Request for planning approval to place a portable building (shipping container) at the rear of an existing shop.

See legal opinion which is an Annexure to the decision.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

Clarification of whether the placing of a shipping container on land constitutes "buildings and works" so as to require a planning permit.

This case involves a request for planning permission to place a portable building (shipping container) on land at the rear of an existing shop in Warrigal Road, Ashwood. The site is zoned Business 1 and is not affected by any overlay controls. Council accepted that no "use" approval was needed, on the basis that the shipping container would be ancillary to the existing "shop" use. However Council proceeded on the basis that "buildings and works" approval was needed and issued a Notice of Refusal to Grant a Permit. This refusal was appealed to the Tribunal.

At the Tribunal hearing before Member Naylor, the Applicant questioned whether the mere placing of a shipping container on land requires "buildings and works" approval. The issue was referred to a legal member for an opinion, pursuant to Section 66(1)(b) of the Schedule to the Victorian Civil and Administrative Tribunal Act 1998.

The decision on the question of law is included as an Annexure to this decision. The relevant previous Tribunal decisions are discussed. In summary, Member Martin's opinion is that a shipping container constitutes a "structure" for the purposes of the definition of "building" in the Planning and Environment Act 1987. Reliance was placed on the previous decision of Poohawk Pty Ltd v Glen Eira CC [2006] VCAT 2477, where the Tribunal held that six metre high cantilevered racks constituted a "structure", even where they were neither cemented or bolted to the concrete slab on which they sat. Similarly in John King & Ors v Colac-Otway SC [2001] VCAT 2009 the Tribunal held that buildings and works permission was required to place a moveable building on land, even where the building was not anchored to the land.

On this basis, Member Martin's overall finding was that "buildings and works" permission is required to place the relevant shipping container at the rear of the shop site.

On the merits, Member Naylor decided to grant a permit.

Application under section 77 of the Planning and Environment Act 1987; Monash Planning Scheme; Business 1 Zone; permission sought to place a portable building (shipping container) at the rear of an existing shop; legal question whether planning permission required for building and works; impact on streetscape; car parking provision.

Watson v Monash CC (includes Summary) (Red Dot) [2011] VCAT 2176

1. The parties are referred to the legal opinion by Member Martin attached as Appendix A to this decision.
2. The decision of the Responsible Authority is set aside.
3. In permit application TPA/38387 a permit is granted and directed to be issued for the land at 481 Warrigal Road, Ashwood in accordance with the endorsed plans and the conditions set out in Appendix B. The permit allows building and works for a portable storage building at the rear of the site, with the waiving of two car spaces for the new floor area and a reduction of two car spaces for the existing premises.

The land has a rectangular shape with a frontage of approximately 2.8m to Warrigal Road, a 4m wide corner splay and then a sideage to Douglas Street. The rear of the site abuts a 3m wide right of way. The site contains a single storey shop including a showroom and office that extends approximately 15m from Warrigal Road into the site.

To place a portable building (shipping container) at the rear of the existing shop for use to store building materials; and to reduce and waive the associated car parking requirement.

Section 77 Planning and Environment Act 1987

Clause 34.01-4 To construct a building and to construct or carry out works in B1Z

During the hearing of the merits of this case, a question of law was raised as to whether planning permission is required for building and/or works to place the shipping container on the land. Member Philip Martin determined this question on the papers (as agreed to by the parties) and his reasons are contained in Appendix A to this decision.

1. This is an application by Mr Watson to review the decision by Monash City Council ('the Council') to refuse to grant a permit for a portable building (shipping container) to be placed at the rear of an existing single storey shop. The shop is located at 481 Warrigal Road, Ashwood.
2. The property is located within the Ashwood shopping centre and is situated on the southeast corner of Warrigal Road and Douglas Street. Mr Watson runs a business from the shop renovating kitchens and bathrooms. He leases the premises and is approximately one and a half years into the five year lease.
3. The application was lodged with the Council on 21 June 2010. The Council requested further information in July 2010 and, at the same time, advised the Applicant that the Council was unlikely to support the proposal. The requested information was submitted in August 2010 and the Council determined under delegation in September 2010 to refuse the application without public notification.
4. The Tribunal directed that public notification be undertaken prior to this hearing, which was done and no statements of grounds have been received.

1. Ms Moser explained the Council's two key issues with this proposal are the appearance of the portable building (shipping container) and the car parking provision. I will deal with each of these issues in turn.

1. Ms Moser submitted this site is highly visible as it is an exposed corner property located at the entry to a residential street. The Council is of the view the portable building is quite large and unusual. It is 12 metres long and 2.4 metres wide with a height of 2.7 metres. The portable building is a shipping container that is metal in appearance with a door opening towards the rear of the existing shop premises. The portable building/container is dark blue in colour.

1. The Council submitted the portable building presents as a metal container and will remain looking as such, which is out of keeping with the commercial area where the most common building material is brick. I have inspected the site and the surrounding area and agree there is a predominance of brickwork. However, I agree with Ms Sharp that the 7 Eleven building on the opposite corner has a façade presenting to Douglas Street (the residential street) that is a combination of brickwork and metal cladding. As such, it reflects the materials proposed for this site, and I am of the view these materials are acceptable in this setting.

1. Ms Moser acknowledged the site could be described as neat and tidy but submitted the inclusion of industrial style shipping container at the rear of this open exposed site is not an outcome that could be said to enhance the commercial area interface with a residential street.
2. The Council submitted the variation in building height, setback and materials created by the portable building does not comfortably integrate with existing shop and affects the presentation of the commercial precinct as seen from Douglas Street. Ms Moser suggested the height of the portable building should match the height of the existing shop; and it should be constructed in brown brick to, again, match the existing shop and thereby minimise its impact upon the streetscape.
3. Ms Sharp pointed out the 7 Eleven building opposite contains both brick work and metal cladding. She suggested the portable building could be made to blend in better by changing the colour and/or changing the cladding (in terms of material and/or colour), and by increasing the height to match the height of the existing shop building. Ms Sharp was also agreeable to a permit condition that required the portable building to be maintained in terms of its condition and appearance.
4. Having inspected the site and viewed the portable building as is, I find it is acceptable. I have already stated the materials are appropriate and I see no real benefit or necessity to increase the height of the portable building with new cladding or to change the materials or colour. I acknowledge the dark blue colour may not be to everyone's taste, but the acceptability of the proposal is not about personal taste. The colour blends with colours in the front façade of the existing shop premises and so long as it is maintained in terms of its condition and appearance, I find the portable building is an acceptable addition to the streetscape.

1. I made the observation during the hearing that the 7 Eleven property on the opposite corner of Warrigal Road and Douglas Street has a grassed landscaped setback along the Douglas Street frontage and this site does not. It has a concrete slab that is exposed as there is no side fencing along the Douglas Street frontage. Ms Sharp stated her client is willing to incorporate some landscaping along the Douglas Street boundary, so long as it is landscaping that can be placed on top of the slab (i.e. in pots) so that it does not involve pulling up the existing concrete slab.
2. I am of the opinion the existing appearance of the site is appropriate without landscaping. I agree it is inappropriate to require landscaping that would necessitate removing or destroying parts of the existing concrete slab. I am not persuaded landscaping in pots achieves much as such landscaping would be minimal and provide limited screening of the building. Given my earlier findings that the portable building is an acceptable addition to the streetscape, I find no landscaping is necessary in this case.

1. Ms Sharp suggested that the permit could be limited in its life to accord with Mr Watson's business aspirations and his lease. In other words, rather than this structure becoming a permanent structure associated with this site, it becomes a structure associated specifically with Mr Watson's business. Ms Moser supported such a condition on behalf of the Council. Both parties agreed it was not appropriate to make the permit personal to Mr Watson, but it would be appropriate to make the permit have a limited life that generally accords with the remaining time of Mr Watson's lease. Given the general agreement of the parties to this outcome, I have specified a permit expiry date with the opportunity for Mr Watson to seek to extend the permit in the future.

1. Ms Moser and Ms Sharp agreed the concrete slab at the rear of the existing shop provided for four car spaces, being a width of two car spaces with a length that encompasses tandem spaces behind. The portable building/shipping container reduces this area so that two car spaces in tandem can now be provided on the site.
2. The building/container has a floor area of approximately 28.8 square metres. Ms Moser and Ms Sharp agreed this increase in floor area associated with the existing shop results in the need for an additional two car parking spaces based on the standard car parking rate for a shop in the planning scheme.
3. I was advised there are no previous planning permits for this site, which means there has never been a decision as to the amount of car parking that must be provided on the site. Ms Moser explained the floor area of the shop is approximately 92 square metres, which equates to a car parking requirement of 7.36 or 7 car spaces. The Council stated, given the rear concrete slab can accommodate four vehicles, the inclusion of the shipping container results in a shortfall and credit of three spaces. Approval of this proposal would result in an overall shortfall and credit of five car spaces.
4. The Council is not satisfied with the proposed increase in floor area and the proposed reduction in car parking. Ms Moser expressed concern about the implications for loading on the site and highlighted an issue in the past of angled car parking illegally across the remaining concrete apron at the rear of the site. Ms Sharp explained the fortnightly delivery from Sydney (the loading that the Council has referred to) has ceased and so there are no loading issues associated with the activities that occur on this site. Ms Sharp acknowledged angled car parking was occurring in the past, but upon becoming aware of the Council's concerns, this practice has ceased.
5. In the Council Officer's delegate report, reference was made to an impact on surrounding car parking, but when I asked this, there was no elaboration as to what the impact would be. Ms Sharp submitted the three on street car spaces in Douglas Street adjacent to the site are unrestricted and are not heavily utilised. In addition there is unrestricted car parking available in the balance of Douglas Street and there is two hour angled car parking available in Warrigal Road. During my inspection during the day on a weekday, there was car parking available in each of these locations.
6. Essentially, this proposal results in a reduction of two car spaces for the existing shop and the waiving of two car spaces for the new floor area associated with the shop. This is a shopping centre and I was not presented with any evidence or submissions to suggest that there are existing car parking or traffic issues associated with this shopping centre. There is ample restricted and non-restricted car parking available in the area surrounding this site. I find it is appropriate in this case to allow a reduction and waiver of car parking for this proposal.

1. I am of the opinion that a permit should issue subject to a condition requiring the portable building/shipping container to be maintained in terms of its condition and appearance; and a condition linking the expiry of the permit to (roughly) the time remaining on Mr Watson's lease of the site[1]. Accordingly, my order is that the Council's decision be set aside and a permit issue subject to the specified conditions.

Opinion by Legal Member pursuant to Section 66(1)(b) of Schedule 1 of the VCAT Act 1998.

1. I am the Legal Member appointed to provide an opinion on a question of law in proceeding P3192/2010.
2. The initial hearing of this P3192/2010 proceeding occurred before Member Naylor on 19 August 2011, in the course of which a legal issue arose. I understand that after some discussion, there was a consensus that Member Naylor would refer the legal issue to a Legal Member for an opinion pursuant to Section 66(1)(b) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998. I refer here to the nomination document dated 15 September 2011 signed by Deputy President Gibson.
3. In terms of the background facts in question, to avoid duplication, I refer the Reasons set out at pages 2 and 3 of the interim decision prepared by Member Naylor dated 22 August 2011.
4. Suffice to say that some key points here are that:
   • the land in question operates as a shop, in relation to which it is proposed to place a portable storage building (shipping container) on this subject land;
   • where the Permit Applicant has sought planning permission for same, Council has processed this application on the basis that no "use" permission is needed, but there is a need for planning approval for "buildings and works";
   • Council has issued a Notice of Refusal to Grant a Permit, which has been appealed to the Tribunal, resulting in the hearing before Member Naylor on 22 August 2011;
   • in the course of this hearing, the Applicant's barrister Ms Sharp tabled two decisions which she submitted raise doubt whether "buildings and works" permission is required to place a shipping container on land, at least in the absence of any attachment or other physical affixing of the shipping container to the subject land.[2]
5. As part of this matter being referred to me for a legal opinion, I considered the following documents provided by the parties:
   • the written submission prepared by Ms Sharp, which is stamped as having been received by the Tribunal on 7 September 2011; and
   • the written submission provided by Ms Sally Moser dated 2 September 2011, provided on behalf of Council.
6. Curiously, although I understand there was some querying at the 19 August 2011 hearing whether a permit trigger arises in relation to the shipping container, the practical position arising from the two follow-up written submissions provided to me is as follows:
   • Ms Moser continues to argue on behalf of Council that there is a "buildings and works" permit trigger; and
   • even Ms Sharp on behalf of the Applicant acknowledges in the "Summary" section at the end of her written submission that:

In summary, it is submitted that, on the basis of the above analysis, a permit is required for the placement of the portable storage building (shipping container) on land in a Business 1 zone pursuant to Clause 34.01-4.

1. In other words, the reality is that both of the parties now agree that there is a "buildings and works" permit trigger arising from the placing of the shipping container on the subject land. However, I make the following comments in brief.
2. On the one hand, I acknowledge that in certain respects the mere placing of a shipping container on any one property does have some aspects to it which at a glance suggest that no "buildings and works" permission is needed. I refer here to:
   • the likelihood that the shipping container is simply sitting on the ground without any foundations or other support underneath;
   • the likelihood that the shipping container is not fixed or anchored to the land in a conventional way i.e. typically a shipping container can be lifted and removed without needing to demolish or remove any supporting structures; and
   • the installation of a shipping container does not require the type of traditional "works" that typically arise for the construction of a building. For example, the placing of a shipping container on land does not require any laying of a slab, the installation of stumps, the construction of a framework, or the laying of bricks.
3. On the other hand, a shipping container does have certain other characteristics which gives it a more permanent rather than temporary character, and which are more consistent with the need for "building and works" approval, being:
   • the sheer weight, size and mass of a shipping container;
   • the major visual presence of a shipping container, which is not unlike the appearance of a modest dwelling. I am also conscious that unlike skips which typically are only put on a site for a very limited period, a shopping container may be left on a property for a long period;
   • the fact that the sheer size and weight of a shipping container make it quite difficult to lift or move i.e. a crane or very large forklift presumably is required.
4. The question then arises how the placing of a shipping container on land fits with the definition of "building" and "works". Section 3 of the Planning and Environment Act 1987 defines these terms as follows:

(a) a structure and part of a building or a structure; and

(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to land;

"works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil".

1. In summary, I am satisfied that the particular characteristics of a shipping container which I have described two paragraphs above make a shipping container constitute a "structure" for the purposes of the definition of "building" as set out above. On this basis, I am satisfied that the placing of a shipping container on the subject land constitutes "buildings and works" which require a permit here.
2. My finding set out above is reinforced by the Tribunal's previous decision in Poohawk Pty Ltd v Glen Eira CC [2006] VCAT 2477. In that case, the Tribunal found that a 6 metre high set of cantilevered storage racks at a hardware store constituted a "structure" for the purposes of the Planning Scheme, with the practical result that these storage racks which had already been installed required "building and works" approval and were unlawful works in the absence of such approval. Importantly, the Tribunal in Poohawk found the contentious racks to constitute a "structure" despite the fact that the base of the racks was neither cemented nor bolted to the cement slab on which it sat.
3. I acknowledge that Member Cook in Indigo SC v Brown [2009] VCAT 2688 made passing comments which included expressing doubt whether a shipping container constitutes a "structure". However Member Cook indicated that she did not need to determine this point conclusively. This in turn raises some uncertainty to what extent there was a proper discussion of this issue at the hearing before Member Cook.
4. In all circumstances, I consider it appropriate to give only modest weight to the quite qualified comments made by Member Cook on this "what constitutes a structure" issue, and I find these qualified comments unpersuasive for the purposes of the legal opinion which I must make here.
5. In terms of other relevant case law, I consider my findings to be consistent with the decision of Member Rickards in John King & Ors v Colac-Otway SC [2001] VCAT 2009. In this decision Member Rickards found that the placement of a moveable building on land is a form of development which required planning approval, whether or not the relevant cabins were placed on concrete blocks or not, and whether or not they were anchored to the land. The declaration made by Member Rickards included that "The placement a movable building on land is the carrying out of works where referred to in the planning scheme".
6. I acknowledge that the Tribunal in Daher & Hanna v Glen Eira CC [2011] VCAT 381 expressed the view that even if a shipping container can be seen as a "structure" for the purposes of the definition of "building", this does not necessarily trigger the need for "buildings and works" approval. I respectfully decline to follow this line of thinking, bearing in mind that the hearing process in the Daher & Hanna case:
   • did not involve any lawyers;
   • did not necessarily involve a full discussion of the relevant previous cases; and
   • involved two of the three parties being self-represented.
7. In summary, I find that "building and works" permission is needed in the circumstances here for the placing of a shipping container on the subject land, pursuant to the Monash Planning Scheme.

Building and works for a portable storage building at the rear of the site, with the waiving of two car spaces for the new floor area and a reduction of two car spaces for the existing premises in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Within two (2) months of the date of this permit, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) The rear property dimension as 7280mm;
   • (b) The setback of the portable building/shipping container from the Douglas Street frontage as 4800mm; and
   • (c) The provision of two tandem car spaces with dimensions in the Douglas Street setback area.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. The portable building/shipping container to be maintained in terms of its condition and appearance to the satisfaction of the Responsible Authority.
4. This permit will expire in four years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires, or within three months afterwards.

[1] Ms Sharp submitted this is approximately 4 years.

[2] See the cases of Indigo SC v Brown [2009} VCAT 2688 and Daher & Anor v Glen Eira CC [2011] VCAT 381