[2001] VCAT 1907

The Order of the Tribunal is that the Applications for Review are disallowed, and the decision of the Responsible Authority to grant a Permit for a Vehicle Store for two trucks at 9 Collison Road, Cranbourne East is affirmed.

The Permit to be issued is to be subject to nine conditions as set out on the Notice dated 24 October 2000, issued by the City of Casey in Application P687/00, and the plans to be endorsed are those which were substituted in the Application at the hearing before the Tribunal in Review Application 2000/094705.

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For the Applicants for Review/Objectors: Mr Allan Tully and Mrs Elizabeth Tully, Mr Chris Kelly and Ms Corry Riet all appeared to represent themselves and made both written and oral submissions to the Tribunal.

For the Responsible Authority: Mr William Chow, Town Planner of Zoneworks, represented the City of Casey.

For the Respondent/Permit Applicant: Mr Colin Farrell represented himself and made oral submissions only.

1. This is an application under Section 82 of the Planning and Environment Act 1987 brought by Mr and Mrs Tully of 7 Collison Road, Cranbourne East,

Mr Chris Kelly of 50 Earlston Circuit, Cranbourne, and Ms Corry Riet of

17 Collison Road, Cranbourne, to review a decision of the City of Casey (`the Council') to grant a permit in Application No P687/00. A Notice of Decision was issued by the Council on 24 October 2000 with nine conditions. The decision of the Council was that a permit issue for the use of an existing shed on the property owned and occupied by Mr Colin Farrell and his family, at

9 Collision Road, Cranbourne East, as a vehicle store in accordance with the submitted plans, for two large trucks.

2. The first application for review was made by Mr and Mrs Tully, dated

25 November 2000, and received by the Tribunal on 27 November 2000. A second application for review from Mr Chris Kelly dated 26 November 2000 was also received by the Tribunal on 27 November 2000. Council advised that their Notice of Decision was resent on 3 November 2000 after an error in Condition 8 was rectified.

3. A third application for review was made by Ms Corry Riet dated 4 December 2000, with a letter requesting an extension of time. Following a refusal by the Permit Applicant to consent to an extension of time, this matter was the subject of a directions hearing on 16 January 2001, attended only by Mr Tate of the City of Casey, and Ms Riet, at which the Tribunal directed an extension of time to accommodate the review application already received.

4. Prior to the hearing (on 3 April 2001) the Tribunal received a copy of a letter from Mr Farrell addressed to the City of Casey in which he advised that it was his intention to seek permission to substitute the plan which was annexed to his letter, for the plan previously lodged in the planning permit application. The plan had been prepared by Love and Associates Pty Ltd of Cranbourne (Drawing F3599 dated 28 January 2000) and it showed the location and size of a shed (12.5 metres by 18.5 metres) positioned five metres from the northern boundary and 39 metres from the western boundary at the end of a driveway and turning circle. The plan also showed an existing house location and an existing studio and shed.

5. The original plan submitted with the planning permit application, was not drawn to scale, and rather rudimentary in quality, and showed similar information except that the shed was indicated to be four metres from the northern boundary, and 120 metres from the Collison Road frontage.

6. At the commencement of the hearing, Mr Farrell provided the Tribunal with the three sheets which comprised Drawing No F3599 dated 28 January 2000 and he made application for these three plans to become the subject plans of the permit application. Sheet 1 showed `Shed layout, elevations', Sheet 2 providing further material relating to the foundations and roof trusses, and columns, and Sheet 3 being the site layout plan (referred to in above paragraph). The Tribunal was advised that these plans had been used by Mr Farrell and approved by the City of Casey (Casey Building Services) on 31 January 2000, when Permit VS/320/00/602 was issued for the construction of the shed at the subject site.

7. There was no objection to the substitution of these three sheets comprising collectively the drawing, and I amended the application pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

8. The grounds provided by Mr Allan Tully and Mrs Elizabeth Tully on their review application were as follows:

1. The Permit does NOT comply with the City of Casey Planning Policy OR Planning Scheme.

2. This permit appears to be an attempt to legitimise an unlawful activity which has existed, to Council's knowledge, for a number of years.

3. This Permit would authorise Industrial activities which are totally inappropriate on an Estate with unsealed, narrow roads without footpaths, but with deep, roadside ditches, which are used by many unaccompanied children. The dust and exhaust emissions would also have a detrimental affect on both our drinking water and health.

4. This permit would establish an undesirable precedent which has state-wide implications for ALL Low Density Residential Zones and, possibly, other residential zones.

5. This applicant has demonstrated, over a number of years, that he is totally unwilling to comply with his legal obligations.

6. Council's refusal to proceed with an Enforcement Order application is based on false claims by Council Officers and Managers.

9. The grounds on the original application form for review lodged by Mr Kelly were as follows:

1. Proposal conflicts with Casey's LPPF, Clause 22.05.

2. Proposal conflicts with Casey's LLPF, Clause 22.08.

3. Proposal out-of-character with and detrimental to amenity of adjoining residential uses.

10. A covering letter with this application for review expanded on these three grounds. A further letter from Mr Kelly addressed to the Tribunal dated 6 April 2001 and received by facsimile on that day, gave advice that he intended to raise the definition of `store' as a question of law, and further advised that he also intended to rely on additional grounds that the application was in conflict with other clauses of the Casey Planning Scheme (namely Clauses 21.02, 21.03, 21.06, 21.12 and 22.15).

11. The grounds provided for the application for review lodged by Ms Riet were:

2. The City of Casey has not investigated the issue thoroughly before granting the permit.

12. By a letter dated 9 April 2001, Mr Chow on behalf of the City of Casey advised the Registrar that Council would be relying on the following grounds at the hearing of the review:

* The proposal is consistent with the relevant provisions of the Casey Planning Scheme, including the purposes of the Low Density Residential Zone.

* The site is appropriately located for the proposed use.

* The local policies cited by the appellants are either irrelevant or are of marginal relevance to this application.

* The proposal will not cause unreasonable loss of amenity to surrounding properties.

* The appellants' claims regarding traffic danger, dust and exhaust emissions are overstated.

* The allegations made by the appellants regarding inadequate investigations and false statements by Council staff are incorrect, improper and totally without foundation.

* Council's decision to support the application is proper and correct.

13. The Tribunal has inspected the subject site and the locality following the hearing. On that basis I am prepared to accept the description provided by Mr Chow from his written submissions (page 2):

The site is a rural residential property within an area known as the Collison Estate. It is located about 2.5 km to the east of Cranbourne town centre and is reached via the Berwick-Cranbourne Road. It is regularly shaped, with an area of 8079 sq m (2 acres), frontage of 50.20m and a depth of 160.93m. The site is relatively flat and has no significant vegetation other than scattered trees and shrubs. There is a single storey brick veneer house and 2 sheds on the property. The larger one of these sheds has been recently erected and it is proposed to retain it for a Vehicle store. A gravel driveway with a large turning circle provides access to the sheds.

Other properties in the Collison Estate (including those adjacent and opposite the site) are of similar size and developed for rural residential purposes. The estate is not served with reticulated water supply or sewerage. Residents rely on rainwater tanks for their water supply and septic tanks for effluent disposal. All roads in this estate have a gravel surface.

14. As stated before, the Permit Applicant did not make any written submissions to the Tribunal, however he did not dispute any of the description of the proposal and underlying reasons, which were contained in the written submission by Mr Chow, which appears to be based on advice given to the Council by Mr Farrell.

The Applicant, Mr Farrell, operates a trucking business from his home. He owns 2 trucks, a Scania articulated tipper and a Kenworth tanker.

* The Scania is used to transport sand and soil to building sites and garden supplies. This truck is regularly kept on the site.

* The Kenworth is used to transport diesel locally and interstate. This truck is frequently absent from the site because of its interstate journeys.

* One of the trucks is normally garaged in the shed. The other vehicle is left outside next to the shed.

* He drives one of the trucks, and employs a driver to drive the other truck.

* He prefers to garage the trucks on his property for better security. He has experienced theft and vandalism problems when the trucks were parked elsewhere.

* No fuel is stored on the premises. The Kenworth tanker is returned empty from each of its delivery trips.

16. In his oral presentation to the Tribunal hearing, Mr Farrell also stated that there was no transfer of goods on the site, and no dispatch of filled trucks from the site. He claimed also that as a responsible truck owner he personally undertook checks of the trucks and replaced parts from time to time, as well as performing basic servicing (grease and oil changes) only. He also washed the trucks at the site on a regular basis.

PLANNING CONTROLS, ZONES AND OVERLAYS, AND OTHER MATTERS

17. The site is zoned Low Density Residential Zone by the Casey Planning Scheme and there are no overlays affecting the site. The surrounding land is also similarly zoned.

18. Clause 32.03 relates to the LDRZ and sets out two purposes for the zone as follows:

To implement the State Planing Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all waste water.

19. `Store' and `Vehicle Store' are separately defined uses in the Planning Scheme Ordinance, with `vehicle store' nested under the `Store' land use which is included in the `Warehouse' group. `Store' is defined as:

Land used only to store goods, machinery or vehicles.

20. Clause 32.03-1 provides the `Table of Uses' and `Vehicle Store' is not specifically included in any of the three sections, although `Store' is included as a Section 2 permit required use with a condition that it "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".

21. The Council maintain and the Tribunal agrees, that `Vehicle Store' is an innominate use, and as such is a Section 2 permit required use. It is separately defined as follows:

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

22. In Section 3 of the Planning and Environment Act 1987, the term `land' is defined and includes "buildings and other structures permanently fixed to land; and ... ... ...".

23. More will be said in the later parts of these reasons regarding the contentions forcefully presented by Mr Kelly that the subject proposal conflicted with a number of objectives of other clauses of the Planning Scheme Ordinance. Also, the contentions by Mr and Mrs Tully, and Ms Riet, that the proposed use in this application was an unlawful industrial operation, will also be referred to later in these reasons.

AN OVERVIEW OF SUBMISSIONS MADE BY THE APPLICANTS FOR REVIEW

24. In light of the volume of material presented by the three Applicants for Review, and on behalf of the Council, I do not intend to repeat much of those submissions in these reasons. Instead, I will attempt to summarise the submissions put to me, both in writing and orally.

...prime contention was that the City of Casey does not have the legal right to grant this permit because of established precedent and the activities which Council are permitting, either overtly by terms included in the Decision document, or by consistently failing to take effective action to prevent unlawful activities which have been allowed to continue over a number of years.

It has long been established that Two or more Trucks on a single property constitute a `Transport Depot' which is an Industrial Activity and has always been prohibited in our area.

27. Mr Tully further contended that Council had attempted "to mislead ...", and/or attempted "to avoid providing us with information which we required for this hearing ...". He referred to various letters and verbal responses he maintained he had been given by the City of Casey and its officers. I do not propose to assess these arguments as they do not help me in my deliberations regarding the decision of this review, and accordingly they are not relevant to my task.

28. Mr Tully also annexed three attachments to his written submissions, and these involved:

* Attachment A - a summary of 62 truck movements outside the hours specified in Condition 4 of the Notice of Decision, from 24 October 2000.

* Attachment B (8 pages) - a summary of Repair/Servicing activities (including washing) from 24 October 2000.

* Attachment C - a summary of `observed' truck movements in excess of 4 in one day, between 1/1/2000-26/3/2001.

29. Mrs Tully focused her written submission on aspects of the proposal, and use, which she argued were detrimental to the environment and amenity of the area, to the state of the roads, to the safety of pedestrians (and other vehicles) and to the quality of water gathered by residents from their roofs. She expressed concern regarding potential contaminants entering the stormwater drains across the review site, which she maintained connected into a drain across her property, due to the washing of trucks, and servicing of diesel engines inside the shed, as well as the effect of the exhaust fumes of truck engines, and dust created by the trucks and trailers.

30. Mrs Tully tendered a copy of an article entitled `Devil in the Diesel' published in the `New Scientist' [archive 25 October 1997], and also supplied a comprehensive book of photographs as exhibits, showing trucks, trailers, sheds, an access driveway, house and other vehicles on the review site. Many of the photos also showed the view from the Tully property, the variety of vegetation and gardens on both sites, and in Collison Road. Some photographs bearing dates in May 2000, and February, March and April 2001, showed corrugations and potholes, as well as open drains on both sides of a gravel road, which she advised was Collison Road in front of the review site and nearby.

31. Mr Kelly set out in the paragraph entitled `Introduction' in his written submissions, that the underlying reasons for lodging his application for review, were as follows:

My name is Chris Kelly and I live at 50 Earlston Circuit, Cranbourne, which is in one of the Low Density Residential Zones (LDRZ) in the City of Casey. My reason for initiating this application for review is that by precedence the proposal would prejudice the residential amenity rights of people in all of Casey's Low Density Residential Zones. I am the President of the Cranbourne and District Residents Association Inc (CaDRA) and also the Vice-President of the Earlston Circuit Residents Association Inc (TECRA). However, I make this submission in support of my Application for Review as an individual living with his family in a Low Density Residential Zone with a truck `living' next door.

32. Mr Kelly proceeded to quote passages from the Officer's Report to the Council Meeting held on 24 October 2000, and then to extensively quote from the Casey Planning Scheme, and finally he selectively quoted from, and drew my attention to, a series of Tribunal determinations which he argued addressed the same or similar issues and uses, which prevail in this review. I gave an undertaking to him, to read each of the VCAT determinations that he had not read out to me at the Hearing, and I have since done so.

33. Mr Kelly concluded his submissions, on his page 16, by summarising his case in these terms:

* The proposal is for the use of residential land as a `Vehicle Store'

* The proposal is in conflict with key land use themes expressed in the Casey Planning Scheme, in particular with the image of the residential areas of Casey being desirable places to live and raise a family

* The proposal is in conflict with Casey's corporate plan which is `concerned with ensuring that Casey's people can enjoy a secure and quality lifestyle'

* Casey's strategic vision and objectives emphasis (sic) how important it is for Casey's future that Casey is seen to be a `desirable' place in which to live

* The proposal is in conflict with Casey's corporate vision, which emphasises the importance of building a positive image of Casey as a desirable place to live and a safe child-rearing environment

* There's nothing `desirable' about having a truck store next door to your home or regularly using the street outside your home that your children walk along or ride their bikes in

* The proposal would compromise a future higher-density residential development of the Collison Estate as it would have a negative effect upon the potential to subdivide the lots

* The proposal would set an undesirable precedent for other relatively small allotments in Casey's other Low Density Residential Zones

* The Tribunal has previously consistently been concerned about the significant adverse effects of such proposals on residential amenity

* The Tribunal has previously considered the use of land as a `Vehicle Store' to be `incompatible' with residential land uses

* The responsible authority has recently determined that a similar, but lower-impact, proposal for a `Vehicle Store' in a Low Density Residential Zone should not be granted because of amenity-loss to adjoining properties

* The tribunal has previously determined that a `Store' must be the only land use on a lot and the subject site is actually being used as a `Dwelling'

I further request in light of the responsible authority's tacit acceptance of those past breaches; it's inconsistent decisions with respect to Vehicle Stores in residential areas; it's negligent attitude towards it's own strategic vision of Casey; and it's failure to comply with Clause 56(3) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act), that costs be awarded against the City of Casey as per Section 109(a)(ii) and S109(c) of the Act.

35. I advised Mr Kelly that I would reserve any decision on the question of costs until I had reviewed all of the material submitted, and reached a determination in the review.

36. Ms Riet tabled and read a submission which argued that:

(a) the proposed (and existing) use was an `Industrial Use' in a Residential zone;

(b) there were health and safety issues which concerned her; and

(c) she was concerned that the City of Casey had not investigated the issue thoroughly before granting the permit (sic).

37. Ms Riet claimed in her written submission, that she felt "limited to give extensive representation today, because I am afraid for vengeance or other repercussions".

38. Elsewhere she repeated this sentiment "because firstly English is my second language and secondly I believe that the City of Casey, Planning Department attempted to intimidate me".

39. It appears from information briefly given by Mr Chow on this aspect, that the Riet property and others in the immediate area, are allegedly used for more than residential purposes, involving the storage of commercial vehicles on those sites (including the Riet property). It is understood that contravention notices have been issued in the past that no permits have been issued for `vehicle store' for those sites. I explained that such matters were not before the Tribunal in this review, and that they were irrelevant to my considerations in this review.

40. She stated her opinion that she was concerned about the numbers of semitrailers for which the Applicant was seeking a planning permit as it concerned her that it would set a precedent for the area, affecting existing and future residents.

41. For the Responsible Authority, Mr Chow submitted that there were four key questions to be addressed in this review and these were:

(A) Should the proposal be treated as a `store' or as a `vehicle store'?

(B) Is the proposed use of the land for a vehicle store contrary to any State or Local Planning Policy?

(C) Is the proposed use of the land for a vehicle store appropriate, having regard to the rural residential context of the site?

(D) Will the proposed use lead to unreasonable loss of residential amenity, and if so, to what extent can this be ameliorated by permit conditions?

42. Mr Chow argued that since `vehicle store' is more specific than `store' and it more accurately describes the proposed use (by definition) that it should be therefore used in preference to `store'. He argued that Mr Kelly misunderstands the concept of nesting as applied to land use definitions and suggested that the approach adopted by Mr Kelly of interpreting land use definitions was "plainly absurd".

43. Mr Chow submitted that the policy statements incorporated in the Planning Scheme reveal very little that is directly of relevance to the application, and accordingly submitted that the application should be assessed on the basis of other considerations.

44. On behalf of the Council, Mr Chow addressed the Rural Residential context of the review site, the nature of the use, and presented submissions relating to each of the grounds of objection of the Applicants for Review.

* The proposed use is properly classified as a Vehicle store rather than as a Store.

* The storage of 2 trucks on a 2 acre rural residential site is both reasonable and consistent with the purpose of the Zone.

* The appellants' claims regarding traffic danger, dust and exhaust emissions are either overstated or unsubstantiated.

* The off-site amenity impacts of the proposal are attenuated by the increased separation distances between dwellings in this area, and will be reinforced by adherence to permit conditions.

46. I will now deal with each of the issues identified above by the Council, and described by Mr Chow as being the key issues in this review.

47. With respect to Issue (A), I have reviewed the definitions of `vehicle store', `store', `industry', `service industry' and `transport terminal', all of which are defined land use terms in Clause 74 - Definitions of the Casey Planning Scheme. I concluded that the land use term `vehicle store' is appropriate for the proposal under review, and the land use terms `store', `industry', `service industry' and `transport terminal' are all inappropriate, and do not properly describe the form of use I understand the Permit Applicant intends in this proposal. In reaching this conclusion, I have reviewed the reasons and interpretations given by the Tribunal in the cases cited to me by Mr Kelly in his written submissions.

48. Mr Kelly argued, that the use was a `store' and "that this term [store] includes the land use term vehicle store_, (being land used to park or store vehicles in connection with a goods or passenger transport business) and that [since] the subject site is being used as a dwelling_ as well and [store] is therefore prohibited". He quoted from the Tribunal decision in Review Application 1999/015401 McGill v Campaspe Shire Council, where a permit was refused for a `store' on a site 1.55 hectares in area, in Tongala which was zoned `Township Zone' at the date of decision. The applicants had applied for a permit to use and develop that land for the `storage of trucks and excavators'. They operated a vehicle cartage business and stored four trucks (three being 10m long, rigid tip-trucks and one low loader) as well as three 15 tonne excavators with caterpillar tyres, on the site which was a former cattle sales yard.

49. The definition of `store' in the Campaspe Planning Scheme at that time was the same as it is now in the Casey Planning Scheme, as quoted above in paragraph 19, namely "land used only to store goods, machinery or vehicles". [Underlining by Tribunal]

50. I reject his arguments and submissions regarding the proper characterisation and definition of the use applied for in this review, for reasons set out above, and further expanded later in these reasons. I also find that the application requirements and factors influencing decisions for discretionary uses on land in a `Township Zone' are somewhat different to those factors for the same discretionary uses in a `Low Density Residential Zone'.

51. Mr Kelly further drew my attention to other decisions of the Tribunal, where it was determined to refuse applications for `vehicle store' within `Residential' zones, in circumstances which he claimed were similar to those prevailing in this review. He particularly referred me to the decision of the Tribunal in Review Application 1999/40949 Bernhardt v Whittlesea City Council, relating to a vehicle store within an `Industrial 1 Zone'. This case related to a proposal to keep three tip-trucks used in the transportation of construction materials and one low loader, a vehicle which transported other vehicles to construction sites, on a property in Epping, on which there were no buildings erected at the time of the application. The Tribunal determined to grant a permit subject to 23 specific conditions which required acoustic fences, an acoustic engineering report, limitations on the hours on each day of the week when the engines of commercial vehicles parked on the land could be started and vehicles were permitted to leave the site, or return to the land. He further argued that the principles given in that decision which gave rise to the stringent permit conditions, were also applicable in the subject review.

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

53. It is noted that there is no reference to the number or type of vehicles other than that they must be vehicles suitable for use in a business involving the transporting of goods or passengers. Mr Farrell uses trucks in his business, and these certainly are capable of transporting goods (which are not defined in the scheme) but it appears to me to be quite reasonable to include sand, screenings and petrol within the range of items reasonably described as `goods'.

54. I do not believe that there is any activity undertaken at the site to assemble or distribute goods at the site, and accordingly it does not fall within the definition of `transport terminal' which is defined as:

Land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvre vehicles.

55. Uses included in the transport terminal group include `airport', `bus terminal', `heliport', `railway station', `road freight terminal' and `wharf'. Clearly none of these land uses remotely describe the business the Tribunal understands

56. Equally, I remain unconvinced that the wider definition of `Store' being "land used only to store goods, machinery, or vehicles" applies in this case. There is no dispute that there is a dwelling on the property already. I note in particular, that the condition opposite the use `store' in Section 2 of Clause 32.03-1 is as follows:

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_._

57. This condition clearly contemplates a store on a site where there is a dwelling and another building (not a dwelling) and further nominates that the storage of equipment and goods (apart from motor vehicles) is acceptable so long as those goods or equipment were also used in conjunction with the occupation of a resident of a dwelling on the same parcel of land.

58. This condition is arguably satisfied for the `part of the site' on which the existing outbuilding/shed stands, which is proposed to be used as a vehicle store. It was not suggested that there were any `equipment or goods' proposed to be stored at this site, or within the shed to be used as a `Vehicle Store'. Further, although Mr Farrell advised me he could physically park both his current trucks in the shed, it is noted that one of the trucks would be parked outside the building from time to time.

59. Mr Farrell applied for a `Vehicle Store - two trucks' and that is what is proposed to be authorised by the permit Council determined to issue, and that is all that I have decided in this review should be allowed. It is not the intention of Council or this Tribunal, to grant approval for any other wider use than that which has been clearly and expressly applied for. It is not essential (by the `Vehicle Store' definition) for the trucks to be within a building, although Condition 3 of the Notice issued by Council, requires one truck to be in the shed when two are present at the site.

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 persons' vehicles on the site was undertaken, that would be a different thing to the washing or servicing of vehicles owned and operated in the business of Mr Farrell. His business is not to repair vehicles, to service motor vehicles, or to fit accessories, rather it is to use motor vehicles to transport goods from one place to another, and neither place is the subject site at 9 Collison Road, Cranbourne East. I was informed that the trucks owned by Mr Farrell, to be stored at the site are always empty of goods, including petrol (to be delivered), when they are at the site and no evidence was presented to the contrary. 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 Store and Dwelling.

61. In respect to Issue (B), I have given serious consideration to the viewpoints expressed by Mr Kelly in particular who argued that approval of a `Vehicle Store' on this site would conflict with a number of objectives for reasons which he set out on page 8 of his submissions.

62. In summary, I remain unconvinced that approval of the subject proposal would damage the image of Casey as a desirable living environment, or that it would "send a clear message that Casey is not a desirable place to live". Neither am I convinced, that the proposal would conflict with objectives of Clause 22.05 and that it is clearly contemplated that there would be some `non-residential uses' permissible in residential areas (including LDRZ), however I agree with Mr Chow that the purpose of Clause 22.08, does not address the prospect of a vehicle store. The basis of the policy as set out in Clause 22.08-1, is that care must be taken to avoid as much as possible, loss of privacy, amenity and convenience to nearby residents. I am generally satisfied that the restrictions proposed in the conditions proposed by the Council combined with the particular circumstances of the site and distances to nearby residences, should be adequate to prevent significant loss of amenity in the area.

63. With respect to Issue (C), whether the proposed use of the land for a vehicle store is appropriate, having regard to the rural residential context of the site, I must admit that I was somewhat concerned regarding some of the aspects which were forcibly and repeatedly put to me during the hearing by the Applicants for Review.

64. I remain concerned, that Mr Farrell must adhere to the time limits for movements of trucks to and from the site on all seven days of the week. The Permit Applicant should also recognise that there is potential for the noise which is inevitably generated at the time of starting the engines of large trucks, to cause nuisance to persons beyond the site especially if those engines are `revved' or left running for extended periods. I accept that in the context of the review site, within a Low Density Residential Area, that the background noise levels are significantly lower than in areas where the same neighbourhood land area as the Collison Estate has been developed at normal densities, with consequently greater numbers of vehicle movements within the locality being normal and significantly more than in the context of the subject site. It is therefore on balance, that I have concluded that it is reasonable to permit the proposed storage of only two trucks at this site. I note the argument advanced by Mr Farrell, that he has friends in similar businesses who `drop by' in their trucks for social reasons, perhaps on their way home to their own premises or place where their trucks are stored, and should this occur on a regular basis, then it is more likely that `nuisance or annoyance' of neighbours could occur due to the greater numbers of trips by larger vehicles occurring within the area than would otherwise be the case had such trips for social purposes been made in private vehicles such as cars which do not generate as much noise, and not have as many tyres travelling over the gravel roadways.

65. Mr Farrell also needs to recognise, that no servicing or regular maintenance of other vehicles than his own is permitted by the permit which is directed to be issued, and any breach of this condition (or any of the conditions) could have severe consequences such as the cancellation of the permit, or enforcement actions taken against him as the holder of the permit.

66. Finally, with respect to the final Issue (D), whether the proposed use would lead to an unreasonable loss of residential amenity, I have formed the view that while there may well be some loss of residential amenity, it should not be substantial or so significant to be regarded as unreasonable so long as the permit conditions are adhered to strictly and within the bounds of common courtesy between neighbours and fellow residents of an area. Mr Farrell claims that any servicing or maintenance is for minor matters only and that his trucks are only driven at speeds up to 20kph within the Collison Estate.

67. In such circumstances, I agree with the conclusions reached by the Council Officers and the City of Casey as Responsible Authority, that a permit should be issued with those strict conditions, which were proposed by Council in their Notice of Decision dated 24 October 2000.

68. I noted that there is a copy of an undated letter on the Tribunal file, which Mr Farrell appears to have addressed to Council, regarding two of the proposed conditions, namely Conditions 4 and 5. Condition 4 relates to the hours within which truck movements are restricted without the further consent of the Responsible Authority. Condition 5 relates to the servicing, fuelling or repairing of either trucks or motor vehicles on the site at any time. It is not clear to me, when this undated letter was sent by Mr Farrell, and who provided it to the Tribunal. Mr Farrell has not lodged any Application for Review of his own, against these two conditions, and did not submit to me during the hearing any arguments regarding how they were unacceptable to him, or provide any suggested alternatives. The puzzling thing about the undated letter was that it bears a fax machine generated date of `June 24th 2000', which is some four months before the Council made its decision, on application P687/00, and two months before that application was lodged by Mr Farrell with the Council.

69. Nevertheless, the letter refers to the fact that an appeal had been lodged by Mr and Mrs Tully against the favourable decision reached by the Council prior to the letter being drafted.

70. The concern I hold, is that Mr Farrell stated in this letter that:

The nature of my operations requires me to commence work at 6.00am at many distant sites 100 kilometres and more from my home. It is unrealistic to expect me to wait until 6.00am before travelling for one or two hours to destination, when my client demands 6.00am start. Many of my pick-ups and deliveries are at a distance that make it impossible to complete my duties at such sites and return home prior to the 8.00pm curfew, thus this restriction effectively puts me out of business.

71. The implication of this statement, is particularly significant. There is no reference in the Officer's Report presented to the Council on 24 October 2000 regarding the need for Mr Farrell to commence work and therefore start the engines on his trucks at any particular time. No evidence was produced regarding the level of noise created by such events, or the relationship of that level of noise to the ambient background noise level at any time of the day or night. The hours of 6.00am to 8.00pm Monday to Saturday, and 10.00am to 8.00pm on Sunday, which were proposed by the Council, are the hours adopted by me in my Order. It is my present view, that if Mr Farrell had presented submissions during the hearing, promoting an earlier time for truck movements to be allowed on the site, that I would have required expert evidence on the question of noise before determining to grant a permit with a different condition to proposed Condition 4. Equally, if later hours were required by Mr Farrell, similar evidence would have been required, or potentially the applications for review may have been successful, and no permit granted.

72. It is a fundamental principle, that the Permit Applicant must understand, that the permit is for not more than two trucks used in conjunction with the business of Mr Farrell while he resides at the subject land, may be stored at any one time, and that when there are two trucks, that one of them must be stored in the shed. The permit will expire if the property is sold by Mr and Mrs Farrell, or if they cease to be residents of the house on the site. Finally, it is equally fundamental that every effort must be made to conduct the vehicle storage and movements to and from the site of the trucks used in the business, so as to minimise any adverse impact on the existing amenity and environment of the area by reason of the emission of dust, noise, smoke or any other potential actions which might cause a nuisance or annoyance to others.

73. With respect to the proposed Condition 5 imposed by the Council on their Notice of Decision to Grant a Permit dated 24 October 2000, I have not ordered a modified condition be imposed specifying only the trucks owned and operated by Mr Farrell and his business to be serviced, or to receive minor repairs at any time, however that is implied. I would consider it reasonable for any resident to undertake their own servicing or minor repairs on their own vehicle at their own premises, whether that vehicle is a motorcar, motorbike or a truck, so long as due care is taken to avoid spillages of oil, petrol and the like or the emission of unacceptable levels of noise, fumes or smoke. I also feel that it is reasonable and responsible for persons to be permitted to wash such vehicles, once again so long as that does not harm the environment.

74. In conclusion, for the above reasons the decision of the Tribunal is that the decision reached by the Responsible Authority is affirmed, and I will order that a permit issue with conditions.

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