[2003] VCAT 1621

The proposed use of the land is for a contractors depot, that that use is a Section 2 permit required use in the zone and that a permit may issue for that use.

2. The application for review shall be listed for hearing for 3 hours before a planning member on the next available circuit n the area.

1 This matter is an application for review by T A Lindsay Pty Ltd against a decision of the Benalla City Council ("Council") under Section 77 of the Planning and Environment Act to refuse a permit to conduct a fence contracting business in association with an existing residential dwelling on the land and to construct additional storage facilities on the land.

2 The matter was listed for a preliminary hearing on 12 June 2003 to consider:

* Whether notice should be given under Section 83 of the Planning and Environment Act and to whom, and

* Whether the proposed use is prohibited in the Rural Living Zone of the Benalla Planning Scheme.

3 By order dated 12 June 2003 I ordered that the question of law as to whether a permit can lawfully be erected for the proposed use shall be dealt with on the papers under Section 100 of the Victorian Civil and Administrative Tribunal Act 1998.

4 Subsequent orders were made for the exchange of submissions and, if the question of law is determined in favour of the Applicant, for the giving of notice.

5 The Applicant and the Respondent each filed written submissions and the Applicant filed written submission in reply to those of the Responsible Authority.

6 The parties have agreed on a letter dated 20 December 2002 from the Applicants solicitors being an agreed statement of the facts in the matter, which are set out in the Appendix to this decision.

7 The Applicants written submissions also included a statement

"One matter not included in the agreed statement of facts is that Mr Lindsay spent considerable periods of time away from the property during which period there was no business activity on the land. Absences vary from overnight to weekly and occasionally monthly periods of time."

8 Whilst the plan referred to in the letter is not set out in this decision the Tribunal has referred to it.

9 The land is within the Rural Living Zone under Clause 35.03 of the Planning Scheme. No overlays affect the land.

10 The Applicant characterised the proposed use of the land for which the permit is sought as follows:

"We confirm that our clients Mr Tom and Mrs Jill Lindsay are the registered proprietors and occupiers of all that piece of land contained in Certificate of Title Volume 9016 Folio 073. The land fronts Burness and Goomalibee Roads.

Mr Tom Lindsay is in the business of fence contracting. The business operation undertakes general fence contracting, the assembly of cattle yards, the digging of fence post holes on third party sites, the slashing of roadside verges and paddocks. The business also from time to time, provides plant and equipment free of charge to people and Community groups in the Benalla and District area. Mr Lindsays business operations significantly contribute to the local economy.

1. We are instructed that approximately one third of the land area, fronting the southern and Western boundaries, is currently used for residential/rural living. We understand that in the past approximately a half to one third of this part of the land was used as temporary storage for second hand materials. Our clients advise that this area is now in the process of being cleared of materials and natural revegetation will take place.

2. Approximately one third of the area which fronts Southern, Eastern and Northern boundaries of the land is used for grazing and keeping of livestock, predominantly sheep kept on site from time to time and also free range chickens. This part of the land is maintained through the grazing of livestock and periodic slashing of the paddocks by the owners when sheep are not on site. A quantity of recyclable material (eg, old wooden fence posts, metal an steel railings etc) is also kept in this area. The owners have no proposal or intention at this time to change the present use of this part of the land except to continue to manage the levels of recyclable material.

3. The remaining one third land area, fronting the Western and Northern boundaries of the land, is used exclusively for the storage of material, motor vehicles and equipment used in Mr Lindsays business operations."

11 The issue in this case is whether the use of the land falls within an innominate use in Section 2 of the zone or is a prohibited use as falling within the prohibited uses of "industry", "materials recycling" or "store" pursuant to Section 3 of the zone.

12 Industry in the Rural Zone is a Section 3 prohibited use.

13 Materials recycling falls within the nest of definitions and is included in industry and likewise is a Section 3 prohibited use in the zone.

14 Store is a Section 2 - permit required use in the Rural Living Zone subject to the following condition:

"Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot."

"Industry Land used for any of the following operations:

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

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

a) Providing amenities for people engaged in the operation;

a) Selling by wholesale, goods resulting from the operation; and

a) Accounting or administration in connection with the operation.

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

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

Store Land used to store goods, machinery or vehicles."

16 The Responsible Authority's argument is that the subject land is being used for a number of purposes, all of which according to Clause 64 must meet the requirements of the planning scheme.

17 It submitted that the land is being used for the purpose of industry, that it is being used for the purpose of a process of manufacture namely the preparation of fencing materials for assembly off site. Further the Responsible Authority says the land is being used for the purposes of repairing and servicing vehicles and equipment used in the fence contracting business and the intensity of this use varies from part of a day to a whole day.

18 Further it says the land is being used as a store to store goods being the materials used in the fence contracting business, materials and vehicles such as trucks, tractors and other equipment.

19 Lastly it is argued that the land is being used for materials recycling namely the collecting and storing of used and scrap fencing materials.

20 In relation to the use of the land as a store the Responsible Authority referred to the condition and noted that the storage was not in a building and accordingly the condition to Clause 31.01-2 was not satisfied and the use of the land for the purposes of a store is prohibited.

21 It submitted the land is also used for the purposes of a dwelling and that none of the uses are ancillary to that purpose. It argued that none of the uses identified are ancillary to one dominant use, and in any event all are prohibited. Each are the activities that establish the purpose of uses is necessary to the operation of the fence contracting business.

22 The Applicants argument is that the proposed use of the land does not fall within the prohibited uses of industry, or materials recycling and falls within the category of "any other use not in Section 1 or 2" found in Section 2. In the alternative it is argued that the proposed use falls within the definition of "store" and a permit can therefore be issued.

23 It is not disputed by the parties that in characterising the proposed use of the land the test to be adopted is the real and substantial purpose test. The Responsible Authority referred to the authorities of Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 and Shire of Perth v O'Keefe [1964] HCA 37; [1964] 110 CLR 529.

24 The Applicants referred to the Supreme Court decision of Cascone & Vella v Shire of Whittlesea [1993] 11 AATR 175 where Ashley J enunciated the principals for characterising land use and the relationship with the definitions in the planning scheme (at page 190):

"(1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.

(2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.

(3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.

(4) The ascertainment of purpose of a proposed use may yield the result that the purpose revealed very largely falls within a defined use. The extent to which it does not may be so trifling that it should be ignored. In that event the purpose as revealed should be taken to fall within the defined use.

(5) The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is `Yes', and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. Bit if the answer to the first question is `No', each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.

(6) In resolving the problems of characterisation raised in the preceding paragraphs (1) to (5) the preferable view, in my opinion, is that the adjectival phrase `real and substantial' qualifying `use' will always be nominally present. Bit it is unlikely to be of practical importance in many cases. It will always serve to emphasise that there is a distinction between `purpose of use' and `use' in the sense of activities, processes or transactions. It should not be used to cloud the potential for more than one purpose being revealed. It should not be thought to provide a basis for treating a combination of activities, processes or transactions as necessarily attracting the appellation of innominate use. It is likely to be of practical importance in cases falling within paragraphs (4) and (5) above. The alternative conclusion to be drawn from the authorities, which may well produce very little difference in a practical way to the determination of cases, is that the `real and substantial' purpose of use test will be applicable in factual situations having the perceived potential to fall within paragraph (4) or (5) above."

25 I adopt this as the appropriate principles in this case.

* Identify the separate and distinct purpose for which the land is used

* Whether there is more than one separate and distinct use for which the land is used

* And if so whether one is dominant, and if so whether the lesser purposes are ancillary to the dominant purposes.

27 The two aspects of activity referred to as falling within the definition of "industry" are the drilling of fence posts and the servicing of vehicles on the land, both being referred to in the definition of industry.

28 Likewise the materials recycling falling within the nest of industry refers to the storing of recycled fencing materials on the land.

30 Whilst the pre-drilling of fence posts on the land may be a process of manufacture, on the material before me and given that the main activities of the business are conducted off the land the pre drilling should is not a dominant purpose but is ancillary to the other uses of the land.

31 Further I agree with the Applicant that as only the Applicant's vehicles are serviced on the land, that does not fall within the definition of industry but is ancillary to the primary uses of the land. See Tully v Casey City Council [2001] VCAT 1907 at para 60:

"I am convinced that the washing of vehicles and the regular maintenance of those vehicles kept in the vehicle store, and those activities do not fit the definition of `industry'. If servicing of other person's vehicles on the site was undertaken, that would be a different thing to the washing or servicing of vehicles owned and operated in the businesses of Mr Farrell.... I consider the washing and maintenance of the vehicles, including servicing and minor repairs, to be ancillary to the primary uses of the site as a Vehicle Storage and Dwelling."

32 The storage of used and scrap fencing materials on the land also in my view is not the dominant purpose of the use of the land and should not be the principal determinant of the characterisation of the use of the land. Little indication of the volume of materials stored and reused has been given.

33 I agree with the submissions of the Applicant that the dominant purpose of the land is other than those uses referred to above and I find those uses are ancillary to the dominant purpose of the use of the land.

34 Relying on the authorities of District Council of Mallala v Bishop [1997] SASC 6340 and on De Hann v Casey City Council, a decision of this Tribunal [2002] VCAT 644 dated 17 May 2002 very similar to this case, I determine that the appropriate characterisation of the use of the land is as a contractors depot.

35 It is evident from the statement of facts that the Applicants intend to use the land for a purpose broader and more dominant than the more simple purposes of drilling fence posts, servicing vehicles, and storing fencing equipment and recyclable material, and the dominant purpose of the land is as a base or depot for the conduct of the Applicant's business as a fencing contractor from the land and the main activities of the business take place away from the land.

36 I refer to the comments of the Tribunal member in De Hann at page 31 where he said:

"Store" is within the "warehouse" group in the planning scheme's nesting diagrams. It implies that its land is used for storage or keeping of goods in someway for future use or shipment etc. Now whilst it is arguable that the parking of vehicles may be considered to be a form of storage, it seems to me that what is being proposed here is more consistent with the garaging of vehicles on an overnight basis. They come in, they get parked, and they leave the following day. Equipment is used on an as needed basis. I am somewhat unconvinced that "store" is a proper categorisation of this particular use."

37 Likewise the attempted characterisation of the land as a store met the same fate in De Hann. The Tribunal was unconvinced that the use of the land fell within the definition of a store. The Tribunal member said at paragraph 29:

"...it seems to me that the use which is being conducted on the land is more properly categorised as a type of `depot', which is not dissimilar to the permission originally granted by the Responsible Authority [ie. works machinery depot]. I say this because it seems to me that a "depot" typically operates as a base where staff come to work or pick up vehicles and machinery, where administrative functions are carried out, where vehicles are parked and kept, where equipment and materials are kept and other ancillary functions, such as the repair and maintenance of vehicles and equipment occurs. For example, this is the type of activity that occurs in a municipal depot. This is typically what I would call a "depot"."

38 Accordingly I determine the question of law that the use of the land is for a contractors depot, that that use is a Section 2 permit required use in the zone and that a permit may issue for that use. However I make no comment on the determination of the merits of whether or not a permit should issue.

"We confirm that our clients Mr Tom and Mrs Jill Lindsay are the registered proprietors and occupiers of all that piece of land contained in Certificate of Title Volume 9016 Folio 073. The land fronts Burness and Goomalibee Roads.

Mr Tom Lindsay is in the business of fence contracting. The business operation undertakes general fence contracting, the assembly of cattle yards, the digging of fence post holes on third party sites, the slashing of roadside verges and paddocks. The business also from time to time, provides plant and equipment free of charge to people and Community groups in the Benalla and District area. Mr Lindsays business operations significantly contribute to the local economy.

1. We are instructed that approximately one third of the land area, fronting the southern and Western boundaries, is currently used for residential/rural living. We understand that in the past approximately a half to one third of this part of the land was used as temporary storage for second hand materials. Our clients advise that this area is now in the process of being cleared of materials and natural revegetation will take place.

2. Approximately one third of the area which fronts Southern, Eastern and Northern boundaries of the land is used for grazing and keeping of livestock, predominantly sheep kept on site from time to time and also free range chickens. This part of the land is maintained through the grazing of livestock and periodic slashing of the paddocks by the owners when sheep are not on site. A quantity of recyclable material (eg, old wooden fence posts, metal an steel railings etc) is also kept in this area. The owners have no proposal or intention at this time to change the present use of this part of the land except to continue to manage the levels of recyclable material.

3. The remaining one third land area, fronting the Western and Northern boundaries of the land, is used exclusively for the storage of material, motor vehicles and equipment used in Mr Lindsays business operations.

There are a number of sheds, containers, racks and parking areas contained in this area. Some areas used for storage are exposed to the elements.

Some limited on site servicing and repair of the business plant and equipment is also undertaken on this area of the land. Occasional preparatory day time works, ie the pre drilling of timber fence posts prior to removal and use in the business operation is also undertaken.

Other works carried out on site consist of the unloading and loading of business vehicles with associated equipment used in operations off site. Some unloaded goods and materials are stored temporarily on site. It is proposed that the current use of this area of the land will continue. The permit applicants are prepared to build enclosed shedding facilities to store equipment and goods used in the business operated by Mr Lindsay.

TYPE AND QUANTITY OF GOODS STORED, PROCESSED OR PRODUCED

We are instructed that the materials stored on site include metal fence posts, metal railings, guard rails, timber posts, wire and associated peripheral materials. All material is manufactured by third parties off site. As indicated previously, on occasions these materials are delivered to the site for temporary storage pending the utilisation of same for use in the fencing business.

There is no on site processing or production of materials used in the fence contracting business undertaken by either the business or the owners of the land. The only exception being the pre-drilling of timber fence posts, previously referred to.

The fence contracting business operates for the majority of the time off site for periods of time ranging from as little as one working day to as long as several weeks. The nature of the business means that it can be operating on site during the morning period and again at the end of the working day, or for the entire day of day works are undertaken. On other occasions there can be little or no business operations during any given week.

NUMBER OF EMPLOYEES AND CUSTOMERS VISITING THE SITE

On some occasions there can two or three employees on site, but as a proportion of an employees total working week the period of time spent on site by employees is minimal.

Visitors and customers to the land are negligible in number as the nature of the business requires its activities to be carried on off-site, ie digging holes, erecting fences.

NUMBER OF VEHICLE MOVEMENTS PER DAY AND SIZE OF VEHICLES

On average, approximately two vehicles with a connection in some form to the business enter and leave from the site during the working week. The number and size of the vehicles used by the business per day are generally limited to two tray trucks (1x 5 tonne & 1 x13 tonne) entering or leaving the site and small tractors.

There is a skid steer kept on site, which is operated as and when material is required to be moved, loaded or unloaded from the trucks.

There is one family/domestic car owned by Mr & Mrs Lindsay which makes frequent vehicle movements on a daily basis.

The property fronts Burness Road. On leaving the property vehicles must either turn left and travel down to the Burness and Goomalibee Roads intersection. Alternatively, vehicles will turn right and proceed down Burness Road to the Kealy Road intersection where they will either turn left or right.

Neighbouring land areas are used for a diverse range of purposes including transport depots, cartage contractors and hobby farming.

We are instructed that in respect to noise levels, noise from the business is generally confined to the morning and evening periods when vehicles used in the business are either being loaded to go off site or are returning to the land in the evening. There can be other vehicle noise connected with the loading and unloading of materials supplied by third parties on an infrequent basis. When occasional day works are carried out on site, eg servicing of plant and equipment used by the business and pre drilling of pre fabricated fence posts there are inevitable noise levels, but they are not of an excessive level.

Airborne omissions are limited to start up emissions when vehicles are operated and dust emissions when vehicles enter and leave the site. We are instructed there are no greater dust emissions generated form the land than on any other rural property. We note in passing that dust is also generated from traffic movements along Burness Road which is unsealed

Finally, we enclose a plan of the property which has been compiled by our clients. If Council requires a further scaled plan or map to be prepared in support of the application would you please advise by return."

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