1. Pursuant to section 115B of the Victorian Civil and Administrative Act 1998, Victor Hycenko is ordered to reimburse the Mornington Peninsula Shire Council the whole of the lodging and hearing fees paid by the applicant in the proceeding, namely $1700.30, within 30 days of the date of this order.

1. Victor Hycenko is ordered to pay the costs of the Mornington Peninsula Shire Council of and incidental to this proceeding. In default of agreement, such costs are to be assessed by the Victorian Costs Court on a standard

basis on the County Court Scale of Costs. The costs must be paid within 30 days of the date of this order or, failing agreement, within 30 days following taxation by the Costs Court.

Ms Elizabeth Thuner, Planning Compliance Officer, Mornington Peninsula Shire Council

Mr Jesse Bell, Planning Compliance Officer, Mornington Peninsula Shire Council

1. Mr Hycenko owns and occupies land in Boneo which is within the Special Use Zone, Schedule 4 'Recreational development' (SUZ4) under the Mornington Peninsula Planning Scheme (Scheme). A small part of the land (adjacent to the front boundary) is currently in the Environmental Significance Overlay, Schedule 28 'Mornington Peninsula Bushland' (ESO28) and the Vegetation Protection Overlay, Schedule 2 'Significant Treelines' (VPO2).[1]
2. Because the land is located within the SUZ4, and it is outside the Urban Growth Boundary, the provisions of clause 51.02 (Metropolitan Green Wedge Land: Core Planning Provisions) apply.
3. The land contains a dwelling, several sheds and other improvements including a stock yard and a stock loading ramp. It is undulating and rural in nature and it is divided into paddocks with some scattered vegetation present. It has a frontage to Old Cape Schanck Road of approximately 191 metres, and frontage to Grassland Road of approximately 120 metres. It is irregular in shape an has a total area of about 11.25 hectares.

1. The responsible authority is concerned about the accumulation of vehicles, shipping containers and other items on the land. It alleges that this represents a separate use of the land as a Store (or other alternative uses) without a permit (or which in the alternative is prohibited). The responsible authority is also concerned about earth mounds which are present on the land. It alleges that the placement of shipping containers and earth mounds on the land are 'buildings and works' which have been carried out without a permit. It seeks orders to prevent the land from being used for a Store; the removal of all motor vehicles, trucks, trailers, shipping containers, boats and other items, and the demolition and removal of the shipping containers and earth mounds.

1. Mr Hycenko's (then) representative initially indicated that he would not contest the intent of the responsible authority's action, and that bringing shipping containers onto the land in which to store a number of vehicles was in breach of the Scheme. It was also indicated (amongst other things) that Mr Hycenko would make good and reinstate the earth mounds along the northern boundary of the land, and that the earth mounds along the front

of the land were placed there in anticipation of securing a planning permit for a dam.[2]

1. At the hearing, Mr Hycenko strongly opposed an enforcement order being made. Amongst other things, he indicated that:

1. He lives in the dwelling on the land, and he keeps chickens, up to 30 cows and up to 50 sheep (intermittently) on the land; 2. He purchased the land to continue his passion of collecting cars;

1. Some of the vehicles stored in the open on the land are not registered, and that those vehicles needing repair cannot be fixed until he gets a 'workable area' on the land;

1. Each locked shipping container on the land contains at least one vehicle; 2. Some of the vehicles which are stored on the land (including some of the vehicles which are out in the open, and inside locked shipping containers) have 'club permits'[2] and some have full registration; 3. The registered vehicles are 'classic cars' which he displays at shows and charity events (amongst other things). On any given day, he may choose to drive any one of the registered vehicles, such as a 'hot rod' or a motor bike; and 4. He uses a bobcat, a tip truck, tray trucks, a crane truck boom and trailers for agricultural purposes. Most of these vehicles and items are already in a shed.
2. Mr Hycenko applied for a number of permits, including an application for a storage shed, a dam, a manege and earth mounds, which was refused by the responsible authority.[3] The refusal was affirmed by the Tribunal in review proceedings.[4]
3. In the meantime, Mr Hycenko says that he had nowhere else to keep his machinery, so he brought shipping containers on to the land for temporary storage, and most of the collectable vehicles are stored in the shipping containers. Mr Hycenko has applied for a permit regarding the shipping containers.[5] The responsible authority has refused that permit application and he has applied to the Tribunal for review of that decision. That application has not yet been determined by the Tribunal. Mr Hycenko submits that no enforcement order should be made whilst:

The permit application for the shipping containers is subject to review proceedings in the Tribunal; and

There is an active permit application for a shed, indoor equestrian arena, bed and breakfast and a dam on the land.

1. It was not contested that the land has existing use rights which allow it to be lawfully used for the purposes of a Dwelling and for Agriculture. Mr Hycenko's position (in summary) is that:
   1. the storage of collectable vehicles on the land is his hobby, which is ancillary to the residential and agricultural use of the land; and
   2. no planning permit is required for the earth mounds, which he regards as a garden bed for the planting of trees, as well as the placement of a clay mound to be used in the future to line a dam which is yet to be constructed.

1. This proceeding was previously listed for hearing on 15 June 2018 and 8 October 2018 and was adjourned twice (by consent) to enable proceedings in the Magistrate's Court against Mr Hycenko to be finalised. At the hearing, leave was granted for the responsible authority to amend the enforcement order application to delete the reference to works for which planning permission has been granted and to amend certain dates referred to in the application.[6]
2. Following the hearing, interim orders were made permitting the parties to make further submissions regarding several matters, including to enable Mr Hycenko to provide a written response to the responsible authority's application for costs and reimbursement of fees.
3. I have considered the material filed on behalf of the parties in response to the Interim Orders in reaching my conclusions in this matter (except for material that was filed by any party without the leave of the Tribunal).
4. I was provided with a substantial amount of background material by the responsible authority. In the interests of efficiency, I have focussed on the material which is most helpful and relevant.

1. Two of the responsible authority's planning compliance officers gave sworn evidence as to the appearance of vehicles, shipping containers and other items stored on the land over time, as well as the earth mounds, supported by a substantial number of photographs taken on various inspections. This was supplemented by aerial photographs which indicated the extent of vehicles, shipping containers and other items kept on the land.

Amongst other things, it is Ms Thuner's evidence that since 18 November 2016, Mr Hycenko has made at least 5 permit applications regarding the land for various things. These include:

1. an application for a permit for a shed, a dam, a manege and earth mounds which the responsible authority refused (to which I have already referred). The refusal was upheld by the Tribunal;[7]
2. an application for the storage of plant, equipment, personal items and tools[8], and a separate application for 6 shipping containers as shelter for classic cars[9], both of which lapsed by operation of s 54 of the Planning and Environment Act 1987 (PE Act);

1. an application for a permit for the development of a 'baseball batting tunnel, shed, animal shelter and associated works'[10] which was granted by the responsible authority; and

1. an application for a permit for the development of 24 shipping containers and associated works.[11]

1. An accompanied site inspection was undertaken after the hearing, during which I observed a number of vehicles, including cars, trucks and vans out in the open on the land, and shipping containers, one of which Mr Hycenko unlocked to show a vehicle inside. I also observed in the order of 11 vehicles stored inside the garage adjoining the dwelling on the land, and inside two locked, enclosed sheds. I understand from my site inspection and from Mr Hycenko's submissions that at least 4 of these vehicles are capable of being driven by occupants of the dwelling on the land or being used in association with the agricultural use of the land.

1. It is clear from the evidence of the responsible authority's officers (and from my inspection of the land and Mr Hycenko's submissions) that there are various types of motor vehicles and other items being stored on the land, including the following;

1. On the order of 30 motor vehicles which are stored out in the open, including cars (approximately 5 of which are covered in tarpaulins or car covers), vans, trucks, and a bus. Most of the motor vehicles that are uncovered do not have registration plates, although 2 of these uncovered motor vehicles have 'club' registration plates of the type issued by VicRoads under the 'club permit' scheme restricted to historic vehicles; and 2. At least 13 cars inside at least 13 locked shipping containers; and

In the order of 11 vehicles inside the garage and the two locked sheds; and

In the order of 3 caravans, a small sailing boat and several trailers.

1. The motor vehicles (including those inside the shipping containers) and other items which are not kept inside the garage and the two sheds are stored in various locations on the land, including south of the dwelling on the land, and in an area of approximately 100 metres in length and about 2000 square metres in area located adjacent to the northern boundary of the land with the adjoining property at 219 Old Cape Schanck Road.
2. From the evidence of the responsible authority's officers and from my inspection of the land, I find that there are mounds of earth in the north-west corner of the land, adjacent to Old Cape Schanck Road and north of the driveway that leads to the dwelling, and also adjacent to the northern boundary abutting 219 Old Cape Schack Road. Mr Hycenko stated to an officer of the responsible authority that he placed the earth mounds there in around November 2016, in an area around where the dam is going to be.

Is the use of the land to store vehicles ancillary to the predominant use of the land?

1. I was taken by the responsible authority to decisions which address the characterisation of land uses, and the distinction between ancillary and separate land uses.[12] I was referred to, and I have applied the reasoning in Cascone & Anor v City of Whittlesea_[13]__._ In the context of a planning permit application, Ashley J in that case stated as follows:

(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 fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.

1. In Hoe v Manningham City Council,[15] Osborne J discussed the concept as follows:

Clause 64 may thus be understood as reflecting or amplifying the concept that it is the real and substantial purpose of a land use which determines its character for planning purposes. It amplifies that notion by making clear that even when two or more substantial and distinct activities can be identified upon land, an otherwise not permitted ancillary use may be legitimised by a lawful dominant purpose. Thus a café, car park, office, some industrial uses, residential accommodation and a shop may all be ancillary to a hospital, if it is plain their purpose is as facilities ancillary to the primary land use purpose of hospital.[16]

1. I was also taken by the responsible authority to decisions of the Tribunal and the Supreme Court relevant to the distinction between the keeping of goods as a hobby ancillary to a residential use, as opposed to a separate use such as a Store.
2. For the purposes of my assessment of whether the keeping of the vehicles is an activity that can reasonably be accepted as ancillary to the predominant uses of the land in this case, it is useful to consider the approach taken in earlier Tribunal cases to the storage of motor vehicles on properties on land located in what can broadly be described as 'rural-residential' locations.
3. In Greater Geelong Geelong CC v Filep[17] the Tribunal found that the storage of 35 registered and unregistered vehicles on land within the Rural Living Zone (in circumstances where a proposal to construct a shed had not eventuated) 'goes beyond anything that could be considered ancillary to the enjoyment of the land as a dwelling'.[18]
4. In Mekenkamp v Yarra Ranges SC[19], Mr Mekenkamp's hobby of collecting and restoring around 40 Renault motor cars on land which was which was 2.88 hectares in size was recognised as an ancillary part of his domestic use of land as a residence. In that case, the Tribunal had regard to the intention to store the cars within sheds which were sufficient to accommodate 40 vehicles; the size of the land (2.88 hectares) and the rural-residential location.
5. The storage of in the order of 70 Holden Toranas (with 3 inside a garage, and many vehicles outside and in a part-completed shed) on an 8 hectare

site was found to be a separate use of the land as a Store in Whitfield v Greater Bendigo CC[20]. In that case, the Tribunal determined that:

... with such a large number of vehicles in question, my view is that even on a hobby farm sized residential property in an urban fringe location, 70 odd vehicles is not even in the ball park in terms of the number of cars that can reasonably be seen as a hobby activity ancillary to the as-of-right residential use of that property.[21]

1. In reaching my conclusions in this matter, I have also considered other decisions of the Tribunal regarding the distinction between the keeping of goods as a hobby ancillary to a residential use, as opposed to a separate use such as a Store.[22]
2. Whilst each case turns on its own facts, the Tribunal's decision in Mekenkamp indicates that where there are appropriate storage structures (such as a shed, or sheds) available to house motor vehicles, then there is the potential for more vehicles to be considered to be ancillary to the domestic use of land for a dwelling. Mr Hycenko has adequate storage within the two sheds, and the garage adjoining the dwelling on the land for around 11 vehicles. There are not adequate sheds (or other structures) on the land to appropriately house the 40 or so other vehicles on the land. On the basis of these facts, I distinguish this case from the Mekenkamp decision, because in that case there were sufficient sheds to accommodate the hobby of keeping 40 vehicles (which was recognised as being an ancillary part of the domestic use of the land as a residence).
3. Use of Mr Hycenko's land for a Dwelling and Agriculture potentially includes several related activities which fall within these purposes. I accept that Mr Hycenko has chosen this use of the property and that the vehicles and machinery have particular interest and attraction to Mr Hycenko. At the same time, the nature and extent of the collected vehicles and similar items kept in the open on the land (in the order of 40, with at least 13 of the vehicles being stored inside locked shipping containers) is out of proportion to what could reasonably be accepted as a hobby or activity ancillary to the ordinary use of the land for a Dwelling or for Agriculture, even in this rural location. It is not incidental or subservient to these purposes, and does not constitute an ancillary use. I make this finding despite the fact that there are substantial remaining 'open' areas on the land that are not affected by the storage of vehicles and other items.
4. Even if the activity initially commenced as an ancillary hobby, I consider that it has become disproportionate to the use of the land for a Dwelling and Agriculture and it has evolved into a separate use. This is because:

The number of motor vehicles as a whole kept in open areas on the land being in the order of 40 (with at least 13 the motor vehicles stored inside locked shipping containers) weighs against this as an ancillary use;

Vehicles which cannot be driven are kept by Mr Hycenko until he gets a 'workable area' on the land. Vehicles which can be driven are kept as part of Mr Hycenko's collection (mostly in locked shipping containers) pending their next use by Mr Hycenko as part of his hobby of collecting classic cars. In my view, the purpose of the activity is the long-term, ongoing storage of the vehicles, and the keeping of the vehicles is the end in itself;

1. Some of the motor vehicles kept out in the open and in shipping containers are registered (including at least 13 stored in the locked shipping containers, and at least 2 kept out in the open). I am not persuaded that all of the registered vehicles that are stored in open areas on the land are being used on a regular basis by occupants of the dwelling for private transportation purposes, or in association with the keeping of chickens and the intermittent keeping of cows and sheep on the land. This is particularly the case because there are in the order of 11 other vehicles kept within the garage and inside two locked sheds on the land, several of which I understand can be driven and are actively used by Mr Hycenko;

1. The fact that some of the vehicles stored out in the open and within shipping containers could be used by an occupant of the dwelling (or potentially in association with the agricultural use of the land) does not lead me to conclude that they are an inherent part of, or incidental or subservient to the use of the land for a Dwelling or for Agriculture. If Mr Hycenko wants to keep a reasonable proportion of vehicles for his residential and agricultural use, there are opportunities for this within the existing garage adjoining the dwelling, and the two locked, enclosed sheds on the land (and for a small number outside these structures but located within a reasonably close distance to these structures);
2. A number of vehicles stored out in the open are not registered (in the order of 15). These are incapable of being driven by the occupants of the dwelling for private transportation purposes, or in association with the agricultural use of the land;
3. At least some of the vehicles and shipping containers are visible from vantage points on Old Cape Schanck Road, and Grasslands Road. This is problematic having regard to the need to maintain the qualities of the SUZ4 and the purposes of the Metropolitan Green Wedge Land: Core Planning Provisions at clause 51.02 of the Scheme. The appearance and distribution of the motor vehicles and

shipping containers across the land, in a rural location such as this can be regarded as an eyesore.

1. In its application to the Tribunal, the responsible authority sought an order that Mr Hycenko remove all motor vehicles, trucks, trailers, shipping containers, boats and other items that are being stored on the land. However, in the course of its submissions it conceded that the following vehicles could reasonably be placed on the land and still be considered ancillary to the primary uses of the land:

1. Up to 2 fully registered (not club registered) vehicles per occupant of the dwelling; 2. A reasonable number of farm vehicles that are in good working order and which are used with some degree of regularity to undertake farming activities; and

1. Up to 5 vehicles for hobby purposes (including restored 'classic' vehicles, vehicles that are being restored or that are owned for the purpose of restoration, vehicles owned as part of a collection, vehicle parts and bodies, whether registered or unregistered).
2. Amongst other things, Mr Hycenko submitted as follows:

1. It is not reasonable, fair or just to limit his hobby to a specific number, particularly a number as low as that submitted by the responsible authority having regard to the significant size of the land, his unique hobby and the unique zoning of the land; 2. Almost all of his neighbours have multiple shipping containers on their land;

1. If the Tribunal is of the opinion that an enforcement order is necessary the order should not set a limit based on a specific number, but rather limit his use to a certain area or portion of land.
2. Having considered the parties submissions, and based on the facts and circumstances of this matter, I consider that the keeping of the following vehicles on the land is ancillary to the use of the land as a dwelling and for agriculture;

1. The keeping of 2 registered vehicles per occupant of the dwelling for their own private use; 2. The keeping of up to 6 vehicles for hobby purposes (including restored 'classic' vehicles, vehicles that are being restored or that are owned for the purpose of restoration, vehicles owned as part of a collection, vehicle parts and bodies, whether registered or unregistered); and

1. The keeping of up to 4 vehicles that are in good working order and which are used with some degree of regularity to undertake agricultural activities on the land.

I have formed a view that this is reasonable, having regard to the following factors:

1. It is an accepted principle that keeping a vehicle for private transport on residential land is ancillary to the use of land as a dwelling (including a commercial vehicle if the vehicle is used by an occupant for commuting between the dwelling and the workplace).[23] The responsible authority submitted that keeping 2 registered vehicles per occupant of the dwelling is acceptable and I consider this to be reasonable, based on the facts and circumstances of this case;
2. To allow for Mr Hycenko to keep vehicles (both registered and unregistered) for his personal hobby as a car enthusiast;

1. To allow vehicles to be kept on the land which are in good working order which will be used with regularity for agricultural activities, bearing in mind Mr Hycenko's submission that he uses a bobcat, a tip truck, tray trucks, a crane truck boom for agricultural purposes. (most of these vehicles are already in a shed); and

1. There are two enclosed, locked sheds, and a garage adjoining the dwelling on the land, in which about 11 vehicles can be accommodated out of view. I have no issue with vehicles and other items used in association with the dwelling and for agricultural purposes which are stored within these structures.

1. Based on the facts and circumstances of this matter, and having regard to the relevant applicable planning controls; the size and layout of the land and the character of surrounding land, I consider that it would be reasonable for a small number of vehicles to be allowed to remain parked out in the open (but within close proximity to the dwelling and the two locked sheds on the land). In the context of the rural location, I would regard this as part of the reasonable use and enjoyment of this land for a Dwelling and Agriculture.
2. I find that the keeping of a reasonable number of caravans, trailers and boats on the land which are actively used from time to time in association with the use of the land for a dwelling and for agricultural purposes (rather than such items being stored on the land in poor condition) is incidental to the use of the land for a Dwelling and for Agriculture.
3. It follows from this that based on the particular facts and circumstances in this case, I have made a finding that the keeping of more than 2 vehicles per occupant of the dwelling, and 10 other vehicles is not incidental to the use of the land for a Dwelling and for Agriculture, and would constitute a separate use of Mr Hycenko's land.

1. The responsible authority submits that the subject land is being used as a Store, which is a separate and distinct use that is not separate and ancillary to any other use.
2. A 'Store' is defined as follows at clause 73.03 of the Scheme:

1. I was taken by the responsible authority to several decisions regarding land use characterisation.[24] The accepted approach to characterisation is to ascertain what is the 'real and substantial purpose' of a land use.[25]
2. I also observe that the explanation at the commencement of clause 73.03 of the Scheme provides as follows:

The table to this clause lists terms which may be used in this planning scheme in relation to the use of land. A term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.

1. In determining the correct characterisation of a use is necessary to consider the 'real and substantial purpose' of the use, and whether it comfortably fits within a land use term at clause 73.03 of the Scheme. In considering the purpose of the use it is necessary to return to the evidence of what is occurring on the Mr Hycenko's land, which (in addition to its use for the purposes of a Dwelling and Agriculture) I have found is the keeping of in the order of 40 vehicles out in the open (with at least 13 of the motor vehicles being stored inside locked shipping containers).
2. In considering whether the use of the land is 'obviously or commonly' included within one or more terms listed in clause 73.03, I find that based on the facts and circumstances of this matter, the evidence and submissions of the responsible authority support a conclusion that the keeping of more than 2 vehicles per occupant of the dwelling, and 10 other vehicles is properly characterised as a Store, and the land is being used for this purpose in addition to its use as a Dwelling and for Agriculture.
3. The use of the land for the purpose of Store is not subservient to the use of the land as a Dwelling or for Agriculture, nor is it incidental to it. Rather, it has grown out of proportion to the residential and agricultural use of the land. The scale of Mr Hycenko's collection and the way it is stored both out in the open and within at least 13 locked shipping containers on various parts of the land indicate that the use of the land as a Store has surpassed its use for the purposes of a Dwelling and Agriculture and has become a separate (and not ancillary) use of the land. Based on the facts and

circumstances in this case, I am satisfied that the land is being used for the separate use of a Store, rather than an innominate use of a hobby involving the keeping of collectable vehicles on the land.

There was no evidence before me that Mr Hycenko has sought to sell or hire any of the vehicles, and it is clear that the purpose in question is the storage of vehicles. For these reasons, I have found that the land is being used as a Store.

1. In the alternative, the responsible authority submits that the land is being used as a Car park or for Shipping container storage, which are defined at clause 73.03 of the Scheme as follows:

Shipping container storage: Land used to store shipping containers. It may include the cleaning, repair, servicing, painting or fumigation of the shipping containers

1. There was no evidence before me that the land has been modified for the parking of cars. The land contains a dwelling, sheds and open paddocks, and does not include any of the usual features that are associated with the parking of cars in a car park, such a large levelled area, asphalt, parking bays, accessways or car park entry and exit systems. Additionally, it is the evidence of the responsible authority's officers that in the order of 15 vehicles stored in open areas on the land are unregistered and cannot be driven anywhere. Based on the facts and circumstances of this case, I am satisfied that the land is not being used for a Car park.
2. There was no evidence before me that the land has been modified for the storage of shipping containers. As described above, the land does not include features one would expect to be associated with the storage of shipping containers, such as a large levelled area, asphalt or concrete and an area to maintain, repair or possibly clean the shipping containers. Additionally, based on the Tribunal's inspection of the land and Mr Hycenko's submissions, the locked shipping containers on the land contain vehicles, and are not empty. Based on the facts and circumstances of this case, I am satisfied that the land is not being used for Shipping container storage.

1. A Store is a section 2 use which requires a planning permit under the SUZ4. I also observe that a Store is subject to the following condition:

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.[26]

The evidence before me is that there is no planning permit to use the land for the purpose of a storing vehicles or shipping containers.

I note that it was not alleged by Mr Hycenko that he has existing use rights to store vehicles and other items on the land, and as far as I am aware, none have been established.

1. In light of my finding that the storage of 2 vehicles per occupant of the dwelling, and 10 other vehicles is ancillary to the use of the subject land as a Dwelling and for Agriculture, I find that the keeping of more than 2 vehicles per occupant of the dwelling, and 10 other vehicles is a separate use of the land as a Store and is a contravention of the Scheme. This is because Store is a 'section 2'use under the SUZ4 requiring a planning permit (subject to the condition that items are stored in a building (not a dwelling) and that they are used in conjunction with the occupation of a resident of a dwelling on the lot).
2. To the extent that the responsible authority submitted that the use of the land also fall within the land use term 'Warehouse' which is prohibited under clause 51.02-2 (Metropolitan Green Wedge Land: Core Planning Provisions), there is no need to resolve this issue because I have found that the land is being used as a Store without a permit, as required under the provisions of the SUZ4.

Is the placement of the shipping containers on the land lawful?

1. The construction of a building or the construction or carrying out of works require a planning permit under the SUZ4, unless the schedule to the zone specifies otherwise. Any requirement in the schedule to the zone must be met.[27]
2. Schedule 4 to the Special Use Zone specifies circumstances in which a permit is not required to construct a building or construct or carry out works, neither of which is relevant to this matter. Accordingly, a planning permit is required for the construction of a building or the construction or carrying out of works.
3. In Watson v Monash CC (includes Summary)(Red Dot),[28] the Tribunal found that a shipping container is a 'structure' for the purposes of the definition 'building' in s 3(1) of the PE Act. In that case, the Tribunal was satisfied that the shipping container constituted 'buildings and works' for which a planning permit was required.[29]
4. Therefore, a 'buildings and works' permit is required for the placing of the shipping containers on the subject land. Based on the evidence before me, I am satisfied that there is no such permit for the placement of the shipping containers on the subject land. I find that the placement of in the order of 13

shipping containers on the subject land without a permit for the construction of the shipping containers is in contravention of the Scheme.

1. At the hearing, Mr Hycenko submitted (amongst other things) that:

1. One of the earth mounds is a garden bed to plant trees, and that no planning permit is required for landscape gardening around his dwelling; and 2. The other earth mound comprises clay which he placed on the land in anticipation of the construction of a dam; and

1. The earthworks have not changed the topography of the land sufficiently to be considered earthworks which require a permit.
2. I find that the placement of clay mounds on the land close to part of the western boundary near Old Cape Schanck Road in anticipation of securing a planning permit for the construction of a dam on the land has changed the existing condition or topography of the land, and that this mound falls within the definition of 'works' at s 3(1) of the PE Act.
3. I am not persuaded that the earth mound along part of the northern boundary of the land is 'gardening' around the dwelling on the land which would be works not requiring a permit under clause 62.02-1 of the Scheme. The term 'garden' is not defined in the Scheme or the PE Act. In Sargentson v Campaspe SC (Red Dot)[30], the Tribunal considered the ordinary meaning of the word 'garden' and concluded that what is ordinarily understood to be a 'garden' generally relates to the provision of green space or areas of soil for the cultivation of, or planting of, vegetation (as well as uncovered outdoor areas that regularly keep company with these spaces).[31] The meaning of the word 'cultivate' was not considered in the Sargentson decision. It is defined as follows (relevantly):

1. to bestow labour upon (land) in raising crops; till; improve by husbandry.

3. to promote or improve the growth of (a plant, etc.) by labour and attention.[32]

1. Whilst weeds and grass have grown over the earth mound in question, I do not observe from the photos that have been tendered that the earth mound has been used for the cultivation of, or to promote or improve the growing of vegetation to produce the effect of a garden around the dwelling on the land. The earth mound in question is located approximately 120 metres away from the dwelling on the land. Based on the particular facts and circumstances of this case, I am not persuaded that this earth mound is

'gardening' on the land which would fall within the works exemption at clause 62.02-1 of the Scheme.

I find that the embankment along part of the northern boundary of the land constitutes 'works' within the meaning set out at s 3(1) of the PE Act, being the formation of the earth mound, which changed the condition or topography of the land which existed prior to the formation of the earth mound.

1. For the reasons previously discussed, a permit is required to carry out works on the land under the provisions of the SUZ4.[33] Based on the evidence before me, I am satisfied that there is no such permit for the carrying out of the works for the earth mounds. I find that the carrying out of works for the earth mounds along part of the western and northern boundaries of the land without a permit is in contravention of the Scheme.

1. Mr English applied for the responsible authority's legal costs incurred in making this application pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). He also seeks reimbursement of the fees paid by the responsible authority for the enforcement order application, and the daily hearing fee, which together have a total of $1700.30.
2. The responsible authority seeks reimbursement of:

1. Its costs in the sum of $15,000 which it submits are approximately 75 per cent of the actual costs incurred by the responsible authority in this matter; or 2. Its costs to be assessed on a standard basis on the County Court Scale; or

1. Costs fixed in an amount determined by the Tribunal.
2. These costs relate to and include the costs of preparing the application to the Tribunal and supporting documents; amending the enforcement order application and supporting documents; attendance at a Tribunal practice day hearing and appearance at the hearing of the application.
3. Mr English submitted that an award of costs is justified for numerous reasons, including the following:

1. The responsible authority is under a statutory obligation to bring proceedings to enforce the Scheme under s 14 of the PE Act; 2. The nature of the enforcement proceedings weigh in favour of an award of costs being made;

The factual circumstances were such that a satisfactory outcome could not be achieved without an order being made. Amongst other things, Mr Hycenko continued to bring shipping containers onto the land after being informed that to do so was in contravention of the Scheme (and after the commencement of the enforcement proceedings) increasing the number from about 4-6 to at least 14;

1. Mr Hycenko conducted this matter in a manner that warrants an order for costs being made against him. In this regard, the hearing of the matter was adjourned twice at the request of Mr Hycenko;
2. Aspects of Mr Hycenko's conduct have been unreasonable, and have caused the responsible authority to incur costs unreasonably (for example the refusal to admit to uncontroversial facts and save the expense of the preparation of evidentiary certificates);
3. The responsible authority's application had strong merit; and
4. Mr Hycenko has offered no reasonable excuse for the breach of the Scheme.

1. Mr Hycenko opposed an award of costs being made. Amongst other things, he submits that he has applied for a planning permit on multiple occasions and continues to follow the process of review. If an award of costs is made, Mr Hycenko seeks an order that the costs be taxed by the Costs Court.
2. I find that the matters raised by the responsible authority support a conclusion that in this case it is fair and appropriate to depart from the usual presumption that each party bear their own costs associated with a proceeding, and that a proportion of the responsible authority's costs should be awarded under s 109(2) of the VCAT Act. In particular, they point to an award of costs being justified on the basis of the conduct of the respondent unnecessarily disadvantaging the responsible authority, and the nature and complexity of the proceeding under s 109(3)(a) and 109(3)(d) of the VCAT Act.
3. Overall, I accept that many of the particular attendances on behalf of the responsible authority in the proceeding were necessary. However, given the nature of the proceeding, the quantity of costs involved, the issues in dispute, and the particular facts and circumstances of this matter, I consider that it is appropriate to order that the costs be assessed by the Costs Court pursuant to s 111(b) of the VCAT Act. Considering all relevant matters, I regard this as a case where the respondent should be required to pay costs on a standard basis for all attendances, disbursements and the like relating to the enforcement order proceedings.
4. With respect to the responsible authority's application to reimburse the fees it paid, the matter is an enforcement application and the responsible authority has a duty to administer the Scheme under s 14 of the PE Act. The application, which was supported by sworn evidence was successful. Having regard to s 115C(2) of the VCAT Act, I consider that the

responsible authority is entitled to the full reimbursement of its application fee, and the hearing fee, an amount of $1700.30.

1. I have allowed the application for an enforcement order. I am satisfied that the use and development of the land is in contravention of the Scheme.
2. Any order I make should be sufficiently clear to be workable. I consider that an appropriate way of construing the use to one that would be regarded as ancillary to the use of the land as a Dwelling and for Agriculture is to require the removal of all vehicles from the land except for 2 vehicles per occupant of the dwelling, and 10 other vehicles. In addition, I will require the vehicles and other items to be located within the existing garage and the two locked sheds on the land (or within close proximity to these structures). For the reasons previously discussed. the order is not intended to require the removal of the registered vehicles which are regularly used by the occupants of the dwelling for their own private use, including for their daily commute to and from work.
3. Although my orders require the removal of all vehicles from the land except for 2 vehicles per occupant of the dwelling, and 10 other vehicles, I consider that Mr Hycenko should be given the opportunity to finalise the application for review to the Tribunal of the responsible authority's decision to refuse to grant a permit for the shipping containers, before the shipping containers are removed from the land. If no permission is obtained for the shipping containers to be constructed on the land, then these will need to be removed. In saying this, I observe that it is not a matter for me to assess whether or not Mr Hycenko will obtain permission to construct 24 shipping containers or a shed on the land. If Mr Hycenko is successful in obtaining such permission, it may be possible to reconsider what number of vehicles are ancillary to the predominant uses of the land.
4. My order will require prioritisation by Mr Hycenko of the vehicles on the land. In my view, such an outcome would be consistent with the:
   1. SUZ4, which has decision guidelines which require consideration of likely effect of a proposal on the natural physical qualities and habitat value of the land; and
   2. the purposes of the Metropolitan Green Wedge Land: Core Planning Provisions at clause 51.02 of the Scheme, which include to protecting metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values.
5. Finally, I observe that planning enforcement orders run with the land, in the sense that section 124 of the PE Act provides that 'any enforcement order or interim enforcement order served on an owner or occupier of land is

binding on every subsequent owner or occupier to the same extent as if the order had been served on that subsequent owner or occupier'.

Use of land as a Store in contravention of clause 37.01-1; unauthorised buildings and works contrary to clause 37.01-4 of the Mornington Peninsula Planning Scheme.

1. By no later than 7 June 2019, Mr Victor Hycenko must remove all motor vehicles, trucks, trailers, boats and other items from the land except for:

1. 2 fully registered vehicles per occupant of the dwelling (for their private use and for commuting between the land and their place of work); and 2. 10 cars, trucks, vans and other motor vehicles;

1. A reasonable number of caravans, trailers and boats which are in good working order and which are actively used from time to time in association with the use of the land for a Dwelling and Agriculture.
2. The motor vehicles, trucks, trailers, boats and other items which may be retained on the land pursuant to order 1 above are to be stored (where possible) inside the garage adjoining the dwelling and inside the two enclosed, lockable sheds on the land. Where the motor vehicles, trucks,

trailers, boats and other items cannot be stored inside these structures, they must be stored close to the dwelling (or the two sheds) and covered in a tarpaulin or car cover (where possible).

1. The requirements of order 1 above may not be varied on an ongoing basis without the written consent of the responsible authority.
2. Except with the authorisation of the Tribunal in proceeding P2467/2018 (or unless there is an order of the Supreme Court to the contrary) Mr Victor Hycenko must remove all shipping containers from the land no later than 60 days after:
   • (a) The date of an order by the Tribunal to affirm the responsible authority's decision to refuse planning permit application P18/0981 for 24 shipping containers.
   • (b) The date of an order by the Supreme Court to disallow or strike out an appeal against the Tribunal's order to affirm the responsible authority's decision, if an appeal on a question of law is made to the Supreme Court from the Tribunal's order regarding the application for review of the responsible authority's decision to refuse planning permit application P18/0981.
3. By no later than 7 June 2019, Mr Victor Hycenko must:
   • (a) Remove the earth mounds located as follows
     • (i) in the north-west corner of the land, adjacent to Old Cape Schanck Road and north of the driveway that leads to the dwelling; and
     • (ii) adjacent to the northern boundary.
4. The applicant must serve a copy of this order on the owner and occupier of the land, and any other person against whom the order is made, pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

[1] The Council has filed statements under section 140 of the Planning and Environment Act 1987 that, in summary prove that at all relevant times between 1 January 2017 and 5 December 2018 the land has been subject to the SUZ4, ESO28 and VPO2 provisions of the Scheme.

[2] As per the letter dated 16 February 2019 from Nicholson Planning and Development Pty Ltd to the Tribunal.

[2] I understand that this scheme allows members of vehicle clubs that are recognised by VicRoads to make limited use of historic vehicles on the road network.

[4] Hycenko v Mornington Peninsula SC [2017] VCAT 1955.

[6] As per the amended enforcement order application filed with the Tribunal on 22 November 2018.

[7] Hycenko v Mornington Peninsula SC [2017] VCAT 1955.

[12] Including Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.

[13] 11 AATR 175.

[17] [2000] VCAT 2161.

[19] [2005] VCAT 367.

[20] [2009] VCAT 704.

[22] Being Shire of Flinders and Dalton 5 AATR 174, Cardinia SC v KJ Rees [2000] VCAT 1659,

Manningham City Council v Hoe [2010] VCAT 1079, Hoe v Manningham City Council [2011] VSC 543 and Banyule CC v Kent [2013] VCAT 2172.

[23] For example, see Boroondara CC v J & J Di Vincenzo (Red Dot) [2005] VCAT 2717.

[24] Being Cascone & Anor v City of Whittlesea (1993) 11 AATR 175 and Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.

[25] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); also applied in Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR, 157, 160-161 (Marks J).

[26] Refer to the Table of uses at clause 1.0 of Schedule 4 to the Special Use Zone.

[28] [2011] VCAT 2176

[29] Ibid at paragraph [11] of Appendix A.

[30] [2018] VCAT 710.

[31] Ibid at paragraphs [53] and [55].

[32] Macquarie Dictionary (online at 8 April 2019) 'cultivate' (definitions 1, 2 and 3).

[33] It appears that the earth mound near the western boundary (north of the driveway) is not affected by ESO28 or VPO38.