This application for review is granted and I direct that permit YR 2004/771 issued by the Responsible Authority on 28 October 2004 must not contain Condition 8 with the restriction of the number of vehicles to 25, but must contain that condition with the restriction limited to 40 vehicles.

Enforcement order application Yarra Ranges Shire Council v. Mekenkamp, being application P773/2004, is adjourned for administrative mention on 17 March 2005.

_________________

RUSSELL BYARD

SENIOR MEMBER

Ms. Justine Jenkins, town planner of the Shire of Yarra Ranges, appeared for the responsible authority in relation to the application for review while Tim Sproule, planning enforcement officer of the Shire, appeared in relation to the enforcement application. Ms. Jenkins presented written and oral submissions.

Mr. R. Sadler, barrister, appeared on the instructions of the firm of Leddra Westmore & Co., solicitors, for Mr. Robert Mekenkamp.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Application under s.80 PE Act for review of conditions in a permit.

Construction of outbuildings, tree removal and earth works.

Green Wedge A Zone (Schedule 2) under the Yarra Ranges Planning Scheme.

1 This case concerns a substantial rural residential allotment located in a Greenwedge A zone just outside the Metropolitan Urban Growth Boundary and on the edge of the township of Mt. Evelyn.

2 The land has a frontage of 257 feet, 5 inches (approximately 78.5 metres) to approximately the west side of Haig Street. The area is 7 acres and 20 perches (2.88 hectares). There are other rural residential allotments of similar proportions in this Greenwedge A zone generally fronting Haig Street, Fuller Road and Stubbs Avenue.

3 The land falls from its road frontage and is substantially uncleared of bushland vegetation, except for the site of a house toward the front of the lot, and a substantial shed to the rear of the house. The house is a substantial and relatively new brick dwelling with a roof of terracotta tiles and green trim. The brickwork is substantially red bricks relieved with a couple of cream coloured courses. It is set back from the road by approximately 35 metres and blends quite well into its bushland rural residential setting. It is surrounded with a woodland of gum trees with some understorey and this bushland vegetation extends over the block and onto adjoining properties. The view of the house from the road is a filtered one through the trunks of trees, and the house is set at a lower level than the road. There is further vegetation along the road reserve.

4 A driveway or track gives vehicle access from the road down to the house, and then beyond the house to an existing colourbond clad shed located perhaps a further 40 metres behind the house and down the hill. This is a shed of 18x9 metres with olive green colourbond walls. Because of this muted colour it blends fairly unobtrusively into the bushland landscape in which it is set. It is substantially surrounded with bushland vegetation on all sides, including between it and the existing house.

5 Mr. Sproule states that there have been in the order of 15 or 16 cars in this shed. There has been, and there still is, a substantial number of other cars along the driveway and scattered around in the vicinity of the driveway and the shed. Some of these cars are in the open air whilst some are covered with so called "igloos". These are not in a shape that any Eskimo would recognise. They are rather in the nature of temporary carports with metal frames supporting white plastic or nylon fabric roofs. Other cars are sheltered with tarpaulins tied over them, and others are simply exposed to the weather. Mr. Sproule states that there have been up to 72 such vehicles on the land altogether, and I gather there may be in the order of 60 at present.

6 The responsible authority has been concerned about these vehicles and has taken some enforcement proceedings in relation to them. The enforcement application before me was commenced last year when an order was made and the proceeding was subsequently adjourned.

7 It was indicated, early in the hearing, that the real matter in contention on 16 February 2005 is the other proceeding namely the conditions review pursuant to s.80 of the Planning and Environment Act 1987 (PE Act). Upon that matter being determined the responsible authority is content for the enforcement application to be further adjourned to an administrative mention now fixed for 17 August 2005.

8 The conditions review relates to a permit application whereby a permit is sought for two further sheds with the associated removal of 22 trees and earthworks. One of these sheds would be 24x12 metres and the other would be 9x9 metres.

9 The reason for the proposed further sheds, and indeed, for the number of cars on the land, is that Mr. Mekenkamp is something of an enthusiast for Renault cars. He collects and restores them as a hobby. It is accepted by the responsible authority, and thus common ground between the parties before me, that this is in fact a hobby rather than some separate industrial or commercial use of the land for industry, materials recovery or as a store. It is just that Mr. Mekenkamp has a reasonably substantial collection of such vehicles. It seems probable that he has acquired a property like this one, in a rural residential locality and of a substantial area, so as to accommodate his hobby. He wishes to use the larger new shed for the collection and keeping of antique vehicles, associated trophies, awards, posters and the like. He wants to use the smaller shed as a workshop for restoration work on vehicles. Tools, machines and equipment would be kept there together with up to four vehicles being worked upon.

10 With up to four vehicles in the workshop shed, it is contended (on behalf of the applicant) that up to a further 36 can be accommodated in one or both of the other sheds, that is to say the existing shed and the proposed larger new shed.

11 It is common ground between the parties before me that there is thus in shed accommodation available for up to 40 vehicles in the various existing and proposed sheds.

12 The responsible authority wishes vehicles being kept on the land, in association with the hobby, to be contained within the sheds and that any surplus beyond what can be so accommodated should be removed from the land. If those things are satisfactorily carried out, the responsible authority will be satisfied in relation to the matters which caused it to commence the enforcement proceedings.

13 It is important to note that the permit application giving rise to the application for review is for development in the form of the construction of sheds and consequent works and removal of trees. No permission is being sought for any use of the land beyond its existing residential use. Ancillary activities which are really part of the residential use are not separate purposes for which the land is used in terms of the planning scheme and for which planning permission might be needed. Such ancillary activities as hobbies are, in terms of planning, part of the residential use. This includes essential activities, such as laundry activities, and other optional hobbies and pastimes such as gardening, tennis, swimming, carpentry and even the collecting and restoring of old motorcars.

14 After receiving the permit application the responsible authority gave notice of it, or required notice to be given of it. This produced an objection from a neighbour. This neighbour had apparently instigated the enforcement proceeding commenced by the responsible authority. Some of the grounds of objection, as noted in the written submissions of the responsible authority, must be regarded as irrelevant. Indeed, the proposal is to resolve some of the existing issues in relation to which complaint was raised.

15 Having considered the application and the objection the responsible authority (through its delegate) determined to grant a permit subject to a number of conditions as set out in a notice of decision to grant a permit issued on 24 September 2004. That was not before some controversy between the applicant, officers of the responsible authority and the objector in relation to a restriction the responsible authority sought to impose by way of condition in relation to the number of vehicles to be allowed on site at any one time. The applicant was seeking 40. I gained the impression, from the documents provided by the responsible authority to the Tribunal pursuant to practice direction 2, including some file notes in relation to various conversations, that the responsible authority or its officers or some of them, may have been amenable to this until there was a heated adverse reaction from the objector. Be that as it may, the final condition settled upon on behalf of the responsible authority in relation to this topic was condition 8 which reads:

8. The number of collectable hobby vehicles on the site must not exceed twenty-five (25) vehicles at any one time.

16 The objector did not apply for a review of the decision to grant this permit and so the permit was issued on 28 October 2004. However, the applicant then commenced this conditions review pursuant to s.80 PE Act in relation to conditions. Actually, it is only in relation to condition 8, and the only issue is that the applicant wishes the limit to be 40 rather than 25.

17 The objector was given notice of the application for review. He filed a statement of grounds, but did not appear at the hearing.

18 I have mentioned that the application is for the development of the land by the construction of the two sheds with ancillary works, and that no permission is sought for use of the land. It is clear, from the decision of the responsible authority to grant a permit, that it is happy with the proposed structures, at any rate subject to the conditions it has imposed. I note that condition 6 provides that the permit will expire if construction of the outbuildings is not fully completed within nine months of the date of the permit. The date of the permit is 28 October 2004. However, there is provision for extension of such a time limit, provided that application is made to the responsible authority for such extension, either before the permit expires or within three months thereafter.

19 Ms. Jenkins, in her presentation of the case on behalf of the responsible authority, took me on an extensive survey of state and local policy provisions. She said she was giving an account of the approach and consideration given to the application by the responsible authority. All this would be relevant and necessary for the Tribunal if this review was one that put the whole question of the grant of the permit in issue. That would be true of a review of a refusal under s.77 PE Act, a review of a failure to grant a permit within the prescribed time pursuant to s.79 PE Act or an objector's review of a decision to grant a permit pursuant to s.82. As it is, I only have to consider the narrow question of the number of cars. It would be appropriate, in such a case as this, to confine submissions, including references to policy provisions, to what is relevant to the actual issues in the case. It is common ground between the responsible authority and the applicant that the proposal is in accordance with the relevant policy provisions. I found this to be the case as Ms. Jenkins took me through them, but there is no issue, in this case, in relation to them.

20 I note that, when a decision is made in relation to the grant of a permit by a responsible authority or, on review by this Tribunal, the decision must be made on the basis of the planning scheme as it stands at the time the decision is made. In this case, the land was in a rural living zone at the time the application was made and at the time it was considered by the responsible authority. However, by the time of the hearing, when being considered by the Tribunal, the zoning had become Green Wedge A zone. It is the provisions relating to that zone that are relevant in the circumstances.

21 The responsible authority has been concerned about issues in relation to the enforcement proceeding and the contraventions or alleged contraventions on which that proceeding is based. Those matters are really beside the point, so far as this conditions review is concerned. The decision here has to be on the planning merits of the permit being sought, or, in this case, the planning merits of the permit condition being challenged. The same decision should be made on the conditions review, whether there have been enforcement issues in the past or not.

22 If it is sought to punish someone for past contraventions, they can be prosecuted. If there are rectification works necessary as a result of past contraventions or alleged contraventions, then enforcement proceedings are the appropriate remedy. However, it is not appropriate to vary the result that would otherwise be obtained in relation to a particular new permit application on account of past questions of compliance or enforcement. The current case has to be judged on its planning merits.

23 As I stated at the end of the hearing, I am at a loss to see why, if there is no problem about the construction of the sheds being sought, and if the sheds are admitted to be capable of accommodating up to 40 vehicles, why the number of vehicles should be limited to 25? Why cannot 40 vehicles be allowed? What is the difference, from a planning merits point of view, provided they are accommodated in the sheds?

24 Of course it is true, that use of the land for a purpose other than residential purposes would have to comply with the planning scheme. It would be illegal to commence a second use that was prohibited, or one that required a permit where no such permit had been granted. If someone starts such a use, then enforcement proceedings and/or a prosecution is appropriate. However, in this case it is common ground that the proposed activity for which the new sheds are sought are hobby activities which are an ancillary part of the residential use of the land for a dwelling. Possible future contraventions, which may never eventuate, are beside the point for present purposes, although they may need to be dealt with if they arise.

25 The responsible authority appears to entertain a notion that the car collection and restoration activity, which it admits to be a hobby, cannot be an ancillary part of a domestic use of a residence if the number of cars is to be as many as 40. Why this should be so, is not apparent to me. If someone's hobby involves the collection of cars, and they want to collect a larger number of cars, they no doubt need to seek out suitable premises. It appears to me that that is what this applicant has done. The nature of an activity does not necessarily change because of its scale. The hobby of reading is still part of a domestic use as a residence whether the library is of ten books of several thousand. A commercial lending library would be another matter.

26 I was referred to two previous decisions of the Tribunal, in Cardinia SC v. Rees [2000] VCAT 1659 (31 August 2000) and Greater Geelong CC v. Philep [2000] VCAT 2161 (31 October 2000). These are both enforcement order cases. The first concerns land at 3 Kinsella Court, Pakenham and the alleged illegal use of the land in a Residential 1 zone for the prohibited purpose of industry constituted by the dismantling, restoring and repairing of approximately nine derelict or faulty vehicles and vehicle parts.

27 A defence was raised that the activities complained of were really a hobby and thus ancillary to the dwelling. The Tribunal, in that case, made a finding on the facts that this was a separate illegal use, and not an ancillary part of the use of the land as a dwelling. No doubt this was a finding of fact, based on all the evidence in that case. The Tribunal did say at paragraph 24:

In my opinion, the use of the land for the hobby of dismantling, storing and repairing of approximately nine cars and car parts is out of proportion to what could reasonably be accepted as an activity incidental to a residential use, or ancillary to the ordinary use of a dwelling. The very number of cars, car bodies and car parts militate against this as an ancillary use and pushes it "over the boundary" as a separate and distinct use of the land.

28 That is part of the finding based on the facts found in that case. However, it does not lay down a rule that the collecting and restoring (as distinct from dismantling) of nine cars, or 40 cars, in the present situation cannot be part of a hobby and must constitute a separate, perhaps prohibited use of the land. My finding in the present case, supported by all the circumstances and the admissions made on behalf of the responsible authority, is that the activity in this case is a hobby and an ancillary part of a domestic use as a residence.

29 In the Philep case the Tribunal, constituted by the same member who heard the Rees case found, at paragraph 24:

I find that storage of vehicles in the order of 30-5 in number, goes beyond anything that could be ancillary to the enjoyment of the land as a dwelling.

30 In that case there was reference back to the decision in Rees. In the Philep case the land was zoned Rural Living zone rather than Residential 1, although I cannot find other particulars of the nature and extent of the land in that case. The extent, nature and circumstances of the land concerned can be relevant. What is a feasible hobby on an extensive farm may not be somewhere else. Clay pigeon shooting may well be quite feasible on the former without having been pushed "over the boundary" and without being "beyond anything that could be ancillary to the enjoyment of the land as a dwelling" on a farm. Someone on a property with ample room may collect an orchard of 120 different varieties of pear or apple trees, simply as a hobby and/or a house orchard, without it being, for example, a nursery or a commercial orchard. It is probably true to say that, generally speaking, a larger property can afford scope for a larger hobby activity. In both Rees and Philep the suggested defences of ancillary hobbies connected with residential use of the land failed on the facts and findings in those cases. They in no way bind me, on the facts in this case, to find that the proposed activity is not a hobby ancillary to the use of the land for residential purposes. In fact, I have no basis for coming to such a conclusion where I lack evidence to that effect and where it is common ground, between the parties, that this is, in fact, a hobby activity.

31 On page 17 of its written submissions the responsible authority congratulated itself on its generosity in allowing 25 vehicles. It is there suggested that it could have been stricter and reduced the number of vehicles further to 5-10 vehicles "which would be more desirable in this situation". I can see no reasons why a reduction to 5 or 10 vehicles would be more desirable in the situation and, after several askings, the representative of the responsible authority was unable to point to any such reasons. Furthermore, having regard to the admission that the existing and proposed sheds are sufficient to accommodate 40 vehicles, I can see no particular reason or justification for confining the number to 25. When having regard to the need to confine attention to what is relevant, the responsible authority was not able to point to any reason, on the planning merits, why these admittedly acceptable sheds should not house 40 rather than 25 vehicles.

32 The above is really a recapitulation of the reasons given orally in the course of the hearing, and at the close of the case presented on behalf of the responsible authority. Mr. Sadler, who appeared on behalf of Mr. Mekenkamp, was content that the number in condition 8 should be increased from 25 to 40. He did not seek to argue that the condition was otherwise invalid or inappropriate. In the circumstances it was not necessary to call upon him.

33 The application of review of condition 8 is granted and the number 25 will be raised to 40. The enforcement application is adjourned for administrative mention on 17 August 2005. The parties are not required to appear on that date. They are required to advise the Registrar in writing prior to that date as to the then situation in relation to the enforcement application. It may be that, at that stage, leave will be sought to withdraw that application. Alternatively, matters may be in hand but not finalised so that it may be appropriate to adjourn it to a further administrative mention or, if necessary, the matter may need to be listed for hearing.

_________________

RUSSELL BYARD

SENIOR MEMBER