From:                                         clarketowson@intjbilling.com

Sent:                                           Wednesday, 6 August 2025 1:35 PM

To:                                               'REDACTED'

Cc:                                               'REDACTED'; 'REDACTED'

Subject:                                     Refutation of TRZ2 Breach Allegation – Legal Grounds and Zoning Invalidity 7 Cullen Court Spotswood

 

Dear Council,

 

I wish to respectfully respond specifically to Council’s interpretation of Clause 36.04-1 of the Hobsons Bay Planning Scheme and the assertion that my current use of trailer hire on my mother’s TRZ2 zoned land constitutes a breach.

 

Council asserts:

 

"Any other use which is not specifically listed in Section 1 must meet the following condition: ‘the use must be for a transport purpose and carried out by or on behalf of a relevant transport manager.’”

 

"...you are not the relevant transport manager and are instead the landowner. As such, the use you are undertaking requires a planning permit, which means that you are currently in breach of the Hobsons Bay Planning Scheme."

 

I respectfully disagree with this conclusion on four legal grounds, each of which I believe undermines the premise of a breach.

 

1. Invalid Zoning = No Valid Clause to Enforce

 

The clause being relied upon applies only if the TRZ2 zoning was lawfully applied.

 

As evidenced by:

 

 

The TRZ2 designation appears to have been applied without legal authority, making it ultra vires.

 

You cannot enforce Clause 36.04-1 if the zoning itself lacks a lawful foundation. An unlawful zone cannot give rise to lawful obligations.

 

2. Section 6(3) of the Planning and Environment Act Applies

 

Section 6(3) of the Planning and Environment Act 1987 (Vic) states:

 

“Nothing in a planning scheme or an amendment to a planning scheme applies to the continued use of land for a purpose for which it was being lawfully used immediately before the coming into operation of the scheme or amendment.”

 

My use of the land:

 

 

Even if the TRZ2 zoning was valid — which it is not and I have proven as such — Section 6(3) exempts my continued use from any requirement to seek a permit under the scheme.

 

3. Trailer Hire Is a Transport Purpose

 

Council’s position that trailer hire is not a transport purpose is, with respect, untenable.

 

I operate:

 

 

If this is not a transport purpose, then what is?

 

There is no statutory definition of “transport purpose,” so the ordinary meaning must apply — and it easily includes trailer hire. Any interpretation to the contrary would not survive judicial scrutiny.

 

4. “Relevant Transport Manager” is Undefined

 

The term “relevant transport manager” is not defined in Clause 36.04-1, Clause 73.03, or elsewhere in the Hobsons Bay Planning Scheme.

 

If undefined, there are only two options:

 

 

Either interpretation undermines Council’s view.

 

The “Nested Use” Interpretation Is Legally Flawed

 

Council’s suggestion that my trailer hire use can be nested within unrelated land use terms such as ‘motor vehicle, boat or caravan sales’, ‘trade supplies’, ‘store’, or ‘retail premises’ is, with respect, unconvincing and legally unsound.

 

Each of the categories cited in Clause 73.03 refers to activities fundamentally different in purpose and structure from what occurs on my mother’s land:

 

 

The attempt to retro-fit trailer hire into these terms is a stretch that would not withstand statutory scrutiny or common-sense interpretation (the pub test). The Planning Scheme does not list “trailer hire” as a nested term, nor does it suggest that such a use belongs under the categories cited.

 

Importantly, even if I accept (for the sake of argument) that my use is not listed in Section 1 — that does not automatically trigger a breach. It simply invokes the additional test in Clause 36.04-1: whether the use is (a) for a transport purpose, and (b) carried out by or on behalf of a relevant transport manager.

 

As shown in my previous points:

 

 

With respect, Council’s logic skips over these crucial tests and relies instead on a flawed nesting interpretation to assert breach — a conclusion that I strongly dispute.

 

The Fatal Logical Loop

 

Council’s position becomes a circular trap:

 

You are not a transport manager → therefore not exempt → therefore in breach of TRZ2 → therefore must apply for a permit.

 

But:

 

 

A circular reading of an invalid clause applied to miszoned land cannot create lawful enforcement obligations.

 

Additional Clarification on Clause 36.04-1 – Permit Requirements

 

In relation to Clause 36.04-1 of the Hobsons Bay Planning Scheme, I respectfully draw Council’s attention to the exact structure and wording of the provision regarding permit requirements.

Under Section 1 – Permit Not Required, the final entry reads:

 

“Any other use”

Condition: The use must be for a transport purpose and carried out by or on behalf of a relevant transport manager.

 

This entry does not automatically trigger a breach merely because a use is not specifically listed elsewhere. Rather, it introduces a conditional test:

 

 

If either of these is satisfied (or the second condition is found to be legally vague or unenforceable, as argued in my email), the use does not require a permit.

 

Importantly, Section 2 – Permit Required in Clause 36.04-1 is completely blank — no additional uses are listed there. That means there are no automatically triggered permit-requiring uses under TRZ2 beyond what is described in Section 1.

 

Therefore, Council’s claim that my use “requires a permit” cannot rest on Section 2, because that section does not identify any use as requiring a permit by default.

 

If my trailer hire business satisfies either of the Section 1 tests — or if the clause is legally inoperable due to vagueness or ultra vires zoning — then my use is lawfully established and exempt from any permit obligation under this zone.

 

Additional Observations – Permit and Consent Requirements under TRZ2

 

Upon reviewing Clause 36.04-2 to 36.04-3, I note the following critical points:

 

  1. Permit Requirement Limited to Works or Subdivision
    Clause 36.04-2 states that a permit is required to:
    • Construct a building or construct or carry out works for any use in Section 2 of Clause 36.04-1.
    • Subdivide land.

 

As Section 2 of Clause 36.04-1 is blank, no specific uses are designated as requiring a permit.

This means that unless I am constructing a building, undertaking physical works, or subdividing land — none of which I am doing — there is no automatic trigger for a planning permit.

 

  1. Consent of the Head, Transport for Victoria
    Clause 36.04-3 states that any application for TRZ1 or TRZ2 land by a person other than a “relevant transport manager” must be accompanied by the written consent of the Head, Transport for Victoria.

 

Since I have already demonstrated that TRZ2 zoning was misapplied and likely ultra vires, this consent requirement is not logically applicable to a privately owned block. A planning scheme clause intended for state-owned transport corridors cannot override freehold ownership rights without proper legal foundation.

 

  1. Table of Transport Uses
    Clause 36.04-4 lists the purpose of TRZ2 as “Principal road network.”
    My trailer hire operation directly supports road-based logistics — a principal road function — making it highly arguable that the land is already being used consistent with the transport objective of TRZ2.
  2. No Prohibited Uses Listed
    As per Section 3 – Prohibited, the table is nil.
    Thus, my use is not explicitly prohibited under the TRZ2 provisions.

 

In summary, the structure of TRZ2 itself — with its empty Section 2 (Permit Required), its nil Section 3 (Prohibited), and its purpose to support the principal road network — actually supports my position that trailer hire is lawful, transport-related, and exempt from the need for a planning permit under these provisions.

 

 

Summary – Is Council Mistaken?

 

Point

Council’s View

Why It’s Wrong or Misleading

TRZ2 applies

Yes

TRZ2 is ultra vires; FOI confirms no legal basis

You’re not exempt under Clause 36.04-1

Yes

Section 6(3) overrides this entirely

Use is not for transport purpose

Yes

Trailer hire is self-evidently transport-related

You’re not a transport manager

Yes

Term is undefined and legally vague

You are in breach

Yes

Invalid zoning + lawful use = no breach

 

I therefore strongly dispute that I am in breach of the Hobsons Bay Planning Scheme.

 

If Council is genuinely concerned about breaches of the Scheme, I respectfully direct your attention to my neighbour, the Department of Transport, where you will find clear and ongoing very serious and egregious compliance breaches — not just of the Scheme, but of multiple legislative obligations.  My neighbour is contemptuous of adhering to both the law and the Hobsons Bay Planning Scheme.  I respectfully would like to ask Council again to please initiate compliance orders and actions directed to The Department of Transport to clean up their land and bring it into compliance with both the law and the Hobsons Bay Planning Scheme based on my footnotes at the end of this email.

 

Please refer to Compliance Concerns 4, 5 and 6 on my Compliance Register for examples of my neighbours breaches: https://spotswoodtrailers.com.au/ComplianceRegister.html

And check out this page for even more: https://intjbilling.com/7CullenCourtRoadReserveWithVideo.html

 

I respectfully invite Council to take the time to review the full set of articles and legal documents published on my website https://spotswoodtrailers.com.au, which together form a comprehensive record of the zoning error, the legal basis for my existing use rights, and the broader systemic implications for TRZ2 land across Victoria.

 

To assist Council in fully understanding the legal and evidentiary basis for my position, I respectfully invite you to review the following key articles published on my website. These articles are each grounded in documentation, FOI disclosures, statutory interpretation, and visual evidence – and together, they outline the legal, historical, and procedural anomalies surrounding the TRZ2 zoning of 7 Cullen Court Spotswood:

 

Legal and Existing Use Rights Notice: https://spotswoodtrailers.com.au/LegalAndExistingUseRightsNotice.html

A comprehensive overview of the lawful basis for my continued land use, including references to Section 6(3) of the Planning and Environment Act, EXIF metadata, activation dates, and photographic evidence.

 

TRZ2 Legal Disclosure Folder: https://spotswoodtrailers.com.au/7CullenCourtImages/?TRZ2-Legal-Disclosure

A curated archive of government documents, FOI responses, zoning instruments, and planning overlays demonstrating that the TRZ2 designation was applied ultra vires.

 

Ultra Vires: How Victoria’s Planning System Accidentally Breaks Its Own Laws: https://spotswoodtrailers.com.au/UltraVires.html

An in-depth legal analysis showing how procedural gaps in Ministerial consent, title boundaries, and clause application result in zoning contradictions across the state – with my case as a test example.

 

The Planning Document That Changed Everything: https://spotswoodtrailers.com.au/The-Day-a-Planning-Document-Changed-Everything.html

This article highlights the absence of statutory justification, public notice, or consent from private landowners.

 

Alternate Timeline: Why I Didn't Apply for a Permit: https://spotswoodtrailers.com.au/WhyDidntIApplyForAPermit.html

A clear, logical walk-through of why no planning permit was required under the law, and how my activation predated any enforcement triggers.

 

Ministerial Fix Proposal: https://spotswoodtrailers.com.au/Ministerial-Fix-Proposal.html

Outlines a cooperative pathway for fixing this anomaly with minimal disruption, including suggested amendments, community benefits, and a no-cost resolution framework.

 

An Open Letter to Hobsons Bay Council: https://spotswoodtrailers.com.au/trz2-lawful-use-statement-7-cullen.html

A previously published communication highlighting the seriousness of the matter, encouraging collaboration rather than adversarial action.

 

These articles are intended to provide transparency, clarify misconceptions, and demonstrate that my position is based on lawful use, legal precedent, and procedural irregularities with respect to the TRZ2 zone.

 

These materials were not written casually — they are grounded in legislation, FOI-confirmed facts, historical zoning instruments, and an ongoing commitment to transparent, lawful land use.

 

I believe that any fair-minded reading of these materials will lead to the same conclusion I have reached: that enforcement in this case is not just inappropriate, but legally unsustainable.

 

Please also note that I have already commenced proceedings against the Department of Transport at VCAT under Section 30 of the Fences Act 1968 (Vic), seeking rights of access to abate vegetation on the Crown land adjoining 7 Cullen Court.  The Department of Transport is the party that is in breach not me.  This matter directly relates to Council’s planning concerns, as the unmanaged condition of the neighbouring TRZ2-zoned public land is obstructing my lawful use, damaging our shared boundary, and undermining both compliance expectations and amenity.

 

I mention this not only as evidence of my commitment to lawful process, but also to highlight the urgent and systemic failure of The Department of Transport to meet basic statutory responsibilities — a failure I am actively addressing through formal channels. I respectfully ask Council to consider this in its broader context before pursuing any enforcement against private land that has been demonstrably well-managed.

 

I will continue to pursue this matter through FOI, legal review, and (if necessary) VCAT. I remain open to further dialogue with Council as this important issue progresses. 

 

I would also like to respectfully point out that the Head of Transport Victoria, Mr Jeroen Weimar, has been unresponsive to my repeated and reasonable attempts to make contact over the past four months.  Despite multiple efforts via email, telephone, and even LinkedIn messaging, I have received no acknowledgement or reply whatsoever. This ongoing refusal to engage, especially in light of the significant legal and planning implications I have raised, is deeply concerning. It suggests a systemic unwillingness within The Department of Transport to address legitimate inquiries from affected stakeholders — even when those stakeholders are private landowners whose rights and interests have been materially impacted by questionable government zoning actions.

 

In light of this pattern of chronic non-engagement and persistent statutory neglect, I respectfully invite Council to formally review and question the Department of Transport’s conduct, particularly in relation to:

 

 

I believe Council has a duty — both to its residents and to the integrity of the Planning Scheme — to consider whether enforcement pressure is being misdirected at the wrong party, while clear and ongoing breaches by a public authority go unchecked.

 

If I, as a private citizen, can publicly document these issues in full detail, I am confident that Council has the authority and obligation to formally escalate these concerns with the Department of Transport and demand accountability.

 

As a final point, I respectfully reserve all rights in relation to any enforcement action Council may contemplate.  I reiterate that no planning permit is required for a use protected under Section 6(3) or derived from a misapplied planning scheme clause.

 

I’m not a permit dodger.  I’m standing up for my rights under the law and ultimately I’m working very hard to bring my mother’s land under the full governance of The Hobsons Bay Council.

 

Whilst I appreciate that Council may not particularly like the trailer hire use case I have activated on my mother’s privately owned TRZ2 zoned land, I must respectfully reaffirm that it is entirely lawful and compliant: https://spotswoodtrailers.com.au/TRZ2SiteCompliance.html  It is legal under Section 6(3) of the Planning and Environment Act 1987 (Vic), valid under established existing use rights, and situated on land that was never lawfully zoned TRZ2 in the first place.  Whether it is aesthetically pleasing or politically convenient should not override the fundamental legal protections I am exercising in good faith.

 

Kind Regards as Always,

Clarke

Clarke Towson, BCMS (Bachelor of Computer & Mathematical Science)

CEO

INTJ Billing

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m: +61 432 359 166

a: 7 Cullen Court Spotswood Victoria 3015 AUSTRALIA

w: https://intjbilling.com

e: clarketowson@intjbilling.com

y: https://www.youtube.com/@intjbilling

 

 

Sources:

TRZ2 VPP: https://spotswoodtrailers.com.au/7CullenCourtImages/?TRZ2-Legal-Disclosure#pid=TRZ2-Transport-Zone-VPP_36_04_Page_2.jpg

Planning and Environment Act 1987: https://www5.austlii.edu.au/au/legis/vic/consol_act/paea1987254/s6.html

 

And an article I wrote about how I think the flawed TRZ2 Policy document should be rewritten: https://spotswoodtrailers.com.au/TRZ-Policy-Suggestions.html

---

 

Department of Transport breaches:

 

1. Road Management Act 2004 (Vic)

Relevant Breach: Neglect of Roadside Responsibilities

 

Key Provisions:

 

Breaches:

 

2. Catchment and Land Protection Act 1994 (Vic)

 

Relevant Breach: Failure to Control Declared Weeds

 

Key Provisions:

 

Breaches:

 

3. Planning and Environment Act 1987 (Vic)

 

Relevant Breach: Conflict with Zoning and Use Obligations

 

Key Provisions:

 

Breaches:

 

4. Country Fire Authority Act 1958 (Vic)

 

Relevant Breach: Fire Hazard Creation

 

Key Provisions:

 

Breaches:

 

5. Environmental Protection Act 2017 (Vic)

 

Relevant Breach: Neglect of Land Use Causing Environmental Harm

 

Key Provisions:

 

Breaches:

 

6. Public Health and Wellbeing Act 2008 (Vic)

 

Relevant Breach: Risk to Public Health

 

Key Provisions:

 

Breaches:

 

7. Hobsons Bay City Council Local Law No.1 – Community Local Law 2015

 

Relevant Breach: Encroachment and Neglect Affecting Neighbours

 

Relevant Clauses:

 

Breaches:

 

Summary of Breaches:

 

Law/Act

Breach Summary

Road Management Act 2004 (Vic)

Failure to maintain roadside to safe, serviceable standard

Catchment and Land Protection Act 1994 (Vic)

Allowing the spread of declared noxious weeds

Planning and Environment Act 1987 (Vic)

Undermining the purpose of TRZ2 zoning through neglect

Country Fire Authority Act 1958 (Vic)

Creation of a potential fire hazard

Environmental Protection Act 2017 (Vic)

Failure to manage environmental risks (leaks, runoff)

Public Health and Wellbeing Act 2008 (Vic)

Prolonged health risk from blocked drains and flooding

Hobsons Bay Local Laws

Vegetation causing nuisance, fence damage, and safety risks

 

I have gone above and beyond as a neighbour in which I have:

 

  1. Provided notice multiple times
  2. Offered to assist at my own expense
  3. Installed safety signage and bollards
  4. Engaged the Ombudsman and Planning Minister
  5. Maintained a detailed public accountability log

 

And they just don’t care!