Response from other parties to application for costs

1. By 4pm on 4 October 2024 the respondent must respond to the application for costs by giving the following to the Tribunal and the applicant:
   1. Submissions which explain his position in respect of the costs application, including any basis on which he opposes the application; and
   2. A copy of any documents relied on in his submissions.

1. Unless varied by further order of the Tribunal, the hearing of the application for costs will be conducted 'on the papers' at 2pm on 25 October 2024. No attendance is required. If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences.
2. If a party objects to the application for costs being determined 'on the papers', they must advise the Tribunal and the parties of this by 4pm on 11 October 2024 and provide reasons for the objection

Fiona Hudgson of counsel instructed by Kate Taylor, lawyer, Beck Legal

• Andy Gaze, Manager Regulatory Services at City of Greater Geraldton Council formerly Coordinator Community Health and Safety for Moorabool Shire Council
• Mark Andrew Lovell, Coordinator Statutory Planning
• Katherine Maree Taylor, lawyer, Beck Legal

In person (9 October 2023) assisted by Pascha Jones, NDIS Support worker

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

1. On 3 February 2023 the Moorabool Shire Council ('council') filed an application for enforcement order ('application') under s 114 of the Planning and Environment Act 1987 (Vic) ('PE Act').
2. The application as originally filed by council alleged breaches of the Moorabool Planning Scheme ('scheme') with respect to use of land at 4 Love Close, Maddingly ('land') for accommodation and as a store.
3. On 17 April 2023, council filed an amended statement of grounds in support of its application no longer pursued alleged breaches of the scheme in respect of the use of the land for accommodation.
4. Council now alleges that Godwin Thomas Aquilina ('respondent') is using the land as a store, which it says is a breach of the scheme.
5. The respondent was the sole registered proprietor of the land at the time this proceeding was commenced. The respondent remains the sole registered proprietor.[1]
6. Council served the application for enforcement order on the respondent via a process server on 20 March 2023.[2] The amended statement of grounds in support of the application for enforcement was also served by process server on 19 April 2023.[3]
7. The respondent relies upon the following statement of grounds:

1. The hearing of this application was originally listed for 3 August 2023. However, the Tribunal was advised that the respondent could not attend, and the hearing was relisted for 9 October 2023.
2. The hearing proceeded on 9 October 2023, with the respondent in attendance. However, during the afternoon it was necessary to adjourn the hearing to 4 December 2023. The hearing was adjourned during the respondent's cross examination of Andy Gaze.
3. The hearing listed for 4 December 2023 was adjourned and ultimately relisted for three days in August 2024. My previous orders in this proceeding set out the reasons for the adjournment of the hearing and I do not repeat those reasons here.
4. The respondent did not appear at the resumption of the hearing on 5 August 2024. I heard evidence from Katherine Taylor regarding her attempts to bring the resumed hearing date to the attention of the respondent. Katherine Taylor's affidavit affirmed 19 July 2024 sets out in some detail the attempts made to serve the respondent and to make him aware of the resumed hearing date.
5. I was satisfied that the applicant through the evidence of Katherine Taylor has made all reasonable efforts to make the respondent aware of the resumed hearing date. On that basis, the hearing continued before me in the absence of the respondent.
6. Having heard the submissions and evidence, I consider it appropriate to make an enforcement order.

1. The land is within a General Residential Zone, Schedule 2 ('GRZ2') and subject to a Design and Development Overlay, Schedule 8 ('DDO8') of the scheme. DDO8 is not relevant for the purposes of this application.
2. I note the scheme has been amended since the hearing on 9 October 2023 in particular clause 32.08-2 was amended by VC250 on 1 January 2024. However, that amendment does not alter the assessment or considerations relevant in this proceeding.

1. Pursuant to clause 32.08-2 of the scheme, use of land for a 'store' requires a planning permit and is subject to the following condition:

1. Further, if the use of land for 'store' does not meet the condition set out in the table above, it will be a prohibited use of land in the GRZ2. Clause 71.03 of the scheme under the heading 'Section 2 uses' provides:

A use in Section 2 requires a permit. Any condition opposite the use must be met. If the condition is not met, the use is prohibited.

1. Clause 73.03[4] of the scheme contains the land use terms and states:

1. A summary of the relevant planning controls leads to the conclusion that the use of land for a 'store' would be prohibited in the GRZ2 unless such use occurs in a building (not a dwelling) and, is a use that is in conjunction with the occupation of the resident of the dwelling on the lot.

1. The land is located on the corner of Love Close and Parwan Road[5]. Below is an extract of the land and its immediate surrounds:[6]

1. A dwelling existed on the land until sometime in late 2019. Council says the dwelling was destroyed by fire.[7] Below is an aerial image taken 1 October 2019 showing the dwelling on the land.[8]

1. There is no dwelling presently on the land, see the aerial image extracted earlier.
2. Temporary and fixed fencing is located along the boundary of the land to the roads. There are two gates to Parwan Road and one gate to Love Close.[9]

1. Council relies on the written and viva voce evidence of:

1. Mark Lovell;[11] and 2. Katherine Taylor.[12]
2. Council relies upon the written evidence of several other persons in respect of the service or attempted service of documents on the respondent. Appendix A contains a list of that written evidence.

1. At the time of preparing his affidavit, Andy Gaze was the Coordinator Community Health and Safety at council. From late April 2023, Andy Gaze ceased employment with council and is now Manager of Regulatory Services at the City of Greater Geraldton Council.
2. Andy Gaze says that since December 2020, he has observed various, goods, materials and debris accumulating on the land.[14]
3. The following is a summary of Andy Gaze's observations of the land at various inspections he undertook:

In addition to the items observed in previous inspections

not certain if two bicycles existed previously or new items

1. two caravans;
2. a shipping container;
3. five motor vehicles;
4. four additional storage-type containers;
5. more than 50 bicycles;
6. various and multiple bicycle parts including wheels with tyres;
7. timber sleepers;
8. more than 20 plastic bags full of various items and waste;
9. a pile of wooden blocks/bricks;
10. a pile of bricks;
11. more than 20 tyres and a tyre stacker;
12. at least three fire hoses and reels;
13. at least one mattress;
14. one stop sign;
15. one trolley;
16. at least five chairs;
17. several rolls of carpet;
18. at least two resuscitation mannequins;
19. one wheelchair;
20. one orange container on wheels;
21. unused fencing material;
22. piles of timber sleepers;
23. various discarded office-type furniture;
24. one item appearing to be part of an external gas heater;
25. several refuse bins;
26. at least two wheelbarrows;
27. corrugated iron sheets;
28. several pieces of machinery and engine parts;
29. various and multiple discarded metal sheets and parts; and
30. various other metal and timber items.

Some of the items listed above were 'disturbed' but it is not clear whether removed or relocated on another part of the land

1. Andy Gaze's second affidavit sets out the details of his conversation with the neighbour regarding an Intervention Order ('IVO') against the respondent.
2. Council says the IVO,[15] does not prevent the respondent from attending his land.

1. Mark Lovell is council's coordinator of statutory planning and an authorised officer. He has inspected the land on many occasions since December 2020.
2. Prior to the hearing on 9 October 2023, Mark Lovell inspected the land on 7 September 2023 and observed the following:[16]
   1. a shipping container;
   2. two caravans;
   3. discarded office furniture;
   4. indoor and outdoor chairs;
   5. multiple vehicles;
   6. general hard waste and debris;
   7. more than twenty bicycles;
   8. several tyres;
   9. large plastic bins and wheelie bins;
   10. sheet metal; and
   11. rubber and metal pipes.
3. Mark Lovell has used an aerial image to highlight the location on the roadside from which he took photographs.[17]
4. Mark Lovell again inspected the land from the roadside on 10 July 2024 and observed the same or similar items as he had observed on 7 September 2023.
5. Mark Lovell returned to the land on 18 July 2024 and observed the letter box on the land that was filled with uncollected mail.
6. On both 10 July and 18 July 2024, Mark Lovell took photographs of the land and the mailbox from the roadside. Exhibit MAL6 to Mark Lovell's second affidavit contains screenshots showing the metadata of the photographs taken by Mark Lovell on 10 and 18 July 2024.

1. Katherine Taylor's affidavits of various dates respond to the statement of grounds relied upon by the respondent. In summary, Katherine Taylor's evidence is that:
   1. she had the care and conduct of one of the matters in the County Court of Victoria ('Court') in which the respondent in this proceeding was the appellant in criminal proceedings;
   2. an employee of the council was an informant in one of the criminal proceedings;
   3. Beck Legal was instructed on behalf of council in the criminal proceeding relating to a littering offence and failing to comply with a notice relating to a contravention of council's local laws;
   4. the pre-trial court processes for all three criminal proceedings were being case managed together; and
   5. she is not aware of any injunction being granted by the Court in the proceeding in which council is involved. By extension, having regard to the pre-trial case management of the three criminal proceedings she is not aware of any injunction being granted by the Court in relation to the other criminal matters.[18]
2. Affidavits affirmed 6 October 2023 and 27 October 2023 by Katherine Taylor respond to the following orders made by me:
   1. By no later than 4.00pm on 27 October 2023, the Moorabool Shire Council must give the Tribunal and Godwin Thomas Aquilina any further evidence that it seeks to rely upon regarding the date and time of the photographs relied upon in this proceeding.
   2. By no later than 4.00pm on 27 October 2023, the Moorabool Shire Council must give the Tribunal and Godwin Thomas Aquilina information regarding the number of notices to comply that have been issued to Godwin Thomas Aquilina by it regarding the land at 4 Love Close, Maddingly.
   3. By no later than 4.00pm on 27 October 2023, the Moorabool Shire Council must give the Tribunal and Godwin Thomas Aquilina a list of items that were removed by it on or around October 2019, in so far as the Moorabool Shire Council has the information.
3. Kathleen Taylor affirms that she compared the file names given to the photographs with the file metadata and provided screenshots at Exhibits KMT9 and KMT12.
4. Further, Katherine Taylor provides a comprehensive list of notices to comply that have been issued to the respondent.
5. The respondent does not rely on any evidence in this proceeding.

1. Council is the responsible authority for the administration of the scheme. It seeks enforcement orders under s 119 of the PE Act that:
   1. the land is used as a store;
   2. the use of the land for a store contravenes clause 32.08 of the scheme;
   3. the respondent cease using the land for store;
   4. the respondent remove all identified items within 90 days of the enforcement order being made;
   5. the respondent not recommence use of the land for a store until such use is authorised under the scheme; and
   6. remove items within the shed located in the northwest corner of the land.
2. Council also seeks an order that the respondent pay its costs of the application for enforcement order.
3. I note council no longer seeks an order requiring the demolition of the shed.

1. In late 2019 a fire destroyed the dwelling on the land. However, I understand the shed located in the north-west corner of the land was not destroyed by the fire.
2. Following the fire in late 2019, the land was largely clear of goods, material and debris. However, progressively over time, goods, materials and debris have been placed and stored on the land.
3. Council received complaints about the accumulation of goods, materials and debris on the land. Andy Gaze observed the accumulation of goods, materials and debris from December 2020 onwards. Council relies on evidence it has called to support its application for enforcement order.

1. Put simply, council says the land is being used as a store as that word is defined at clause 73.03 of the scheme. Further, council says that the goods, materials and debris have been present on the land for in excess of two years and are not temporarily located on the land. As an example of an item that is placed temporarily on land, council says a skip used for gardening or to remove building materials which is removed, would not constitute use of land as a store because it has a temporal element.
2. Further, council says there is no material before me to indicate the use of the land for store is somehow ancillary to another use of the land as there is no other use occurring on the land at present. In any event, council says given the volume of goods, material and debris, the primary use of the land is as a store.
3. Council accepts that vehicles, caravans or machinery could be present on land and be a subservient use to accommodation where these items are in regular and active use. The land in this application is not used as a dwelling as there is no dwelling on the land.
4. Council relies on the decision in Mount Alexander SC v Kunkel[19] (Kunkel). Council highlights the following from Kunkel:

23 Store is defined as:

Land used to store goods, machinery or vehicles.

1. The Council's primary submission is that the subject land is being used for the purpose of a Store because the land is being used to store shipping containers. This would require a finding that a shipping container is goods.
2. Goods are not defined in the Scheme. The relevant ordinary meaning is 'possessions, especially movable effects or personal belongings'. Although a shipping container is unlikely to be personal belongings, it is capable of being a possession and a movable effect.
3. The Council did not adduce any evidence about the contents of any shipping container. Mr Kunkel admitted he is storing equipment, chemicals and building materials in the shipping containers. I find these items may be characterised as goods or machinery. Hence, having regard to the nature of Mr Kunkel's shipping containers, they are capable of being characterised as a Store.

1. First, I have found the shipping containers are for the purpose of a use that requires permission in the TZ.
2. Second, while the characterisation of a shipping container as a building or as works was unsettled many years ago, the issue was settled in Watson v Monash CC. I brought this decision to the attention of the parties at the hearing.
3. In Watson, an owner of land used for a shop proposed to place one shipping container at the rear of the land. In the relevant zone, unlike the TZ, permission was needed for all buildings and works. After carefully considering previous authorities and the characteristics of a shipping container, the Tribunal held a shipping container was a structure and therefore a building. I am not bound by the decision in Watson but I do follow it to reinforce the settled position.
4. Third, Mr Kunkel correctly submits that no permission would be required if the shipping containers were properly characterised to fit the following general exemption:

A temporary shed or temporary structure for construction purposes, or a temporary portable land sales office located on the land for sale.

1. Mr Kunkel claims the relevant construction purpose is a dwelling. While each of the shipping containers is a structure, the submission faces two difficulties.
2. They are not for the purpose of construction a dwelling. In my opinion, the construction must be current or approved. Mr Kunkel relies on his making of the first and second applications. It suffices to state that neither of these applications has resulted in the grant of a permit. The making of an application for permission to construct is, on its own, insufficient.

1. Council adds that in addition to a planning permit for the use of land as a store, such store use must occur within a building that is not a dwelling. The storage must be in conjunction with the occupation of the resident of the dwelling. The goods, material and debris are stored out in the open for the most part and there is no dwelling on the land. Thus, council submits that the respondent is using the land as a store, in the open without the necessary connection to the occupation of the resident of the dwelling. Council further says that having regard to clause 32.08-2 of the scheme, given those facts, the use of the land is in fact prohibited.
2. Council disagrees with the respondent that he cannot access his property because of the IVO. Council notes neither the IVO nor the County Court proceedings[20] prevent the respondent from entering his land. Council contends there is no impediment which prevent the respondent from clearing the land.
3. Council also highlights the respondent does not deny that the items are on the land.

1. There are many authorities that consider characterisation of land use. In Cascone v City of Whittlesea[21] (Cascone), the Supreme Court of Victoria ('SCV') identified the following principles emerging from the cases (at that time) in relation to the characterisation of land uses with respect to permit applications:

(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely fells within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is 'Yes", and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is "No", each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere feet that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase "real and substantial" qualifying "use" will always be nominally present. But it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between "purpose of use" and "use" in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of "innominate use". It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the "real and substantial" purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above.

1. In Kunkel, I note the Tribunal succinctly summarised the task as:
   1. ... that it is necessary to ascertain the purpose of the use, that purpose is not ascertained by references to particular activities, processes or transactions, and that a purpose does not need to fit a defined use but if it very largely falls within a defined use it may be so characterised.
2. Council says the land is being used as a store because either goods, machinery or vehicles are on the land and have been on the land for a long period of time.
3. The words 'goods', 'machinery' and 'vehicles' are not defined in the scheme and are to be given their ordinary meaning. The Macquarie Dictionary[22] provides the following definitions:

goods

plural noun 1. possessions, especially movable effects or personal belongings.

1. articles of trade; wares; merchandise, especially that which is transported by land.

2. goods and chattels,
   1. all movable properties.
   2. Colloquial all one's possessions.

machinery

noun (plural machineries)

1. machines or mechanical apparatus.
2. the parts of a machine, collectively: the machinery of a watch.

vehicle

noun 1. any receptacle, or means of transport, in which something is carried or conveyed, or travels.

1. a carriage or conveyance moving on wheels or runners.

2. a means of conveyance, transmission, or communication: air is the vehicle of sound.

3. I now turn to the specific items that council seeks to be removed before turning to the general items.
4. Council's request for enforcement seeks the removal of two caravans, five motor vehicles, trolley, wheelchair and various bicycles. Each of these items clearly fall within the ordinary meaning of vehicle extracted above.
5. The shipping container, bicycle parts, any storage type containers, outdoor and indoor chairs, fall within the ordinary meaning of goods as they are possessions, personal belongings or movable effects on the respondent's land.
6. Council also seeks the removal of 'equipment' noting that word is not contained with the land use 'store'. Equipment is defined as:[23]

5. a collection of necessary implements (such as tools).

1. I agree with council that some of the items on the land would be defined as equipment for example: the fire hoses and reels, large wheelie bins, tyre stackers, office furniture, rubber and metal pipes, wood, timber sleepers, scrap metal, corrugated iron sheets and bricks. In any event, all these items also fall in to the definition of goods.
2. There are also items on the land such as vehicle parts, heater parts and car engine parts that fall within the definition of machinery.
3. The evidence before me is that these items have been on the land for more than two years and thus, I cannot conclude that these items are temporarily placed on the land.
4. Rather, the evidence and submissions of council support a conclusion that the purpose of the use of the land is for store. A permit has not been granted for such use, and on the basis that there is no dwelling on the land, such a permit could not be granted under the scheme.
5. Thus, on the material before me, I find the respondent is using the land for the purpose of a store, which is a prohibited use of the land in circumstances where there is no dwelling on the land.

1. Section 119 of the PE Act sets out what an enforcement order can provide and states:

What can an enforcement order provide for?

An enforcement order made by the Tribunal -

(a) must specify -

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement; and

(ii) any other prescribed information; and

(b) may direct any person against whom it is made to do any one or more of the following -

(i) to stop the use or development within a specified period; or

(ii) not to start the use or development; or

(iii) to maintain a building in accordance with the order; or

(iv) to do specified things within a specified period -

(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under section 173.

1. The making of an enforcement order is discretionary as s 119(b) of the PE Act says that the Tribunal 'may' direct a person to do certain things. I have made findings about the use of the land as a store which is in breach of the scheme. In such circumstances, it is appropriate and just to make an enforcement order. The remaining issue is the length of time necessary to cease use of the land as a store and remove the items from the land.
2. I do not have the benefit of submissions from the respondent regarding the length of time required to cease use of the land for a store and remove the items.
3. I am satisfied that the period sought by council for the cessation of the use of the land and the removal of the items is reasonable in the circumstances.
4. I provide for the service of this order by post at the last known address of the respondent to accord with s 140 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). If, council has further or differing information regrading the location of the respondent, there is nothing in my orders that prevents service of the order by council on the respondent at a different address.

1. Council has sought its costs but has not provided sufficient submissions regarding its application for costs. I consider it appropriate to require council to provide brief submissions with the relevant information and documentation to support its application for costs in this proceeding.

Use of land at 4 Love Close, Maddingly for a store in breach of clause 32.08-2 of the Moorabool Planning Scheme

1. By 4pm on 15 November 2024 Godwin Thomas Aquilina must cease using the land at 4 Love Close, Maddingly for the purpose of a store.

1. By 4pm on 15 November 2024 Godwin Thomas Aquilina must remove all materials goods, machinery, equipment and vehicles including but not limited to:
   1. two caravans;
   2. a shipping container;
   3. all motor vehicles;
   4. all motor vehicle parts;
   5. all bicycles;
   6. all bicycle parts;
   7. all scrap metal;
   8. all tyres; and
   9. all tyre stackers;

from the land at 4 Love Close, Maddingly to the satisfaction of the responsible authority.

1. By 4pm on 15 November 2024 Godwin Thomas Aquilina must remove all goods, materials, equipment and machinery from the shed located on the northwest corner of the land at 4 Love Close, Maddingly to the satisfaction of the responsible authority.
2. By 4pm on 15 November 2024 Godwin Thomas Aquilina must clean any debris created from removing the items in order 3 above from the shed located on the northwest corner of the land at 4 Love Close, Maddingly to the satisfaction of the responsible authority.

[1] Certificate of Title dated 5 August 2024 (10.23am) was produced to the Tribunal.

[2] See statement of service dated 20 March 2023.

[3] Affidavit of Steven John Woodward affirmed 27 July 2023.

[4] Clause 73.03 of the scheme was amended on 15 March 2024 by Amendment VC256. The changes within that amendment do not alter the considerations relevant in this proceeding.

[5] Parwan Road is also known as Geelong-Bacchus Marsh Road.

[6] Nearmap image as at 3 February 2024.

[9] See Affidavit of Andy Gaze affirmed 31 January 2023 at [10] an Affidavit of Mark Lovell affirmed 14 September 2023.

[10] Affirmed 31 January 2023 ('Andy Gaze's first affidavit') and affirmed 18 September 2023 ('Andy Gaze's second affidavit').

[11] Affirmed 14 September 2023 ('Mark Lovell's first affidavit') and affirmed 19 July 2024 ('Mark Lovell second affidavit').

[12] Affirmed 21 July 2023, 31 July 2023, 14 September 2023, 6 October 2023, 27 October 2023 and 19 July 2024.

[14] See Andy Gaze's first affidavit at [15].

[15] See Exhibit AG2 to Andy Gaze's second affidavit.

[16] See Mark Lovell affidavit at [7].

[17] See Exhibit MAL2 to Mark Lovell's affidavit.

[18] The proceeding before the Court has now concluded.

[19] [2019] VCAT 1476.

[21] (1993) 11 AATR 175 at pages 190.