Enforcement Officers Conference

Enforcement Officers Conference The matter we will talk about this morning concerns a cattle feedlot in western Victoria. This example highlights the complex interplay of a variety of issues including: 1. Existing use rights; a) entrenchment of non-conforming uses; b) Codes of Practice; c) buildings and works; d) imposing use conditions; 2. Nuisance under the Public Health and Wellbeing Act 2008 (PHW Act); 3. Ancillary activities; 4. EPA Works approval. These complicating factors created a difficult problem for Council and for the land owner and the interaction of these issues could occur in any enforcement matter, not just in a regional environment. The basic facts were as follows. The land had existing use rights for the purpose of a cattle feedlot. The land owner had increased the intensity of use and raised the number of cattle from 500 to 2,000. The land owner was creating compost with the manure from the feedlot and adding materials to the compost in order to produce a better product. The land owner claimed that this was an activity that was ancillary to the use and included in the existing use rights. The amenity impacts (in the Farming Zone) were considerable for nearby land owners including noise, dust and odour. There were a variety of buildings and works constructed and undertaken on the land for which permission would be required for a Section 2 or Section 3 use where existing use rights are claimed. The neighbours agitated Council to issue an improvement notice pursuant to the PHW Act and initiate enforcement action in relation to the composting use. Existing Use Rights As in many enforcement matters, the respondent claimed that the land enjoyed existing use rights. In a general sense, this was not disputed the respondents had used the land for the purpose of a cattle feedlot for approximately 20 years. However, the initial question for us and our client was determining the scope of the rights and the consequences for Council in addressing the amenity impacts of the use. Entrenchment A non-conforming use, relying on existing use rights, is a planning anomaly, albeit a lawfully sanctioned anomaly. It is a prohibited use that is only allowed to continue because it would be inequitable to change a zone without compensation to the persons affected and to deprive them of a long established business or other use. Generally, the non-conforming use should not become entrenched or enlarged and, as a matter of principle, and where possible and appropriate, a nonconforming use should be phased out over time with the land brought into conformity with the intent and purpose of the zone. The principle of avoiding entrenchment of a non-conforming use is not necessarily one of over-riding application. It is a desirable planning objective that must be balanced with an acknowledgement of the existing use rights, and the opportunity to lawfully intensify that use over time provided the use is for the same purpose. M21104208F06473480.docx\P.1 - S.1\P:18/12/15 3:56 3jmh <<2871>>

2 Some non-conforming uses are benign, where it may be unnecessary to deal with an issue of entrenchment. Others have material off-site amenity impacts where the issue of entrenchment, and the potential for phasing out the non-conforming use over time, may be a significant issue. Between these extremes, there may be others where the issues can be addressed through appropriate conditions linked to a permit for buildings and works. Incorporated document Victorian Cattle Feedlot Code of Practice In the Farming Zone a cattle feedlot is a Section 1 use provided it meets a series of conditions including: Must meet the requirements of clause 52.26; and The total number of cattle to be housed in the cattle feedlot must be 1,000 or less. If there are more than 1,000 head, it will be a section 2 use subject to the condition that it: Must meet the requirements of Clause 52.26 Clause 52.26 provides: All use and development of cattle feedlots must comply with the Victorian Code for Cattle Feedlots August 1995. The Victorian Code for Cattle Feedlots is an incorporated document under clause 81.01. Clause 63.07 of the Planning Scheme relevantly provides: A use for which an existing use right is established must comply with any relevant Code of Practice incorporated in this Scheme if either the instrument of approval of the Code of Practice has been ratified by Parliament in accordance with section 55 of the Conservation Forests and Lands Act 1987; or the Code of Practice is approved or ratified by Parliament under an Act. This provision is replicated in section 6 of the Planning and Environment Act 1987. In this case the existing use rights probably pre-dated the Code of Practice but that is not a relevant consideration. The purpose of clause 63.07 is to enable a Code of Practice to limit or remove existing use rights (without the payment of compensation) and require compliance with different planning requirements to those in place before the amendment adopting or incorporating the Code of Practice. The relevant consideration was whether the Victorian Code for Cattle Feedlots was considered to be a Code of Practice approved or ratified by Parliament under an Act. Several Acts allow for the preparation approval and gazettal of Codes of Practice eg the Dangerous Goods Act 1985, the Dairy Act 2000 or the Funerals Act 2006. In our view it is likely that where an Act provides for such a power, then Codes of Practice gazetted under such a power will meet the test in clause 63.07 provided they are also incorporated into the Planning Scheme. However, in this instance it was not clear whether the Code was indeed a Code of Practice approved or ratified by Parliament under an Act. We note that the Code itself relevantly provided that proponents, Councils and other interested persons are advised to check the above sections of the Act, namely 6(3), 6(4) and 6(4A) when considering the impact of the Code on existing feedlots. In any event, if you are seeking to impose the requirements of a similar Code of Practice on land that enjoys existing use rights it will be necessary to demonstrate that such a Code meets the requirements of section 6 of the Planning and Environment Act 1987 and clause 63.07. M21104208F06473480.docx\P.2 - S.1\P:18/12/15 3:56 3jmh <<2871>>

3 Buildings and Works Clause 63.05 considers section 2 and section 3 uses and relevantly provides: A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided: No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme. Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use. The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right. Note that the third dot point has no effect where use has intensified; it is only relevant where the use has changed beyond the scope of the existing use rights. The permit requirement under clause 63.05 for all buildings and works related to existing use rights, without third party exemptions, provides a regulatory opportunity to consider these competing interests. Given the existing use rights (by definition) do not require a permit, clause 63.05 is in effect the only mechanism to consider these competing interests through a permit process. Determining that a use will be entrenched if an application for buildings and works is approved does not automatically mean that the permit application must fail. The next question is what are the planning consequences of the permit application? Entrenching the non-conforming use may be undesirable, but it is only one factor in balancing all relevant matters to consider whether the impacts of the proposal can be contained to a reasonable and acceptable level, and can be managed lawfully and practically though conditions on a permit. In the present case, the facts indicated that the stocking rate increased above 1,000 in 2011. In our client s view this changed the use from a Section 1 use (where it was previously less than 1,000 head) to a Section 2 use. Accordingly, any buildings or works undertaken after that point required planning permission. Refer also clause 62 for exceptions for certain buildings and works. Use Conditions on Buildings and Works Permits This raised a question of law in relation to whether a use condition can be imposed on a permit for buildings and works. In Johansson v Glen Eira CC [2005] VCAT 1242, the Tribunal relevantly provided: If the buildings and works will affect the amenity of the area or give rise to other related town planning issues, a condition relating to use may be imposed provided that condition reasonably relates to the development. Similarly, in Motorcycling Australia & Ors v Surf Coast SC [2013] VCAT 1388, the Tribunal considered whether conditions that limit use, with the aim of managing amenity impacts, can lawfully be included on a permit for buildings and works. After undertaking a wide ranging assessment of the underlying principles relating to imposing conditions generally, the Tribunal provided at paragraph 133: Having regard to the relevant planning policies in relation to existing use rights and the balancing of competing interests, we consider permit conditions restricting event days or dealing with those off-site amenity impacts are reasonably capable of being regarded as related to the implementation of planning policies directed to existing use rights. As we have M21104208F06473480.docx\P.3 - S.1\P:18/12/15 3:56 3jmh

4 indicated, that is one of the very purposes of the control in cl 63.05. On this basis, we consider that the proposed conditions would be valid. In our case, if we were able to demonstrate that a permit was required for buildings and works and retrospective planning permission was sought, it would have been open to Council to impose conditions relating to the impact of intensification of the use provided those conditions reasonably related to the development for which permission was sought. We note that clause 63.05 refers to any condition or restriction to which the use was subject. This was considered in McKinnon Hotels Pty Ltd v Glen Eira CC (Red Dot) [2011] VCAT 413. The Tribunal provided: Clause 63.05 of the Planning Scheme allows such a use to continue despite a change in the Planning Scheme, provided any condition or restriction to which the use was subject continues to be met. Such a condition or restriction should ordinarily be founded in a planning control (eg. the Planning Scheme or permit) rather than implied through an examination of the actual activities or components at a particular date. It follows that the planning controls in the Planning Scheme at the date the use commenced could remain applicable to the use of the land or its ongoing purpose and form the basis upon which enforcement action could be pursued. This would be simpler where existing use rights are founded on a planning permit. Clause 63.11 relevantly provides: An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period Where existing use rights are established under 63.11, it is arguable that the conditions and restrictions of the Planning Scheme do not apply. Public Health and Wellbeing Act Pursuant to section 194 of the PHW Act, Council issued an improvement notice following complaints from residents in relation to odour, dust, flies and noise as a result of the feedlot and composting activities. The notice required the land owner to abate the nuisance and carry out specific actions to prevent the existence or recurrence of the nuisance. The land owner appealed the notice and sought two orders in the Magistrates Court. that the improvement notice should have no status until the determination of the appeal; and the appeal should be stayed permanently until final determination of the VCAT proceeding. The land owner argued that the improvement notice was an abuse of process. The notice that Council issued set out 17 requirements aimed to prevent the existence or recurrence of the nuisance claimed. Some were general and some were specific. The Magistrate cited Burbank Australia Pty Ltd v Luzinat & others [2000] VSC 128: Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed. In such a situation the Courts take the view that a litigant already deeply involved in one piece of litigation would be unduly harassed if the second piece of litigation was to proceed at the same time as the first. M21104208F06473480.docx\P.4 - S.1\P:18/12/15 3:56 3jmh <<2871>>

5 The Magistrate noted that the Court s powers are limited in relation to improvement notices under the PHW Act. The Court s powers are limited; it can only affirm or revoke the notice. It cannot vary it. If affirmed then the company must comply with the 17 requirements in the notice. Under the enforcement proceeding, Council was required to prove Planning Scheme breaches. The Magistrate stated that both proceedings require factual findings on common matters in relation to odour, dust, flies and noise, and accordingly, there existed the possibility of inconsistent findings. The Magistrates determined that the improvement notice was an abuse of process and stayed the operation of the improvement notice until the determination of the appeal under section 208 of the PHW Act. The appeal was stayed until the determination of the enforcement proceeding. In effect, this meant any findings of the Tribunal in relation to amenity impacts would affect the outcome of the PHW Act proceeding. The problem in this instance was the lack of co-ordination between the two matters. There were two separate law firms dealing with the two matters and neither was aware of the other s actions. The improvement notice was arguably too specific and prescriptive Ancillary Activities The first step in determining whether an activity is an ancillary component of an existing use is to characterise the use. The appropriate principles for characterisation are found in Cascone v Whittlesea [1994] 11 AATR 175. The relevant starting point is to determine whether the purpose of the use of the land to which existing use rights apply is a separate and distinct purpose from that which is claimed to be ancillary. If you determine that those two uses are separate and distinct uses, then the next question is whether one is a dominant use. The relevant considerations are the relationship between the two uses and whether that indicates that one subserved the other or whether they are independent uses. To put it another way, it must be determined whether part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part. EPA Works Approval In our example an EPA Works Approval may have been required pursuant to the Environment Protection (Schedule Premises and Exemptions) Regulations 2007. The relevance of this was that there was an opportunity for the EPA to impose conditions to reduce the amenity impact on the neighbours. Getting evidence from websites The respondent in the present case had a considerable presence in social media in relation to the composting processes and the operation of the farm generally. We undertook to make copies of all material available on the internet that related to the operation of the farm and activities on the land prior to the respondent deleting any material. We instructed our IT personnel to capture all relevant material. CONCLUSION In enforcement matters existing use rights are often claimed as a complete defence to an allegation of breach of the Act or the Planning Scheme. The provisions of clause 63 are complicated and have been extensively litigated without necessarily simplifying the process. As you can see from the example we have described, the interaction of existing use rights and the enforcement matter were complicated. M21104208F06473480.docx\P.5 - S.1\P:18/12/15 3:56 3jmh

6 However, the take-home message is that where existing use rights are claimed and indeed demonstrated, it may not be the complete defence that the respondent might imagine because there are still opportunities to require permission for buildings and works on the land. Those permissions for buildings and works may include conditions that relate to the use provided that the amenity impact is sufficiently related to the buildings and works. It also remains arguable that permissions for buildings and works should not be granted where it would entrench an existing use that is now a Section 3 prohibited use. Finally, avenues such as EPA Works Approvals and PHW Act applications may be other means by which amenity impacts of non-conforming uses can be controlled. However, these approaches need to be part of a co-ordinated enforcement program. Greg Tobin Principal T 03 5225 5252 M 0412 845 035 F 03 5225 5222 gtobin@harwoodandrews.com.au www.harwoodandrews.com.au Liability limited by a scheme approved under Professional Standards Legislation John Hannagan Senior Associate T 03 5225 5202 M 0401 021 095 F 03 5225 5222 jhannagan@harwoodandrews.com.au www.harwoodandrews.com.au Liability limited by a scheme approved under Professional Standards Legislation M21104208F06473480.docx\P.6 - S.1\P:18/12/15 3:56 3jmh <<2871>>