Applicant v Respondent

3 The site falls within an Industrial 1 Zone, within which 'office' is a permissible use, but 'dwelling' is permissible only if it constitutes a 'caretaker's house', as defined by the planning scheme.

4 The appellant successfully applied to the Victorian Civil and Administrative Tribunal ('VCAT') to amend the existing planning permit governing the land to regularise the office use, but was refused an amendment of that permit to authorise the use of the first floor area as a caretaker's house.

A dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant.[1]

6 The appellant now seeks leave to appeal on three questions of law. The application for leave has been argued and heard on the basis that the Court should determine not only the question of leave, but also the substance of the points in issue.

7 The appellant submits that VCAT misdirected itself in three respects:

(a) by holding that the word 'site' means 'lot' in applying the definition of caretaker's house;

(b) by having regard to the proportionality of the relationship between the scale of the dwelling and the scale of the business operation requiring supervision when determining whether the dwelling constituted a 'caretaker's house'; and

(c) by holding that there is a greater onus on an applicant to demonstrate that the proposed caretaker's house is a necessary part of the business where the proposed caretaker's house is located in an area of substantive industrial use.

Proposed ground one - did the Tribunal equate 'site' with 'lot'

8 The appellant submitted that the Tribunal wrongly conflated the terms 'site' and 'lot' in applying the definition of 'caretaker's house'.

9 The council concedes, as a matter of statutory construction, that the word 'site' as it appears in the definition of 'caretaker's house':

(a) is not defined by the planning scheme and is to be given its ordinary meaning, and as such is a question of fact;

(b) does not necessarily have the same meaning as 'lot' as defined by the planning scheme;[2]

(c) notwithstanding (b), may describe a 'lot' as defined by the planning scheme;

(d) may describe part of a 'lot' as defined by the planning scheme; and

(e) may describe more than one 'lot' as defined by the planning scheme.

10 I accept that these concessions are properly made.

11 The answer to the appellant's first proposed ground depends upon an analysis of the Tribunal's decision. That decision was structured in the following way:

(a) The Tribunal identified the need for a caretaker's house to be occupied by a supervisor of a building, operation or plant on the same site as the house. It held that supervision means overseeing the site in connection with the conduct of the business.

(b) The Tribunal concluded that in this case, the dwelling could not be said to be a caretaker's house by reference to lot one alone.

(c) The Tribunal concluded that there was no binding link between the ownership of the four factories as a whole, or the companies operating them, so as to enable it to be said that the dwelling would provide for supervision of all four lots.

(d) The Tribunal further concluded that there were significant reverse amenity considerations arising from the need to maintain the viability of nearby industrial uses, including an adjoining car wrecker to the south-east, and that these were not outweighed by the need for a caretaker's house.

12 The Tribunal expressed its ultimate conclusion as follows:

Whilst I find that a caretaker's house may provide benefits to the landowner of 1/43 Power Street, Bayswater I find these benefits do not outweigh the potential amenity costs to the adjoining industrial businesses and the possible consequences to orderly planning. I find there is insufficient nexus between the use of a caretaker's house in 1/43 with the office use in this building and an untenable link between the occupation of 1/43 as a caretaker's house to oversee supervision of separate businesses on adjoining titles.[3]

13 When the Tribunal's reasons are understood within the structure identified above, the first proposed ground of appeal must fail.

14 It is apparent that the Tribunal did not simply treat lot one as 'the site', but went on to consider whether the four lots should, as a matter of fact, be treated as functioning together as one site. The adverse conclusion it reached on this issue was one of fact.

15 The appellant submitted that the Tribunal's use of the word 'untenable' (as opposed to a word like 'insufficient') indicated that the Tribunal simply foreclosed consideration of the issue and concluded that it was not possible for the four lots to amount to a 'site'. I do not accept this interpretation of the Tribunal's reasons. It is clear that the Tribunal did not proceed on the premise that the notion of site was to be equated with that of a single lot.

16 The Tribunal considered whether the current arrangements amounted to the aggregation of one site and concluded as follows:

I find there is no binding link between the ownership of the four factories or between the ownership of the three companies that operate from the four factories. From information tabled, Mr Laukart appears to be the sole director of the companies and the superannuation fund that owns the businesses and the buildings, but there is nothing to require that any of these businesses must be retained in common ownership or that the buildings cannot be separately sold by either Mr Laukart or his superannuation company. The factories are in four separate titles and the businesses are separate entities that happen to be owned by the same person. Whilst Mr Skinner stated Mr Laukart provides security that is monitored to his dwelling the only business he is directly supervising 'on site' is his office within 1/43 Power Street. The others are immediately proximate, but not 'on site'.[4]

17 The Tribunal also considered whether an agreement could be entered into which would in effect create one site:

I find such an arrangement too convoluted and demonstrates that it is not that the caretaker's house is an integrated part of supervising the business on site, but convenient that the owner of the current tenancies across four sites is close to each of the business. If an agreement were entered into I remain unclear as to how it could effectively work in practical circumstances. The agreement would need to be between at least two different businesses (e.g. the tenancies of factories 1 and 4) and two different owners (as the owners of these two factories are different). It would then need to bind both the owners and the tenants that the separate businesses must operate together and across two separate titles. I find this an untenable position and not the intent of the caretaker's house provision which is to provide for a person to live 'on site' to supervise operations occurring where the business is held.[5]

18 Whether the Tribunal was correct as a matter of fact in reaching these conclusions or not, it is plain that they were open to the Tribunal. It is only where a finding is not open on the evidence before the Tribunal that it will amount to an error of law.[6]

Proposed ground two - the relevance of proportionality

19 The appellant submitted that the Tribunal wrongly considered the factor of proportionality at the initial stage of determining whether the dwelling met the definition of 'caretaker's house', rather than solely at the point of exercising its discretion whether to allow the amendment. I do not accept this submission.

20 The notion of proportionality was logically relevant to the question of whether the proposed caretaker's house could, in a real and substantial sense, be said to be 'occupied by a supervisor' and hence used for the purpose of supervision.

21 In particular, it was open to the Tribunal to consider whether the primary purpose of use of the site would be a residence, rather than a business. In turn, it was this consideration which materially informed the Tribunal's conclusion that the dwelling on lot one could not sensibly be said to be a caretaker's house. The Tribunal had regard to the balance of the proposed activities on lot one:

I find that it there is insufficient nexus to substantiate that a 163sqm dwelling is required to oversee and supervise work in an 83sqm office that is contained within factory 1. The primary purpose of the site should remain a business, not residence. I therefore find that a caretaker's house cannot be substantiated for the use of 1/43 Power Street alone. This was also acknowledged by Mr Skinner in his verbal submissions at the hearing.[7]

22 The Tribunal's conclusion in this respect was not one which the appellant's representative disputed before it, and I am satisfied that the Tribunal did not misdirect itself. It was entitled to enquire as to the real and substantial purpose of the use of the dwelling. The Tribunal found that if the site was confined to lot one, then the dwelling could not be a caretaker's house, because the primary purpose for which the site so described was used was as a dwelling. That finding was one of fact and does not disclose an error of law.

Proposed ground three - the relevance of necessity

23 In dealing with the discretionary aspect of its conclusions, the Tribunal expressly referred to, and accepted, the submission that it was not necessary for the appellant to demonstrate need for a caretaker's house in order to obtain a permit.

24 It is common ground that the relevant principle was correctly stated in the decision of Senior Member Marsden in Jablonski v Port Phillip CC:[8]

The test provided by the planning scheme is not whether a caretaker's dwelling is "necessary" for the operation of the business, but rather whether there is a supervisory nexus between the business and the dwelling.[9]

25 Nevertheless, the Tribunal addressed the question of need in connection with the orderly planning of the area:

Further I find that such a house needs to be considered in context of maintaining a viable operation not only of the business on site, but also the nearby businesses of the Industrial 1 area. In this location there is car wreaker (sic) immediately to the south east of the site that has significant off site amenity impacts.

Mr Skinner noted that a permit applicant does not have to demonstrate a need for a caretaker's house on site, only that it provides a supervisory role. I agree that the planning scheme does not require need to be demonstrated, but it does require some understanding that the business on site is of a scale or form that requires support of an on site caretaker to distinguish the dwelling as primarily for taking care of the business, rather than primarily to provide general accommodation as a dwelling. In this site context, the site of 1/43 Power Street clearly does not support a caretaker's house for the business within this site, even by Mr Skinner's own admission. Linking titles on the site to in effect make up a 'critical mass' of caretaker role I find a tenuous demonstration of how the house is necessary to the needs of the business 'on site'. In this location where there is substantive industrial uses, I find there is greater onus on demonstrating that the house is a necessary part of the business, rather than simply convenient to be close by.

On balance of the impacts to these adjoining businesses and the lack of supervisory nexus as explained above I find that the use and development of the caretaker's house Factory 1 cannot be supported.[10]

26 I am not persuaded that, when read as a whole, these statements should be interpreted as indicating that the Tribunal regarded the demonstration of need as an essential pre-requisite to approval, contrary to the clear principle it initially stated. Nor do I consider that the Tribunal brought forward a consideration relevant to the exercise of its discretion when considering whether the proposed dwelling met the definition of 'caretaker's house', as submitted by the appellant.

27 The better reading is that the Tribunal regarded demonstration of need as potentially outweighing reverse amenity concerns. There was no error in this.

28 It is not sufficient that the Appellant identify some words potentially suggestive of error, it must demonstrate that the Tribunal in fact misdirected itself.[11]

29 Further, the concern that this was a case in which approval was sought by the appellant because it was 'simply convenient to be close by' was reiterative of the primary factual basis identified by the Tribunal for refusal of the application in parts 2 and 3 of its reasons. The Tribunal was not persuaded that the dwelling would in fact be used for supervision of the site. This conclusion was dispositive of the appeal without consideration of the discretionary matters referred to at [25] above.

30 The Tribunal found against the appellant in respect of the approval of a caretaker's house, both by rejecting the appellant's characterisation of the proposed use on the facts and as a matter of discretion, balancing relevant planning considerations.

31 In the circumstances, no error of law has been demonstrated and leave to appeal should be refused.

[1] Clause 74 of the Knox Planning Scheme.

[2] Clause 72 of the Knox Planning Scheme defines lot as: A part (consisting of one or more pieces) of any land (except a road, a reserve, or common property) shown on a plan, which can be disposed of separately and includes a unit or accessory unit on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan.

[3] Laukart v Knox City Council [2011] VCAT 1269 (4 July 2011) ('VCAT Decision'), [25].

[6] Franceschini v MMBW and Ors (1980) 57 LGRA 284; S v Crimes Compensation Tribunal [1998] 1 VR 83, 88.

[8] [2004] VCAT 1781.

[10] VCAT Decision, [14]-[16] (citations omitted).

[11] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 per Smith J and 22 per Adam J.