Mr S Edwards, Solicitor, Planning and Property Partners Pty Ltd

• Mr D Van Huizen, Director of Mobius Materials Recovery Pty Ltd

• To consider whether the proposed use of re-processing mulch for use in agriculture is an innominate discretionary use or a prohibited use in the zone (responsible authority refusal ground #5);
• To consider whether a Cultural Heritage Management Plan is required pursuant to the Aboriginal Heritage Regulations (responsible authority in refusal ground #1.

Is a Cultural Heritage Management Plan required?

1 The subject land is located within an area of Aboriginal Cultural Heritage Sensitivity and the proposed use is considered a high impact activity. The applicant acknowledged a Cultural Heritage Management Plan is required and because of this acknowledgment there was no further discussion. I will make orders requiring the provision of a Cultural Heritage Management Plan.

Is the proposed use of the subject land for the re-processing of mulch an innominate or prohibited use?

2 The subject site is located within the Green Wedge Zone (GWZ) under the Kingston Planning Scheme. A permit is sought to use the land for a vehicle store; for the re-processing of mulch for use in agriculture and to construct buildings and carry out works.

3 The applicant provided an affidavit sworn by Dean Van Huizen, a director of Mobius Materials Pty Ltd. Mr Van Huizen described what was intended to occur on the subject land.

4 Mr Van Huizen stated the applicant's primary processing facility is located at 164-168 Williams Road, Dandenong South. What occurs on the Dandenong site is the sorting of co-mingled waste collected from 'more than 100 domestic builders across Victoria' to remove recyclable material including timbers, cardboard, soil, bricks, concrete, metals, and various other materials.

5 The result of this sorting is that metals, cardboard, polystyrene, and other recyclable materials are moved off site to be recycled by others.

6 From the remaining sorted material large quantities of recycled crushed rock, coarse timber mulch and filtered soil is produced. This is for commercial sale with any surplus materials being transferred to landfill.

7 Mr Van Huizen indicated the coarse timber mulch was used for agricultural purposes with a number of the customers that used this mulch wanting a finer grade of mulch.

8 Mr Van Huizen described a large variety of vehicles that are either hired out or used in the collection and transport of the recyclable building products. These vehicles are stored on the subject land at 2-16 Pine Lane, Heatherton. Mr Van Huizen stated the storage of the vehicles equates to approximately 80% of the activities proposed to be undertaken on the subject land.

9 In relation to the remaining 20% of activities proposed on the subject land, Mr Van Huizen stated this would consist of the further processing of the recycled course timber mulch processed at the Dandenong site. The intention is that on the subject land a fine timber mulch will be produced. This entails the processing of the coarse timber mulch through a single portable tub grinder.

10 The Council contends the proposed use of reprocessing the coarse timber mulch into a finer grade falls within the definition of 'industry' under the Kingston Planning Scheme and is prohibited under clause 35.04 of the GWZ.

11 The Council submits, in its view 'the coarse grade shredded timber mulch and green waste to be further shredded on the subject site is an industrial waste.' In this respect the Council relied to a certain extent on what would constitute industrial waste under the Environment Protection Act 2017 and the Environment Protection Regulations 2021[2] citing that the mulch was likely to contain contaminants which would satisfy the threshold criteria found in Publication 1828.2 (EPA 2021). The Council submitted that receiving, storing, and processing industrial waste, including 'specified combustible recyclable and waste material' is a prescribed activity that depending on the annual tonnage will require permission under the Environment Protection Act 2017.

12 Mr Van Huizen stated the coarse timber mulch has been certified as meeting Australian Standard 4454-2012 (Composts, soil conditioners and mulches). The Council considered that irrespective of whether the mulch satisfied the Australian Standard the further treatment of the mulch is a process of manufacturing consistent with the definition of industry which includes the treatment of waste.

13 The applicant disagrees with the Council and submits the land use terms in the planning scheme are too general and that the use is better described as an 'innominate use' that is a use that does not fall within section 1 or section 3 of the GWZ and therefore requires a permit.

14 Under the GWZ 'Industry (other than materials recycling, refuse disposal, transfer station, research and development centre and rural industry)' is a section 3 prohibited use. To be considered for a permit the proposal is required to fall undersection 2 of clause 34.05 which includes 'materials recycling' which has two conditions or be considered an 'innominate use' that is a use not specifically defined under the planning scheme.

15 Under the planning scheme 'industry' is defined as:

1. winning clay, gravel, rock, sand, soil, stone, or other materials (other than Mineral, stone, or soil extraction);
2. laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; or

If on the same land as any of these operations, it also includes:

a) storing goods used in the operation or resulting from it;

b) providing amenities for people engaged in the operation;

c) selling by wholesale, goods resulting from the operation; and

d) accounting or administration in connection with the operation.

If Materials recycling, goods resulting from the operation may be sold by retail. [Tribunal underlining]

Land used to dismantle, treat, process, store, recycle, or sell refuse, used or surplus materials.

17 Whilst the applicant considered the description of the use was as an 'innominate use' it also considered the proposed use could be characterised as 'materials recycling'. In this respect the applicant considered what is proposed meets the conditional requirements under the GWZ. The two conditional requirements are:

• Must be used in conjunction with Refuse disposal or Transfer station.
• Must not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials

18 The applicant submits as the mulch is already processed, it does not fall within the second condition and the first condition is met as the mulch once further processed will be stored on site for a short period of time before being transported to customers. In this respect the applicant submits this would meet the definition of a 'transfer station'.

Land used to collect, consolidate, temporarily store, sort or recover refuse, used or surplus materials before transfer for disposal, recycling or use elsewhere.

20 In this respect the applicant submits what is proposed is that this coarse timber mulch is further processed. Once further processed it will be temporarily stored on site then sold and transported to customers meeting the definition of a 'transfer station'. The previously processed timber mulch that has not yet been sold can readily be described as surplus material.

21 The Council considers that if the proposed use is determined to be 'materials recycling' it would still be prohibited, as it does not meet the conditions of use as the coarse mulch is generated from construction and demolition waste timber.

22 The applicant disagrees submitting that what is brought onto the subject land is timber mulch in a coarse form. Whilst it derives from construction material the processing of this product has already occurred on another site.

23 The Council indicated the subject land was already being used for storage of vehicles and the coarse timber mulch. Whilst in cross examination Mr Van Huizen stated the total leased area of land is 10,000m2., of this the proposed area for the timber mulch is 2,500m2. Mr Fiedler put to Mr Van Huizen that the areas shown on the 2020 plan for the treatment of the timber mulch will likely be larger as the coarse mulch is already on the subject land suggesting the area will need to be larger to accommodate the quantity currently stored.

24 This is a matter for future consideration of the application and does not assist in the consideration of whether the proposed use is prohibited or not.

25 The coarse form timber mulch proposed to be brought onto the subject site has already been processed from building waste materials. It does not come to the subject site as a waste material, although it was derived from waste materials. It comes to the site already in a processed form as an end product in its own right. What is to occur on the subject site is the further refining of this product.

26 Because the process of 'treating waste materials' as referred to under the definition of industry in the planning scheme has already occurred elsewhere. I do not consider that the proposed further refining of the coarse mulch falls within the definition of 'industry'.

27 As submitted by the applicant the proposal could fall within the definition of 'materials recycling'. I agree that what is proposed does 'not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials'. However, I consider that to meet the definition of a transfer station as referred to within condition one is an attempt to squeeze the proposed use into a definition within the planning scheme which is unnecessary.

28 I find the preferable description of the proposed use of the re-processing of coarse mulch into fine grade mulch on the subject land is as an innominate use which does not fall within either section 1 or section 3 of the GWZ and therefore requires a permit.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.