Lot 3 on Plan of Subdivision No. 143210 being the land in Certificate of Title Volume 09529 Folio 982 and Lot 3 on Plan of Subdivision No. 143210 being the land in Certificate of Title Volume 10303 Folio 169.

1. This matter is adjourned for administrative mention on the 7 April 2003 on the basis that the Respondents will lodge an application for a permit for the construction of the walls and elevator machine, the subject of the application, with the Responsible Authority not later than the 8 January 2003.

2. The parties have leave to apply for further orders.

3. Costs of this application to-date are reserved.

Ms M Quigley, barrister, appeared on the instructions of the firm of Maddocks, solicitors, for the Responsible Authority. She presented written and oral submissions and called Mr Paul Jason Bonnici, planning enforcement order of the Responsible Authority as a witness.

Mr David Proctor, appeared for the Respondents. He presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

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

Construction of buildings and works without a planning permit required under the Planning Scheme.

The abovenamed Respondents and Wentworth Trial Pty Ltd.

The abovenamed Respondents and Wentworth Trial Pty Ltd.

Rural Zone and subject to an Environmental Significance Overlay under the Mornington Peninsula Planning Scheme.

1. This case concerns some alterations to a poultry shed on a poultry farm that were carried out in 1999. The respondents, together with Wentworth Pty Ltd (a company of which they are directors) occupy and own the land. The enforcement order application has been made against the individual respondents, but not against the company.

2. The poultry farm has been in operation for a number of years. It was suggested that the period of operation exceeds 10 years. There are nine poultry sheds on the land. They are all rectangular in shape, although four of them are long thin rectangles whereas the other five are squarer in shape.

3. Originally they were all of the "curtain" shed variety. This poultry farm is for the production of eggs, not chicken meat. The hens are kept in cages within the sheds. The curtain sheds have open sides and ends to allow ventilation. Large tarpaulin type curtains can be let down when necessary. These curtains are of a bright blue colour. When the curtains are raised air can flow through the sheds from one side to another. The only perimeter barrier, apart from the curtains, is a screen of bird wire to prevent wild birds entering the production area. In these sheds the hens are contained in a single layer of cages.

4. In 1999 modifications were made to one of the long narrow sheds. It is the one nearest to the road from which access is gained to the poultry farm. A new system was instituted in relation to this shed. Instead of one layer of hens, there are now four layers. A wide belt extends under each layer which can be rolled once or twice a week to remove the bird droppings which fall upon it. These are collected at one end of the shed from where they are removed by means of a corkscrew "elevator" for loading into a truck. This manure is then disposed of elsewhere.

5. So far as the curtain sheds are concerned, droppings accumulate under the single layer of hens for longer periods of up to six months and are then removed by a machine which scoops out the material for loading by a front-end loader into a truck for subsequent removal.

6. The changes from one layer of cages to four with mechanical removal of droppings can be seen as internal alterations and an intensification of the use of the shed, save for those aspects of the removal machinery located outside the shed. The curtain sheds do not have this facility, but the modified shed has its elevator machine located substantially outside the shed building. It lifts the wastes material to a level above head height for dumping into a truck. There is a housing cover of corrugated iron shaped like half a tank on its side against the wall of the shed. It protects some parts of this machinery.

7. No doubt the increased population of hens within the shed demands more sophisticated ventilation and cooling arrangements. The modified shed has had the bird wire and curtains removed and now has solid enclosing walls of metal panels on the sides and end. This allows for a system of mechanical ventilation and cooling. The long wall down one side rises, in solid form, only to a height of about 0.6 or 0.7 metres above the ground. Above that, for a height of about 1.2m, and right along the length of the shed, there is a wall constructed of cooling pads which is of a honeycomb type construction down which water can be trickled, and through which air can be drawn. The draft is created by nine extraction fans set at intervals down the long wall on the opposite side of the shed. These fans can suck air from within the shed and, in fact, draw air into the shed through the evaporative pads. There are also other openings at the top of the walls which can let in air. These devices can be closed.

8. Apart from the extraction fans and the closeable ventilation gaps at the top of the opposite wall, it is a solid wall with a solid appearance.

9. The Responsible Authority has taken the view that the walls that have been constructed, and the external elevator machinery and housing (which are fixed in position) represent buildings or works for which planning permission is required.

10. The land is in a Rural Zone. It is common ground that the use of the land is for intensive animal husbandry, namely the poultry farm. That use of land comes within Section 2 of the Table of Uses relating to the Rural Zone. As such a planning permit would be required to commence that use at this stage.

11. In fact the use has been going on for some years, and it is common ground between the parties that it should be accepted that there are existing use rights for this Section 2 use.

12. However, Clause 35.01-3 of the planning scheme (which is within the zone controls) provides that a permit is required to construct or carry out a building or works associated with a use in Section 2 of the Table of Uses. On this basis planning permission is required for any such buildings or works, unless otherwise exempted under the planning scheme.

13. The case for the Responsible Authority is that the construction of the walls, and the installation of the elevator machine with its housing cover, are buildings and works within the meaning of those expressions in the planning scheme.

14. The applicable definitions of "building" and "works" are found in Section 3 of the PE Act. This is by virtue of Clause 71 of the planning scheme. That clause provides that terms will have their ordinary meanings unless defined in the planning scheme, the PE Act or the Interpretation of Legislation Act 1984. A definition in the planning scheme would take precedence over the PE Act, but these terms are not defined therein.

15. The definitions are inclusive ones. They specify things that are included in the concept, but do not exclude things that would otherwise be within the ordinary meaning of the words. The respective definitions of buildings and works are as follows:-

(a) a structural part of a building or structure; and

(b) fences, walls, outbuildings, service installations and other appurtenances of a building;

(c) a boat or a pontoon which is permanently moored or fixed to the land.

Works includes any change to the natural or existing condition or topography of land including the removal, destruction, lopping of trees and the removal of vegetation or topsoil.

16. A building, as defined, includes part of a building. In my opinion, the addition of solid walls, with or without evaporative pads, extractor fans and air inlets, are parts of a building and thus "building" within the meaning of the planning scheme. The construction of such walls, whether or not in place of bird wire netting and curtains, in my view constitutes the construction of a building for the relevant purpose. Furthermore, the manure elevating machine with its housing, is likewise a building because it is clearly a structure, and if it is not, then it is works for the purposes of the provision in Clause 35.

17. On this basis planning permission is required for those items unless exempted. The suggested exemptions is that in Clause 62.02, and more specifically the 16th and 17th items in that clause which provide:-

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to:

* The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased.

* Repairs and routine maintenance to an existing building or works.

18. Mr Proctor argued that both these exemptions are applicable and that, pursuant to them, no planning permission is required for the walls or elevator machine. I am afraid I am against him in relation to both points. The construction of solid external walls to a building cannot, in my view, be regarded as "internal rearrangement of a building", whether or not the gross floor area of the building is increased. The introduction of four levels of hen cages, with mechanical manure removal belts might be regarded as internal rearrangement of works, but, of course, the size of the works is increased.

19. The Responsible Authority has not sought an enforcement order, at this stage, on the basis that planning permission was required for the four levels of cages, although that may be relevant to the existing use provisions referred to hereafter. It is sufficient for the moment to decide that the internal rearrangement exemption is not applicable to the buildings and works constituted by the walls and elevator machine.

20. In my view the same is true in relation to the other exceptions relied upon, namely that in relation to repairs and routine maintenance of an existing building or works. In my view repair means to mend what is broken and, generally speaking maintenance means to do things in relation to a building or machine to keep it in running order and to prevent it from breaking. In both cases you finish up with the original items restored to, or kept, in its original working order. You repair a car when you replace a broken fan belt. You maintain it when you put in a new air filter, or a replace worn fan belt before it breaks. However, you do not repair a 1995 Holden Commodore sedan by replacing it with the purchase of a brand new 2002 motorcar. Even less is this so if you replace the old with some new, updated and differently designed device that achieves its purpose in a different way. It would be a repair to the old curtains to mend tears or holes in them, and it might be routine maintenance to lubricate the pulleys or replace or the cords used for raising or lowering the curtains. It is not repairing them to replace them with solid walls. That is to provide a new structure, in fact a new part of the building and therefore, in terms of the planning scheme, a new building.

21. For these reasons I conclude that the Responsible Authority was justified in its view that planning permission was required under Clause 35.02-3 for the construction of the walls and the installation of the elevator machine.

22. Mr Proctor complains, on behalf of his client, that no letter or written warning to the effect was given prior to the institution of the enforcement proceedings. An oral warning was given in February 2002, but, in any case, there is no legal requirement for such a warning. If the Respondents had been willing to respond to such a warning by applying for a permit, they could have done so upon being served with the enforcement application. They did not do that, but rather took the view that no permit was required and that they would put the Responsible Authority to proving its case in this respect.

23. It is beside the point as to whether an oral indication was given in 1999 by an officer of the Responsible Authority that no planning permit was required for the construction of these buildings and works. That advice may or may not have been given, but my decision is that, if it was, it was mistaken advice. The Responsible Authority, in carrying out its duty pursuant to s 114 PE Act to carry out and enforce the planning scheme, has been justified in taking proceedings. It cannot be bound, as a public authority administering the planning laws in the public interest, by a representation by its officer that no permit is required if, in fact, a permit is required.

24. I mentioned earlier that it was common ground between the parties that the Respondents enjoyed existing use rights in relation to the use of the land as a poultry farm for the production of eggs. I also noted that this use was a Section 2 use in the table of uses in Clause 35.01-1 and that, as such, a permit would be required to commence the use at this stage.

25. Pursuant to Clause 63.05 such an existing use may continue as long as the provisos to that clause are met and continued to be met. Of course, if they are not met, that does not necessarily mean that no such poultry farm can be carried out on the land. However, that circumstance would mean that a new permit for the use of the land as a poultry farm would be required pursuant to Clause 35.01. Such a permit would be for the use of the land and could be subject to conditions.

26. At present the existing use right is relied upon. I am not asked, for present purposes, to determine whether the provisos are being and have been complied with or whether the existing use right has been lost because of non-compliance with the provisos.

27. The first proviso is that the existing use right may continue provided:-

No building or works are constructed or carried out without a permit. A permit must not be granted unless the buildings or works complies with any other building or works requirement in this scheme.

28. Here is a second requirement for a permit for the buildings and works. It is second because it is an addition to that in Clause 35.01-3. As long as the existing use right was to be relied upon a permit was required for buildings or works.

29. The second proviso is that the existing use may continue provided:-

Any condition or restriction to which the land was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

30. The implied restriction on the extent of activities may well be a constraint on intensifying the activities by the increase from one level to four levels of cages. This may be sufficient to kill, or to have killed, the existing use right. However, having regard to the fact that the use is a Section 2 use for the purposes of Clause 35.01-1, it does not preclude the possibility of making a new application for permission to use the land for intensive animal husbandry namely poultry farm.

31. A similar situation applies to the third proviso. It allows that the existing use may continue provided:-

The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose or the use preserved by the existing use right.

32. The new methods, including the increased intensity, would fall foul of this proviso if the amenity of the area is damaged or further damaged by the changes. However, as already observed, that does not preclude a new application for the Section 2 use as intensive animal husbandry namely poultry farm.

33. For the present case however, the issue was whether planning permission is required under Clause 35.01-3 and Clause 63.05 for the buildings and works constituted by the walls and elevator machine. For the reasons I have given I have concluded that permission would be required.

34. It was common ground that the appropriate course in the event of such a finding, was that the Respondents should be given an opportunity to seek the necessary permission. This has been achieved by adjourning this enforcement application for administrative mention on the 4 April 2003. That is subject to a satisfactory permit application being lodged with the Responsible Authority not later than the 8 January 2003. It is also subject to the parties having leave to apply for further orders if necessary. These provisions are to ensure that the opportunity to seek permission is taken up promptly and pursued with diligence. If the foreshadowed permit application is not lodged by the 8 January 2003, and if, having been lodged, it is not pursued with diligence, the Responsible Authority will have the opportunity of applying for this matter to be relisted.

35. The administrative mention on the 4 April 2003 does not mean that the parties are required to appear on that date. On the contrary, they are required to advise the Tribunal in writing prior to that date as to the then situation in relation to this case and also in relation to the foreshadowed permit application. It may be that the permit application will have been resolved by that stage. It is also possible that there may be a review of whatever the decision the Responsible Authority has made. However, whatever the situation, the parties are to provide information so that a decision as to the future conduct of this case can be made at that stage. Costs to date are reserved.