The Tribunal finds that the former garage area at the rear of the building on the land at 898 Point Nepean Road, Rosebud ("subject land") constitutes a separate "dwelling" from the balance of the building. Given that the owners of the subject land have not obtained any planning permit for the development of the former garage area as a separate and second "dwelling", this constitutes an unlawful use.

In light of the finding which I had made above that the visitor accommodation use operating on the subject land is a Section 2 use, and in light of the absence of any planning permit for such use, this existing visitor accommodation use is unlawful.

Given the Tribunal's discretion as to what orders it makes and in light of the fact that the Applicant for Enforcement Order Mr Kaufman is not seeking the immediate closure of the visitor accommodation use, the Tribunal makes the following orders:

1 Alderock Investments Pty Ltd is given the opportunity to within 30 days of the date of these orders lodge with the Responsible Authority a planning permit application for the use of the building on the subject land for the purpose of visitor accommodation together with a "building and works" planning permit application for the use of the former garage area as a separate "dwelling".

2 If Alderock Investments Pty Ltd does not take up this opportunity within the requisite 30 days, then the use of any part of the building on the subject land for the purpose of visitor accommodation must immediately cease, and no further such use may occur until any planning approval is granted for same. In addition, Alderock Pty Ltd in these circumstances must demonstrate to the Responsible Authority's satisfaction within a further 30 days that the "food preparation facilities" and the kitchen sink in the former garage area of the building on the subject land have both been fully dismantled and removed from the land (ie. so that the former garage area can no longer be regarded as a separate "dwelling").

3 If Alderock Investments Pty Ltd does provide the necessary planning permit application within the relevant 30 day period, then my orders set out in paragraph 2 above shall be stayed until this planning permit application (including any potential appeal to the Tribunal) has been fully resolved. However, if Alderock Pty Ltd abandons either or both of its permit applications or if the Tribunal makes any future orders that it is satisfied from information provided to it that Alderock Pty Ltd is unreasonably delaying its pursuit of either or both permit applications, then my orders set out in paragraph 2 above shall become operative immediately.

4 If the Responsible Authority (or as applicable, the Tribunal) ultimately refuses the planning permit application for the use of the building on the subject land for visitor accommodation, then from the date of such refusal, that use must immediately cease on the land. Likewise, if ultimately no planning approval is retrospectively given for the development of the former garage area as a second dwelling, then my "dismantle and remove within 30 days" orders in paragraph 2 above will become immediately operative.

5 No order as to costs.

Mr Andrew Jones (Consultant Planner) of Urbis Consultants

1 This overall matter involves two separate Tribunal files, being:

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the matter P1250/2006, being a s.149A application under the Planning and Environment Act 1987. This application involves a request by the owner of the subject land at 898 Point Nepean Road, Rosebud for the Tribunal to make a declaration that the "bed and breakfast" use operating on the subject land is as-of-right, and does not require any planning permit; and

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there is also a related application for enforcement order under s.114 of the Planning and Environment Act 1987, which has been brought by a neighbour Mr Alex Kaufman. Mr Kaufman lives on the property immediately to the south of the subject land.

2 At the hearing of this matter on 24 August 2006, both the P1250/2006 and P748/2006 matters were heard together.

3 At this hearing I heard submissions from Mr Matthews on behalf of Council, from Mr Rogalsky on behalf of the neighbour Mr Kaufman, and from Mr Jones on behalf of the owner of the subject land Alderock Investments Pty Ltd. This included being provided with a variety of property information relating to the subject land, together with various helpful photos.

4 The subject land is located in the area on the north side of Point Nepean Road, between Point Nepean Road and the Beach at Rosebud. The subject land is a "battle axe lot", with the main area of land being accessed via a reasonably long driveway. What used to be the front yard area of the parent title now consists of two separate lots. The party who has brought the application for enforcement order here (Mr Kaufman) owns one of these two lots, being the lot immediately south of the subject land.

5 From the photos provided to me, the dwelling on the subject land is a fairly non-descript post - World War II dwelling. It is common ground that apart from the ordinary rooms of the dwelling on the subject land, there is also at the front (ie. south) end of the building a former garage area, which has been converted into a living area, a kitchen preparation area, toilet and shower and a bedroom. What was the former garage door has been partially bricked up and otherwise converted into a glass sliding door.

6 The locality otherwise is characterised by existing residential area, with the beach to the north.

7 The land is located in a Residential 1 zone, and is also affected by an Environmental Significant Overlay Schedule 25. In addition, the Vegetation Protection Overlay (Township Vegetation) Schedule 1 applies, as does the Design and Development Overlay (Township Design) Schedule 1. These overlays have played no significant role in my findings, although I note for the record that any second dwelling requires a permit under Schedule 1 to the Design and Development Overlay, as well as requiring basic "buildings and works" approval under the Residential 1 zone.

8 The term "Bed and breakfast" is defined in Clause 74 of the Planning Scheme as follows.

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

A building used as a self-contained residence which must include:

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a kitchen sink

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food preparation facilities

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a bath or shower; and

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a closet pan and wash basin.

It includes out-buildings and works normal to a dwelling.

10 In a Residential 1 zone, a "Bed and breakfast use is prima facie as-of-right, but with an associated permit condition that not more than 6 persons may be accommodated, and at least one car parking space must be provided for each two persons accommodated. If this condition is not met, "Bed and breakfast" instead becomes a permissive use.

11 In the Residential 1 zone, there is no "use" permission needed for any number of "Dwellings (excluding a Bed and breakfast)", but "buildings and works" permission is needed for more than one "Dwelling (excluding a Bed and breakfast)" on any one lot.

12 Otherwise, "Accommodation (other than Dependent person's unit and Dwelling)" is a permissible use in a Residential 1 zone.

13 I note that under Clause 52.06 of the Planning Scheme, each separate "Dwelling" requires one car parking space, provided no more than two bedrooms are involved in each dwelling.

14 It was common ground at the hearing of this matter that at least the balance of the building on the subject land (excluding the garage) has been used for some form of visitor accommodation use. Mr Jones on behalf of the owners of the subject land did not contest that the main section of the building on the subject land (excluding the garage) is used regularly (although not all of the time) for visitor accommodation. Mr Jones put to me that in fact there is some degree of use of the former garage as part of the visitor accommodation service and he urged me to find that this use of the entire building constitutes the use of one "dwelling" on an as-of-right basis as a "bed and breakfast" use. This was contested by the other parties.

15 In this regard, at the hearing I was shown various materials including what might be called "marketing information" where the building on the subject land is referred to as a "beach house", as part of a visitor accommodation business branded as "Cast-a-way beach house". This various marketing referred to the building on the subject land as a "two bedroom home" which is "fully self contained" with accommodation for up to six people.

16 The main points of contention at the hearing were:

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whether the building on the subject land constitutes one overall "dwelling", or alternatively whether the former garage area on the subject land has been converted so as to legally become a second "dwelling"; and

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whether or not the aforementioned visitor accommodation business constitutes a "bed and breakfast" as defined by the Victorian planning provisions and whether or not the relevant car parking requirements can be satisfied so as to make that use as-of-right. It was common ground at the hearing that if I was not satisfied that the visitor accommodation use constitutes a "bed and breakfast" as defined including the necessary number of car spaces being available, then the relevant use would require a planning permit from Council.

17 In relation to car parking, it was common ground at the hearing that there is room for no more than two outside car parking spaces on the south side of the existing dwelling. Although Mr Jones put to me that there would be room for a third or fourth dwelling parallel with the existing house, the other two parties challenged whether in reality this potential third and/or fourth car parking space would in practice be useable, given the need for any relevant car to be able to carry out a 3 point turn and then drive out to Point Nepean Road in a forward facing direction.

Findings of Tribunal - Does the Building Constitute 1 or 2 Dwellings?

18 Mr Jones urged me to find that there is only one overall "Dwelling" in question. He relied here on his instructions that there is overlapping use of the laundry by both the hosts and guests, plus his instructions that there is some degree of use of the former garage area by guests plus the hosts sometimes sleeping in one of the bedrooms in the main section of the building.

19 My finding of fact here is that the evidence points to there being two "Dwellings" involved rather than one. Mr Jones' submissions to the contrary are rejected. The key points here are as follows.

20 First, if one concentrates on the definition of "Dwelling" from Clause 74 of the Planning Scheme, both the former garage and the balance of the building each satisfy the four required elements of a "dwelling". In other words, if you look at each of the former garage and the balance of the building separately, in each case there is a toilet, shower, a kitchen sink and a food preparation area. In particular, the former garage area goes well beyond a "kitchenette" in featuring a significant kitchen bench area and a stove and oven (there is also a separate bedroom). It is unimportant for our purposes here that there is a shared use of the single laundry in the building, since the definition of "Dwelling" makes no reference to "laundry".

21 Second, it is telling (regardless of the definition of "Dwelling") that the whole building involves a duplication of the key features needed for occupancy (excluding the shared use of the laundry). In other words, if one compares the former garage area to the balance of the house, there are two kitchens, two toilets, two showers and at least one bedroom in each case. The shared use of the single laundry is not enough to change the basic position here.

22 I have focused on this "duplication" aspect because of the leading role of the previous decision of Manningham City Council v Jurkic (VCAT 2603/2004). In that decision, Member Rickards stated inter alia that the fact that there is a duplication of the key features of the building creates an inference that there are two "Dwellings" rather than one involved. I consider that, in the circumstances here, the duplication of the key occupancy features of the former garage area compared to the balance of the building creates a substantial inference that there are two "Dwellings" in question rather than one. To the extent that Mr Jones tried to explain away this duplication as being a mere matter of convenience, his submissions in this regard were at best mis-guided.

Findings of Tribunal - How Should the Existing Visitor Accommodation Use be Characterised?

23 Mr Jones did not dispute that the building was being used for visitor accommodation, but urged me to find that this use was for "Bed and breakfast", so as to make it as-of-right under the Planning Scheme. This was contested by both Council and the neighbour.

24 My findings here are that:

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the former garage area is being separately used as a dwelling by Mr and Mrs Musqmeci; and

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the balance of the building is being used for what I would best characterise as "visitor accommodation".

25 I do not accept Mr Jones' submission that this is a "Bed and breakfast" use in question, relying on the following analysis.

26 I have already found above that there are two dwellings in question here, not one. This contrasts with the definition of "Bed and breakfast" (with my emphasis) beginning with the words "A dwelling used...", as opposed to "Dwellings used...". Even if Mr and Mrs Musqmeci loosely regarded and marketed themselves as running the one bed and breakfast business, a close reading of the definition of "Bed and breakfast" indicates to me that there can only be a single "Dwelling" in question. In the circumstances here, I have found that the running of the "Cast-a-way beach house" business involves two dwellings, both of which are self-contained.

27 However, even if I was wrong in my analysis in the paragraph immediately above, I consider that the use in question would still be permissible rather than as-of-right, due to the fact that any "Bed and breakfast" use in Section 1 of the Residential 1 zoning provisions involves the condition that there must be one car space provided for every two visitors. In the circumstances here, it was common ground at the hearing that there are only two straight-forward car parking spaces where a vehicle could drive in, and then do a 3-point turn so as to then be able to drive back to the Nepean Highway in a forward-facing direction. There might possibly be a third car parking space parallel with the building that meets this requirement, but I am unconvinced from the evidence available that four such spaces exist.

28 This is critical because the hosts sleep in the former garage when there are visitors, plus the facility is marketed as sleeping up to six guests, so at peak times there would be eight people in the whole building (ie requiring four car parking spaces). The evidence available indicates that no such four spaces are in reality available (ie four spaces where the driver can readily do a 3-point turn and then return to Nepean Highway in a forward-facing direction).

29 For the reasons set out above, my main findings here have been that:

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there are two "Dwellings" as defined in question;

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the business run on the property is a "visitor accommodation" use requiring a planning permit, rather than as as-of-right "Bed and breakfast" use.

30 In reality, no "buildings and works"/DDO permit exists for a second dwelling on the property, nor has any permit been obtained for any visitor accommodation use. However bearing in mind that the neighbour Mr Kaufman has shown some grace in not seeking the immediate closure of the visitor accommodation business nor seeking his costs, I have made orders which provide for Alderock Investments Pty Ltd having the opportunity to seek retrospective planning approval in this regard. However I have drafted these orders so as to still allow for the cessation of the visitor accommodation use and/or the dismantling of the kitchen facilities in the former garage area if (one way or another) no such retrospective approval is granted. I have also made it clear that I am making no order as to costs.