Mr Gary Testro, Lawyer. He called the following witness -

• Mr John Glossop, town planner, Glossop Town Planning Pty Ltd

Mr Henry Wood, senior planner, The Planning Group Pty Ltd

Application under Section 77 of the Planning and Environment Act 1987 to review the refusal to grant a permit

Environmental Significance Overlay Schedule 1 (ESO1) (Moorooduc Plain and Balcombe Valley)

Clause 35.04-1 (use of land in GWZ2 for Contractor's depot and for Solid fuel depot)

Clause 35.04-5 (building and works in GWZ2 for a Solid fuel depot)

Clause 42.01-2 (buildings and works in ESO1 for a Solid fuel depot)

Clause 52.06-6 (reduction in parking requirement for a Solid fuel depot)

Clauses 10, 11, 14, 21.03, 21.04, 21.09, 22.07, 35.04, 42.01, 52.06, 57 & 65

The land is on the east side of Stumpy Gully Road, between Eramosa Road West to the north and Bungower Road to the south. It is rectangular with a frontage of 165 m, a depth of 243 m and an area of about 4 ha. The land is developed with a dwelling, a large shed (former poultry shed) and several outbuildings. Parts of the land are fenced for grazing. The land has two vehicle access points, at the north and south ends of the frontage.

1. Ms Amanda McMillin has established a Contractor's depot and a Solid fuel depot at the subject land. She resides in a dwelling on the land, where she grazes a few horses, cows and sheep. There is a large shed and several smaller outbuildings. The large shed is a former poultry shed that is about 70 m long and 15 m wide (the shed).
2. The Mornington Peninsula Shire Council told her that a permit is required under the Mornington Peninsula Planning Scheme (the scheme) to use the land for a Contractor's depot and a Solid fuel depot. She subsequently applied to the Council for a 'retrospective' permit. The Council refused to grant a permit. Ms McMillin has applied to the Tribunal to review the Council's decision.
3. The main issues for determination in this proceeding are -
   • Policy
   • Relationship to a rural activity
   • Alienating land from Green Wedge Zone purposes
   • Preferred location for the uses
   • Orderly planning
4. After considering the submissions and evidence and after inspecting the subject land, I have decided the Council did not make the correct and preferable decision. I will set aside the Council's decision and grant a permit subject to conditions. My reasons follow.

1. The Contractor's depot comprises the storage of 7 water carts (for stock and domestic use) and 10 construction vehicles (including tip and other trucks and trailers) in and behind the shed. The long side of the shed faces Stumpy Gully Road and is set back about 90 m from that road. The shed is open on most of the east side ie facing away from the road.
2. According to the planning report accompanying the permit application -
   • The owner takes these vehicles to (and collects them from) work locations where they are used by others either for short or longer periods.
   • Users of the vehicles do not usually come to the land to collect the vehicles and so there is usually no more than 4 people on the land associated with the depot.
   • There is no servicing of the vehicles on the land.
3. At the rear of the shed is a gravelled area of about 1,900 sq m that is used to store and manoeuvre vehicles associated with the Contractor's depot.
4. Mr Testro submitted that the water cartage business serves mainly non-urban customers in the surrounding area who are without reticulated water and who need to supplement tank water in dryer periods. The water carts depart and return empty and are filled at various standpipes before the water is delivered to customers.
5. Part of the shed (at the northern end) is also for storing equipment and vehicles associated with the Animal husbandry use of the land.

1. The Solid fuel depot comprises concrete open-storage bins that are (overall) about 23 m long, 4 m wide and 6 m high. They are located about 60 m behind the shed towards the rear southeast corner of the land. Three vehicles are used to bring and then deliver the firewood that is stored in the bins.
2. Ms McMillin told the Council that the Solid fuel depot will operate between 7 am and 5 pm each day of the week and would involve up to 3 staff. Mr Testro submitted that demand will be seasonal; all purchases are made without customer attendance to the subject land; and most deliveries will be made to surrounding rural areas.

1. The parts of the subject land that are shown on the plans (attached to the permit application) to be used for the Contractor's depot and Solid fuel depot are unclear. Mr Glossop's evidence is that the Contractor's depot and Solid fuel depot together occupy an L-shaped area he identifies on an aerial photograph as being set aside for 'commercial use'.[2] The dimensions of that area are not shown on the plans. I estimate it to be about 130 m (along the south boundary) by about 20 m (along the eastern boundary) by about 70 m (projecting north from about the mid-point along the southern boundary), and have an area of about 0.56 ha.
2. Mr Glossop's plan also shows an area of 'mixed use' adjoining and to the north of the area for 'commercial use'. The 'mixed use' area is about 70 m by 40 m (0.28 ha). According to Mr Glossop, this area is 'currently used to store landscaping materials proposed to be used on-site and as part of the contractor's business' but 'can be used for grazing purposes in the future if the owner chooses'.[3] Mr Testro referred to this area being used for temporary storage of materials associated with, and ancillary to, the Contractor's depot. He also referred to Ms McMillin's intention to develop stables and an equestrian sand area in this area. At my inspection, I observed several large piles of rocks in this area.

1. The Council contends the proposal is a poor response to the policy framework. The Council relies heavily on local policies relating to supporting farming use of rural land and to restricting commercial and industrial uses in rural areas.[4]
2. It is trite to observe that a responsible authority must consider the full suite of relevant policies and not apply a particular policy in an inflexible way or that elevates it to a control. Often there is tension between particular policies but they must be balanced in favour of net community benefit and sustainable development.[5]
3. Although Mr Wood referred to many State and local policies in his submissions, I am not persuaded that the Council took an appropriately balanced approach.
4. The two local policies relied upon heavily by the Council were last amended in 2006 and 2009. In 2013, State policy for green wedges (including the GWZ) was amended. In 2014, a localised planning statement for Mornington Peninsula was introduced. I give the local policies relied upon heavily by the Council less weight because they pre-date the State policy changes.
5. The State policy changes allow 'a broader range of activities to be considered' in green wedges (and other rural areas).[6] These changes encourage a careful assessment of discretionary uses.
6. Mr Glossop has carried out that careful assessment. He distils the various policy settings to the following propositions -
   • Agricultural land should be protected from un-planned loss.
   • Significant landscapes and rural vistas should be recognised and protected.
   • Uses and development incompatible with agriculture should be discouraged.
   • Certain types of non-soil based activities should be promoted in rural areas.
7. The proposal responds satisfactorily to these propositions for the following main reasons
8. First, there is no loss of agricultural land because the 0.56 ha devoted to the uses is relatively small, that area is and has not been used for agriculture for some time, the former agriculture use (broiler farm) cannot resume because of dwelling density in the surrounding area, and the subject land (at 4 ha) has limited scope for productive agriculture.
9. Second, the uses have little landscape impact because the uses are 'out of sight' from the road and adjoining land because the shed opens to its rear and because there is significant boundary landscaping.
10. Third, the uses are not incompatible with agriculture because they are not sensitive to nearby agricultural activities and do not generate significant off-site impacts. Vehicle movements will no doubt create some noise but land abutting the uses, being land to the south, is used for growing Christmas trees and would be unaffected.
11. Fourth, while the uses are not non-soil based activities that are specifically promoted in rural areas, it is relevant that other such activities (eg dwellings) have had and continue to have a greater impact.

1. The Council's grounds of refusal refer to the uses being insufficiently linked to a rural activity. These links are those based on the local policies relied on by the Council to which I have already referred. They are not the the mandatory links referred to in the GWZ for some uses eg the requirement for a Rural store to be 'in conjunction with Agriculture'.
2. The submissions on behalf of the Council do not specify what sort of links would be sufficient.
3. I am satisfied the uses have some links or association with agriculture. According to Mr Glossop, the Contractor's depot vehicles currently are, and will continue to be, used to construct and maintain dams, equestrian tracks and other rural activities in the surrounding area, and to supply water to surrounding agricultural uses. As well, many customers seeking firewood from the Solid fuel depot will be from persons in dwellings in the surrounding rural area.

1. The Council's grounds of refusal refer to the uses 'unreasonably alienating' land that could be used for a purpose more closely linked to GWZ purposes. I discern the Council reference is to Agriculture or farming.
2. I find that the uses' alienation of land from farming, if it exists, to not be unreasonable.
3. The area of the subject land devoted to the uses is and will be much less than the area of the subject land devoted to Agriculture. The subject land, at 4 ha, is unlikely to be viable for Agriculture use. The uses will support the Agriculture uses.
4. The reality is that the surrounding GWZ2 area is more closely subdivided that the 40 ha minimum subdivision lot for the area. The majority of existing lots may be more suited to rural living use than Agriculture. Local policy laments this historical intensity.[7] It is difficult to see how the surrounding area will revert to viable large scale farming use that is preferred under some of the policies.

1. The Council's grounds of refusal refer to the 'scale' of the uses being 'more suited to being located in an industrial zone'. As an activity occupying about 0.56 ha, I do not consider it to be of a large scale.
2. While the uses could be established in an industrial zone, local policy recognises such land as a scarce resource.[8] Mr Wood informed that the nearest industrial zoned land is about 5 km away at Mornington.
3. The Tribunal has previously held that a Contractor's depot is not clearly an urban or non-urban use and could be suitably located on either urban (including industrial) land or non-urban (including GWZ) land.[9] It has held there is a clear distinction between a Contractor's depot and Industry.[10]
4. Local policy encourages consideration 'as appropriate' of whether 'a commercial development would be better located in an activity centre'.[11] However, this must be balanced against well established authority that the decision-maker's task is to decide whether a proposal is satisfactory for its proposed location and not whether there would be a more appropriate location for the proposal.

1. The Council's grounds of refusal refer to the proposal being contrary to orderly and proper planning. The meaning of this term is opaque. The Tribunal has stated it includes circumstances where the future planning of an area is uncertain.[12] I do not consider the proposal to be contrary to orderly planning in this sense..
2. It might be readily agreed that a new section 3 use in a particular zone is contrary to notions of proper planning and that a new section 1 use in a particular zone to be in conformity with such notions. However, I would not find that a new section 2 use in a zone (such as Contractor's depot and a Solid fuel depot in the GWZ) is contrary to such notions. It may be contrary in a particular case, after having considered all the relevant matters in that case. Having regard to the matters I have already referred to, it suffices to state that I do not find the proposal to be contrary to proper planning.

1. The Council's grounds do not rely on the proposal having an unreasonable detrimental impact on the amenity of the area.
2. Amenity impacts are nonetheless a relevant consideration. It suffices to state I find there are no unreasonable impacts. The nearest adjoining land is the Christmas tree farm to the south on which is located no dwelling. While there will be additional traffic along Stumpy Gully Road, the anticipated impacts are similar to those expected for many agricultural or farming use in the area.
3. It is to be noted that as the use has started owners and occupiers of adjoining land have had an opportunity to assess amenity impacts and none of them objected to the grant of a permit.

1. I am not persuaded that the 'mixed use' area identified by Mr Glossop is or should be part of the area used for both uses. If it were, the total area would be about 0.9 ha or about 25% of the subject land's area. I will exclude this area from the uses.
2. Mr Glossop correctly identifies that the scheme requires 10% of the site area for Solid fuel depot use to be set aside for car parking.[13] He estimates that area as about 130 sq m but, as previously stated, the site area is more accurately calculated at 2,800 sq m. Accordingly, 280 sq m should be set aside for parking. I estimate this to accommodate about 11 standard car spaces with a standard aisle size. Under the scheme, a permit may be granted to reduce the required spaces.
3. I would reduce the required spaces to three larger vehicle spaces that should available to deliver to and from the Solid fuel depot. In making this reduction, I rely on Ms McMillin's use of three vehicles for the use and there being no deliveries to customers attending the subject land in their own vehicles. There is sufficient land with the site area to accommodate three larger delivery vehicles. I will require those spaces to be identified generally near the bins. There is no need for construction or identified by line marking of those spaces. It suffices that the area be identified and that space be used by parked delivery vehicles.

1. For the above reasons, the decision of the Responsible Authority is set aside and a permit is granted subject to conditions.

Use for a Contractor's depot and for a Solid fuel depot in the Green Wedge Zone

Buildings and works for a Solid fuel depot in the Green Wedge Zone and the Environmental Significance Overlay

Reduction of parking requirement for a Solid fuel depot

1. By no later than 30 days after the issue date of this permit, 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted but amended to show -
   • (a) The part of the land to be used for a Contractor's depot, generally being the western part of the area on the aerial photograph marked for 'commercial' use on page 28 of the statement of evidence prepared by Mr John Glossop and filed in Victorian Civil and Administrative Tribunal Proceeding no. P403/2014, but including the accessway along the southern boundary of the land.
   • (b) The part of the land to be used for a Slid fuel depot, generally being the eastern area on the aerial photograph marked for 'commercial' use on page 28 of the statement of evidence prepared by Mr John Glossop and filed in Victorian Civil and Administrative Tribunal Proceeding no. P403/2014, but including the accessway along the southern boundary of the land.
   • (c) The area set aside for staff car parking onsite for both uses and the location of any vehicles and equipment to be stored outside of buildings in association with both uses.
   • (d) An area in that part of land to be used for a Solid fuel depot for the parking of three vehicles associated with deliveries to and from the Solid fuel depot.
   • (e) The species type, number and location of vegetation proposed to serve as a landscape buffer to along the southern and eastern boundary of the land

1. The layout of the use and the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.

1. Except with the further consent of the Responsible Authority, no more than a total of 7 staff associated with both the Contractor's depot and the Solid fuel depot must be present on the land at any time.
2. No person purchasing solid fuel must collect the solid fuel from the subject land with their own vehicle. All solid fuel purchases must be delivered by the owner or the owner's agent or representative
3. Except with the further consent of the Responsible Authority -

(a) No more than 17 vehicles (including seven water carts) associated with the Contractor's depot must be present on the land at any time.

(b) No more than three vehicles associated with the Solid fuel depot must be present on the land at any time.

1. Except with the further consent of the Responsible Authority -

(a) Vehicles associated with the Contractor's depot must only enter or leave the land between the hours of 6 am and 6 pm on weekdays, and between 6 am and 3 pm Saturdays, and must not enter or leave the land on Sundays, Good Friday or Christmas Day.

(b) The Solid fuel depot must only operate between the hours of 7 am and 5 pm on each day of the week. The use must not operate on Good Friday or Christmas Day.

1. The amenity of the area must not be detrimentally affected by the uses or the development, through the (to the satisfaction of the Responsible Authority) -
   • (a) Transport of materials, goods or commodities to or from the land.
   • (b) Appearance of any buildings, works or materials.
   • (c) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
   • (d) Presence of vermin.

1. Landscape buffers shown on the endorsed plans must be maintained in a healthy condition, to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible. The area set aside for landscaping must be used for no other purpose.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the issued date of this permit.
   • (b) The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Mr John Glossop, statement of evidence, p 27.

[3] Mr John Glossop, statement of evidence, p 28.

[4] Mornington Peninsula Planning Scheme cl 21.09 & cl 22.07.

[5] Mornington Peninsula Planning Scheme cl 10.04.

[6] Mornington Peninsula Planning Scheme, Amendment VC103, Explanatory Report, p 2.

[7] Mornington Peninsula Planning Scheme cl 21.03 & cl 21.09.

[8] Mornington Peninsula Planning Scheme cl 22.01.

[9] See eg Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506 at [57].

[10] Landforming to Perfection Pty Ltd v Wyndham CC [2013] VCAT 1703 at [44].

[11] Mornington Peninsula Planning Scheme cl 22.07.

[12] Foster v Port Phillip CC [2004] VCAT 1912 at [26].

[13] Mornington Peninsula Planning Scheme cl 52.06-5.