The skies were silent over Mornington Peninsula’s peaceful pastures on Remembrance Day 2017, with nary a warbird aloft to howl a requiem for the 99th anniversary of the WW1 Armistice. This could have been because few if any century-old airworthy military aircraft exist in the hangars at and adjacent to Tyabb airfield.

Not until next March will WW2 fighter aircraft thunder over Tyabb and other shire villages, chief among them an extremely noisy resident Mustang, along with a Kittyhawk and possibly a vintage Tiger Moth or two and a Sopwith Pup replica. A Spitfire occasionally turns up to the show, plus helicopters of both the war and peace type.

Another attraction is the Australian-built Wirraway (Aboriginal for “challenge”), developed from the US-designed NA-33 and hopelessly outmatched by the Japanese Zero in desperate battles over Malaya and New Guinea in WW2. Wirraway losses were dreadful: only one Zero was shot down by a Wirraway, on 12 December 1942.

Coach-n-flyThere has been helicopter action aplenty at the airfield in recent weeks, Bandicoot learns, with return flights advertised from Tyabb to the Australian Motorcycle Grand Prix on Phillip Island in October. “Skip the island traffic,” the advertisement encouraged petrol heads, by bussing from Southern Cross station and jumping on a chopper – all for $320 including GST. Many, many did.

With its newly installed $100,000 emergency helipad capable of handling perhaps four or more craft at a time, the airfield is able to deal with a crowd of bike aficionados. Quite a few of the local and visiting flyboys are getting acquainted with the 40 square metre concrete pad, paid for with a shire grant

Some locals argued for the $100,000 to be redirected, describing the Peninsula Aero Club’s claim to ratepayers’ money as “partisan, generic and open ended”. The sum sought would be “a gift … to a private club for the questionable duplication of existing infrastructure. But the shire has long had a soft spot for the airfield, not long ago ladling $50,000 into an emergency road.

The shire can also be stern in dealing with the club and/or its members. Mr Kenneth Ingersoll, a resident of Baxter, attended the council meeting held at Somerville on 28 October to ask a question about “my supposedly illegal shed” on his property abutting the airfield.

Here is his question, as recorded in the shire minutes of the meeting:

“[I]t was at this same Community Council Meeting held in Somerville in this same hall exactly 12 months ago to the day that I was publicly humiliated and the audience was told that my supposedly illegal shed had an impending 30 day demolition order on it,” Mr Ingersoll’s question began.

(The previous year’s Somerville meeting was actually a month later, on 28 November.)  Below – Elvis is likely to use the Tyabb helipad

Elvis at workHe continued: “My property is 62 Stuart Road, Tyabb, on the airport boundary. Over the past 7 and half years I have been harassed by 2 neighbours and the Tyabb Ratepayer group and made to look like a criminal.

“My question is, where is it published or documented the VCAT ruling that I have not been in breach or contravened the planning scheme and that VCAT has declined to make the enforcement order sought by council?

“I feel that as this has made front page news in the local papers in the past, it should now be up to council to publish the fact publicly so as to vindicate me and confirm the VCAT ruling in this matter regarding the final decision which is now conclusive and cannot be revisited.”

The question was answered by Mr David Bergin, Executive Manager – Planning Services. He stated that 12 months ago “there was an existing VCAT order that remained outstanding. Council officers, as with all compliance matters, followed up with that order.

“Like any matter that goes to VCAT there are two sides to every story and at VCAT everyone gets the chance to put their case forward. As with any compliance matter, sometimes Council wins, sometimes Council loses.

“I am satisfied the matter has been resolved and in terms of publicly accessible evidence of the matter it can be found on VCAT’s website and there in a link on that website for all cases that have been determined.”

Intrigued by this apparent shire mistreatment of Mr Ingersoll, Bandicoot went researching.

He found the matter began in 2004, when Mr Ingersoll went to VCAT to seek an adjournment to a hearing involving a council decision to refuse him permission to build a second large shed on his property abutting the airstrip. At Mr Ingersoll’s request a June hearing had been abandoned. Then a hearing set for August was also put off because a planned airfield study might not be concluded in time to be included in that hearing.

VCAT ruled that ” … it is the permit applicant’s wish to withdraw the application for review. …I see no reason not to accede to this request.”

After an unsuccessful mediation in 2010, we fast-forward to 2011. Here, Bandicoot found the VCAT case to which Mr Ingersoll apparently referred, containing an order dated 20 April.

R ByardSenior Member Russell Byard (right) states: “It has been admitted and found that there has been a contravention of the planning scheme by the use of the land … as a store” (for aircraft).

Mr Byard made four orders:

1. The respondent must, within 28 days of date of this order, cease using the land for the purpose of an aircraft hanger [sic; Bandicoot will hereafter correct the spelling to “hangar”].

2. The respondent must, within 28 days of date of this order, remove from the land the aircraft listed in Attachment A to this order (two sheets headed ‘Shed One’ and ‘Shed Two’ respectively and each marked ‘Attachment A’, signed “Russell Byard” and dated 23/3/11).

3. This application for an enforcement order is otherwise adjourned to an administrative mention on 30 September 2011.

4. The respondent is to pay to the responsible authority $10,301.50 costs within 28 days of the date of this order.

The “alleged contravention” of the Planning and Environment Act 1987 was set down in the VCAT decision as “Use of land as a store without a permit under Clause 32.03-4 of the Mornington Peninsula Planning Scheme where that use is prohibited because the owner does not live on the land and construction of sheds without permission required under the planning scheme.”

Under the heading “Remarks”, Mr Byard stated that Mr Ingersoll’s lawyers had signed, on his behalf, a document representing “an agreement reached between” the shire and Mr Ingersoll on two matters – using the land as a store and “the construction of building [sic] without planning permission”.

Mr Byard continued: “The agreement between the parties involves the making of an enforcement order in relation to the land use and the deferral of the question of the buildings to an administrative mention on 30 September 2011.”

62 Stuart RdThe buildings, Mr Byard said, “were large sheds that have been used to store aircraft. The land is adjacent to the Tyabb Airport [sic; it is an airfield, not an airport]. In many ways, this is a convenient place for the storage of aircraft.

“I was informed that a ‘site specific’ amendment to the planning scheme would be sought to allow the land to be used as a hangar, in other words, a place for the storage or garaging of aircraft. The outcome of such a proposal for a site specific amendment cannot be known at this stage.

“No order is sought for the demolition or removal of the sheds pending knowledge of that matter. The question of the survival of the sheds can await the outcome of the planning scheme amendment proposal.”

So, as far as VCAT was concerned in 2011, “survival of the sheds” was a live issue, depending on the outcome of a further hearing.

We now move to November 2012, a hearing at which Mr Byard ordered the striking-out of various shire applications – “I propose to strike out the remaining aspect of this proceedings,” he stated. “That does not affect the enforcement order made 20 April 2011” relating to the illegal use of the land for aircraft storage.

The final act in this saga came at VCAT on 4 August this year.

But first – about a year ago the shire had its four-yearly election for councillors. One candidate was Ms Lisa Dixon, who is Mr Ingersoll’s partner. She was unsuccessful in her campaign for election to Watson ward, in which the airfield and the sheds are situated.

Before the poll, on 19 September, councillors dealt with a request to abandon a planning scheme amendment, numbered C193, via which the shire planning department was negotiating with Mr Ingersoll and Ms Dixon to retain the buildings, one of which Mr Byard had ruled was being used illegally as an aircraft hangar.

The illegal use was confirmed by a Frankston Magistrates Court decision of 28 April 2011.

Lisa DixonCrucially for Mr Ingersoll and Ms Dixon, the VCAT hearing of August 2017 found the shed did not require a permit and could stand, provided it was used “as of right” – but its use as a hangar would be problematical unless Mr Ingersoll lived on the property.

Councillors were told that “the proponent [Mr Ingersoll] has advised that he wishes to withdraw the proposed amendment”. Attached was the letter Ms Dixon and Mr Ingersoll sent to the shire confirming this.

The letter states they want to retain one of the two sheds via the imminent Tyabb Township Precinct Plan, having complied with a VCAT direction to leave it vacant, and asks “that Council will not take out a future order to pull the said shed down. We will continue to be compliant with the original VCAT ruling.”

The council officer report confirmed that the building had remained vacant as VCAT ordered and continued:

“While there was initially a direction of Victorian Civil and Administrative Tribunal requiring the removal of the building, this direction was deferred pending broader consideration of issues relating to the Tyabb airfield and is no longer in force.”

The shire appears to be in error here: a search of the VCAT hearings yielded no reference to demolition of a building – only reference to illegal use for storage.

The VCAT hearing of 2017 effectively confirmed this, as detailed below.

This would appear to be the position to which Dixon-Ingersoll referred in their letter stating they wished to “include” one shed in the township plan. Their concern appeared to be that, by applying to abandon the planning scheme amendment, they risked reactivating the VCAT proceedings on the illegal land use.

Their concern was reinforced by Mr Bergin’s confirmation that this would be the case.

The recent VCAT decision states that “Shed 2 is not presently being used to store aircraft, and our finding is that the subject land can be used to store items (or to carry out other activities) in Shed 2 which are associated with the primary residential use of the land.”

But, VCAT states, “In the event that Mr Ingersoll wishes to use Shed 2 in the future to store aircraft, we do not consider that this would be an ancillary use of the land in association with the primary residential use of the land.”

“A planning permit will be required to store aircraft in Shed 2, unless the storage of aircraft is in association with the primary residential use of the land, by a resident of the dwelling on the land.

“It is a matter for Mr Ingersoll as to whether he wishes to apply for a planning permit to use the land to store aircraft.

“If Mr Ingersoll does apply for a permit to use the land to store aircraft, he must meet the condition that it is used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the land, and this may be a hurdle that Mr Ingersoll cannot overcome because he does not live at the subject land.”

This concludes the 13-year (so far) saga of the Tyabb hangars – except for the question of whether Mr Ingersoll (and Ms Dixon) choose to live in Tyabb and use the sheds to store aircraft, or continue to live in Ingersoll Rd, Baxter.

Thus, Bandicoot believes that in the cut and thrust of this contest between shire and citizen, both sides have sustained flesh wounds. Mr Ingersoll retains his storage shed and may, by living on the property, store aircraft there. The shire puts out the word that it will fight to have its laws enforced.

But it would appear fair that it concede to Mr Ingersoll publicly and in writing that it made one or two blues along the journey.

We may yet see another chapter or two in this extended drama, which is already nearly as long as the Epic of Gilgamesh, if not as action-packed.



Offence to contravene scheme, permit or agreement

(1) Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.

(2) The owner of any land is guilty of an offence if —

     (a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or (continues)

■ Go to http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2017/1446.html?context=1;query=ingersoll;mask_path=au/cases/vic/VCAT for the latest VCAT case.