The capability of the land to accommodate the proposed use or development, including the disposal of effluent.

The impact of the proposal on the natural physical features and resources of the area, in particular on soil and water quality.

1. The decision guidelines specific to shipping container storage at clause 53.07-1 require consideration of:

Whether the site layout and the design of buildings, landscaping, vehicle access lanes, loading bays, wash bays, lighting and fencing are designed to avoid or minimise any significant off-site impacts due to the emission of noise, light, glare, dust, fumes or drainage.

1. The shipping container provisions at clause 53.07-1 require consideration of 'the treatment and disposal of wastewater'. The decision guidelines at clause 65.01 also require us to consider 'Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site'.
2. The respondent advises that the shipping containers will not be washed on the site and accepts a permit condition to this effect. We are satisfied this is appropriate and will avoid additional waste water being generated on the site and flowing into the local drainage network. However, the proposal does not exclude the washing down of the vehicles used as part of the use.
3. The proposal does not include a designated washdown bay. While the NOD includes a condition requiring a washdown bay, it does not require this to be a concrete or impervious surface.
4. We are not persuaded that the impact of washing down the vehicles used in the shipping container storage use will be different to washing down any other vehicle on a property in a rural area. The number of vehicles that will be on the site in association with the use is limited. There is nothing before us to suggest that the need to wash down these vehicles will be more than an occasional occurrence. We are satisfied this reduces the extent of wastewater likely to result from washing vehicles. We are also satisfied that the gravel pad will function as retention and as a passive water treatment for any wastewater runoff resulting from washing vehicles. To avoid wastewater discharging directly into the drain along Brandy Creek Road, we will include a permit condition requiring the designated washing bay to be set back from that boundary.
5. The ability for the gravel pad to retain and function as a passive water treatment will also apply to stormwater runoff from the shipping containers. From our observations when there were 37 shipping containers in situ, a large area of the shipping container storage area was not being used to store containers or vehicles. Even with the maximum of 40 containers, we are satisfied that a large area of the pervious gravel pad will remain available to absorb and retain stormwater runoff.
6. We note that there is no planning scheme overlay identifying this area as having environmental or landscape significance. This indicates to us that the site and proposal do not give rise to a heightened need to protect the environment.
7. In these circumstances and having regard to the size of the storage area and the site itself, we are satisfied that any wastewater and stormwater generated on the site will be able to be managed to avoid any off-site impacts.
8. The Environment Protection Act 2017 (Vic) sets out the legislative framework for the protection of human health and the environment from pollution and waste. It also provides for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste. We are satisfied that the requirements and obligations that apply under that legislation and any related regulations and guidelines, provide a framework to require the operator of the use and owner of the land to appropriately manage wastewater.
9. For these reasons, we find that land can accommodate the proposed use in relation to appropriately managing of stormwater and wastewater.

1. The applicants for review raise concerns about the vehicle access arrangements and traffic impacts. These were not included in their grounds for review. At the hearing, the applicants for review confirmed that they did not seek to amend their grounds to include these matters.
2. We note that the Council gave notice of the Application to Head, Transport for Victoria ('Transport for Victoria'), which is responsible for the management of Brandy Creek Road. The Council submits that Transport for Victoria has no objection to the grant of a permit. The application relies on the existing vehicle access, which was created by Transport for Victoria as part of recent upgrade works at the intersection of Brandy Creek Road and Old Sale Road. In the context that Transport for Victoria does not object to the permit application we are satisfied that that vehicle access arrangements are acceptable.

1. The proposal includes a reduction in the car parking requirement under clause 52.06-5 of the scheme. The shipping container use is nested in the land use term 'store'. A store use requires 10 per cent of the site area to be set aside as car parking. Based on the 4,600 square metres area of the proposed storage area, the proposal requires 460 square metres for parking. The proposal includes the provision of two car parking spaces, comprising 25.48 square metres. This is significantly less than the requirement under clause 52.06-5 of the scheme.
2. The Tribunal notes that the appropriateness to reduce the car parking is not being contested by the applicants for review. However, as this is a hearing 'de novo' (that is, anew) we have had regard to the car parking requirements and provisions.
3. We are satisfied that the provision of two car parking spaces is sufficient to accommodate the likely demand created by the operator of the use and the one additional staff member. The plans show the two car parking spaces in the north-west corner of the storage area.
4. At the hearing we sought the views of the parties regarding the accessibility of the proposed car parking for visitors to the site. We acknowledge the applicants for review and council submissions that the permit application was based on there being no visitors/customers coming to the site. In this regard we find it appropriate to impose a condition that the shipping container storage use must not be operated as a self-storage use. This will ensure that stored containers that may contain household or other goods cannot be used as a long term storage by people who might seek to access them regularly or on occasion.
5. Despite this, we note that we do not preclude the possibility that from time to time a prospective customer may visit the site to inspect the shipping containers available. We are satisfied that the size of the site relative to the scale of the operation provides sufficient space for additional vehicles to be parked on the site from time to time.
6. We note that the purpose of the car parking provisions at clause 52.06 seeks 'To ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use'. The proposed car parking is located in the diagonally opposite corner from the vehicle access point to the site, which is in the south-east corner. Given the nature of the use and the equipment involved, we are not satisfied this provides a safe environment for visitors to access. We will require these car parking spaces to be relocated closer to the vehicle access, and for a third car parking space to be provided. With the permit condition requiring the shipping containers to be set back 20 metres from Brandy Creek Road, there would be space for the car parking to be provided adjacent to the eastern side boundary. We will impose a permit condition to this effect.
7. We are satisfied that the amendments to the number and location of car parking spaces will result in the provision of car parking being acceptable.

1. The applicant for review submits that the proposal does not protect and enhance the natural resources and biodiversity of the area.
2. The site is not recognised as one with significant vegetation or biodiversity habitat. This is confirmed by the Council's submission that 'The NatureKit GIS system maintained by the Department of Energy, Environment and Climate Action indicates that the area of the site intended to be utilised has a habitat value of 12 out of 100, indicative of low habitat value'.[8]
3. In this context, and the context that the use will occupy land previously used for agricultural purposes, we are not persuaded by the applicants for review's submissions.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.
2. The conditions contained in this Order reflect those in the NOD, those proposed by the Council, the submissions of the parties, and the further consideration of the Tribunal.

Use of the land for 'shipping container storage' (being a use in section 2 of clause 35.08-1).

Works associated with a use in section 2 of clause 35.08-1.

Reduce the car parking required under clause 52.06-5.

1. Within three (3) months of the date of issue of this permit, amended plans to the satisfaction of the Responsible Authority must be submitted electronically to the Responsible Authority. Once submitted, these plans will be approved and endorsed to form part of the permit. The plans must be drawn to scale with dimensions, and must be generally in accordance with the plans drawn by TRW Developments (drawing numbers 1201355 'Site map' issued June 2017, 24071924 issued July 2024, and 1201355 'Landscape map' issued June 2017) and the plan drawn by Mitech Building and Drafting Services (drawing number16041252 'Landscape' issued November 2016) but amended to show:

(a) The property boundaries clearly and correctly shown, consistent with the land title.

(b) The location of existing buildings on the adjoining property to the west at 855 Old Sale Road correctly shown.

(c) The setbacks of the shipping container storage use area from the property boundaries annotated.

(d) The vehicle accessway from Brandy Creek Road shown to be the vehicle access that extends along the eastern side of the land and this accessway shown to be part of the shipping container storage use area; and all other vehicle accessways on the land annotated as not forming part of the shipping container storage use area.

(e) The area in the shipping container storage use area within which shipping containers are to be stored ('shipping container storage area'). This area must be:

1. set back at least 20 metres from the Brandy Creek Road kerb;
2. set back from the landscape buffer areas to be provided along the northern, eastern, and western sides (in accordance with condition 2);
3. clear of any area to be set aside for landscaping, vehicle parking, and vehicle washdown bay.

(f) The setbacks of the shipping container storage area from the boundaries of the shipping container storage use area and from the areas set aside for landscaping annotated.

(g) The location and dimensions of landscape buffer areas along the northern, eastern, and western boundaries of the shipping container storage use area.

(h) The two car parking spaces shown in the north western corner of the shipping container storage use area deleted.

(i) Three car parking spaces shown adjacent to the eastern boundary of the shipping container storage use area and near to the vehicle access, or otherwise to the satisfaction of the Responsible Authority.

(j) The location of a designated vehicle washdown bay; this must be set back at least 50 metres from the Brandy Creek Road kerb.

(k) The 'shipping container overall height' elevation shown as a single height container with an overall height of 3.0 metres and a notation that shipping containers will not be stacked on top of each other.

(l) The provision of a 2.0 metre high post and wire fence wrapped in black, grey or green shade cloth along the eastern, northern, and western sides of the shipping container storage use area (excluding any access gates). The fences must be located so that the landscaping areas are between the fence and the external boundary of the shipping container storage use area and property boundaries. Gates or breaks in the fencing may be provided, to the satisfaction of the responsible authority, to provide access to the landscaping for maintenance purposes.

(m) An elevation of the fencing required by condition 1(l)

(n) The location and details of any external lighting in accordance with condition 30.

(o) The reference to 'DDO' on the plan number 1201355 'Landscape map' deleted.

1. Within three (3) months of the date of issue of this permit, an amended landscape plan to the satisfaction of the Responsible Authority must be submitted electronically to the Responsible Authority. Once submitted, this landscape plan will be approved and endorsed to form part of the permit. The landscape plan must be drawn to scale with dimensions, and must be generally in accordance with the plan drawn by TRW Developments (drawing number 1201355 'Landscape map' issued June 2017) and the plan drawn by Mitech Building and Drafting Services (drawing number16041252 'Landscape' issued November 2016) but amended to show:

(a) The location and dimensions of landscape buffer areas along the northern, eastern, and western boundaries of the shipping container storage use area; the width of the landscape buffer areas must be sufficient to accommodate the width of shrubs to be planted in these areas.

(b) Shrubs and trees to be planted to form an effective screen along the northern, eastern, and western boundaries of the shipping container storage use area.

(c) The Pyrus Calleryana tree species replaced with specie/s from the Indigenous Plants of Baw Baw Shire guide prepared by Baw Baw Shire Council and indicated as being appropriate for 'Damp/ Wet Forest', or other native trees to the satisfaction of the Responsible Authority; the nominated tree specie/s must have an expected mature height of at least 7 metres.

(d) The Pittosporum tenufolium shrub species replaced with specie/s from the Indigenous Plants of Baw Baw Shire guide prepared by Baw Baw Shire Council and indicated as being appropriate for 'Damp/ Wet Forest', or other native trees to the satisfaction of the Responsible Authority; the nominated specie/s must have an expected mature height of at least 3 metres.

(e) The location and details of barriers or edging to clearly delineate the edge of the landscape buffer areas from the shipping container storage area.

1. The use and development as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.

1. Within six (6) months of the date of plans being endorsed under Condition 1, or by such later date as approved in writing by the Responsible Authority, the following works must be carried out and completed in accordance with the endorsed plans to the satisfaction of the Responsible Authority:

(a) The areas set aside for the use on the endorsed plan have been paved with crushed rock or gravel of adequate thickness to prevent the formation of potholes and depressions according to the nature of the sub-grade and vehicles which will use the areas.

(b) The fencing along the northern, eastern, and western boundaries of the shipping container storage use area.

(c) The car parking spaces provided.

(d) The vehicle washdown bay provided.

(e) No stacking of shipping containers to be occurring.

(f) Any external lighting installed.

1. The works shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.

1. Within six (6) months of the date of plans being endorsed under condition 2, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including replacing any dead, diseased or damaged plants within 30 days of becoming aware of the dead, diseased and/or damaged plants.

1. Unless with the prior written consent of the Responsible Authority, no more than 40 shipping containers may be on the land in association with the use.
2. The shipping containers must not be stacked on top of each other.
3. The shipping containers must only be stored in the shipping container storage area shown on the endorsed plans.
4. The shipping containers must not be stored within:

(a) 20 metres of the kerb of Brandy Creek Road.

(b) The areas shown as landscape buffer areas on the endorsed plans.

(c) The designated car parking spaces shown on the endorsed plans.

(d) The designated washing bay shown on the endorsed plans.

1. Unless with the prior written consent of the Responsible Authority, the use must only operate between the hours of:

(a) Monday to Friday (other than public holidays): 07.00 am to 06.00 pm.

(b) Saturday: 08.00 am to 06.00 pm.

(c) Sunday and public holidays: 10.00 am to 04:00 pm.

1. Unless with the prior written consent of the Responsible Authority, no more than one (1) staff member or contractor (excluding the operator of the business) may be present on the land at any time.
2. Unless with the prior written consent of the Responsible Authority, no more than one (1) truck may be loading or unloading shipping containers on the land at any time.
3. Unless with the prior written consent of the Responsible Authority, deliveries to and from the premises must only occur during the hours of operation set out in condition 12.
4. Shipping containers must be transported to and from the shipping container storage use area only through the designated vehicle access shown on the endorsed plans and must not be transported through the other vehicle accessways on the land.
5. Shipping containers must not be fumigated or washed on the land.
6. Shipping containers entering the site must have been fumigated prior to entry.
7. No more than six vehicles and four trailers associated with the use may be on the land.
8. No modifications to shipping containers may be undertaken on the land.
9. Only minor repairs to shipping containers may occur to shipping containers on the land, to the satisfaction of the Responsible Authority.
10. No spray painting of shipping containers may occur on the land other than in association with minor repairs, to the satisfaction of the Responsible Authority. Any spray painting in association with minor repairs must only be undertaken with a handheld, aerosol/spray can, to the satisfaction of the Responsible Authority.
11. The use must not be operated as a self-storage use where individuals or businesses rent or store shipping containers on the site to store their belongings or goods. Shipping containers containing belongings or goods may only be stored on the site on a temporary basis while they are in transit between their pick up location and destination at another location.
12. The following goods, materials or equipment may not be stored within shipping containers, to the satisfaction of the responsible authority:

(a) Any material associated with a purpose listed in the table to Clause 53.10 of the Baw Baw Planning Scheme:

(b) Any material:

1. Exceeding a fire protection quantity under the Dangerous Goods (Storage and Handling) Regulations 2022.
2. Requiring a notification under the Occupational Health and Safety Regulations 2017.
3. Requiring a licence under the Dangerous Goods (Explosives) Regulations 2011.
4. Requiring a licence under the Dangerous Goods (HCDG) Regulations 2016.

1. The shipping container storage use area must be fenced in accordance with the endorsed plans to the satisfaction of the Responsible Authority.
2. The areas set aside for the use must be maintained to the satisfaction of the Responsible Authority.

1. The use and development must be managed so that the amenity of the area is not detrimentally affected including through the:

(a) Transportation of materials, goods or commodities to or from the land.

(b) Appearance of any building, works, storage areas or materials.

(c) Emission of noise, artificial light, smell, fumes, smoke, vapour, steam, soot, ash, dust, water, waste products, grit or oil.

(d) Presence of vermin or pest plant species (weeds).

1. Within three (3) months of the date of this permit and at all times thereafter, all security alarms or similar devices installed on the premises must be of a silent type in accordance with any current standard published by Australian Standards and be connected to a monitored security service.

Noise control - noise limit and assessment protocol

1. Noise emissions from the premises must not exceed the limits set out in the Environmental Protection Authority's (EPA) Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (Noise Protocol), or its successor or equivalent.

1. Within three (3) months of the date of this permit, external lighting used to illuminate the use area must be fitted with cut-off luminaries (baffles) to prevent the emission of direct light onto adjoining roadways, land and premises to the satisfaction of the Responsible Authority.

1. All storage areas must be treated with adequate dust suppression measures stopping unreasonable dust from being detected at any neighbouring property to the satisfaction of the Responsible Authority.

(a) The development is not completed within twelve (12) months of the date of this permit, or

(b) The use is discontinued for a period of two years.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of expiry of permit.

1. Among other things, the Notice of Decision ('NOD') allows the use of the land for shipping container storage. The land use term 'shipping container storage' is defined at Clause 73.03 of the scheme as:

Land use to store shipping containers. It may include the cleaning, repair, servicing, painting or fumigation of the shipping containers.

1. 'Shipping container storage' is included in the broader land use definition of 'store' which is included within the land use term of 'warehouse'.
2. As a preliminary matter, the Tribunal asked for confirmation of the use, including clarifying:
   • the use and storage of the heavy vehicles and machinery in association with the shipping container storage;
   • the frequency of deliveries to and from the site;
   • existing uses on the site, whether the proposal relies on existing use rights, and impacts on the existing uses on the site;
   • whether the proposal includes repairs, modifications, and painting of the shipping containers;
   • fencing on the site;
   • what the proposed works comprise; and
   • the nature of any contents of the shipping containers stored on the site and whether any contents are in the list of uses and activities with potential adverse amenity impacts at clause 53.10 of the scheme.
3. The respondent confirmed some of the details discussed in the preliminary matters in writing and circulated this to the Tribunal and all parties on day 1 of the hearing. We have taken this material into account when determining the application for review.
4. We address some of the preliminary matters below.

1. The applicants for review raise that there is the storage of six heavy vehicles on the land. Vehicle store has the following definition under clause 73.03 of the scheme:

Land used to park or store vehicles in connection with a goods or passenger transport business.

1. However, the application did not specifically seek permission for vehicle store, but rather, the application form indicates the use for which the applicant is seeking is 'retrospective use'. The form then explains that the existing use of the site is 'land used to store shipping containers and land used to store goods (heavy duty vehicles)(retrospective)'.[9] An amendment was made to the application on the 30 September 2024 to include a reduction in the car parking requirement which is understood by the Tribunal as not being contested.
2. The planning report accompanying the application specifies that the vehicle store component benefits from existing use rights[10] as follow:

Storage of Heavy [sic] duty trucks is required onsite and has existing use rights but is required to be parked in the storage area.

1. Existing use rights may be established under clauses 63.01 and 63.11 of the scheme with proof of continuous use for 15 years.
2. The applicants for review written submission states:

The Application does not confirm whether the Land benefits from a certificate of compliance with respect to 'existing use' rights pursuant to section 97N of the Planning and Environment Act 1987. Accordingly, the application should not rely on the land benefitting from any 'existing use rights.'

1. The application material does not establish an existing use right for the use or part of the use, nor does the Council's delegate report include an assessment of any such existing use rights.
2. The proceeding before us is a review of the decision of the responsible authority by an objector under section 82 of the Planning and Environment Act 1987 (Vic) ('PE Act') and is not a proceeding for a declaration of existing rights under 149A(1)(b) of the PE Act as a matter relating to the continuance of a particular use. Therefore, existing use rights are not before us.
3. The respondent confirmed that it did not rely on existing use rights.
4. The respondent submits it would be rare occasion for the heavy vehicles to leave and return to the property without a shipping container to be stored on the site, thereby suggesting that the land use associated with the six heavy vehicles is not a vehicle store or transport terminal.
5. Based on the explanation of the proposal given by the respondent, coupled with our site inspection, we accept the submissions of the respondent. We have proceeded on the basis that the six heavy vehicles are ancillary to the shipping containers storage use.

Modification or alteration of shipping containers

1. The applicants for review in their written submission suggests that the land use is 'industry' which is a prohibited use in this zone. This submission is on the basis that past activities may have been undertaken on the site that included modifications of shipping containers. The Council delegate report[11] also refers to shipping containers that are being retrofitted for habitable use.
2. The respondents have clarified that the proposal is for the storage of the shipping containers only and other than minor repairs (e.g. rust patches), there will be no modification or alteration of the shipping containers.
3. The National Trust principle[12] is a well-established principle of the Tribunal that proposals must be assessed based on the merits of the proposal as presented, not on speculative future changes. We have assessed the application as presented before us.

Storage of items with potential adverse amenity impacts

1. No assessment has been made by the Council whether the shipping containers may store goods and materials identified under clause 53.10 of the scheme relating to uses and activities with potential adverse impacts. The Council delegate report suggests that the shipping containers will be empty however no condition has been imposed to this effect.
2. The respondent advises that most of the time the shipping containers stored on the site will be empty however approximately 20% of the containers may contain miscellaneous household items. The respondent accepts a condition that may restrict the type of storage within the shipping containers to those that are not enacted by clause 53.10-1 of the scheme.
3. The respondent confirms that it is not the intention to make the shipping containers available to customers on the site similar to a self-storage unit where customers may access the storage when needed. The Tribunal notes this distinction and has included a condition to this effect.

1. Additional conditions have been proposed by the Council that did not form part of the NOD. Council advises that the other parties were made aware of these additional conditions prior to the hearing.
2. The applicants for review support the additional conditions but say that even with the additional conditions they are concerned with potential amenity impacts from the shipping container storage use.
3. The respondent contests the additional condition that requires no stacking of the shipping containers. The respondent does not concede that it agreed to the inclusion of such a condition.
4. Our decision is based on the proposal being for shipping containers to be double stacked. We have considered the views of the parties in relation to the proposed additional condition in reaching our findings.

[1] Source: Council's written submission, 4. The site is outlined by a white line.

[2] The submissions 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 this material will be cited or referred to in these reasons.

[3] Respondent's written submission, [14].

[4] Council's written submission, [40]; emphasis added.

[5] Requested by the applicants at the hearing to match the existing fence on the site facing Brandy Creek Road although to a height of 3.0 metres.

[7] At the hearing it was clarified that the relevant standard is AS/NZS 4114:2020 Spray painting booths, designated spray painting areas and paint mixing rooms or its successor or equivalent.

[8] Page 94 of Council's written submission.

[9] Application form dated 24 February 2024.

[10] Planning report prepared by MASS Construction & Consulting dated 10 July 2024.

[11] Council's delegate report, [13].

[12] Derived from the case National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592 (31 May 1976).