For George Michael & Deanne Kylie Cotsonis and others

Mr Clem Newton-Brown of Counsel, instructed by Tony Kelly

Ms Julie Davis of Counsel, by direct brief. She called as witnesses:

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Michael Edward Pekin

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Georgia Pekin

1 This is an application for enforcement order made by George and Deanne Cotsonis and others which alleges that the subject land at 107 Keon Street, Thornbury, owned by Michael and Linda Pekin is being used for more than one dwelling without a planning permit in contravention of the Darebin Planning Scheme.

2 The subject land is located within an established residential area and currently contains one single storey dwelling and a double storey studio in the back yard. The studio, which is the cause of complaint, replaced an earlier single storey bungalow. It is a neat weatherboard building with a single storey skillion roofed component abutting the rear boundary, which is used for storage. The two storey component comprises a sitting room, bathroom and dark room downstairs, and an upstairs bedroom which is open to the living area below. The dark room is the same size as the bathroom. It contains cupboards, shelves and a laboratory type sink.

3 A building permit was issued on 12 April 2003 for additions to the existing dwelling and construction of a studio on the subject land.

4 One of the applicants, George Cotsonis, is a neighbour and owner of the abutting property at 105 Keon Street, Thornbury. He made complaints to the Council in May 2004 regarding the building works progressing at the subject site on the basis that he believed the structure being built at the rear of 107 Keon Street is a self contained dwelling. The complaints were investigated by the Council which reached the conclusion that: "based on the building permit floor plans ... and the Building Permit (text), it appears that the proposal does not have a kitchen sink or food preparation facilities and is not intended to be used as a self contained residence."

5 The applicants filed and served the application for enforcement order in September 2004. George and Deanne Cotsonis, who are the owners of the adjoining property at 105 Keon Street, were the initial applicants. The application identified other neighbours as persons who may be affected by the alleged contravention: PA Coulson & H Halley-Coulson of 109 Keon Street; J & AC Louzis of 98 Rennie Street; and RS and ED Muthaya of 100 Rennie Street (the Rennie Street properties abut the rear of the subject site).

6 There was a directions hearing on 22 October 2004 and the matter was referred to mediation on 1 December 2004. The mediation was not successful but at the mediation several neighbours asked to be joined with G & D Cotsonis as joint applicants for review. The Tribunal made the following order dated 1 December 2004:

The Tribunal directs that the application be heard by a legal member on 18 January 2005.

In order to facilitate a proper understanding of the issues in dispute:

a The Applicant for Review is to provide a detailed Outline of Argument with appropriate definitions to the other parties by 11 December 2004.

b The Respondent is to reply to the Applicant for Review and provide a copy to the responsible authority including any necessary outlines and information by 21 December 2004.

c The Applicant has until 28 December 2004 to forward any further comments and information to the other parties.

d The City of Darebin, Mr. Jim Louzis and Mrs. Helen Halley-Coulson and Mr. Paul Coulson are made parties to the Application for Review.

e All witness statements of both professional and lay people must be exchanged in accordance with the Tribunal directions within 10 days of the hearing.

7 In its reasons for the order the Tribunal said:

1 This matter was aired at a mediation hearing on 1 December 2004.

2 At mediation it was obvious that the issues could not be resolved. However, the parties agreed that information should be exchanged to the extent that both Applicant and Respondent are fully aware of what is to be argued at the subsequent hearing. There should be no surprises on the day.

8 By letter dated 13 December 2004 from Mr Roy Muthaya (written on behalf of himself and Eva Muthaya) an application was made to be joined as joint applicants for review. However, in a letter to the Tribunal from Tony Kelly, Solicitor for the applicants, dated 12 January 2005 he advised that:

In relation to the other Applicant parties, I have been advised by Mr RS Muthaya and Mrs ED Muthaya of 100 Rennie Street, Thornbury, that if they have been joined as Applicants to this proceeding that they wish to also withdraw.

9 In correspondence with the Tribunal, Tony Kelly also advised that Mr George Cotsonis sought to withdraw as one of the applicants from the proceeding. This was not consented to by the respondents, Mr & Mrs Pekin. The application by Mr Cotsonis to withdraw was dealt with at the outset of the hearing on 18 January 2005.

10 With respect to the requested withdrawal by Mr George Cotsonis, the Tribunal refused to give leave to withdraw pursuant to section 74 of the Victorian Civil and Administrative Tribunal Act 1998. Mr Cotsonis has been the principal protagonist in these proceedings. The proceedings have been resisted by the respondents and from the outset they have made it clear that they intend to seek costs from the applicants. Until this matter is determined by the Tribunal and any orders are made regarding costs, it is not appropriate to allow Mr Cotsonis to withdraw nor would it be potentially fair to the other joint applicants. It is not appropriate to make any orders as to costs until after the matter is determined. This is not a situation where the withdrawal of Mr Cotsonis will bring an end to the proceedings and therefore it is not a situation where it is appropriate to make an order pursuant to section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998.

11 With respect to Mr & Mrs Muthaya, as they have never been formally made a party to the proceedings, we confirm that they are not parties to the proceeding.

12 In response to the Tribunal's order dated 1 December 2004, the applicants filed and served an outline of argument on 14 December 2004. The respondents filed and served their response on 21 December 2004. On behalf of the respondents, witness statements by Michael Pekin and Georgia Pekin were filed and served on 4 January 2005. No witness statements were filed or served by the applicants.

13 At the commencement of the applicant's case, Mr Clem Newton-Brown indicated his intention to call Mr George Cotsonis to give evidence. This was objected to by the respondents. The Tribunal ruled that in light of the explicit order by the Tribunal on 1 December 2004 regarding the exchange of all witness statements of both professional and lay people prior to the hearing and its specific comment that "There should be no surprises on the day", Mr Cotsonis would not be permitted to give evidence. Very clear directions were given by the Tribunal that the applicants have failed to comply with. It would be unfair to allow them to now call this evidence.

14 This is a case that has arisen out of a dispute between neighbours. However, it is not our role to delve into the origins of that dispute nor the rights or wrongs of it. This is an application for an enforcement order under the Planning and Environment Act 1987 and we must decide this application based on planning principles and the law.

15 The definition of dwelling in the Darebin Planning Scheme is as follows:

Dwelling A building used as a selfcontained residence which must include:

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

16 The subject land is in a Residential 1 Zone under the Darebin Planning Scheme. Dwelling is a section 1 as-of-right use in the Residential 1 Zone. Pursuant to clause 32.01-3 a permit is only required to construct or extend one dwelling in a Residential 1 Zone on:

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A lot less than 300 sq m.

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A lot of between 300 sq m and 500 sq m if specified in the schedule to this zone.

The schedule to the Residential 1 Zone in the Darebin Planning Scheme does not indicate that a permit is required for lots between 300 and 500

sq m. As such, given the subject site has an area of 490 sq m, a permit is not required for the construction or extension of one dwelling.

17 It is alleged by the applicants that the subject land is being used unlawfully for the purpose of two dwellings in contravention of clause 32.01 of the Planning Scheme. The applicants argue that the studio to the rear of the dwelling on the subject land fits the definition of dwelling set out in the scheme by virtue of containing all of the internal components listed in the definition of dwelling.

18 The applicants submit that even if the studio has been constructed as-of-right it is not to be treated as such when it is clear there was no intention to use the development in the manner which gave it its as-of-right status. Hence it is relevant to consider the manner in which the development was intended to be used by the owners.

19 Alternatively, it is argued that if the structure is claimed to be an outbuilding to the existing dwelling, the size, height, scale, fitout and amenity of the studio is such that it cannot be properly considered as an outbuilding "normal to a dwelling" within the meaning of the definition of dwelling.

20 There are two components to the definition of dwelling - a use component and a development component. The use component of the definition is:

The key aspect of the use component of the definition is the self contained nature of the residence. The development component of the definition requires that a dwelling contain all the facilities listed: a kitchen sink; food preparation facilities; a bath or shower; and a closet pan and wash basin.

21 In the present case, the studio does not contain all these facilities because it does not contain food preparation facilities.

22 It was argued by the applicants that the dark room was in fact a kitchen. We find this is not the case. It includes a sink but there are no food preparation facilities in the form of hot plate, oven or microwave. There is no kitchen shown on the building permit plans and this was borne out by the Tribunal's inspection of the studio following the hearing.

23 We do not place any weight on the fact that an earlier set of plans prepared when the respondents were first considering extensions to their home showed the area now occupied by the dark room as a kitchen. Michael Pekin gave evidence that over several years he and his wife had contemplated extensions to the house to provide more accommodation for the family as due to health and education issues it appeared that their two daughters, who were approaching adulthood, would be living at home for some time into the future and all family members needed more privacy. However the original plans prepared were not proceeded with due to cost. More modest plans were prepared for renovations to the house and construction of the studio as it now is. The studio could have been built as an extension to the dwelling but was not because it was cheaper to build a free standing building than to extend the existing dwelling.

24 Evidence was also given by Michael Pekin and his daughter, Georgia Pekin who occupies the studio, about its use. The dark room is used by the family for hobbies. The studio is occupied by Georgia Pekin. From time to time her boyfriend and friends visit and sometimes stay overnight. She has a bar fridge which is used to keep drinks and snacks which may be consumed in the studio. She is frequently in and out of the main house to eat meals, use the computer, watch Foxtel, use the phone or laundry, talk to the family, etc. There was a brief period whilst the kitchen in the house was being renovated that a portable grill was used in the studio for cooking.

25 We find that based on the evidence given and our inspection that the studio is not being used as a self contained residence. It is being used by a family member as an adjunct to the main dwelling. The occupant, Georgia Pekin, relies upon both facilities in the studio and facilities in the dwelling for her residence. Her level of interaction with the main house and the other members of the family who occupy it and her reliance upon its facilities mean that the studio is not being used as a self contained residence.

26 Even if there were some limited cooking facilities in the dark room, we do not consider that this would necessarily make the studio a "dwelling". On this issue the Tribunal said in the case of Casey City Council v Gerard [2004] VCAT 1838:

16. 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.

27 To establish that land is being used as a dwelling it is necessary to establish both that the building contains all the facilities included in the definition and also that the building is being used as a self contained residence. In the present case we find that neither component of the definition is satisfied. Not all the facilities are present (namely food preparation facilities) and nor is the building being used as a self contained residence.

28 Neither do we find that there is any intention to use the studio as self contained accommodation. The fact that it might be possible to do this by altering the dark room is not relevant. We must look at the actual development that exists and the way that it is being used at present to decide if there is any breach of the planning scheme. As Member Baird said in Jefferson v Mornington Peninsula Shire Council [2003] VCAT 806:

34. It is possible to envisage the layout being altered so that two parts of the building were self-contained, but that is not how the premises is currently built or used and nor is it the basis, Mr Jones said, of the permit application made by the Applicant. It is, therefore, not appropriate to pursue this further, consistent with various authorities that a Tribunal must consider the proposal as presented and cannot treat applications on the basis that the land may in future be used for some other (even unlawful) purpose [Appeal 1997/30288 Dover Street Pty Ltd v City of Yarra and D.M. Dodd and Others (unreported) and Application No. 1998/14941 Stebbins v City of Yarra and Anor (unreported)].

29 Finally, we do not consider it is necessary to decide whether the studio is an outbuilding. It is irrelevant whether a free standing building is characterised as part of the main residence or an outbuilding because the definition of dwelling is inclusive and includes outbuildings normal to a dwelling. The inclusive nature of the definition is designed to avoid the pedantic exercise of trying to characterise a building according to its connection to or separation from other buildings. In the recent case of Merrett v Moira Shire Council [2005] VCAT 93 the Tribunal was also required to consider the definition of dwelling and in that context made the following observation:

22. I also consider it is irrelevant whether the units are detached or attached. There is no longer any basis in the definitions in the planning scheme for drawing a distinction between types of dwellings depending on whether they are attached or detached. One of the features of the Victoria Planning Provisions is that the single use "dwelling" replaced the multiplicity of uses found in earlier planning schemes such as detached house, flat, row house, attached cluster house and detached cluster house, all of which were dwellings but having a different physical form. By making "dwelling" an as-of-right use in residential zones, the Victoria Planning Provisions intended to separate consideration of the use of land for "dwelling" from the development of a building as a dwelling(s). It is for this reason that there are separate provisions in each zone dealing with the construction and extension of one dwelling on a lot, or two or more dwellings on a lot. This enables the development controls (where applicable) to deal solely with development issues, such as standards of accommodation, off site amenity and other impacts like neighbourhood character, without opening for debate the issue of whether the use of land for a dwelling is appropriate in a residential zone.[1]

30 We therefore consider that the detached character of the building is not determinative of whether it is an outbuilding or part of the main dwelling because a dwelling is not necessarily a single building.

31 The main reason why the applicants sought to characterise the studio as an outbuilding was to provide the basis for an argument that because of its size and form, the studio was not an outbuilding "normal to a dwelling". According to Mr Newton-Brown:

"It is submitted that at some point an additional structure to a dwelling becomes too large or elaborate to properly be construed as an outbuilding "normal" to a dwelling. This point will depend on the context of each structure ie neighbourhood character is very relevant in considering this issue. In an inner city environment, lofts above rear stables on laneways are common and acceptable. On rural land, very large sheds are acceptable outbuildings.

In the case of Keon Street, Thornbury small, single storey sheds in rear yards are commonplace and "normal" to a dwelling. Double storey structures of a size which dominate rear yards are not "normal".

32 In support of this argument, the applicants relied on the case of Ivkovic v Melton Shire Council [2000] VCAT 1554 where Member Mainwaring said:

12. It is the Tribunal's view that the proposal does require a permit under the planning scheme. The Tribunal does not consider that the size of the building proposed could reasonably be considered to be an outbuilding normal to the use of the dwelling on site. The dwelling already has a carport and an existing shed, and the proposal specifically in being two storeyed exceeds what would be considered appurtenant to a dwelling.

33 We consider that Ivkovic's case turns upon its own facts. It is implicit in Member Mainwaring's findings (although not explicitly stated) that the shed in question in that case fell within the definition of "store" which is a Section 2 use in the Residential 1 Zone and hence requires a permit. In reaching the conclusion that the building was a "store" rather than an outbuilding normal to a dwelling the Tribunal relied upon a local policy and guidelines document used by the responsible authority in assessing outbuilding applications in reaching the conclusion that the particular outbuilding was not an outbuilding normal to a dwelling because of its size.

34 In the present case, there is no suggestion that the studio is a store or some other nominate or innominate use of land. A permit for buildings and works is required for a section 2 use under clause 32.01-6. However, the use of the land is for one dwelling which is a section 1 use, and there is no requirement for a permit for buildings and works in association with a section 1 use. The size of the land exceeds the area which requires a permit for the extension of a dwelling pursuant to clause 32.01-3. Therefore unless the use can be characterised as a section 2 use, even if the studio could be described as an outbuilding that was not normal to a dwelling, there is still no requirement for a permit.

35 Much of the argument on behalf of the applicants focussed on amenity issues and on the two storied detached nature of the studio. In fact Mr Cotsonis said that if the accommodation had been provided as an extension to the main house, he would not have had a problem. However, these amenity issues are not matters that are relevant to the primary issue of whether there has been a breach of the planning scheme.

36 Although the studio is a different style of development to what has formerly been common in this part of Thornbury, the area is changing with evidence of many substantial extensions and other two storey additions over garages. In fact, we consider that the studio is a form of development that is likely to become more common as family and household structures change due to the ageing of the population and the increased tendency of adult children to remain living within the family structure. Where a household consists of adult members there is a much greater need for individual privacy than where the household consists of parents and small children. The type of independent living arrangement that the studio represents is a form of extended family accommodation the community is likely to see more of in the future. So long as such independent living arrangements remain within the definition of dwelling, we cannot see that any distinction should be drawn between whether they are attached or detached from the main dwelling. We consider that to adopt such a distinction would be contrary to the inclusive nature of the definition of dwelling and signal an unwelcome return to the convoluted definitions of accommodation types in pre-new format planning schemes.

37 Our conclusion is that the studio is part of a single dwelling on the subject land. We find that it does not constitute a second dwelling and does not require a planning permit. There has therefore been no breach of the Darebin Planning Scheme and accordingly the application for enforcement order must fail.

[1] The same rationale applies in other zones where dwelling is a section 1 use and any section 1 conditions are met.