A. In relation to the parking of the backhoe and associated equipment on the land at 35 Aylmer Street, Balwyn North, the Tribunal declares pursuant to Section 149A(1)(a) that such parking constitutes the use of "Store" which either requires a planning permit or which is prohibited under Clause 32.01-1 of the Boroondara Planning Scheme;

Mr Peter O'Farrell of Phillips Fox Solicitors. He called Julietta Di Vincenzo as a lay witness.

Mr Peter O'Callaghan QC instructed by Dominic Scally of Best Hooper Solicitors. Mr. O'Callaghan called the following persons as lay witnesses: Doug Prow; Michael Boyce; Liz Hesse and Mr and Mrs McGrath. In addition, on the second hearing day Mr. O'Callaghan called Mr John Caine as an expert witness in automotive machinery matters. Mr O'Callaghan also presented a video prepared by Ms Hesse.

1 The matter involves an Application by Council for a Declaration in relation to a conventional residential property in Balwyn. A backhoe has for some time been parked by the Respondents on or about the front lawn of the subject land, and the Council seeks a Declaration that such parking either requires a permit or is prohibited. The site and locality are zoned Residential 1. A Nissan Patrol 4WD and one or two other cars are also parked on the subject land. I was told that the Respondents have lived on the subject land for 21 years.

2 During the hearing of this matter, I heard a large amount of sworn evidence relating to whether any "existing use rights" exist for the parking of the backhoe on the site. However I consider I am not required to make a formal finding on this issue, as the critical issue for our purposes is how the backhoe should be correctly characterised from a planning perspective. In particular, the case has turned on whether or not the Respondents could establish that the backhoe should be characterised as a "commuter vehicle". If successful on this issue, it would follow from previous relevant case law that the backhoe is ancillary to the as-of-right use of the dwelling by the Respondents, and no permit is required to park the backhoe. Conversely, if Council can establish that the backhoe is not a "commuter vehicle", it follows that the parking of the backhoe constitutes the use of "store" which either requires a permit or is prohibited. It was common ground at the hearing that no such "store" use permit had been obtained by the Respondents.

3 In the end result, my finding is that the backhoe cannot be characterised as a "commuter vehicle", but rather that the parking of the backhoe on the subject land should be treated as the use of "store" for which a permit is required or alternatively which is a prohibited use (depending on whether the relevant Section 2 condition is satisfied on the facts here). I have not made any finding on this "subject to permit versus prohibited use" point since Council expressly indicated early in the hearing that this could be treated as an issue for another day.

4 The most important factor in my finding against the Respondents is the specialised physical characteristics of the backhoe, notably the hydraulically operated front shovel and rear bucket. My conclusion here, using the "real and substantial purpose" approach, is that the fundamental purpose of the backhoe is the carrying out of earthworks, rather than the regular transporting of people or goods. I also rely on a number of other factors, discussed near the end of this decision.

5 Noting that at least two of the parties to the matter indicated they would be seeking their costs if successful on the merits, in my orders I have reserved costs.

6 This matter involves an application dated 6 June 2005 by Boroondara City Council under s.149A (1)(a) of the Planning and Environment Act 1987, as follows.

TAKE NOTICE that the Applicant makes this Application to the Victorian Civil and Administrative Tribunal for a declaration pursuant to Section 149A(1)(a) of the Act that storage of the earth-moving vehicle and associated equipment on the land at 35 Aylmer Road Balwyn North (Land) constitutes a use which either requires a planning permit or is prohibited under Clause 32.01-1 of the Boroondara Planning Scheme (Scheme).

7 I note that although this Notice uses the term "earth moving vehicle", during the hearing of this matter the parties commonly used the term "back hoe", which for convenience will be the term I will use in this decision. I was shown numerous photos of the backhoe during the hearing, and Mr Montebello apparently borrowed from his son/daughter a children's book with a helpful photo of a "backhoe loader" model.

8 To assist in understanding what constitutes a backhoe, it otherwise has the appearance of a tractor, but has a large single shovel at the front and a "back bucket" at the rear which sits on the end of a long "arm". It was common ground at the hearing that the model of this backhoe is a 1994 JCB3cx. Different sized buckets can be attached to the rear arm - the photos indicate that there are three or four buckets associated with this particular backhoe. Both the front shovel and the rear bucket are hydraulically operated and it has "stabiliser feet" at each rear corner of the cabin.

9 I was advised by Mr O'Farrell that the backhoe weighs about 7 tonnes, that its cabin is air-conditioned and has a radio, that it has all brake/indicator/tail/front lights to legally drive on the road, that it seats one person, that its maximum speed is about 40 k.p.h. and that is it registered with VicRoads in the name of Mr Di Vincenzo. It was common ground that Mr Di Vincenzo on occasions needs to start up the backhoe and drive off very early in the morning, where he is required to be at a worksite at say 7.30 am. It was put to me by the Hesses that in practice this can lead to them being woken up at an early hour that they regard as unreasonable.

10 At the beginning of the first hearing day of this matter on 29 August 2005, I had to deal with an application by Elizabeth and Charles Hesse (being a next door neighbour) that they be formally joined as a party to this matter. After hearing submissions from all parties on this issue, my ruling was that it was fair and appropriate that the Hesses be formally joined as a party to this matter, as I considered that the Hesses' interests were affected to a sufficient degree pursuant to Section 60(1)(b) of the VCAT Act. I relied here in particular on:

• there being at least a peripheral role in this matter of the question of whether "existing use rights" exist for the back hoe. If such existing use rights were established, this would directly impact on the Hesses as the next door neighbours, so it seemed fair and reasonable that they have a proper opportunity to be involved in the hearing and make submissions to me on this issue; and

• the likelihood of a complex debate during the hearing regarding how best (from the planning perspective) to characterise the back hoe in question. In this regard, it seemed helpful for my deliberations to allow the Hesses a proper opportunity (as next door neighbours able to observe the back hoe) to make submissions to me on this characterisation issue.

11 Over the first hearing day for this matter, Mr Montebello made his submission on behalf of Council, and I also heard the submission of Mr O'Callaghan on behalf of the Hesses. Mr O'Callaghan also called a number of lay witnesses, being other neighbours in the street.

12 As it became evident near the end of the first hearing day that we would be part heard, it was agreed that a further hearing day would be necessary to complete the case. At this point, Mr O'Callaghan indicated that his client might wish to call a further witness dealing with mechanical matters. I reminded the parties of the normal practice note requirements in relation to the circulation of any further expert information.

13 In between the first hearing day and the further hearing day on 24 November 2005, I received a statutory declaration and a supplementary statutory declaration dated 16 and 17 November 2005 respectively from Mr John Caine dealing with diesel mechanical issues, together with a witness statement from Ms Julietta Di Vincenzo and a Statutory Declaration from Ms Elizabeth Hesse.

14 At the beginning of the second day's hearing, I dealt with a challenge by Mr O'Farrell to whether the statutory declaration by Mr Caine should be received by me. Notwithstanding that the 17 November 2005 Supplementary Statutory Declaration had been made by Mr Caine dealing more with Practice Note matters, Mr O'Farrell put to me that I should still not receive the Statutory Declaration from Mr Caine, in light of that document being served less than 10 working days before the second day's hearing, together with that document inadequately complying with the various Practice Note requirements in terms of content and format.

15 After hearing submissions from all the parties on this matter, I made a ruling that I considered the combination of the two Statutory Declarations of Mr Caine to be close enough to meeting the relevant Practice Note requirements for it to be appropriate for me to receive this evidence and to regard it as constituting "expert evidence". I indicated that (bearing in mind the Tribunal's mandate under Section 97 and 98 to focus on the substance of matters rather than it getting bogged down in procedural matters) I did not see sufficient procedural irregularities to justify the Tribunal not being able to consider Mr Caine's Statutory Declarations. However I qualified this by making it clear that I was mindful of Mr O'Farrell's point that Mr Caine had not inspected either the site/locality or the backhoe in question.

16 Accordingly, the second day's hearing then went ahead by way of me first hearing expert evidence from Mr Caine and then lay evidence from Ms Hesse. Thereafter, Mr O'Farrell ran the Respondent's case, including first calling Ms Di Vincenzo as a lay witness, then putting forward his own submission. At the end of his submission there was a further discussion between Mr O'Farrell and myself regarding certain key aspects of this case.

SITE AND LOCALITY/NATURE OF EXISTING BACKHOE ACTIVITY ON SUBJECT LAND

17 I refer to my description above of the backhoe in question.

18 The subject land at 35 Aylmer Street Balwyn North is 1097 square metres in size, with a frontage of 21.95 square metres. The site is improved by a brick building that appears to be built in the inter-war period, including a double garage. There is a double crossover and driveway leading to the garage and a substantial tree close to the front entrance door, while the rest of the front yard features an open front lawn area. Aylmer Street is a pleasant and relatively leafy residential street.

19 It is unclear precisely how long the contentious backhoe has been kept on the subject land and how long the Respondents have been in dispute with Council and/or the Hesses. The photos of the backhoe provided to me at the hearing consistently show the backhoe parked on the front lawn of the subject land. While there was some debate whether some years ago the Respondents parked a backhoe in their back yard, Mr O'Farrell indicated that the current garage has an entrance too low for the backhoe to go into the garage.

20 The photos provided to me further indicate that apart from the backhoe, there is commonly parked on land at least three other vehicles (ie a Nissan Patrol 4WD and two cars). For example, one photo showed the two cars in the garage, the Patrol parked off to the side of the driveway and the backhoe on the front lawn. This basic scenario was not challenged in any real way by Mr O'Farrell, and is consistent with preserving access across the driveway for any cars parking in the double garage.

21 It was common ground that Mr Di Vicenzo operates an earth moving business, and is the principal of J Di Excavations (being a registered business name, with the nature of the business identified as "backhoe operator"). The Council provided information to the effect that the subject land was the registered address of J Di Excavations from 21 July 1998 to 21 July 2001, when the business name was de-registered. It was then re-registered on 7 October 2004, with the new registered address being 479 Tooronga Road, Hawthorn East.

22 While there was widely differing views expressed as to the implications and legal status of how the backhoe is used, the following paragraph from Council's written submission seems a useful starting point for how the Respondents use the backhoe.

It does not seem to be in dispute that the backhoe is not always present on the land. It is present during periods of time when Mr Di Vincenzo is not engaged on a work site. On occasions he drives the backhoe to a work site in the morning and back home in the evening. On other occasions he drives it to a work site and leaves it there for a period of days or sometimes weeks while it is in use as part of the plant and equipment, rather than driving it back and forth. During those periods he commutes to and from the site by a more standard vehicle (being a Nissan Patrol). Council is unaware whether the Nissan is commercially registered or not. If it is, then it would be the second commercially registered vehicle on the land.

23 In terms of the history of the dispute that led to this Application before me, there was disagreement throughout the hearing as to how long the Respondents had parked a backhoe on their land. Mr O'Farrell's written Apart from Mr O'Farrell advising that the Respondents have lived on the subject land for 21 years, correspondence from Phillips Fox solicitors on behalf of the Respondents shortly before the hearing indicated that the Respondents considered that a backhoe had been parked on the subject land continuously for over 15 years, such that existing use rights exist. However Mr O'Farrell retreated from this position somewhat early in the hearing and in fact formally advised me early on the second day that his clients were not asking the Tribunal to make any finding regarding existing use rights.

24 It appears that from about August 2004 onwards, Council became involved in the dispute regarding the parking of the backhoe, in terms of becoming aware the backhoe was being parked on the street itself, and advising the Respondents that Road Rule No. 200 prohibits a vehicle over 4.5 tonnes from stopping on a section of road in a built up area such as this for more than one hour.

25 From all the evidence, I understand this "parking in the street" situation to have probably been prompted by the Hesses moving into the next door property No 33 Aylmer Street in October 2002, and expressing unhappiness to the Respondents about the parking of the backhoe in the front lawn of the subject land. As I understand it, the situation with this Road Rule No. 200 led to the Respondents parking the backhoe back on their front lawn.

26 There was also some suggestion (but with conflicting evidence) that the Respondents may have had some arrangement with the previous owners of No. 33 Aylmer Street not to start up the backhoe before 7.00 am.

27 In terms of the last 12 months, there has been a stream of correspondence between the various stakeholders that finally led to Council taking out these Tribunal proceedings.

28 Since 16 December 1999 the subject land has been zoned Residential 1. There are no overlay controls applying to the subject land. Council submitted that prior to 1999 the subject land had for many years been zoned Residential C.

29 Council did not contend at the hearing that any "home occupation" activities (as defined in the Planning Scheme) currently exist on the subject land. In this regard, Council advised that any vehicle associated with a home occupation cannot exceed two tonnes (the backhoe here weighs more like 7 tonnes).

30 The use of "store" is a Section 2 "subject to permit" use on the subject land pursuant to Clause 32.01-1 of the Planning Scheme. Clause 74 in the Planning Scheme defines a "store" as being "Land used to store goods, machinery, or vehicles" (with my emphasis added). The following condition appears alongside "store" in the Section 2 table at Clause 32.01-2:

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.

31 If the subject land is being used as a store but in breach of this condition, it follows that the use becomes a prohibited use. It was common ground that no permit has been obtained in relation to the subject land for any "store" use.

32 I note there is no definition of "vehicle" in the Planning Scheme.

33 In relation to the use of a dwelling, it was common ground at the hearing that while the definition of "dwelling" in the Planning Scheme does not say so, there is consistent case law that the keeping of vehicles per se is ancillary to the use of land for the purposes of a dwelling, provided that the vehicles are used for the purpose of the dwelling. Mr Montebello conceded in his submission that this principle "... is not confined to conventional motor vehicles".

34 I cannot fault any of the advocates in terms of the comprehensive range of case law put to me, although many trees are thinner for it. To avoid duplication, I will only refer below to the more important cases.

35 As set out at paragraph 38 of the Council submission and not contested by Mr O'Farrell, a party seeking to establish existing use rights has the onus of demonstrating same (see for example City of Northcote v Alam [1993] 13 AATR 28).

36 In terms of characterising a use, a good starting point is the "real and substantial purpose" test, as per the decision of Justice Ashley in Casone and Vella v Whittlesea city Council (1993) 11 AATR 175. If applicable, that case is also authority for the need to review whether there is just the one purpose in question or two, and if the latter, whether one purpose should be regarded as ancillary to the other.

37 Whether or not one use of land is ancillary to the other is obviously a question of fact from case to case, as per the High Court in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. It is also implicit in Lizzio that activities considered ancillary to the use of a dwelling must relate to the dwelling or the occupants use of the dwelling.

38 In relation to the keeping of vehicles, I accept that there is a long line of decisions that the keeping of vehicles on land is generally considered ancillary to the use of a dwelling (see for example Warringah Shire Council v Raffles (1979) 2 NSWLR 299). Mr Montebello at paragraph 62 in his written submission refers to a number of other Tribunal decisions which follow this approach and then makes the following useful comment at paragraph 63.

The logic of the Warringah decision is evident throughout this line of authority; that there is an expectation that the occupants of dwellings can keep a vehicle for their personal transport, and that the mode of transport is subject to personal choice. A "commercial vehicle" is often regarded as ancillary to a dwelling, if the vehicle is used by the occupant to go from home to workplace.

39 I am conscious that in particular there is a line of previous decisions that the use of land for the parking of one truck (including a prime mover) is ancillary to the Section 1 use of land as a dwelling (see for example Ferrigno v Shire of Keilor 9 AATR 145 and French v City of Berwick (1990/03853)). In terms of the pattern of usage of the vehicle (including a truck) for it to be considered to be ancillary to the use of the dwelling, although to my knowledge none of the relevant cases expressly refer to the need for the vehicle to be used for "commuting", I accept that this concept of the essentially daily use of the vehicle to get from home to work is at least implicit in these cases. A more explicit example of this is the case of Monash City Council v Lam [2004] VCAT 504, where the Tribunal held that inter alia:

Case law establishes that using a vehicle in the course of one's occupation, in that one parks it overnight at home and then uses it to drive to and from work, is ancillary to the use of the land as a dwelling and not in breach thereof.

40 I otherwise refer to the useful matrix summary of many of the relevant cases set out at page 20 of Mr O'Farrell's submission, which I have reproduced as an Appendix to this decision.

41 I will not repeat the submissions of the parties to me, as a copy of their written submissions are retained on file, along with the various photos, plans and other materials tendered during the hearing.

42 Before going to the main merits of this matter, there are two preliminary matters I can briefly deal with first.

43 First, I note that Mr O'Farrell put to me early in his submissions that the issue of the "alleged amenity impacts of the backhoe on the neighbours" is irrelevant to my finding on the Declaration which the Council is seeking. I agree with this proposition, subject to the proviso that looking at the particular characteristics of the backhoe in question can assist with characterising the type of use in question. I note here that the case of Ferrigo v Shire of Keilor (1992) 9 AATR 145 involved inter alia a finding that amenity considerations do not go to the question of whether a permit is required.

44 Second, Mr O'Farrell urged me not to make a finding on existing use rights, having advised me at the beginning of the second day's hearing that his client would not be pursuing "existing use rights" as part of the Respondent's case. By contrast, Council and Mr O'Callaghan put to me that the Respondent was effectively "caving in" on existing use rights, and it would still be proper for me to make a finding on same. Ironically, much of the first day's hearing was taken up with the giving of sworn lay evidence by other neighbours in the street on this existing use rights issue.

45 On balance, I do not see any pressing need to reach a final view on this issue. However, I do observe in passing that the sworn evidence of the various witnesses called by Mr O'Callaghan (ie their evidence that there has not been a backhoe parked on the subject land for 15 years plus) in totality constitutes a strong prima facie case that no such existing use rights exist. I also note that Mr O'Farrell did not provide me with any backlog of maintenance receipts or registration papers which might more objectively point to 15 years plus of continuous use by Mr Di Vincenzo of the backhoe. I am also conscious that there is some "muddying of the waters" by the suggestion that at any earlier stage the backhoe parked on the subject land was in fact a different backhoe owned by a third party (it is an interesting question whether this lack of ownership undermines an "existing use rights" claim).

Characterisation of Parking of Backhoe on Subject Land

46 I now turn to the issue on which this Application for Declaration has turned, being how to correctly characterise the parking of the backhoe on the subject land. I refer to the relevant planning controls and the applicable case law which I have summarised above.

47 In some ways, this characterisation debate (to paraphrase from an excellent recent Australian movie) comes down to a proposition.

48 It was common ground at the hearing that there is consistent case law that the use of land for the parking of one vehicle (which has been held to include a truck, plane or helicopter) is ancillary to the Section 1 use of land as a dwelling. I consider that it is inherent in this line of cases that, for the parking of the vehicle to be ancillary to the use of the dwelling, the vehicle must be regularly used to drive from home to work and vice-versa (ie used on a "commuter basis"). See for example my quote above from the Lam case.

49 In summary then, the proposition put forward by the Respondents is that (using the "what is the real and substantial purpose" test) the parking of the backhoe on the subject land, in the circumstances here, should be characterised as the use of a "commuter vehicle" which is ancillary to their use of their dwelling. The two critical words then are "commuter" and "vehicle". Mr O'Farrell submitted that on the facts here the backhoe does fit the bill as being a "commuter vehicle". Mr O'Callaghan and Mr Montebello urged me to reach the reverse conclusion.

50 These terms not being defined in the Planning Scheme, the Macquarie Dictionary 2nd Edition defines:

• the word "commuter" to mean "one who regularly travels some considerable distance to work from his home, esp. by public transport"; and

• the word "vehicle" to mean "any receptacle, or means of transport, in which something is carried or conveyed, or travels; a carriage or conveyance moving on wheels or runners".

[I was amused to see that the Macquarie Dictionary, as our national dictionary, also recognises "V8" as word. I am not sure you would find this in the Oxford Dictionary!]

51 In addition, there are some helpful cases on the meaning of "vehicle" from "Words and phrases legally defined - Volume 4:R-Z":

• it is reported from the Canadian case of R v Thornton (1949) 96 CCC 323 at 326 that the court stated that "A "vehicle" as commonly understood may be defined as an instrument of conveyance, and as applied to transportation, as an instrument for transporting either passengers or property";

• also reports on the Canadian case of Farr v Township of Moore [1978] 2 SCR 504, which involved consideration of mobile homes. It is reported that the court stated that "I am of the opinion that each particular apparatus [a mobile phone] purchased and installed by each of these appellants is not a "vehicle". It was not a means of conveyance, although it was provided with wheels, and it was not used for the carriage of persons or goods. The purpose of the apparatus, and it is quite apparent from the evidence, was that it should be hauled quite empty to a site and there placed on the site and used, not for the conveyance of persons of goods, but for the installation of goods, to wit, furniture and the residence of people".

52 Having considered all the evidence, planning controls and policies, the case law and the submissions, my finding is that the backhoe does not constitute a "commuter vehicle".

53 In reaching my overall finding, I rely here on the following important aspects of this case.

54 As outlined above, the backhoe is essentially a tractor with a large shovel on the front and a bucket on the end of a long arm on the rear. The shovel and the bucket together allow the backhoe to carry out earth moving works. Whereas it would be somewhat easier to at least mount a case that a conventional tractor comes within the broad meaning of a "commuter vehicle", the Respondent is in a weaker position here because of this specialist equipment on the front and back of the backhoe. In particular, this specialist equipment in practice means that rather than the backhoe's core role being to transport physical items (as is the case with a truck), I consider this core role to be excavating and moving around soil.

55 To the extent that Mr O'Farrell sought to rely on various cases as supporting his submission that the backhoe constitutes a "commuter vehicle", I consider that these other cases can be distinguished on their facts (ie they did not involve a specialist item of equipment like a backhoe). For example, Mr O'Farrell relied on the case of How Seng Ng v Monash City Council (1997/02981), where it was held that the parking of different vehicles at different times on a residential property was ancillary and did not require a permit. While it is true that a backhoe and a bobcat were amongst the relevant vehicles, the majority of vehicles in question were more conventional trucks.

56 I accept that the backhoe can be legally driven on the roads. However my conclusion is that where the backhoe is being driven, the fundamental purpose here is simply being able to move the backhoe from job to job, rather than the backhoe being designed for transport use per se (where one would expect a top speed of at least 100 kph). I agree with the thrust of Mr Montebello's statement at paragraph 92 of his written submission that "Someone travelling by backhoe is doing so in order to move the backhoe, not to move him or herself". I also note that the Farr v Township of Moore case mentioned just above is authority that the fact that something has wheels for transportation does not in itself bring on the character of being a "vehicle".

57 My conclusion here is also consistent with the Tribunal decision of Manningham City Council v Ibrahim Fidan and Dafur Fidan (P896/2002). That case involved the parking on a residential property of a truck, backhoe, bob cat, excavator and a trailer. The Tribunal found that these items were being improperly parked without a permit. While the Tribunal also relied on actual excavation activities improperly being carried out on the subject land, it did not consider the parking of the aforesaid equipment as ancillary to the use of the dwelling on the land. In my view, it is significant that while a conventional truck was involved, the majority of pieces of equipment in question were of a more specialised nature.

58 To my knowledge all of the other cases where it has been held that the car/truck/helicopter/plane is a "commuter vehicle" have involved the ability to move not only the driver but at least one passenger. This ability to carry a passenger seems consistent with what I perceive the average person would regard as a "vehicle" and also with the concept of "commuting".

The backhoe is apparently never used for social purposes.

59 I consider that the concept of a "commuter vehicle" implies some degree of flexibility in terms of the ability to use the vehicle for social purposes or at least to pick up basic items (eg getting some milk from the nearest 7/11 store). For example, in theory a large truck used for commuting purposes could also be used for a country drive, to attend a drive-in, to buy some groceries, or to provide a friend with a lift to a social function.

60 I rely here on the case of Warringah Shire Council v Raffles 38 LGRA 306, which involved a helicopter which a radiologist (we know where our radiology fees are going) used to travel from his home to his places of practice. In holding this was an ancillary use to the dwelling, the Court saw the use of the helicopter as being no different from using a motor car to travel to work or for social purposes. During the course of the hearing, it was conceded by the Respondents that no Di Vicenzo family members other than the father drive the backhoe, and that the backhoe is not used for errands or social purposes.

61 A car or truck registered to travel on the roads, large or small, in most if not all circumstances is capable of cruising on a highway or freeway at the maximum legal speed of 100 k.p.h. I consider this an important aspect of what the average person would regard as a "commuter vehicle". The fact that the backhoe has a maximum speed of 40 kph suggests that it is likely to disrupt traffic on major roads (where the normal speed of vehicles is 60-80 kph) and it would be difficult if not impossible to use on a freeway or interstate highway. In relation to the driving Mr Di Vincenzo needs to do between the subject land and his work sites, this inability to drive at higher speeds counts against the backhoe being regarded as a "commuter vehicle" in this situation. This 40 kph maximum speed might also help explain why on some occasions Mr Di Vincenzo apparently leaves the backhoe at a work site and for some period uses his Nissan Patrol for commuting purposes instead.

The Backhoe does not always Return to the Subject land

62 I accept that the evidence presented to me indicates that there is not a regular pattern of the backhoe being driven to a worksite by Mr Di Vincenzo and then returning to the subject land at the end of the day. Rather, the evidence indicates that on some occasions the backhoe is driven to a work site and then left there for a certain period, with Mr Di Vicenzo in the meantime either driving to work in his Nissan Patrol vehicle or getting a lift from work mates. This more unpredictable pattern of how often the backhoe is parked on the subject land can be contrasted with the "regular usage" aspect which I consider forms an important part of the concept of "commuting".

The Middle Suburbs Location is Relevant to the Characterisation Exercise

63 I consider that the fact that this is a conventional residential street in a middle suburbs location like Balwyn "raises the bar" in terms of the case that the Respondents need to make out, to satisfy me that the backhoe is ancillary to their use of the dwelling on the site. It is not as if this is an urban fringe location where there are "hobby farm" type lots and the neighbours' dwellings are significant distances away. The dwellings in Aylmer Street are all located relatively close together, and part of Ms Hesse's evidence was that the master bedroom she normally sleeps in is located at the front of her house and therefore very close to the front lawn on which the backhoe is apparently normally parked. I rely here on the following passage from the decision of Mekenkamp v Yarra Ranges Shire Council [2005] VCAT 367.

The extent, nature and circumstances of the land concerned can be relevant. What is a feasible hobby on an extensive farm may not be somewhere else. Clay pigeon shooting may well be quite feasible on the former without having pushed "over the boundary" and without being "beyond anything that could be ancillary to the enjoyment of the land as a dwelling" on a farm. Someone on a property with ample room may collect an orchard of 120 different varieties of pear of apple trees, simply as a hobby and/or a house orchard, without it being, for example, a nursery or a commercial orchard. It is probably true to say that, generally speaking, a larger property can afford scope for a larger hobby activity.

64 I appreciate that the facts in Mekenkamp are somewhat different, in that this case involved a "conditions appeal" against a proposed permit condition in a "shed" permit, which would restrict the number of cars on the residential property to 25 cars. The landowner was a car enthusiast who had a large collection of Renault cars. Senior Member Byard ultimately modified the condition to allow up to 40 cars on the site. However the relevant point here is that the location involved in this Mekenkamp case was a 7 acre property in the Yarra Ranges municipality (ie an urban fringe location). Bearing in mind the facts in the Mekenkamp case and the quote from that case set out above, the Respondents did not make their position any easier by usually parking the backhoe on their front lawn in a block of under 1100 square metres in size, with the front lawn being a location exposed to the street and close to the Hesse dwelling. I note here that in the case of Yarra Ranges v Hunter [1999] VCAT 2141, the Tribunal saw as counting against the residential owner that the truck in question parked in front of the relevant dwelling.

65 In summary, relying on the points set out above and applying the "real and substantive purpose" test, I find that:

•

the real and substantive purpose of the backhoe to be that it is a specialist piece of earthmoving equipment with a quite constrained ability to be driven on the roads between job sites. Referring to the definition of "vehicle" set out above and associated case law, I am unconvinced that the real and substantial purpose of the backhoe is being a "means of transport" used for the moving around of passengers or goods; and accordingly

•

the Respondents have failed to establish that the backhoe should be characterised as a commuter vehicle.

66 To the extent that Mr O'Farrell urged me to find that the backhoe should be characterised as a "vehicle" simply because the VicRoads registration of the backhoe for on-road use, I reject this line of thinking as overly simplistic. How VicRoads treats the backhoe for registration purposes and how the backhoe should be properly characterised for planning purposes are ultimately separate issues. Similarly I do not accept that this characterisation exercise should be driven by whether or not the backhoe fits within the relevant definitions in the Transport Act 1993 as Mr O'Farrell suggested - again this is a separate issue.

67 Given the findings I have made immediately above, it follows that the Respondents have failed in their attempt to convince me that the parking of the backhoe on the land is ancillary to their use of their dwelling. Accordingly, I have made orders at the beginning of this decision granting the Declaration being sought by Council, which essentially is that the parking of the backhoe on the subject land constitutes the use of "store" which is either prohibited or requires a permit.

68 In relation to costs, I note that at least two of the parties indicated during the hearing that if their client was successful on the merits, they would be seeking their costs. The best thing here seems to simply reserve the costs of this matter, which I have done in my orders, and it is open to either Mr Callaghan or Mr Montebello to take the matter further if either wishes to do so by written submission to me.