Victorian Civil and Administrative Tribunal|2004-09-20|Before: Ms J

The application for enforcement order is rejected.
The Council is ordered to pay the respondents costs of $3363.80 within 30 days of the date of this order.

Ms Susan Brennan of Counsel, instructed by Minter Ellison

This hearing was an adjournment of a hearing commenced on 30 July 2004. In the order made by the Tribunal on 2 August 2004 adjourning the hearing, I set out in my reasons the nature and background of this application P1495/2004 and certain findings about facts. I include the reasons from my order dated 2 August 2004 below because they usefully summarise the background and facts relating to this application and certain findings of facts which I made that are relevant to the hearing on 27 August 2004 and my decision:

"1. Application P1495/2004 is made pursuant to section 114 of the Planning and Environment Act 1987 for an enforcement order. The responsible authority alleges that the respondents (who are the owners of the subject land) are constructing a second dwelling on the land at 50 Earlston Circuit, Cranbourne without a planning permit in breach of the provisions of the Low Density Residential Zone in the Casey Planning Scheme.

The facts of the case are not in dispute. The respondents obtained a building permit No 971418 in August 1997 for a "temporary dwelling, 1A". This is described on the building plans as "proposed temporary residence (future garage)". The site layout on the plans show, the proposed building in relation to the dotted outline of a future dwelling. The plans depict a building with the appearance of a triple car garage, which is what has been constructed. This building is being used as a dwelling by the respondents whilst they undertake construction of a house beside it.
A building permit No 2620 was issued for the house in July 2001. The building plans approved describe it as "proposed renovation and extension to dwelling at 50 Earlston Circuit, Cranbourne". The site plan shows the building approved as "proposed extension to existing dwelling" and, with respect to the existing dwelling/garage, a notation:

"existing portion to be converted to garage on completion of renovation".

This permit is subject to the conversion of the existing temporary dwelling approved pursuant to Permit No 971418 to a garage - Class 10a building within 3 months from the date of Certificate of Occupancy for this dwelling.

Visually, the development on the subject land looks like a conventional two storey house in the course of construction next to a triple car garage.
The Council contends that whilst, in conventional terms the respondents can be viewed as living in their garage while constructing a new dwelling on their land, this is in breach of the Casey Planning Scheme. In terms of the planning scheme the land is being developed and in use for 2 dwellings without the required permission. To support this contention, the Council relies on the case of Calderwood v Casey City Council (Application No 2000/31643). In that case, there was an existing single dwelling on the land. Construction began of a new dwelling on the basis that the old house would be removed when the new house was completed. In these circumstances, the Tribunal, consisting of Deputy President Julia Bruce, held that the intention that the old house was to be demolished upon completion of the new house did not change the fact that the 2 houses co-existed while the new house was being constructed. She referred to the definition of "use" in section 3 of the Planning and Environment Act, which includes:

.... Use or proposed use for the purpose for which the land has been or is being or may be developed;

"There is no doubt about the proposed use of this new building, because - even aside from the evidence - it is identified in the permit. Its proposed use for the purpose of a dwelling is within the definition of "use", while the original dwelling remains in actual use on the subject land.

I am of the view that the introduction of the new Casey Planning Scheme did not remove the requirement for a permit for the use and construction of the new dwelling. While it is under construction, the land is in use both for the existing dwelling and for the proposed use of the new dwelling, and therefore falls within the definition of use for two dwellings. Following lawful construction of a second house on the subject land, it is a matter of compliance with a permit condition to demolish the existing house, which as far as these proceedings are concerned had always been a lawfully constructed dwelling used for a lawful purpose. The circumstances requiring demolition have not yet arisen. Meanwhile, because the use requires a permit, construction also requires a permit under the terms of Clause 32.03-4."

In the circumstances of the current case, I find that the facts in Calderwood can be distinguished. That was a case involving two dwellings - an old house and new house. There was never an intention that one would be retained and become part of a single, larger dwelling. In the current circumstances, there is no intention to remove the garage building. Rather, it will become part of the dwelling currently under construction. The definition of dwelling in the planning scheme includes outbuildings and works normal to a dwelling. At no stage will the two buildings be used, or be capable of being used, as separate dwellings. This is evidenced by the condition on the building permit No 2620 relating to conversion of the garage building and from the plans for both permits. At all times there has only been an intention to use and construct a single dwelling on the land. The fact that this is being undertaken in stages does not alter this intention or change the ordinary meaning of what the building permits allow. I therefore find that the whole of the development which exists and which is in the course of construction on the subject land is a single dwelling for the purposes of interpreting and applying the Casey Planning Scheme. I find that the building currently under construction is an enlargement of a single dwelling of which the garage where the respondents presently live is part.
In making this finding I am not challenging the legal finding in Calderwood but just distinguishing it on the facts.
This finding was made orally at the directions hearing to assist the parties in considering the future conduct of this case. Ms Moles requested an opportunity to make further legal submissions on behalf of the Council and submitted that this hearing should not be regarded as the final hearing. I agreed that the hearing should be regarded as part of the final hearing and that a further opportunity would be given to parties to present further argument and submissions. The case was therefore adjourned for a period of 4 weeks."
I established at the outset of the hearing that I did not regard the findings which I made previously as final or conclusive and that I would consider the further submissions put by parties on the issues.

The key issue in this case is whether the construction occurring on the land amounts to an extension of the existing dwelling, or a second dwelling. The respondents submitted the second dwelling is properly characterised as an extension of the first building whereas the Council submits that it is a second dwelling. In this decision I shall refer to the two buildings as the 'garage building' and the 'house building'.
The Council contends that the garage building is properly characterised as, and is being used as, a dwelling. It meets the definition of dwelling in clause 74 of the planning scheme which reads as follows:

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

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

The Council further argues that the house building presently in the course of construction will also, upon completion, meet the definition of dwelling. Because the definition of 'use' in the Planning and Environment Act 1987 includes "use or proposed use for the purpose for which the land has been or is being or may be developed", and because the house building is being developed for the purpose of a dwelling, ipso facto there are two dwellings on the land. The Council relies on the decision of the High Court of Australia in Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works 34 LGRA 151 to support the proposition that development of land for a future purpose amounts to already using the land for that purpose. The same proposition was relied upon by the Tribunal in the case of Calderwood v Casey City Council.
I accept the proposition that if land is being developed for a purpose then it can be said to be currently being used for such purpose. The question in issue is the purpose for which the land is being developed. Is it being developed for the purpose of one dwelling or two dwellings?
If one is looking to determine how land is used by reference to the purpose for which the land has been or is being developed, 'purpose' implies intent or reason. It is the object towards which one strives or for which something exists. At all times in the present case the respondents' purpose has only ever been to use the land for a single dwelling.
However, the Council has chosen not to interpret 'purpose' as meaning intent or reason but something that must be determined by reference to the physical characteristics of the development both as it exists and as is proposed. In this respect, the Council points to the fact that the garage building already has a kitchen, bathroom, toilet and other features of a dwelling and when complete, so too will the house building.
The Council referred to a number of decisions where the Tribunal has grappled with how to characterise developments with multiple kitchen, bathroom and other facilities. The view expressed by the Tribunal in Biasin v Mornington Peninsula Shire Council [2000] VCAT 1149 and other Tribunal decisions is that the number of kitchens, bathrooms and other elements of dwelling design are not determinative that the land is used for more than one dwelling. I agree. It is not just the physical characteristics of development that will determine the purpose for which land is used but rather the way in which that development functions or is used that will determine its purpose. As Barry J stated in Bakes v Huckle [1948] VicLawRp 29; [1948] VLR 159 at 160:

Whether the particular premises are a dwelling is a question to be decided on the facts of each case.

Thus I agree with Council that the presence or absence of a laundry in the house building is not relevant. But similarly, the issue of separate entrances, separation between buildings etc, which are matters that previous Tribunals have found useful in determining how to characterise development, are not necessarily determinative in the present instance either. This case must be decided on its own facts.
In my view the development is for the purpose of one dwelling. It is a development that is proceeding in stages. When the house building is complete it will be a dwelling that meets the definition in Clause 74. When the garage building is complete it will be an outbuilding normal to a dwelling. As I stated in my reasons dated 2 August 2004, at all times there has only been an intention to use and construct a single dwelling on the land.
I regard the house building and the garage building as a single development and in reaching this conclusion I rely upon the evidence of the two building permits, the physical appearance of the buildings and their relationship to one another, and the plans of the buildings when complete.
In this respect I distinguish the facts of this case from those in Calderwood, which was a case involving two dwellings - an old house and a new house, both of which were capable of being used as a self contained residence. Although it was intended to demolish the old house, the Tribunal in Calderwood found that this was not relevant and that while the second house was under construction, the land was in use both for the existing dwelling and for the proposed use of the new dwelling, and therefore fell within the definition of use for two dwellings. As I noted in my reasons dated 2 August 2004, in the current circumstances there is no intention to remove the garage building. Rather, it will become part of the dwelling currently under construction. When the development is complete, the development will include the house building, which is a building used as a self contained residence, and a garage, which is an outbuilding normal to a dwelling. I do not consider it is reasonable to regard the house building and the garage building as two separate developments and to say therefore that the land is being used for the purpose of two separate dwellings.
In forming my views, I consider there needs to be consistency from a time perspective in the way in which a development is viewed for the purpose of determining its use. The Council has formed a judgement about a half completed project. It has characterised the purpose of the garage building based on what it is now and how it is being used now, but has looked at the house building not as it is now but what it will be in the future when completed. This has led the Council to the conclusion that the two buildings constitute separate developments.
I disagree. I do not consider it is reasonable to disagregate the development in the way the Council has done and to look at each building from a different time perspective. The Council has considered the house building from the perspective of what it is being developed for (ie what it will become in the future) and reached the conclusion that it is being developed for the purpose of a single dwelling. However, it has looked at the garage building from a present perspective, ie what it has been developed for and is being used for now, and has reached the conclusion that it has been developed for the purpose of a single dwelling. Both conclusions are valid, but only if each building is considered in isolation as a separate development. For the reasons given, I do not consider that the buildings are separate developments but rather they are part of a single development. When they are considered as a single development, whether a current perspective is used or a future perspective, the same conclusion is reached - the land is being used or will be used for the purpose of a single dwelling.
It is important to recognise that the definition of dwelling is a definition based on the way that a development is used, i.e it must be a building used as a self-contained residence. Whilst the building must contain certain facilities, such as a kitchen sink etc, these facilities do not of themselves determine whether a building is a dwelling. A building may contain all these facilities and still not be used as a self-contained residence. Conversely it is not necessary that a dwelling must comprise only a single building. Although the definition of dwelling refers to "a building", it is a case where the singular includes the plural. It has long been viewed that a dwelling is not necessarily a single building but may comprise an agglomeration of separate buildings (see J & E Van Bavel v Shire of Eltham Appeal No 1992/14297). The determinative issue is whether the building (or buildings) is (are) used or intended for use as a self contained residence.
The buildings on the land are currently being used as a single self-contained residence.
If one looks to the future when the development is complete, the house building will be used as a self contained residence and the garage building will be used as an outbuilding. At no stage will the two buildings be separately used or be capable of being used as separate self-contained residences. In this respect I ignore the period of grace allowed by the condition on building permit No 2620, which provides that the existing temporary dwelling must be converted to a garage within three months from the date of certificate of occupancy for the house building. Based on the principal of de minimis non curat lex[1] I find that this is a period of time allowed for the practical purpose of completing the overall development by physically converting the garage building back into a garage and removing the existing fixtures and fittings. It is not a period when the two buildings will be physically occupied and used as separate dwellings.
I do not consider that the definition of dwelling included in clause 74 detracts from the effect of clause 71 of the planning scheme which states that a term used in this planning scheme has its ordinary meaning unless that term is defined. The critical term in the definition of dwelling is "a building used as a self contained residence" and this term must be given its ordinary meaning.
There is a restrictive covenant that applies to the subject land which prevents use of the site for more than a single dwelling. One of the respondents' objections to applying for a planning permit for a second dwelling, which is what the Council wishes them to do, is that this would place them in breach of the restrictive covenant. Pursuant to section 61(4) of the Planning and Environment Act 1987, if the grant of a permit would authorise anything which would result in a breach of a restricted covenant, the responsible authority must refuse to grant the permit unless there is also a decision to allow the removal or variation of the covenant. The respondents say that due to poor relations with their neighbours they would never consent to removal or variation of the covenant and hence the likelihood of this being allowed is remote. This creates a 'catch 22' position for the respondents because on the one hand the Council says they are in breach of the planning scheme and must apply for a permit for a second dwelling but to do so would place them in breach of the restrictive covenant.
To get around this situation, the Council submits that the interpretation of the provisions or wording of a restrictive covenant, albeit for the purpose of examining any conflict with a potential planning permit, is not to be done by reference to the terminology of the planning scheme or the Act, but rather should adopt normal or ordinary English interpretations. (see C &P Coridas v City of Monash and J & L Nibaldi (1998/09018) and Longo Investments Pty Ltd (2003) VSC 37). Applying this principal to the current circumstances, the Council says:

"We say that if that approach is taken to the use and development on the Kelly land, it could be said that there is a single 'place of abode' with garage....

Council submits ... that in colloquial terms what is occurring on the Kelly land might be said that the family is temporarily occupying their garage while their (single) house is being constructed."

On this basis, the Council submits that if the respondents applied for a planning permit for a second (temporary) dwelling thereby bringing the land into compliance with the planning scheme they would not be in breach of the restrictive covenant.
I consider that this argument demonstrates the artificiality of the Council's contention that, for planning purposes, the land is being used for the purpose of two dwellings. On the one hand it says that in colloquial terms there is only a single place of abode with a garage, yet when interpreting the planning scheme, which requires that terms used must be given their ordinary meaning, the same development must be regarded as two dwellings. I do not consider this is a sensible outcome or a proper interpretation of the facts.
For the reasons I have given both in my order dated 2 August 2004 and above I find that the whole of the development which exists and which is in the course of construction on the subject land, namely the house building and the garage building, is a single dwelling for the purposes of interpreting and applying the Casey Planning Scheme. I find that the house building is properly characterised as an extension or enlargement of a single dwelling of which the garage where the respondents presently live is part. Upon completion of construction of the house building, the two buildings will be used for the purpose of a self contained residence for a single household, which will also include an outbuilding normal to a dwelling. This finding is consistent with and supported by the building permits for the garage building and the house building which both contemplate conversion of the garage building to a garage associated with the house building upon completion. On this basis I therefore find that there has been no breach of the Casey Planning Scheme by the respondents and the application for an enforcement order by the Council is refused.

At the hearing on 27 August 2004 Ms Brennan, on behalf of the respondents, applied for costs in respect of both hearing days in the order of $3,590.94.
At the hearing on 30 July 2004 I made the findings of fact set out in paragraph 1above. Notwithstanding these findings, the Council requested an opportunity to present further argument on the issue, which has been the purpose of this hearing. In agreeing to this I nevertheless urged the Council to consider my findings in deciding on the future conduct of the case and noted that if the Council did return and the outcome was no different this may go towards the issue of costs.
Notwithstanding further argument put by the Council, I have reached the same conclusion and I have made the same finding of fact as I did in my order dated 2 August 2004.
The respondents seek costs pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 and section 150(4) of the Planning and Environment Act 1987. The respondents submit that given the nature of the proceedings as enforcement proceedings in the original jurisdiction of the Tribunal, it is appropriate to depart from the usual rule that parties bear their own costs. The respondents also submit that the Council brought the proceedings vexatiously in two ways, firstly by virtue of the manifest lack of merit in the application and second by bringing the proceedings for an ulterior purpose.
The Council opposes the payment of costs on the basis that the respondents are seeking an award of costs against Council which for the most part comprise costs incurred in making the claim for costs against Council. Such a claim can only be for punitive purposes rather than for loss of expense unreasonably and unjustifiably imposed on the Kellys. Council says it has properly pursued this enforcement matter as is required of them when a breach of the scheme is brought to their attention. The respondents have acted unreasonably throughout: an application for planning permit would have been the appropriate response to Council's seeking to enforce the scheme.
I do not consider it is appropriate to award costs pursuant to section 150(4) of the Planning and Environment Act 1987 or otherwise under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 because the proceedings are brought vexatiously. Whilst Mr Kelly believes that he has been prosecuted because of certain political activities he has engaged in and for views he has expressed about the Council, this is denied by the Council. This ground was not established before me and in any event I consider it would be an extremely difficult matter to prove. Whilst it appears that there are some deep divisions between the respondents and the Council, and the respondents and their neighbours, these are not matters I consider should influence an award of costs in the present circumstances.
I do not consider it is appropriate to award costs in respect of the hearing on 30 July 2004. In respect of that hearing, I consider the normal rule should apply that each party should bear their own costs. I do not agree that just because the case involves an enforcement order there should be a departure from this rule. Whilst sometimes the circumstances of a case may justify an award of costs for reasons otherwise set out in section 109, it should not be assumed that costs will be awarded as a matter of course in all enforcement order applications.
However, I do consider that the respondents are entitled to costs in respect of the hearing on 27 August 2004. At the hearing on 30 July 2004, findings were made for the specific purpose of assisting the parties in considering the future conduct of this case. The delay between the two hearings offered the Council an opportunity to consider those findings and decide whether it wished to proceed further with the application. It choose to proceed but the outcome has been no different. I have reached the same conclusion on the facts as I did previously. Whilst the Council has further elaborated upon its arguments and produced more examples of Tribunal and other decisions to support its case, fundamentally it is the same case as was put to me on 30 July 2004.
In these circumstances, whilst the Council commenced the enforcement proceeding with the view that it had some prospect of success, particularly relying on Calderwood's case, its persistence with the case in light of the reasons given in the order dated 2 August 2004 and the notice given that costs would be an issue in any future hearing, lead me to the conclusion that it is fair to award costs to the respondents on the basis of sections 109(3)(c) and (d) of the Victorian Civil and Administrative Tribunal Act 1998.
The Council claimed that it was not reasonable for the respondents to employ the level of legal representation that they did, but I disagree. The Council was legally represented and produced detailed legal argument. The Council's persistence with their case following the Tribunal's order of 2 august 2004 was indicative that the Council took this matter seriously and accordingly the respondents were entitled to treat the matter with equal seriousness. Whilst my findings in the order dated 2 August 2004 were in favour of the respondents, they were not final and it was therefore reasonable for the respondents to protect their interests and respond to the arguments put by the Council in the best way possible. This is not vitiated by Ms Brennan's statement at the hearing that she was there to assist the respondents in their claim for costs. The claim for costs is a secondary matter which is dependent on the outcome of the primary issue in contention, namely whether the respondents are in breach of the planning scheme. It was reasonable for Ms Brennan to be present to represent the respondents' interests with respect to this matter for the reasons given above.
I therefore order that the Council should pay the costs of the respondents associated with the hearing on 27 August 2004, which are fixed at $3363.80.

[1] The law does not concern itself with trifles.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

City of Casey v Kelly [2004] VCAT 1838 (20 September 2004)

City of Casey v Kelly [2004] VCAT 1838

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

City of Casey v Kelly [2004] VCAT 1838 (20 September 2004)