1

I determine:

(a)

The present use of the subject land should be characterised as "accommodation".

(b)

A permit is required to use the subject land for accommodation.

(c)

Use of the subject land is not exempt from the need for a permit under clause 52.23.

2 The hearing of the merits of this application for review is listed on Monday 25 June 2007 at commencing at 2.15pm.

1 The issue to be decided in this case is whether the house on the subject land, known as Holly Lodge, which is regularly let as weekend rental accommodation, requires a planning permit for this use. This depends upon whether the use of the land should be characterised as "dwelling" (no permit required), "residential building" (permit required) or "accommodation" (permit required), and if a permit is required, whether it is exempt under the provisions of clause 52.23 relating to "shared housing".

2 Holly Lodge, is a single storey, somewhat rambling weatherboard house located on a large, well treed block in a residential street of Daylesford. It contains five bedrooms, four bathrooms, and a variety of other rooms, including three sunrooms. Prior to May 2003 it operated as a bed and breakfast. Since then the house is let on the holiday accommodation market as self contained weekend rental accommodation. There have been periodic complaints about this use from neighbours mainly relating to noise, parties, car parking and the comings and goings of large numbers of people.

3 The council required the applicant to apply for a planning permit for the use, which the council characterised as "residential building (tourist accommodation)". A number of objections were received and the council refused to grant a permit. This application for review was lodged under section 77 of the Planning and Environment Act 1987 in respect of that refusal.

4 The applicant now contends that he does not require a planning permit because the land will be used in accordance with the requirements of clause 52.23 of the Hepburn Planning Scheme relating to shared housing.

5 The purpose of this directions hearing is to consider how the use of the land should be characterised and whether or not the planning permit is required.

6 The subject land is in a Residential 1 Zone. In a Residential 1 Zone, dwelling (other than bed and breakfast) is a section 1 use - permit not required. Accommodation (other than dependent persons unit and dwelling) is a section 2 use - permit required.

7 Clause 75 contains nesting diagrams for various land use groups. In the accommodation group[1], the land use term "accommodation" includes a range of accommodation uses including dwelling and residential building. The land use term "residential building" includes the following further range of uses: backpackers lodge, boarding house, hostel, nurses home, nursing home, residential college and residential hotel, which includes motel.

8 The definitions of land use terms are set out in clause 74 and include the following relevant definitions:

A building used as a selfcontained residence which must include:

d) a closet pan and wash basin. It includes out-buildings and works normal to a dwelling.

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

9 Clause 52.23 relates to shared housing and provides as follows:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants or 2 or more people (including people with intellectual disabilities) if the building meets all of the following requirements:

•

Is in an area or zone which is used mainly for housing.

•

Provides self contained accommodation.

•

Does not have more than 10 habitable rooms.

10 The issues in this case concern how the use of the land should be characterised - as dwelling, residential building or accommodation - and whether the use is exempt from the need for a permit under the provisions of clause 52.23 relating to shared housing.

11 It was conceded by both parties that the subject land is not being used for the purpose of a dwelling. I agree. The definition of dwelling provides that it is a building used as a self contained residence which must contain certain facilities. Residence means a place where people live or reside either permanently or for a considerable period of time.[2]

12 It is important to remember that the definition of dwelling in clause 74 is a definition of a land use term and the inclusion of dwelling in tables of uses within various zones relates to the use of land for a dwelling not its development for a building. Buildings and works are separately controlled by zone and sometimes overlay provisions.

13 It is also important when considering whether the land is used as a dwelling not to be distracted by the form of buildings on the land. Just because there is a house on the land does not necessarily mean that it is being used as a dwelling. The house on the subject land may well be used as a residence in other circumstances, but it is not being so used at present. The use of land for planing purposes is not determined by the style of development but the purpose for which the land is actually used. Thus it is fallacious to say that because there is a house on the land ipso facto the land is being used as a dwelling.

14 In the present case, no one resides at Holly Lodge. People stay there temporarily over the weekend or for very short periods of time. I therefore find that the house is not a building used as a residence and therefore the land cannot be said to be used for the purpose of a dwelling.

15 The other alternative uses are residential building or accommodation. Residential building is included in accommodation but the definitions of both uses are the same - "land used to accommodate persons". In order to distinguish between them and decide whether short term tourist or rental accommodation falls within the use "residential building" or "accommodation" it is necessary to look at the common characteristics of those land use terms nested within the term "residential building."

16 The common characteristic of all the land use terms included in "residential building" is that accommodation is provided for multiple people individually. In other words, there are multiple units of accommodation available within the single building or complex of buildings comprising the particular type of residential building. However, in the case of a single house (or flat or apartment etc) there is only one unit of accommodation even though more than one person may be accommodated. The important distinction is that the people accommodated would be accommodated as a group rather than individuals. On this basis Holly Lodge would not constitute a residential building.

17 The other predominant characteristic is that most of the uses - boarding house, hostel, nurses home, nursing home, residential college and residential hotel - are places where people tend to live for extended periods of time as distinct from very short, temporary stays. The exceptions are backpackers lodge and motel, which is included in residential hotel. These types of accommodation tend to specialise in short term accommodation for certain types of travellers. The inclusion of backpackers lodge and motel in the land use term "residential building" appears to ignore this difference in type of accommodation - long stay compared to short stay. It also appears to be contrary to the decision of the Supreme Court in Derring Lane Pty Ltd v Port Phillip City Council.

18 In Derring Lane Balmford J referred to the words of Viscount Cave LC in Levine v Inland Revenue Commissioners[3] who said:

. . . the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place". No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside". In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure

19 On that basis, Balmford J said: "the phrase 'residential building' must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode."[4] Her Honour was concerned in that case with whether a motel was a residential building. At that time the definition of motel in the planning scheme was not the same as it is now[5], nevertheless it still embodied the concept of accommodation of strangers and travellers, essentially short term accommodation. Balmford J then went on to say:

[18] Thus a motel is in effect defined as "a house for the accommodation of strangers or travellers, catering primarily for motorists". Reading that definition with the definitions relevant to "residential" and the passages from Miller and Levene cited in paragraph 15 above, it will be apparent that the concept of a motel, accommodating strangers and travellers, is very far from the concept of a "residential building", being a building in which people have their settled or usual abode. Further, the Tribunal was, as Stephen J found in Spurling, entitled to apply to this question its special expertise in planning matters. For these reasons, I cannot find that on no reasonable view could the Tribunal have found that a motel was not a residential building within the meaning of clause 7-1.4 of the former planning scheme. ...

20 The case of Derring Lane regarding the distinction between residential building and motel illustrates the difficulties associated with characterising land uses where definitions are extremely broad and where there is a lack of rigour and consistency displayed in the way which terms such as "reside", "residential" and "residence" are used in specific definitions nested within broad terms. Certainly in terms of the land use terms nested within "residential building", distinctions between permanent or long stay accommodation and short stay accommodation are not maintained and there are contradictions in the way in which the defining concept of "residential" is applied.[6]

21 So far as the present case is concerned, if I leave aside the anomalies that backpackers lodge and motel represent within the nested term "residential building", a house used for short term rental accommodation does not have a residential character if "residential" is given the meaning ascribed to it in Derring Lane and other cases of relating to a place where people have their settled or usual abode. Nor does such a house share the other common characteristic of uses nested within the term "residential building" of being a building that offers multiple units of accommodation to multiple individuals or groups who are not necessarily related or connected to one another. I therefore conclude that Holly Lodge is not a residential building.

22 This therefore leaves only the broadest land use term of "accommodation" that the use of the subject land may fall within.

23 In the case of Radford v Hume CC[7] I had to deal with a proposed use of land for "pet supply distribution" and whether it should be characterised as a "shop" or as "retail premises". This required a consideration of general principles regarding the characterisation of land uses and the interpretation of nested uses. In describing the preferred approach to characterising land uses, I said:

[2] I have taken the view that when characterising uses that may fall within two or more definitions it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms. It is also necessary to have regard to the "big picture" to ensure that the purposes of planning and the objectives that the planning scheme seeks to achieve are not frustrated by unduly restrictive interpretations of land use terms

24 More specifically with respect to the interpretation of nested uses, I said:

[29] The structure of the nesting diagrams in clause 75 is such that specific land use terms are nested within the broadest land use term. However, the separate, specific land use terms nested below them do not necessarily "cover the field" of the head land use term. Thus in the education centre group, education centres exist that are neither a business college, an employment training centre, a primary school, a secondary school nor a tertiary institution. Likewise, no one would suggest that the land use terms included in the industry group "cover the field" of all types of industry. "Industry" remains a separate and broad category of use in its own right apart from the separately defined uses falling within the industry group.

25 I consider that the same reasoning is applicable to characterising land uses within the accommodation group. In my view, none of the defined land use terms included in the accommodation group readily covers the type of accommodation provided in the present case, namely a single house (or flat etc) which is used for the purpose of short term rental accommodation but which is not a residence in terms that no one lives or resides there permanently or for considerable periods of time. It is surprising that there is no specific definition that encompasses short term, single unit accommodation such as holiday houses and tourist accommodation like Holly Lodge. In these circumstances, such accommodation units must be characterised as "accommodation". It is a situation where the separate, specific land use terms nested below accommodation in the accommodation group in clause 75.01 do not "cover the field" of the head land use term.

26 I therefore find that the subject land is being used for the purpose of accommodation. As such it requires a permit in the Residential 1 Zone unless it falls within the exemption created by clause 52.23 for shared housing.

27 Clause 52.23 deals with shared housing and provides as follows:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants or 2 or more people (including people with intellectual disabilities) if the building meets all of the following requirements:

•

Is in an area or zone which is used mainly for housing.

•

Provides self contained accommodation.

•

Does not have more than 10 habitable rooms.

28 It was argued by the applicant that Holly Lodge fell within the ambit of clause 52.23, the only issue being whether it has more than ten habitable rooms. It was submitted that to overcome any doubt on this issue, several of the sunrooms which adjoin some of the bedrooms could be converted to walk-in robes thereby reducing the number of habitable rooms and ensuring that the house meets the criteria in clause 52.23.

29 In deciding whether Holly Lodge is shared housing and therefore exempt under clause 52.23 from the need for a permit, I must decide whether it presently meets the three requirements set out in the clause and if it does, whether it can be said "to house" people within the meaning of the clause having regard to the provisions of Clause 16.04 of the State Planning Policy Framework (SPPF) and the history of this and related clauses dealing with crisis accommodation (clause 52.22) and community care units (52.24).

Is in an area or zone which is used mainly for housing

30 The subject land meets this requirement. It is in a Residential 1 Zone and the surrounding area is used mainly for housing.

31 I find that this requirement is met and that Holly Lodge does provide self contained accommodation.

32 It was submitted by the council that based on the case of Intervarsity Developments Pty Ltd v Frankston CC[8] there was some doubt about whether the building as a whole must provide self contained accommodation or whether each person housed must be provided with self contained accommodation. I do not consider that Intervarsity has any application to the facts of the present case. Further, Intervarsity has been explicitly distinguished and overruled by the later cases of Cobden v Greater Bendigo CC[9] and Knox CC v Tulcany Pty Ltd[10]. The Intervarsity case was dealing with student accommodation where individual rooms were let out to students. It concluded that "self contained accommodation" as required by clause 52.23 did not mean that the dwelling or building as a whole shared by the occupants must have self contained accommodation, but meant the separate room of each inmate. Whilst Cobden's case was dealing with a community care unit, clause 52.24 also contains a requirement to provide self contained accommodation for clients. On this point, Acting Deputy President Byard said: "I am persuaded that self contained accommodation in clause 52.24 in relation to community care unit means that the unit, not individual rooms, is to be self contained."[11]

33 In Knox CC v Tulcany Pty Ltd Senior Member Liston was dealing with a boarding house or rooming house and clause 52.23 specifically. He said:

[25] The Tribunal recognises the difficulty of interpreting clause 52.23. "Provides self-contained accommodation" is capable of meaning "for each person" or "for the building as a whole". A difficulty of the former interpretation is, as said by Senior Member Byard in Cobden, that this proposition "would involve there being a series of self-contained flats or dwellings, rather than an accommodation 'unit'" A difficulty of the latter is that it is hard to imagine a domestic building of ten habitable rooms or less which fails the test of shared housing.

[26] Ultimately we are satisfied that the correct approach is that the building, as a whole, must be self contained. Clause 52.23 is not unambiguous, but there is nothing in the clause which necessarily requires its interpretation based on an analysis of the tenancy arrangements of the occupants. The Tribunal in Cobden v Greater Bendigo CC [2003] VCAT 1395, dealt with the issue of self contained accommodation in the context of a community care unit, nevertheless the decision of the Tribunal in the Cobden case supports our conclusion in this matter.

34 I support the conclusions in Cobden v Greater Bendigo CC and Knox CC v Tulcany Pty Ltd in preference to Intervarsity Developments Pty Ltd v Frankston CC. I find that so far as the requirement in clause 52.23 regarding self contained accommodation is concerned, it is the building as a whole that must provide self contained accommodation. Accordingly, there is no question that Holly Lodge is a building that provides self contained accommodation.

35 Based on the current configuration of Holly Lodge, I find that there are more than ten habitable rooms and consequentially the building does not meet this requirement of clause 52.23. The definition of habitable room in clause 72 is:

Any room of a dwelling or residential building other than a bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, stair, lobby, photographic darkroom, clothes drying room and other space of a specialised nature occupied neither frequently nor for extended periods.

36 I do not consider that a sunroom "is a space of a specialised nature which by its very nature is occupied neither frequently nor for extended periods." By contrast, a sunroom is the sort of room that may be expected to be used frequently and where people may sit for extended periods. Whether that happens in a particular instance is not relevant. Rather, it is the general nature of the room that must be considered.

37 The Applicant has suggested that alterations could be made to the building to convert the sunrooms to walk-in robes. That is a matter for the Applicant to pursue if he so wishes, but it is not simply a case of renaming these rooms. A walk-in robe would need to be able to be characterised as a walk-in robe in fact, not just by reference to a name on a plan. Walk-in robes are not normally the size of the sunrooms which are proposed to be converted in the present case and do not normally have windows and external doors as these rooms do.

38 On the facts as they presently stand, I find that the sunrooms are habitable rooms and consequently the building has more than 10 habitable rooms.

Can tourist or short term accommodation be characterised as shared housing?

39 The question of whether tourist or other short term accommodation can be characterised as shared housing (provided all the requirements are met) is an important issue. Unless it can, the Applicant would be unwise to undertake any alterations to the subject building for example.

40 The issue arises in a number of ways. On a plain English reading of the term "shared housing", the concept of tourist or other short term rental accommodation does not immediately spring to mind. The concept of shared housing is one more readily associated with student housing or housing shared by group of people not necessarily related.

41 Then there is the expression used in clause 52.23, "to house" a person or people. The verb "to house" is defined in the Macquarie Dictionary as meaning:

18. to put or receive into a house; provide with a house. 19. to give shelter to; harbour; lodge. 20. to remove from exposure; put in a safe place.

42 In one sense, clause 52.23 can be read as implying that a permit is not required if one person uses a building to house another person or people. Reference to "including people with intellectual disabilities" creates an impression that in housing people they are being offered shelter and may otherwise be vulnerable. As Senior Member Walker said in the Intervarsity case: "The use of the word 'house' as a verb would be appropriate to describe the activities for government or charity providing people with housing but it is an odd verb to apply to a landlord renting accommodation on a commercial basis."[12]

43 It is possible that when the provision was first introduced into the planning scheme it did carry a connotation of providing shelter to vulnerable people. Thus in Odyssey House Victoria v Benalla Rural CC[13] (another case which dealt with the group of exemptions at clauses 52.22, 52.23 and 52.24 for crisis accommodation, shared housing and community care units) the Tribunal observed:

[44] As noted in the course of the hearing the Presiding Member in this case was a member of an Advisory Committee established in the 1980's to consider the question of whether crisis accommodation, shared housing and community care units should be made "as of right" in some places - that is to say, able to commence operation without the need for a planning permit. A basis for establishing this Committee was to consider ways whereby such uses, of a moderate scale, could avoid the public notification and appeal process which, almost without exception, was delaying but hardly ever preventing their introduction. In the case of emergency accommodation the public notification process also served to highlight the location of these facilities, which was contrary to an important operational requirement for such services. Invariably the host community held misgivings as to the possible impacts that these uses might have on their sense of well-being and security. It was resolved however that provided the scale of such premises was kept at "domestic" levels they should be regarded as a legitimate activity in any area zoned or used primarily for housing. ...

44 On the other hand, the reference in clause 52.23 to people with intellectual disabilities is but a single, inclusive reference. There are no other references to people with specific characteristics which might establish a class or category of people that the expression "to house" might relate to. The question is whether this reference to a single type of people constricts the otherwise very wide meaning of shared housing in clause 52.23.

45 Whilst the verb "to house" may carry connotations of harbouring or sheltering, equally it has a broader, more neutral meaning of lodging or simply providing someone with a house. This is something that the owner or landlord of tourist or other short term accommodation does for their tenants.

46 I find that it is possible to interpret clause 52.23 as being applicable to any situation where accommodation is provided in a building for any person or people if the building meets each of the three specified requirements. It is, as Senior Member Liston said in Tulcany, a very general provision indeed. However, as Senior Member Liston also said, an examination of the history of the introduction of the planning scheme provisions now in clauses 52.22, 52.23 and 52.24 makes it evident that this was the intention, i.e. that it be a very general provision.

47 The Tulcany case contains a comprehensive account of the history of the provisions in the planning scheme relating to crisis accommodation, shared housing and community care units.[14] The history of these provisions was examined in the context of considering clause 16.04 of the SPPF and the interpretation placed on the clause in the Intervarsity case. The issue in the Intervarsity case was whether the reference to shared housing in clause 16.04, but not in the heading to the clause, affected the interpretation to be given to the concept of shared housing in clause 52.23.

48 Clause 16.04 provides as follows:

16.04 Crisis accommodation and community care units

To encourage the establishment of crisis accommodation and community care units in residential areas and to ensure that their location is kept confidential.

Planning schemes must not require a planning permit for or prohibit the use of a dwelling of up to 10 habitable rooms in a residential area as shared housing or crisis accommodation.

Planning schemes must not identify the site of a community care unit or a dwelling used for crisis accommodation as having that use.

Planning schemes must not require a permit for or prohibit the use of buildings for community care units (with accommodation for no more than 20 clients plus supervisory staff) in areas used mainly for housing.

49 The particular point of issue in the Intervarsity case turned upon the fact that the heading to clause 16.04 refers only to "crisis accommodation and community care units" but clause 16.04-2 also refers to shared housing. The details of the Intervarsity case are no longer relevant but for the reasons given by Acting Deputy President Byard in Cobden's case, which were endorsed in Tulcany and with which I agree, I do not consider that the reference to shared housing in clause 16.04 justifies reading down the ambit of the concept of shared housing in clause 52.23 so that it becomes something less than a very general provision. As Acting Deputy President Byard said in Cobden:

[39] In the Intervarsity case there has been an attempt to interpret these policy provisions, and even the implementation provisions, in terms of the heading to Clause 16.04 on the basis of the omission of shared housing from its heading. If the Intervarsity case is suggesting that there is no such concept in the planning scheme as shared housing as distinct from crisis accommodation and community care units, then I must respectfully disagree. Each of the three exemptions is clearly a separate and distinct concept with its own "particular provision" in Clauses 52.22, 52.23, 52.24 respectively. No wording in or omission from the heading of Clause 16.04 can alter that. In my opinion there is nothing in the implementation provisions or the policy provisions to justify the notion that the term "shared housing", where it appears in any of them, is merely a subset or part of crisis accommodation or community care unit. The separate existence of Clause 52.23, in my opinion, prohibits such a notion. I think it is clear that the expression "shared housing" in the first paragraph under general implementation in Clause 16.0-4-2 refers to shared housing in terms of Clause 52.23.

50 The only other issue to consider is whether the reference to shared housing in clause 16.04-2 limits the application of the exemption in clause 52.23 such that it could not apply to tourist or short term accommodation of the nature in the present case. I do not consider that clause 52.23 is so limited for the following reasons.

51 Whatever might have been the history to the introduction of the shared housing and related provisions into planning schemes in the 1980's, planning schemes have evolved since that time. As I said in Radford v Hume CC, when characterising land uses, "it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms."[15]

52 In interpreting clause 16.04 it is relevant to note that the objective relates only to crisis accommodation and community care units and the objective is to ensure that their location is kept confidential. This objective does not relate to shared housing. It is only in the general implementation section of clause 16.04-2 that shared housing is mentioned in the context of stating that a planning permit is not required for a dwelling of up to ten habitable rooms in a residential area. Shared housing is not mentioned in the context of the requirement that planning schemes must not identify sites being used for community care units or crisis accommodation. Thus to the extent that shared housing is referred to at all in clause 16.04, it is only on the basis that housing of a domestic scale (meaning not more than ten habitable rooms) in a residential area should not require a permit.

53 The inclusion of shared housing in clause 16.04-2 might be questioned on the basis of intellectual rigour and good drafting, but to my mind its inclusion should not be used as a reason for reading down the application of clause 52.23 in today's context.

54 A further reason why I consider that clause 52.23 should not be read down in today's context is based on the implications that would arise if a permit was required for any single unit of accommodation not being a dwelling (ie a building used as a residence) or otherwise falling within a defined accommodation land use term. There are innumerable holiday houses and other houses (or single units of accommodation such as flats or apartments) which are used for tourist or short term accommodation that would require a planning permit if the exemption in clause 52.23 did not apply. If they all required a permit for "accommodation", this would create much additional work for responsible authorities; it would create an unnecessary burden for owners in having to apply for a permit; and it would upset the status quo.

55 If people choose to let out a holiday house or other single accommodation unit, a planning permit for the use of land for this purpose is not generally sought or required by councils, probably on the erroneous basis that such accommodation a "dwelling". It is only when complaints arise that a council's attention tends to become focussed on whether or not the use of land for tourist or short term accommodation can properly be characterised as a dwelling. As I have indicated earlier, it is probably not the correct characterisation because the land is not being used as a residence. But the question arises as to whether any good planning purpose would be served by requiring a planning permit for a domestic scale accommodation use, which in other circumstances might well be used as a dwelling.

56 In my view, the answer to this question is no. If one has regard to other provisions in the planning scheme, domestic scale accommodation does not require a planning permit. A dwelling is a section 1 use in all residential zones and many other zones as well. Bed and breakfast, which accommodates no more than six persons away from their normal place of residence, is a section 1 use in all residential zones and most rural zones. Likewise, the limit of ten habitable rooms applicable to crisis accommodation and shared housing evinces an intention that such accommodation, where it is of a domestic scale, does not require a permit irrespective of how it might otherwise be characterised in land use terms. I see no justification for requiring planning permit for domestic scale accommodation just because people might stay in tourist or rental accommodation for only a short period of time compared to a more considerable time or permanently. Whilst the behaviour of guests staying in such accommodation might from time to time give rise to complaints due to noise or an excessive number of comings and goings of vehicles or people, this is no different to complaints that may arise from time to time from the behaviour of residents living permanently in a dwelling. The potential for complaints is likely to increase as the size of the accommodation unit increases. For this reason I consider that the limit of ten habitable rooms provides a suitable cut-off point for distinguishing between accommodation which is of a domestic scale and accommodation which is not.

57 In my view, if the government considers that tourist or short term accommodation should not have the benefit of the exemption from the need for a planning permit provided by clause 52.23, then the Victoria Planning Provisions and all planning schemes should be amended accordingly. But based on the planning scheme as it is today, my conclusion is that where accommodation of any sort, including tourist or other short term accommodation, is of a domestic scale and meets the requirements of clause 52.23 in terms of being in an area or zone which is used mainly for housing, provides self contained accommodation and does not have more than 10 habitable rooms, then under the operation of clause 52.23 it does not need a permit.

58 My conclusion on the facts in the present case is that the subject premises does not comply with clause 52.23 because the building has more than ten habitable rooms. Accordingly, it is not exempt from the need for a permit under this provision. The use of the land must be characterised as accommodation, which is a section 2 use in the Residential 1 Zone. Accordingly, a planning permit is required to use the subject land for this purpose.

59 In these circumstances, the Tribunal has jurisdiction to hear and determine this application for review against the council's refusal to grant a permit. I will therefore list the case for hearing on its merits in the normal way.

[1] Clause 75.01 Hepburn Planning Scheme

[2] See Derring Lane Pty Ltd v Port Phillip City Council [1999] VSC 269; Merrett v Moira SC [2005] VCAT 242 at [16] - [17]

[3] [1928] UKHL 1; (1928) AC 217 at 222, quoted by Latham CJ in Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 99

[4] Derring Lane Pty Ltd v Port Phillip City Council [1999] VSC 269 at [16]

[5] Clause 74 of the Planning Scheme defines motel as: land used to provide accommodation in serviced rooms for persons away from their normal place of residence, and where provision is made for parking guests' vehicles convenient to the rooms.

[6] The definition of group accommodation is a classic example of this inconsistency. Group accommodation is defined as: Land, in one ownership, containing a large number of dwellings used to accommodate persons away from their normal place of residence. It is a contradiction in terms to describe such accommodation as "dwellings" having regard to the definition of dwelling as a residence, which has been consistently interpreted by courts and tribunals to mean a place where people live or reside permanently or for a considerable time, and to then say that the accommodation is for persons away from their normal place of residence. The definition would make more sense if the word "dwellings" was replaced by the word "buildings" or even "houses".

[7] [2006] VCAT 2662

[8] [2001] VCAT 833

[9] [2003] VCAT 1395

[10] [2003] VCAT 1691

[11] [2003] VCAT 1395 at [52]

[12] [2001] VCAT 833 at [33]

[14] Knox CC v Tulcany PL [2003] VCAT 1691 at [20] - [24]. It is noted that I was the chair of the panel that considered and reported on amendment 372 to the Melbourne Metropolitan Planning Scheme which initially introduced the shared housing provisions and which is referred to in this case.

[15] [2006] VCAT 2662 at [2]