Mr Dominic Scally, Solicitor, appeared on behalf of the Responsible Authority.

Mr Peter Sorel and Mr Lance Marshal, Respondent/Objectors, each appeared on their own behalf and on behalf of their families.

Ms Susan Brennan, Barrister, appeared on behalf of the Applicant for Review. Ms Brennan called Mr John Beckman, Mrs Evelyn Beckman, and Mr Ben Ruschinek, Accountant, as witnesses in support of her submissions.

1. These applications relate to the question of whether or not trucks, associated with a business conducted by Mr and Mrs Beckman, can lawfully be parked adjacent to their home at No. 1 Nottage Street, East St Kilda.

2. The subject land is a conventional suburban residential lot located on the north side of Nottage Street and its intersection with Marne Street in East St. Kilda. The land is a regular lot with a frontage of 16.71 metres and an area of 609 sq metres. On the land there is a two storey brick dwelling, and adjacent to the dwelling is a paved driveway and a hard standing area, upon which the trucks in question are parked. The area within which the subject land is located is a conventional suburban residential area.

3. The following extract from Ms Brennan's submission outlines the matters which are now before the Tribunal:

"1. Before the Tribunal are two applications relating to the parking of trucks at 1 Nottage Street, East St Kilda ("site").

2. Application 2000/033443 is an application for review against the refusal of the Port Phillip City Council to grant a permit for parking two trucks on the site. The first two grounds of appeal are:

a) The use proposed (ie parking of trucks) has existing use rights and therefore does not require planning permission.

b) The parking of two trucks is either ancillary to the dominant land use of the site ie dwelling or alternatively is as of right and does not require planning permission.

3. The permit applicant seeks to amend the application to delete the carport. It confirms the intention to park two trucks on the site.

4. Application 2000/059627 is an application for declaration pursuant to section 149A of the Planning and Environment Act 1987 that use of the site for parking trucks does not require a planning permit.

* the parking overnight on the site of trucks used by Mr Beckman in his furniture removal business at the Caulfield Auction Centre is ancillary to use of the site for his residence;

* alternatively, the parking of trucks on the site has existing use rights, established pursuant to clause 63 of the Port Phillip Planning Scheme.

6. The applicant relies upon the evidence of Mr and Mrs Beckman, the expert evidence of Mr McGurn and the statements provided by neighbours."

4. It became apparent as the hearing progressed that there are four possible scenarios in relation to the issue before the Tribunal i.e:

1. The use is a use which is ancillary to the use of the land for the purpose of a dwelling, and no permit is required.

2. The use is a prohibited use which is not ancillary, but for which there are existing use rights.

3. The use is a discretionary use which is not ancillary, and for which there is no permit, but for which there are existing use rights.

4. The use is a discretionary use, which is not ancillary, and which does not enjoy existing use rights, in which case the question of whether or not a permit should be granted must be considered.

5. It is only in the fourth of these scenarios that Application for Review 2000/033443 is relevant. Therefore, Application for Review 2000/059627 must be dealt with prior to reaching any conclusion in relation to Application for Review 2000/033443, a number of the possible decision in relation to this application may mean that no permit is required or even lawful. Application for Review 2000/059627 is an application which under the provisions of Section 149A of the Planning and Environment Act 1987 which must be decided by Mrs Rickards who is a legal practitioner.

6. Mr Beckman gave evidence in relation to the use of No. 1 Nottage Street, East St Kilda since he and his wife purchased the land in 1979. Mr Beckman's evidence was supported by evidence from his wife, and his accountant, and by a number of statutory declarations and written submissions from neighbours and other persons. Mr Beckman's witness statement is set out below:

"I, John George Antoine Beckman, small business owner, of 1 Nottage Street, East St Kilda state as follows:

1. In 1979 I purchased the dwelling at 1 Nottage Street, East St Kilda. Since then I have lived there with my wife, Evelyn Beckman, my two daughters and two sons. My daughters no longer live at 1 Nottage Street, East St Kilda.

2. I am self employed as a removalist. My business is registered as No Worries Transport and was formerly known as John Beckman Transport.

3. I first commenced the furniture removal business in 1981. Prior to this I conducted a milk delivery service and later delivered bread.

4. Between 1981 and 1989, the business was conducted from 1 Nottage Street, St Kilda. Since 1989, the business has been conducted from 625 Glenhuntly Road, South Caulfield. At the same premises, which is known as Caulfield Auction Centre, I also sell second hand furniture.

5. No worries Transport is a small scale transportation business. It specialised in furniture removal from homes, offices and businesses. Furniture is also collected for subsequent sale at the Caulfield Auction Centre.

6. The business operates predominantly from Monday to Friday, commencing around 8am and finishing usually no later than 6pm. On rare occasions, work is conducted on Sundays, but never on Saturdays.

7. For the furniture removal business, I employ 1 driver for between 20-35 hours per week and another driver when required.

8. My business requires the use of commercial vehicles or trucks. I currently own three trucks. They are:

a) a Hino Superhawk FD, registration no FPX 524, purchased in about 1997;

b) a Mazda T400, registration BWJ 742, purchased in about 1983;

c) a Mazda, old registration CPU 976, new registration QBB 137, purchased in about 1985.

9. I previously owned a Toyota milk truck, which I had in 1980 and sold in 1999. I also owned an international ecco truck, which I bought in about 1985 and sold in about 1989.

10. Outside business hours or when not needed for the day, the Hino and Mazda T400 are parked on my property at 1 Nottage Street. They are parked within the paved area at the side of the house, about 9-10 metres from the road. The remaining truck is parked at the rear of my business premises in Caulfield.

11. When I owned them, the milk truck and international ecco truck were also parked in my driveway when they were not in use. Occasionally I would park the milk truck in the street.

12. During a typical day, the Hino and Mazda trucks are driven from my property at around 8am and are taken to our business in Caulfield. I drive one of the trucks while the other is collected by one of my employees. The trucks are then used as necessary throughout the day. On those occasions when one of the trucks is not needed, it is left at my property for the day. In the evening, the trucks are returned to my property. This usually occurs no later than 6pm.

13. The trucks depart and arrive at my property only during the start and the end of each day.

14. I park the two trucks on my property because it is safe, convenient and accessible. I have had my trucks vandalised on a few occasions and rendered unroadworthy when parked at the rear of my business in Caulfield. I rely on my trucks for my livelihood and cannot afford to have them off the road.

15. There is no room to park more than one truck at the Caulfield premises. In fact, the laneway that gives access to the site is too narrow to allow the Hino to enter at all. Generally, I use the laneway for rubbish removal and use Glenhuntly Road for the loading and unloading of furniture. The laneway is not convenient for loading because it is narrow and not level.

16. By parking at home, I can drive myself to and from work each day and know the trucks are secure.

17. I first began parking my truck at home in 1980 when I was a milkman. In November 1983 I acquired the Mazda and have continuously parked the trucks on the property ever since. At one stage I parked up to four trucks at home.

18. About 11 years ago, a representative from the Council approached us and told us we could not run our business from home. Following this, we bought the Caulfield Auction Centre to run the business from there and sold the international ecco truck. When the Council saw the trucks still parked on the property, they asked us what was going on. We told them we were running the business from Glenhuntly Road but the trucks were parked in the property for security reasons. They said okay and we didn't hear from them again for another ten years.

7. We accept Mr Beckman's evidence as to the nature of the business which is operated by he and his wife, and believe that his evidence is supported by the other evidence statements before the Tribunal. In our view the effect of Mr Beckman's evidence is that:

* A transportation business has operated from No. 1 Nottage Street, East St Kilda since at least 1981.

* From at least 1983, the transportation business involved the parking of two or more trucks at 1 Nottage Street.

* Up until 1989 both the administration and the truck storage aspects of the business were conducted from No. 1 Nottage Street.

* From 1989 to the present the administration of the business during ordinary business hours was conducted from the Glenhuntly Road premises, while the truck storage aspect of the business, and administration out of business hours, continued from 1 Nottage Street.

8. In relation to the question of whether or not the use of No. 1 Nottage Street for truck storage is ancillary to its use for the purpose of a dwelling, the cases relied on by Ms Brennan, French v City of Berwick 1988 5 AATR 4, and Ferrigno v City of Keilor 9 AATR 145, are supportive of the proposition that a truck driver who drives from his home to and from his place of work, and parks his truck overnight at his home, and carries on no other aspect of the business from his or her home then the parking of the truck overnight on a residential property is an activity which is ancillary to the use of that land for the purpose of dwelling. It is not even a home occupation. However, the situation in this case is quite different there is more than one truck stored at No. 1 Nottage Street, and an employee of the business comes to and from the land, as required, to take out one of the trucks for the purposes of the business. In my view No. 1 Nottage Street is being used as a depot for the trucks used in the business, and at least some of the day to day administration of the business takes place from the land. I do not believe that such a use can reasonably be regarded as being ancillary to the ordinary enjoyment of land for the purpose of a dwelling.

9. Under the provisions of the Port Phillip Planning Scheme a vehicle store is defined as:

"Land used to park or store vehicles in connection with a goods or passenger transport business.

A vehicle store is included within the definition of store which if in a residential 1 zone is a section 2 or discretionary use subject to compliance with the following condition:

"It must be in a building, not a dwelling, and used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot."

As the trucks are not stored within a building, and because there are no other uses which are either permitted or discretionary within the Residential 1 zone which could reasonably be regarded as accommodating the use of the land for truck storage then in my view the way in which the land is used, and has been used since 1983, for the storage of trucks is prohibited by the Port Phillip Planning Scheme. It was not argued by any party that the use was either permitted or discretionary under any of the applicable Planning Schemes since 1983.

10. Section 6(3) of the Planning and Environment Act 1987 provides the following:

(3) Subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall--

(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works

11. The following extracts from clauses 63.01 and 63.11 of the Planning Scheme Ordinance set out the relevant parts of the planning scheme provisions in relation to existing uses:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

* Proof of continuous use for 15 years is established under Clause 63.11.

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately to or during the 15 year period, unless either:

* At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.

* During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme."

12. On 5 February 1999 Council wrote to Mr Beckman stating:

As advised I now confirm that your use of land at 1 Nottage Street, E St Kilda for the purpose of parking commercial fleet vehicles and conducting administrative duties associated with your Furniture Removals business is prohibited by the City of Port Phillip Planning Scheme within the Residential 1 Zone.

Accordingly the continued parking of your fleet vehicles on or at your Nottage Street residence must now cease.

In the circumstances you are advised the parking of your commercial fleet vehicles on or at your Nottage Street Residence must cease following 10 days from the date of this letter.

13. As a result of this letter Mr Beckman lodged an application for a permit to use the site as a vehicle store for the parking of two trucks in the front set back. The refusal of this application by the Responsible Authority being the subject of application for review 2000/033443.

14. As stated previously the way in which the land is used and has been used since 1983 for the storage of trucks is prohibited. However existing use rights may still be established under clause 63.11 unless during the 15 year period prior to the date of the application or proceeding the Responsible Authority has clearly and unambiguously given a written direction for the use to cease. The letter of 5 February 1999 is considered a clear and unambiguous written direction for the use to cease. and as such would meet the requirements in clause 63.11.

15. Are the requirements of clause 63.11 met in that the letter was written within the 15 year period prior to the application or proceeding? The application in this instance is considered to be the application for permit which was lodged by Mr Beckman with the Responsible Authority on the 12 July 1999 (the first permit application). The proceeding is the application to the Tribunal pursuant to section 149A Planning and Environment Act 1987 lodged by Mr Beckman on 27 July 2000. 15 years prior to the date of the application is 1984 and the proceeding is 1985. The letter from the Responsible Authority dated 5 February 1999 indicating the use must cease was in relation to both the application and the proceeding written within the 15 year period prior to either occurring.

16. In the circumstances it is considered that as the use was prohibited and was established as an unlawful use and no existing use rights can be established under clause 63.11 the respondent cannot rely on any existing use rights.

17. For the reasons previously referred it is considered that the use is not ancillary to the use of the site as a dwelling nor are there any existing use rights. It is contended by the Responsible Authority that if the proposed use is not ancillary to the residential use of the land it is prohibited under the Planning Scheme unless it is considered to be a car park. The Residential 1 zone allows car parks but only in association with another use in Section 1 or 2. If it is submitted the car park would be used in conjunction with the use of the land as a dwelling a permit could be granted provided the proposed use is supported by the planning scheme.

18. If it is submitted the proposed use is viewed as a vehicle store then the proposal is prohibited as it does not comply with the conditions of clause 32.01-1 which requires that the store be in a "building" on a lot.

19. Two permit applications were submitted to the Responsible Authority. The first on the 12 July 1999 was to use the land for the purpose of

Vehicle storage (two trucks only measuring 2.240metres x 8.335 metres and 2.28 metres x 7.35 metres respectively).

20. The application was refused. One of the grounds of refusal was that "The use fails to comply with Clause 32.01-1 of the Port Phillip Planning Scheme".

21. The current application being the subject of application for review 2000/050526 was lodged in November 1999. The proposal was

To construct one building measuring 7.1 metres x 10.5 metres (4.3 metres high) and use the site for storage of two trucks.

22. The application was refused on the following grounds:

1. The proposal is contrary to the orderly and proper planning of the area.

2. The proposed use is out of character with the residential nature of the areas and would represent an inappropriate intrusion of a non residential use.

3. The proposed building would be visually intrusive and out of character.

4. The proposal involves the parking and movement of cars not related to the occupation of the house on the lot.

23. Prior to the commencement of the hearing the applicant sought to revise the proposal so as not to include any building works, by the deletion of the request to construct the carport.

24. It is the view of the Tribunal that the proposal falls within what is defined under the planning scheme as "vehicle store". The amendment of the application to delete the proposed carport results in the application failing to comply with the requirements of clause 32.01-1 of the planning scheme which requires that storage of vehicles must be in a building. Although not now the subject of the permit application, we would observe that a building large enough to store both the trucks used by the applicant, would be unlikely to be acceptable in streetscape or amenity terms, on a residential lot such as this. It is further the view of the Tribunal that the proposal to house one of the vehicles under a carport would be unlikely to fall within the requirements of clause 32.01-1.

25. For the above reasons the Tribunal refuses application for review 2000/033443 and upholds the decision of the Responsible Authority and the decision of Mrs Rickards is that the application pursuant to section 149A Planning and Environment Act 1987 seeking declarations is refused.