Application under section 114 of the Planning and Environment Act 1987 for an enforcement order

The land is on the west side of Railway Street, about 50 metres north of Dinah Road. The entrance to the land is off a secondary road frontage to Browns Avenue. The land is irregular in shape. It has a frontage of about 250 metres to Railway Street and a maximum depth of about 330 metres and an area of about 6.6 ha.

1. The subject land is a large lot in the township of Chewton. It does not contain a dwelling and is not currently used for the purpose of a dwelling. The subject land is not 'vacant' (of any buildings), for reasons that will become apparent. Mr Kunkel is the owner of the subject land. He has installed, placed or moved four shipping containers on or onto the subject land.[2]
2. The Mount Alexander Shire Council (the Council) claims the presence of the shipping containers is a contravention of the Mount Alexander Planning Scheme (the Scheme). It has applied to the Tribunal for an enforcement order that requires Mr Kunkel to immediately remove each of the shipping containers. Mr Kunkel opposes the application and contends there is no contravention.
3. The application turns on the proper characterisation of the way the land is currently used. In summary, I find there is a contravention. Mr Kunkel's submissions as to why the Tribunal, as a matter of discretion, should not make the enforcement order lack merit. In the absence of permission, the shipping containers must be removed.
4. I will allow the application and make an enforcement order that requires the removal of the shipping containers. My reasons follow.

1. On or about April 2018, Mr Kunkel placed four shipping containers on or onto the subject land.[3]
2. On 25 July 2018, the Council's compliance staff (the compliance staff) notified Mr Kunkel in writing that they had observed four shipping containers on the subject land, that permission may be required for the shipping containers, and that Mr Kunkel must specify by no later than 8 August 2018 the purpose of the shipping containers and the intended duration of their use.
3. In response, Mr Kunkel asked Ms Healy-Aarons to discuss the matter with the Council and Ms Healy-Aarons proceeded to meet with the Council's planning staff (the planning staff) but not the compliance staff.
4. On 20 August 2018, the compliance staff notified Ms Healy-Aarons in writing that permission is required for the shipping containers and must be sought by 31 August 2018. The Council did not receive an application for the shipping containers by that date.
5. On 22 October 2018, the compliance staff gave Mr Kunkel an Official Warning under the Infringements Act 2006 stating that he had committed the following alleged offence:

That you did store four shipping containers without an approved planning permit.

1. To avoid escalation of enforcement, the Official Warning stated:

You are to apply for a planning permit to store the shipping containers on your land prior to 2 November 2018.

1. Mr Kunkel did not apply for a permit to store the shipping containers by that date.
2. On 9 November 2018, Mr Kunkel applied for a permit to construct a single dwelling on the subject land (the first application).[4] On 15 November 2018, the planning staff told Mr Kunkel the application was incomplete and that further information was required. On 5 March 2019, the planning staff told Mr Kunkel the further information had not been received and that the application lapsed on 13 February 2019.
3. On 3 April 2019, the compliance staff issued Mr Kunkel with a Planning Infringement Notice. The Notice described the offence as:

That you did without a permit place four shipping containers on your land.

1. The Notice went to require Mr Kunkel, in addition to paying the penalty, to expiate the offence by removing the shipping containers by 22 April 2019. Mr Kunkel did not remove the shipping containers by that date.
2. On 4 June 2019, Mr Kunkel applied again for a permit to construct a single dwelling on the subject land (the second application). On 5 June 2019, Mr Kunkel was directed to provide more information. He provided some information. The planning staff told Mr Kunkel the second application had lapsed on 16 September 2019.[5]
3. As at the date of the hearing, the four shipping containers remain on the subject land.

1. I summarise Mr Kunkel's submissions about the nature and purpose of the shipping containers as follows:[6]
   • (a) The shipping containers each have a floor area of about six metres by 2.5 metres.
   • (b) The shipping containers are located in the north-west corner of the subject land, off Browns Avenue.
   • (c) The subject land is extensively weed-infested with Gorse and that he is required by law to remove all Gorse.
   • (d) The shipping containers provide 'temporary sheds/storage' for equipment, chemicals, a site office and first aid facilities for use by persons engaged by Mr Kunkel to remove the Gorse.
   • (e) The shipping containers also provide storage for 'building materials for future construction purposes'.

1. Having regard to the application and the Council's submissions at the hearing, the Council claims the contravention is:
   • (a) Use of land for a Store without permission as required by clause 32.05-2 of the Scheme.
   • (b) Construction of a building or construction of carrying out of works for a Store without permission as required by clause 32.05-10 of the Scheme.

1. As is apparent, the alleged contravention relates to both use of land and development of land.
2. At the relevant date the shipping containers were placed on the subject land, the subject land was in a Township Zone (a TZ) and a Bushfire Management Overlay (a BMO) under the Scheme. The subject land continues to be in a TZ and affected by a BMO.[7]

1. I do not intend to set out in any detail the extensive authorities about the characterisation of land uses. It suffices to state that it is necessary to ascertain the purpose of the use, that purpose is not ascertained by references to particular activities, processes or transactions, and that a purpose does not need to fit a defined use but if it very largely falls within a defined use it may be so characterised.[8]
2. In the TZ, use for a Store or Shipping container storage or an unspecified use (ie a use not specified in sections 1 or 3 of the TZ or not defined in the Scheme) require permission.[9]
3. Store is defined as:

Land used to store goods, machinery or vehicles.[10]

1. The Council's primary submission is that the subject land is being used for the purpose of a Store because the land is being used to store shipping containers. This would require a finding that a shipping container is goods.
2. Goods are not defined in the Scheme. The relevant ordinary meaning is 'possessions, especially movable effects or personal belongings'.[11] Although a shipping container is unlikely to be personal belongings, it is capable of being a possession and a movable effect.
3. The Council did not adduce any evidence about the contents of any shipping container. Mr Kunkel admitted he is storing equipment, chemicals and building materials in the shipping containers. I find these items may be characterised as goods or machinery. Hence, having regard to the nature of Mr Kunkel's shipping containers, they are capable of being characterised as a Store.
4. I must decide whether Store is the real or substantial purpose of the use of the subject land.
5. Mr Kunkel's primary submission is that the subject land is not being used for any purpose. I agree that all land does not need to be used for a purpose. For example, vacant land may not be used for a purpose. It is true that the shipping containers (and access to them from the nearest street) only occupies a small part of the subject land, which may otherwise be vacant land.[12] However, part of the land may be used for a purpose.
6. Mr Kunkel's primary submission would carry greater weight if the items being stored were intended to be stored so briefly and were in fact stored so briefly that it could be said storage was not a real or substantial purpose. For example, if Mr Kunkel had placed containers akin to a skip in which Gorse was placed for prompt removal to other land, that might raise doubts that the real and substantial purpose was related to storage. The shipping containers have now been on the subject land for about seventeen months. This does not constitute an activity that is brief.
7. Mr Kunkel made two submissions in the alternative.
8. The first alternative submission was the purpose of the use was weed removal or gardening. Gardening is an activity or works and not a purpose in the context of this proceeding.[13] Not all four shipping containers are being used for gardening, in any event, on Mr Kunkel's evidence.
9. The second alternative submission was that the purpose of the use was a dwelling and the storage of goods relating to weed removal and building materials was ancillary to a dwelling. Mr Kunkel relied on his intention to use the land for a dwelling as evidenced by the first and second applications. As there is neither an existing dwelling nor permission for a dwelling, this is not proper basis.[14]
10. I find the real and substantial purpose of the use of the relevant part of the subject land is to store Mr Kunkel's specified items and that purpose very largely falls within the defined use Store.[15]
11. As a matter of completeness, Shipping container storage is defined as:

Land used to store shipping containers.[16]

1. While that use might be a better fit with the Council's primary submission, I find it is not the real and substantial purpose, which is to store Mr Kunkel's specified items. Neither the Council nor Mr Kunkel contended the use of the subject was Shipping container storage. I consider the matter no further.

1. At all relevant times, permission has been required to construct a building or construct or carry out works on land in a TZ for a use that requires permission in the TZ.[17]
2. Accordingly, no permission is required if the use is permitted. For example, a dwelling is a permitted use in the TZ. Permission is not therefore required under the TZ to construct a dwelling.
3. In summary, Mr Kunkel submits no permission is required under this requirement because:
   • (a) The shipping containers are not for a use that requires permission.
   • (b) The shipping containers are neither a building nor works.
   • (c) The shipping containers are a 'temporary shed or temporary structure for construction purposes' and are an exempt building.
   • (d) The shipping containers are 'gardening' works and are exempt works.
4. I do not agree with any of these submissions. I give the following brief reasons.
5. First, I have found the shipping containers are for the purpose of a use that requires permission in the TZ.
6. Second, while the characterisation of a shipping container as a building or as works was unsettled many years ago, the issue was settled in Watson v Monash CC.[18] I brought this decision to the attention of the parties at the hearing.
7. In Watson, an owner of land used for a shop proposed to place one shipping container at the rear of the land. In the relevant zone, unlike the TZ, permission was needed for all buildings and works. After carefully considering previous authorities and the characteristics of a shipping container, the Tribunal held a shipping container was a structure and therefore a building. I am not bound by the decision in Watson but I do follow it to reinforce the settled position.[19]
8. Third, Mr Kunkel correctly submits that no permission would be required if the shipping containers were properly characterised to fit the following general exemption:

A temporary shed or temporary structure for construction purposes, or a temporary portable land sales office located on the land for sale.[20]

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

1. Fourth, the shipping containers cannot be exempt gardening works because each shipping container is not works. On Mr Kunkel's submissions, the land was not excavated, benched or fitted with a base to accept the shipping containers. As well, each shipping containers was and is not fixed to the land.

1. As a matter of completeness, I briefly refer to two bases for a contravention that are not alleged by the Council.

1. In the BMO, permission is required to construct a building or construct or carry out works associated with specified uses, including Accommodation and Warehouse.[21] A Store is a use nested under Warehouse. A dwelling is a use nested under Accommodation. A building or works is exempt if it has a floor area of less than 100 square metres not used for accommodation and ancillary to a dwelling.[22]
2. Mr Kunkel submitted no permission under the Scheme was required for the shipping containers because, even if the use is a Store (and hence a Warehouse), they have a total floor area of less than 100 square metres and are not used for accommodation and are not ancillary to a dwelling.
3. It is not contested that the floor area of the four shipping containers is less than 100 square metres. However, the BMO provision does not oust the buildings and works provision in the TZ. Express words would be required for an ouster. Those words are used in the Scheme when the authors intended an ouster.

The use of land for [a] warehouse ... must not adversely affect the amenity of the neighbourhood, including through ... [t]he appearance of any stored materials or goods.[23]

1. As a Store is nested in a Warehouse, the requirement applies to a Store.
2. The compliance staff, at an inspection on 7 August 2018, found the shipping containers and 'household goods' around the shipping containers to be 'unsightly'. This raised the possibility of a contravention based on a breach of this provision. In its application, the Council does not claim any breach of the provision. I consider the matter no further.

1. If a contravention is proven, the grant of an enforcement remains at the discretion of the Tribunal.[24]
2. Mr Kunkel relies on the evidence of Ms Healy-Aarons in support of a submission that the conduct of the Council related to the shipping containers has been unclear and inconsistent and been to his disadvantage such that, in all the circumstances, the application should be refused.
3. Ms Healy-Aarons gave a detailed account of action she took on behalf of Mr Kunkel following each of the compliance staff's actions that I have set out in the 'Background' section of these reasons.
4. Overall, I found Ms Healy-Aarons' evidence of insufficient probity to warrant refusal of the application, for the following three main reasons.

1. Ms Healy-Aarons maintains that the Council (ie neither the compliance staff nor the planning staff) has never told her or Mr Kunkel that a permit is required to retain the shipping containers on the subject land.
2. This claim is not supported by the evidence. As stated in these reasons under 'Background', on 20 August 2018 and 22 October 2018, the compliance staff told Mr Kunkel that a permit was required.

1. Ms Healy-Aarons makes many unsupported claims about the conduct of the planning staff. I will not refer to all of these claims. I briefly mention the following representative examples:
   • (a) On receipt of the correspondence from compliance staff dated 25 July 2018, she met with planning staff to discuss Mr Kunkel's plans for a single dwelling and a possible dependent persons unit and a possible subdivision. She states she was told that 'a single dwelling permit application would alleviate any further requirement [regarding] the shipping containers'.[25]
   • (b) She states she acted on that advice, and Mr Kunkel made the first application. Although there were delays in supplying the necessary expert reports, she states Mr Kunkel agreed to allow the application to lapse when the planning staff advised her to now make an application to subdivide the land.
   • (c) She states that the planning staff told her after Mr Kunkel received the Official Warning that she would be given until 15 February 2019 to submit the further information required on the first application and that the planning staff did not warn her of any enforcement consequences relating to the delay.
   • (d) She states the planning staff advised her that a 'more efficient' way forward would be to allow the first application to lapse and to apply for a permit to subdivide the land into between four and seven lots. She states the planning staff did not warn her of any enforcement consequences relating to this action.
   • (e) She said six months after being advised to prepare a subdivision application, Mr Kunkel received the Planning Infringement Notice and she responded by asking the compliance staff to discuss the alleged contravention with the planning staff. When she got no response from the compliance staff, she said she assumed that enforcement would not be pursued while the subdivision application was being prepared.
   • (f) She said she assumed the compliance staff were pursuing enforcement because Mr Kunkel allowed the first application to lapse and she offered to (and was encouraged by the planning staff) to make a second application. She further said that the planning staff encouraged her to delay lodging the application until complete with all necessary reports to avoid a direction to provide more information, and that she has experienced delays in receiving the report because at least one of her preferred consultants has been too busy.
2. The main problem with all these claims about advice or representations from the planning staff is that she tendered no documents in support. They are not corroborated by the evidence of any planning staff. As well, the Council rejects the claims.
3. In addition, it is no adequate defence to failing to act to deal with an alleged contravention by making an application and then failing to provide more information required by the Council on the grounds that the consultant engaged to provide that information is too busy to provide them in a timely way.

1. I do not give significant weight to Ms Healy-Aarons' evidence because of her conduct and her qualifications. Her conduct has been based on an assumption that if she worked with the planning staff to seek and obtain permission to either construct a single dwelling on the subject land or subdivide the subject land, compliance staff would withdraw or not otherwise pursue enforcement action against Mr Kunkel. There is no reasonable basis for that assumption.

[I] have managed planning permits and the construction of several dwellings in Mount Alexander Shire. In the past, [I] have always been told by [the Council] not to construct any fixed sheds for the purposes of storing materials but to use shipping containers on vacant land the subject of planning permits for construction of dwellings. [I] have never otherwise received any correspondence, complaints or compliance action.[26]

1. Although retained by Mr Kunkel as a planning adviser and although she may have 'managed' planning permit applications to the Council, she has no planning qualifications. She says she is a registered builder 'in training', but that does not amount to qualifications and experience in planning matters. In my opinion, this helps explains her reluctance to engage with the compliance staff to respond to the alleged contravention. She assumed that by engaging with the planning staff, action by the compliance staff to enforce the contravention would somehow disappear.
2. I have two other concerns about her evidence and conduct.
3. First, a reliance on a broad statement that what Mr Kunkel did is no different to what the Council has allowed in the past on other land in the municipal district is of no value. It is unsupported by documents. It avoids considering the different planning circumstances of different land.
4. Second, Ms Healy-Aarons' position in this matter is more than Mr Kunkel's planning adviser. Her evidence is she is a supporter or advocate for what she and others (including the media) call 'tiny houses'. She conceded she is a joint venture partner with Mr Kunkel for the future development of the subject land for tiny houses. This is consistent with her misguided focus to obtain approval for the future development of the land rather than expiate the alleged offence.

1. It may not be easy for an owner to deal with different Council staff with interrelated compliance and planning approval issues.
2. However, it is no excuse to fail to respond to clear direction from the compliance staff by relying on Mr Kunkel's adviser/business partner (Ms Healy-Aarons') unsubstantiated claims of representations by the planning staff. Accordingly, to the extent that Mr Kunkel has suffered disadvantage in being a respondent in an enforcement order application, he cannot attribute that disadvantage to either the planning staff or the compliance staff.

1. Ms Healy-Aarons failed to engage with the compliance staff and to comply with the Council's directions that an application must be made for approval to place the shipping containers on the subject land to expiate the offence. Mr Kunkel failed to expiate the offence.
2. There is no evidence for Ms Healy-Aarons' contention that the compliance staff represented that if Mr Kunkel applied for permission to construct a dwelling on the subject land, the Planning Infringement Notice and the enforcement order application would be withdrawn. Ms Hope submitted that the Council's current policy is that, if a planning permit or building permit is granted to construct a dwelling, the subsequent placing of no more than one shipping container during construction would fit the 'temporary shed' exemption in the Scheme to which I have referred.
3. Mr Kunkel referred to a rule of evidence known as equitable estoppel. He tentatively submitted that it operates to prevent the Council succeeding with its application for an enforcement order when its planning staff represented to Mr Kunkel that making an application for permission to construct a single dwelling would expiate the offence. Mr Kunkel claims he acted on that representation in good faith. It is unnecessary to consider this submission in any detail. The Tribunal is not bound by the rules of evidence.[27] In any event, the representation is not proven.
4. Finally, Mr Kunkel has failed to act on the alleged contravention by either removing the shipping containers or applying for permission for the shipping containers. This mitigates against discretion.

1. For the above reasons, I will allow the application and will make an enforcement order.
2. The enforcement order will require the removal of the four shipping containers by no later than two months after the date of the enforcement order. Mr Kunkel submitted a minimum of three months would be necessary to ensure the subject land was sufficiently dry to allow a heavy vehicle to enter the land and remove the shipping containers. The timing of removal should not be based on submissions without evidence about current conditions of the land and future meteorological conditions.
3. In some cases, the Tribunal allows delay to any required action to restore the land to its pre-contravention state in an enforcement order if an application for a permit can be made and has been made to authorise the allegedly unlawful use or development but has not been determined by the date the Tribunal determines the enforcement order application. I will not allow that delay in this case because Mr Kunkel has not made that application.

Use of the subject land for a Store without permission as required by clause 32.05-2 of the Mount Alexander Planning Scheme

Construction of a building or construction or carrying out of works for a Store (four shipping containers) without permission as required by clause 32.05-10 of the Mount Alexander Planning Scheme

1. By no later than 25 November 2019, Mathew Kunkel must stop the use of the subject land for the purpose of a Store.

1. By no later than 25 November 2019, Mathew Kunkel must remove each of the four shipping containers from the subject land and must restore the land as nearly as practicable to its condition immediately before the shipping containers were placed on the subject land, to the satisfaction of the responsible authority.

1. 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 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] I will refer to 'placing' the shipping containers on the subject land in the rest of these reasons as a simplified way of referring to each of the three expressions.

[3] Statement on behalf of Mr Kunkel, filed on 23 September 2019, in accordance with a direction of the Tribunal made after the hearing.

[4] In the Township Zone, no permission is required to construct a dwelling. However, in a Bushfire Management Overlay, permission is required to construct a dwelling. This is the permission Mr Kunkel sought in the first application.

[5] The Council filed this information after the hearing, in accordance with a direction of the Tribunal made after the hearing. Mr Kunkel's representative filed a response that included a statement that Mr Kunkel had taken immediate steps to 're-instate' the lapsed application. The Tribunal's direction did not include leave to make this response. The Council does not have leave to confirm any 're-instatement'. Whether or not the second application remains on foot is not material to the findings and orders in this proceeding.

[6] The following statements are largely drawn from Mr Kunkel's detailed statement of grounds, prepared by Ms Healy-Aarons and adopted by her as being true and correct.

[7] There have been several amendments to the TZ and BMO since the shipping containers were installed on the subject land, but none are relevant for the purposes of this proceeding.

[8] Cascone v Whittlesea SC (1993) 11 AATR 175, 189-90.

[9] A Warehouse is a specified section 2 use and a Store is nested within a Warehouse. Shipping container storage is an unspecified section 2 use.

[10] Mount Alexander Planning Scheme cl 73.03.

[11] Macquarie Dictionary, Sixth Edition.

[12] There was no evidence about whether the major part of the subject land was vacant or not.

[13] Clause 62.02-1 of the Scheme identifies gardening as works.

[14] Although permission is not required under the TZ to use or develop land for a dwelling, permission to develop the subject land for a dwelling is required under the BMO.

[15] This finding, and the reasoning followed to reach it, is consistent with the Tribunal's finding that the placing of 24 shipping containers on a 11 ha lot which contained a dwelling was a separate use for the purpose of a Store (Hycenko v Mornington Peninsula SC [2019] VCAT 1464 [47]-[49], [72]-[74]).

[16] Mount Alexander Planning Scheme cl 73.03.

[17] Mount Alexander Planning Scheme cl 32.05-10.

[18] [2011] VCAT 2176 ('Watson'); followed in Hycenko v Mornington Peninsula SC [2019] VCAT 494 [57]-[58].

[19] In Watson, there was no express reasoning about the need for there to be 'construction' for a 'structure' for permission to be required. I do not dwell on this point, other than to acknowledge that 'construct' has a wide meaning in section 3 of the Planning and Environment Act 1987. I am satisfied that using a heavy vehicle with relevant lifting equipment to carefully bring and safely place a shipping container onto land is akin to construction in much the same way as a temporary building.

[20] Mount Alexander Planning Scheme cl 62.02-1.

[21] Mount Alexander Planning Scheme cl 44.06-2.

[22] Mount Alexander Planning Scheme cl 44.06-2.

[23] Mount Alexander Planning Scheme cl 32.05-4.

[24] Planning and Environment Act 1987 s 117(2).

[25] Ms Healy-Aarons' belief is based on the exemption in clause 62.02-1 for temporary sheds for construction activities applying once a permit to construct a building has been issued. This belief assumes that each of the four shipping containers will come within this exemption. Whether they come within the exemption will be a matter for the Council. Ms Healy-Aarons cannot assume they will, so she cannot assume the contravention will no longer exist.

[26] Ms Healy-Aarons, statement of evidence, p 5.

[27] Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(b).