An interesting and novel approach to gathering evidence for an enforcement matter has raised eyebrows within the planning sphere. In Mornington Peninsula SC v Peninsula Garden Supplies & Earth Moving Pty Ltd [2013] VCAT 2116, the Tribunal commended the Council for employing an unmanned drone to undertake a survey of land that Council alleged was being used for the transfer and storage of recycling and refuse. The fly-over provided the proof that Council needed to seek a stop-work order from VCAT in relation to the alleged works.
In support of the Responsible Authority’s initiative, the Tribunal asserted;
I commend the responsible authority for obtaining a survey of the site by unmanned drone to indicate the volumes of materials placed on the land in circumstances where conventional survey was not advisable due to identification of asbestos on part of the land.
In accepting the supplied mapping and other evidence in the officer’s affidavits as proof that spoil and other material was being stored and stockpiled on the site, the Tribunal granted an enforcement order requiring the immediate cessation of the use.
Astute commentators in the industry have rightly queried the legitimacy of such an assertive course of action from the Responsible Authority, in the face of ‘powers of entry’ provisions within the Planning and Environment Act. Usually such provisions would regulate the entry of persons onto the land. If nothing else, this decision hints at the tensions between security and privacy which transcend the planning sphere.
While we do not expect large-scale deployment of drones by Responsible Authorities any time soon, this case serves as a reminder that Councils are increasingly using any resources available to enforce their planning schemes. This is underscored with the increasingly readily available satellite imagery that can assist Council in determining and enforcing a range of planning related matters including vegetation removal and unconsented building works. Big Brother is watching.