[2001] VCAT 1821

The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for the use of the land at 19 Randle Court, Narre Warren North as a vehicle store subject to the following conditions:

1. The layout of the use as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

2. No more than two vans used in conjunction with the occupation of any persons residing on the land may be stored on the premises at any one time.

3. Both vans must be stored in the shed at any time there are two vans located on the premises.

4. Without the further consent of the Responsible Authority, the van movements on the site must be restricted to:

5. No vans or motor vehicles may be serviced, fuelled or repaired on the site at any time.

6. Nuisance or annoyance must not be caused by the operation of the use to persons beyond the site.

7. The use must be conducted in a manner so as not to cause detriment to the amenity of the locality by virtue of the emission of dust, noise, vapour, oil, smoke or by other means.

8. This permit will become void in the event that Mr K Triantafillou is not the owner and occupier of the land.

9. This permit will expire if the use is not commenced within two years of the date of this permit.

The Responsible Authority may extend the periods referred to, if a request is made in writing before the permit expires or within three months afterwards.

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For the Applicant: Mr L Guymer, Solicitor of Guymer Naidoo.

For the Responsible Authority: Mr C Tate, Town Planner, City of Casey.

1. By application for review filed with the Tribunal on 14 February 2001, the Applicant sought to review a decision of the City of Casey to refuse to grant a permit to use an existing 164.16 square metre shed for the purpose of a vehicle store housing two vans. The application was made under s.77 of the Planning and Environment Act 1987. During the course of the hearing on 6 July 2001, a question of law arose for determination as to whether a planning permit was required for the use of the shed for the purpose of a `vehicle store'. As a consequence the question was referred to Senior Member Preuss in accordance with Schedule 1 Clause 66(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.

2. Senior Member Preuss, having addressed the question of law in accordance with the attached decision, has ordered that a planning permit is required for the storage of a second van in the existing shed on the property at 19 Randle Court, Narre Warren North.

3. Having resolved that a permit is required, the planning merits of the proposal will now be assessed by the Presiding Member, Mr Keaney, in order to determine whether a planning permit should issue.

4. The details of the site, zoning, and proposal have already been addressed by Senior Member Preuss in her order and need not be repeated here.

5. By way of history, Planning Permit No. P866/98 was issued by the City of Casey on 18 December 1998 to erect a shed at the rear of No. 19 Randle Court, Narre Warren North. The approved shed has dimensions of 21.6 metres by 7.6 metres and is located three metres away from the northern boundary of the site. Evidently Council did not see fit to advise any neighbours of this proposal and the shed has been constructed in accordance with its planning permit.

6. The Permit Applicant began to use the new shed for the purpose of storing two vans associated with his business as a mobile mechanic. Evidently this use gave rise to complaint from the adjoining neighbours to the north (Mr and Mrs Pryde) as to the level of activity, hours of operation and noise. Council advised the Permit Applicant that the use of the shed required a planning permit for a `vehicle store'.

7. Application No. P620/00 was lodged with Council on 24 July 2000 for the purpose of housing two vans in the shed. The application was advertised and one objection was received which was summarised by Council as:

* Reduced amenity (noise, light and odour at various times of the day and night).

* Servicing and repairing of vehicles not connected with owner's business.

8. Council considered the application at their meeting on 30 January 2001 where their planning officers recommended approval of the permit subject to nine conditions. Council, however resolved to refuse the application on two grounds being:

* The proposal will result in a loss of amenity to adjoining properties.

* The proposal will result in an increase in noise.

9. The Permit Applicant then lodged an application for review with the Tribunal claiming that:

* The proposal will not result in a loss of amenity to adjoining properties.

* The proposal will not result in an increase in noise.

* The proposal is a reasonable and legitimate form of home occupation.

10. By letter of 27 June 2001, the Permit Applicant advised of the following additional grounds being that:

No permit is required as the parking of the second van in the shed is:

1. Ancillary to the dominant site activity of residential purpose.

2. Does not fall within the definition of `home occupation'.

3. The storage of a second van in the garage for which the permit is sought, is an unspecified use under the Casey Planning Scheme for the `Township Zone' which applies to the Applicant's land. The permit sought by the Applicant can have appropriate conditions placed on it to comply with the decision guidelines of the `Home Occupation' clause of the Casey Planning Scheme (cl 52) and as per the recommendations of the Council Planning Committee dated 30 January 2001. The Applicant has a legitimate need for additional parking/storage of the extra van for which the site is suitable, and in respect of which the existing shed is compatible with the surrounding use and development.

The first two of these additional grounds have already been addressed and dismissed by the order of Senior Member Preuss.

11. At the hearing of the application, Council submitted that the proposed use of the shed is either an innominate Section 2 use in the Township zone or is a `vehicle store' which is defined as:

Land used to park or store vehicles in connection with goods or passenger transport business.

12. Council submitted that the provisions for `home occupation' were not relevant as both vans exceed two tonnes. Council analysed relevant Tribunal and Court decisions which, according to Council, clearly establish that a commuter vehicle is part and parcel of the residential use of a property but that these decisions do not link vehicles used for commuting purposes to persons living outside the subject site. Accordingly a second truck/van used for commercial purposes by someone living `off-site' becomes a vehicle store/innominate use, for which a permit is required in a Township zone.

13. In other words, Council's concern is with the use of the second vehicle by someone other than a resident of the property.

The neighbourhood character of Narre Warren North is one of large homes on equally large blocks of land with considerable open space and vegetation. It is considered that allowing a commercial operation into this area will significantly detract from the semi-rural nature of the area. The necessity of storing the vans in the shed will result in an increase of noise on a regular daily basis as the shed is unlocked, opened and the vans started and driven away/returned home. This effect is considered to be particularly severe on the objectors property, given the location of their living areas directly to the north approximately 3-5m away.

15. Mr and Mrs Pryde submitted that the activity was clearly a `home occupation' and that while they have other home occupations nearby, these are sensitively operated and have nothing like the impact of the proposed activities. The shed on the subject property is clearly of concern to the Prydes, as is the activity with the shed. There have been motor repairs conducted on site, the bulk delivery of chemicals and constant access to the shed for business purposes by other vehicles.

16. The Applicant submitted that, firstly, no permit was required and secondly, if one was required then it should issue generally in accordance with the proposed conditions suggested in the Council officer report excepting the need for an earlier start time on Sundays. The Applicant contended that the proposal is not a home occupation as it is simply the parking of an extra van which is required from time to time in the conduct of the Applicant's business. Having said that, the `home occupation' provisions of Clause 52.11 of the Casey Planning Scheme provide an appropriate guideline as to conditions which may apply. The Applicant has had EPA testing done on one of the vehicles for noise purposes and this was satisfactory. The Applicant has also proposed to erect a fence between the subject site and the neighbour's property and has offered to bear the extra cost of making the fence of a paling nature rather than open so as to help buffer the shed from the Pryde land.

17. Senior Member Preuss has already ordered that a permit is required for the use of the land for the storage of a second van.

18. Much of the concern of the neighbours in this proposal stems from the development and location of the shed, as much as it has to do with the use of the shed. The Prydes were not advised of the shed application and are, in their opinion, detrimentally impacted by its size, location and visual impact. While this may be the case, this is not a matter which the Tribunal can now influence. The shed is there; it is lawfully sanctioned by a planning permit; and it can be used as a vehicle store subject to a planning permit. The Tribunal must limit its consideration to the use of the approved shed.

19. The Tribunal is satisfied that, subject to conditions, the use is appropriate. While it has been established that a permit is required, the nature of the use is an extension of the `home occupation' principle. The Permit Applicant's domestic and business address is one and the same. That is not unusual and, on inspection, the Tribunal noted three other nearby sites where self employed residents parked their vehicles. Essentially, the business use of the land is for the storage and parking of vehicles used in the conduct of that business. For much of the day, the vehicles are not there as they are on the road providing mobile mechanic services. They essentially leave in the morning and return at the end of the work day. Inevitably there will be some related storage in the shed of things like tools, fuel, chemicals and the like which the Applicant will require access to, but not necessarily need, in the truck at all times.

20. The Tribunal agrees with the Prydes that the conditions on any such use must ensure that the operation is acceptable in a residential amenity sense. The Tribunal believes that the conditions must ensure that the legitimate concerns of the neighbours are accommodated. The draft conditions achieve most but not all of this. Proposed Condition 2 limits the number of vehicles to two vans and this is supported. Proposed Condition 5 prohibits motor vehicle repairs and this too is supported. Conditions 6 and 7 address amenity and these are also appropriate. The Tribunal is satisfied that the concerns of the Prydes are legitimate and that enforceable planning permit conditions are the best way to ensure that residential amenity is safeguarded. The Applicant and the neighbours have coexisted in an unregulated environment since the erection of the shed. The proposed permit conditions will regulate the situation and make it clear to all parties, including Council, as to the obligations imposed. Conditions 6 and 7 in particular impose amenity obligations on the permit holder which must be observed.

21. The Tribunal does not support the change to the proposed operating hours on a Sunday at 8.00am but believes that a 9.00am commencement is the more appropriate on this day. The Tribunal finally agrees, in the circumstances, with Condition 8 which ties the permit to the applicant. A different operation of a vehicle store with different types of vehicles may cause Council and the neighbours to revisit some of these conditions and so it is appropriate to end the permission at the time the Applicant moves from the property.

22. The Tribunal finally believes that Council's concerns with this use being at odds with the characteristics of large lots in the Narre Warren North area actually militates in favour of the grant of a permit. The larger the lot, the more scope there is to ameliorate or `buffer' the impacts of the operation of a vehicle store conducted on a residential premises. As noted earlier, such activity seems to be commonplace in this immediate area.

23. The Tribunal supports the grant of a conditional permit.

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