Plant v Casey CC & Ors [2010] VCAT 1699

1. The decision of the Responsible Authority is set aside.
2. In permit application P217/09 a permit is granted and directed to be issued for the land at 23 Hilden Drive, Harkaway in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Use of the land for a contractor's depot

Mr S Morris QC, Barrister instructed by Rigby Cooke

Mr J Gobbo QC and Ms J Forsyth Barristers instructed by Ian MacDonald & Co

Mr G S Crebbin, Mr M Morris, Mr R Hourigan, Ms R Counsell, Ms R West, Ms J Fullwood, Mrs K MacDonald, Mr D Yuen in person

Vehicle store/contractors depot - to garage/park on the land vehicles used in a business conducted off the land

Application under Section 77 of the Planning and Environment Act 1987.

Significant Landscape Overlay (Schedule 1-Casey Foothills) (cl 42.03)

Heritage Overlay, Cardinia Creek Area between Inglis Road, Berwick and Chadwick Road, Harkaway ( HO28 clause 43.01)

Clause 35.05 - Use of land for a vehicle store/contractors depot

Subject land is irregular in shape and has a total area of 26.68 ha. Two existing vehicle crossovers one from Hilden Drive and one from Luke Place. Located on the subject land is a recently constructed dwelling, one cottage, a number of outbuildings including sheds, horse stables and paddocks, and dams. The land abuts an 8ha residential property to the north, Cardinia Creek to the east, land owned by Parks Victoria to the south and a Melbourne Water Pipe Track to the immediate west.

The Tribunal inspected the subject land, adjoining land and the area on 18 August 2010

Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; De Hann v Casey CC [2002] VCAT 644 ; Beninati v City of Greater Geelong [2002] VCAT 614; Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506; T A Lindsay Pty Ltd v Benalla Rural CC [2003] VCAT 1621; Lightowler v Casey CC [2008] VCAT 2054; Kraan v Cardinia SC [2006] VCAT 1629; Boroondara CC v Di Vincenzo [2005] VCAT 2717

1. Mrs Plant is the owner of land at 23 Hilden Drive, Harkaway. The land has an area of 26.68ha. A cottage and recently constructed new dwelling along with two large sheds, a number of outbuildings, horse stables, and dams are located on the land.
2. A short distance from the recently constructed dwelling is an existing shed which is used for the storage of vehicles and equipment related to Mr Plant's drainage contracting business (Comar Constructions Pty Ltd). This shed, which is 24m x 12m x 4.8m is located approximately 160m further to the north- east of the new dwelling and approximately 40m south of the site's northern boundary.
3. A permit application was made for the 'storage of work vehicles in an existing shed'. The application was refused on the basis that what was proposed is a 'store' which is prohibited within the zone. Additional grounds of refusal related to the proposal being contrary to the purposes of the zone, impacts on the amenity of nearby residents and the proposed use being more appropriately located in an industrial zone.
4. The Tribunal considers the following issues are required to be addressed:
   • The characterisation of the proposed use, and if a permit can be considered:
     • Whether the proposed use is contrary to the purposes of the zone and relevant policies
     • Whether the proposed use will impact on the surrounding road network
     • Whether the proposed use will impact on the amenity of the abutting neighbours.

1. Characterisation of the proposed use is a matter of fact and degree[2]. The Tribunal has been assisted in the current matter in reaching its decision on the characterisation of the proposed use as the activity is currently being carried out and the Tribunal was able to observe the use.
2. Mr Plant operates a drainage contractors business and often carries out work for Councils including in the near vicinity, Cardinia, Monash and Greater Dandenong. To assist in the operation of his business he uses the following vehicles: a 10m³ Isuzu Tip Truck and trailer; a 6m³ Hino Tip Truck; a 2.5 tonne Isuzu Tray Truck; 5, 13, 21 and 24 tonnes excavators; a bobcat and an articulated loader. This equipment is owned by his wife's company Talbot Marketing Pty Ltd and through an arrangement is used by his company Comar for its business activities.
3. Mr & Mrs Plant wish to store the vehicles and equipment and materials within the existing shed. The shed consists of a work bench at its southern end with a mezzanine level immediately above. Within the shed, apart from the three vehicles, I observed on my inspection, a pipe rack with various lengths of pipe, compressors, materials used for form work, materials such as grease and grease guns used for the maintenance of the vehicles, other equipment and other sundry items such as signs which are commonly used in a drainage contracting business.
4. Mr Plant submitted that at times all vehicles are off the site during the day and only one or two return in the evening, sometimes with other pieces of equipment but often not, as these pieces of equipment are usually left at the particular work site for the duration of the job currently being undertaken. He indicated the 21 tonne excavator was currently at Mt Eliza and it was rarely, if ever returned to the subject land but was merely moved from one job to the next. This, as well as the 24 tonne excavator, which was never located on the land were required to be moved by a freight company.
5. Mr Plant has two employees. If either one or both come to the land to take work vehicles and sometimes equipment to work sites they enter the property from Luke Place to the east rather than Hilden Drive which is to the west. When this occurs they leave their vehicles parked in front of the shed for the day.
6. Mr Plant and his wife have a large room in their new dwelling which is used for the keeping of their files, carrying out work in relation to their businesses and where a bookkeeper that they employ, comes twice a week to do their accounting. This room is filled with filing cabinets, desks, computers and papers.
7. Any repairs of the vehicles and other equipment which can be is undertaken either in front of or inside the shed. Mr Plant indicated that prior to the machinery leaving the site it would be greased.
8. I do not consider that what I have described above falls within the defined definition within the planning scheme of 'vehicle store', being 'land used to park or store vehicles in connection with a goods or passenger transport business'[3]. Whilst Mr Morris sought to link the transport of goods with the movement to and from the land of the earthmoving machinery, as well as the pipes and other equipment, I would agree with Mr Gobbo this is not part of a goods transport business. What is proposed could however, meet the conditional requirement for a 'vehicle store' under the zone provision that it 'must be in a building and not a dwelling and used to store motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot'.
9. I do not agree with Mr Gobbo or the Responsible Authority that what is proposed falls within the defined term of 'store' being 'land used to store goods, machinery or vehicles' and hence categorised as a 'warehouse', as 'store' is a subset of the land use 'warehouse'. I agree with the statement made by the Tribunal in De Hann v Casey CC[4] that the term 'store' implies 'that its land is used for storage or keeping of goods in some way for future use or shipment etc'. If it was to be characterised in such terms then it would be more appropriate to describe it as specifically a 'vehicle store'.
10. Reference was also made to the possibility of describing the activity as a 'depot' for which there is no definition in the planning scheme. 'Depot' is defined in the Macquarie Dictionary 4th edition as a 'depository; storehouse'. In Beninati v City of Greater Geelong[5] the Tribunal observed that the use proposed by a demolition contractor who sought to 'store' four vehicles on his land and where drivers would attend the site to leave their own vehicles within a compound whilst operating the trucks, was in reality a contractor's depot. The Tribunal referred to and agreed with the statements made in De Hann and granted a permit for use of the land as a 'depot involving the storage of not more than 4 commercial vehicles'.
11. In De Hann the Tribunal stated 'it seems to me that a "depot" typically operates as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions, such as repair and maintenance of vehicles and equipment occurs. For example, this is the type of activity that occurs in a municipal depot, this is typically what I would call a "depot"'.
12. There is no definition currently within the planning scheme of a 'contractors depot', although this term has been defined in earlier scheme provisions[6] as 'land used for the storage of three or more items of earth moving machinery including trucks, ditch digging machines, bulldozers, front end loaders, or other excavating machinery used by an earth moving contractor, landscape contractor or similar'. I would agree with Mr Gobbo this definition 'might be a neat fit for the applicant's present operation'.
13. In Andsand Pty Ltd v Kingston CC No 2[7] a similar question to that posed in the present matter was considered by the Tribunal and reference was made to a number of the earlier determinations of the Tribunal[8]. The Tribunal in granting a permit for use of the land in a Green Wedge zone as a 'contractor depot' allowed the following heavy equipment to be stored on the land: 6 trucks, 3 bobcats, 3 twelve tonne excavators. 1 front end loader, 1 trailer, 1 water truck and 1 soil sorting machine. The total area of the land in that case was 4.491ha considerably smaller than the subject land at 26.68ha.
14. The Tribunal stated:

'in this case, it might be described as an earthmover contractors depot. The land, the shed on it and a standing area round about is to be used in connection with the contracting business conducted by the company . it provides a place where vehicles and earthmoving plant can be parked or garaged overnight or when not in actual use. such vehicles and equipment are removed from the site and taken to places where work undertaken by the company pursuant to contracts it has entered is in fact carried out. Afterwards, at he end of the day or at the end of the job, vehicles and equipment are brought back to this home base or "depot".

Employees whose duties include moving and operating the vehicles and equipment come to the site to pick up the vehicles and equipment, remove it to work sites and then bring it back. Some administrative work in connection with the business is carried out on site and some incidental activities such as vehicle and equipment maintenance and repairs can also be carried out from time to time.

In my opinion, it is plain that this is not a "Store" within the meaning of the planning scheme. To suggest that it is, is to confuse the concept of storing goods with the concept of parking or garaging vehicles and equipment. This is a significant and obvious distinction that cannot be glossed over or ignored.

1. Whilst I consider that the proposed use could be described as a 'depot', I prefer to characterise it more specifically in this case as a 'contractor's depot'. Mr Plant is a drainage contractor, he wishes to store several vehicles and equipment in relation to his business on the land. The vehicles and equipment are owned by his wife's company. They both reside on the land and the paperwork in relation to their businesses is carried out on the land. As an innominate use a permit can be considered under the zone provisions.

Is the proposed use contrary to the purposes of the Zone and relevant policies?

1. Ms Counsel described Harkaway as 'a bit like a small-scale Midsomer without the murders' referring to a well known British Television program. I am unable to confirm this view although I would agree with the description that 'the prevailing character of the area can be described as lifestyle properties which are distinctly rural in nature'. Large dwellings are located on relatively large pieces of land with properties having large established or bush type gardens. The keeping of horses appears to be a common rural type activity with the subject land being one such property. A number of the roads in and around the area, including Hilden Drive, are designated equestrian trails.
2. The vehicles and equipment used by Mr Plant are used on occasions to assist in the rural activities conducted on the land and have been used to assist the abutting neighbour on at least two occasions. Although it may not be considered that such occasional use could be considered to operate in conjunction with the existing agricultural activities on the land
3. Urban type uses are discouraged from establishing in green wedge areas. Whilst the vehicles stored on the land are used in Mr Plant's drainage contracting business the vehicles are in many ways no different from various pieces of farming equipment that would be expected to be stored in a rural environment. If not stored on such land they may be brought in to carry out a variety of rural activities. I am therefore unable to find there is a significant difference in the type of vehicles to be stored on the land to the type of vehicles used by the abutting neighbour to install fences, clear trees construct dams, maintain roadways and assist in other rural activities with such equipment being stored on the land.
4. Because I do not consider there is a significant difference I am unable to conclude that the storing of the vehicles on the land offends clause 22.21 which seeks to discourage urban type uses. I would not expect that the type of rural equipment kept on and used by the abutting neighbour would be considered an urban type use, nor do I consider that the storing of such vehicles can be described as an 'industrial use'.
5. The storage of the vehicles on the land is relatively small scale with the majority of the land given over to rural living activities. The vehicles are stored in an existing shed which is not visually intrusive. This is not a stand alone large scale use but is very much bound up with the residents of the subject land. The size of the land and the rural activities conducted on the land are unlikely to be economically viable as a working farm and as described the area encompasses what is described as a rural lifestyle. This is a choice of the residents but it should also be acknowledged that they may need to supplement their income to be able to maintain such a lifestyle. I consider the storing of the vehicles as being inextricably bound up with the residents of the land and the business they conduct from the land.
6. The use of the land as a contractor's depot is neither supported or objected to within the provisions of the zone and policies. It is an activity that must therefore be considered in the context of the surrounding area. It is contained within an existing shed and has no impact on the landscape and heritage values of the area.

Will the proposed use impact on the surrounding road network?

1. What appears to be of concern to the McDonalds, as well as to various residents in and around King Road and Hilden Drive is the movement of the vehicles from the land and their impact, or the perceived impact that the vehicles have on the road network and the local users of the road network.
2. The roads are rural in nature, are not wide with a narrow shoulder and table drain on each side, are generally gravel with sealed sections through the township of Harkaway. Some sections of the road network are steep and larger vehicles often have difficulty ascending in these locations.
3. My observation of the road network led me to the conclusion that it is typical of numerous rural roads. In such areas it is not unusual for vehicles to have difficulty passing one another and with larger vehicles this is a little more difficult. I observed several trucks on the roads during my inspection of the area and would agree with the residents that people walking along the roads or riding horses would find it difficult in some places to move onto the sides of the road due to the steep verges and table drains. However, I would expect that a resident user of the roads in the area, whether in a large vehicle or not would be aware of the possibility of people or riders on the road and would not travel at speed. In fact the terrain and condition of the roads, particularly parts of King Road and Hilden Drive do not lend themselves to high speed, even in a car.
4. I noted from the evidence of Mr Turnbull and from the witness statement of Mr Hunt that there was a very small number (approximately 30) of trucks or commercial vehicles that frequented King Road and Hilden Drive. Movement of two or three commercial vehicles, commonly used by Mr Plant, even on a daily basis, in my view will have a minimal impact on the road network. Although residents were intent on pointing out potholes and bad sections of the roadways there was no evidence to suggest that such damage was caused specifically by commercial vehicles and in particular Mr Plant's vehicles. It appeared to me to be general wear and tear of a rural road which all require regular maintenance.
5. The applicant had provided an expert witness statement by Mr Hunt, a traffic engineer, but did not call Mr Hunt to give evidence or to be cross examined, rather Mr Morris on behalf of the applicant indicated the applicant would agree to a condition confining the movement of commercial vehicles from the land to Luke Place or along Hilden Drive, King Road and Baker Road rather than through the township of Harkaway. Baker Road provides alternative access to the north and Mr Plant indicated he had regular jobs in that direction.
6. The applicant further agreed to a condition that would restrict the movement of commercial vehicles from the subject land between 6.30am and 6.30pm Monday to Friday and on not more than 6 days in any year on a Saturday or public holiday.
7. Luke Place is to the south-east and is accessed via a bridge which crosses Cardinia Creek. Luke Place is in part sealed and in part unsealed and extends from the subject land to the Beaconsfield-Emerald Road, Guys Hill. Luke Place provides ready access via the Beaconsfield-Emerald Road to the freeway to the south and is considered suitable for use for some but not all the commercial vehicles particularly if they have a trailer or heavy load due to the constraints of the bridge.

Will the proposed use impact on the amenity of the abutting neighbours?

1. The McDonalds, as abutting neighbours and with the potential to be most affected by the proposal have expressed the most concern regarding the proposed use of the land for the storage of the commercial vehicles. It was clear they would like it not to exist.
2. They indicated their amenity has been severely impacted upon as a result of the movement of vehicles from the land on a daily basis starting in the early hours of the morning. Such movement includes noise from reversing beepers and headlights shining directly towards their dwelling. These impacts had become more apparent as the McDonalds had moved from one dwelling on their land that was closer to Sewell Drive/ Hilden Drive to a second dwelling located further east into their property and approximately 120m from the boundary with the subject land. This dwelling which is located to the north is almost opposite the shed and surrounding hardstand area where the vehicles are located and is also located on a higher piece of land. Clear views of the shed and surrounding hardstand area can be seen from various rooms in their dwelling, even though they have undertaken some understorey planting along the common boundary in an attempt to screen the view.
3. One of the purposes of the Green Wedge zone is to 'recognise and protect the amenity of existing rural living areas'. Whilst the abutting neighbours are some distance from the shed on the subject land I accept the description by the McDonalds that this is, in the early hours of the morning, a relatively quiet rural area. Therefore the starting up of commercial vehicles, any reversing of such vehicles using reversing beepers and general conversation of people going about these activities is expected to create noises that can readily be heard some distance.
4. I do not consider that the storing of the vehicles on the land is inappropriate and it is not unreasonable to expect in a rural living area that there will be various noises that arise from various rural type activities conducted on such properties. In recognising that the area is quiet in the early hours of the morning this is the time in which the amenity of neighbours should be protected. I do not consider however that any such protection should be extended into the daytime or even into the evening.
5. Several things in my view can be carried out to protect the amenity of the McDonalds in the early morning. Firstly the noise of the activity and the time it is undertaken should be addressed and secondly there should be an increase in the screening of the activity on the site.
6. I understand that noise from reversing beepers is very annoying but are a necessity to ensure the safety of those working nearby. If the equipment that uses such beepers was not required to be reversed in the early hours of the morning this would go along way to reducing the noise impacts currently experienced by the abutting neighbours. The loading and unloading of the vehicles and positioning them so that there is no requirement to reverse in the early hours would be helpful.
7. The applicant has indicated they would be prepared to have a condition imposed that restricted the movement of the vehicles to between 6.30am and 6.00pm Monday to Friday. Whilst there was a request for a 7.00am start rather than 6.30am I consider it is unnecessary to so restrict the time. Staring at 6.30am is not unreasonable during a working week, although it may be a little early on weekends, but I note that the applicant is prepared to confine the movement of the commercial vehicles to 6 days in any year on a Saturday or pubic holiday.
8. I consider that the amenity of the abutting neighbours would also be greatly improved if they did not have a clear view of the shed and hardstand area. There is a small mound in part on the northern side of the shed and hardstand area but flattens to the east to allow for the access road to the shed and hardstand area from along the northern boundary. It was suggested and I believe would be appropriate, to increase the size and width of the mound and to narrow the access road opening to the north. This would mean that the hardstand area to the east could be sloped to allow for an access road in this direction, thereby moving vehicles away from the access to the north towards the McDonalds' dwelling.
9. The mound is currently without any vegetation. By increasing the size of the mound and by also undertaking landscaping of this area the direct views currently experienced by the abutting neighbours will be reduced. It is expected that the understorey planting they have carried out along the common boundary on their land will contribute to the reduction in the views and along with the vegetation of the mound can only but improve the situation.

1. Mr Morris prepared a set of draft conditions based on the draft conditions provided by the Responsible Authority but which included a number of conditions the applicant considered appropriate. I have considered these conditions along with the submissions and further comments from all the parties. I have adopted some of the conditions and included some additional conditions particularly in relation to the increased mounding and its landscaping and a change to the access road to the shed and hardstand area.

1. Having had the opportunity to observe the proposed use I consider it can be characterised appropriately as a 'contractor's depot'. The use of what is a small portion of the land in this way within the zone does not offend any of the purposes of the zone. The use is not a stand alone use but rather a use carried out by the residents of the land. It is considered that given the small scale of the use that any existing or perceived impacts on the amenity of the abutting neighbours can be readily addressed by appropriate conditions within the permit.
2. The decision of the Responsible Authority is set aside and a permit is directed to be issued for the use of the land for a 'contractor's depot' subject to conditions.

Use of the land for a contractor's depot in accordance with the endorsed plans.

1. Before the use starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) an increase in the height by at least 1 - 2m and width by at least 1m of the mound to the north of the shed and a narrowing of the access road sufficient to allow a vehicle or tractor access from the hardstand area to the access road to the north;

(b) the provision of an access road to the shed and hardstand area from the east;

(c) a permanent screen of trees and shrubs must be planted over the mound to the north of the shed and hardstand area to provide an effective visual screen to the satisfaction of the Responsible Authority.

The landscaping works as shown on the endorsed plans must be completed within 12 months of the date of this permit to the satisfaction of the Responsible Authority. The landscaping must then be maintained to the satisfaction of the Responsible Authority

The use shall be confined to the shed and the adjacent hardstand area, as shown on the endorsed plans, and must not be altered without the written consent of the Responsible Authority.

No more than three registered commercial vehicles that are used in conjunction with the contractor's depot shall be present on the land at any time, unless with the consent of the Responsible Authority.

The commercial vehicles and equipment that are parked or stored in the contractor's depot are limited to the vehicles and equipment detailed on page 15 of the evidence statement of Stephen Hunt dated 21 July 2010, or equivalent replacement vehicles or equipment to the satisfaction of the Responsible Authority.

All access to and from the contractor's depot by commercial vehicles (which term does not include cars and SUV utility vehicles) must be via Luke Place, using the private bridge over Cardinia Creek owned and maintained by the operator or along Hilden Drive, King Road and Baker Road.

Without the further written consent of the Responsible Authority other than in bona fide emergency circumstances or the special circumstances specified below, the movement of commercial vehicles (which term does not include cars and SUV utility vehicles) to and from the site must be restricted to:

On not more than 6 days in any calendar year commercial vehicles may be moved to or from the site on a Saturday or gazetted public holiday.

7. In conducting the use, in addition to residents of the dwelling on the land, not more than three staff members must be present on the land at any one time.

8. This permit allows the use of the contractor's depot by Ms Marli Plant or Mr Colin Plant (or a company in which they have a majority interest) only_._ If Ms Marli Plant or Mr Colin Plant ceases to occupy the dwelling on the land, this permit will expire.

All commercial vehicles must be stored within a building at all times. Additionally, any other equipment, materials goods or machinery used in conjunction with the contractor's business must not be stored or allowed to remain on any part of the site that is visible to the public from adjoining properties.

Maintenance work on vehicles and refuelling of vehicles must only take place between the hours of 6:30am and 6:00pm Monday to Friday.

Repairs and maintenance of vehicles (referred to in condition 5) and equipment must not be carried out other than on vehicles and equipment parked and/or stored on the land. Panel beating is not allowed.

The use and development must be managed to the satisfaction of the Responsible Authority so that the amenity of the area is not detrimentally affected, through the:

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

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

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

Noise levels emanating from the land must comply with the requirements of the Environment Protection Authority's Information Bulletin No. N3/89 Interim Guidelines for the Control of Noise in Country Victoria.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons

[2] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529

[4] [2002] VCAT 644

[5] [2002] VCAT 614

[7] [2009] VCAT 2506

[8] Beninati v Greater Dandenong CC [2002] VCAT 61; T A Lindsay Pty Ltd v Benalla Rural CC [2003] VCAT 1621; Lightowler v Casey CC [2008] VCAT 2054; Kraan v Cardinia SC [2006] VCAT 1629, Boroondara CC v Di Vincenzo [2005] VCAT 2717