Shipping containers
The never ending storey?
Like all matters, the development and use of a shipping container will have to be assessed on its own individual circumstances.
I have written this to help assist members in making a decision either it’s in breach or not of the Scheme.
Things to consider;
Local Laws
Most Council’s have created a Local Law pursuant to the provisions of the Local Government Act 1989 to administer and enforce activities on private land i.e. land that is kept in a dangerous (unsafe), unsightly manner and is detrimental to the general amenity of the area.
If you consider the shipping container(s) stored on the land are kept in an unsightly/unsafe manner and are ancillary to a dwelling (Clause 64.02 Land used in conjunction with another use of the Scheme) than I would initiate the Local Law process (if you consider them to be unsightly).
Failure to comply commence enforcement proceedings via Magistrates Court to grant an order to clean up the site and prosecute for the failure to comply with the notice to comply and Local Law provision.
Building Act 1993
The Act defines “building” as;
“building includes structure, temporary building, temporary structure and any part of a building or structure.”
The Act defines “construct” as;
“construct, in relation to a building, includes—
(a) build, re-build, erect or re-erect the building; and
(b) repair the building; and
(c) make alterations to the building; and
(d) enlarge or extend the building; and
(e) place or relocate the building on land”
Example
If a shipping container is attached to the ground by way of an electricity meter box it could be defined as a structure and as such (outbuildings) require a building permit. A building notice maybe issued to the owner to show cause why they (the outbuildings) should not be removed.
Planning and Environment Act 1987
The Act defines “building” as;
“building includes—
(a) a structure and part of a building or a structure; and
(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c) a boat or a pontoon which is permanently moored or fixed to land”
The Act defines “development” as;
“development includes—
(a) the construction or exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings”
The Act defines “works” as;
“works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.”
Planning Scheme
Characterising the use of land;
Home occupation, hobby, store, industry, dwelling etc
Clause 64.02 Land used in conjunction with another use of the Scheme (ancillary)
Another exemption from the requirement of a permit is Clause 62 Uses, Buildings, Works, Subdivisions and Demolition not Requiring a Permit;
62.02-1 Buildings and works not requiring a permit
“A temporary shed or temporary structure for construction purposes, or a temporary portable land sales office located on the land for sale.”
Clause 63 Existing Uses of the Scheme
Zone setbacks for buildings and works; trigger point for the requirement of a permit.
Example
Green Wedge Zone
35.04-5 Buildings and works
“A permit is required to construct or carry out any of the following:
A building or works associated with a use in Section 2 of Clause 35.04-1. This does not apply to:
· An alteration or extension to an existing dwelling with a floor area of no more than the area specified in a schedule to this zone or, if no area is specified, 50 square metres.
· An alteration or extension to an existing building used for agriculture with a floor area of no more than the area specified in a schedule to this zone or, if no area is specified, 100 square metres. The building must not be used to keep, board, breed or train animals.
· A rainwater tank.
· Earthworks specified in a schedule to this zone, if on land specified in a schedule.
A building which is within any of the following setbacks:
· 100 metres from a Road Zone Category 1 or land in a Public Acquisition Overlay to be acquired for a road, Category 1.
· 40 metres from a Road Zone Category 2 or land in a Public Acquisition Overlay to be acquired for a road, Category 2.
· 20 metres from any other road.
· 5 metres from any other boundary.
· 100 metres from a dwelling not in the same ownership.
· 100 metres from a waterway, wetlands or designated flood plain.”
Another example
You may have a Planning Permit that has been issued say for a ‘service station’ and now they have placed a shipping container on the site. (extra storage) Alterations and modifications made without the written consent of the Responsible Authority, a contravention of a Permit condition and Scheme (buildings and works in the Zone).
As you can see there are allot of different circumstances, more than I have briefly mentioned and that we all come across in our day to day tasks. One rule does not fit all.
Again if the property is located in an Overlay this might trigger the requirement of a permit i.e. HO, EMO, SLO etc.
Have a read of the below Clause if you want but more than likely you will be wasting your time as it does not relate to what I am on about.
Clause 52.33 Shipping Container Storage
The Scheme defines “Shipping Container Storage” as;
“Land used to store shipping containers. It may include the cleaning, repair, servicing, painting or fumigation of the shipping containers.”
The above definition again is not applicable to what I am on about and what we came across normally.
Case Law
Boroondara City Council v Di Vicenzo ‘ancillary use’
Campaspe SC v Bayley [2002] VCAT 1191 (25 September 2002) ‘Store, Materials Recycling & unsightly property’
Cascone and Vella v City of Whittlesea 11 AATR 175 ‘determining the primary use of land’
David Douglas MacDonald v Moria SC VCAT Ref No. P666/2009 ‘Section 149A application’, VCAT considered “Shipping Containers” to be an innominate use.
Bentome Pty Ltd v East Gippsland SC & Ors [2002] VCAT 995 (8 April 2002) ‘unsightly’
Cardinia SC v Lamanna & Anor [2003] VCAT 103 (24 January 2003)’unsightly’
Cardinia SC v Xinling & Anor [2009] VCAT 2657 (14 December 2009) ‘Shipping containers, unsightly’
Wellington SC v Aroin [2009] VCAT 1644 (12 August 2009) ‘Temporary dwelling two shipping containers used for storage, unsightly’
Northern Gramprian Shire Council v Clementson [2005] VCAT 1244 (20 June 2005)’Home Occupation, EO application unsuccessful, VCAT Members commentary, ‘ It is noted that the Responsible Authority has a local law that relates to ‘unsightlyland’ and this may be a matter for consideration by the Responsible Authority if it forms the view that these materials areunsightly.”
Cardinia v Hamelka [2007] VCAT 438 (20 March 2006) VCAT Members commentary, “With respect to the miscellaneous vehicle parts and tyres lying around the subject land, I am satisfied from the photos that these items go beyond mere hobby activity to constituting a‘unsightly’, illegal storage activity.”
Casey CC v Maher [2005] VCAT 2740 (23 December 2005) VCAT Members commentary, “In varying the enforcement order made by Deputy President Gibson I am conscious of the need to achieve compliance with the law and to remove an‘unsightly’ and dangerous collection of tyres (in the many thousands).”
Hobsons Bay CC v Kuburovic [2007] VCAT 1219 (11 July 2007) VCAT Members commentary, “Finally Mr Ingram submitted that the storage of the shipping containers in the front setback did not adversely affect the appearance of the neighbourhood, given its industrial zoning. Photographs of other ‘unsightly’ industrial blocks in the vicinity were tendered to me. But it is my opinion that shipping containers stacked one on top of the other, are inherently‘unsightly’ and do adversely affect the appearance of a neighbourhood.
Conclusion
Be open minded; what seems like a breach and should be a breach of the Scheme when in fact it is as of right.
So far in this game I have come across converted shipping containers to a dwelling, DPU, to grow drugs in and used as an ancillary outbuilding to a dwelling.
Personally I don’t like the look and use of this type of development but if the Scheme permits it as of right in certain circumstances, then move onto the next job.
Regards from the land of shipping containers and corrugated tin iron
Melton Shire Council
Good luck and hope this helps you
Regards
Rhett