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

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

1. There are thus two limbs to the definition:
   • the four nominated facilities must all be present, and the absence of any one removes the use from the definition of "dwelling"; and
   • even if all four facilities are present, the building must still be "used as a self-contained residence".
2. As to the first limb, there is clearly a kitchen sink, a bath or shower, and a closet pan and wash basin in the studio/bungalow. Whilst there was a token debate about whether there were "food preparation" facilities, I have no doubt that these exist. Food preparation does not require that there be cooking facilities. Using the Macquarie Dictionary (4th Edition) as a guide, food preparation in this context is simply "to get ready for eating, as a meal, by due assembling, dressing or cooking". Whilst there appears to be no oven, the photographs tendered before me show that there are two reasonably sized kitchen benches and a small refrigerator, and the respondent openly conceded that his daughter (who occupies the studio/bungalow) has breakfast there and often prepares her lunch.
3. I therefore find that the first limb of the definition of "dwelling" is met.
4. The second limb is more problematic for two reasons - what constitutes a "self-contained residence" and what constitutes "use". As to the first of these and, again, using the Macquarie Dictionary (4th Edition) as a guide:
   • a "residence" connotes a degree of permanence. I am satisfied that, by the respondent's admission, his daughter lives at the site as her principal place of residence for the time being;
   • "self-contained", in the context of a residence means a house or flat having its own kitchen, bedroom and toilet (ie not sharing any of these). A "kitchen" is commonly regarded as a room equipped for or appropriated for cooking, and "cooking" involves the preparation of food by heat - for example, boiling, baking, roasting, etc.
5. Under this second limb of the definition of "dwelling", the absence of an oven, microwave oven or other cooking appliances could therefore lead me to a view that the studio/bungalow is not self-contained. The responsible authority contended that with the two kitchen benches, several power points, the presence of tea and coffee making facilities, and having regard to the wide range of portable cooking appliances available on the market, I should be suspicious that the food preparation area is in fact a kitchen used for cooking, and that the portable appliances could easily be removed to give a different impression upon any Council inspection on notice. Indeed, I am suspicious, but there is no clear proof of what the responsible authority alleges.
6. The respondent's submission was that his daughter lived

semi-independently in the studio/bungalow, but used the main residence (ie the respondent's main dwelling) for cooking and for the evening meal, and the studio/bungalow was therefore an outbuilding or adjunct to that main dwelling rather than a separate dwelling. This submission was not contradicted by any evidence or submission by the responsible authority over and above what I might reasonably "assume" from the set-up of the studio/bungalow. 7. This brings me to the second issue under the second limb of the definition of "dwelling" - ie that of use. The definition of "use" includes proposed use, so I am not limited in my inquiry to the actual use being conducted at present. However, even "proposed" use carries with it a connotation of intent to undertake a use of the building for a particular purpose, rather than looking just at whether the building is capable of being used for that purpose. If I needed to look only at whether this studio/bungalow is capable of being used as a self-contained residence, I would be satisfied of this on the material and evidence provided, and given the relative ease of adding a portable cooking device such as a microwave oven to complete the dwelling. 8. The responsible authority referred me to the decision of Deputy President Gibson in Cotsonis v Darebin City Council[1], where some of the principles discussed above were also canvassed. In that case, there was an allegation that a dark room was being used as a kitchen. However, the Tribunal found that neither limb of the definition of "dwelling" was satisfied and that there was no clear intent to use the building in that case as a self-contained residence. I am satisfied that the set-up of the building in this case is much closer to being a "dwelling" than the building in Cotsonis. However, I nonetheless agree with that decision to the extent it refers to the need for the Tribunal to be satisfied that there is an intention to use the studio as

self-contained accommodation, and to look at the way the building is actually being used in order to decide if there is any breach. 9. There are some features of the use in the present proceeding which raise alarm bells, including separate vehicle access, a separate entrance, and a separate street number and separate letterbox. The responsible authority also submitted that the studio/bungalow had been let in the past, and there was a prospect of a permit being sought for a four dwelling development of the property where there would be no change to the studio/bungalow in forming one of those dwellings. 10. Equally, there was a submission from the respondent that he wished to give his adult daughter a degree of independence, and that he had checked with the building surveyor as to what he could provide without the building being characterised as a dwelling, and had stayed within the confines of what he was advised. 11. The planning framework needs to facilitate a range of semi-independent accommodation for adults still living at home, and this increasing trend means that there will sometimes be a fine line in determining what constitutes a separate dwelling in particular circumstances. I appreciate the difficulty that responsible authorities face in this regard, where the definition of "dwelling" depends to a large degree on establishing the intent of the use and whether it is actually being used as a self-contained residence at any particular point in time. 12. In the end result, it is the lack of formal evidence by the responsible authority as to the actual or proposed use that determines this matter in favour of the respondent. As the applicant for an enforcement order, the responsible authority (rather than the respondent) bears the onus of proof, and there are many decisions of this Tribunal where it has been indicated that a contested application for enforcement order will carry with it a higher standard of proof than an ordinary application for review[2]. In such circumstances, it is more difficult for the Tribunal to rely solely on submissions and assertions rather than more formal evidence. The responsible authority in this case presented no formal evidence (for example, by affidavit or witness evidence) that confirmed the actual use included all of the components (including cooking facilities) necessary to establish the use as a dwelling. At present, there is insufficient evidence that the building (as opposed to the "capability" of the building) is as a

self-contained residence, nor any clear evidence that this is the intended future purpose. 13. In the responsible authority's written submission to me, it acknowledged that the fact that the building may currently be occupied by the respondent's daughter would align it with the Cotsonis principles, and then stated:

To this end, whilst it may not presently be used as a self-contained dwelling, it has in the past and therefore there is nothing stopping it happening again. As such, a deviation from the principles of the Cotsonis case is warranted and consideration should be given to the possible use.

This passage virtually concedes that the responsible authority is relying on the past use or capability of the building to be used as a dwelling, rather than its actual or proposed use. Based on this concession by the responsible authority, I do not believe its application for enforcement order is made out at this time.

1. As I have indicated elsewhere in these reasons, I appreciate the difficulty faced by responsible authorities in matters of this nature, and I do not believe the respondent should take any great comfort from these reasons. If the responsible authority was able to provide a greater level of evidence that the respondent's daughter was cooking meals in the food preparation area, or that there were portable cooking appliances in that area, or that there was a clear intent or purpose to use the studio/bungalow as a self-contained residence, I would not hesitate to grant an enforcement order as I believe that this evidence would change the characterisation sufficient to bring the use within the definition of "dwelling". Ideally, the respondent should take steps to either legitimise the use by seeking a permit if it is intended that the building be used (for practical purposes) as a dwelling, or take steps to more clearly remove items which create inferential evidence of the use of the building as a self-contained residence, such as the separate street numbering and letter box, etc.
2. However, based on the materials and evidence provided at the prompt final hearing before me, the application for enforcement order is not made out at this time, and ought to be properly dismissed.

[1] [2005] VCAT 232

[2] eg Traralgon City Council v Sella Ira Pty Ltd (P88/0616); reported in Suanosio v Colwell (1989) 2 AATR 26, 30-31.