed trees, shrubs and groundcover (including size of maturity and botanical names), and when approved an endorsed copy must form part of this permit. The landscape areas must be indicated as being irrigated. The landscaping must be located along the southern boundary and must incorporate native species which would achieve a minimum mature height of 3 metres (such as Acacia Melanoxylon).

3

The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the responsible authority and once landscaped must not be used for any other purpose. Maintenance must include the removal of weeds and the replacement of any dead plants in accordance with the endorsed landscape planting schedule.

4

The cool room panelling must be painted in muted shades to match that of the existing building.

5

This permit will expire if one of the following circumstances applies:

a

The development is not completed within one (1) year of the date of commencement.

The responsible authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

Mr C Wren SC instructed by Mr Roger Batrouney of Secombs, Solicitors.

Mr Callaghan in person and for J Callaghan. No appearance by V H Hay and M Dunn.

1 Application P2537/2005 is an application under s. 77 Planning and Environment Act 1987 (PE Act) for review of a decision by Hume City Council (Council) to refuse to grant a permit (in permit application no. PP10564) to construct buildings and works at 2 Vaughan Street, Sunbury. The application is retrospective as the works have already been substantially completed. Also before the tribunal is an application P2118/2005 for an enforcement order in respect of the works by council against the permit applicant.

2 The application for permit was lodged with the council on 16 September 2005. Following the giving of notice of the application 3 objections were received. The grounds of objection can be summarised as follows:

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Noise and dust including Sunday afternoon.

•

Loss of use of outside spaces.

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Truck noises.

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Interruption to sleep, sleep disturbance.

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Use of air breaks and gear changing creating noise during the night and early morning.

•

Machinery and vehicle traffic noise.

3 The application was not referred to any authorities under s. 55(1) PEAct.

4 At its meeting on 26 September 2005, council considered the application and, consistent with its planning officer's recommendation, determined to refuse to grant a permit on the following grounds:

1. The proposal would entrench a use which without its existing use rights, would otherwise be prohibited.

2. The proposed buildings and works are contrary to the purposes of the Residential 1 zone, which is primarily to accommodate residential uses.

5 The application for review was lodged with the Tribunal on 30 September 2005, and the stated grounds for review are:

1. The refusal is for an ulterior purpose, namely to remove a legitimate existing use.

2. The cladding has no impact on the zone purpose.

4. The cladding does not require planning permission.

6 Except for Mr Callaghan, who presented an oral submission, those parties or their representatives that attended the hearing as well as the persons called to give evidence tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the tribunal's file.

7 The following persons gave evidence:

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Mr Aldo Kersonovic for council; and

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Mr Anthony John McMahon, director of McMahon Dairy Pty Ltd.

8 The hearing occupied one day. Following the hearing I inspected the subject land and the neighbourhood at large.

9 At the commencement of the hearing the parties agreed that the matter proceeded on the basis that the tribunal would first determine the application for review, and whether a permit was required for the works, which would then indicate the fate of the enforcement order application.

10 The subject land is located at the end of and on the north west side of Vaughan Street approximately 120m north east of Macedon Street. The site is regular in shape and has a frontage of about 110m, a depth of 100.58m and an area of about 11,000m². The site is currently occupied by the McMahon Dairy Pty Ltd and the whole of the site has for in excess of 80 years been used as a milk factory and distribution centre, and it appears uncontested that from 1978, a period of 27 years, the site has been used primarily for distribution of milk products, without break or hiatus. Upon the land are various buildings, for dairy administration and offices, a cheese room, a cool room, an ambient area adjacent to the cool room used as a covered loading bay (the subject of these applications) open to the side facing Vaughan Street, a detached workshop and a weatherboard dwelling at the rear. The loading bay or ambient area is accessed by a concrete driveway from Vaughan Street. Trucks load and unload from the front of the loading bay opposite Vaughan Street and smaller trucks from a door in its side. Trucks park in the rear of the buildings. The loading bay is about 15m distant from the Callaghan dwelling side fence.

11 The works for which the permit application seeks approval have already been substantially constructed. They consist of:

•

fixing of insulation cladding to the existing framework of the ambient and cool rooms; and

•

fixing of insulation cladding to existing framework surrounding the compressor as shown on the plan.

12 A letter from Robin Viney Pty Ltd on behalf of McMahons Dairy accompanying the application stated:

The works are all internal and screened from the road and neighbours by landscaping or existing boundary fencing. The cladding is attached to the existing timber frame (of the loading bay/ambient area) which was constructed approximately 20 years ago. The land is occupied by McMahons Dairy Pty. Ltd. under non conforming use provisions. This application is made in response to the contention of the Responsible Authority that Town Planning permission is required for such cladding and is not a concession that any such Town Planning permission is required.

We note that the cladding around the compressor was installed at the direction of the City of Hume Health Section. Similarly, the cladding attached to the framework of the loading and ambient areas was installed as a result of both Council's Health Section and Industry concerns relating to quality control of the milk and milk products.

13 The land is zoned Residential 1 under the Hume Planning Scheme. Clause 32.01 sets out the relevant purposes of that zone. In that zone a warehouse is a prohibited use. Under the nesting provisions milk depot is included in the warehouse group and is defined as:

Milk Depot - Land used to receive milk and milk products for distribution to customers, but where milk is not processed or pasteurised.

14 It is not contested that the existing use continues by virtue of existing use rights under clause 63 of the planning scheme and s.6(3) PEAct.

15 Mr Wren submitted the need for a permit arose from clause 63.05 the relevant part of which provides:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

•

No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

a) a structure and part of a building or a structure; and

b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

c) a boat or a pontoon which is permanently moored or fixed to land;

62.02 Buildings and works not requiring a permit

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to:

•

The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased and the number of dwellings is not increased.

This does not apply if a permit is specifically required for any of these matters.

18 In his submission that a permit was required, Mr Wren relied on two Tribunal decisions:

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Mornington Shire Council v Napolitano [2002] VCAT 1548 @ [18];

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Merrett v Moira Shire Council [2005] VCAT 242 @ [32] and

•

A'Beckett v Yarra City Council [2004] VCAT 599.

and he said the works do not come within the exemption of clause 62.02 as it constitutes the external enclosure of the loading bay and converts it into a cool store within the land use term of freezing and cool storage.

19 In A'Beckett, Member Rickards found that the requirement for a permit for the construction and extension of one dwelling on a lot under clause 32.04-4 did not override the exemption from a permit an internal rearrangement of a building in clause 62.02, and that no permit was required for such a rearrangement.

20 Napolitano is authority for the proposition that the addition of solid walls to poultry sheds to enclose a building are the construction of part of a building and are thus a building within the meaning of the PEAct and not an internal rearrangement within clause 62.02. The Senior Member also decided that works within the sheds to install an elevator machine creating 4 levels of hen cages also might be an internal rearrangement, but did not fall within the exemption of clause 62.02 as they increased the size of the works.

21 Merrett involved the conversion of a 1960s style motel into low cost permanent rental units and a subdivision, and involving internal works such as installation of kitchen sinks and cooking facilities. Deputy President Gibson said at [32-33]:

32 There is a clear intention in the exemption provided in clause 62.02 to exempt internal rearrangement of a building as well as repairs and routine maintenance. The purpose of these exemptions is to establish that there are some things that planning does not need to control where there is no effective change to the status quo, such as what happens inside a building where the external size or appearance of a building are not affected.

33 I consider that the words "internal rearrangement of a building or works" should be interpreted liberally to include the removal or construction of walls, floors, fixtures, fittings and chattels. In my view, any changes to the internal space of a building or works would be caught by this expression provided the gross floor area of the building or size of the works is not increased and, since amendment VC26 was introduced, the number of dwellings is not increased. If there is a valid planning reason for controlling the internal arrangement of a building or works then the zone, overlay or other provision should specifically require this, as the caveat to clause 62.02 provides.

34 The clear scheme of the Victoria Planning Provisions is to provide a general exemption in clause 62.02 for certain buildings and works that do not require a permit notwithstanding any requirement in the scheme relating to the construction of a building or the construction or carrying out of works. If any of these buildings and works are not to be exempt, then a permit must be specifically required for them. The Heritage Overlay (clause 43.01-1) is an example of a provision where a permit is required to "internally alter a building if the schedule to this overlay identifies the heritage place as one where internal alteration controls apply". There is nothing similar in the provisions of the Residential 1 Zone that specifically requires a permit for internal construction or alteration, or the introduction of new fixtures, fittings or chattels. Therefore I conclude there is no justification for reading down the clear intention of the exemptions in clause 62.02.

35 I agree with the comments of the Tribunal in the case of A'Beckett v Yarra City Council [2004] VCAT 599 which, when also considering whether internal works fell within the exemption in clause 62.02, said that:

[32] It is irrelevant that the internal area of the building is in some way transformed to enable the building to be used in a different way to how it was previously used, as in the present case the use it is being transformed into is an as of right, no permit required use in the planning scheme.

36 I therefore find that no permit was required for the internal works at the time they were carried out.

22 Applying these decisions I find that the internal cladding of the roof and sides of the loading bay fall within the exemption of clause 62.02 as an internal rearrangement of a building, but that, following Napolitano, and as conceded by Mr Pitt, the closing in of the open side of the loading bay to the small extent that it projects beyond the existing roof line and the cowling over the compressor do not fall within that exemption and require a permit.

23 The first ground of refusal is that the proposal would entrench the use, which without the existing use rights would otherwise be prohibited.

24 Mr Wren submitted that in this case the only reason for the addition of the "cool room" is to facilitate and assist this operation of the depot and thus contribute to its longevity and compound the amenity impacts.

25 It is not contended that the continuing use has amenity impacts arising from truck movements to and from Vaughan Street. However, I accept the submissions of Mr Pitt and the evidence of Mr McMahon that the works will not add to those problems and would most likely reduce amenity impacts by the enclosure of the compressor and the loading bay.

26 Mr Wren relied on a number of tribunal decisions discussed in Butterworths Planning Appeals Casenotes paras. 3.30.1 and 3.30.5. and said those decisions, particularly Adamo v Brimbank CC (1987) 6PABR 219 @ 224 and George Bourakis v Footscray CC (1990 unreported 1990/20618) are authority for the proposition that even if the works improve the amenity of an area, there should be no encouragement of the entrenchment of the non-conforming quote use.

3.30.1

Non-conforming uses not to be entrenched or enlarged

A non-conforming use is an anomaly. It is a prohibited use which originally was only allowed to continue because it would have been inequitable to change the zone without compensation to the persons affected and to deprive them of a long established business or other use. It should not be entrenched or enlarged. If the opportunity to phase out a non-conforming use is not taken, and a different non-conforming use is established, it will be impossible to phase that non-conforming use out during this century: More Land Pty Ltd v City of Hawthorn (1984) 12 APA 36; Fraser v Shire of Lilydale (1981) 13 APA 200; Warburton v City of Prahran (1987) 33 APA 193.

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the works will assist the continuing use by providing a cooler enclosed loading bay or ambient area;

•

the insulation of the loading bay may improve the amenity by:

a)

the cowling over the compressor should reduce noise impacts;

b)

loading/unloading noises may be muffled;

c)

whilst the loading bay is not a cool room keeping its temperature lower will assist maintaining the cool room's temperature with consequent less compressor operation;

•

the loading bay has not been converted into a cool room but remains a loading bay for the transit of goods to and from the cool room. Goods are not stored there, but it operates as a receiving/organising area;

•

the works were not essential to the use continuing. There was no evidence that health requirements of council or any other authority required the works to achieve compliance. The loading bay's former open space could be hung with plastic strips to maintain coolness.

28 The question then is, do the works entrench or enlarge the use?

29 There is no evidence that the works will enlarge the use, but the works will assist the use. Does this equate to "entrenchment" in the context of clause 63.05.

30 I conclude that entrenching the use must mean something more than assisting the use. Clause 63.05 does confer a discretion to grant a permit for works in relation to a non-conforming use, which necessarily contemplates a continuation of the use with the benefit of and assistance from an improved building.

31 Entrench as defined by The Macquarie Dictionary includes the following meanings

To place in a position of strength, established firmly; to establish so strongly or securely as to make any change very difficult; to dig in.

32 In Adamo the proposed works were to enlarge and upgrade premises used for a panel beating business, in a way which would facilitate the installation of a spray booth to replace existing galvanised iron walls with brick to bring about a visual improvement and reduce noise emissions, provide proper office and staff facilities and a larger floor area.

33 The Board found that, particularly having regard to the spray booth, the works entrenched the use, given its view that land used for non-conforming uses should return to a conforming use in due course.

34 In More Land Pty Ltd v City of Hawthorn (1984) 12 APAD 459, the Board reiterated the same principle in refusing a permit to a conversion of an industrial site to offices, where the industrial use had ceased, the premises were vacant and the owner sought another commercial use.

35 I find the works in this case do not entrench the non-conforming use in the sense of the ordinary meaning of the word, and as contemplated by the authorities. Whilst the use is assisted, the concept of entrenchment is something more, and the possibility under clause 63 of a permit for works must involve some assistance to the continuance of a use. The evidence is that neither the use nor the working areas are enlarged. The works are not essential for the continuing use in a practical or regulatory sense which can be achieved by other means not requiring a permit. The amount of the works which require a permit are minor compared with those considered in Adamo.

36 Mr Pitt submitted the works will contribute to the purposes of the zoning as:

•

the use is not enlarged;

•

the works will reduce amenity impacts;

•

the land continues to be used for the same purpose, and that use can be enlarged and/or reduced over time, and he conceded the volume of activity had increased since 1997 when another depot was closed;

•

there is no evidence of non-compliance with any legal requirements such as the SEPP-N1 as to noise.

37 Mr Wren's submission was that the only reason for the works was to facilitate the operation of the milk depot which will contribute to the longevity of the non-conforming use and compound the amenity impacts.

38 I conclude that as the only part of the works which require a permit may only be the cowling over the compressor and the closing-in of the open side of the loading bay are relatively minor and consistent with Clause 63.05 and the legitimate continuance of the non-conforming use. There is a discretion to grant a permit in such a case which must of its nature possibly not be consistent with the zone purposes, and which might assist in some way the non-conforming use. As I have found these works are not an entrenchment of the use, it is appropriate that a permit be granted in this case.

39 As my decision is that a permit should be granted for the works, the enforcement order application falls away and is dismissed, with costs reserved.

40 I have amended the draft conditions to take into account that the works have been substantially completed, to specify a reasonable time in which the amended plans and the landscape plan can be lodged for endorsement, and to extend the time for completion given the necessity for these plans to be endorsed.