VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P145/2023
Permit Application no.T220221 	

Applicant	Muley Investments Pty Ltd	

Responsible Authority	Cardinia Shire Council	
Referral Authority	Melbourne Water	

SUBJECT LAND	205 Seven Mile Road
NAR NAR GOON VIC 3812	

HEARING TYPE	Hearing	

DATE OF HEARING	3 August 2023	

DATE OF ORDER	15 November 2023	

CITATION	Muley Investments Pty Ltd v Cardinia SC [2023] VCAT 1268	

Order
No permit granted
1	In application P145/2023 the decision of the responsible authority is affirmed.
2	In planning permit application T220221 no permit is granted.

Peter Gaschk
Member			

Appearances
For Muley Investments Pty Ltd:	Phil Walton, Town Planner of XWB Consulting
	
For Cardinia Shire Council:	Daren Wong, Lawyer of Planology
	
For Melbourne Water:	No appearance	

Information
Description of proposal	To develop and use the land at 205 Seven Mile Road, Nar Nar Goon (‘review site’) for a Contractor’s Depot (retrospective application).  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Cardinia Planning Scheme (‘Scheme’)	
Zone and overlays	Green Wedge Zone, Schedule 1 (‘GWZ1’)
Land Subject to Inundation Overlay (‘LSIO’)	
Permit requirements	Clause 35.04-1: To use the land for a Contractor’s Depot.
Clause 35.04-5: To construct a building or to construct or carry out works associated with a Section 2 Use of clause 35.04-1.
Clause 44.04-2: To construct a building or to construct or carry out works. 	
Key Scheme policies and provisions	Clauses 11.01-1R, 13.03-1S, 14.01-1S, 14.01-1R, 18.02-4S, 21.01-3, 21.02, 21.03-5, 21.04-2, 22.05, 35.04, 44.04, 51.02, 65.01, 66 and 71.02.   	
Land description	The review site is approximately 8 hectares in area, located on the north eastern corner of McCraws Road and Seven Mile Road.  It has a 248.1m frontage to Seven Mile Road and 382.7m side boundary to McCraws Road.
Seven Mile Road is a Transport Zone, Category 3 (TRZ3) (local arterial road) with sealed pavement and shoulders, a width of approximately 8.4m and open swale, table drains.  The road has a 100kph speed restriction.  McCraws Road is a local road, with gravel pavement approximately 6.5m in width, with open swale table drains.
The topography of the review site and wider surrounds is flat.  
The key characteristic of the surrounding area is a mix of broadacre farming and grazing activities.  A large chicken breeding establishment is located further along McCraws Road.  This property includes large breeding sheds scattered over the property, with supporting infrastructure.  Two broiler farms are also located along McCraws Road further to the east.
The review site contains a mix of grazing land, and scattered perimeter vegetation, including canopy trees.  The site is sectioned into fenced paddocks, with the eastern section used for some cattle grazing and agistment.  The contractor’s depot is separately fenced and has been established in the south west portion of the site.  This area contains an existing vacant dwelling (north western corner) with several associated outbuildings.
To the north, abutting the review site at 195 Seven Mile Road, is a 4,046sqm parcel of land that contains an existing dwelling with outbuildings and some perimeter canopy vegetation.  Abutting the eastern boundary at 155 Seven Mile Road is a large mixed farming and grazing property.  Further south at 275 Seven Mile Road is another large mixed farming and grazing property.  
Rural residential properties are in Latta Road on the edge of the Nar Nar Goon Township, approximately 950m to the north.  More established residential areas are located within the Nar Nar Goon Township approximately 1.6km to the north.	
Tribunal inspection	Unaccompanied on 29 September 2023   	

  Reasons
What is this proceeding about?
1	This is an application for a review under section 77 of the Planning and Environment Act 1987 (Vic) (‘the Planning Act’) of the Cardinia Shire Council’s (‘council’) refusal to grant a permit for the use of the review site as a contractor’s depot.
2	The council’s submission sets out that previous planning compliance investigations undertaken in 2021, led to the making of the planning application that is now the subject of this review proceeding. 
3	At the outset, it is important to point out that my role in this section 77 review is not to address any submissions regarding planning compliance or enforcement proceedings under the Planning Act.  These are not matters before me in this proceeding.  
4	My role is to consider if the permit application made for the use of a contractors’ depot on the review site is acceptable having regard to the relevant policies and provisions of the Scheme.  I agree that the applicant should neither be rewarded nor punished for undertaking the use/development without a permit.
5	My assessment therefore proceeds on the basis that the proposal is to establish a ‘new’ use on the land in accordance with the GWZ1 provisions that apply to the review site.  
6	However, consistent with the observations in the above case, I acknowledge that existence of the development and use assists in an understanding of the key issues in this proceeding.  
Council’s Refusal Grounds
7	Council refused a permit on the following grounds.
•	The proposal is contrary to the strategic directions of Planning Policy Framework and Local Planning Policy Framework, including Clauses 14.01-1S - Protection of agricultural land, 21.04-2 - Agriculture and 22.05 - Western Port Green Wedge Policy.
•	The proposal is inconsistent with relevant purposes and Decision Guidelines of the Green Wedge Zone - Schedule 1.
•	The proposed use would result in unreasonably impacts on the amenity of the surrounding area.
8	The applicant contests these grounds on the following basis, as detailed in its Statement of Grounds.
•	A contractor’s depot is an appropriate use within a Green Wedge Zone.
•	The proposed use is not detrimental to the agricultural use of the land or land in the surrounding area.
•	The proposed use will not unreasonably impact on the amenity of the area.
The proposal
9	The following extract describes the proposal taken from the applicant’s written submission.  Council did not contest this description.
•	Jarrcon and Earthcut are contractors providing excavation, earthmoving and concreting services. Services provided include earthworks for rural properties (driveways, dams, horse arenas, levelling etc) and earthworks and concreting for house sites in both urban and rural areas. Approximately 30% to 35% of work undertaken is in rural areas. The depot will comprise:
•	Storage of trucks and equipment
•	Storage of materials (sand, screenings, topsoil)
•	Office (portable building)
•	Workshop (previously approved machinery shed)
•	Jarrcon and Earthcut currently operates 15 trucks, 15 trailers and 10 excavators which would be housed on site as part of the depot. The excavators are transported to site on trailers towed by trucks. Equipment may be left on work sites during the course of a project. In addition, employees cars would be parked on site during the day.
•	There are currently 25 employees who operate from the site all of whom are non-resident. The normal hours of operation for the depot is from 6am to 4pm Monday to Friday.
10	A site layout was also proved in the applicant’s submission.  This is also provided below for context.

Figure 1: Site Plan – Source: Applicant’s written submission
11	Photographs provided by the parties also confirmed that some grazing/cattle agistment occurs to the east of the proposed contractor’s depot area.  
12	For completeness, I note council’s written submission indicates the larger ‘workshop building’ shown in Figure 1 above, was approved by council on 1 July 2019.  Council issued Planning Permit T190322 for an ‘outbuilding’ (‘Planning Permit’).  
13	I note the Planning Permit contained the following condition:
8. The building may only be used for the storage of vehicles and goods for domestic purposes, or purposes related to rural activities being carried out on the property. The building may not be used for human habitation or for any business except in accordance with the Home Based Business provisions of the planning scheme.
14	Council submits the outbuilding is currently being used as a ‘truck workshop’ in contravention of condition 8 on the Outbuilding Permit.  It also submits the ‘office building’ (along with some other buildings and works including earth mounding along the McCraws Road side boundary) were constructed/undertaken on the subject land, sometime between 2020 and 2021, without relevant planning permission.
15	Again, I point out the sole purpose of this review proceeding is not to address any potential compliance or enforcement proceedings.  My attention and considerations are solely directed to the merits of the proposal on the review site alone, as I have described above.
What is the decision making context?
16	A planning permit is required for the use in accordance with the relevant provisions of GWZ1 that applies to the land.  This is not disputed by the parties.
17	Key purposes in the GWZ1 are set out below.
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To provide for the use of land for agriculture.
•	To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.
•	To encourage use and development that is consistent with sustainable land management practices.
•	To encourage sustainable farming activities and provide opportunity for a variety of productive agricultural uses.
•	To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.
•	To protect and enhance the biodiversity of the area.
18	I note there is policy emphasis on the use of land in the GWZ for agricultural purposes and protection of its environmental attributes.  
19	This policy emphasis is observed in the Decision Guidelines at clause 35.04-6 of the GWZ.  These include:
•	The capability of the land to accommodate the proposed use or development.
•	How the use or development relates to rural land use, rural diversification, natural resource management, natural or cultural heritage management, recreation, or tourism.
•	Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
•	Whether the use or development is essential to the health, safety or well-being of the State or area but is not appropriate to locate in an urban area because of the effect it may have on existing or proposed urban areas or the effect that existing or proposed urban areas may have on the proposed use or development.
20	Under the heading ‘Rural Issues’, the Decision Guidelines also address the following matters.
•	The maintenance of agricultural production and the impact on the rural economy.
•	The environmental capacity of the site to sustain the rural enterprise.
•	The need to prepare an integrated land management plan.
•	The impact on the existing and proposed rural infrastructure.
•	The potential for the future expansion of the use or development and the impact of this on adjoining and nearby agriculture and other land uses.
•	The protection and retention of land for future sustainable agricultural activities.
21	Under the heading ‘Environmental Issues’, the following guidelines are also included.
•	How the use or development relates to sustainable land management and the need to prepare an integrated land management plan.
•	The location of on-site effluent disposal areas to minimise impact of nutrient loads on waterways and native vegetation.
Planning Policy Framework
22	Various clauses contained in the Planning Policy Framework (‘PPF’) of the Scheme are relevant to this matter.
23	Clause 11.01-1R seeks to maintain a permanent urban growth boundary around Melbourne to create a more consolidated, sustainable city and protect the values of non-urban land. 
24	Clauses 14.01-1S and 14.01R further highlight and focus protection and enhancement of productive agricultural land in the GWZ.
25	Clauses 13.03-1S (Floodplain Management) 17.01-S (Diversified Economies) and 18.02-4S (Roads) are also relevant policy settings to this proposal.  
26	Clause 13.0-1S seeks to assist the protection of life, property, and community infrastructure from flood hazard, including coastal inundation, riverine and overland flows.  Consideration is also required of the natural flood carrying capacity of floodways and the flood storage function of floodplains and waterways.
27	Clause 17.01-1S seeks to strengthen and diversify the economy, including at the local level.  Relevant strategies include:
•	Facilitate growth in a range of employment sectors, including health, education, retail, tourism, knowledge industries and professional and technical services based on the emerging and existing strengths of each region.
•	Improve access to jobs closer to where people live.
•	Support rural economies to grow and diversify.
28	I note local policy at 21.04-1 also identifies that economic development is critical to the overall wellbeing of the Shire.
29	Clause 18.02-4S seeks to facilitate an efficient and safe road network that integrates all movement networks and makes best use of existing infrastructure.
Local Planning Policy Framework
30	Clause 21.04-2 also seeks to protect agricultural land, particularly areas of high quality soils, from the intrusion of urban uses, inappropriate development and fragmentation which would lead to a reduction in agricultural viability, the erosion of the right of farmers to farm land, and the loss of land from agricultural production.  I note the ‘Land Capability for Agriculture’ map in the clause identifies the review site as having ‘good’ agricultural significance.
31	Clause 22.05 is a local policy that gives effect to the ‘Western Port Green Wedge Management Plan (‘WGWMP”) which also applies to the review site.  The following vision statement extracted from the WGWMP is instructive.
The Cardinia Western Port Green Wedge will be a permanent green and rural area. It will remain an internationally significant biodiversity habitat, while also strengthening its agricultural and horticultural [sic] role to become a truly innovative and productive farming district. Agriculture, horticulture and soil based food production for the long-term food security of Victoria is at the heart of this vision.
Best practice integrated water management will lead to improved water quality and a reduced risk of flooding with improved ecological conditions in Western Port Bay and local biodiversity will be protected, as will habitats for threatened species.
The Green Wedge will be home to small, clearly defined settlements that have a strong identity, provide jobs and services for the local community and support the agricultural and horticultural pursuits of the green wedge.
The local economy will be driven by its agriculture, horticulture and extractive industry. The Cardinia Western Port Green Wedge provides the opportunity to accommodate a further third airport to serve the long term needs of the South East Melbourne and Gippsland as identified in Plan Melbourne.
The Cardinia Western Port Green Wedge will be the permanent edge to Melbourne’s southeast.
This policy builds on the vision, objectives, strategies and actions of the Cardinia Western Port Green Wedge Management Plan (May 2016) and will guide decision making by implementing the findings of the management plan which details a strategic approach to the management and protection of the Cardinia Western Port Green Wedge.
(Tribunal emphasis added)
32	Clause 21.04-2 further supports the primary agricultural production strategies sought through this vision statement as follows.
•	To ensure that land uses are carefully located and managed to be consistent with the vision for the Cardinia Western Port Green Wedge.
•	To provide clear guidance on appropriate tourism industries and their location.
•	To provide guidance and clear direction for preferred land uses for each of the 3 precincts.
33	The review site is in Precinct 3 (Railway Precinct) of the WGWMP area as expressed in the above clause.  Precinct 3 seeks to provide an effective ‘land use transition’ between urban townships and Green Wedge land.  In this case this would apply to the designated Nar Nar Goon Township area and the rural hinterland surrounding the township boundary.  
34	The applicant highlighted that the review site is in Precinct 3 which is located outside the area nominated as having ‘high’ agricultural significance.  I make further comment on this in my findings below.
35	However, the vision for Precinct 3 highlights the specific nature and intent of the land use transition outcomes sought for new land use and development proposed in Precinct 3 as follows.
The railway precinct will provide a sensitive transition from urban townships to green wedge land, assist in protecting land that is of agricultural, landscape, environmental and biodiversity significance and will continue to support the Pakenham Racing Club’s Tynong Racecourse. This precinct will seek to ensure that UGBs are defensible in the long term and that there is a clear edge to metropolitan growth.
Any intensification of the development pattern of the townships that exist within the precinct, or expansion of their boundaries must be strategically justified and be proven to not detrimentally impact the surrounding Precinct 1 or the environmentally sensitive environment of the Cardinia Western Port Green Wedge.
36	Council submits the Western Port Green Wedge policy at clause 22.05 is also relevant.  I agree.  As well as encouraging non-soil based agricultural use and retention of the character of the precinct, this policy includes the following strategies.
•	Encourage non-soil based agricultural uses.
•	Retain the rural character of the precinct.
•	Protect the values and assets of the green wedge by preventing further encroachment of urban development into the Western Port Green Wedge.
•	Ensure that appropriate land use zones are applied at the edge of townships that ensure a low density/rural transition to the surrounding green wedge land.
•	Encourage and support the use of the precinct for agriculture and biodiversity to ensure that land use is compatible with the adjacent Precinct 1.
37	Clause 51.02 addresses Metropolitan Green Wedge Land: Core Planning Provisions.  Like the policy I have outlined above, key objectives for the designated green wedge areas at clause 51.02 include the following:
•	To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, cultural heritage, conservation, landscape natural resource or recreation values.
•	To protect productive agricultural land from incompatible uses and development.
•	To ensure that the scale of use is compatible with the non-urban character of metropolitan green wedge land.
•	To encourage the location of urban activities in urban areas.
•	To provide deeming provisions for metropolitan green wedge land.
Land Subject to Inundation Overlay
38	The review site is also partly subject (along the McCraw Road side boundary) to the Land Subject to Inundation Overlay (LSIO).  Relevant Decision Guidelines include.
•	Any comments from the relevant floodplain management authority.
•	The existing use and development of the land.
•	Whether the proposed use or development could be located on flood-free land or land with a lesser flood hazard outside this overlay.
•	Alternative design or flood proofing responses.
•	The susceptibility of the development to flooding and flood damage.
•	The potential flood risk to life, health and safety associated with the development.
(Tribunal emphasis added)
39	I note the application was referred to Melbourne Water as the relevant flood plain management authority.  Melbourne Water did not object to the proposal.  It noted the works are located on higher ground and not subject to flooding from Melbourne Water’s system.
What are the key issues?
40	Based on the submissions and supporting material provided by the parties, I consider there are two key questions I need to determine:
•	Is the proposed use compatible with the site’s zone and context?
•	Is the use likely to result in any unreasonable amenity impacts?
41	Having considered the submissions of the parties, I find the review site is not an appropriate location for the use.  As detailed earlier, the Scheme’s policies call for the ongoing protection of productive agricultural land in this locality.
42	I find the scale and size of the contractor’s depot is not consistent with the agricultural policy outcomes and GWZ purposes I have referred to above.  I therefore agree with council that the proposal is contrary to the strategic directions of Clauses 14.01-1S, 21.04-2, and 22.05 and is inconsistent with relevant purposes and Decision Guidelines of the GWZ1.
Key issues
Is the proposed use compatible with the site’s zone and context?
43	The applicant submits council has ‘largely formed a view’ that a contractor’s depot is an ‘industrial use’ which is not suited to an agricultural area.  The applicant does not agree with this view and notes the proposal is not prohibited within the GWZ1.  It says a contractor’s depot is an unspecified use in the GWZ1 and falls under Section 2 of the Table of Uses in the zone. 
44	The applicant says the services provided by the applicant ‘includes earthworks for rural properties (driveways, dams, horse arenas, levelling etc) and earthworks and concreting for house sites in both urban and rural areas.’  The applicant therefore considers the proposed contractor’s depot business supports rural activities within the green wedge.  It further notes securing a site large enough for the proposal within the existing urban area ‘is almost impossible’ due to land requirements and costs.
45	The applicant also highlighted the contractor’s depot occupies approximately 25% of the site area, with the balance of the 8.0ha site still available for grazing purposes.  
46	The applicant also notes the Nar Nar Goon area contains other non-agricultural uses within the GWZ1.  It detailed various sites in its written submission, including:
•	Depot/mechanical repairs at 110 Seven Mile Road; 
•	Transport depot on land at the corner of Nar Nar Goon and Longwarry Roads;
•	Road Safety barrier depot at 69 Nar Nar Goon Road;
•	Chairo Christian College, Bald Hill Road Nar Nar Goon;
•	Urban Resource Management Clean Fill Disposal Site – Five Mile Road Nar Nar Goon; and
•	Pakenham East Train Depot – Oakview Lane Nar Nar Goon. 
47	Based on this information the applicant submits ‘the area is not exclusively an agricultural area but contains a mix of land uses/activities.
48	I accept the applicant’s submissions that other Tribunals have supported the proposition that a contractor’s depot is a use that can be considered for planning permit approval in the GWZ1.   
49	However, Scheme settings also require consideration of any relevant planning context and permits that would enable a fair comparison of these uses to the proposal before me.  This was not provided to me.  
50	I also noted from my site visit that the review site is immediately surrounded by broadacre agricultural/rural based land use and activities.  The council also described the immediate land use setting around the review site as ‘open rural setting’.  I agree with this description.  
51	Council also submitted that each use in the GWZ1 must be considered on its merits and that many of the land uses referred to by the applicant, appeared to have been established before the introduction of local policy addressing the Western Port Green Wedge at clause 22.05.  I agree with council that each application must be considered on its merits.  This is the approach I have applied to this matter.  For these reasons I cannot give any weight to this part of the applicant’s submission.    
52	The applicant also notes the review site is not in Precinct 1 of the WGWMP.  It notes Precinct 1 is identified as having ‘high quality agricultural’ land.  The applicant says the review site cannot be considered as ‘productive agricultural land of strategic significance’ as it is not located in Precinct 1.  Additionally, the applicant also says the proposal ‘does not threaten or infringe on surrounding agricultural activities.’  It says if the review site was in Precinct 1, ‘then the planning outcomes may have been different’.
53	I do not agree with the applicant’s proposition regarding Precinct 1 being the only precinct containing high quality agricultural land for the following reasons.
My Findings
54	Council’s submission highlighted that the review site has an agricultural significance designation as ‘good’ expressed in clause 21.04.  I note this is the second highest rating expressed within the four tier rating shown in the Land Capability for Agriculture map under clause 21.04-2.  No contrary agricultural evidence was put to me that established the specific soil and agricultural capacity of the review site did not rate as ‘good.’  
55	The applicant sought to rely on the fact the review site is not located in Precinct 1, where high quality agricultural land has been identified.  However, I have not been persuaded by this submission.  Particularly given the review site is identified in the second highest ‘significant agricultural rating’ expressed in clause 21.04-2.  I take this to support council’s view that the review site retains ‘good’ potential for ongoing agricultural production.  In the absence of any contrary and tested evidence I have placed weight on this in my findings.  
56	Policy settings that apply to the GWZ1 clearly dictate that Green Wedge soils, including their importance to ongoing agricultural production as a ‘finite resource,’ should take primacy in future land use planning within green wedge areas.  I agree.
57	It is also relevant, that any proposed transition of non-agricultural land uses into Green Wedge land around townships, as is proposed here, should be carefully managed to ensure ongoing encroachment of inappropriate uses is avoided and agricultural protection continues in these GWZ1 areas. 
58	While I accept that agricultural use of land has its own impacts, I find this impact is markedly different and less intrusive from what is proposed for this site.  I agree with council that the proposal of the contractor’s depot on the review site ‘is not a use that treads lightly on the Subject Land such that an argument could be made that the land could easily revert back to agricultural purposes in the future.’  
59	This proposal is a very large scale contractors’ depot.  This is clear from the applicant’s own description of the proposal, which identifies the site may have up to 15 trucks, 15 trailers and 10 excavators, all of which would be housed on the review site at various times, as part of the depot activities.  The business also employs up to 25 staff who leave their vehicles on the site to attend other projects they are allocated by the business.  
60	This number of trucks, machinery and staff numbers results in regular movement of people and vehicles to and from the site, combined with other vehicle and machinery movements occurring on and around the site.  The business also requires the ongoing storage and servicing of contractors’ equipment, consisting of large, articulated vehicles, often loaded with heavy equipment on trailers.   Larger vehicles are also moved into the truck wash to maintain the cleanliness of trucks and machinery.  I find these are significant activities on the site that are not directly linked with ongoing agricultural use of the land.  The scale and size of the proposed contractor’s depot will bring what I consider to be a more ‘urbanised setting’ to the physical condition and setting of this land in the GWZ1.  
61	I find the scale and intensity of this proposal on a confined area of the review site is markedly different to the general agricultural use of land contemplated under the policies and zone purposes noted above.  The business is by the applicant’s own submission, a ‘regional-based earthmoving and civil construction company’.
62	I accept the business may have undertaken some servicing of local farms in the form of vehicle accessways and the like from time to time.  However, I was not provided with any specific or tested data to support this statement or indicate the percentage of such work.  Nevertheless, I find on the material provided by the applicant, the bulk of its business is in civil contracting undertaken in a broader regional catchment.  For these reasons I have not been persuaded this is a small and contained contractor’s depot operation on this land that would leave a small footprint or impression on the subject land. 
63	The applicant also submits that much of its equipment is usually stored at other projects off-site, rather than on the review site.  While I accept this scenario may apply from time to time, I have not been persuaded there is an overarching need for such a large contractor’s depot to be located on this specific GWZ1 site.
64	While I also acknowledge the applicant is using part of the site for some cattle agistment, I find this is relatively low intensity in comparison to the proposed contractor’s depot I have described above.  
65	In my view, the current scale of grazing and agistment is not the primary use of the land in question.  Additionally, the applicant has not indicated the contractor’s depot is a temporary feature on this land and that agricultural grazing and agistment is to be enhanced into the future.  In any event, the extent and scale of infrastructure that forms part of the proposal would suggest the contractor’s depot is likely to remain the ongoing primary purpose of the land.
66	I have also not been persuaded that the loss of some 2.0ha of ‘good’ agricultural land is justified or necessary on this land to provide for the large scale non-agricultural land use as proposed.  This is particularly so given the context and physical agricultural character of surrounding land.  
67	I also agree with council that any loss of ‘good’ agricultural land in this location, must be considered and assessed in the context of ‘cumulative impacts’ that may arise on surrounding GWZ1 land.  It is this potential incremental ‘urban’ creep of non-agricultural land uses into the Green Wedge areas that the GWZ1 purposes and associated policy seek to avoid. 
68	I accept that some economic benefits could be expected to flow from the use through local employment opportunities.  However, this outcome must be weighed against the GWZ1 purposes and the weight of State and local policy that seeks to protect agricultural production and ongoing opportunities within the Green Wedge areas.  
69	I find the proposal is of an inappropriate and excessive scale and size and is inconsistent with the planning outcomes sought under clauses 14.01-1S, 21.04-2, 22.05 and 51.02 of the Scheme.  The proposal has not achieved a satisfactory planning outcome and land use balance that is sought by the relevant purposes and Decision Guidelines of the GWZ1.
70	While I accept the applicant is seeking to locate and operate a successful contractor’s depot in this locale as it offers a larger parcel of land, the planning outcomes sought under the GWZ1 and associated policies I have outlined above, do not support the encroachment of this scale of non-agricultural use on the review site.
Is the use likely to result in any unreasonable amenity impacts? 
71	Council submits the proposal will result in unreasonable amenity impacts off the site.  It submits the following features of the proposal on the review site are a reflection of these concerns.
•	High and solid boundary fencing which is in stark contrast to the open landscape with low and visually permeable fencing. 
•	Large hard stand areas for access and turning areas, extensive areas for the storage of materials and large piles of fill, stands in stark contrast to the open green paddocks that surround the review site.
•	High number of heavy vehicle movements throughout the day and operation of various machinery on the site. 
•	Significant dust impacts from accessways, turning areas and parking areas are not sealed. Odours arising from burning materials on site.
•	High number of truck movements along McCraws Road causing damage to the road which is used by a few legitimate agricultural enterprises to the east.
72	The applicant does not agree with this submission and says the proposal does not threaten or infringe on surrounding agricultural activities.  The applicant considers the proposal will not result in ‘above normal amenity impacts in a working rural area’.  
73	The applicant also notes the proposal would be located on a sealed road that already carries significant heavy and rural vehicles.  It provided some vehicle swept paths as part of its submission that demonstrated that heavy vehicles could enter from Seven Mile Road and leave the site by McCraws Road.  
74	The applicant also notes the nearest dwellings (other than those owned by the applicant) are over 500m from the review site.  It says the site is also well screened by the existing boundary fencing and canopy tree planting along Seven Mile Road, combined with screen mounding along McCraws Road that could be landscaped.  
75	The applicant also considers the scale of buildings on the site are consistent with larger rural type buildings established in the area.  
76	It further submits there is no evidence to suggest that flooding will result from the contractor’s depot.  However, if this use were supported on the review site, the applicant would accept a permit condition requiring preparation of a stormwater management plan.
My Findings
77	Given my determinative finding above that proposed use is not compatible with the site’s zone purposes and supporting policy settings under the Scheme, it is not necessary to make specific findings on the submissions addressing amenity impacts.
78	However, I would make the observation that dust and noise concerns, if clearly identified and able to be sourced/contained on site, are usually matters that can be appropriately addressed by planning permit conditions.  Nevertheless, I also accept council’s concerns that these are matters directly linked to the scale and size of the operations proposed on the site.  I have already made findings regarding the impacts arising from the scale and size of the proposal.
79	I agree with the applicant that the scale of buildings on the site is not out of keeping with other similar-sized rural type buildings I observed in the area.  I do not consider this is a matter that would be fatal to the application.
80	Regarding flooding and stormwater matters, I note that the relevant referral authority did not object to the proposal.  
81	Nevertheless, I noted during the hearing that council raised concerns that ‘new’ earth mounding appeared to have been undertaken on the site along the McCraw side boundary.  It submitted this may have occurred after Melbourne Water’s comments had been sought and received.  
82	The applicant advised that further comments had not been sought from Melbourne Water regarding these works and suggested they may be outside the boundaries of the LSIO that applied to the site.  However, the applicant was unable to verify this situation by survey plan.  
83	Given my decision to refuse a permit for other reasons, I do not make any findings in relation to these issues.  There is no utility in doing so.
Conclusion
84	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Peter Gaschk
Member