Victorian Civil and Administrative Tribunal|2003-10-09

Nestle Export v Warrnambool CC [2003] VCAT 1389 (9 October 2003)

Section 149A Planning and Environment Act 1987 - Warrnambool Planning Scheme - Industrial Zone - Clause 33.01-4 - exemption from notice and review - measurement of 30 metres to residential zone

A declaration is made pursuant to Section 149A(2)(a) Planning and Environment Act 1987 that for the purposes of Clause 33.01-4 in the Warrnambool Planning Scheme the measurement of 30 metres is the distance from the proposed building or proposed works.

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1. This is an application pursuant to section 149A Planning and Environment Act 1987 brought by Nestlé seeking a declaration as to the interpretation of Clause 33.10-4 and in particular the provision in relation to the exemption from the giving of notice and review.

2. Nestlé is the owner of a large parcel of land at 50 Drummond Street, Warrnambool on which it conducts the manufacturing of milk products. It has conducted this business on this site since 1915. A number of buildings including silos are located on the land and are used in relation to the manufacturing process.

3. Under the Warrnambool Planning Scheme the land is located within the Industrial 1 zone (Clause 33.01). Clause 33.01-4 provides a permit is required to construct a building or construct or carry out works. This clause also provides that a permit is not required for buildings and works in three circumstances one of which includes rearranging, altering or renewing plant if the area of the height of the plant is not increased. If the buildings or works proposed do not fall within one of the three exemptions then a permit is required.

4. Clause 33.01-4 also provides an exemption from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) contained in the Planning and Environment Act 1987. Therefore the owners and occupiers of lots adjoining the land to which the application applies, a municipal council or any other person the Responsible Authority considers may be materially affected are excluded from notice of an application for buildings or works. The Responsible Authority is not required to give notice of its decision to grant a permit under Section 64 (1) and is not required to wait until the end of the period in which an objector may seek a review before issuing a permit. An objector is not permitted to seek a review of the decision under Section 82(1).

5. Whilst providing exemptions from the notice and review Clause 33.01-4 recognises that there may be circumstances in which the exemptions should not apply and provides that "This exemption does not apply to an application for a building or works within 30 metres of land (not a road) which is in a residential zone or Business 5 zone, land for used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre". [Tribunal underlining]

6. Opposite the Nestlé land to the south is a Residential zone. Excluding the part within the road the distance from the southern boundary of the Nestlé land to the Residential land is approximately 20m. It is noted also that the actual buildings on the land are setback a further distance from the southern boundary.

7. It was submitted that from time to time Nestlé will require to replace or renew plant or equipment that may fall outside the exemption provisions and therefore require a permit. Nestlé therefore seeks to clarify, in what circumstances it would be required to give notice of the proposal to the residents in the abutting residential zone and in what circumstances the exemption provisions would apply and it would not be required to give notice.

8. This issue is understood to have arisen recently and is expected to arise again shortly with Nestlé about to relocate or renew a further part of the plant. The recent instance related to an application for permit for the construction of a replacement silo. The Responsible Authority required notice to be given to the owners of land located in the Residential zone. The silo the subject of the application was located 105 metres from the Residential zone. The Responsible Authority issued a notice of decision to grant a permit and an application for review was brought by an objector. The Tribunal affirmed the decision of the Responsible Authority. The Tribunal accepted "that commissioning of the 250kl silo will represent a modification to the arrangements for the storage and delivery of standardised milk to the production line and that it will not result in an increase of production from the plant" an issue raised by the objector. (Deborah Warren-Saunders v Warrnambool City Council and Nestle Export Application No. P1519/2002 [Date of Order 7 October 2002])

9. The matter therefore to be clarified relates specifically to the reference to "within 30 metres" and as to how that measurement of the distance is to be calculated. Is it measured from the proposed building or proposed works to be located on the land on which the use is located or is it measured from the boundary of the land no matter what the distance the proposed buildings and works are, either from the boundary of the land on which the use is located or from the abutting residential zone.

10. Reference is made in two parts of the Industrial 1 zone to 30 metres. In Clause 33.01-1 in the Table of Uses indicating when a permit is not required the reference to Industry refers to _"_The land must be at least the following distances from land (not a road) which is in a residential zone ... 30 metres...".[Tribunal underlining] In this situation there is clearly a reference to "the land" which would include the whole of the land upon which the use is to be located and in such circumstances it would be considered that the measurement of 30 metres would be taken from the boundary of the land on which the use is to be located being the outer area that defines the particular parcel of land.

11. In contrast to the reference to "the land", in Clause 33.01-4 which relates not to use but to development, the reference is to "a building or works within 30 metres...".

12. It was submitted by the Applicant and accepted by the Tribunal that the draughtsperson clearly contemplated an industry would from time to time need to renew plant and equipment and if replaced with like for like then there is no requirement for a permit, similarly there is an exemption from the requirement to give notice in such circumstances.

13. It was submitted that as with this site many industrial plants are located on large sites. It would be unreasonable and unworkable to tie the consideration of notice of applications to a huge parcel of land when the proposed buildings or works, which could have some impact on the residential zone, could be located at the opposite side of the large parcel of land and well away from any residential properties, whereas the boundary of the land could be within 30 metres of the residential properties.

14. It was submitted and it is accepted by the Tribunal that there is a distinction drawn in the planning scheme between use and development, some uses are permitted as of right but there may still be a requirement to obtain a permit for the development of any buildings or the construction or carrying out of works in relation to the use. The planning scheme also contemplates that a use can have existing use rights (Clause 63) and that if there is contemplated any buildings or works in relation to an existing use there is still a requirement under Clause 63.05 to obtain a permit for such development. It is noted Nestlé has existing use rights.

15. It is considered that the distinction is continued between a use and a development in Clause 33.01, the use as industry is as of right in an Industrial 1 zone and does not require a permit provided it meets the conditions opposite the use in the table if it does not meet the condition then it requires a permit. The reference to 30 metres appears to be what is considered to be a buffer distance. An industry could establish itself as of right if the land upon which the industry is proposed is located at a distance of 30 metres or more from a Residential zone, presumably it is considered that that is a reasonable buffer to reduce any impact on the amenity of the residences in a Residential zone. The distance therefore measured for the use is from the boundary of the land to be used for the proposed use to the land to the Residential zone.

16. In relation to development, it is accepted that development in relation to a use can not occur on land unless the use is permitted whether by way of a permit or as of right. The buffer therefore of 30 metres that is set in relation to development, relates to the distance the actual development is to be located from the Residential zone. In this respect therefore, the distance of 30 metres is to be measured not from the boundary of the land on which the use is located, but from the actual building or works proposed. If therefore the proposed building or works is within 30 metres of a Residential zone then there is no exemption under the provisions of Clause 33.01-4 from notice and notice is required to be given. If however the distance when measured from the proposed building or works to the Residential zone is greater than 30 metres then the exemption applies and no notice is required to be given.

17. In the circumstances of the recent application for the replacement silo which was to be located 105 metres from the Residential zone the exemption would apply. Each particular proposal for buildings and works is required to be assessed in light of the provisions regarding the exemption from notice and review in Clause 33.01-4.

18. A declaration is made pursuant to Section 149A(2)(a) Planning and Environment Act 1987 that for the purposes of Clause 33.01-4 of the Warrnambool Planning Scheme the measurement of 30 metres is the distance from the proposed building or proposed works.

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Environment Act 1987

Nestle Export v Warrnambool CC [2003] VCAT 1389

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Nestle Export v Warrnambool CC [2003] VCAT 1389 (9 October 2003)

Parties

Legislation Cited (1)