Wales v Yarra Ranges SC [2010] VCAT 529

Wales v Yarra Ranges SC [2010] VCAT 529 - VCAT 2010 case summary — Zoe

[7]

Steve Wales operates an earthmoving business. He stores, maintains and dispatches machinery and equipment from the subject land, in addition to running a permanent office from which the administrative functions of the business are carried out. He wants to continue this use into the future, and claims that it is properly characterised as a contractor's yard or similar.
The subject land is located in the Green Wedge Zone 4 of the Yarra Ranges Planning Scheme.[1] The responsible authority advised Mr Wales that the land does not have existing use rights for the business operations and that he needed to apply for a planning permit for the current use.
A permit application recently lodged with and processed by the responsible authority for a contractor's yard was ultimately refused. Grounds of review generally hinged upon the alleged improper characterisation of the use and the suggestion that the use was in fact now prohibited, in addition to the use being inconsistent with planning policy for rural areas.
Mr Wales now seeks review of this decision. In addition, he has lodged an application for declaration[2] claiming that the subject land has existing use rights for the purpose of a contractor's yard. The rights are considered to have accrued pursuant to clause 63 of the Yarra Ranges Planning Scheme and section 6(3) of the Planning and Environment Act 1987, in that the use has existed for over 15 years and the council did not give any clear and unambiguous written direction to cease the use throughout that time.
This hearing was generally limited to considering the application for declaration. If that application was to be determined in the applicant's favour, there would be no need for a planning permit and the review application could be withdrawn.[3]
The responsible authority called lay evidence from Ms Savio, the owner of adjoining land[4] and a racehorse trainer, to explain the operation of the facility on the subject land near the time of purchase of that land until the present time.
Mr Wales gave evidence of the operations carried out on the land, including changes to their physical extent over time. With leave of the Tribunal, he subsequently submitted diary records and copies of invoices and the like to document typical (recent) activities on the subject land.
The responsible authority's key submissions contesting the claim of existing use rights were that:
- the subject land was not used for a contractor's depot for a continuous period of 15 years as distinct from the adjoining parcel to the north. In particular time started to run only at the time the use contracted off the adjoining parcel of land in 2006 (now owned by Ms Savio); and
- the responsible authority gave a clear and unambiguous direction by letter dated 22 March 2005 to cease the use, terminating any opportunity for the accrual of existing use rights under clause 63.11 of the planning scheme.

[12]

Certain facts emerge from the responsible authority's file for the subject land, including:
- There is no record of when the use commenced on either 110 or 120 Lowes Road. 110 and 120 were originally in common ownership.
- Building permits were issued in late 1985 and 1992 allowing the conversion of an "existing workshop" on the subject land to a factory.
- At a site inspection in mid 1987, the relevant officer observed that the land was being used as a depot in the absence of a planning permit.
- A complaint about noise emissions from the business on the subject land was received by council in mid 1988.
- A letter was sent to Mr Wales in mid 1989 referring to other complaints about the operation of a transport depot on the subject land and advising of the opportunity to apply for a permit for this use.
- Planning permit No. 775 was issued on 9 April 1990, allowing the use of the subject land at 110 Lowes Rd and 120 Lowes Rd as a Contractor's Yard. The permit was expressed to apply to Crown Allotments 24 and 25. Condition 19 of that permit provided that the permit would lapse three years after the date of issue unless it was extended by the responsible authority before this time.[6] It was common ground that this permit was not extended.
- The 1989 plan of existing conditions accompanying the permit application showed the existing gravel area of No. 120 used for materials storage, with a substantially larger area on 110 for plant storage area and a centrally located office building. Ms Savio generally confirmed that this plan accurately depicted the use as at 2005.
- Further complaints were received from neighbours about the operation of the use, including in mid 2004.
- The 2004 survey plan submitted in connection with the permit application for the use (which ultimately lapsed) showed a generally similar area of both 110 and 120 being used for the business operations, although it noted that at that time No. 120 provided for a machinery parking area and No. 110 provided a substantial galvanised iron shed (the workshop).
- The land was subdivided and 120 Lowes Road was sold to Ms Savio in October 2006. Ms Savio occupied part of the adjoining property at No. 120 since 2005 when she agisted horses on No. 110 and used the training track on No. 120.
In addition, numerous diary/bookings/staff and vehicle records were submitted by Mr Wales to illustrate the current operations on site, in addition to photographs from various time periods tendered by both parties.

[36]

Regardless of the current or former planning scheme definitions of contractor's yard or similar, I consider that the proper characterisation of the purpose of the use is as a contractor's depot.
While the difference between the use of a contractor's depot and that of a contractor's yard may be slight, the ordinary meaning of a depot would suggest to me more 'comings and goings' than a yard, which may potentially connote a greater extent of storage of vehicles/materials or longer periods of inactivity.
In Andsand Pty Ltd v Kingston CC [2008] VCAT 1804, I held:
1. . . . There is no planning scheme definition for "depot" and I consider that the defined land use terms in the scheme are not sufficiently specific to reflect this aspect of the proposal.
2. The Tribunal has in the past described the innominate land use of a "depot" as meaning land serving 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 occur, such as the repair and maintenance of vehicles and equipment.[14]
3. Andsand physically carries on its earthmoving business across various construction and excavation sites, but proposes to rely on the subject land as a base for vehicles and equipment (generally in accordance with existing operating practices). The proposed land use has each of the same constituents as described above and I agree that these features, in combination, constitute a depot use of land. Specifically, I find that the primary purpose of the storage of vehicles/machinery on the subject land and their dispatch and repair is for the use of the land as an earthmoving contractors depot.
4. While there is an element of the storage of goods, machinery and vehicles on the land that is necessarily involved with this land use, I consider that the land use term "store" is not appropriate, in that this activity is not the real and primary purpose of the land use when viewed as a whole.
For similar reasons, I consider that generally the same activities have been carried out on the subject land as referred to in paragraph 15 above consistently since the commencement of the use.
This characterisation was subsequently upheld by Senior Member Byard in Andsand Pty Ltd v Kingston CC No 2 [2009] VCAT 2506 where he observed:

At a glance

Court

Decision date

Source

Judgment (51 paragraphs)

Wales v Yarra Ranges SC [2010] VCAT 529 (23 March 2010)

Parties

Legislation Cited (1)

Cases Cited (1)