The applicant submits council has 'largely formed a view' that a contractor's depot is an 'industrial use' which is not suited to an agricultural area. The applicant does not agree with this view and notes the proposal is not prohibited within the GWZ1. It says a contractor's depot is an unspecified use in the GWZ1 and falls under Section 2 of the Table of Uses in the zone.[5]
The applicant says the services provided by the applicant 'includes earthworks for rural properties (driveways, dams, horse arenas, levelling etc) and earthworks and concreting for house sites in both urban and rural areas.' The applicant therefore considers the proposed contractor's depot business supports rural activities within the green wedge. It further notes securing a site large enough for the proposal within the existing urban area 'is almost impossible' due to land requirements and costs.
The applicant also highlighted the contractor's depot occupies approximately 25% of the site area, with the balance of the 8.0ha site still available for grazing purposes.
The applicant also notes the Nar Nar Goon area contains other non-agricultural uses within the GWZ1. It detailed various sites in its written submission, including:
Depot/mechanical repairs at 110 Seven Mile Road;
Transport depot on land at the corner of Nar Nar Goon and Longwarry Roads;
Road Safety barrier depot at 69 Nar Nar Goon Road;
Chairo Christian College, Bald Hill Road Nar Nar Goon;
Urban Resource Management Clean Fill Disposal Site - Five Mile Road Nar Nar Goon; and
Pakenham East Train Depot - Oakview Lane Nar Nar Goon.
Based on this information the applicant submits 'the area is not exclusively an agricultural area but contains a mix of land uses/activities.
I accept the applicant's submissions that other Tribunals have supported the proposition that a contractor's depot is a use that can be considered for planning permit approval in the GWZ1.
However, Scheme settings also require consideration of any relevant planning context and permits that would enable a fair comparison of these uses to the proposal before me. This was not provided to me.
I also noted from my site visit that the review site is immediately surrounded by broadacre agricultural/rural based land use and activities. The council also described the immediate land use setting around the review site as 'open rural setting'. I agree with this description.
Council also submitted that each use in the GWZ1 must be considered on its merits and that many of the land uses referred to by the applicant, appeared to have been established before the introduction of local policy addressing the Western Port Green Wedge at clause 22.05. I agree with council that each application must be considered on its merits. This is the approach I have applied to this matter. For these reasons I cannot give any weight to this part of the applicant's submission.
The applicant also notes the review site is not in Precinct 1 of the WGWMP. It notes Precinct 1 is identified as having 'high quality agricultural' land. The applicant says the review site cannot be considered as 'productive agricultural land of strategic significance' as it is not located in Precinct 1. Additionally, the applicant also says the proposal 'does not threaten or infringe on surrounding agricultural activities.' It says if the review site was in Precinct 1, 'then the planning outcomes may have been different'.
I do not agree with the applicant's proposition regarding Precinct 1 being the only precinct containing high quality agricultural land for the following reasons.
[2]
Council's submission highlighted that the review site has an agricultural significance designation as 'good' expressed in clause 21.04. I note this is the second highest rating expressed within the four tier rating shown in the Land Capability for Agriculture map under clause 21.04-2. No contrary agricultural evidence was put to me that established the specific soil and agricultural capacity of the review site did not rate as 'good.'
The applicant sought to rely on the fact the review site is not located in Precinct 1, where high quality agricultural land has been identified. However, I have not been persuaded by this submission. Particularly given the review site is identified in the second highest 'significant agricultural rating' expressed in clause 21.04-2. I take this to support council's view that the review site retains 'good' potential for ongoing agricultural production. In the absence of any contrary and tested evidence I have placed weight on this in my findings.
Policy settings that apply to the GWZ1 clearly dictate that Green Wedge soils, including their importance to ongoing agricultural production as a 'finite resource,' should take primacy in future land use planning within green wedge areas. I agree.
It is also relevant, that any proposed transition of non-agricultural land uses into Green Wedge land around townships, as is proposed here, should be carefully managed to ensure ongoing encroachment of inappropriate uses is avoided and agricultural protection continues in these GWZ1 areas.
While I accept that agricultural use of land has its own impacts, I find this impact is markedly different and less intrusive from what is proposed for this site. I agree with council that the proposal of the contractor's depot on the review site 'is not a use that treads lightly on the Subject Land such that an argument could be made that the land could easily revert back to agricultural purposes in the future.'
This proposal is a very large scale contractors' depot. This is clear from the applicant's own description of the proposal, which identifies the site may have up to 15 trucks, 15 trailers and 10 excavators, all of which would be housed on the review site at various times, as part of the depot activities. The business also employs up to 25 staff who leave their vehicles on the site to attend other projects they are allocated by the business.
This number of trucks, machinery and staff numbers results in regular movement of people and vehicles to and from the site, combined with other vehicle and machinery movements occurring on and around the site. The business also requires the ongoing storage and servicing of contractors' equipment, consisting of large, articulated vehicles, often loaded with heavy equipment on trailers. Larger vehicles are also moved into the truck wash to maintain the cleanliness of trucks and machinery. I find these are significant activities on the site that are not directly linked with ongoing agricultural use of the land. The scale and size of the proposed contractor's depot will bring what I consider to be a more 'urbanised setting' to the physical condition and setting of this land in the GWZ1.
I find the scale and intensity of this proposal on a confined area of the review site is markedly different to the general agricultural use of land contemplated under the policies and zone purposes noted above. The business is by the applicant's own submission, a 'regional-based earthmoving and civil construction company'.
I accept the business may have undertaken some servicing of local farms in the form of vehicle accessways and the like from time to time. However, I was not provided with any specific or tested data to support this statement or indicate the percentage of such work. Nevertheless, I find on the material provided by the applicant, the bulk of its business is in civil contracting undertaken in a broader regional catchment. For these reasons I have not been persuaded this is a small and contained contractor's depot operation on this land that would leave a small footprint or impression on the subject land.
The applicant also submits that much of its equipment is usually stored at other projects off-site, rather than on the review site. While I accept this scenario may apply from time to time, I have not been persuaded there is an overarching need for such a large contractor's depot to be located on this specific GWZ1 site.
While I also acknowledge the applicant is using part of the site for some cattle agistment, I find this is relatively low intensity in comparison to the proposed contractor's depot I have described above.
In my view, the current scale of grazing and agistment is not the primary use of the land in question. Additionally, the applicant has not indicated the contractor's depot is a temporary feature on this land and that agricultural grazing and agistment is to be enhanced into the future. In any event, the extent and scale of infrastructure that forms part of the proposal would suggest the contractor's depot is likely to remain the ongoing primary purpose of the land.
I have also not been persuaded that the loss of some 2.0ha of 'good' agricultural land is justified or necessary on this land to provide for the large scale non-agricultural land use as proposed. This is particularly so given the context and physical agricultural character of surrounding land.
I also agree with council that any loss of 'good' agricultural land in this location, must be considered and assessed in the context of 'cumulative impacts' that may arise on surrounding GWZ1 land. It is this potential incremental 'urban' creep of non-agricultural land uses into the Green Wedge areas that the GWZ1 purposes and associated policy seek to avoid.
I accept that some economic benefits could be expected to flow from the use through local employment opportunities. However, this outcome must be weighed against the GWZ1 purposes and the weight of State and local policy that seeks to protect agricultural production and ongoing opportunities within the Green Wedge areas.
I find the proposal is of an inappropriate and excessive scale and size and is inconsistent with the planning outcomes sought under clauses 14.01-1S, 21.04-2, 22.05 and 51.02 of the Scheme. The proposal has not achieved a satisfactory planning outcome and land use balance that is sought by the relevant purposes and Decision Guidelines of the GWZ1.
While I accept the applicant is seeking to locate and operate a successful contractor's depot in this locale as it offers a larger parcel of land, the planning outcomes sought under the GWZ1 and associated policies I have outlined above, do not support the encroachment of this scale of non-agricultural use on the review site.
[3]
Is the use likely to result in any unreasonable amenity impacts?
[4]
Council submits the proposal will result in unreasonable amenity impacts off the site. It submits the following features of the proposal on the review site are a reflection of these concerns.
High and solid boundary fencing which is in stark contrast to the open landscape with low and visually permeable fencing.
Large hard stand areas for access and turning areas, extensive areas for the storage of materials and large piles of fill, stands in stark contrast to the open green paddocks that surround the review site.
High number of heavy vehicle movements throughout the day and operation of various machinery on the site.
Significant dust impacts from accessways, turning areas and parking areas are not sealed. Odours arising from burning materials on site.
High number of truck movements along McCraws Road causing damage to the road which is used by a few legitimate agricultural enterprises to the east.
The applicant does not agree with this submission and says the proposal does not threaten or infringe on surrounding agricultural activities. The applicant considers the proposal will not result in 'above normal amenity impacts in a working rural area'.[7]
The applicant also notes the proposal would be located on a sealed road that already carries significant heavy and rural vehicles. It provided some vehicle swept paths as part of its submission that demonstrated that heavy vehicles could enter from Seven Mile Road and leave the site by McCraws Road.
The applicant also notes the nearest dwellings (other than those owned by the applicant) are over 500m from the review site. It says the site is also well screened by the existing boundary fencing and canopy tree planting along Seven Mile Road, combined with screen mounding along McCraws Road that could be landscaped.
The applicant also considers the scale of buildings on the site are consistent with larger rural type buildings established in the area.
It further submits there is no evidence to suggest that flooding will result from the contractor's depot. However, if this use were supported on the review site, the applicant would accept a permit condition requiring preparation of a stormwater management plan.
[5]
Given my determinative finding above that proposed use is not compatible with the site's zone purposes and supporting policy settings under the Scheme, it is not necessary to make specific findings on the submissions addressing amenity impacts.
However, I would make the observation that dust and noise concerns, if clearly identified and able to be sourced/contained on site, are usually matters that can be appropriately addressed by planning permit conditions. Nevertheless, I also accept council's concerns that these are matters directly linked to the scale and size of the operations proposed on the site. I have already made findings regarding the impacts arising from the scale and size of the proposal.
I agree with the applicant that the scale of buildings on the site is not out of keeping with other similar-sized rural type buildings I observed in the area. I do not consider this is a matter that would be fatal to the application.
Regarding flooding and stormwater matters, I note that the relevant referral authority did not object to the proposal.
Nevertheless, I noted during the hearing that council raised concerns that 'new' earth mounding appeared to have been undertaken on the site along the McCraw side boundary. It submitted this may have occurred after Melbourne Water's comments had been sought and received.
The applicant advised that further comments had not been sought from Melbourne Water regarding these works and suggested they may be outside the boundaries of the LSIO that applied to the site. However, the applicant was unable to verify this situation by survey plan.
Given my decision to refuse a permit for other reasons, I do not make any findings in relation to these issues. There is no utility in doing so.
[6]
For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.
[7]
[1] I was advised this property was also owned by the applicant.
[8]
[2] 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 this material will be cited or referred to in these reasons.