1. The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Act 1998.
2. Any response to the application for costs must be filed and served by no later than 5 December 2018.
3. Upon compliance with the above orders, the Tribunal may decide any application for costs on the papers or list for a hearing if it considers this is appropriate.

Mr A Walker, barrister, instructed by Mr A Shrimpton of Harwood Andrews.

• Mr Ben Schmeid, Senior Planner of Council.
• Mr Adam Lee, Environmental Health Officer of Council.
• Mr Brydon King, Planning Consultant - previously employed by Council.
• Ms Karen Campbell, Senior Planning and Development Investigations Officer of Council.
• Mr John Frame of 3 Watergum Drive.
• Ms Jan Emmet of 7 Watergum Drive.
• Mr Peter Dymek of 17 Watergum Drive.

Mr P Connor QC with Mr R Forrester, barristers, instructed by Kings Lawyers.

• Mr David Dunoon, General Manager of Newcomb Sand & Soil Supplies.
• Mr Steven Grossman, of Grossman Holdings Pty Ltd.
• Mr Lyle Larcombe, of W Larcombe and Sons Earthmoving Contractors.

Application under section 114 of the Planning and Environment Act 1987 - application for enforcement order.

We carried out an accompanied inspection of the site and an unaccompanied inspection of the surrounds on 27 August 2018.

1. D.P & J.L Dunoon Pty Ltd, which trades as Newcomb Sand & Soil Supplies, (the first respondent) operates a business selling soil, sand and other like products. It has been operating on a site on the north-western corner of Grossmans and Ghazeepore Roads, Bellbrae since 2015. Mr David Dunoon is the general manager of the operations on the site.
2. The size of the site that the respondents operate their business on is 205 metres x 85 metres and has an area of 1.7425 hectares (the site).
3. Below is an aerial image of the site taken on 20 November 2017[2]:

1. The site was originally part of a larger land title (around 100 hectares) which was used for farming, however, that larger land title has been subdivided, sold and the area to the north of the site is in the process of being developed with a retirement village, with an aged care facility to the west.
2. The site is now part of an area of approximately 19.42 hectares owned by Kithbrooke Park Holdings Pty Ltd (Kithbrooke Park)[3]. It does not sit on a separate land parcel. Kithbrooke Park has leased the site to Mr Steven Grossman. Mr Grossman has sub-leased the site to the first respondent. The site is identified as 'A' in the extract of the lease documentation, below[4]:

1. Although from a property perspective, the site cannot be delineated as a separate parcel from the remainder of the Kithbrooke Park holdings, the site is identifiable with its own street address of 330 Grossmans Road when a planning property search is undertaken[5]:

1. While the respondents' association with the site is relatively recent, the site itself has a long and somewhat complicated planning history. Not the least of these complications is the development of retirement village dwellings close to the northern boundary of the land, placing a residential use much closer to the operations on the site.
2. Putting those complexities to one side, the main issue before us to decide in these proceedings is whether the respondents' use of a part of the site is a contravention of planning requirements.
3. The respondents say that their use and development of the site has not contravened the Surf Coast Planning Scheme (the scheme) because:
   • There are existing planning rights which allow the first respondent to use the site.
   • The works carried out on the site at the start of the first respondent's lease did not require a planning permit as they were merely repairs and routine maintenance.
   • There is no requirement for further landscaping of the site.
4. Council says the respondents are in contravention of the scheme because:
   • While it agrees that there are existing planning rights upon which the first respondent can rely upon to use about three quarters of the site, Council says that there is no existing right to use the remaining quarter of the site. It also says that no such right can be granted as the scheme prohibits this occurring.
   • The works which the respondent carried out on the site involved clearing and levelling the land and require planning permission, being more than repairs and routine maintenance.
   • The planning permit which provides the authorisation for the first respondent's use of the site requires landscaping to be provided and maintained, and Council submits this has not been carried out.
5. If we agree with Council that there have been contraventions of planning requirements, Council asks us to exercise our discretion to issue an enforcement order aimed at achieving compliance with those requirements.
6. Having inspected the site and considered the evidence and submissions of the parties, and the documents filed with the Tribunal, we have determined that:
   • There are existing rights, pursuant to planning permit 94/5796 issued by the Surf Coast Shire Council in 1994 (the 1994 Permit) for the use of the site for garden supplies.

• An existing use right can be established under the first dot point of clause 63.01 of the scheme, as the use of the site was lawfully being carried out pursuant to the 1994 Permit prior to a planning scheme amendment which resulted in that use becoming prohibited by the scheme. Clause 63.05 of the scheme allows the continuation of that use subject to compliance with the conditions of the 1994 Permit and also provides an ability to apply for permission for buildings and works associated with a use that is otherwise prohibited by the scheme.
• Existing use rights are also able to be established under clause 63.11 for garden supplies, but as this same use is also authorised by the 1994 Permit the end result is the same, in that clause 63.05 requires the use to be carried out in compliance with the conditions of the 1994 Permit.
• The 1994 Permit requires the use to be carried out in accordance with endorsed plans. We have found there to be some discrepancies between the endorsed plans and the current use of the site. The imprecise nature of the endorsed plans results in a level of uncertainty as to the part of the site which may be used for garden supplies. On the facts before us we consider the current use of the site to be within the limits of this uncertainty.
• In terms of the works carried out by the respondents in 2014/2015, we do not consider that the majority of these works required planning permission. To the extent that there were earthworks carried out that comprise more than routine maintenance, we consider that they are not significant enough to warrant the issue of an enforcement order, particularly in circumstances where Council has not sought any orders requiring the respondent to restore the land back to its condition prior to those earthworks.
• With respect to landscaping, we have found the landscaping currently in place is consistent with the requirements of the 1994 Permit.

Does the current use of the site contravene planning requirements?

1. While there is dispute about exactly how the respondents' use of the land is to be categorised, there is no dispute between the parties that it is a use which is prohibited from being carried out on the site by current provisions of the scheme. We agree that this is the case. The site has been within a Low Density Residential Zone (LDRZ) since 2007[6]. Under this zone, the use of the land for a retail business in the nature of that operated by the first respondent is a 'section 3' prohibited use. This means that the first respondent is only able to use the site in the way that it does if there is some pre-existing right which authorises that use.
2. In this particular case, the following pre-existing rights could potentially authorise the respondents' use of the site:
   • Planning permit 94/5796 issued by the Surf Coast Shire Council in 1994 (the 1994 Permit), as well as clause 63.01 which provides that existing use rights arise in respect of a use which was lawfully established prior to the date of a planning scheme amendment which would otherwise affect the ongoing lawfulness of the use;
   • Existing use rights arising under clause 63.11 of the scheme. These rights arise if there has been continuous use of the site for the same purpose for the 15 year period immediately prior to this proceeding.
3. Aspects of Council's application for enforcement order allege that the respondents' use of part of the site is in contravention of the scheme. These allegations are based on Council's position that while there are pre-existing rights which authorise the use, these rights do not allow the use of all of the land currently occupied by the first respondents' business.
4. For us to determine this aspect of Council's application, we need to understand the nature and scope of any pre-existing rights which allow the first respondent to operate its business on the site. This requires us to make a finding on the following matters:
   • What has been the past use and what is the current use of the site?
   • Is the current use of the site authorised by the 1994 Permit?
   • Is the current use of the site authorised by clause 63 of the scheme?
   • Is the use of the site consistent with any applicable conditions or restrictions?

Does the development of the site contravene planning requirements?

1. Other aspects of Council's application for enforcement orders allege that the respondents have carried out earthworks on the site in late 2014 and early 2015 without the necessary planning permissions being in place, and that adequate landscaping has not been carried out or maintained.
2. Our determination of these aspects of Council's application will turn in part on our findings on the nature and scope of any pre-existing rights to use the site, as the Council's allegations relating to landscaping assume that the respondents are bound by the conditions of the 1994 Permit.
3. In addition, based on the material before us, the following issues are key to our determination of these other aspects of Council's application:
   • What earthworks were carried out by the respondents in late 2014 and early 2015?
   • Was planning permission required for those earthworks?
   • Is there any requirement for further landscaping works to be carried out on the site?

Should we exercise our discretion to issue an enforcement order in respect of any planning contravention?

1. Finally, if we have found that the respondents have contravened planning requirements, our determination of the application before us requires us to consider:
   • Whether we should exercise our discretion to issue an enforcement order; and
   • If so, on what terms?

DOES THE CURRENT USE OF THE SITE CONTRAVENE PLANNING REQUIREMENTS?

What has been the past use and what is the current use of the site?

Details of past use of the site (approximately 1993 until January 2015)

1. We have heard detailed evidence about the use of the site from the following persons:
   • Mr Grossman, whose evidence was based on his occupation of the site from 1993 until 2009 and his sub-leases of the site from 2009 onwards. Mr Grossman also gave evidence indicating that he informally leased the site from 1993 until 2001 after which time he entered into formal lease arrangements.
   • Mr Dunoon, general manager of the first respondent. His evidence was based on the respondents of the site from late 2014.
   • Mr Schmeid, who provided us with documents from the Council files which indicated the way in which the use of the site has been described in various documents over time. Mr Schmeid also provided us with aerial photographs of the site from a number of sources, and with 'street view' photographs of the site available from the internet. These photographs were taken between March 2002 and December 2017. There were no photographs of the site provided prior to March 2002.
   • Mr King, who worked for the Council from 2001 to 2015, also provided us with documents from the Council files which indicated the way in which the use of the site has been described in various documents over time. Mr King also gave his recollections about the use of the site from his visit to it in 2004.
   • Ms Campbell, who provided us with photographs and other information about the site from her site visits on 27 May and 30 June 2016.
   • Mr Lee, who provided us with information about complaints made to the Council concerning use of the site and information and photographs of his site visit on 16 June 2017.
   • Mr Frame, Ms Emmett and Mr Dymek, who live within the retirement village in Watergum Drive, to the north of the site, provided us with information as to their experiences of the way in which the site is used.
2. Overall, we consider that the evidence has provided us with relatively consistent information about the activities which have been undertaken on the site over time. Based on that evidence, we find that, on the balance of probabilities, the following activities have been carried out on the site over time[7]:
   • 1993 - 1994: Mr Grossman operated a wood store on the south-east part of the site. This use involved the storage and splitting of firewood for delivery to customers. It did not involve retail sales on the site.
   • 1995 - 2009: Mr Grossman operated a business trading as Grossman's Garden Supplies on the site. At around the start of this period (in about 1995), he constructed a shed in approximately the centre of the site (the central shed). He also planted landscaping along both the Grossmans and Ghazeepore Road frontages.

Grossman's Garden Supplies was initially a relatively small scale operation, involving the sale of firewood and soil products. Over time, the business grew and the products it sold expanded, to include a wide range of soils, sand and stone (obtained from various suppliers), gas bottle delivery, steel reinforcement and other items used in the construction of concrete slabs. For a period in late 1990's/early 2000's soil blending was carried out on land to the north-east of the central shed, with soil from subdivisions in the area being deposited to that area and then sifted and sold as top soil/ loam.

During this period, the central shed was extended twice. The first extension was to the north (pursuant to amended plans endorsed under the 1994 Permit in 1999) to include a small scale concrete batching facility which dispatched 'mini mixers' with concrete for customers. The second extension was to the south for an office (pursuant to amended plans endorsed under the 1994 Permit in 2000).

Left over concrete from the batching plant was used by an employee of Grossman's Garden Supplies to make concrete pavers in an area around the central shed. In approximately 2006, this individual ceased employment with Grossman's Garden Supplies and commenced a separate business on the site, making pavers.

The land primarily used by Grossman's Garden Supplies was east of the central shed, however an existing farm gate to the west of the shed, on Grossman's road, was used as an access for the use, together with a gate onto Ghazeepore Road.

The firewood part of the business, which had originally been located east of the central shed, was moved to a location in the north-west of the site. This area was also used for waste stockpiling and vehicle storage (including the vehicles of Mr Larcombe, who delivered supplies to Grossman's Garden Supplies and also carried out work for Mr Grossman's father on his farm on the remainder of the site).

Later, this area was primarily used as for storage by two other businesses, a scaffolding business and a tilt slab construction business. Neither of these businesses carried out any activities on the site, other than to each lease from Mr Grossman and use a discrete part of the north-western corner of the site to store materials and vehicles associated with their businesses.

• 2001 - 2003: Mr Grossman's brother and one of his associates (Gibbs) operated a plant nursery to the west of Grossman's Garden Supplies. Mr Grossman's brother constructed a shed in this area (the green shed). He also constructed fencing and planted landscaping around the area in front of the shed. The nursery use was not particularly successful and had ceased to operate by 2003.
• 2004 - 2012: The batching plant aspect of Grossman's Garden Supplies was sold off to Bellarine Premix in around 2005, who increased the scale of the use, with larger cement mixers being dispatched from the site. A new crossover was constructed, providing central access to the site from Grossman's Road for the concrete trucks. This business ceased operations from the site in 2012 and no further concrete batching occurred on the site after that time.
• 2004 - 2014: During this period, a separate company, Surfcoast Bin Hire, operated a materials recycling and skip bin storage business on the site. Surfcoast Bin Hire took out a sublease over part of the site which had been operated by the plant nursery and obtained a planning permit authorising its use of the land. This business involved hiring out skip bins to construction sites. Full bins were brought back to the site, the timber and metal were separated out for recycling and then the remaining waste was sent off to landfill. This business used the western farm gate, as well as the newly constructed central access for their operations. Its operations extended to parts of the site on either site of the accessway through the site from the western farm gate.
• 2009-2014: In 2009, Mr Grossman sold Grossman's Garden Supplies to Southpoint Garden Supplies. Southpoint continued to operate a business which predominantly sold soil, sand, stone and other garden supplies to retail customers. It continued to sell firewood, but this was brought onto the site pre-cut, rather than being split on the site. The central shed was removed during that time. It continued to use the western access, as well as the Ghazeepore Road access as part of its operations. Firewood also continued to be stored in the north-western part of the site in an area somewhat west of the central shed.

Details of current use of the site (January 2015 - present)

1. The respondents' current use of the site is not a matter of particular controversy. Based on the material before us, including the evidence of Mr Dunoon, we find that since around January 2015 the first respondent has been using the whole of the site for the carrying out of a business which:
   • Sells a range of landscape garden supplies to retail customers. The products sold include soils, sands, rocks and scoria from off-site quarries operated by themselves or third parties. The products also include crushed asphalt, crushed concrete and crushed bricks, with these being produced off-site from recycled materials. The business also sells second hand railway sleepers and bridge timbers, firewood, used bricks and used bluestones, packaged cement products, steel rods for retaining walls and some pavers.
   • The products sold at the site are primarily for small retail customers, who want to use relatively small quantities of the products (up to around 10 cubic metres of sand/soil type products), for their gardens, driveways and other similar outdoor areas.
   • The business itself operates several other sites and also supplies larger quantities of products. However, this does not occur from the site. Rather, larger orders are generally supplied directly from quarries or suppliers, rather than from the site.
   • The business generally operates seven days a week, apart from public holidays. Products are moved on the site and loaded onto vehicles for transporting to customers at all times when the site is operating. However, there is some limitation on incoming deliveries, with the respondents attempting to limit deliveries of products to after 9am (although trucks from its other sites or vehicles within the site may operate earlier than this), with deliveries not being accepted at all on Sundays, and with only limited deliveries accepted on Saturdays.
   • The concrete pad on which the central shed was previously constructed remains on the site and is located approximately 100 metres to the west of Ghazeepore Road and approximately 22 metres north of Grossmans Road.

Is the current use of the site authorised by the 1994 Permit?

1. It is not in dispute that there have been a number of permits issued authorising various uses and developments on the site and parts of the site.
2. Of these, it is only the 1994 Permit which potentially authorises the respondents' use of the site.
3. In determining whether the 1994 Permit authorises the respondents' use of the site, we need to consider:
   • whether the land to which the 1994 Permit relates includes the site;
   • whether the use of the site pursuant to the permit commenced;
   • whether the 1994 Permit has expired.
4. For the reasons we set out below, having considered these matters we have found that the 1994 Permit does continue to operate to authorise the respondents' use of the site.
5. As to the question of whether the use complies with the conditions of the 1994 Permit, we consider this in more detail in a later part of our reasons.

1. The 1994 Permit authorises use of land for a plant nursery and garden supplies in accordance with 'attached plans'.
2. The address of the land which is the subject of the 1994 Permit is recorded on that permit as 460 Grossmans Road. At the time that the 1994 Permit was issued, 460 Grossmans Road was a farming property of over 100 hectares. Permit 93/5112 for wood storage, issued 1 April 1993, includes endorsed plans which show the use being confined to an area in the south-western corner of that property. This 1993 permit was superseded by the 1994 Permit, with the plans endorsed to the 1994 Permit covering the same general area of the land and including the wood storage use.[8]
3. Condition 1 of the 1994 Permit provides that 'the layout of the site and size and design of proposed buildings or works as indicated on the endorsed plan shall not be altered or modified without the approval of the responsible authority'. Condition 3 provides that 'landscaping shall be provided and maintained to the approval of the responsible authority'.
4. We do not agree with the submissions of Council that the 1994 Permit only applies to the small part of the broader land which is shown on the endorsed plans. While it is possible for a permit to only relate to part of land held in a single land title, there is nothing to indicate that this is what is intended in this case. In our view, had this been the intention then the address would have been described as 'part of' on the 1994 Permit. Also, if the endorsed plans were intended to describe only part of the broader site to which the 1994 Permit was to relate, then we would have expected them to have been prepared with more precision, rather than the hand drawn, not-to-scale, 'conceptual' type plans which were in fact endorsed under the 1994 Permit.
5. Rather, we consider the intent, as expressed in the clear words of the 1994 Permit itself which specifies the land to which it relates, is for the 1994 Permit to relate to the whole of 460 Grossmans Road. Plans endorsed under the 1994 Permit (and which the definition of 'permit' in the Planning and Environment Act 1987 confirms form part of that permit) provide more detailed requirements as to the layout of the use and limit this to part of the larger site. Conditions of the 1994 Permit provide scope for this layout to change, including by way of its expansion or contraction. Whether those endorsed plans are able to be amended via a condition 1 'secondary consent' or whether a formal amendment of the 1994 Permit is required is a matter to be determined having regard to the scale and nature of the proposed amendments.[9]
6. While the later subdivision of 460 Grossmans Road and the separate use and development of this land over time[10] now means that the 1994 Permit relates to either the entirety of land owned by Kithbrooke Park or the much smaller land parcel now known as 330 Grossmans Road, it continues to relate to that part of the original title which is currently occupied by the business of the first respondent and described within the lease document.
7. No party suggested that the subdivision of the broader site in any way affected the ability of the use to be carried out in accordance with the plans endorsed pursuant to the 1994 Permit. It is evident to us on the facts that it has always continued to be able to be so used, notwithstanding the subdivision of the original land title. As such, and applying the reasoning of the Tribunal in Buckeridge v Darebin CC[11], we find on the facts before us that the ability to rely on the 1994 Permit has not been affected by the subsequent subdivision of the broader parcel of land.
8. Accordingly, we find that the land to which the 1994 Permit relates includes the whole of the site.
9. It is a separate matter as to whether any use of the land pursuant to the 1994 Permit complies with the conditions of the permit, including those which limit the part of that land on which the use is able to be carried out. This matter is addressed later in this decision.

Did the use authorised by the 1994 Permit commence?

1. The 1994 Permit authorises use of land for a plant nursery and garden supplies in accordance with attached plans.
2. As to what that means, in response to our request, the Council provided us with a copy of extracts of what it considered to be the planning scheme in force at the time that the 1994 Permit was issued. This included:
   • An extract of the zoning provision applying to the land, dated 16 June 1994. This confirmed that a planning permit was required to use the land for a 'plant nursery - retail' land use.
   • An extract of 'schedule 1 - definitions'. It was not clear when these definitions came into force, but assuming they were in force at the time of the permit they provided that 'plant nursery - retail' was defined as 'any building or land used for the sale by retail of plants, shrubs, trees and garden supplies'.[12]
3. While the term 'plant nursery' included a garden supplies use, the 1994 Permit, in any event, specifically referred to 'garden supplies' as being authorised by the permit.
4. As 'garden supplies' was not a term defined by the scheme, its meaning should be understood by reference to the permit as a whole and also by its ordinary meaning. We consider that its ordinary meaning is described appropriately in the current scheme definition of 'garden supplies', which is 'land used to sell and distribute garden supplies such as sand, soil, railway sleepers, screenings, rock, and the like'.
5. Based on our findings as to the past use of the site outlined above, we find that a 'garden supplies' use involving the sale of sand, soil, mulch the like use of the site commenced in around 1995.
6. So too, the development authorised by the 1994 Permit was carried out. Mr Grossman confirmed that the central shed authorised by the plans endorsed in 1994 was constructed shortly after the 1994 Permit was issued.
7. Accordingly, we find that the use and development authorised by the 1994 Permit for 'garden supplies' (which also constituted use of the land as a 'plant nursery' using the land use definitions in place at the time) commenced in around 1995.
8. To the extent that the use or development may not have been carried out in accordance with conditions of the permit, we do not consider this to be material. As has been consistently held by the Tribunal, except where a non-compliance is so fundamental to have prevented the use ever having commenced operation pursuant to a planning permit, then non-compliance with a permit is a matter which may be the subject of enforcement, but does not mean that that the use has not commenced pursuant to a relevant planning permit.[13] We do not consider there to be any evidence of any breach of permit conditions sufficient to result in the use not having commenced in this instance and nor did any party suggest there to have been.
9. The use authorised by the 1994 Permit commenced, generally in the location and in accordance with the plans endorsed pursuant to the 1994 Permit and we find this to have clearly constituted commencement of the use.

1. We find the evidence before us to clearly demonstrate that there has been a continuous use of the site from 1995 onwards involving the sale of soil, sand, mulch, rocks, stone and other like products on the site. We consider this use falls squarely within the common meaning of 'garden supplies'. Because of the definitions in the scheme at the time, this 'garden supplies' use also constitutes use of the site for a 'plant nursery' use.
2. We consider this purpose to always have been a real and substantial use to which the site has been put and as such, we find there to have been a continued use of the site for 'a plant nursery and garden supplies' from 1995 onwards.
3. The extensions to the shed authorised by amended plans in 1999 and 2000 were also, according to the evidence of Mr Grossman, constructed.
4. In 1999, the plans endorsed under the 1994 Permit were amended to allow the construction of a concrete hopper on the site. Given the specific allowance in the endorsed plans for concrete to also be supplied on the site, we consider that the term 'garden supplies', as used in the 1994 Permit, has to also be understood to include the concrete batching carried out on the site between 2000 and 2012 in accordance with the endorsed plans.
5. Section 68 of the Planning and Environment Act 1987 provides that a permit expires if the use is discontinued for a two year period. Given the continuous nature of the garden supplies activities which we have found to have been carried out pursuant to the 1994 Permit, it has not expired by operation of section 68. Therefore, we consider the permit to remain 'live' and continues to authorise the use of the site for 'plant nursery and garden supplies'.
6. The respondents, however, argued that the 'plant nursery and garden supplies use' ceased as a result of the use of the site transforming into another type of use. Their primary submission was that the use transformed to a use which is properly categorised as 'landscape, garden and building supplies'. They also said that, alternatively, the use transformed into an innominate use encompassing all of the various activities which have been carried out over the site since 1994 under Mr Grossman's authority as head lessee.
7. The respondents say, therefore, that the use of the site moved beyond that authorised by the 1994 Permit. If we had agreed with the respondents that it had indeed done so, then the 1994 Permit would have expired owing to a cessation of the 'plant nursery and gardens supplies' use for more than a 2 year period.
8. However, we do not agree with the respondents that the use transformed from a 'plant nursery and garden supplies' use to a 'landscape, garden and building supplies' use as:
   • (a) 'Plant nursery and garden supplies' is not substantially different from 'landscape and garden supplies'. The current land use definition in clause 73.03 of the scheme for 'landscape garden supplies' (which we consider to be broadly consistent with its ordinary meaning) confirms this by defining it to be essentially a plant nursery and garden supplies use.
   • (b) The key distinction in the respondents' submitted categorisation of the use, therefore, is the addition of 'building supplies'. However, we consider 'building supplies' to be a term which can be applied to many other types of retail uses, such as timber yards, and hardware stores. In our view it is too broad to properly describe the use of this site.
   • (c) In response to our question, counsel confirmed that the basis upon which the respondents' say the use should be described as being for the purposes of 'building supplies' was because of the sale of concrete related products. We consider that an ordinary person would expect a garden supply centre to sell some concrete supplies (e.g. sand, scoria, packaged concrete). This was expressly accepted by counsel, who in response to our question, agreed that it was fair to say that that the sand and scoria were typically available in garden supplies centres. So too, we consider packaged concrete to be a product associated with garden supplies, as people carrying out garden work regularly need to make small quantities of concrete, for example to set posts, stones or garden edging. Therefore, we consider the sale of a certain amount of concrete supplies to be part of or ancillary to the use of land for garden supplies.
   • (d) During the period from about 2000 until 2012, the concrete supplies being offered on site also included concrete batching as well as a broader range of concrete products such as steel reinforcement. As we have already explained, in this particular instance the concrete batching use which occurred on the site is within the scope of the use authorised by the 1994 Permit, as the construction of the concrete hopper was authorised by amended endorsed plans in 1999. It therefore is not something which in this instance can be said to have transformed the use into something different to that authorised by the 1994 Permit.
9. We also do not agree with the respondents that the use transformed into a broader, innominate use a result of the materials recycling and other uses carried out on the site for the following reasons:
   • (a) Based on our above findings of fact as to the past use of the site, we find that since the grant of the 1994 Permit, the site has been used for a number of activities. We consider most of these activities, such as the sale of pavers, tools and other items, were only small scale and in our view were only ever ancillary to the use authorised by the 1994 Permit.
   • (b) The only activities which we do not consider to fall within or be ancillary to the 'plant nursery and garden supplies' use authorised by the 1994 Permit are:
     • recycling of building materials and storage of skip bins; and
     • storage/ depot for businesses operating in other locations.
   • (c) We do not find these activities to have been carried out as an integrated whole with the 'plant nursery and garden supplies' use so as to result in a broader, integrated, innominate use which encompassed all of these activities. Rather, we consider both of these activities to have been separate and distinct purposes for which the land was used, as they:
     • operated on quite distinct parts of the site: while there was some sharing of access and other parts of the site between the uses and the parts of the site which were operated by each business were not fully closed off to the other businesses by fencing, we do not consider this to indicate that the uses were not separate and distinct. This was confirmed by Mr Grossman in his evidence who said that the materials recycling business had a sublease for a particular part of the site and knew where it was to carry out its operations within the site. It is also confirmed by aerial photographs which show each of the uses generally operating within the same parts of the site over time.
     • were operated independently of each other: the materials recycling business was operated by a separate company, pursuant to a separate planning permit 04/0678 (the 2004 Permit), on a part of the site leased by that company, with no real interdependency or integration with the other two uses. While some of the recycled materials may have been supplied to Grossman's Garden Supplies, it was the evidence of Mr Grossman that the two uses operated independently of each other. Even if some of the timber obtained from the recycling business was sold to Grossman's Garden Supplies for re-sale, we consider this to be a reflection of the complementary nature of those businesses rather than indicating that they were of a single and integrated purpose. The depot uses of the site in the north-western corner were similarly quite separate uses, with their only connection to the other uses the fact that Mr Grossman, as head lessee, had allowed them to occupy a part of the site.
   • (d) We consider our conclusion in (c) above to be consistent with the decision of the Tribunal in which found that the use in that case which was for a mixed use of supermarket, five unspecified retail tenancies, possibly an office, a 65-room residential hotel and 39 apartments as for separate and distinct purposes, stating that '.

Is the current use of the site authorised by existing use rights under clause 63 of the scheme?

Use lawfully carried out immediately before the approval date

1. Clause 63.01 sets out five ways in which existing use rights can be established. The first of these is where:
   • The use was lawfully carried out immediately before the approval date.
2. In circumstances like those in this case, where a permit already authorises a use, it may not be necessary to look to the above provision of clause 63.01 to establish the continued right to use the site. This was discussed in Seers v Macedon Ranges SC[15] as follows:

...the starting point for any enquiry about whether existing use rights can be established should always be to enquire why it is necessary to establish existing use rights. Ordinarily this will only become relevant because the use of land does not comply in some way with the current planning scheme. If the use of land fully complies with the planning scheme - for example, it is a section 1 use and all conditions are complied with, or a permit has been issued under the provisions of the current planning scheme - the issue of existing use rights will not be relevant. The lawfulness of the use of the land will be able to be established either by reference to the provisions of the planning scheme or to a permit.

The need to established existing use rights will most commonly arise when there has been a change to the planning scheme since the use commenced that would mean the use would not now be permitted or would now require a permit under the planning scheme (as amended) and no such permit has been granted.

1. In this case, the permit was not issued under the provisions of the current planning scheme. Rather, the use is now prohibited. Accordingly, we consider that unlike the situation in Seers, it is necessary to go to the first dot point of clause 63.01. Accrued rights arising from a planning permit are not equivalent to clause 63 existing use rights in circumstances where a use has become prohibited. For example, it is generally only via clause 63.05 that there is scope for a buildings and works permit to be issued for such a use, as the ability to do so via the zoning provisions generally ceases at the time the use becomes prohibited.
2. In turning to clause 63.01, we find that the circumstances in that dot point are met, in that based on the facts before us, we find that the use had lawfully commenced under the 1994 Permit prior to the scheme being amended to prohibit the use.
3. We read the reference in clause 63.01 to 'lawful' in this context as a reference as to whether the general purpose of the use was one which was authorised by either a planning permit or the scheme itself. We do not read it as referring only to circumstances where a use was being carried out in strict compliance with every permit condition[16].
4. We consider this interpretation consistent with section 6(3) of the Planning and Environment Act 1987, which in our view also supports a focus on whether there is authorisation in place for a particular purpose, rather than whether there is compliance with the terms of that authorisation, as it prevents a planning scheme preventing the continuation of a use of land:

for the purpose for which it was being lawfully used [our emphasis]

1. There is no suggestion by any party, and it is clear to us based on our findings of facts as to the past use of the site, that immediately prior to the date on which the scheme was amended to prohibit the use of the site in 2007 for garden supplies, the use of the site for this purpose had commenced and was a lawful purpose for which the site could be used as a result of the 1994 Permit.
2. We also find that there have been no circumstances which result in the later extinguishment of those existing use rights that arise under clause 63.01. Clause 63.06 provides that existing use rights are extinguished if the use has stopped for a period of 2 years (either as a single 2 year period or two or more periods occurring over 3 years which total 2 years). These circumstances are similar to those which would result in the expiry of the 1994 Permit. For the same reasons that we found the 1994 Permit not to have expired (see above), we find that the existing use rights arising under clause 63.01 have not expired as a result of the cessation of the use.
3. It follows from the above, that we find the use of the site for garden supplies pursuant to the 1994 Permit to be authorised by existing use rights established under the first dot point of clause 63.01 of the scheme.

1. Counsel for the respondents acknowledged in oral submission that, consistent with the Tribunal's findings in Seers, where there is an existing permit authorising use, reliance on the permit is to be preferred as the source of legitimacy for the use rather than the establishment of existing use rights through the 15 year rule.
2. That said, in this case we have found that given that the use of the site for garden supplies is now prohibited, existing use rights do come into play. In these circumstances, the Tribunal has found that clause 63.11 is a separate and distinct way in which existing use rights can be established irrespective of whether the basis of the lawfulness is established by a planning permit or some other means.[17]
3. Clause 63.11, in essence, provides for the establishment of an existing use right where it is established that the use has been carried out continuously for 15 years prior to the date of the relevant application or proceeding.
4. It does not matter for the purposes of clause 63.11 whether the use complied with the scheme during the 15 year period, except if there has been action taken in respect of the non-compliance (eg. written direction by Council for the use to cease). There was no evidence before us of any relevant action being undertaken in respect of the lawfulness of the use which could affect the ability of the respondent to rely on clause 63.11 to establish existing use right, nor was this suggested by Council to have occurred.
5. We have already found that there has been a continuous use of the site for the purposes authorised by the 1994 Permit. Based on the evidence before us, we are satisfied that this use has operated continuously for the 15 year period immediately prior to this proceeding. As such, existing use rights are also established for this use under clause 63.11 of the scheme.
6. We have also found that the site has been used for two other separate and distinct purposes during the relevant 15 year period (i.e. materials recycling and storage/depot). However, both of these uses ceased some time ago and as such, no existing use rights are established under clause 63.11 for those uses.
7. The Council submitted that existing use rights established under clause 63.11 are the basis upon which the use of parts of the site beyond those areas that Council considers the use to be allowed by the 1994 Permit can continue to operate. As Council reads the plans endorsed under the 1994 Permit, the authorised use is limited to a corner of the site abutting Grossmans and Ghazeepore Road which measures 100 x 100 metres. However, Council says that where the use of the site for garden supplies has extended beyond this area for more than 15 years (within the central 50 x 100 metre area), it can rely upon existing use rights arising under clause 63.11. One of the key reasons Council has brought these proceedings is because it considers that there has not been a continuous use of the western portion of the site (the western 55 x 100 metre area) for a continuous 15 year period.
8. We consider the way in which Council has approached the question of the authorisation for the use to be misconceived. The use of the site for 'plant nursery and garden supplies' is a single land use. To attempt to artificially break this single land use up into separate uses based upon the extent to which the use has or has not been carried out within the area designated on the plans endorsed under the 1994 Permit, is in our view, not a proper way to approach the question of the lawfulness of the use. Nor is it a proper way to apply the provisions of clause 63 of the scheme.
9. We have already found that the 1994 Permit relates to a broad parcel of land, including the whole of the site. The plans endorsed under the 1994 Permit seek to provide limits as to the part of that broad land parcel upon which the use is to be conducted.
10. To the extent that the use has been carried out on other parts of that broader land parcel, this may constitute a breach of the 1994 Permit. Council alleges there has been such a breach. However, any such breach would not be sufficient to transform the use into one which has a different purpose to that authorised by the 1994 Permit. Nor would any such breach of the 1994 Permit mean that there would be two separate uses of this site for 'garden supplies', one of which was authorised by the 1994 Permit and remains subject to its conditions, and one of which is authorised by existing use rights under clause 63.11 and is not subject to the conditions of the 1994 Permit.
11. Rather, there has been 15 years continuous use of the site for one use with the purpose of a 'plant nursery and garden supplies'. This is the same use which is authorised by the 1994 Permit. If there has been a long standing breach of condition 1 of the 1994 Permit in respect of the part of the site upon which the use has been carried out, this makes no difference to the purpose of the use.
12. That this use is therefore also authorised by clause 63.11 also makes no difference to the enforceability of the 1994 Permit. This is because, consistent with both:
    • clause 63.05 of the scheme which allows the continuation of an existing use provided any condition or restriction to which the use is subject continues to be met: and
    • the decision of the Tribunal in Octopus Media Pty Ltd v Melbourne CC (Octopus Media)[18],

as the use was authorised by a planning permit during the relevant 15 year period, it remains bound by the conditions of that permit.

1. While the facts considered by the Tribunal in Octopus Media were different, we consider the principle adopted in that case to be equally applicable in the case before us. That is, that where the benefit of a permit has been taken and the permit relied upon during the 15 year period relevant for the purposes of establishing existing use rights pursuant to clause 63.11, then the conditions of that permit are a relevant condition or restriction for the purposes of clause 63.05 of the scheme.
2. As stated by the Tribunal in Seers[19]:

... Sometimes, though, there is a tendency on the part of practitioners to assume that once a use has been established for 15 years, even though it commenced lawfully pursuant to a permit or the provisions of the (then) planning scheme, the establishment of an existing use right under clause 63.11 supersedes an existing use right established under the first dot point of clause 63.01 (use lawfully carried out immediately before the approval date) or a right under an ongoing permit. One implication of this assumption is that this renders the provisions of clause 63.05 inapplicable. In other words, the implication is that even though a use commenced lawfully under a permit, once it has been going for 15 years, the conditions of the permit can be ignored because an existing use right is established under the alternative provision of clause 63.11.

This cannot be right. It would make a mockery of the whole scheme of the Planning and Environment Act 1987 which provides that planning permits granted under a planning scheme and in accordance with the Act are a key means of regulating the use and development of land in Victoria.

1. In this case, therefore, we find even though the use is also authorised by existing use rights pursuant to clause 63.11 of the scheme, in accordance with clause 63.05 the use remains subject to compliance with the conditions of the 1994 Permit. This includes condition 1 which requires the use to be carried out in accordance with the endorsed plan[20].

Is the use of the site consistent with any applicable conditions or restrictions?

1. In relation to the key issue in dispute between the parties, namely, the western boundary of the area within which the current use is able to be lawfully carried out, our above findings mean that this is a question which is to be resolved by determining whether the use is in accordance with condition 1 of the 1994 Permit and the plans endorsed under the 1994 Permit.
2. Both parties agree that the currently endorsed plans to the permit are those endorsed on 24 May 2000. Prior to this, several other sets of plans were endorsed under the 1994 Permit. All of these sets of endorsed plans are at best described as 'conceptual' - none are to scale, and while they sometimes have dimensions marked on them, these dimensions do not necessarily accord with the location of existing physical characteristics of the site.
3. The plans endorsed under other permits issued in respect of the site, including planning permit 01/0334 issued on 30 August 2001 which authorised buildings and works associated with a plant nursery on part of the site (the 2001 Permit), and the plans endorsed to the 2004 Permit for use of part of the site for materials recycling were also provided to us, and give us additional context for understanding the use of the site at those times. The site plans from each set of endorsed plans to the 1994 Permit, the 2001 Permit and 2004 Permit are reproduced in Appendix A to this decision.
4. Having considered the various plans as well as other extraneous material provided to us and the actual physical attributes of the site and surrounds, we find that the plans currently endorsed under the 1994 Permit are, quite simply, too vague and imprecise for us to make any finding as to the exact area of land upon which the use is permitted to be carried out.
5. The conceptual nature of the plans means that there is a level of uncertainty as to the precise area depicted. We find that in terms of the western boundary shown by those plans, the outer limits of that uncertainty extend to the western edge of the existing pine plantation and to the western access which exists on the site. In our view, so long as the use is within this outer limit of uncertainty, then we consider it is not in breach of the requirements of condition 1 of the 1994 Permit.
6. We say this based on our findings in respect of the various plans, set out below.
7. While we have made findings as to whether the area occupied by the current use of the site is in breach of the 1994 Permit, Council did not allege and accordingly we have not made findings as to whether the layout of that use is in accordance with those plans.
8. There is a real question as to whether differences between the current layout of the site and that depicted on the plans, including the demolition of the central shed and its replacement with alternative buildings and the vehicle access arrangements, are consistent with plans endorsed under the 1994 Permit.
9. Ultimately, these were not matters which were the subject of detailed submissions and accordingly, we make no findings on them. In any event, it may be that in determining the broader questions before us in this proceeding, there may be a clearer pathway for both Council and the respondents to resolve these other matters outside of an enforcement context.

1. We make the following observations about the various plans endorsed pursuant to the 1994 Permit.
   • (a) Plan 1 (1994) - previously endorsed plan

This plan is hand drawn in a square shape. It purports to show, along the outside of the square, an area of 100 x 100 metres. Within the square are the following:

• A wood supplies storage area measured at 50 x 50 metres;
• A nursery and garden supplies area measured at 50 x 50 metres;
• A rectangular shed measured in feet (60 x 25 x 10), located 10 metres from the western boundary of the site and 30 metres from the southern boundary. This is the 'central shed' referred to earlier;
• Landscaping strips along all boundaries, with a width of 7 metres; and
• A driveway accessed from Ghazeepore Road on the south-east corner, above the landscaping strip, along the southern boundary of the site, connecting with car parking spaces adjacent to the shed and a second accessway onto Grossmans Road in the south-west corner of the site.

This is the same as plan 1 but includes an extension to the central shed and an area to the north of the shed with a reference to 'bays for materials stone/sand'. Adjacent to the southern landscape strip there is also a reference 'indigenous (Jeanette Spittle)', perhaps referring to the type of planting.

(c) Plan 3 (also part of the 1999 endorsed plans) - this plan shows expansion of the central shed to include the concrete hopper.

(d) Plan 4 (2000) - currently endorsed plan

This plan is for a further extension to the central shed. This is a new hand drawn plan which has been drawn in a rectangular shape and does not include any buildings or other uses aside from the central shed and proposed extension. There are no road names included on this plan. Landscaping strips are shown along each boundary, for a width of 7 metres.

The shed is shown as being located 10 metres from a boundary and 21 metres from another boundary, after the extension. This is consistent with the measurements on Plan 1 which showed the central shed located 10 metres from the western boundary. On that basis we have interpolated that the driveway shown on this plan is running east-west generally to the north of the Grossmans Road frontage, with an entry from Ghazeepore Road. There is no access to the site shown from Grossmans Road on this plan.

1. To interpret the plans, it is also of assistance to review the current site and understand its dimensions and the location of features such as the concrete pad on which the central shed used to be located, landscaping and vehicle access points.
2. The blue lines on the image below have been drawn using the nearmap measuring tool and show:
   • The line at the bottom of the image along Grossmans Road measures at 150 metres.
   • The east-west line above measures at 100 metres.
   • The north-south line spanning the width of the site measures 85 metres.
   • The smaller north-south line from the southern boundary to the concrete pad measures at 21 metres.

1. Based on the evidence provided by the witnesses, the endorsed plans and the actual site measurements, we find that:
   • (a) Plan 1 purported to allow the use of an area of around 100 x 100 metre in the south-west corner of the site. However, there is some inconsistency with this dimension and features located on the site, including the western access which is around 200 metres from Ghazeepore Road. The actual location of the central shed constructed pursuant to the permit is also not in the spot shown on Plan 1, as it is a little over 100 metres from Ghazeepore Road and, prior to the extension, would have been 30 metres from Grossmans Road. This is inconsistent with the 100 x 100 measurements of Plan 1 which indicate the western edge of the central shed should be at around 90 metres from Ghazeepore Road.
   • (b) While Plan 1 shows an access point to Grossmans Road, we cannot say, on the balance of probabilities, whether this is intended to refer to an existing access point (which has always been located around 200 metres from Ghazeepore Road) or whether it was intended to refer to a proposed access which was not in fact constructed at that time[21]. Nor are we able to say, on the balance of probabilities, whether the western landscape strip shown on that plan is intended to refer to the existing pine plantation, or some proposed new landscaping. Mr Grossman gave evidence that the access point off Grossmans Road adjacent to the pine plantation did exist and was in use at that time for the garden supplies use and he does not know why the plan indicates 100 metres as this is not the distance to the western access which has always been used for the permitted use.
   • (c) Plan 4, which the parties agree to be the current endorsed plan for the site, is drawn depicting the site to be rectangular in shape. We consider this may be a reflection of the fact the use encompassed or was intended to encompass a greater area of the site. Given the limited number of dimensions indicated on the plan, the lack of basic reference points such as Ghazeepore Road and Grossmans Road, and the overall conceptual nature of the plan, we consider it impossible to make a finding as to the precise area of the site to which it relates. We also consider it difficult to read too much into details shown on the plan to indicate the area to which it relates. For example, the fact that the plan shows a single access (only to Ghazeepore Road) may indicate an intention for the existing western access to be closed off (which did not occur), or it may indicate that the plan did not extend to a part of the site which was as far west at the existing access. Again, the low quality of the plan means that we find ourselves unable to make a conclusive finding on this point.
2. While plans endorsed pursuant to the 2001 Permit and the 2004 Permit have provided us with some context, they are not plans endorsed pursuant to the 1994 Permit and cannot be treated as such. Also, given that the evidence before us establishes that the various uses of the site were not conducted to the exclusion of other uses and that there has been continued use of the western access by the garden supplies use over the site's history, we do not find the 2001 and 2004 plans to necessarily indicate parts of the site which were used by other operators to the exclusion of the gardens supplies use. In other words, we do not consider the fact that the plans endorsed pursuant to the 2001 Permit show a broad division of the site into a 'gardens supplies' and 'plant nursery' operation, to necessarily indicate the extent of the area depicted by Plan 4. Rather, we consider it equally possible that Plan 4 covered both the areas depicted as 'garden supplies' and 'plant nursery' in the 2001 plans, with the plans endorsed pursuant to the 2001 Permit indicating the layout of the two uses within that broad area.
3. Equally, we do not consider the more accurate plans endorsed pursuant to the 2004 Permit to provide much assistance to us in determining the extent of the area depicted by Plan 4. Again, while the 2004 Permit may potentially extend to more of the site than Plan 4, we also consider it quite possible that the plans endorsed pursuant to the 2004 Permit merely indicated a more accurately depicted and dimensioned layout of the broad area shown on the 2000 endorsed plans. This would appear to be consistent with the 2004 plans depicting the wood yard part of the garden supplies use in the north-western corner of the site and adjacent to the existing pine plantation.
4. We have considered whether we should read the 2000 endorsed plan in a way which gives literal effect to one of the very few dimensions shown on the plan, namely the 10 metre distance indicated to exist between the shed depicted on the plan and the western boundary of the site. However, we consider this to be reading those plans in way which is inconsistent with their high level nature. The depiction of a dimension such as this on what is a highly conceptual plan does little to assist with understanding the whole of the plan. It does not assist us in determining the overall dimensions of the site. Nor does it make sense to us, when reading a plan such as this, to attribute great weight to the dimensions shown when they are potentially inconsistent with the features of the site in existence when the plan was endorsed. Taken at face value, for example, the plans indicate the western boundary of the site to be 10 metres from what can only be a shed which was existing at the time the plan was endorsed. They also indicate that within that space, between the existing shed and the boundary, is a seven metre wide landscape strip - a feature that was either:
   • inaccurately depicted as being in place at the time the plan was endorsed, or
   • was a feature which was in place in the form of the existing pine plantation, but the distance between the shed and the plantation was inaccurately depicted, or
   • was depicted as proposed landscaping, on this and previous plans, notwithstanding the fact that it had not been established either prior to or after 2000 and the evidence before us indicates that the wood yard activities associated with the garden supplies use were operating in a substantial part of the site where it is depicted.
5. Therefore, we find that the 2000 plans endorsed pursuant to the 1994 Permit, are quite simply, too vague and uncertain to be read in a way which results in the use being constrained to a precise area of the site. Nor do we think it is reasonable for us to read precision into plans which is not evident on their face. Plans endorsed pursuant to permits are part of a statutory instrument which needs to be capable of enforcement against future owners and occupiers. Where those plans have been prepared with such a lack of precision as they have in this case, we do not consider it appropriate to retrospectively read that precision into the plans based on facts not evident to subsequent owners and occupiers on the face of the permit or the plans. This is particularly the case in an enforcement context when we are also being asked to then issue orders which would require compliance with those plans.
6. Rather, we consider that the conceptual nature of the plans means that there is a level of uncertainty as to the precise area depicted. We find that in terms of the western boundary of the site, the outer limits of that uncertainty extend to the western edge of the existing pine plantation and to the western access which exists on the site. In our view, so long as the use is within this outer limit of uncertainty, then we consider it is not in breach of the requirements of condition 1 of the 1994 Permit.
7. As the evidence before us indicates that the current use of the site does not extend west beyond the pine plantation and western access, then we find that the use does not contravene the 1994 Permit by way of its occupation of a part of the site beyond that contemplated by the currently endorsed plans.
8. Even if we are wrong, and the endorsed plans are capable of being read with more precision then we have found to be the case, then for the reasons we explain below, we would have in the particular circumstance of this case had concerns in exercising our discretion to make an enforcement order in respect of any use of the site beyond the area considered to be depicted on the plans.

DOES THE DEVELOPMENT OF THE SITE CONTRAVENE PLANNING REQUIREMENTS AS ALLEGED BY COUNCIL?

What earthworks were carried out by the respondents in late 2014/early 2015?

1. Based on material before us, including the photos attached to the evidence of Ms Campbell, and evidence of Mr Dunoon (the photos which Mr Dunoon confirmed he had taken on his first inspection of the site, prior to any works being undertaken by the respondents), we find that between around the end of December 2014 and the end of January 2015 the respondents carried out the following works on the site:
   • Removing debris from the site;
   • Removing left over sand, soil and other types of landscape materials from the site;
   • Removing log bays within which the previous occupants of the site had kept sand, soil and other landscape materials;
   • Using a bulldozer or like machine to scrape clear areas of grass and weeds;
   • Using a bulldozer or like machine to scrape clear areas on which there were left over materials or waste from the previous tenant of the site;
   • Refashioning the bund along the northern boundary of the site to some degree, including widening the bund at its north-western end, and planting trees and plants along the bund;
   • Removal of a small number of trees from the eastern side of the internal fence which runs north from the southern boundary of the site to just east of the existing green shed on the site; and
   • Resurfacing much of the site in a crushed rock asphalt material.

Was planning permission required for those earthworks?

1. We consider that most of the above works are properly considered to be 'repairs or routine' maintenance. Most of the works, in our view, constitute the removal of debris and rectification of existing hardstand areas. This includes the resurfacing of the site with respect to a use such as that which occurs on this site, where resurfacing is required for maintenance of the site from time to time. Accordingly, we consider most of the works were exempt from the need for a planning permit under clause 62 of the scheme.
2. However, we do agree with Council that some of the works were beyond the scope of what could be considered to be 'repairs and routine maintenance' including the works which widened the northern bund.
3. We find that a permit was required for those works under clause 63.05 of the scheme.

Is there any requirement for further landscaping works to be carried out on the site?

1. As we have already explained, the endorsed plans indicate areas of perimeter landscaping, although there is some uncertainty as to whether the western most landscaping is referring to the existing pine plantation or to proposed landscaping which has never been established.
2. Condition 3 of the 1994 Permit requires landscaping to be provided and maintained to the satisfaction of Council. There is no separately endorsed landscaping plan. Nor are there any plans which point to any particular plantings or landscape design to be planted within the areas designated for perimeter landscaping on the endorsed plans.
3. Landscaping is largely in place around the edge of the site, in the form of the western pine plantation, relatively new planting along the northern boundary and established planting along the eastern boundary. There is also some planting along the southern boundary, although there are significant gaps in this along the length of that boundary.
4. In our view, given:
   • the high level nature of the endorsed plans;
   • the lack of any further detail as to any landscaping requirements; and
   • the requirement of the 1994 Permit that the landscaping has to be provided to the satisfaction of Council;

we consider the requirements of condition 3 are met in this case. We consider that the substantive landscaping around the perimeter of the site and the lack of any indication from Council over the 24 year life of the 1994 Permit (including numerous amendments to endorsed plans) that this landscaping was insufficient, is adequate indication of Council's 'satisfaction' with the landscaping which has been provided and maintained. Accordingly, we do not find there to be any breach of condition 3 of the 1994 Permit.

SHOULD WE ISSUE AN ENFORCEMENT ORDER AND IF SO, ON WHAT TERMS?

1. While we have found there to be a contravention of the scheme in terms of some of the earthworks carried out by the respondents, the making of an enforcement order is still a matter for discretion.
2. In this case, we do not consider an enforcement order warranted. This is because the nature of the non-compliance is minor and Council's response to our questions as to the rectification works Council would require in relation to this breach should we consider it to be made out, was that it did not seek any such works.
3. We have not found the breach alleged by Council in respect of the use of the western portion of the site for garden supplies to be made out. Even if we had, we note for the record that we would have had real concerns about exercising our discretion in favour of enforcement orders in respect of that breach, given the conceptual nature of the endorsed plans which we consider are open to be reasonably read in a number of ways, and the longstanding use of the site for activities associated with the 1994 Permit (including the use of the western accessway and also use of part of the north-western corner of the site for wood lot/firewood).
4. As we have also noted above, while we have found that the area occupied by the current use of the site does not breach the 1994 Permit, we have not made findings as to whether the current layout of the use and the changes to the buildings on the site are in accordance with those plans, as these were not matters which were before us in this case.
5. If there are matters which need to be addressed in terms of compliance with the detailed layout of the site in terms of the endorsed plans, then this is a matter which may be able to now be resolved without the need for further enforcement action. We are aware that both the respondents and Mr Grossman, have, at times, applied to the Council to amend the plans endorsed to the 1994 Permit. We understand that the view had been taken that it was beyond the Council's power to amend the plans and therefore this avenue was not pursued further.
6. We have found that the 1994 Permit is extant, applies to the whole of the site and that existing use rights also exist under the first dot point in clause 63.01 in respect of that use. Given this, it may be that further issues in respect of the endorsed plans may be able to be resolved by the parties, including by amendment of the 1994 Permit or endorsed plans to reflect the current layout.

1. For the above reasons, the application for an enforcement order is refused.

Plans endorsed 1 April 1993 pursuant to permit 93/5112 issued by the Barrabool Shire for Wood Storage at 460 Grossmans Road.

Plan 1 to the 1994 Permit - endorsed 5 December 1994

Plan endorsed under 2001 Permit, dated 30 August 2001

Plans endosed under 2004 Permit, dated 23 December 2004

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Image of 330 Grossmans Road, Bellbrae, from www.nearmap.com.au. The blue lines shown along the southern and eastern boundaries of the site have been measured at 205 and 85 metres respectively.

[3] The land owned by Kithbrooke Park is lot 1 on Plan of Subdivision 738469, within Certificate of Title Volume 11648 Folio 765.

[4] This document was attached to the affidavit of Mr Grossman as exhibit SKG-6.

[6] Amendment C33 to the Scheme rezoned the site to LDRZ on 16 August 2007.

[7] In doing so, we note that until mid-2012, the extent of the site being described is approximately 205 metres by approximately 100 metres from north to south. In mid to late 2012, the northern 15 metres of the site was used to create a retaining mound and became a buffer area between the site and what later became Watergum Drive to the north.

[9] See e.g. Cook v Mornington Peninsula SC (Red Dot) [2017] VCAT 1129

[10] The balance of the land is still referred to as 460 Grossmans Road. We understand this parcel is now approximately 78 hectares in area and remains in the ownership of the Grossman family. The remaining area, which includes the subject site, is owned by Kithbrooke Park. Within this lot, Kithbrooke Park Country Club has an address of 350 Grossmans Road and Newcomb Sand and Soil has an address of 330 Grossmans Road.

[11] [2018] VCAT 838, at [86]-[88].

[12] Council had previously provided an extract of Schedule 1 definitions from the Local Section of the Surf Coast Planning Scheme dated 16 June 1994, which does not include a definition of plant nursery.

[13] As to the instances in which non-compliance with permit conditions may affect whether a use has been established under a planning permit, see eg. NBH Business Park Pty Ltd v Whittlesea CC & Ors (No 3) [2012] VCAT 968, [119]-[151]

[14] (Red Dot) [2008] VCAT 973.

[15] (Red Dot) [2016] VCAT 1198, [71] - [72].

[16] Although even if it was to be read in this way, adopting the reasoning we outline below in respect of the interpretation of the endorsed plans, there is nothing before us with suggests that there was not strict compliance with permit conditions

[17] Mornington Peninsula Shire Council v Anderson [2009] VSC 301

[18] [2016] VCAT 2101 at [80-81] and [119].

[20] See, for example, the Tribunal reasoning in Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246.

[21] There was an access point constructed at around the 120 metre point along Grossmans Road in 2005, pursuant to a separate permission.