1. The respondents, Arthur Dadalias and Effie Gidas, must cease using the land to store goods in the open used for business purposes, including pallets, garden stakes, bagged potting mix and manure and loose mushroom compost mix.

2. The respondents, Arthur Dadalias and Effie Gidas, must cease using the land to store, in any manner, loose mushroom compost mix.

3. The owners and occupiers, Arthur Dadalias and Effie Gidas, must cease using the land to sell goods used for business purposes including garden stakes, bagged potting mix and manure and loose mushroom compost mix.

4. Within fourteen days of this order, Arthur Dadalias and Effie Gidas must remove all the pellets, garden stakes, bagged potting mix and manure and loose stockpiled mushroom compost mix used for business purposes, from the land.

1. That the responsible authority serve a copy of this enforcement order personally or by post on Arthur Dadalias and Effie Gidas in accordance with the Victorian Civil and Administrative Tribunal Act 1998, s.140.

Mr Mike Reddy, Planning Investigations and Planning Enforcement Officer with the City of Monash, appeared for the responsible authority.

There was no appearance by Arthur Dadalias or Effie Gidas.

Application under s.114 of the Planning and Environment Act 1987 for an enforcement order to prevent the use of land zoned Residential C from being used to store and sell specified goods.

1. Use of the land to store goods (used for business purposes) including pellets, garden stakes, bagged potting mix and manure and loose mushroom compost mix in the open and so that they are visible from outside the site.

2. Use of the land to sell bagged potting mix and manure, garden stakes and mushroom compost mix which are neither manufactured, serviced or repaired in the occupation conducted by the respondents.

1. Arthur Dadalis and Effie Gidas live at 1564 Dandenong Road, Oakleigh. They did not send into the Tribunal a Statement of Grounds indicating that they wished to contest the Responsible Authority's application for Enforcement Order.

2. Mr William Michael Reddy, Planning Investigations Officer for the Monash City Council, gave the following evidence to the Tribunal:

On 18 June 1998 a complaint was received concerning use of the land at 1564 Dandenong Road, Oakleigh to store fertilizer and garden mulch and using the land to sell the goods.

An inspection of the land on 22 June 1998 revealed it was a single storey weatherboard dwelling with a small shed in the back yard. The land was located in a Residential `C' zone and being used to store loose garden mulch, bagged fertilizers and a quantity of cut and garden stakes. The loose garden mulch was stored in the open and clearly visible from the street. Some signs were present advertising the sale of these goods. Mrs Dadalias was spoken to and advised me that her husband Arthur Dadalias sold these goods from markets and occasionally when people called at the house.

On 22 June 1998 correspondence was forwarded to both Mr and Mrs Dadalias advising that the use was not allowed from these premises and they were requested to cease the use. Shortly after sending the letter Mr Dadalias phoned the office and expressed his dissatisfaction with Council's actions but agreed to comply.

On 26 March 1999 a further complaint was received. An inspection of the land on 26 March 1999 revealed that bulk manure/compost was again being stored in the driveway, pre packaged potting mixes were stored in the front garden area and behind a screen in the driveway. Mrs Dadalias was spoken to and claimed that these goods were only being sold at weekend markets and that no sales were taking place from there. She was advised that the use fell within the definition of `Store' as defined by the planning scheme and required to cease the use. Photos taken and correspondence forwarded.

An inspection of the land on 22 April 1999 revealed that the use was continuing. No person was at home and correspondence was again forwarded requiring compliance with the planning scheme. On 23 April 1999 a phone call was received from Mr Dadalias who advised that he operated his business as Stan Transport, that he brought the pre bagged goods to his property on his truck. He stated that some of these bagged goods were bagged at the transport yard in Mernda where the trucking part of his business operated from and that he bagged mushroom compost, previously delivered to his home, at home for resale at weekend markets. When asked why he was stockpiling bulk mushroom compost in the open which generated an offensive odour he claimed it was no more offensive than using fertilizer. He was advised that the use was not permitted under the planning scheme and required to cease using the land to store these goods.

On 6 May 1999 an inspection revealed that the amount of loose compost mix had been reduced but that the use was still continuing. Mrs Dadalias was advised of pending action if the use continued.

On 7 May 1999 Mr Dadalias phoned the office and expressed his dissatisfaction with Council's actions. He was advised that should he wish to continue with this business it was necessary for him to relocate the business to a suitable zone.

An inspection of the land on 3 December 1999 revealed that the drive was still being used to store stockpiled loose mushroom compost and bagged goods and stakes were stored over the screen fence.

An inspection of the land on 6 January 2000 revealed that the driveway was still being used to stock pile loose mushroom compost and bagged compost/manure were being stored over the screen fence. Photo taken.

The photographs taken by me, produced, were processed by me on my computer and are a true representation of the state of the land at the time.

An inspection of the land on 17 February 2000 revealed that a large sign was erected on the median strip between the service road and the main road outside 1565 Dandenong Road, Oakleigh. This sign was advertising `Sheep Manure, Clean Charcoal Bags, Malee Roots for Spits and Barbecue Stakes'. Loose manure/fertilizer was stored in the driveway out in the open.

3. Mr Reddy produced a bundle of photographs to the Tribunal to support his observations. These photographs, numbered 1-12, remain on the Tribunal file.

4. Mr Reddy proved the planning scheme provisions in accordance with the Planning and Environment Act 1987, ss.140 and 141.

5. All the statements, correspondence, certified documents and other material relied upon by the responsible authority to prove its case, remain on the Tribunal file.

6. Although houses in a Residential C Zone can be used without planning permission for `home occupation' purposes, the following restrictions must be met:

A home occupation must meet the following requirements:

(e) The occupation must not adversely affect the amenity of the neighbourhood in any way including:

* The transporting of materials or goods to or from the dwelling. ...

(h) No goods other than goods manufactured, serviced or repaired in the occupation may be offered for sale.

(i) Materials used or goods manufactured, serviced or repaired in the occupation must be stored in a building.

(j) No goods manufactured, serviced or repaired in the occupation may be displayed so that they are visible from outside the site.

7. Mr Reddy gave evidence to the Tribunal that the storage of loose mushroom compost mix stored in an open silo in the front yard emits unpleasant fertiliser odours, in breach of Clause 25-1(e).

8. Mr Reddy also gave evidence that, from conversations he had with Effie Gidas, the garden products were neither manufactured, serviced or repaired on the subject land. Accordingly their sale is in breach of Clause 25-1(h), while their display is in breach of Clause 25-1(j) of the Monash Planning Scheme.

9. Even if some of the materials are used in the occupation carried on by Arthur Dadalias or Effie Gidas, none of them are stored in a building, in contravention of Clause 25-1(i) of the Monash Planning Scheme.

10. I am satisfied that breaches of the planning scheme have occurred in accordance with the evidence presented to the Tribunal and make the enforcement orders in the terms outlined above.