Poohawk Pty Ltd v Glen Eira CC [2006] VCAT 2477

1 The Tribunal finds that the cantilevered racks located on the southern boundary of the land at 333-337 Hawthorn Road in Caulfield:

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are being unlawfully used for the storage of timber associated with the adjoining hardware store; and

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are unlawful in lacking "buildings and works" consent from the Responsible Authority.

2 These cantilevered racks must be dismantled and removed to the satisfaction of the Responsible Authority within 45 days of the date of these orders (or within any extended period granted in writing by the Responsible Authority).

3 After such removal, to the extent that the development of the area formerly occupied by the cantilevered racks is still inconsistent with what is shown on the relevant planning permit endorsed plans, then any necessary further works to achieve compliance with the relevant endorsed plans must be completed to the satisfaction of the Responsible Authority within a further 30 days (or any extended period granted in writing by the Responsible Authority).

4 As the Section 149 Application was not actively pursued and given the Tribunal's findings in the other matters P2576/2005 and P647/2006, the Tribunal strikes out the Section 149 Application.

5 The decision of the Responsible Authority is affirmed. In permit application No. GE/PP-18303/2006, no permit is to issue.

Philip Martin

Member

Mr Graeme Peake of Counsel appeared for Glen Eira City Council, instructed by Freehill Hollingdale & Page Solicitors. He called sworn evidence from Council's Planning Enforcement Officer Mr Taylor.

1 This one overall matter has involved three different Tribunal applications, being an enforcement application, a Section 149 application and a without prejudice retrospective permit application that was refused by Council. However it emerged at the beginning of the hearing before me that the Applicant was content not to pursue the Section 149 Application, as it had been effectively overtaken by the merits review. This left me with:

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the enforcement application to deal with first; and if necessary

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then the merits appeal against Council's Notice of Refusal to Grant a Permit.

2 In practice, the source of all of this paperwork and controversy is a set of six metre or so high cantilevered racks, located on the southern boundary of the land at 333-337 Hawthorn Road in Caulfield ("subject land"). See the location plan annexed to the back of this decision. Hawthorn Road is a north-south road and the subject land is located on the eastern side of it, a little to the north of Glen Eira Road. The subject land is used for the Penhalluriack plant nursery business. To the south of the subject land are two residential dwellings. Further south again and also to the rear of the two residential dwellings is the Penhalluriack hardware store site and business (ie the two residential dwellings are sandwiched between the nursery and the hardware store sites).

3 All of the abovementioned sites are zoned Residential 1. Although it was common ground that the hardware store site has the benefit of existing use rights, the plant nursery business operates under planning permits. Although a plant nursery is a permissible use on the subject land under the Residential 1 zoning in question, any hardware store activity on the subject land falls within the broader land use of "retail premises", being a prohibited use in a Residential 1 zone.

4 It was also common ground at the hearing that any new buildings and works on the subject land would require buildings and works consent from Council, either under the Residential 1 zoning and/or under the relevant permit condition of the applicable planning permit for the subject land. No such buildings and works consent for the racks had been granted by Council.

5 Council's enforcement application took a double-barrel approach in alleging through Mr Peake's submissions that:

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there was a failure to obtain the necessary buildings and works consent from Council for the racks; and also that

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the racks have been unlawfully used for the storage and sale of timber associated with the adjoining hardware business, being a prohibited "retail premises" use on the subject land under the Residential 1 zoning.

6 In response, the relevant owners/occupiers through their advocate Mr Cicero:

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denied that the day to day use of the racks involved any unlawful activity;

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argued that the racks do not constitute a "structure" for the purposes of the definition of "building" in the Planning and Environment Act 1987, but rather are the type of temporary items routinely and legitimately used by retailers for the displaying of their goods without the need for any "buildings and works" consent from Council; and

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in the alternative, submitted that a modified version of the racks (notably reduced in height from six to five metres) should be granted retrospective merits approval.

7 In terms of the findings of the Tribunal, I have favoured Council's submissions that the racks have been unlawfully used for the storage of timber associated with the adjoining hardware business, and also require buildings and works consent. In relation to the former issue, I consider that the thrust of the practical evidence points to the real and substantial purpose of the timber storage being part of the hardware store business operations. With respect to the latter issue, I have been required to traverse extensive caselaw regarding the meaning of the term "structure". My ultimate finding has been that, when one takes into account the relevant statutory objectives of the planning system in Victoria and a common sense approach, the racks should properly be regarded as a "structure" for our purposes here.

8 My final task has been to consider the without prejudice merits application that a modified version of the racks deserve planning approval, notably with a reduction in height from six to five metres. I have rejected the merits application on the basis that (even with the relevant modifications to the racks) there is insufficient planning policy support, the prospect of unacceptable amenity impacts on the side neighbour, and the likely scenario of the modified racks being an eyesore when viewed from Hawthorn Road. Hence my final orders have been that the racks must be removed within 45 days of the date of my orders, and that the merits appeal is refused.

9 The basic nature of this matter is set out in the summary above.

10 During the hearing of this matter over 3 May and 31 August 2006, I heard submissions from the parties, and was provided with numerous photographs, plans and other relevant materials regarding the subject land. I appreciate the considerable legal research carried out by both advocates which has assisted the Tribunal in its deliberations. I also heard sworn evidence from Council's planning enforcement officer Mr Taylor.

11 After the hearing of this matter, I conducted an inspection of the whole complex of which the subject land forms part. This involved walking around the subject land on which the racks are located, together with the plant nursery/shop area and the hardware shop area. I also took particular note of the interface between the contentious racks and the adjoining residential dwelling.

12 For the purposes of this decision, I shall refer to Poohawk Pty Ltd, Ester Tang and Frank Penhalluriack as "the Applicant", and I shall refer to Glen Eira City Council as "the Council".

13 With respect to the allegations made in the Application for Enforcement Order form regarding what Council regards as the unlawful activities occurring on the subject land, a copy of Attachment A to the form is set out as an Annexure to this decision. Suffice to say that the key aspects of Council's enforcement case concentrates on:

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Council's belief that the Applicant is unlawfully using the racks for the storage and/or sale of timber, given Council's belief that the timber being stored on the racks is part of the hardware rather than the nursery activities (and bearing in mind that "hardware" is a prohibited use under the Residential 1 zoning that the nursery site is subject to); and

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Council's allegation that the racks constitute a "structure" which has been erected without any "buildings and works" permit, and/or in breach of the requirement under Condition 6 of Planning Permit No. GE9652 that no new buildings and works occur without Council's consent.

14 The nursery and hardware business described below are located on Hawthorn Road, a short walk to the north of the South Caulfield neighbourhood shopping centre. This neighbourhood shopping centre land is zoned Business 2, as is land on the opposite side of Hawthorn Road from the subject land which features a variety of mainly office uses. Moving further north again from the subject land, there is predominantly residential dwellings. As described below, the nursery and hardware businesses are themselves split by two residential dwellings as 339 and 341 Hawthorn Road.

15 The subject land has a street address of 333-337 Hawthorn Road and is located on the south-east corner of Brigg Street and Hawthorn Road in Caulfield. It is developed and used for the purpose of a retail plant nursery, as authorised by planning permits GE/PP 16789/2004 and GE 9652 and the relevant endorsed plans.

16 In relation to the layout of the plant nursery (see the attached layout plan), there is a shop located in the central part of the nursery site. There is a substantial open display area to the north and west of the shop. To the south-east of the shop is a loading bay area. Immediately south of the shop access aisle (ie where vehicles can enter the site from Hawthorn Road) together with 10 car parking spaces which are oriented north-south on the southern edge of the subject land.

17 Moving further south again from the car parking spaces is a residential dwelling, being No. 339 Hawthorn Road.

18 Situated on the southern edge of the car parking spaces (and adjoining the common boundary with the 339 Hawthorn Road residential dwelling) are the contentious storage racks which are my focus here. I have described the storage racks in more detail below.

19 In relation to the balance of the relevant area, there is another residential dwelling further south again at No. 341 Hawthorn Road.

20 To the east and south of the two residential dwellings is an associated area occupied by a business known as Penhalluriacks Hardware (having a street address of 345 Hawthorn Road). It was common ground at the hearing that the Penhalluriacks Hardware business has existing use rights and has also been the subject of numerous development permits. This irregular shaped area used for the hardware business features the main hardware shop with a frontage to Hawthorn Road, plus various other related buildings, loading areas and storage areas. A Council car park adjoins the hardware shop to the south.

21 If one takes advantage of the north-south laneway which extends along the rear of the two residential properties plus the associated access areas and loading bays which lie between the nursery business area and the hardware business area, it is possible to walk or drive a vehicle between the nursery plant business area across behind the two residential dwellings, and into the hardware business area located further south.

22 In relation to the dwelling at No. 339 Hawthorn Road, this is a single storey period dwelling located relatively close to its northern boundary. The dwelling is set back 8.5 metres from Hawthorn Road and also set back 1.54 metres (ie a service walkway) from the common boundary with the plant nursery site. The dwelling at No. 341 is also a single storey period dwelling.

23 As alluded to, the main focus of this matter has been these 6 metre or so high MECA cantilever storage racks which are located on the side boundary between the 333-337 Hawthorn Road plant nursery site and the residential dwelling at No. 339 Hawthorn Road. The closest part of this racking is setback from Hawthorn Road by about 6.8 metres, then the racking extends some distance east to a point being level with or close to level with the rear boundary of the adjoining 339 Hawthorn Road residential dwelling. It was common ground at the hearing that part of the land now occupied by the racks was formerly a landscaping garden bed strip running parallel with the side boundary (ie this garden bed was replaced with a concrete slab as part of assembling the racks).

24 The racks have been built in a cantilevered fashion over the southern end of the 10 north-south oriented car parking spaces, with the adjustable arms of the racks extending horizontally from the uprights and facing northwards (ie away from the 339 Hawthorn Road dwelling and towards the nearby nursery shop). There are various bracing arms between the various uprights of the racks.

25 The evidence indicates that in practice the racks are mainly used for storing timber, although various smaller items are stored on the bottom rack. The base of the storage racks is not bolted to the cement slab on which the racks sit, although there are various holes drilled in the "feet" of the racks which feature a bolt extending out from each hole (thereby blocking any significant lateral movement of the base section of the racks). I understand that timber is routinely moved on or off the storage racks using a forklift, which is manoeuvred across the access aisle and car parking areas. Presumably this might on occasion require a customer to move their car from a particular car parking space.

26 The racks do not have any external cladding but the top rack features various timber attached to the various arms of the top rack, running east-west, which gives the top shelf a pergola like appearance.

27 Both the substantial height of the racks plus this pergola-like feature of the top of the racks make the racks relatively prominent when viewed obliquely from the north-west or from the opposite side of Hawthorn Road.

28 Whereas the enforcement hearing aspect of this matter has involved consideration of the contentious storage racks "as is", the merits review aspect of this matter (ie assuming the Tribunal has made an enforcement order ruling favourable to Council) proceeded on the basis that the Applicant would make the following modifications to the storage racks:

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translucent sheeting would be fitted on the south (ie. rear) side of the vertical section of the racks;

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the top shelf of the racks (which currently have a pergola like appearance) will be fitted with galvanised iron sheeting;

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in recognition that the cladding of the rear and top of the racks would have load bearing consequences for the racks, the Applicant volunteered that (if the Tribunal made favourable merits orders) a permit condition could be imposed, requiring the Applicant to provide a satisfactory "structural engineering report" dealing with any load bearing consequences of this new cladding;

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removing the two bays of racking closest to Hawthorn Road, to increase the setback of the racks from Hawthorn Road;

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the height of the racking would be reduced from 6 metres to 5 metres (which would result in the 5 metre high racking being 2 metres lower than the ridge line of the adjoining No 339 dwelling). As part of this arrangement, it is also proposed to re-paint the steel columns and beams to "alter the appearance of the racking such that it takes on a more "solid" appearance and thus will blend further against the background of the adjoining dwelling"[1].

29 Mr Cicero indicated that the main aim of the translucent cladding that will be fitted to the vertical part of the racks is to provide noise protection for the adjoining residential neighbour, while still allowing some sunlight to penetrate through into the north facing windows of the adjoining dwelling.

30 I refer to the following useful summary of the planning permit situation from pages 2 and 3 of the Council "enforcement" written submissions.

The site is developed and used for the purpose of a retail plant nursery pursuant to planning permits GE/PP 16789/2004 and GE 9652 and the plans endorsed thereunder.

Permit GE 9652 permits the land to be used and developed for the purpose of retail plant nursery and the provision of vehicular access to the adjoining hardware store, in accordance with the endorsed plans. This permit was originally issued on 3 February 1997 and amended on 5 February 1998.

The permit and the endorsed plans each contain reference to Planning Permit GE 8564, which is the same permit but was given a new permit number when it was amended.

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Required a s.173 agreement relating to the provision of access to the adjoining hardware store (Condition 2);

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Contains an informal consent provision for the amendment of plans (Condition 5);

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Prohibits buildings and works without the consent of the Responsible Authority (Condition 6);

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Requires the carpark and access lanes to be satisfied and kept available for that purpose.

Permit GE/PP 16789/2004 allows, relevantly that, the construction and alterations and additions to the existing garden supply centre. It contains similar conditions to those in the primary permit.

31 While there is no need for me to specifically itemise them, I acknowledge that I was provided with a bundle of historical planning permits for the whole complex of which the subject land forms part.

32 As I shall be returning to it below, I note that Condition 20 of Planning Permit No. GE9652 (which affects the subject land) provides that:

Deliveries, loading and unloading of goods and access via 337 Hawthorn Road to the hardware store shall only occur during the following hours:

33 In relation to the s.173 agreement, this agreement is dated 2 October 1997, and was entered into by Council, Frank Penhalluriack, Ester Tang and Julieanne Laird. The most important clause of the s.173 agreement is cl.7.1, which provides as follows.

7.1

if at any time and for any reason during the life of this Agreement, the provision of vehicular access in and cross (sic) the Subject Land (being accessed for the purpose of loading or unloading goods in relation to the use of the Hardware store) becomes unavailable:

a.

the use of the subject land for a retail plant nursery must immediately cease;

b.

any rights or privileges under the Permit in relation to the continuing use of the subject land for a retail plant nursery cease and become void;

c.

insofar as is necessary, the owner consents to any application that Council may make to cancel the Permit.

34 In conjunction with this clause 7.1 of the s.173 agreement, the most relevant planning permits No. GE/PP 10332/1999, CAUL 7323 and ACUL 6423 set out the current layout of the Penhalluriacks Hardware operation and in particular show that the loading bay area previously accessed from the northern laneway is now accessed via the crossover and access aisle on the subject land.

35 The subject land is zoned Residential 1 and there are no applicable overlay controls. Under cl.32.01-1 of the planning scheme, a "plant nursery" is a section 2 use. However, retail premises (other than community market, convenient shop, food and drink premises and plant nursery) are prohibited.

36 The practical result is that, in the context of the Residential 1 zoning, the plant nursery use can only operate on the subject land at 333-337 Hawthorn Road subject to a permit (which includes the land on which the racks are located), and any "hardware store" use is prohibited. The Residential 1 zoning also includes the usual "buildings and works" permit requirement in relation to any section 2 use, pursuant to cl.32.01-6.

37 I otherwise have set out below the useful summary of the other relevant planning scheme provisions from pages 5 and 6 of Mr Peake's submission in relation to enforcement matters.

"Land used to propagate, grow and sell plants. It may include the sale of gardening equipment and horticultural products."

Under the nesting of definitions, plant nursery (and garden supplies) are included in landscape gardening supplies, which in turn is included in retail premises.

"Building" is defined in section 3 Planning and Environment Act 1987 as including, inter alia:

"A structure and part of a building or a structure."

The Decision Guidelines at clause 65 require the Tribunal to consider, inter alia, the purpose of the zone, any matter required to be considered in the zone, the orderly planning of the area and the effect on the amenity of the area.

Policy for institutional and non-residential uses in Residential Areas is set out at clause 21.08. The policy objectives include:

"To ensure that non-residential uses are successfully integrated into residential zones with minimum impact and minimum loss of residential amenity."

"Encourage new buildings and works that are compatible with the residential character of the streetscape and neighbourhood.

Encourage uses that have a minimal effect on residential amenity."

Clause 22.02 sets out local policy for "non-residential uses in residential zones". The objectives of the policy include:

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to successfully integrate non-residential uses into residential areas with minimal impact;

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to ensure that adequate provision is made for appropriate onsite parking for all non-residential uses;

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to maintain the garden character of the neighbourhood;

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to minimise the effect of non-residential uses on the residential amenity by controlling staff levels, number of practitioners, hours of operation and the size and intensity of the use as appropriate.

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Building height, length and location not cause significant loss of amenity to neighbouring residents.

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Street frontage setbacks respect the amenity of the residents and the character of the neighbourhood.

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The density, design, scale and visual appearance of any buildings be in harmony with and enhance the existing streetscape and be respectful of the neighbourhood.

38 To avoid duplication, I will not repeat the submissions put to me by Mr Cicero and Mr Peake regarding the enforcement application, as a copy of their written submissions are retained on the Tribunal file, along with various plans, photos and other materials tendered during the hearing. Suffice to say that both advocates provided me with comprehensive submissions and Mr Cicero in particular referred to an impressive array of previous cases[3].

39 As a preliminary point, there was some debate during the hearing whether the mere loading and unloading of timber on or off the racks constituted an unlawful "hardware store" use of the racks, in the context of the Residential 1 zoning making any hardware use prohibited. Mr Peake's case at its highest included his submission that any such loading or unloading of hardware should be occurring further east from the racks in the loading bay which forms part of the hardware site. Following this line of thinking, the relevant planning controls only facilitate any timber deliveries gaining mere access over the subject land.

40 By contrast, Mr Cicero relied on the fact that Clause 7.1 of the 173 Agreement and Condition 20 of the GE9652 planning permit (I have set out both provisions above) pick up all three activities of loading, unloading and access. Following Mr Cicero's approach, Clause 7.1 and Condition 20 in fact recognise and authorise all three potential activities occurring on the subject land in relation to the hardware store ie each of access, loading and unloading being lawful on the subject land in relation to the hardware store.

41 Despite this debate at the hearing, strictly speaking I consider that I do not need to reach any formal finding on this "loading and unloading" issue, since in fact Attachment A to Council's Application for Enforcement Order has a narrower scope in alleging that there has been an unlawful storage and sale of timber on the racks. However I can indicate in passing that I consider the drafting of Clause 7.1 (which also includes a typo) and Condition 20 to be unhelpful and to include some degree of ambiguity whether the references to "loading" and "unloading" were intended to be linked to the hardware store. Given this ambiguity, I would have faced real difficulty in granting the enforcement application on this grounds alone.

42 I will be tackling my findings on the enforcement application by:

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first dealing with the issue of whether the racks have been unlawfully used for hardware store activities; and then

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dealing with the question whether the racks constitute a "building" as defined (which includes a "structure") which has been erected without any "buildings and works" consent from Council.

43 Although Council raised one or two other grounds of alleged illegality of the racks, I consider any such other grounds to be peripheral, and that it is the two issues listed above on which the enforcement application turns.

44 In reaching my findings on these two key issues, I have drawn upon not only my professional experience as a lawyer and qualified planner, but also my personal experience in having survived two major domestic renovations and also landscaped a domestic garden from scratch.

Have the racks been unlawfully used for hardware sales or storage purposes?

45 I am satisfied from the evidence presented to me that the Applicant has been unlawfully storing timber on the racks for purposes associated with the adjoining hardware store. With a "hardware store" constituting a form of "retail premises" and with retail premises (other than community market, convenience shop, food and drink premises and plant nursery) being a prohibited use under the Residential 1 zoning in question, I accept Council's case that the storage of timber for hardware purposes that has been occurring on the racks is a prohibited use and must cease.

46 I rely on the following points in reaching this finding.

47 First, there was some debate at the hearing whether the timber on the racks (as shown on the photos tendered at the hearing) can be regarded as capable of being used for plant nursery purposes. Mr Peake's submission here relied upon photos which he tendered of the timber on the racks, with Mr Peake arguing that these photos indicate that the timber stored on the racks is of such a substantial size and length that one would expect it to be used by builders for timber framing or flooring rather than garden purposes. He also relied on the fact that some of the wood stored on the racks appears to be ordinary pine wood rather than treated pine wood. These submissions were opposed by Mr Cicero, who argued that at least some of the wood might be used for garden purposes. From my review of the various photos tendered to me and from my site inspection, I accept Mr Peake' submission that a large proportion of the timber on the racks has a "building" rather than a "plant nursery" appearance.

48 Second, Mr Peake relied on the fact that a letter written on behalf of the Applicant dated 26 July 2005 stated that - "We are instructed that the storage racks are required for the proper and efficient operation of hardware store"[4]. Mr Cicero did not factually dispute the contents of this letter.

49 Third, Mr Peake tendered during the hearing a Penhalluriack's Building Supplies colour sales brochure. Although this brochure is undated, Mr Peake indicated that it has been circulated relatively recently. This brochure includes a prominent photo of large stacks of wood on the racks, under the heading "We cater for all trade and home builders needs". The photo includes an apparent staff member (ie the person is wearing a top featuring the word "Penhalluriack's"), with the staff person's arm draped around the neck of a blokey-looking gentlemen who presents to the reader as a builder or tradesman. Again Mr Cicero did not factually contest the situation here. The very fact that this photo was taken in front of the racks (rather than somewhere else in the hardware store proper) not only reinforces the Council's "unlawful storage" case but in itself provides a prima facie case that the racks have been used for the sale of timber as part of the hardware store activities.

50 Fourth, it was the sworn evidence of the Council Planning Enforcement Officer that, from his three visits to the racks, wood can be stored on the racks for not only a few days but potentially for some weeks. Mr Peake indicated that this was his impression also from his inspections. This was denied by Mr Cicero, who argued that the typical situation was that wood unloaded on the racks would only stay on the racks for up to say a week, before being moved to somewhere in the hardware store site. Whilst recognising conflicting information here, I consider it reasonable to give some weight to this aspect of the sworn evidence of the Planning Enforcement Officer.

51 Fifth, I have considered but find unconvincing Mr Cicero's reliance on the case of Auckland City Council v Ports of Auckland Ltd [2000] NZCA 190; [2000] 3 NZLR 614. It was held by that court that the area legitimately used for unloading shipping containers included areas where the containers were stacked prior to being loaded on ships. Mr Cicero also highlighted that the court referred to the temporary storage of containers for up to seven days awaiting arrival of a vessel, as follows.

We have not overlooked that containers may spend up to seven days in the bays before being moved to the vessel but that period simply reflects the need for the marshalling of cargo for container ships to be completed in advance of their arrival..."[6].

52 In simple terms, Mr Cicero relied on the Auckland case in running a "good enough for the movement of shipping containers, good enough for the movement of timber on the racks" argument. I see the following problems with this argument. I have mentioned that there is some doubt whether the relevant planning controls automatically allow even the loading and unloading of timber destined for the hardware store on the racks. I also think it is a "long bow" to compare the logistics of loading and unloading massive shipping containers with loading and unloading the type of timber in question here. Whilst I can understand the court's caution in the Auckland decision about what may well be inevitable delays in loading shipping containers and the need for adequate space to store the containers, I am struggling to see any major logistical obstacles here to the relevant timber immediately (or at least the same day) being unloaded and it then being re-assigned into the hardware store. However (even putting to one side the Council Enforcement Officer's sworn evidence of longer term storage of timber) Mr Cicero conceded the typical re-assignment of the timber involves up to a week's delay -surely up to a week's delay in the circumstances here goes beyond "unloading" and becomes "storage".

Have the racks been unlawfully erected without "building and works" approval?

53 Section 3 of the Planning and Environment Act 1987 defines "building" as follows.

(a)

a structure and part of a building or a structure; and

(b)

fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c)

a boat or pontoon which is permanently moored to fixed to land.

54 In submitting that the racks do not require "buildings and works" approval, Mr Cicero's case can be summarised as follows:

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the racking is simply part and parcel of the tools and equipment legitimately used for running a business. Mr Cicero put to me that it was never the intent behind the Planning and Environment Act 1987 that Council be able to rely on that Act to inappropriately interfere with daily business activities to the extent that has occurred here;

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Mr Cicero recognised the argument that the racks constitute a "structure", in the context of the above-mentioned definition of "building" including reference to "structure". However Mr Cicero relied on the fact that the word "structure" is not mentioned in isolation in this definition but appears in sub-clause (a) as follows - "a structure and part of a building or a structure". Relying on the existence of the two words "structure" and "building" in sub-clause (a), Mr Cicero argued that the parliamentary intent was that these two words be read with some degree of overlap, such that an item can only constitute a "structure" for the purposes of sub-clause (a) if it is something that is in the nature of a building. He also relied here on certain case law, notably the relevant comments of Justice Atkinson in South Wales Aluminium Co. Ltd v Assessment Committee for the Neath Assessment Area [1943] 2 All ER Reports;

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in the alternative, Mr Cicero submitted that the applicable case law is such that the Tribunal cannot reach a finding that the racks constitute a "structure" for the purposes of the definition of "building" unless the Tribunal is satisfied that the racks are permanent and form part of the reality in question. In this regard, Mr Cicero urged me to find that the racks (correctly characterised) are in fact a chattel, bearing in mind that (at least at the time the relevant photos were taken and when I inspected the subject land) there were no nuts holding down the base of the racks, nor is the base cemented into the relevant slab.

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criticised Mr Cicero's interpretation of sub-clause (a) in the definition of "dwelling" as being overly narrow;

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queried whether there had been an opportunistic removal of the nuts from the bolts poking up through the base of the racks. However at a broader level, Mr Peake urged me to find that the ordinary person would regard the racks (given their height, size and weight) as being more in the nature of a permanent rather than a temporary structure;

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submitted that I should take a wholistic/common sense approach to whether the racks are a "structure" for the purposes of sub-clause (a) in the definition of "building", rather than being hamstrung by previous case law or an overly technical approach to the issues in question.

56 In favouring the submissions of Mr Peake, my finding is that I am satisfied that the racks constitute a "structure" for the purposes of sub-clause (a) in the definition of "building" in the Planning and Environment Act 1987. It follows that:

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even if I had come to the view that the racks were not being used for an unlawful purpose but constituted a permissible use, I would still have made an overall finding that the racks are unlawful; and

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I am satisfied that there is a breach of Condition 6 of the Planning Permit GE 9652 which affects the subject land, in that the Applicant has failed to meet the requirement that there be no "buildings and works" carried out without Council's consent.

57 I will now set out the main aspects to how I have arrived at these overall "building and works" findings.

Does a "structure" need to be in the nature of a building?

58 I recognise that there is case authority to support Mr Cicero's proposition that for an item to constitute a "structure", it must be a structure in the nature of a building. In the South Wales Aluminium case referred to above, His Honour (who ultimately found that rectangular receptacles measuring 16 by 11 by 10 feet and being made of steel plates bolted together did not constitute a structure) made the following statement (with my emphasis) at page 592.

The question is whether these big receptacles, as I have described them, are in the "nature of a building or structure". I do not think it is denied that the word "structure" must be construed as in the nature of a building. ....There is nothing to suggest here that the word "structure" is not to be used in its ordinary sense. As used in its ordinary sense I suppose it means something which is constructed in the way of being built up as a building; it is in the nature of a building. It seems to me it is not in the nature of a building, or a structure analogous to a building unless it is something that you can say quite fairly has been built up.

59 Mr Cicero also relied on the following comments of Justice Wills (with my highlighting) in the case of Venner v McDonnell [1887] 1 QB 421, who was interpreting the word "structure" in the context of the relevant building legislation.

It is obvious that if the expression "structure or work" is to receive what, apart from the subject matter to which it is applied, would be its natural meaning, no person within the jurisdiction of the London County Council could repair his roof, or mend his windows, or put up a fixed cupboard in his bedroom, or a fitted bookcase in his library, or a new kitchen-range, or introduce gas, water or electric light into his house, without giving notice to the district surveyor, and without being subject (s. 138) to his supervision, not without in the case of the most trivial matters paying him half of the fee to which he would be entitled on the original construction of the house or building to or on which any additional alteration, or other work was made or done (Sched. III, Part I). It seems impossible to suppose that interference so constant, vexatious, useless and costly with the daily lives of a great community can have been intended; and we are therefore driven to the conclusion that some limitation must be put upon the natural meaning of "structure or work". It is therefore necessary to construe "structure or work" as meaning in s. 145 something of the same general nature and character as a building.

60 Where I am at one with Cicero is with his suggestion at paragraph 30 of his enforcement submission that "a construction that would promote the purpose or object underlying an Act shall be preferred to a construction that would not promote that purpose or object".[8]

61 Where I differ from Mr Cicero is that, when one considers the objectives of planning in Victoria as set out at Section 4(1) of the Planning and Environment Act 1987, I do not accept that these objectives point to the narrow interpretation of the word "structure" favoured by Mr Cicero. I refer here to sub-clauses 4(1)(a) and (c) as follows (with my emphasis).

(a)

to provide for the fairly, orderly, economic and sustainable use, and development of land;

(b)

....

(c)

to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria.

62 In terms of the weight which I should give to the South Wales Aluminium and the Venner cases, the critical points here are that:

•

both are English cases;

•

one case is over 60 years old and the other is almost 120 years old; and

•

both cases preceded modern town planning principles, and in particular both cases were decided prior to the modern objectives of the Victorian planning system as set out in Section 4(1) of the Act. Whereas in these earlier periods in the English setting I could imagine the courts taking a more vigilant approach to individual rights being unfairly interfered with or curtailed by legislative intervention, I consider that community attitudes in this regard have fundamentally changed in the intervening years. In particular, I believe that in recent years there has been a greater community acceptance (particularly in Victoria) and a corresponding parliamentary intent that pursuing the objective of "orderly planning" involves some degree of restriction of individual rights, in the interests of protecting the reasonable planning rights of neighbours and achieving a net community benefit[10].

63 For the reasons set out above, I consider that the South Wales Aluminium and the Venner cases are part of the historical context but neither deserve any particular weight in resolving the circumstances here. It also counts against Mr Cicero that he was unable to produce any equivalent recent case authority from VCAT or its predecessor Tribunals on this particular issue.

64 I also see problems with Mr Cicero's reliance on the simple fact that the word "structure" appears in the same sentence as "building" in sub-clause (a) in the aforementioned definition of "building". I accept that there is some ambiguity how sub-clause (a) should be interpreted but do not accept that the wording of sub-clause (a) automatically supports the narrow interpretation of "structure" being promoted by Mr Cicero.

65 In summary, I do not agree that either Mr Cicero's preferred interpretation of sub-clause (a) in the definition of "building", nor his selective reference to earlier cases justifies Mr Cicero's submission that an item can only be a "structure" for the purposes of the definition of "building" if the item is in the nature of a building. Rather, I consider that there are no "black and white rules" whether or not an item constitutes a structure, but this is a mixed question of fact and law which will turn on each set of circumstances in question.

Useful criteria for whether something constitutes a "structure"

66 Curiously, whilst Mr Cicero on the one hand urged me to take a strict approach to requiring that a "structure" as defined must be permanent and part of the reality rather than being a chattel, on the other hand at paragraph 60 of his enforcement submission he conceded that this may be only one of a number of relevant factors.

60. There may be many matters that assist in determining whether a structure is a structure in the context of the legislation. Returning to the decision of Atkinson J. in South Wales case, at page 592 His Honour said:-

"...Here I will just read the matters which the arbitrator has born in mind on this part of the case. As set out in para. 19:

"I hold that the question whether the said cells and absorption plant are, or are in the nature of, buildings and structures is a question of fact to be determined upon the whole of the facts relating to the respective things, including, but not limited to, shape, size, material, method of construction, attachment to the soil or some other building or structure, the feasibility of removal as a whole, and the relation to the other things that are there and are used in connection therewith, but that no single one of these facts is in itself conclusive.""

67 It is significant that after quoting the above passage from the arbitrator, His Honour does not dispute the arbitrator's proposition that "...no single one of these facts is in itself conclusive". Rather, His Honour then proceeds on the basis that in his view it is the "most important matter" that a "structure" must be in the nature of a building.

68 Following this approach of looking at a range of considerations, without any single one of these them being conclusive, I have set out below what I consider to be some relevant factors here, with my comments in italics underneath each factor. This is not meant to necessarily be an exhaustive list of the possible factors.

(a)

To be a "structure", the item must be built up with component parts

Comment - this criteria is clearly satisfied in the circumstances here.

Comment - if the contentious item has only been erected recently, it is obviously more arguable that the item is only temporary and therefore not a "structure" for our purposes here. A good example would be a marque erected in someone's back yard of their house for a one-off domestic party, which clearly would not constitute a "structure" for our purposes. In the circumstances here, it goes against the Applicant that the first part of the racks were apparently erected in late 2004, plus the balance of the racks were erected in March 2005. This does not jump off the page as a "temporary arrangement".

(c)

Dictionary definitions of "structure" and previous Tribunal cases on point

Comment - I note that the definition of "structure" in the Macquarie dictionary is quite broad, as follows.

"1. The arrangements of parts to make up a whole.

2. Something built, as a building, bridge, dam etc.

3. Anything made up of parts arranged together in some way; an organisation.

It is also significant for our purposes that whilst there are no other Tribunal decisions directly on point, there are related examples of the Tribunal taking an expansive rather than a narrow interpretative approach to what constitutes a "structure". For example, in N Maxwell v Banyule CC (2001) 7 VPR 339, the Tribunal held that poles erected for the purpose of supporting tennis court lights were a structure. In Hydro-Chem Pty Ltd v Kingston CC & Anor [2000] VCAT 1656, the Tribunal held to be a "structure" a cooling tower situated outside a factory building. The tower was mounted on metal legs at about head height, with pipes running between the towers and the main factory building. I also refer to Bruce Henderson Pty Ltd v. City of Moorabbin 7 AATR 239 where Member Monk (as she then was) held that a boom gate constituted a "structure". I understand that although this decision was successfully appealed to the Supreme Court, the appeal turned on other issues.

(d)

With what degree of permanence has the item been attached to the ground?/What is the degree of difficulty to erect and dismantle the item?

Comment - I accept that common sense tells us that a "structure" for the purposes of sub-clause (a) of the definition of "building" must have a substantial degree of permanence. The House of Lords used refreshingly simple language in Elitestone Ltd v Morris & Anor [1997] UKHL 15; (1997) 1 WLR 687 at 691 in describing the test as being whether the item in question has "...become part and parcel of the land itself". The other possibility is that the item in question is no more than a mere chattel. The sixty-four dollar question is where do you cross the line to become a sufficiently "permanent" item to constitute a "structure"?

On the one hand, it is a plus for the racks in question here(subject to a proviso) that they are not cemented into the slab - rather the base of the racks sits on the slab, with each base having a bolt extending through a hole in the base to minimise any lateral movements. The proviso is that whilst at the time of my inspection there were no nuts attached to these bolts, one or two of the photos of the racks provided to me at the hearing included a black ring-like mark shown on the cement around these bolts. I agree with Mr Peake that this ring-like mark indicates that at one stage there were nuts in place long enough to create a weathering-effect.

On the other hand, I see the more important and overriding aspect here as being that the racks are so heavy and bulky that I would expect some form of crane to be essential to erect or dismantle the racks. Even if they were empty, the racks appear so heavy that I would strongly doubt they could be shifted by hand into a different position. In short, the racks in question here are a long way from the type of temporary racks that any one of us might readily install, dismantle or move around in our garage over a weekend, using our bare hands, some instructions and simple tools. By contrast, even with a crane available, it is possible the Respondents might need the assistance of suitable specialists in the handling of this type of racking to be able to erect or dismantle the racking.

In these circumstances, I agree with Mr Peake that the sheer logistics of erecting and potentially dismantling the racks gives them a strong permanent character, despite the base of the racks sitting on top of the slab rather than being part of the slab. In other words, whilst on a literal view the racks could be removed anytime, in practice I would expect such removal to be a major exercise due to the likely time, cost, disruption and need for external expertise involved in doing so. This "strong permanent character" approach is reinforced by the previous Tribunal decision of John King & Ors. v. Colac SC [2001] VCAT 2009. In that case, the Tribunal found that the placement of cabins/moveable buildings at a caravan park constituted works, despite the cabins being placed on concrete blocks rather than being anchored into the ground.

To the extent that Mr Cicero sought to rely on the Court of Appeal's decision in Elitestone Ltd v Morris & Anor (1997) All ER 513 (where that Court held that a house sitting on concrete pillars constituted a chattel), Mr Cicero's position here is undermined by the different facts in question (transportable houses have their own issues), plus the fact that upon a further appeal the House of Lords held that the relevant house was not a chattel.

(e)

Does the height, bulk and size of the item point to it being a "structure"?

Comment - at paragraph 36 of Mr Cicero's enforcement submission, he stated that "Size cannot be a relevant consideration because the planning scheme does not recognise large and small buildings differently". With respect to Mr Cicero, his statement misses the point that the size, bulk and height of an item can in my view be an important consideration in terms of whether it should be regarded as a "structure" for the purposes of sub-clause (a) of the definition of "building". For example, even if a bird bath in a residential back yard is cemented into the ground and was erected from component parts, in my view the average person would regard such a small item as not being a structure requiring a permit. By contrast, surely the average person walking along Hawthorn Road will consider the size, bulk and height of the racks as an important factor in whether or not the racks require a planning permit.

In the circumstances before us, the racks are in the order of six metres high. These are exceptionally high racks - one would normally not expect to see such high racks except in an industrial setting or near the checkouts at the Victoria Gardens Ikea. I am satisfied that the sheer height of the racks make them atypical for a plant nursery site.

The racks are made of what I regard as heavy steel - the thickness and likely weight of the frame of the racks is much greater than your average self-assembly tall racks in a shop or home garage. The racks have several rows of horizontal arms extending in a cantilever manner, and the top row has had timber added in a pergola-like manner.

In summary, I am satisfied that the imposing thickness and height of the racks (with the pergola-like top rack) in combination gives them a very imposing and industrial appearance which is consistent with the racks being a "structure" for our purposes here.

(f) Is the context a residential, commercial or industrial context?

Comment - common sense tells us that when characterising something, it is sensible to consider not only the item itself but the nature of the locality in question. By way of example, in J & J Di Vicenzo v Boroondara CC (VCAT P1398/2005) I was required to make a declaration whether the parking of a backhoe on the front yard of a residential dwelling in Balwyn was ancillary to the as-of-right use of that dwelling. I ultimately concluded that the backhoe was a specialist piece of equipment requiring a permit for its storage, rather than a vehicle ancillary to the dwelling. At paragraph 63 I made the following statement.

"I consider that the fact that this is a conventional residential street in a middle suburbs location like Balwyn "raises the bar" in terms of the case that the Respondents need to make out, to satisfy me that the backhoe is ancillary to their use of the dwelling on the site. It is not as if this is an urban fringe location where there are "hobby farm" style lots and the neighbours' dwellings are significant distances away...."

In a similar fashion, I consider that it counts against the racks that they have been erected without a permit on land zoned Residential 1, adjoining a residential dwelling, in a transition area between the commercial area to the south and the residential dwellings to the north. In other words, whilst it might be less surprising for the average person to see six metre high racks whilst walking past an industrial warehouse or visiting the Victoria Gardens Ikea, I consider that the average person walking along this part of Hawthorn Road in Caulfield (where there is a mix of dwellings and commercial uses) does not expect to see six metre high racks made from thick steel with a pergola-like top rack that has been erected without a permit.

For the same reasons, I am satisfied that the average occupier of the adjoining dwelling at 339 Hawthorn Road (being a dwelling located in a middle ring suburb on land zoned Residential 1) would find strange an outcome where six metre high racks can be built right on their northern side boundary without the need for any planning permit.

69 In summary, applying the criteria indicated above, I am satisfied that the racks require a "buildings and works" consent from Council pursuant to Condition 6 of the Planning Permit GE 9652 which affects the subject land and/or requires buildings and works approval under the Residential 1 zoning.

70 I am conscious that Mr Cicero asked the rhetorical question how Council could submit that the contentious racks here require a permit when the nearby Reese business at 865-867 Glen Huntly Road has substantial racks that Council has taken no issue with. I was provided with a useful A4 size photo of these Reese racks. Using the same criteria as set out above, I can understand why Council has not contested the Reese racking - the photo indicates that the Reese racking is less daunting in its height, weight and bulk, does not have any pergola-like top rack, and appears to be capable of being assembled/dismantled or shifted to a new position by the average person without any crane or specialist equipment. In addition, I do not know what the zoning of the Reese site is, nor do I know the nature of the neighbouring properties - it is possible the Reese site has a commercial zoning and commercial neighbours.

P647/2006 MERITS REVIEW - SHOULD THE MODIFIED RACKS BE APPROVED ON THE MERITS?

71 To recap on where I am up to now with the process:

•

I was required to consider Council's enforcement application in relation to the racks in their existing condition;

•

I have now made findings that Council's enforcement application is successful and that the existing racks are unlawful;

•

the next step is to consider the without prejudice merits application by the Applicant for retrospective approval of a modified version of the racks. I have already set out further above how the racks are proposed to be modified - in particular the racks will be reduced by one metre in height down to five metres;

•

I will now deal with these merits issues in relation to the proposed modified racks.

72 Dealing with a preliminary issue first, Mr Cicero invited me to give some weight to the fact that the owner of the adjoining residential property at 339 Hawthorn Road Ms Soos initially gave her consent to the installation of the racks, but later effectively withdrew this consent. Given my understanding from Mr Peake's submissions that this adjoining owner is an elderly lady, who is of Romanian descent and has limited English as a speaker. As it can therefore be inferred Ms Soos was not necessarily aware of her proper planning rights, I am giving minimal weight to the background circumstances here.

73 I will not repeat the submissions of Mr Cicero and Mr Peake on the merits, as copies of their merits submissions are retained on the Tribunal file. Suffice to say that Mr Cicero argued that the various modifications to the racks should be sufficient to reduce any amenity impacts on the 339 Hawthorn Road to an acceptable level and to make the modified racks a fair planning outcome in all the circumstances. By contrast, Mr Peake submitted that even the modified racks would still be an unacceptable amenity outcome on the No. 339 property. He also urged me to give weight to any "unlawful" use findings which I have made about the storage of timber on the racks, and argued that the modifications to the racks would not stop them being an unacceptable eyesore when viewed from Hawthorn Road that lack policy support.

74 Mr Peake also raised a technical challenge that:

•

any new buildings and works permit granted by Council for the modified racks under the Residential 1 zoning can only relate to a permissible rather than a prohibited use; and

•

the modified racks (which require primary planning approval) could not be approved on a "secondary consent" basis under the relevant conditions of the existing permits for the subject land.[11]

75 To the extent that the Applicant has put forward its merits proposal for the modified racks with the intention of still using the racks to store timber associated with the hardware store, I accept the technical query being raised by Mr Peake. However to the extent that the Applicant wishes to use the modified racks for conventional plant nursery purposes, it seems appropriate that I still reach a proper finding on this "buildings and works approval" issue.

76 After having considered the relevant submissions and taken careful note during my inspection of how the modified racks would be likely to present, on balance my finding is that (with or without the proposed modifications) I am not satisfied that the racks justify approval on the planning merits. I have set out below the relevant factors that have led me to this finding.

77 I have real concerns whether even the modified version of the racks withstands scrutiny when assessed against the relevant MSS and local policy provisions. As a starting point, Clause 21.08 of the MSS sets out the following objective - "To ensure that non-residential uses are successfully integrated into residential zones with minimum impact and minimum loss of residential amenity". Even with the relevant modifications, I am struggling to see that the racks can be regarded as causing "minimum loss of residential amenity" to the occupier of the Hawthorn Road residential dwelling. Particularly as the racks sit on the north side of the residential dwelling not the other way around, I have real concerns about the impact of the racks on the north-facing windows of the No. 339 dwelling and on the use of its back yard.

78 Similarly, the "Non-residential uses in residential zones" local policy at Clause 22.02 includes the objective of "To encourage the development and location of new non-residential uses in areas which are compatible with the residential nature of the area and comply with orderly and proper principles". It is not obvious to me that putting a five metre high rack with cladding on the northern side boundary of a residential backyard is a "compatible" location. The "Siting and design guidelines" under Clause 22.02 (with my emphasis) include "Building height, length and location not cause significant loss of amenity to neighbouring residents". I consider it likely that even the modified racks will cause such a significant loss of amenity to the No. 339 dwelling occupier. The same type of issues arise in relation to the relevant policies under Clause 22.02.

79 During my inspection I took careful note of the local streetscape on this part of Hawthorn Road.

80 Mr Peake at paragraphs 38-43 of his merits submission put the following argument to me in relation to how the modified racks might impact on the local streetscape.

Whilst the streetscape of Hawthorn Road is varied in this general location, it is submitted that this steel racking structure is substantially out of character with, and will cause an unacceptable visual intrusion into, the streetscape.

On the west side of Hawthorn Road, the built form comprises one and two storey commercial buildings.

On the east sided of Hawthorn Road, the streetscape is predominantly single storey detached dwellings, but within that block between Pyne Street and Briggs Street it comprises:

•

an at-grade Council car park

•

the Penhalluriack's Hardware building;

•

two single storey detached dwellings; and

•

the single storey Penhalluriack's Garden Supplies business.

The proposed structure is a 5 metre high steel industrial storage structure, extending for a distance of some 27 metres along the boundary between a residential property and Penhalluriack's Garden Supplies. The photographs demonstrate that the structure is clearly visible in the streetscape and that there is, unsurprisingly, nothing else like it in the street.

The structure presents to the street as a large industrial skeleton on which a random selection of unattractive building goods packages are stored. If it has the appearance of anything, it appears as an industrial storage yard.

It is submitted that even if this site were located in any industrial zone on a main road, a proposal to have external storage racks on this scale plainly visible in the streetscape, would be unacceptable. It is submitted that the rack is an eyesore, it will dominate the streetscape, and the outdoor storage of a collection of building products is not an appropriate presentation to a major arterial road within the inner areas of Melbourne, an in which the streetscape is predominantly commercial and residential buildings.

81 I endorse these criticisms of the modified racks as they would impact on the Hawthorn Road streetscape. Even with its height dropped by a metre, I am satisfied that the racks will remain an eyesore when viewed from Hawthorn Road. In this regard, I consider that the amenity benefits of the one metre drop in height will probably be off-set by the negative amenity impacts of cladding the rear and top of the racks. I see the cladding of the top of the racks with corrigated iron as exacerbating the problem of the top of the racks being visually jarring for persons passing along this section of Hawthorn Road.

82 I am not satisfied that the various modifications to the racks reduce the likely amenity impacts on the 339 Hawthorn Road dwelling to an acceptable level. Whilst the "balancing of competing considerations" would at least be more straight forward if all of the modifications were benevolent in nature, I have real concerns about the proposed cladding of the rear and top of the racks having a visually oppressive impact on the use of the back yard of the No. 339 property. Despite submissions to the contrary from Mr Cicero, one cannot help wondering whether the real purpose behind this cladding is not the interests of the neighbour but keeping the weather off the timber being stored on the racks.

83 Whilst the ResCode provisions are not directly applicable, Mr Peake raised the interesting comparison that under Clause 55 any new residential building wall along this side boundary should not exceed 3.6 metres in height and with an average height of 3 metres, with such a wall not to occupy more than 16.64 metres of the common boundary.

84 Although Mr Cicero sought to play down any amenity impacts on the No. 339 back yard on the basis that this back yard has a rather utilitarian appearance including a chook yard:

•

the back yard may well nevertheless offer valuable outdoor amenity impacts for the occupier (and her chooks); and

•

I am conscious that the current occupier is elderly and there may well in due course be a new and younger occupant of the dwelling, who may wish to landscape and actively enjoy the outdoor amenity benefits of the No. 339 back yard.

This indicates to me that I need to be cautious in terms of the amenity impacts of approving any racks on this northern side boundary at No. 339.

85 In summary, I have major concerns about the potential noise, overshadowing and visual bulk impacts of the modified racks on the use of the adjoining No. 339 residential property. Whilst I recognise the area between the No. 339 dwelling and the side boundary is merely a service walkway, the fact remains that there are potential overshadowing and noise impacts on the north-facing windows of the dwelling and a range of potential major amenity impacts on the No. 339 back yard. The fact that the modified rack (at five metres high) would be lower than the ridge line height of the No. 339 dwelling does not change these basic concerns.

86 In promoting the merits of the modified racks, Mr Cicero relied on the findings of Member Quirk in the earlier Tribunal decision Penhalluriack v Glen Eira CC VCAT 1998/25608. This earlier appeal was a conditions appeal involving certain alterations and additions to the Penhalluriack plant nursery. The contentious condition required the deletion of the proposed storage racks abutting the plant shade area.

87 After noting the disagreement between Council and the Applicant regarding whether or not the proposed racking would be "temporary", Member Quirk indicated near the end of this decision that he considered the key practical issue here to be the ability of the Applicant to easily visually screen the relevant racking from the view of the abutting land by simple lattice and fabric screening, thereby removing "...any lack of visual amenity perceived by the abutting owners". Accordingly, Member Quirk made orders modifying the contentious condition to allow the relevant racks to stay but requiring appropriate visual screening steps to be taken.

88 Mr Cicero essentially ran a "good enough for Member Quirk, good enough here" argument in relation to this previous decision and the racks in question here. I reject this argument for the following reasons.

•

During my site inspection, I took note of what I understand to be the racking that was considered by Member Quirk. Whilst it is true that this racking is also relatively tall, the racking is set much further back from the nearest residential dwelling. In addition, the racking considered by Member Quirk involves much more lightweight and less visually bulky upright posts and the arms of the racks. The practical result is that these racks considered by Member Quirk are much less visually oppressive and present as racks which could be readily assembled/dismantled by hand and/or moved to a new position, without needing any crane or other specialist input;

•

For the reasons set out above, I consider that Member Quirk's decision turns on its own facts, and hence carries little weight in terms of my consideration of the issues before me in relation to the contentious racks here.

•

I have been able to put to one side the Section 149 application P2789/2005, and concentrate on the enforcement and merits aspects of this matter;

•

I have granted the enforcement application in matter P2576/2005, as I have found that the existing racks are being unlawfully used and also lack the necessary Council "buildings and works" consent; and

•

I have rejected the P647/2006 without prejudice merits application for a modified version of the racks to receive retrospective merits approval.

90 With one proviso, I have made appropriate orders at the beginning of this decision reflecting these various findings. The proviso is that, despite Council's Application for Enforcement Order document seeking an order that the racking be dismantled and removed within seven days, I consider this to be an inadequate grace period for such substantial racks to be dismantled, particularly given the usual problems with meeting deadlines in the pre-Christmas period. Hence I have instead made orders that the racks be dismantled and removed within 45 days of the date of my orders.

91 Mr Cicero submitted that Poohawk Pty Ltd be excluded from the enforcement orders on the basis that Poohawk Pty Ltd is not the owner or occupier of the subject land. Even if factually this statement is correct (which is not clear to me), I find that Mr Cicero's submission carries little weight given my findings about the unlawful overlap between the use of the racks for storing timber and the adjoining hardware business (I understand that Poohawk Pty Ltd is at the least connected to this adjoining hardware business). Hence this submission has been refused.

ANNEXURE 2 - Attachment A

[insert graphic]

ANNEXURE 2 - Layout Plan

[insert graphic]

[1]2 See paragraph 27 of Mr Cicero's "Merits submission" on behalf of the Applicant

[3] I was intrigued that Mr Cicero by coincidence included the first page of the case Martin v. Martin & Co. 1 Q.B. 429 - a shame it is not on point!

[4]5 See paragraph 6.4 of Mr Peake's enforcement submission

[8]9 See Section 35(a) of the Interpretation of Legislation Act

[10] Noting that Clause 11 of the Victorian Planning Provisions set down this overriding aim of achieving a net community benefit.

[11]12 Mr Peake relied here on Kistone Pty Ltd v City of Doncaster & Templestowe (1993) 10 AATR 135 and Mentone Mansions Pty Ltd v Kingston City Council (2006) 6 VPR 128.