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[2003] VCAT 1844
plaintiff. The Respondents were ordered to cease and not commence or recommence use of the land as a store or for industry unless valid planning permission was in force. They were also ordered to remove all...
The Tribunal found that the Respondents had stored large numbers of tyres on the Hastings land for years without the required planning permission. It treated the tyres as goods stored on the land, and noted that machinery and materials could also indicate industrial use. The Tribunal also found an adverse effect on neighbourhood amenity from the appearance of materials, with residential land nearby. It ordered the unauthorised uses to stop and the tyres and other listed items to be removed within 90 days after service. The Respondents also had to pay the Council's costs. The Tribunal did not decide whether the Council could itself arrange works through agents under s.123.
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Mornington Peninsula Shire Council applied to the Victorian Civil and Administrative Tribunal for an enforcement order under s.114 of the Planning and Environment Act 1987. The application concerned 9 Bray Street, Hastings, which was in an Industrial 3 Zone. The Council alleged that the Respondents were using the land as a store without planning permission and that the appearance of building works and materials detrimentally affected neighbourhood amenity.
2 cited instruments linked from this judgment.
The Respondents were Hartmut Binting and Environmental Tyre Recycling Pty Ltd. Norman Victor Mills owned the land, but the Tribunal expressly recorded that he was not a Respondent against whom an order was sought. Mr Mills appeared and explained that he had acquired the property at a mortgagee auction after it had previously been owned by Mr Binting. Some machinery belonging to Mr Binting had remained on the land during Mr Mills's ownership ([12]).
The Tribunal described several thousand used tyres stacked in the open air, tyre-shredding machinery, other machinery and vehicles on the land. Correspondence indicated that the company provided a service to people wishing to dispose of used tyres, and that there was an intention to shred tyres to manufacture products or prepare them for landfill disposal. The tyres had been stored on the land for several years ([13]). The enforcement officer's evidence concerned inspections and conversations with Mr Binting, and photographs taken from outside the land ([14]).
The hearing had earlier been adjourned by consent. Before the re-fixed hearing on 28 November 2003, Mr Binting sent a letter stating that medical and surgical problems prevented him attending, with a medical certificate and hospital discharge information ([1]–[3]). The Tribunal considered the material, including its difficult-to-read entries and its statement that Mr Binting was unfit for work or study ([4]–[9]). It concluded that the material did not show that he could not seek an adjournment or arrange representation, and that the stated conditions were permanent and likely to persist. No written adjournment application had been received, and no one appeared to seek one. The hearing therefore proceeded ([10]–[11]).
The Tribunal ordered the Respondents to cease and not commence or recommence use of the land as a store or for industry unless valid planning permission was in force. It also ordered removal of the tyres, old vehicles, machinery and building materials within 90 days of service of the order, with those items not to be returned. The Respondents were ordered to pay the Council's costs, by agreement or, if not agreed, as taxed on County Court Scale D.
The Tribunal's reasoning started with the zoning and the relevant planning scheme definitions. It stated that in the Industrial 3 Zone a permit was required to use the land for industry and for use as a warehouse. It treated a store as a variety of warehouse and concluded a permit was required for the store use. On the evidence, it found no permit for use as a store, warehouse or industry. That meant there was a continuing contravention ([15]).
The evidence about the tyres supported the store finding. The Tribunal described tyres as goods and stated that a store, under the scheme, is land used to store goods, machinery or vehicles ([13]). It also noted that the land could be used for industry insofar as tyres and machinery were present for processing. Its operative order covered both store use and industry, subject to valid planning permission.
The Tribunal rejected the Respondent's reliance on dictionary meanings for “store” and “warehouse”. Its reason was that the scheme defined those expressions, so the scheme definitions had to prevail ([19]). This is important to the method of interpretation in the decision: the land use was characterised by applying the planning scheme's own terminology, rather than selecting a general-language meaning.
The Tribunal also made an amenity finding. It accepted that materials on the land detrimentally affected the neighbourhood's amenity, noting residential land in close proximity ([19]). The order's practical reach was broader than tyres alone: it required removal of old vehicles, machinery and building materials as well. The decision links that relief to the evidence about the materials on the land and the unauthorised uses.
The Tribunal took account of the history. It said the Council had been trying to secure compliance since at least early 2002 and found the Respondents well aware of the contravention ([15]–[16]). It considered that the situation and history warranted an enforcement order ([17]). The 90-day period reflected the large number of tyres and the need for time to remove them and potentially find another location ([20]). The reasons do not quantify the tyres or set out a detailed removal plan.
Costs were separately addressed. The Tribunal considered it appropriate that the Respondents bear the Council's costs rather than ratepayers bear the expense of enforcement proceedings. It referred to the Respondents' lack of an arguable case and failure to comply with reasonable advice and requests, and to the Council's enforcement obligation under s.14 of the Planning and Environment Act 1987 ([23]). It then expressly recognised that Cima v City of Sunshine [1989] 3 AATR 313 pre-dated the current s.109 of the VCAT Act, and used that earlier decision as guidance rather than as a substitute for applying s.109 ([24]).
This judgment does not set out a comprehensive account of the law before the proceeding or announce a new general test for planning enforcement. It applies the provisions and planning scheme requirements as described in the reasons to the evidence before the Tribunal.
Before the order, the Tribunal found that the land was in an Industrial 3 Zone, that use as a store required a permit, and that no permit existed for use as a store, warehouse or industry ([15]). It also found that the tyres and other materials remained on the land, and that the Council had been seeking to secure compliance ([13]–[16]).
After the order, the Respondents were required to cease the specified uses unless valid planning permission was in force, and to remove the identified materials within 90 days after service. The order also provided that those items were not to be returned. The costs obligation was to be agreed or determined by taxation on County Court Scale D.
The decision's interpretation point is specific but clear: where the planning scheme defines a term, the scheme definition governs its use in classifying the activity. The judgment does not reproduce the full definitions of “store” or “warehouse”, so the reasoning here should not be treated as supplying their complete wording or all possible applications.
The Tribunal also left open an issue about s.123 of the Planning and Environment Act 1987. The Council had referred to the possibility of undertaking works to secure compliance, including whether agents could act without Tribunal consent. The Tribunal expressly did not decide that question and gave no consent at that stage ([21]). Thus the judgment's orders place the immediate compliance obligation on the Respondents; it does not resolve the mechanics of any later remedial action by the Authority.
At [13], the Tribunal said: “A store, in terms of the planning scheme, is land used to store goods, machinery or vehicles. The tyres are goods.” In plain English, the Tribunal treated the tyres as items being stored, so their presence could establish a store use under the scheme. It also considered the processing equipment relevant to possible industrial use.
At [15], it found that no permit existed for use as a store, warehouse or industry and described the contravention as continuing. In plain English, the use had not become authorised merely because it had been happening for some time or because the Respondent asserted that other permits had existed.
At [19], the Tribunal said: “Because they are defined in the planning scheme, it is the planning scheme definitions that must prevail.” This explains why the Tribunal did not accept the Respondent's dictionary-based argument. The applicable meaning for the planning decision was the one supplied by the scheme.
Also at [19], it found that the land was used as a store and detrimentally affected amenity through the appearance of materials, noting nearby residential land. This is the decision's direct link between the character of the use and the neighbourhood impact. The reasons do not set out a separate formal test for amenity; they record the Tribunal's conclusion on the evidence in this case.
At [20], the Tribunal explained why it allowed 90 days: there were many tyres, removal would take time, and a new location might need to be found. In plain English, the Tribunal tailored the compliance period to the practical scale of the removal task rather than requiring immediate clearance.
At [24], the Tribunal said it was “just” to make a costs order under s.109, taking into account the lack of an arguable case and other relevant matters. In plain English, the Council's costs were ordered because of the circumstances of the enforcement proceeding, not automatically simply because the Council succeeded.
The reasoning is most directly relevant to a fact pattern in which a planning scheme defines the relevant land-use terms, the land is in a zone requiring a permit for the use, and goods or other items are kept on the land in a way that may meet the scheme definition of a store. Here, the Tribunal relied on the scale and duration of the tyre storage, the tyres' status as goods, and the presence of machinery and vehicles ([13], [15]).
The case also concerns an alleged unauthorised use accompanied by visible accumulation of materials and nearby residential land. The Tribunal considered the appearance of materials and the proximity of residential land when finding an adverse amenity effect ([19]). It may therefore be useful as an example of how evidence about what is on a site, how it is used, how long it has been there, and what is nearby can feature in an enforcement assessment.
The cost reasoning concerns a different set of circumstances: the Tribunal described a continuing contravention, awareness of the problem, earlier efforts to secure compliance, and no credible defence. It considered those circumstances relevant to costs under s.109 and referred to Cima as guidance ([16], [18], [23]–[24]). The judgment does not say that costs must follow in every enforcement proceeding or that the same result follows where the respondent has a credible dispute, has engaged with compliance efforts, or raises different circumstances.
The decision should not be extended beyond its stated findings. The Tribunal did not decide what would happen if a permit were later obtained, beyond framing the cessation order so that the use could occur if valid planning permission were in force. Nor did it decide whether the Council could arrange works through agents under s.123 without Tribunal consent ([21]).
The supplied judgment contains no information about later decisions considering or applying Mornington Peninsula Shire Council [2003] VCAT 1844. It is therefore not possible, from this source alone, to describe its subsequent treatment by courts or tribunals.
The judgment itself refers to Cima v City of Sunshine [1989] 3 AATR 313. Senior Member Byard said the circumstances were somewhat similar and described Cima as guidance for the costs question. He also noted that Cima was decided before the current s.109 of the VCAT Act and said the considerations in that case were relevant to the costs decision under s.109 ([23]–[24]). The reasons do not cite another case as having followed or applied this decision.
This is a VCAT Planning and Environment List decision by a Senior Member, following a full merits hearing. The source provided does not establish any later appellate consideration, precedential status, or subsequent treatment. Those matters would require checking sources beyond the judgment.
The most explicit open question is whether the Responsible Authority could act through agents under s.123 of the Planning and Environment Act 1987 without Tribunal consent. The Tribunal noted the Council's solicitors' view that this might be possible, but did not decide the point and gave no consent at that stage ([21]). It said that the question of action if the Respondents failed to rectify the situation could be dealt with when it arose.
The judgment does not reproduce the full planning scheme definitions of “store”, “warehouse” or “industry”. It gives enough information to explain its application to these facts, but not to determine the precise boundaries of those terms in other circumstances. Nor does it set out any detailed analysis of the particular permit pathway that might have been available for a different proposed use.
The reasons record a conclusion that the appearance of materials detrimentally affected amenity, with residential land nearby, but do not provide a broader assessment framework or detailed account of each amenity consideration. The evidence and submissions were retained on the Tribunal file, according to the appearances and evidence section, and are not reproduced in the text supplied.
Finally, the source does not state whether the materials were removed, whether the Respondents obtained planning permission, whether costs were agreed or taxed, or whether later proceedings occurred. Those are subsequent factual matters, not conclusions that can be drawn from this judgment.
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PLANNING AND ENVIRONMENT LIST Tribunal No. P001552/2003
RESPONSIBLE AUTHORITY: Mornington Peninsula Shire Council
RESPONDENTS: Hartmut Binting and Environmental Tyre
Title Particulars: Lot 10 on Plan of Subdivision No. 112430 being the land in Certificate of Title Volume 9048 Folio 182
MEDIUM NEUTRAL CITATION: [2003] VCAT 1844
1. The Respondents are ordered to cease and not to commence or recommence the use of the land as a store or for industry (within the meaning of those terms in the Mornington Peninsula Scheme) unless and until valid planning permission is in force authorising such use under the planning scheme and all tyres stored on the land, together with old vehicles, machinery and building materials on the land are to be removed from the land, and not returned to the land, within 90 days of service on the Respondents of a copy of this order.
2. The Respondents are ordered to pay the costs of the Responsible Authority of and in relation to this proceeding, such costs to be agreed, or failing agreement to be taxed by the Registrar of the Tribunal on the basis of Scale 'D' of the Scale of Costs of the County Court.
Ms. Tamara Brezzi, Solicitor of Deacons Solicitors, appeared on behalf of the Responsible Authority. She presented written and oral submissions and called Mr. Paul Jason Bonnici, Planning Enforcement Officer of the Shire of Mornington Peninsula, as a witness.
Mr. Norman Victor Mills, the owner of the land (but not a Respondent against whom an order is sought) appeared in person and made oral submissions.
Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.
Application under Section 114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.
Use of the land as a store without planning permission and contrary to Clause 33.03-2 of the Mornington Peninsula Planning Scheme by using the land so as to detrimentally affect the amenity of the neighbourhood through the appearance of building works and materials.
Industrial 3 Zone under the Mornington Peninsula Planning Scheme
1. This case was originally listed for hearing at 2:15pm on 3 October 2003. It was adjourned from that date by consent on the basis of a letter of the Respondent, Mr. Binting, dated 30 September 2003 stating that he was unable to attend as he was undergoing general anaesthetic and surgery at Frankston Hospital on 2 October 2003.
2. The case was re-fixed for hearing at 2:15pm on Friday 28 November 2003. Notice of the hearing being fixed for that date was sent to the parties on 3 October 2003. On 27 November 2003 I received, from a member of the staff of the Tribunal, a hand written letter dated 26 November 2003, and faxed on that day, from Mr. Binting. It said:
"I am unable to attend VCAT hearing on 28.11.03 owing to severe medical and surgical problems.
2. Medical Certificate from Dr. Steen dated 15.11.03 to 14.12.03;
3. Copy patient discharge from Frankston Hospital."
3. There was no indication on this letter that a copy had been sent to the Responsible Authority or its solicitors. Ms. Brezzi confirmed that neither her firm, nor her client, had received a copy of this communication, and neither had received any request for an adjournment or notification that an adjournment would be sought.
4. The medical certificate is on a printed form for medical certificates as required by Centrelink. It sets out four diagnoses. Unfortunately the hand writing inserted in the spaces on this document is indistinct and hard to read. I am not sure what the second and fourth diagnoses are. The first is back pain, the second appears to read "cervlisis", the third is hypertension and the fourth is "D.V.".
5. Each of these conditions is ticked as being permanent. The symptoms in relation to the first are given as low back pain and something that might read "moderately down RCLEY". The symptoms for the second is "suffer abdominal discomfort". The symptoms for the third are hard to read but I think it reads symptom free. The fourth is something that appears to be etegsler discomfort.
6. The treatment noted is analgesic followed by an indecipherable word or symbol and anti hypertensive drugs. I am aware that analgesics are drugs giving pain relief.
7. The prognosis in relation to each symptom is given simply as "likely to persist".
8. As to fitness for work/study, the document expresses the opinion that form 15/11/03 to 14/12/03 inclusive the patient is unfit for work and study and cannot do the usual work/study or any other work for 3 hours or more per week.
9. The other attachment is a document entitled 'Patient Discharge Information Sheet' which sets out a future appointment for Monday 13 October with a Mr. McMillan. It also refers to discharge instruction "as per Dr. McMillan post-op green sheet".
10. No written request for an adjournment has been received by the Tribunal, and no-one appeared on behalf of Mr. Binting seeking an adjournment. Whilst having sympathy with Mr. Binting on the basis of him suffering the conditions referred to in the Centrelink document, they do not appear to me to be such as would prevent him appearing to seek an adjournment or conduct his case, and certainly would not prevent him from having someone represent him for either of those purposes. Furthermore, the prognosis indicated in the Centrelink document does not indicate that any advantage could be derived from an adjournment, in as much as it indicates that the conditions specified are permanent and likely to persist. This is not a matter that should be deferred indefinitely.
11. The Responsible Authority wished to proceed in the circumstances. In the absence of any application for adjournment, and in the absence of circumstances which would, in my opinion, justify an adjournment, the case proceeded.
12. According to Mr. Mills this land was previously owned by Mr. Binting who is a builder and who got into financial difficulties. Mr. Mills acquired the property by a mortgagee auction. Some machinery belonging to Mr. Binting has remained on the land throughout its ownership by Mr. Mills.
13. The company is an entity through which Mr. Billing has sought to set up a tyre shredding business on the land. There is a tyre shredding machine on the land and, according to correspondence from him, some of which is on the letterhead of the company, he aspires to acquire another such machine. Several thousand used tyres have been brought onto the land and are stacked up there in the open air. One of the letters on the letterhead of the company explains that income is derived by providing a service to those wishing to get rid of used tyres. However, the tyres then have to be disposed of. As I have said, they are piled up on the land. The correspondence also indicates an intention to shred tyres to manufacture further products, or to make them suitable for disposal to land fill. The tyres have been stored on the land for several years. A store, in terms of the planning scheme, is land used to store goods, machinery or vehicles. The tyres are goods. There are also vehicles and machinery of the Respondents on the land, apparently including machinery for the purpose of processing tyres. In so far as tyres and machinery are on the land for the purpose of such processing, it might be said that the land is used for industry.
14. The evidence of Mr. Bonnici refers to a series of inspections and a number of conversations with Mr. Binting. His efforts, as planning enforcement officer, have been directed towards achieving a cessation of use of the land as a store, and a cessation of the detriment to the amenity of the area constituted by the appearance of the old tyres and other material on the land. The photographs he took, which were produced, were taken from outside the land.
15. This land is in a Industrial 3 zone. In that zone a permit is required to use the land for industry, and a permit is also required to use the land as a warehouse. Store is a variety of warehouse. A permit is required to use the land as a store. On the evidence I find that no permit exists for the use of the land as a store, warehouse or for industry. Thus there is a continuing contravention of the planning scheme, a contravention that the Responsible Authority has been seeking to have rectified since at least the early months of 2002.
16. I am also satisfied, on the basis of the correspondence, that the Respondents are well aware that they are in contravention of the planning scheme.
17. As stated at the hearing, I am satisfied that the situation and history disclosed by the evidence warrants the making of an enforcement order.
18. A statement of grounds and objection was filed by Mr. Binting, but does not contain any credible defence. He says that the land is located in "a Full Industrial Zone". It is, in fact, an Industrial 3 zone. He says that the Shire of Hastings issued two permits for the land in relation to a factory and a concrete plant. The evidence does not show this to be true, but in any event, it is not relevant. It does not justify use of the land as a store. Furthermore, there is no evidence that such permits, if they existed, were acted upon. If they have existed they appear to have lapsed.
19. Mr. Binting has considered the concepts of store and warehouse, not in terms of the definition of those expressions in the planning scheme, but rather with reference to various dictionaries. Because they are defined in the planning scheme, it is the planning scheme definitions that must prevail. On the evidence I find that the land is used as a store and does detrimentally affect the amenity of the neighbourhood by the appearance of materials on the land. I note that there is residential land in close proximity.
20. I have determined to require cessation of use and removal of tyres, vehicles and machinery within 90 days of the date of service of the order. There are a lot of tyres, and some time will be needed for their removal, which may also involve finding a new location for them. In the circumstances, I think it better to allow adequate time, rather than impose too short a period which will not be able to be complied with.
21. Reference was also made to s.123 PE Act and the ability of the Responsible Authority to undertake works to achieve compliance of the planning scheme or with an enforcement order. This power is given to the Responsible Authority or, with the consent of the Tribunal, to other persons. The solicitors for the Responsible Authority consider that it may be possible for the Responsible Authority to act through agents without the consent of the Tribunal. I have not entered upon that question at this stage. However, I do not give such consent at this stage. I think the Respondents should rectify the situation and what action should be taken if they fail to rectify the problem can be dealt with when it arises.
22. The Responsible Authority seeks an order for costs. An order was sought for party and party costs to be assessed on the basis of scale D of the County Court. There was also discussion as to the possibility of the fixing of a figure for costs.
23. I am satisfied that it is appropriate to make an order for costs in this case. circumstances strike me as somewhat similar to those in Cima v. City of Sunshine [1989] 3 AATR 313 where I said that I considered that it was more appropriate that the Respondent bear the costs of an enforcement application, rather than the rate payers of the municipality, where the Respondent clearly had no defence and it failed to comply with reasonable advice, requests, threats of proceedings and then proceedings to secure compliance with the planning scheme. The Responsible Authority has an obligation under s.14 PE Act to enforce the planning scheme. By defiance or neglect, the Respondents have more or less forced the Responsible Authority to take action, if it is to fulfil its public duty in that respect.
24. Of course, Cima's case was decided before the present s.109 of the Victorian Civil and Administrative Tribunal Act 1998 in relation to costs was enacted. I refer to it as guidance and on the basis that it, and this case, are consistence with an order being made for costs being made under that section. Pursuant to that section I think it is just that an order for costs should be made. I note the lack of an arguable case in relation at law and or facts and the ability to take into account other matters that I consider relevant. I consider Cima's case and the matters taken into account in that case to be relevant.
The Respondents were ordered to cease and not commence or recommence use of the land as a store or for industry unless valid planning permission was in force. They were also ordered to remove all tyres, old vehicles, machinery and building materials from the land, and not return them, within 90 days of service of the order. They were ordered to pay the Responsible Authority's costs, to be agreed or, failing agreement, taxed on County Court Scale D.