2. Within one month from the date of this order the respondents shall cease to carry out the following activities at the subject land:

(a) Loading or unloading of goods carried or intended to be carried by any motor vehicle for hire or reward.

(b) Storage, garaging, repair or use of any forklift truck.

(c) Mechanical or other repairs to any motor vehicle used for carrying goods for hire or reward.

3. After the expiration of one month from the date of this order, the respondents shall not store equipment or parts used in the maintenance or repair of motor vehicles other than vehicles owned by the residents of the dwelling for their own private use, except wholly within a building.

4. After the expiration of six months from the date of this order, no more than one motor vehicle used for carrying goods for hire or reward may be garaged at the subject land at any one time.

5. After the expiration of three months and until the expiration of the period of six months referred to in paragraph 3, no motor vehicle used for carrying goods for hire or reward shall be parked in the front garden of the subject land between the hours of 8.30 am and 6.30 pm on any weekday.

6. The responsible authority must immediately serve copies of this Order on the respondents.

Mr G Cullis, Compliance Officer, represented the Responsible Authority ("Council").

1. This Application was brought under Section 114 of the Planning and Environment Act 1987. It alleged failures to comply with the Yarra Ranges Planning Scheme and Planning and Environment Act 1987 ("the Act"), in that the subject land was being used for the purpose of a transport depot, being a use which is prohibited in the relevant zone.

2. The Application is brought by the Yarra Ranges Shire Council against Mr Malcolm Hunter as owner of the subject land, and against Hunter Transport Pty Ltd and Mr Hunter as occupiers.

3. By way of background, a hearing took place on 21 December 1998. The applicant was the only party who attended, by its Compliance Officer, Mr Cullis. Mr Hunter had lodged an objection dated 25 September 1998, which was taken as having been made on behalf of both Respondents. Mr Cullis was confident that Mr Hunter was aware of the hearing, but did not intend to appear. This was borne out by the subsequent correspondence.

4. A letter had been received by the Tribunal from one of the persons given notice of the Application as a person who might be adversely affected by the alleged contravention. This was Mr Gerard Ribberink of 9 Beresford Road, Lilydale. Mr Ribberink's letter was dated 20 October 1998, and said (in part):

"..... our main objective was the traffic chaos at times at the roundabout Beresford Rd and Cave Hill Road. We would not like to deprive Hunter Transport from their livelyhood but objected to the several near misses we experienced with their (2) four wheel drives. Also to have a semi-trailer or trucks manouvre in and out of a residential block is asking for trouble eventually."

5. The hearing proceeded in the absence of the Respondents under Section 99(2) of the Victorian Civil and Administrative Tribunal Act 1998.

7. In its submission, however, the applicant sought orders that the respondents should:

· Cease the use of 65 Beresford Road, Lilydale for the purpose of a Transport Depot;

· Not more than one (1) vehicle used for carrying goods and/or persons for hire or reward may be kept or garaged on the site at any one time and that vehicle must be used for commuter purposes only and not for any other reason;

· No loading or unloading of goods and/or persons to be carried out on the site;

· No goods, equipment or parts of vehicles are to be stored on the site;

· No forklift truck is to be stored, garaged, repaired or used on the site;

· No mechanical or other repairs are to be carried out on the land to vehicles used to carry goods and/or persons for hire or reward;

· No vehicle entering or leaving the site shall cause nuisance to persons or neighbouring properties by reason of noise, dust, fumes, or any other cause.

8. I was concerned that, although it could be argued that the orders sought in the submission were all within the scope of the defined term "transport depot", so as to be within the scope of the proposed order of which notice had been given to the respondents, they had not been given the opportunity to respond to the precise factual allegations that are reflected in the specific terms of the orders sought at the hearing.

9. When it was indicated that the Tribunal would not be prepared to amend the terms of the order sought without notice to the Respondents, Mr Cullis sought an adjournment of the hearing to enable the Council to take advice.

10. By letter dated 8 January 1999, the Tribunal received notice from the applicant that it wished to amend the Application to substitute orders as set out above for the order sought in the Application. The applicant further stated that a copy of the letter had been forwarded to the respondents (confirming that Mrs H Hunter was no longer a respondent).

11. A further amendment was also sought by this letter. This was the insertion in the Application of a further ground on which the Application was brought. The original ground was:

"The land is being used for the purpose of a transport depot which is contrary to the Yarra Ranges Planning Scheme and the Planning and Environment Act 1987."

The vehicles garaged on the land are used for the purpose of carrying goods for gain or reward. Mr Hunter confirmed that the trucks are used to transport and deliver goods throughout the district. One of the trucks garaged on the site was observed delivering beer barrels to a site in Launching Place (refer photograph)."

13. At the same time that I gave directions for notice of the changes to be given to the respondents, I directed that they should have time to deliver a written response to both the Tribunal and the applicant, and that they could request a hearing in relation to the proposed amendments if they wished.

"If no hearing is requested, this application will be determined after 25 January 1999 by the Tribunal on the basis of the hearing on 21 December 1998 and any further written submissions received from the parties pursuant to these directions."

15. A letter was received from Mr Hunter, together with three hand written, signed letters from other persons. Copies of these were forwarded to the applicant by the Tribunal, to make sure that they came to the applicant's attention. These letters were:

(a) From "Norm" who lives at 109 Cavehill Road, Lilydale. The signature on this letter is difficult to read, and may be "Tapgood". This states that Norm has been living next door to Mr Hunter for the past 12 weeks and has found him to be a very friendly neighbour, and has no objections to him parking two trucks next door to him. Norm states that if there are problems with Mr Hunter parking two trucks in his house, Norm is willing to let him park one on his property.

(b) From Mrs Kathy Thompson of 52 Beresford Road. She stated (in summary) that both she and the Hunters had lived in Beresford Road for about 8 years, and she felt there was no noise or reason for anyone to complain. She refers to many trucks and buses using the road in the early hours of the morning, naming a bus depot, an industrial court where there are a lot of trucks, the recycling trucks that come every day, and early deliveries to the milk bar on the corner.

Mrs Thompson further states that Mr Hunter only has two trucks, and only uses one a day, with the other as a back-up or spare. She is not bothered by the trucks, and after speaking to the neighbours about it, thinks they are all used to living on a busy road. She adds that if Mr Hunter is doing the wrong thing, so are others, and that this is a petty complaint.

(c) The third letter is from Heather Masson, who also lives at 65 Beresford Road with Mr Hunter. Without having full details, I assume that Ms Masson is the same person as the "Mrs H Hunter" who was originally named as a person against whom an order was sought, but against whom the Application has been withdrawn. In any event, she can scarcely be considered independent in giving her observations of Mr Hunter's use of the subject land. She states that they do not have any problems with the neighbours, who do not mind having two trucks parked on the property. She offers to obtain more letters from neighbours if called on, stating that they will also confirm that "we only use one [truck] a day".

16. Mr Hunter's own letter, dated 11 January 1999, stated that he requested no hearing. He chose to make a written submission. This was (in summary) that he had a depot for loading and unloading, situated in an industrial estate 50 metres away from his residence. He parked his two trucks at home mainly on weekends for security reasons. He stated that no work activity took place at all at his home.

17. Mr Hunter continued to describe his happy relationship with his neighbours on one side, and in the houses opposite his home. He identified one former neighbour as the source of complaints, and states that that person has moved out, and the new neighbour was very friendly and supportive. He ended with a statement that he could not see why he should be condemned for the actions of one neighbour when the other three neighbours were all supportive.

18. No further submission has been received from the Council. But as Mr Hunter stated that he had received the Tribunal's letter of 30 December 1998, without mentioning the letter from the Council containing its proposed amendments, it seemed probable that the Mr Hunter's letter had been written before he received the Council's letter.

19. An additional opportunity was given to him to comment in response to the Council's proposed amendments; but nothing further was received.

20. It is now many months since the Tribunal's last letter to Mr Hunter (dated 17 February 1999), and no further steps have been taken. The further written material raised a new problem. The situation now appears to be that even if Mr Hunter was found to be in contravention of the Planning Scheme by parking more than one truck at his residential premises, at least one neighbour is prepared to let him use the property next door. I do not see that any practical advantage is gained by moving a truck from one property to the next in this manner; although the benefit to both Mr Hunter and the community generally of obtaining and preserving compliance with the Planning Scheme is of course also to be considered.

21. Mr Cullis produced a zoning map and relevant extracts from the Planning Scheme. The subject land is zoned "Residential General", under the Yarra Ranges Planning Scheme - Chapter 2 (Lilydale District). Clause 323 of the Planning Scheme applies. Use of land for the purpose of a transport depot is prohibited in the zone.

22. The purpose of the Residential General Zone is set out in Clause 323.1 as follows:

- Provide opportunities for extended family living;

- Provide services and recreational opportunities of a purely local nature;

- Limit commercial activities to those having a local service function;

- Limit commercial activities conducted from a residence to those which will not cause nuisance to adjoining residents/properties.

23. The zone provisions regarding use place "Home Occupation" in Column 1 (allowed with conditions as noted), but "All use or development of land defined in this Local Section but not referred to elsewhere in this table" is in Column 3, which contains the prohibited uses.

24. "Transport Depot" is defined in Chapter 2 of the Local Section, and is not mentioned in either Column 1 or Column 2, meaning that it is a prohibited use in the zone. The definitions appear in Clause 201. The two relevant to this Application are:

Home Occupation means a business carried on within a dwelling or a building ancillary to a dwelling, but does not include a brothel.

Transport Depot means a building or land used for the garaging and/or parking of motor vehicles used for carrying goods and/or persons for hire, or reward, and may include the transfer of goods and/or persons from one vehicle to another, but does not include the storage of goods.

25. "Home Occupation" was referred to by Mr Cullis because the garaging of a commercial vehicle at a residence is not automatically prohibited in all circumstances. Clause 606 sets out the provisions under which the use of "home occupation" may be conducted without any need for a permit:

"Land may be used for the purpose of a home occupation provided that:

- The home occupation must be carried on by not more than two people, one a resident of a dwelling on the same site.

- The home occupation must not cause any nuisance to persons or neighbouring properties as a result of electrical interference, vibration, noise, liquid wastes, airborne pollutants, or any other cause.

- The home occupation must be carried on within a building and all materials, machinery used and products created must be wholly contained within a building.

- The home occupation must not occupy more than 50 square metres in one or more buildings.

- The home occupation must not be a shop or an industry as defined in this Planning Scheme.

- The home occupation must not include the repair, maintenance or sale of motor vehicles other than vehicles owned by the residents of the dwelling for their own use."

26. A further possibility for consideration is that uses ancillary to the use of the dwelling do not need a permit. The limits of ancillary use, however, have to be met. This term is also defined in the Planning Scheme:

Ancillary Buildings, Works and Uses means buildings, works or uses which are subservient or subordinate to the primary building(s), work(s) or use(s) established on the land.

27. Without going into any details of the proposed new VPP Planning Scheme, it appears that the zoning will be Residential 1, and the controls applicable will not become more stringent, and that although even if a permit may theoretically become possible for at least some aspects of the use, as a matter of discretion it may not be granted.

28. Mr Cullis presented the Council's written submission and tendered:

* formal proofs of the relevant table of uses from the Planning Scheme and an extract from the Planning Scheme map;

* a plan identifying the location of the subject land;

* a copy of the title to the subject land, being Lot 18 on PS no.91755, Certificate of Title vol.9243 fol.404 showing Mr Hunter as its registered proprietor;

* a Land Information certificate showing Mr Hunter as owner of the subject land and connecting the street address to the lot number;

* a corporate affairs search of the respondent company;

* a series of vehicle registration searches showing three of vehicles registered as owned by Hunter Transport Pty Ltd. These were two 6-wheeled vehicles being a prime mover and a van, and a Rodeo utility;

* a series of photographs, including an aerial photo.

29. Mr Cullis was able to verify allegations about activities at the subject land from his own observations, having been personally involved in the matter and having carried out inspections of the subject land, other premises occupied by the Respondents, and other premises in the vicinity to the subject land during this year.

30. Mr Cullis introduced the subject of Hunter Transport Pty Ltd's other premises, which are located in the nearby industrial estate and are available for the garaging of the company's trucks and materials. The availability of these premises was confirmed by Mr Hunter's letter. This tends to support the assertion by Mr Hunter that he brings the trucks home for security purposes, rather than because he, or the company, is operating a transport depot business at the subject land. The photographs tendered by Mr Cullis of the Hunter Transport depot at 101-155 Beresford Road, on the Lilydale Industrial Estate, show it as being a compound fenced in high cyclone wire, with plenty of room for many more trucks than the two observed at the subject land. In neither photographs was the depot compound full, and in one it was almost empty. Given the street number in the same street as the subject land, Mr Hunter's statement that the depot is 50 metres away may perhaps be something of an exaggeration of its proximity, but not very much.

31. The other evidence produced by Mr Cullis, including photographs, the vehicle registration searches, and his own statements, both written and oral, established that there has been at least one incident when goods on a forklift near a truck have been visible from the street on the subject land.

32. A fourth registered commercial vehicle owned by the respondent company had also been recently identified by Mr Cullis. Other vehicles have also been observed parked in the Hunter Transport site on the Industrial estate. This is not a case of a driver garaging his only truck at home in lieu of commuting by car; the business concerned is substantial. But I am not concerned with vehicles that are not brought to the subject land.

33. Mr Cullis described, with the assistance of the photographs, that on one side of the house at the subject land, there is a concrete driveway leading to a garage and a rear yard that is also concreted as far as can be seen from the photographs taken from the street. On the other side of the property, there is a track which would provide some sort of hard standing to accommodate two sets of wheels, rather than a driveway. This track does not have a crossover to the street. It is obviously accessed by driving straight across the kerb, at a point between the lines of a school crossing, which has its red and white post directly outside the subject land. The photographs show that there is a worn path across the nature strip leading to the tracks across the garden in front of the house. It appears that the tracks are lightly gravelled, or even partly concreted, within the boundary of the subject land. The setback of the house on that side does not allow the truck to be parked to the rear of the house; it must sit in the setback, prominently in view from the street. There is of course no fence to obstruct either access into the subject land or views into it.

34. Regarding the conduct of transport depot business at the subject land, Mr Cullis gave the following evidence:

* 7 January 1998: complaints about truck parking, noise and fumes, loading of barrels, unsightly premises and storage of tyres received.

* 10 February 1998: two trucks observed parked on the subject land. These were a prime mover and a tray truck.

* 1 May 1998: three trucks and a trailer loaded with beer barrels on site. Minor body repairs being carried out to one truck.

* 18 June 1998: two trucks observed on the subject land.

* 29 July 1998: two trucks parked on the subject land.

* Stacked goods and a forklift truck were observed and photographed at the subject land on 17 December 1998, with a truck parked in front of the house.

* On 20 December 1998 Mr Cullis observed a number of pallets and a forklift truck at the subject land. One truck was parked there, in the drive. On the same day, at the depot, there were barrels and pallets, as well as trucks and other vehicles.

* A heap of tyres and wheel parts has been photographed stacked against a fence. This has also been a subject of complaint.

35. A "Hunter Transport" truck (with the name visible) has also been photographed parked at 54 Beresford Road (which would be next to Mrs Thompson, who wrote one of the supporting letters). This supports the ability of Mr Hunter to arrange to park the trucks with more that one of the neighbours if he is not allowed to do so at his own home.

36. Mr Hunter stated in his letter of 25 September 1998 (in summary) that:

* Prior to his moving into the subject land, his parents had "resided here for some 15 years with trucks".

* The subject land is not used as a transport depot; nothing gets loaded or unloaded. Only one truck is used daily, started once to go to work and returning in the afternoon. The other truck is a backup, and is used if the main truck is not going.

* The subject land is located 15 metres from a milk bar that has deliveries occurring all hours of the day and night, and 200 metres from the "Invicta bus depot", which houses some 80 or more buses which frequently pass the houses.

* He believed the complaints generated by Messrs Caine and Spence were vindictive, giving reasons for this belief.

37. Mr Cullis does not dispute the nature of the neighbourhood. He added that the "milk bar" (or convenience store) was on the corner of Beresford and Cave Hill Roads, next to a vacant site. The subject land is directly opposite the vacant land. The extent of the Industrial zone appears on the zoning map. It is a large area, and the subject land is separated from it only by one house lot and the width of the road intersection, although there is also a public open space reserve on the opposite side of the intersection on the north side of Beresford Road. There is a roundabout in the intersection. The bus depot, Mr Cullis pointed out, is located in the Industrial park, so that although it is close to the subject land, its status is different, and it is properly zoned for its use.

38. The subject land is within a Residential zone, even if it is on the very fringe of the zone. The standard of residential amenity may not be maintained at the same level as would be the case in the centre of an extensive residential area; but the neighbouring owners are entitled to the protection of the Planning Scheme if their amenity is disturbed by an unauthorised use.

39. Regarding the history of trucks at the subject land, Mr Cullis confirmed that the subject land had been owned at one time by Mr Hunter's parents; but they had sold it to Mr Ciccone in 1987; and his use had nothing to do with trucks. Mr Hunter bought the property in 1994. The transactions appear on the copy title filed by the Council. The gap between 1987 and 1994 is more than enough to terminate any non-conforming use rights that might have existed while Mr Hunter Senior owned the property: see Section 6(4) of the Act.

40. Mr Hunter raised additional matters in his letter of 11 January 1999, which has already been referred to. This letter states that the company has the depot for loading and unloading. Mr Cullis' statement contained a report of a conversation with mr Hunter that indicates that Mr Hunter got possession of the depot site about 1 July.

41. Mr Cullis stated that Hunter Tansport drives beer barrels. He saw six barrels loaded on a trailer adjacent to the prime mover parked at the subject land, with a total of three trucks present, at the subject land on 1 May 1999. He observed and photographed a "Hunter Transport" truck loaded with barrels at Yarra Junction on 29 September 1998. He further stated that Mr Hunter had confirmed that the trucks are used for hire or reward to deliver goods throughout the district. If barrels were being loaded at the subject land, the nature of the activity would clearly be outside what is permissible as a use ancillary to the ordinary use of land for the purpose of a dwelling. It also seems probable that the pallets and the forklift observed at the subject land were related to cartage of barrels or other goods. The fact that the pallets and barrels were located partly in the Industrial park and partly at the subject land indicated that there was no clear separation between the business premises and the subject land in the conduct of the business. A third vehicle had also been observed parked at the subject land, being the utility owner by Hunter Transport Pty Ltd, which Mr Cullis states is used to tow a trailer loaded with goods.

42. Mr Hunter states that his two trucks "are mainly parked at home on weekends for security reasons". Mr Cullis accepts that his main concern is security of the vehicle. However, the other activities of storage of goods, pallets or tyres and so on, and loading or unloading at the subject land, are activities which he submits cannot be tolerated in a Residential zone. Minor body works were being carried out when an inspection occurred on 1 May 1998. Nor does his evidence support the assertion that it is on the weekends that two trucks are parked at the subject land. Most of the occasions when, according to Mr Cullin's evidence, two or three trucks were parked at the subject land were mid-week inspections.

43. Regarding the complaint concerning traffic congestion, the subject land is described by Mr Cullis close to the roundabout on the fringe of a large industrial estate. The increase in non-residential traffic caused by Mr Hunter driving up to two trucks to and from his home is unlikely to make an appreciable difference to traffic using the road and the roundabout, and Mr Cullis does not claim that it does. It is what happens on the subject land that is the focus of concern.

44. Mr Cullis described how within four months of the first complaint and inspection of the subject land by Council officers, Mr Hunter bought the site in the Industrial park. It is available for garaging trucks, carrying out repairs, washing etc. Loading and unloading can take place there. However, Mr Hunter is not satisfied that it is secure.

45. The acquisition of the depot site in the Industrial park is a good indication that the respondents did not wish to continue carrying on activities in contravention of the Planning Scheme. There is no direct first-hand observation or other acceptable evidence that loading or transferring of goods between vehicles has been occurred at the subject land since the depot site was acquired. Mr Hunter has also produced very supportive letters from some of his neighbours, although it must be recognised that some of the writers do not appear to be very close neighbours.

46. There has been no complaint conveyed to the Tribunal in the last round of submissions. Mr Cullis confirmed that one complainant had sold his property and moved out. However, I do not regard that as the end of the matter. The parking of a truck right up against the neighbouring fence, with attendant noise and fumes, near the bedrooms of the house, can be expected to create difficulties sooner or later, even if there are no complaints at present.

47. It is established that the trucks are used in a transport business. Indeed, this was not denied. Mr Hunter was seeking to protect his business interests in keeping the trucks under his eye at night. These are large and valuable vehicles.

48. I do not consider that garaging two trucks at once on the subject land, even if the motivation for doing so is only by way of garaging them securely, is within the normal scope of a residential use. The garaging of the trucks is related to the transport business, not the residential use. Within the definition of "ancillary use", garaging of one truck overnight could be acceptable, as it could be parked in the driveway beside and to the rear of the house, so as not to dominate the subject land, and was operated so that noise and fumes did not give rise to complaints. But to have a second truck parked in the setback in front of the house, and to have it jump the kerb at a school crossing to enable it to do so, as well as having a truck parked in the drive, would leave the trucks dominating the whole front of the subject land, both visually and in terms of space occupied, as shown in the photographs tendered by Mr Cullis. The front part of the subject land becomes a truck parking area, instead of a setback to a dwelling, when this occurs.

49. Loading and unloading of either truck, or from one truck to another, would also be a non-residential use outside the scope of what could be regarded as ancillary to the use of the dwelling. The activity, space occupied and noise, especially if a forklift was used, would exceed what was allowable as "subservient or subordinate" to the residential use.

50. Do the activities described in Mr Cullis' evidence amount to use as a "transport depot" as defined? Once more than one vehicles used for carrying goods for hire or reward is shown to be regularly garaged there, unless the activity is ancillary to another use of the subject land, the definition of a "transport depot" is met. Mr Cullis referred to City of Heidelberg and City of Preston v Grollo Group Ltd (1990) 5 AATR 213, where it was accepted that the garaging of transport vehicles used in the business was ancillary to the primary use of "concrete batching plant". But the only dominant use at the subject land in the present case is that of a dwelling, and the trucks are clearly used in the respondent company's transport business, not for residential purposes. I therefore conclude that the subject land has been used for the purpose of a transport depot, to the extent that the activities are not part of a "home occupation" as defined in the Planning Scheme. The Council has established that a contravention of the Planning Scheme has occurred.

51. The question of where the transport business of Hunter Transport Pty Ltd is carried on did not arise directly. Possibly, if carried on at the subject land within defined limits, it could meet the test of a "Home occupation" as defined in the Planning Scheme. Mr Hunter did not raise this issue; Mr Cullis did so, to ensure that a possible alternative characterisation of the use was not overlooked. Because a company is involved, only one other person, being a resident of the dwelling, could take part in the business within the limits of "Home occupation". So long as it does not cause any nuisance to persons or neighbouring properties, and all materials are within buildings, it would otherwise only have to pass the test of the 50 square metres area limitation to comply_._ With two trucks parked in the open, and sometimes goods stored there, it seems unlikely that the area limit could be met. But the criteria of the definition are useful for consideration in determining what is acceptable on the subject land within the limits of a predominantly residential use that does not require a permit.

52. The terms of the order sought indicate that Council does not intend to exclude or reduce the lawful operation of a "home occupation" within Clause 606, if the respondents do in fact operate the Hunter Transport business from the dwelling.

53. The zone purpose does not seek to exclude all commercial activities. It does, however, seek to limit commercial activities conducted from a residence to those that will not cause a nuisance to adjoining residents. This contrasts with the general run of "Residential" zones in the metropolitan area, which do not include the "home business" concept in their purposes at all. The evidence of "nuisance" before me is confined to second hand, being complaints referred to by Mr Cullis, except with respect to the visual impact of the trucks and industrial pallets and the like demonstrated by the photographs, which Mr Cullis had seen for himself. On the other hand, letters of acceptance and support were provided by the respondents. I conclude that the fair and reasonable course is to seek to limit the respondents' activities so that the use of the subject land is equivalent to what is authorised under Clause 606 in the case of a "home occupation" rather than to require that all vehicles, goods and equipment associated with the transport business should be removed.

54. Because of the evidence of support from neighbours in the practical sense of allowing the Hunter Transport trucks to be parked nearby on other residential properties instead of on the subject land, I have been reluctant to make an order that would result in this spread of activity. It would involve others in a transport business activity having nothing to do with their own residential uses, and raises the new question of whether garaging the trucks for the respondents could be considered an ancillary use at each other property, or whether it raises more problems than it solves. I also doubt whether even a friendly neighbour is a realistic long term prospect for alternative garaging of a truck. I have hoped that a generous period during which to reflect on his position and improve the Industrial park depot will have allowed Mr Hunter to work out a better alternative.

55. After considering all the material put forward by both parties, including the evidence of the close proximity of the subject land to the Industrial zone, the non-residential nature of some of the neighbouring uses, the letters of support to Mr Hunter, the evidence of intention to comply shown by the purchase of the depot site after the Council notified Mr Hunter of the allegations and the apparent non-compliance of aspects of the use, and also the fact that the main complainant has moved away, I have reached the conclusion that I cannot achieve anything by leaving open the possibility that two commercial vehicles at once could be parked in the driveway and round the back. If there was room to do that, I am sure Mr Hunter would have done that rather than park a second truck in defined tracks across the front garden. However, I will leave the respondents a further generous period to make other arrangements for the second truck, which hopefully will not include having it move to someone else's drive overnight.

56. To balance the length of the period somewhat, I will insert a time limit to operate in the second half of the period so that during most of the day, a maximum of one truck should be present on site.

57. If the new VPP format Planning Scheme comes into force in the form anticipated by Mr Cullis, the activity of garaging two trucks used in the transport business would not by itself meet the new definition of a "transport terminal", which is about primarily about assembly and distribution of goods or passengers. The parking of goods in connection with such a business becomes a "vehicle store". It would not be prohibited in the zone. I have taken the future possibility of a permit application into account, and consider that Mr Cullis is right in his tentatively expressed view that it unlikely that a permit would be granted, if it was proposed to store a second vehicle in the presently defined tracks in the front garden by the school crossing.

58. In terms of the amended text of the order sought by the Council, there are several general elements which I do not propose to adopt in the terms proposed. Most items relate to specific activities which have been observed at the subject land, as shown by the evidence, and which are outside the scope of residential use, and I will trim the wording to relate more closely to the aspects that are relevant to the "transport depot" use. I note that no allegation has been made that Hunter Transport carries people for hire or reward, so that it is use of vehicles for the carriage of goods for hire or reward that constitutes the offending element. "Persons" have been included as an alternative in two draft orders, but I will not include in the orders this rather different alternative that has not been the subject of any evidence.

59. Because some storage of goods within buildings would be allowable at the subject land if the respondents were found to be carrying on a home occupation there, I consider that I should take into account the evidence that relatively small amounts of goods have been found at the subject land, and limit the order to preventing storage of goods in the open.

60. An order to ban storage of "equipment" is too wide. I assume from the context of "goods, equipment or parts of vehicles" that it is equipment used in repair or maintenance of commercial vehicles that is intended. Under Clause 606, a "home occupation" must exclude repair and maintenance of vehicles other than "vehicles owned by the residents of the dwelling for their own use". I take this to mean for the private use of the residents, not for their use in the business. Because it is the respondent company that owns the commercially registered vehicles, I do not think that the "home occupation" clause assists Mr Hunter in relation to vehicle parts and repairs. A vehicle owned by Hunter Transport Pty Ltd is not owned by a resident of the dwelling, even though the subject land is the registered office of the company. The company cannot either reside in the dwelling or have a private use of a vehicle, as opposed to using it for the company's purposes.

61. I will insert limitations so that equipment and parts used for private vehicles and stored inside a building are not included in the order.

62. Although the loading and unloading of goods has not been shown to have occurred at the subject land since 1 May 1998, I will make the order regarding this item as requested, as the activity has occurred in the past, and there should be no doubt that this is an aspect of the use that is not acceptable in this zone unless wholly contained within a building in the case of land lawfully used for the purpose of Home occupation. It has not been suggested that loading or unloading ever took place within a building at the subject land.

63. It is noted that garaging of vehicles used in the business is not directly prohibited in Clause 606, in the same way that repair and maintenance are. The limitations on accommodation of vehicles come from the area limitation on the use, and the requirement that the Home occupation must be carried on within a "building", which means "one or more buildings" in relation to the area limitation.

64. I accept that the following are activities that should be discontinued at the subject land in order to comply with the zone requirements:

* Loading or unloading of goods carried for hire or reward.

* Storage, garaging, repair or use of a forklift truck.

* Mechanical or other repairs to vehicles used for carrying goods for hire or reward.

"No vehicle entering or leaving the site shall cause nuisance to persons or neighbouring properties by reason of noise, dust, fumes or any other cause."

66. This is too wide in that "vehicles owned by the residents of the dwelling for their own use" would be included within it.

67. No-one is free to commit a nuisance; but Clause 606 picks out for express mention "any nuisance to persons or neighbouring properties". I do not think it would be proper to make an order that was completely general, in this way; and there is no evidence of any current complaint of a particular form of nuisance. If a nuisance within these terms is caused, the respondents place themselves outside the protection of Clause 606.

68. The Application is therefore allowed in part, and the orders sought are granted, with variations to reflect the matters discussed above.