Victorian Civil and Administrative Tribunal|2004-04-16|Before: Mr J

Rossi Recycling Pty Ltd v Maroondah CC [2004] VCAT 687 (16 April 2004)

Section 149A planning and Environment Act 1987 - Maroondah Planning Scheme - Industrial 1 Zone - Refuse Transfer Station - Materials recycling - Clause 52.10 - within 30 metres of residential zone - impact on amenity

A S Investments Pty Ltd, Automation Systems Pty Ltd, Wridgways Ltd

The following declaration is made pursuant Section 149A Planning and Environment Act 1987:

Upon the proper interpretation of the Maroondah Planning Scheme and having regard to the proposed use by the applicant and the location of the subject land as defined in the plan attached to the lease agreement between Buckland Valley Pty Ltd and Rossi Recycling Pty Ltd dated 1 October 2003 such land may be used for the purpose of a "Refuse Transfer Station" without a planning permit having been granted as none of the conditions opposite the use in Clause 33.01-1 of the Maroondah Planning Scheme apply so as to require an application for a permit.

Mr D Graham QC of Counsel instructed by Barry Kenna & Co

Ms T Cincotta, Best Hooper on behalf of AS Investments Pty Ltd, Automation Systems Pty Ltd and Wridgway Ltd

Mr J Kift on his own behalf and on behalf of E Kift

Ms T Brezzi, Deacons on behalf of Whitehorse City Council

1 The applicant Rossi Recycling Pty Ltd has applied to the Tribunal pursuant to Section 149A Planning and Environment Act 1987 seeking a declaration in relation to the interpretation of the Maroondah Planning Scheme, in particular in relation to the use or development that is to be conducted on part of land at 89 -91 Heatherdale Road, Ringwood.

2 The applicant is the lessee of part of the land comprised in Certificate of Title Volume 10577 Folio 002 and known as lot 23. The applicant has commenced to use the subject land for the purpose of a 'transfer refuse station'.

3 The leased area is delineated on a plan attached to a lease agreement between Buckland Valley Pty Ltd and Rossi Recycling Pty Ltd. The term of the lease is for a period of five years commencing on 1 October 2003 with options for further terms of five years. The permitted use of the land under the terms of the lease is "refuse transfer station".

4 The site the subject of this application comprises a disused factory building and an extensive area of hard paved surface with a driveway connection to Palmerston Road to the north. The building is setback approximately 46 metres from Heatherdale Road to the west and 11 metres from the southern boundary. The building has a total floor area of approximately 5000 square metres. The leased area includes approximately 4500 square metres of the building. The area leased comprises all but the south western portion of the building on the land defined by an east west line 30 metres north of the southern boundary and a north south line 73 metres east from the western boundary of the land.

5 The lot upon which the building is located is known as lot 23 and is part of a 28 unit industrial development approved in 2000. Some of the units located to the north of the building have been developed and comprise a take away food shop as well as a range of factories and warehouses. The respondents A S Investments Pty Ltd and Automation Systems Pty Ltd are the owner and occupier of Unit 1.

6 Neighbouring uses are generally industrial. On the opposite side of Palmerston Road to the north is Southern Recycling which is involved in metals recycling. To the south is the Wridgeway premises used for furniture storage.

7 To the east is a high voltage transmission line. An industrial use by Stokes is located further to the east and beyond is the freeway reservation which had previously contained the waste recycling and transfer station operation of the applicant. To the west and on the opposite side of Heatherdale Road are residential properties located within the municipality of Whitehorse.

8 The leased area is located within the Industrial 1 Zone (Clause 33.01-1) under the Maroondah Planning Scheme. The land to the west of the leased area is within an Industrial 3 zone. Land immediately south of the Industrial 3 zoned is land zoned Residential 1 and the north east corner of this residential zoned land has an abuttal to the south west corner of lot 23. It is submitted that the south western portion of lot 23 excluded from the leased area is a minimum of 30 metres from the easterly extent of the Residential 1 zone in both a northerly and easterly direction.

9 This application arises as a result of the need of the applicant to relocate its business which had formerly been carried out for approximately 12 years at 30 Palmerston Road a short distance to the east of the current site. This land was leased from Vic Roads and the applicant conducted a business that included the receipt of hard rubbish including concrete, tiles and bricks, scrap metal, car bodies, tyres and garden refuse. It is understood some of this material was sorted and then relocated to a landfill, some was sold to purchases directly from the site. As well concrete and bricks that were deposited were crushed and garden refuse was mulched and the crushed concrete and mulch was sold directly from the site. No putrescible garbage, food wastes, liquid paints, industrial wastes, chemicals, fuels or asbestos materials was accepted at the former site. This former site has now been set aside for the construction of the Scoresby Freeway.

10 The applicant applied to the Responsible Authority to relocate to the subject site and on 6 November 2002 the Responsible Authority refused the permit application on the basis that "the land to be used and developed for the purpose of materials recycling and extensions and alterations to the existing building in accordance with endorsed plans" was not consistent with the objectives of the industrial land use policy, inconsistent with the purpose of the Industrial 1 Zone, likely to cause unreasonable loss of amenity and is not consistent with the orderly planing of the area.

11 An application for review in relation to this refusal was lodged with the Tribunal and on 19 December 2003 the applicant was directed by the Tribunal to give notice of the application. It is understood the applicant has complied with the Tribunal's directions and this has resulted in Mr Kift filing a statement of grounds which raises issues relating to the impact on the amenity of the neighbourhood.

12 Since the Tribunal direction on 19 December 2003 the applicant has relocated its operation to the subject site and is now operating what the applicant submits falls squarely within the definition in the planning scheme of a 'refuse transfer station' .

13 In a letter to the Responsible Authority dated 25 July 2003 the applicant's solicitor stated:

We understand the leased land is wholly within an Industrial 1 zone as to the proposed activities we advise:

2. All refuse, used materials or scarp materials delivered to site will only be temporarily stored on the site and disposed of or used elsewhere;

3. Any sales on site will be limited to wholesale sales; and

14 Mr Graham indicated that the materials received at the subject site are either sold to customers of the applicant pursuant to orders placed by them or disposed of without charge for landfill, or in the case of material such as green waste disposed of off site by the applicant. Mr Graham further indicated the applicant is not and does not intend to sell used or scrap materials to the public at large from the subject site as it previously did from its former site.

15 Whilst Mr Graham contends that no permit is required for the activities being carried out on the site as they fall squarely within the definitions in the planning scheme and do not fall within the conditions opposite the use which may require consideration of a permit, the Responsible Authority and respondents all contend that a permit is required for the activities being carried out.

16 As a result of the contentions of the Responsible Authority and respondents the applicant in this application seeks a declaration that:

None of the exceptions or qualifications contained in the Maroondah Planning Scheme apply so as to require that a permit be granted by the Respondent to authorise the use of the subject land for the purpose of a Refuse Transfer Station.

17 The use of land under the Maroondah Planning Scheme within an Industrial 1 zone for 'Industry (other than Materials Recycling)' is at Clause 33.01-1- section 1 a permit not required use, provided the conditions in the column opposite the use can be met.

18 At Clause 74 of the planning scheme a number of land use terms are defined. It is indicated within the definitions that 'Industry' includes amongst other things a 'Refuse Transfer Station' and the definition of 'Refuse Transfer Station' indicates it is included in 'Industry'.

19 Within Clause 74 both 'Industry' and 'Refuse Transfer Station' are defined:

d) winning clay, gravel, rock, sand, soil, stone, or other materials (other than Mineral, stone, or soil extraction);

e) laundering, repairing, servicing or washing any article, machinery, or vehicle, other than on-site work on a building, works, or land; or

If on the same land as any of these operations, it also includes:

a) storing goods used in the operation or resulting from it;

b) providing amenities for people engaged in the operation;

c) selling by wholesale, goods resulting from the operation; and

d) accounting or administration in connection with the operation.

If Materials recycling, goods resulting from the operation may be sold by retail.

Land used to collect, temporarily store, and process refuse, or used or scrap materials, for disposal or use elsewhere.

20 If the conditions opposite the use are not met in section 1 then pursuant to Clause 31.01-1 of the Planning Scheme a permit is required.

21 The conditions opposite 'industry' in Clause 33.01-1 provide as follows:

Must not be a purpose shown with a Note 1 or Note 2 in the table to Clause 52.10.

The land must be at least the following distances from land (not a road) which is in a residential zone, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre:

* The threshold distance, for a purpose listed in the table to Clause 52.10.

* 30 metres, for a purpose not listed in the table to Clause 52.10.

Must not adversely affect the amenity of the neighbourhood, including through the:

* Transport of materials, goods or commodities to or from the land.

* Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

22 It is noted that within the Industrial 1 Zone whilst industry is a section 1 use provided the conditions opposite are met, 'Materials Recycling' is specifically not included and if land is to be used for materials recycling then a permit is required. A Condition is also required to be complied with in this respect and if this condition cannot be met then the use of the land for materials recycling is prohibited.

23 Clause 74 also contains a definition for 'materials recycling':

Land used to collect, dismantle, store, recycle, or sell, used or scrap materials.

24 Materials recycling is included in Industry. The use 'materials recycling' in some respects is not dissimilar to the use 'refuse transfer station' both definitions refer to land used to collect and store, although a refuse transfer station is only for 'temporary storage', both also refer to used or scrap materials. However under the use of a 'refuse transfer station', refuse, used or scrap materials may be processed 'for disposal or use elsewhere', whereas under 'materials recycling' used or scrap materials can be recycled or sold. It is further noted that under the general definition of 'industry' the 'selling by wholesale , goods resulting from the operation' may occur and in the specific case of 'materials recycling', 'goods resulting from the operation may be sold by retail'. From such specific references within the definition to selling either by wholesale or retail, it can be concluded that the sale of goods from the operation of either a refuse transfer station or materials recycling can be sold by wholesale but only goods from the operation of materials recycling can be sold by retail.

25 The Responsible Authority and respondents submit the use does not fall only within the category of 'refuse transfer station' but rather includes or falls within the definition of 'Materials Recycling' and therefore requires a permit. They further submit that if it is concluded that the operation falls within the definition of 'refuse transfer station' some if not all of the conditions opposite the use in section 1cannot be met. In particular they submit the land is within 30 metres of a residential zone, the land does not comply with the relevant threshold distances in Clause 52.10 and there is likely to be an impact on the amenity of the area.

26 It is firstly contended that what is being carried out is likely to fall within both definitions and will require a permit subject to compliance with the required 30 metre setback from the residential zone. The Responsible Authority and to a certain extent the respondents all prefaced what was occurring on the site in terms of what had occurred on the former site in Palmerston Road. The permitted use of the former site allowed for both a 'waste recycling and transfer station'. Just because this was permitted on another site and was conducted by the applicant does not mean that the applicant intends to continue to do the same thing on this site. There is nothing wrong with an applicant confining his activities to fall within an as of right use if such a use is permitted as of right within the planning scheme.

27 From the description of the activities the applicant intends to carry out on the subject site, an inspection of the site and observation of some of the activities albeit in early stages, a consideration of the size of the site as compared to the much larger former site I have concluded that the applicant intends at this point in time to use the subject site as a 'refuse transfer station' as defined within the planning scheme and does not intend to also use the subject site for 'materials recycling' as defined within the planning scheme.

Meeting the threshold distances in Clause 52.10

28 Clause 52.10 is a particular provision in the planning scheme that refers to 'uses with adverse amenity potential'. The purpose of Clause 52.10 is 'to define those types of industries and warehouses which if not appropriately designed and located may cause offence or unacceptable risk to the neighbourhood'.

29 Clause 52.10 indicates that 'the threshold distance referred to in the table to this clause is the minimum distance from any part of the land of the proposed use or buildings and works to land (not a road) in a residential zone ...' .

30 The table in Clause 52.10 also contains 'Notes' which are defined as:

Note 1 of the table: The threshold distance is variable dependent on the processes to be used and the materials to be processed and stored. Note 2 of the table: An assessment of risk to the safety of people located off the land may be required.

31 Within the table to Clause 52.10 is a subheading 'Transport and Storage' under which various uses that include transport and storage are listed. The Responsible Authority referred the Tribunal to in particular the 'Sanitary and garbage disposal in: landfill and recycling and composting centre' which indicates a threshold distance of 200 metres and is accompanied by Note 1 as wells as 'temporary storage of industrial wastes' which indicates a 300 metre threshold as well as Note 2.

32 Ms Cincotta referred the Tribunal to an additional use listed being 'sanitary and garbage storage and treatment in transfer station' which indicates a threshold distance of 300 metres but is not a purpose with either a Note 1 or Note 2.

33 The Responsible Authority submits what is occurring falls within what could ordinarily be described as the disposal of unwanted items or garbage be it waste paper, recyclable bottles, scrap metal, or timber, all items that would be taken to a recycling and composting centre. It was further submitted that many of the waste products are from industrial purposes and could fall within the category of 'temporary storage of industrial wastes'.

34 I am unable to conclude that what is proposed to occur on this site namely the temporary storage of refuse falls within any of the categories in Clause 52.10 referred to by the Responsible Authority and respondents. I consider that what is occurring on the site would fall within the ordinary meaning of garbage which is another word for refuse. There is no disposal of garbage to a landfill on the site, no recycling or composting is taking place and there is no storage of any industrial wastes. Certainly there is temporary storage of garbage or refuse occurring but Clause 52.10 also refers to treatment and whilst there is sorting of the refuse or garbage carried out I am unable to conclude from my observation or the evidence presented to me that any treatment of the garbage takes place, that is the refuse being 'subject to some agent or action in order to bring about a particular result: to treat a substance with an acid' as 'treat' is defined within the Macquarie dictionary. If no treatment occurs then what is being carried out on the site does not fall within any of the purposes listed in the table to Clause 52.10.

35 The Responsible Authority submitted the area on the south west corner of the part of the building not contained in the lease was also being used by the applicant and photographs were presented that sought to identify materials stored inside the building, as well as a truck and containers parked in the area at the front of the building toward Heatherdale Road. It was submitted these all related to the applicant and the applicant's business.

36 It was further submitted that the lease was merely a device to artificially redefine the area of land upon which the use is located and was not what would be described as a naturally occurring planning unit. This it is taken to be is an area defined in a certificate of title or some similar means. It was further submitted that if this device had not been undertaken then the use if not considered to fall within the purposes listed in Clause 52.10 was however being conducted on land that was within 30 metres of a residential zone and that that particular condition opposite the use could not be complied with.

37 The Tribunal was referred to Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1921] VicLawRp 111; (1980) 28 ALR 1 and Eaton & Sons Pty Ltd v Council of Shire of Warringah [1972] HCA 33; [1972-73] ALR 203 which indicate title boundaries of parcels are not definitive and although there is recognition that in many instances part of an area not in actual physical use will more than likely have the same existing use as the remaining area that is being used it is however a matter of the relevant facts of each case.

38 In BP Australia Ltd v Bayside CC & Others [2004] VCAT 604 (5 April 2004) the Tribunal referred to different uses that can occur on a particular site that is not necessarily defined by title boundaries:

We agree with Mr Finanzio that given that "site" is not defined within the planning scheme, it must be given its ordinary meaning having regard to the context in which it is being used. The Macquarie dictionary defines "site" as "the position of a town, building etc., especially as to its environment" and "the area on which anything, as a building, is, has been or is to be situated." There is no mention of a site being identified by title boundaries. It follows that the "site" of a particularly use or development is not necessarily the same as the title boundaries, rather, it is the position or area upon which the use is situated.

It is not unusual that the "site" of a use and development would coincide with title boundaries, but this is not always the case. For example, a "site" may comprise several adjoining lots. It is not uncommon for this to be the case where a "site" larger than any one lot cannot be found in a particular area to accommodate a use. Several lots may need to be combined to create one "site". The "site" would be considered as the area upon which the use is situated rather than several "sites" following the lot boundaries.

It can also be that the actual "site" of a use may be less than the whole of the lot upon which it is situate. This approach is consistent with the notion that there can be a number of "sites" containing separate and distinct uses on one lot.

In this case we are satisfied that this proposal involves 2 separate and distinct uses, a convenience restaurant and its associated car parking and landscaping etc. on one part of the land and a service station and its associated car wash and parking etc. on another.

39 All parties referred to the Tribunal's determination in Nestle Export v Warrnambool CC [2003] VCAT 1389 (9 October 2003) which considered the reference in the Industrial 1 zone at Clause 33.01-4 to the requirement for a setback to be 'within 30 metres of land (not a road) which is in a residential zone ...'. In that particular clause the reference related to building or works but the Tribunal in its determination indicated reference to 30 metres was made in two parts of the Industrial 1 zone. The Tribunal distinguished the two references one relating to 'buildings and works' and the other relating to 'the land'. The Tribunal stated at paragraph 15:

The reference to 30 metres appears to be what is considered to be a buffer distance. An industry could establish itself as of right if the land upon which the industry is proposed is located at a distance of 30 metres or more from a Residential zone, presumably it is considered that that is a reasonable buffer to reduce any impact on the amenity of the residences in the Residential zone. The distance therefore measured for the use is from the boundary of the land to be used for the proposed use to the land to [in] the Residential zone.

40 Whilst it can be said that the entering into of a lease may create an artificial area there is nothing within the planning scheme that prohibits this taking place. In this case the application relates to the land defined by the plan attached to the lease agreement, that is, the relevant planning unit and does not prevent the Tribunal from dealing with what is being applied for on the defined area of land. The area intended for the particular use is clearly defined and can be clearly referred to. The facts of this matter indicate the planing unit is that referred to and defined in the plan attached to the lease.

41 As indicated in the Nestle decision the Tribunal considered the condition opposite the use in section 1 of Clause 33.01-1 referred to 'the land' being required to be 'at least the distance ' of 30 metres from land being located in a residential zone. The Tribunal in that matter concluded 'the distance therefore measured for the use is from the boundary of the land to be used for the proposed use to the land in the Residential zone'. It is irrelevant that in this matter the land on which the use is to be located also contains a building in this location.

42 The measurement is from the land shown on the plan attached to the lease agreement which clearly indicates that the land to be used for the proposed use is at least 30 metres from land within a residential zone. This condition is therefore complied with.

43 The Whitehorse City Council as well as the Responsible Authority and other parties contended that even if all the other conditions opposite the use in section 1 were met, the condition referring to amenity could not be met and a permit was therefore required.

Must not adversely affect the amenity of the neighbourhood, including through the:

* Transport of materials, goods or commodities to or from the land;

* Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

45 In relation to transport Mr Radisich provided evidence that the use at the former site generated a yearly average of 85 loads per day and approximately 80% of the loads were vehicles with private trailers . It was his opinion, which I accept, that the use on the subject site would not result in any increase in traffic movements from movements experienced with the former use. The vehicles are to access the subject site via Palmerston Road which allowed access to the former site. The area given its industrial nature is already accessed by a considerable volume of heavy vehicle traffic, the vehicles are to access the subject site off Palmerston Road at the rear of the site and furthest away from any residential properties on the opposite side of Heatherdale Road.

46 The operations on the subject site are to be contained within a building, no goods or materials are therefore on display or certainly not on direct display to the residential area and given the nature of the industrial uses nearby with storage of large containers on adjoining land and recycling materials opposite it is not considered that the amenity of the neighbourhood is in any way likely to be affected by the appearance of any goods or materials.

47 An acoustic report provided to the Responsible Authority in 2002 indicated that 'the calculated noise levels of the mobile plant and equipment that will operate within the building are calculated to be under the EPA Noise Limits as long as the following precautions' are taken:

* Provide R1.5 insulation and sisalation under the metal deck roofing and against the metal walling.

* The roof mounted exhaust fans will require future examination when fan selections are complete and may require the provision of attenuators.

* The southern roller door should be closed save for the passage of vehicles.

* The soil screen if operated near the southern boundary has the potential to generate noise levels in excess of the EPA Noise Limits during weekends. It is recommended that if the soil screen is to be used that it is located towards the northern end9 of the site where considerable shielding will be provided by the intervening buildings. In addition the screen should only be used between Monday to Friday and not used at weekends.

48 It would appear that provided the recommendations are adopted there is unlikely to be any adverse impact on the amenity of the neighbourhood as a result of noise from the operations on the site.

49 I am satisfied based on the evidence provided that there will be no adverse impact on the amenity of the neighbourhood from transport, appearance or emission of noise etc, however if circumstances change and evidence can be provided to show there is an impact on the neighbourhood then appropriate applications can be made which could result in the requirement for a permit in order to ensure this condition is being complied with. However based on the present information I consider this condition can be complied with.

50 The activities which the applicant intends to carry out and which have in part commenced on the subject site fall within the definition of 'refuse transfer station' in the Maroondah Planning Scheme. This use is as of right within an Industrial 1 zone provided the conditions opposite the use are met, what is being carried out by the applicant does not offend the conditions therefore no permit is required for what is being carried out on the subject site. If at some time in the future the activities carried out do offend any of the conditions opposite the use or fall within the definition of 'materials recycling' then the requirements of the planning scheme would have to be met.

51 For the above reasons the Tribunal will make the following declaration pursuant Section 149A Planning and Environment Act 1987:

Environment Act 1987

Rossi Recycling Pty Ltd v Maroondah CC [2004] VCAT 687

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)

Rossi Recycling Pty Ltd v Maroondah CC [2004] VCAT 687 (16 April 2004)

Parties

Legislation Cited (1)

Cases Cited (1)