Victorian Civil and Administrative Tribunal|2001-07-17|Before: Mr P

The application for review was filed on the 6 March 2001. The grounds of the application are:

The proposal is appropriate on this unproductive rural land.

The proposed development and use will not adversely affect the character of the area.

The proposed use will not generate traffic to the detriment of existing road users and structure.

The proposed use will not be detrimental to the amenity of the area.

The proposed development and use complies with orderly and proper planning principles.

At the hearing, the parties tabled and spoke to written submissions to which they added further oral argument. In addition they presented various plans, photographs of the land and surrounding area (including some very useful aerial photographs) and extracts from other documents relevant to the consideration of the proposal. Mr Rodda's evidence was set out in a report which was circulated to the other parties prior to the hearing. Mr Rodda was made available for cross-examination. All submissions, reports and other documents tendered have been considered and are retained on the Tribunal's file.

Mr Kean advised that in the course of preparing his submission, he had formed the view that the proposed use of the land could be prohibited. He said that under the provisions of clause 52.10, the specified 300 metre buffer distance between the proposed concrete batching plant and a school on an adjoining property is not met. He went on to say that on one interpretation of the words within clause 52.10, a permit cannot be issued if the buffer distance requirements are not met. Although Mr Tesdorpf indicated that he had turned his mind to the provisions of clause 52.10, he said that the applicant had not been forewarned that the Responsible Authority would raise this issue at the hearing. Mr Wren agreed that there could be some substance to the view expressed by the Mr Kean, but he was not in a position to make detailed submissions.

The parties agreed that the issue of whether a permit could be issued having regard to the requirements of clause 52.10 raised a question of law. After discussion with them, it was agreed that I would proceed to hear submissions and evidence with respect to the planning merits of the matter and that, if necessary, issues relating to the question of law would be the subject of further submissions at some later stage before a legally qualified member.

The second matter relates to an application by Mr Tesdorpf to amend the permit application by substituting amended plans for those originally lodged with the Responsible Authority. Mr Tesdorpf advised that copies of the amended plans had not been circulated to the other parties before the hearing. After being given an opportunity to view the amended plans, Mr Wren opposed the request to substitute plans. Mr Wren said that the changes were major in terms of the equipment to be used, the height of the structures and the overall site layout. He submitted that it is inappropriate for them to be substituted given the lack of notice. The other parties supported Mr Wren's submissions on this issue. I agreed with Mr Wren's submissions on this issue and Mr Tesdorpf's request to substitute plans was denied.

Mr Tesdorpf also applied to amend the permit application and the application for review so that the owner of the land, Mr Jim Mandikos, a joint applicant. The other parties did not oppose this request. The applications were amended as requested pursuant to cl. 64 of Schedule 1 and s. 127 of the Victorian Civil and Administrative Tribunal Act 1998.

Mr Rodda set out the details of the subject land and locality as follows:

"The review site is located on the west side of Riverend Road, Bangholme, between Thames Promenade to the north, Patterson River to the south and the Mornington Peninsula Freeway to the west. (See Figure 1 - Locality Plan).

The site is a vacant rural allotment with no significant vegetation and is regular in shape with a frontage of 186.76 metres, an average depth of 480 metres and a total area of 9.270 hectares.

The review site has frontages to both Riverend Road and the Mornington Peninsula Freeway, with vehicular access via Riverend Road, which has direct linkage to McMahens Road to the south or Thames Promenade to the north.

The subject site is located within a rural area, which comprises a number of lots ranging in size from approximately 2 hectares to 25 hectares. The land is flat with little relief and has a high watertable and is prone to overland flooding.

The land which, due to its non-urban green wedge location, is an open rural landscape which is primarily used for grazing, hobby farms, horse studs and some institutional uses, with little intensive agricultural activities.

Road access is limited and the surrounding area is remote from many of the essential community facilities.

The built form in this area is consistently low in scale, with very little visual properties, a horse stud farm and St Leonard's College.

St Leonard's College, which adjoins the southern boundary of the review site, consists of a number of single storey buildings with associated recreation (ovals, tennis courts and basketball courts) and car parking facilities, with vehicular access via Riverend Road. A large lake and wetland system is located to the western boundary of this site, with a high degree of vegetation to the northern and western boundaries, providing screening from the Mornington Peninsula Freeway.

To the south of the site is the Eastern Sewerage Treatment Plant.

Riverend Road is an old pavement built generally flush with the natural lie of the land and has a surface that is heavily fatigued and pot-holed. The width of this road is narrow, which generally requires one or both vehicles to move onto the road verge when confronted by a larger vehicle, such as a truck. Much of the traffic utilising Riverend Road is associated with St Leonard's College and occurs during a.m. and p.m. peak periods of student drop off and collection.

There is no public transport route to the school along Riverend Road."

Mr Rodda set out the details of the proposal as follows:

"It is proposed to use the site for the purpose of Industry and to construct a concrete batching plant. A concrete batching plant produces concrete, which is a mixture of cement, water, sand and aggregate.

The proposed buildings and works associated with the construction of the concrete batching plant are described in the layout plans and elevations (00013-001, 00013/002 and 00013/003) as follows:

The batching plant facility to be located 34.485 metres from the frontage of the site, accessed from Riverend Road.

To comprise a concrete batching room with twin silos and aggregate batchers. The facility will also comprise associated loading bins and conveyor belt, an amenities shed, storage bins for concrete materials and truck discharge, car parking for five trucks and five visitor spaces.

The batching facility to have a total building height of 19.15 metres.

Landscaping is to be located along the north and west boundaries.

Information provided by the applicant highlighted that the proposed concrete batching plant is to be a "front end loader plant." The Environmental Guidelines for the Concrete Batching Industry, June 1998, produced by the Environmental Protection Authority states the following:

In front end loader plants, a front end loader is used to transport coarse and fine aggregates from a ground level storage bin to an aggregate weigh hopper. The aggregate is then added to an agitator. Cement and fly ash are weighted in a separate hopper and transferred to the agitator. The correct proportion of water is added to the agitator. The concrete is mixed, ready for final slumping, inspection and transportation to the customer.

The applicant also advised of the operational details, which may be summarised as follows:

The proposal will be in accordance with the relevant provisions of the Environment Protection Authority.

The facility will initially include the use of 4 trucks with an average output of 40 cubic metres of concrete per day, which would increase with time and growth in the area.

The initial staffing levels to include two operators plus four truck drivers.

To supply concrete to a 10 kilometre radius from the base.

Under the Greater Dandenong Planning Scheme [GDPS], the subject land is located within the "Rural Zone", the provisions for which are found at clause 35.01. The purpose of the zone is:

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

To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

An integrated approach to land management.
Protection and creation of an effective rural infrastructure and land resource.
Improvement of existing agricultural techniques.
Protection and enhancement of the bio-diversity of the area.
Value adding to agricultural products at the source.
Promotion of economic development compatible with rural activities.
Development of new sustainable rural enterprises.

To ensure that subdivision promotes effective land management practices and infrastructure provision

It was common ground that the proposed land use falls within the definition of "industry" as set out at clause 74 of the GDPS. "Industry" is a land use which is not specifically referred to in any sections of the "Table of Uses" for the zone. The "Table of Uses" specifies that any use which is not listed in either Sections 1 (Permit not required uses) or 3 (Prohibited uses) is included within Section 2 (Permit required use). The provisions for this zone also specify that a permit is required for buildings and works (clause 35.01-3), with decision guidelines with respect to general, rural, environmental, design and siting issues set out in clause 35.06.

The land is also covered by the Environmental Significance Overlay [clause 42.01] with the provisions set out in schedule 3 [ESO3] being applicable. The purpose of the ESO is:

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

To identify areas where the development of land may be affected by environmental constraints.

To ensure that development is compatible with identified environmental values.

The purpose of the provisions in schedule 3 are:

To ensure that the use and development of land around the Eastern Treatment Plant is compatible with the Plant's operation.

To regulate the establishment and siting of odour-sensitive uses so that the impact of any odour from the Eastern Treatment Plant is minimised.

To exclude uses that require the presence of a large number of people over an extended period of time.

A permit is required under clause 42.01-2 to construct a building and to carry out works on land covered by the ESO.

Clause 52.10, deals with "Uses with Adverse Amenity Potential". The table to the clause specifies a buffer distance of 300 metres between a concrete batching plant and a school. Other provisions relating to specific matters are at clauses 52.06 (car parking), 52.07 (loading and unloading of vehicles), and the decision guidelines set out in clause 65.

In addition to the statutory provisions, the planning scheme sets out the State and Local Planning Policy Frameworks. The policies for the "non-urban" area set out at clause 21.04-4 in the Municipal Strategic Statement (MSS) and the local policy at clause 22.02 for the "Keysborough Non-Urban Area" are particularly relevant to the consideration of the proposal.

I was also advised that the Responsible Authority has prepared, exhibited and adopted Amendment C5 to the planning scheme and this amendment has now been forwarded to the Minister for approval. In summary, Amendment C5 has the effect of dividing the non-urban area into five precincts. The overall objective for each of these precincts is that development must be subservient to the "green space" vision and must not compromise existing uses and environmental values whilst recognising that some changes in land use will help rather than hinder achievement of this vision. Under the amendment the subject land is to be located within the "Buffers Precinct".

The Responsible Authority required notice of the application to be given and in response it received 102 objections. The Responsible Authority also referred the application to Melbourne Water, the EPA and VicRoads. These authorities offered no objection to the proposal subject to conditions.

The Responsible Authority subsequently considered the proposal made its decision to refuse the permit application on the grounds previously set out.

After the parties completed the presentation of their submissions and evidence with respect to the planning merits of this matter, the hearing was adjourned and reconvened on the second scheduled day. Upon the resumption of the hearing, I advised the parties that I was in a position to set out my findings with respect to the planning merits of the proposal and to hand down my decision. An oral statement of reasons was given, generally in the form that follows:

After having considered the provisions of the Greater Dandenong Planning Scheme, the attributes of the subject land and the locality within which it lies, the matters set out in the submissions and the evidence presented by

Mr Rodda, I am able to advise you of my findings in this matter and to hand down my decision with respect to the merits of the proposal.

It seems to me that the consideration of the merits of this proposal gives rise to the following key questions, namely:

(1) Is the proposed use and development supported by the planning scheme's policies and the purpose of the zone?

(2) Does the land have attributes which renders it a suitable candidate for the use and development proposed?

(3) Will the proposal result in unreasonable adverse impacts on the amenity of the area?

In relation to the first question, the proposed use, concrete batching plant, is a Section 2 or "permit required" use within the Rural Zone. Although the planning scheme's provisions allow for a permit to be granted, this in itself does not necessarily means that one should be granted nor should it be inferred that it is a use which is either to be encouraged or discouraged. The designation of the proposed use as one for which a permit can be granted is simply the planning scheme's statutory mechanism by which to allow the merits of the proposal to be considered.

It is evident that under the new VPP format planning schemes discretion exists for almost an unlimited range of land uses to be permitted within the "Rural Zone". Only three land uses (brothel, cinema based entertainment facility and equestrian supplies) are prohibited. Although the planning scheme provides fairly wide discretion for a greater range of land uses to be considered in rural zones than was the case under the now defunct "old format" planning schemes, this does not mean that, if approved, any of these land uses will result in an acceptable "planning" outcome. This point is clearly set out at clause 31.01-2 of the planning scheme which states:

"Because a use is in Section 2 does not imply that a permit should or will be granted. The Responsible Authority must decide whether the proposal would produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the decision guidelines in clause 65.

The above statement makes it clear that proposals must be considered against the SPPF and LPPF in determining whether or not permission is granted for a use in Section 2. It is also relevant that the decision guidelines for the zone and those set out at Clause 65 require consideration to be given to the SPPF and LPPF, whilst the purpose of the "Rural Zone" includes the implementation of the planning scheme's policy framework. Accordingly, whether or not a particular proposal achieves an "outcome" which is consistent with the planning scheme's policies is a major factor to be considered when exercising discretion.

In this regard it is important to note that under the MSS the subject land is located within the "Keysborough Non-Urban Area" which forms part of the larger South-East Non-Urban area which extends across not only the City of Greater Dandenong but also a number of other nearby municipalities. The importance and role of this area is perhaps concisely expressed in the following extract of the MSS which states:

"Areas in the southern half of the Municipality are part of the South-East Non-Urban area with substantial environmental assets, including wetlands and indigenous flora and fauna. This is set aside for land-extensive urban-related activities, agriculture and rural industry.

A sustainable boundary between the Urban and Non-Urban areas which will provide certainty for future land-use planning is essential."

The MSS then goes on to set out clear objectives to be achieved with respect to the Non-Urban area as follows:

To define a sustainable urban boundary in the southern part of the municipality.

To protect and enhance the natural and built assets of the Keysborough Non-Urban area.

To provide an environment with a capacity to support a range of urban-related uses requiring extensive areas of land."

It is also relevant that to achieve these objectives, the MSS at clause 21.04-4 states that:

"The Keysborough Non-Urban area" is to be included within the Rural zone.

The "Keysborough Non-Urban area policy" at clause 22.02 is to be used to give guidance in considering applications for use and development."

The policy of clause 22.02 expands on the strategic directions set out in the MSS for non-urban areas. In particular, I note that the policy basis at clause 22.02-1 for the "Keysborough Non-Urban Area" is:

"...........to protect and enhance the natural built assets of the area and to provide an environment with the capacity to support a range of urban/related uses requiring extensive area of land."

The objectives of this policy call for the South-East Non-Urban area to be maintained, to provide for appropriate development and use, to create and sustain a hard edge between the urban and non-urban areas and to minimise conflicting land uses within the non-urban area.

Relevant decision guidelines under the policy require consideration to be given to such factors as the suitability of the site for the proposed use and development, whether the use and development is compatible with surrounding land uses and the impact of the proposal on the character and appearance of the area.

It seems to me that the planning scheme's policies, particularly those set out in the LPPF, send out a fairly clear message that the strategic direction for the "Keysborough Non-Urban Area" is one where there is an emphasis or focus of land use and development proposals being compatible with the designation of this area for non-urban and rural purposes. The thrust of these policies is clearly to limit development to that which is compatible with a rural/non-urban environment and to resist or exclude those uses and development which are most appropriately located within urban areas.

The proposed land use in this case is quite properly characterised as an industry. But it is more than that. It is a relatively heavy industry given that it involves the manufacture of concrete products, the processes are such that they have potential to cause adverse amenity impacts in terms of noise, dust and traffic, large tall buildings and specialised equipment is required and the vehicles associated with the transportation of goods to and from the land are relatively large.

There is little doubt in my mind that what is being proposed here is an industrial use which is most appropriately located within an area zoned for industrial purposes.

Whilst the planning scheme provides discretion for a permit to be issued for the proposed use, it seems to me that the planning scheme's policies clearly discourage the type of use and which is being proposed from locating within this rural area. In particular, it is difficult to see how the establishment of an industrial use of this type in this locality will work towards the policy objective of "sustaining a hard edge" between the urban and non-urban areas of this municipality. I also fail to see how the proposal can be considered to be in accordance with the objective which seeks to "minimise conflicting land uses in the non-urban area". The proposed use is one which is identified in the table at clause 52.10 as one where a 300 metre buffer is required from schools. It seems to me that, at least in principle, the planning scheme recognises that there is a degree of incompatibility between concrete batching plants and schools.

In this particular case, the proposed concrete batching plant is to be located on land which has direct abuttal with St Leonard's College. Putting aside the question as to whether or not the provisions of clause 52.10 prohibit such a situation, I consider that it would be quite inappropriate to allow the proposed use to be located adjacent to one which is clearly sensitive in nature and there is a direct lack of compatibility in terms of the nature of the activities conducted on each site and amenity requirements.

I acknowledge Mr Tesdorpf's argument that the non-urban area within which the subject lies is not pristine in that it contains a variety of urban related uses and associated buildings such as the school, the water sports complex and dwellings, all of which can be regarded as being "urban" in nature. The existence of these uses is acknowledged in the MSS and the policy at clause 22.02.

However, these urban related uses at least have some form of connection or affinity with the purpose of the non-urban area. For example the school requires and has developed large ovals, open space areas and wetlands within its grounds. This is compatible with the function of the school and the purpose of the non-urban area. The water sports complex also builds on the Patterson River as an asset for community enjoyment. I do not see that these uses together with residential development associated with land used by residents seeking a rural lifestyle would be totally at odds with the strategic purpose of the non-urban area.

I also consider that the development form proposed is incompatible with the appearance and character of the locality. It is evident that the built form in the locality is relatively low key and open spaces dominate the appearance of the area. However, the height of the proposed batching facility and together with the " industrial character" of the buildings result in a development form which is visually incompatible with the character of the locality which is essentially one based around rural non urban setting.

Whilst I acknowledge the existence of the 20 metre high mobile telecommunications tower nearby, which incidentally was described by Mr Tesdorpf described as a "blot" on the landscape, I draw a distinction between the need to provide what is now quite readily accepted as being necessary telecommunications infrastructure as opposed to a proposal which involves a form of use and development which can quite readily and more appropriately be located elsewhere. In this regard, I note that there is a substantial industrial area to the north-east and the type of use proposed here should be located within such an area.

I am also of the view that the proposed land use is not one which is readily supported by the purpose of the "Rural Zone". It is not one which is required to implement the policies of the SPPF or LPPF nor is it one which promotes rural and/or agricultural pursuits.

Accordingly, I am of the view that this proposal is clearly contrary to the objectives of the planning scheme's policies as they currently stand. In addition I was not referred to any change in policy that will be brought about by Amendment C5 which persuaded me that this will change in the future. Rather the policies that form part of Amendment C5 reinforce the designation of this area as a buffer which defines the boundary between the urban and non urban areas.

The proposal involves a land use and development which is appropriately located within an industrial zone within the established urban area. There was no compelling reason presented to me as to why the proposed use should be permitted in this location as opposed to a location which has the appropriate zoning and policy support. In my view the proposal's failure to satisfy the planning scheme's policies is sufficient basis to reject the application.

Nonetheless I have also turned my mind to the other two questions. In relation to the second question, I am far from satisfied that the subject land has attributes which render it a suitable candidate for the proposed use and development. In this regard I note that:

(1) The land is located in an area zoned for rural purposes. The use is not, in my view, one which accords with the primary purpose of the zoning.

(2) There is little, if any, policy support for the proposed use and development within the planning scheme.

(3) The land is located in an area which is essentially devoid of industrial type uses. The subject land is located in an area where the surrounding land uses are rural, rural residential or "urban-related" which, because of their respective development form and the nature of the activities conducted, have some connection or affinity with the rural non urban character of the area. As such the proposed use is not compatible with the nature of surrounding land uses.

(4) The land is located adjacent to a school. Given the provisions set out at clause 52.10, I consider that there is a clear recognition in the planning scheme that the proposed use and schools should not, as a matter of first principle, be located on adjoining sites given the potential for adverse amenity impacts and the different nature of the activities.

(5) I am far from satisfied that the road infrastructure in the area has the capacity to accommodate the type and number of vehicles that would be associated with the proposed use. Riverend Road is relatively narrow and it is constructed to a standard which is appropriate for a non/urban or rural environment. I have doubts that it is of a suitable physical standard to support the type and number of trucks associated with the delivery of goods to and from a concrete batching plant. I note that this view was shared by the Responsible Authority's Engineering Section and I was not presented with any other professional view to the contrary.

All of these factors indicate that the land is not particularly well suited for the proposed use. Accordingly I have not been persuaded that the land has attributes which would make it a suitable candidate for the proposed use.

In relation to the third question on the amenity impacts of the proposal, the first thing that needs to be said is that because the land is zoned for rural purposes, this does not necessarily mean that it will be an area which is free from large buildings and amenity impacts such as noise and odour etc. It must be recognised that land zoned for rural purposes is not necessarily a "haven" providing for superior quality residential amenity. Rural uses, will because of the buildings they require, the equipment that needs to be used and other agricultural practices (eg: the keeping of animals, the use of fertilisers and sprays etc.) all have the potential to have an impact on amenity.

In this particular case the EPA and Melbourne Water have not expressed any concerns about the proposal in terms of its emissions. In addition I note that the proposal would need to comply with relevant EPA standards and a works approval will be required before the use can commence. On face value this may appear to be enough to say that the proposal will not have any unreasonable impacts on the amenity of the area. However, the reality is that what is proposed here is an industrial use. Its impacts in terms of noise, dust, the appearance of buildings are those of industrial activity. Whilst it may be reasonable to expect and to have to put up with the impacts of rural uses which are after all in accordance with the primary purpose of the zone, I do not consider that it is reasonable that residents and the school should have to put up with the impacts of industrial activity. In my view the amenity impacts of the proposed concrete batching plant will not be reasonable when consideration is given to the zoning of the land and its designation for non-urban activity.

It follows from the above that I have formed the view that the proposal is not one which is worthy of the permit. I find that although the proposed use is discretionary within the zone, it is not one which is supported by either the planning schemes policies or the purpose of the zone. I am not satisfied that the subject land has attributes which make it a suitable candidate for the proposed use. I also consider that the likely impacts of the proposed use, whilst acceptable within an industrial context, are not appropriate on land located within a rural/non-urban context. It is clear that the proposal is not in accordance with the orderly and proper planning of the area.

In forming my view, I have given consideration to whether the proposal, as shown on the amended plans, overcomes the problems that I have identified. Essentially I do not consider that the problems relating to the appropriateness of the use can be overcome by way of a redesign of the development. Fundamentally the proposed use is not one which is acceptable and the proposal fails on policy grounds.

Accordingly, my decision in this matter is that the Responsible Authority's decision will be affirmed and no permit is granted. It follows that because I do not consider that the permit should issue having regard to the merits of the proposal, there is no need for the question of law in relation to the interpretation of clause 52.10 to be addressed.

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Tylden Equipment Sales Pty Ltd & Anor v Greater Dandenong CC [2001] VCAT 2239 (17 July 2001)

Tylden Equipment Sales Pty Ltd & Anor v Greater Dandenong CC [2001] VCAT 2239

At a glance

Court

Decision date

Before

Source

Judgment (101 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Tylden Equipment Sales Pty Ltd & Anor v Greater Dandenong CC [2001] VCAT 2239 (17 July 2001)