Design and Development Overlay - Schedule 7 - Low Density- Environmental (DDO7)

Vegetation Protection Overlay- Schedule 1-Township vegetation (VPO1)

Clause 32.03-4 of the LDRZ - a permit is required to construct or carry out a building or works associated with a use in section 2 of clause 32.03-1.

Clause 43.02-2 of DDO7 - a permit is required to construct a building or construct or carry out works if they do not fall within the exemptions at clause 2.0 of the schedule to DDO7.

The subject land is located on the west side of Stuart Road, with a frontage to Stuart Road of 100.55m and a depth of approximately 211m and an area of 2.121 hectares. The western boundary of the subject land adjoins the Tyabb Airfield.

1. This is an application by the Mornington Peninsula Shire Council alleging contravention of clause 32.03-4 of the Low Density Residential Zone (LDRZ) and clause 43.02-2 of the Design and Development Overlay-Schedule 7- Low Density-Environmental (DDO7) in the Mornington Peninsula Planning Scheme and seeking an enforcement order against the respondent Mr Kenneth Ingersoll, the owner of the subject land at 62 Stuart Road, Tyabb. The order sought is as follows:
   • The owner of the subject land must within 90 days of the date of this order remove the aircraft hangar from the subject land and demolish and remove the concrete foundation from the subject land to the satisfaction of the responsible authority.

1. The subject land is in the LDRZ, and is affected by several overlays, including relevantly, DDO7. In the LDRZ, a permit is required to use the subject land for a 'store', subject to the condition that it 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.[2] If the condition cannot be met, the use is prohibited.[3] A permit is also required for a use not specified in section 1 or section 3 of clause 32.03-1.[4]
2. A planning permit is required to construct or carry out a building or works associated with a section 2 use in the LDRZ,[5] and to construct and carry out works under DDO7 if they do not fall within the exemptions at clause 2.0 of the schedule to DDO7.[6]
3. It was not contested that the relevant permit requirements in the scheme regarding the use and development of the subject land to store aircraft are the same as the permit requirements to use and develop the subject land for that purpose between May and August 2009, when the alleged contravention occurred.
4. At the beginning of the hearing, the Tribunal was provided with a draft statement of facts by Mr Bird. Mr Proctor identified parts of the statement of facts with which Mr Ingersoll disagreed. In some instances, the disagreement concerned previous orders made by the Tribunal. We accept that the orders were made on the basis of the Tribunal's records, and we do not consider it necessary to address those areas of disagreement further. The key area of disagreement between the parties concerns whether by the construction of the shed in the south western corner of the subject land, it was developed in contravention of the Scheme, noting that in 2011 the Tribunal made enforcement orders requiring the use of the subject land as an aircraft hangar to store aircraft to cease, and these orders are still in effect.

1. Council relied on the evidence of Paul Andrew Lewis, Manager Planning Compliance, contained in his affidavit sworn on 28 January 2017. Mr Lewis did not give evidence at the hearing. It was Mr Lewis' evidence (amongst other things that:
   1. the subject land is developed with a dwelling near the front boundary, and there are two sheds near the dwelling (approximately 70m2 and 110m2 respectively); and
   2. planning permit P01/1439 was issued on 6 August 2001 for the development of a shed (Shed 1) located in the north western area of the subject land approximately 9.5m wide, 35 m long and 3.1m in height (an area of 332.5m2); and
   3. an application for a planning permit (P02/2997) for the use and development of the subject land for the purpose of a store to be located to the east of Shed 1 was refused by council on 23 January 2004 on various grounds;[7] and
   4. on 24 April 2009, a building permit was issued by Nepean Building Permits authorising the construction of a shed (Shed 2) measuring 9.5 metres wide by 39 metres in length and 3.1m in height (an area of 370.5m2). [8] A Certificate of Final Inspection was issued for Shed 2 on 9 September 2009.
2. Council relied on the evidence of Luke English, a solicitor who was previously employed by council as the Team Leader of Planning Compliance. Amongst other things, it was Mr English's sworn evidence that in his role as Team Leader of Planning Compliance, he visited the subject land on 26 March 2010 and he observed six aircraft in Shed 1 and five aircraft in Shed 2. Mr English's evidence was that his searches revealed that the 11 aircraft he observed were registered in the names of eleven different persons, other than Mr Ingersoll, who did not reside at the subject land at the time.[9]
3. Mr English's evidence was supported by photographs taken on 26 March 2010, showing the aircraft in Shed 1 and Shed 2. Mr English gave evidence that he formed the view that the land was being used as a 'store', which is subject to a condition that it be in a building (not a dwelling) and relate to the occupation of a resident of the subject land. Mr English's evidence was that he took the view that there was no nexus between the occupants of the subject land and Mr Ingersoll and the use of the land for a store was prohibited.
4. It was Mr Ingersoll's sworn evidence that during 2009, he lived in the dwelling on the subject land for part of the time, and at 21 Ingersoll Road, Baxter for part of the time (when the building permit application for Shed 2 was made) and this explains why his address for service on the building permit application was 21 Ingersoll Road, Baxter (and not 62 Stuart Road, Tyabb). Mr Ingersoll's evidence was that he had moved out of the dwelling on the subject land to live full time at 21 Ingersoll Road, Baxter by Christmas 2009, and since then the subject land has sometimes been leased to tenants. When the dwelling on the subject land was untenanted, Mr Ingersoll's evidence was that he would stay in it on occasion, after attending events at the nearby Aero Club.

Previous enforcement orders regarding the subject land

1. The Council applied for an enforcement order against Mr Ingersoll in 2010 alleging that by the construction of Shed 2, the subject land had been developed unlawfully and was being used unlawfully.
2. On 20 April 2011 the Tribunal found that there had been a contravention of the scheme by the use of the subject land as a store contrary to clause 32.02-4 of the scheme and ordered the respondent (Mr Ingersoll) cease using the subject land for the purpose of an aircraft hangar and remove the 11 aircraft referred to in the orders from Shed 1 and Shed 2 (2011 Enforcement Orders).
3. To the extent that the enforcement order application alleged unlawful development of the subject land, the application was adjourned pending the outcome of a proposal for a site specific amendment to the planning scheme to allow the subject land to be used for the storage of aircraft. In the remarks accompanying the 2011 Enforcement Orders, the Tribunal stated that the 'question of the survival of the sheds can await the outcome of the planning scheme amendment process'.
4. On 26 October 2012, the enforcement order application was struck out by the Tribunal after the parties failed to respond after the matter was adjourned to an administrative mention several times. The Tribunal confirmed that the striking out of the remaining aspect of the proceedings regarding the construction of buildings did not affect the 2011 Enforcement Orders requiring the cessation of the use of the subject land for an aircraft hangar and the removal of 11 aircraft from the subject land. As a result, both Shed 1 and Shed 2 remained on the subject land. It is Shed 2 which the council seeks to have removed in enforcement order application P185/2017.
5. Mr Proctor informed the Tribunal that council officers inspected the subject land on 26 July 2016 and there were no aircraft present in Shed 2. We understand that Shed 2 has not been used to store aircraft since the 2011 Enforcement Orders were made, and that there is no allegation by any of the parties in this application that the 2011 Enforcement Orders have not been complied with.

1. In 2014, council considered a request to amend the scheme by rezoning the subject land to the Special Use Zone 3 (Airfield Development) and to apply a Development Plan Overlay (Amendment Request R1010). If approved, Amendment Request R1010 could have enabled a permit application to be made to use and develop the subject land for a store for aircraft. [10] The council resolved on 24 February 2014 to defer Amendment Request R1010 pending the preparation and adoption of the Tyabb Airfield Precinct Plan.
2. At the request of Mr Ingersoll, the council agreed to prepare planning scheme Amendment C193 (Amendment C193) to amend the Scheme by introducing a site specific incorporated document to permit the use of Shed 2 for the purpose of private storage of aircraft by the owner of the subject land.[11] On 19 September 2016, council resolved to abandon Amendment C193 after it was exhibited, noting that Mr Ingersoll had withdrawn his request for Amendment C193.

1. Council has considered the precinct planning process for Tyabb Airfield for a number of years, and a precinct planning process for the Tyabb Airfield Precinct recently commenced with the preparation of the Tyabb Airfield Precinct Plan (the Precinct Plan). On 17 July 2017, council resolved to place the Precinct Plan on public exhibition as part of the planning scheme amendment process under Part 3 of the Planning and Environment Act 1987 (the Act). The Precinct Plan contains recommendations regarding areas surrounding the Tyabb Airfield, including the potential for a single private hangar on the western part of Stuart Road properties which directly adjoin the Tyabb Airfield, including the subject land.

1. Submissions were made on behalf of the council and Mr Davis[12] that because a planning permit was not obtained to use and develop the subject land for a store (or a section 2 inominate use) before Shed 2 was constructed, Shed 2 should be removed on the basis that the development of Shed 2 contravened the Scheme.
2. Submissions were also made on behalf of council that we should take into consideration the bond of good behaviour imposed on Mr Ingersoll by a Magistrate on 28 April 2011 (a condition of which was that $5000 be paid to the Council) as a result of Mr Ingersoll pleading guilty to a charge under s 126 of the Act with respect to the use and development of the subject land in contravention of the Scheme. Whilst we have considered this matter, it has not been determinative in reaching our decision.
3. On behalf of the respondent it was submitted that the use and development of the subject land for Shed 2 did not require a permit because it was ancillary to the use of the subject land for a dwelling. On this basis it was submitted that Shed 2 was lawfully constructed, and there are no grounds to support its removal, particularly given that the building permit issued for Shed 2 was accompanied by notes saying that a planning permit was not required.
4. It was submitted on behalf of Mr Ingersoll that there are provisions in the Scheme under which Shed 2 could be lawfully used, and that the attempt to re-litigate this matter many years after the 2011 Enforcement Orders requiring the aircraft storage use to cease should not be supported. It was also submitted that it is premature to seek removal of Shed 2 because the Amendment Request R1010 remains live today[13] and that proposed Amendment C193 to the Scheme would have regularised the use of Shed 2, but it was abandoned in September 2016, after it had been exhibited.
5. On 17 July 2017, the Precinct Plan was authorised by council to be placed on public exhibition, and the submissions on behalf of the respondent were that the Precinct Plan supports the use and development of hangars on properties abutting the airfield on the west side of Stuart Road.
6. It was submitted that the current use of Shed 1 to store three aircraft (together with vehicles and a boat) all owned by Mr Ingersoll is lawful as a permit exists for Shed 1 and the use of the subject land complies with the 2011 Enforcement Order. The Tribunal was informed by Mr Proctor that no aircraft are presently stored in Shed 2.

Should the discretion be exercised to issue an enforcement order?

1. Having considered all submissions and evidence presented, we have decided not to make the enforcement order sought by the council requiring the removal of Shed 2, for the reasons discussed below.
2. The subject land is within a LDRZ and a dwelling is a section 1 use, for which no permit is required (provided the conditions at clause 32.03-1 are met).[14]
3. Under clause 64 of the scheme, if land is used for more than one use, and one is not ancillary to the other, each use must comply with the scheme. A use may be ancillary to another if it is a necessary adjunct to another use, or if it is subsidiary to that other use.[15]
4. It is established that generally, an activity that is ancillary to an 'as of right' or permitted use of land is not considered to be a separate use that may require a permit. Clause 64 of the scheme amplifies the concept that it is the real and substantial purpose of a land use which determines its character for planning purposes, and makes it 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.[16]
5. The question here is whether the use of the subject land for a storage shed (Shed 2) can be accepted as an activity that is ancillary to the residential use of the subject land, or is the use of Shed 2 so intense and of such a scale that it constitutes a separate use.
6. There is no single test for determining whether an activity is ancillary.[17] Whether a use is ancillary is a matter of fact and degree to be decided in the particular circumstances of each case.[18] In Alphonso v Casey CC[19] the Tribunal in considering whether prayer meetings in a dwelling were ancillary to the use as a dwelling, or a separate use as a place of worship, set out a number of concepts in relation to ancillary activities, as follows:
   1. Ancillary activities are correctly regarded as part of the use of the land;[20] and
   2. It is not particularly relevant whether the ancillary activities are quite different from the primary use;[21] and
   3. Ancillary activities must be an adjunct, but not a necessary adjunct to the primary activities. They need not be essential;[22] and
   4. The planning merits of activities (whether a permit would be granted for them if they were a separate use) are not relevant in determining whether the activities are a separate use or not;[23] and
   5. A preference or desire for the responsible authority to control or restrict activities is not relevant to the assessment.[24]
7. In previous Tribunal cases regarding the use and development of sheds on residential allotments, the Tribunal has taken the following approach:
   1. The use of a 220m2 shed to store a racing boat, two cars, motorbikes and a trailer, possibly use part of it as a personal gymnasium and build a kit airplane as a private hobby was found to be ancillary to the use of land in a Residential 1 Zone (as it then was) for which no permit was required in May v Melton SC[25]; and
   2. The use of a shed constructed for the purpose of storage in connection with the use of land as a dwelling was found to be ancillary to the dwelling on the land and did not require a permit in Danieli v Campaspe SC & Ors.[26]
8. We are satisfied that a building permit was issued for the construction of Shed 2, which was constructed on the subject land between May and August 2009. We are also satisfied that:
   1. between May 2009 and late December 2009 Mr Ingersoll lived at the dwelling on the subject land for part of the time (as well as living part time at 21 Ingersoll Road, Baxter); and
   2. the subject land has been used as a residence, and when it has been occupied, it has been occupied by Mr Ingersoll or tenants who have lived in the dwelling on the subject land.
9. Having considered the submissions and evidence, we find that the use of the subject land to store items (or to carry out other activities) in Shed 2 associated with the primary residential use of the land by a resident of the subject land is an ancillary use of the subject land for a dwelling, for which no planning permission is required. Key factors influencing our finding are;
   1. It is reasonable to use the subject land to store items (or to carry out other activities) in Shed 2 which are associated with the primary residential use of the land. This may include storing a vehicle, a boat or other equipment or carrying out activities associated with a resident of the subject land;
   2. The use of the subject land to store a vehicle, boat or other equipment, (or to carry out other activities) associated with the primary residential use of the land by a resident of the subject land in Shed 2 should ordinarily involve an acceptable level of activity (in terms of its regularity and intensity), given the size of the subject land is 2.11 hectares, and its context adjoining the Tyabb Airfield; and
   3. The use of the subject land to store a vehicle, boat or other equipment, or to carry out other activities in Shed 2 (which is 370.5m2) which are associated with the primary residential use of the land is in proportion to what could reasonably be accepted as an activity ancillary to the ordinary use of a dwelling on land of this size (2.11 hectares).
10. Shed 2 is not presently being used to store aircraft, and our finding is that the subject land can be used to store items (or to carry out other activities) in Shed 2 which are associated with the primary residential use of the land. In the event that Mr Ingersoll wishes to use Shed 2 in the future to store aircraft, we do not consider that this would be an ancillary use of the land in association with the primary residential use of the land. A planning permit will be required to store aircraft in Shed 2, unless the storage of aircraft is in association with the primary residential use of the land, by a resident of the dwelling on the land. It is a matter for Mr Ingersoll as to whether he wishes to apply for a planning permit to use the land to store aircraft. If Mr Ingersoll does apply for a permit to use the land to store aircraft, he must meet the condition that it is used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the land, and this may be a hurdle that Mr Ingersoll cannot overcome because he does not live at the subject land.
11. With respect to the requests for planning scheme amendments regarding the subject land, we note that after the 2011 Enforcement Orders were made, council considered Amendment Request R1010, and prepared Amendment C193 to the Scheme. Council resolved on 24 February 2014 to defer Amendment Request R1010 pending the preparation and adoption of the Tyabb Airfield Precinct Plan. If Amendment C193 had proceeded and had been approved in the form in which it was exhibited, it would have permitted the use of Shed 2 for the storage of aircraft.[27] Amendment C193 was abandoned by council in 2016 after public exhibition.
12. It was acknowledged by Mr English that there were delays caused by council in dealing with Amendment Request R1010 and proposed Amendment C193. Council was in regular contact with Mr Ingersoll regarding council's views about the requirement for the development of Shed 2 to be brought into compliance with the scheme, and with respect to the proposed scheme amendment.
13. Whilst the Precinct Plan is on public exhibition at the time of writing this decision, it is not a 'seriously entertained planning proposal', because it has not yet reached an advanced stage of the planning process.[28] At this stage, it would not be given significant weight in relation to a permit application concerning the subject land. In any event, we note that the determination of the enforcement order application made by council does not turn on questions of planning policy, and we have no discretion as to planning merits based on policy in this enforcement order application.
14. In this regard, the Tribunal observes that it is a matter for Mr Ingersoll whether he wishes to pursue a planning scheme amendment to permit the storage of aircraft on the subject land himself, or if he wishes to wait for the planning scheme amendment process regarding the Precinct Plan to run its course. Given our findings and comments in this matter, it is not necessary for us to address the remaining submissions made on behalf of Mr Ingersoll.
15. On the basis of the facts before us, we find that the use of the subject land to store items (or to carry out other activities) in Shed 2 associated with the primary residential use of the land is ancillary to the use of the subject land for a dwelling and does not require a planning permit. On this basis clause 32.03-4 of the LDRZ and clause 43.02-3 of the DDO7 of the scheme have not been contravened, and we decline to make the enforcement order sought by council.

[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.

[2] Refer to clause 32.03-1 of the scheme.

[3] Refer to clause 31.02 of the scheme.

[4] Refer to clause 32.03-1 of the scheme.

[5] Refer to clause 32.03-4 of the scheme.

[6] Refer to clause 43.02-2 of the scheme.

[7] It was Mr English's sworn evidence that the Tribunal granted leave for Mr Ingersoll to withdraw the application to review (made under s 77 of the Planning and Environment Act 1987) of the Council's decision to refuse the permit application.

[8] Building permit No BS -15109/200928810/0.

[9] Noting that it was Mr English's sworn evidence that neither of the two aircraft he observed which were registered in Mr Ingersoll's name were present in Shed 1 or Shed 2 on 26 March 2010.

[10] Amendment Request R1010 also included the adjoining land at 74 Stuart Road, Tyabb.

[11] Pursuant to clause 52.03 of the Scheme - Specific Sites and Exclusions.

[12] Mr Davis was granted leave under s 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 to make submissions at the hearing, but was not joined as a party to the proceeding.

[13] Council deferred Amendment Request R1010 in February 2014 pending the preparation of the Precinct Plan.

[14] If the conditions are not met, a permit is required to use the land as a dwelling under clause 31.01 of the scheme.

[15] Hoe v Manningham City Council [2011] VSC 543, [16]

[17] Northcote Wholesalers Pty Ltd v Northcote CC (1994) 84 LGERA 54 (Teague J), 67.

[18] Lizzio v Ryde (1983) 155 CLR 211.

[19] [2006] VCAT 595

[20] Alphonso v Casey CC [2006] VCAT 595, [17].

[25] [2006] VCAT 2529, [25].

[27] Without having to meet the condition that it 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

[28] The concept of a 'seriously entertained planning proposal' arises in relation to planning proposals where there is a proposed amendment to the planning scheme in progress, but which has not been finalised which would or may have an effect on the proposal see Lyndale & Black Pty Ltd & I O Black v Melbourne Metropolitan Board of Works (1983) 1 PABR 207 in this regard.