1. The proposed retail office use is prohibited as it uses land within the Residential 1 zone for vehicle access.

Mr S Morris, QC of counsel instructed by Warren Woolcock

Mr A Natoli, solicitor, Planning & Property Partners Pty Ltd

1. The Tribunal was reconstituted to include Senior Member Rickards to consider the question raised by the Tribunal in its order dated 8 July 2010 as to 'whether the proposed retail office use is prohibited as it uses land within the Residential 1 zone for vehicle access'. The following is Senior Member Rickards determination on the issue.
2. The land the subject of the application is contained within two zones. The eastern portion of the land is located within a Business 2 Zone and the western portion of the land is located within a Residential 1 Zone. The proposed vehicle access to a basement car park to service the development is proposed from Oak Grove which is in the Residential 1 zone. One of the proposed uses on the land for which vehicle access to the basement car park is proposed is a retail/office use to be located within the Business 2 zone.
3. Under the planning scheme provisions a retail/office use is prohibited in the Residential 1 zone, whereas under the Business 2 zone an office use is as of right and a retail use requires a permit.
4. The applicant contends the vehicle access way can be appropriately characterised as a 'road'. The applicant submits the development can be divided into segments for the purpose of characterising the proposed land uses permitted in the applicable zone. The characterisation of a land use often involves a choice and in this respect the applicant contends the access way should be characterised as a separate use being that of a 'road'.
5. Section 3 Planning and Environment Act 1987 (the Act) defines 'road' to:

include highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not'.

1. Having considered the written and oral submissions referred to and presented by the applicant and responsible Authority at the hearing on 6 September 2010 I determine the access way in the present case cannot be characterised as 'a road' as defined under the Act for the following reasons.
2. The accessway is an integral part of the retail/office use. Whilst the proposed retail/ office use is to be located within the Business 2 zone access to car parking for this use, via a concrete ramp located in the Residential 1 zone, is an integral part of the retail/office. Retail/office use in a Residential 1 zone is prohibited.
3. The Tribunal refers to the determination in Marble Swirl Holdings Pty Ltd v Kingston CC[1]

The purpose do the access-way is an integral part of the dominant use or uses to which the subject land is put, because it is the dominant use or uses which meed that access-way to satisfy their parking requirement under the scheme. The access-way does not have a separate character or purpose. It has a subservient purpose.

To the degree that the access-way serves the supermarket, that is its essential character. To the degree that the access-way serves the apartments, that is its character, it takes its character or colour from its masters, from the real and substantial purpose to which the land is put.

1. It is not illogical to characterise each of the uses to be conducted on the land separately. As each of the uses requires car parking which is to be provided within a two level basement car park and access to this car parking is via the concrete ramp then the access way is an integral part of each of the uses. The access way is not a separate and distinct use from each of the proposed uses.
2. The access way is a private thoroughfare in private ownership. If the land is subdivided into individual lots to accommodate each of the proposed uses to be conducted on the land (retail/office, convenience store, café, and 30 dwellings) the access way will be owned by the owners of each of the newly created lots and become common property.
3. As stated in AMS Pty Ltd v Maroondah CC [2] and followed in BR Smith & Associates v Maroondah CC [3] the definition of a road in the Act does not include a private driveway.

The created road referred to by the CFA is the accessway or driveway created from the front of the subject land to provide access to each of the dwellings on the subject land. Upon subdivision of the land into 8 lots this accessway will form part of the common property, be the responsibility of the body corporate made up of the owners of each lot and allow fro each owner to access their lot.

It is not considered that the creation of this accesway or driveway is a road as defined within section 3 of the Planning and Environment Act 198. Just because it provides access to a number of dwellings does not change its status from a driveway providing access to an individual dwelling. It is a private driveway or accessway on land owned by or the responsibility of the owners of the land.

1. A private thoroughfare does not automatically fall within the definition of 'road'. 'Whether a thoroughfare or not and whether accessible to the public generally or not' does not within the definition of a 'road' turn what is a private driveway that is not a thoroughfare or generally accessible to the public, unless used by invited persons, into a road.
2. In this case this is a new development. To define a road in a new development it must be created and this is usually shown on a plan of subdivision. There is no such plan of subdivision. The access way has not been created as a road within the definition of the Act.
3. The access way does not have the legal character of a road as defined in the Act. It is not proclaimed as a road, reserved as a road or dedicated as a public highway. If it was a road the provisions of the Act would allow for its closure by the authority. It is unlikely that this is intended by the owner of the land.
4. A private thoroughfare may be defined as a road, however it must firstly be created as a road. Just because it is a private thoroughfare does not mean it has been created as a road. It remains a private thoroughfare until it is either created as a 'paper road' or over a considerable period of time it has been used as a public thoroughfare and become dedicated at common law as a public highway. The reference in the definition of a thoroughfare which is either used by the public or not does not result in a private thoroughfare becoming a road before it can be considered as to whether it is a thoroughfare or accessible to the public and even if it is not a thoroughfare or accessible to the public, if created as a road then it will remain as a road[4].
5. The access way to the basement car park is not a separate use as a 'road' but is part of the retail/office use. As access to the car park for the retail/office use is within the Residential 1 zone the use is prohibited.

[1] [2008] VCAT 973

[2] [2009] VCAT 17 (8 January 2009)

[3] [2009] VCAT 766 (6 May 2009)

[4] _Bass Coast Shire Council v King & Other_s [1997] 2 VR 5; Templestowe Developments Pty Ltd and Others v City of Boroondara [1997] 1 VR 504