With respect to permit application PL03/0473, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for the use of a caretaker's house and a reduction in the car parking requirements for `industry' and `caretaker's house' at 1/96 Langridge Street, Collingwood generally in accordance with the endorsed plans and subject to the following conditions:

1 The plan to be endorsed and which will then form part of the permit is the "Mr G P Eckersley Plan" dated 3/5/04.

2 The layout of the uses on the endorsed plan must not be altered without the written consent of the Responsible Authority.

3 The use of a caretaker's house hereby approved must be used in association with the industrial business operation and must not be used exclusively as a dwelling.

4 This permit is valid only for use with the registered business "Wimmera Logic". Use of this permit in association with any subsequent business title must be approved by the Responsible Authority in writing as a variance of this condition.

5 In the event of cessation of the business use conducted at the premises or the transfer of land controlled by this permit, this permit shall expire.

6 This permit will expire if the use is not started within two years from the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires, or within three months afterwards.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an Application under section 77 of the Planning and Environment Act 1987 to review the decision by the Yarra City Council ('the Council') to refuse to grant a permit in application no. PL03/0473 for the use of a caretaker's house at 1/96 Langridge Street, Collingwood.

2 The permit application was lodged with the Council on 21st May 2003 and was advertised in September 2003 with no objections received.

3 The Council then considered the application and determined to issue a Notice of Refusal to Grant a Permit on 28th November 2003 on the following grounds:

'1. The caretaker's dwelling use is inappropriate for and would undermine the core purposes of the Industrial 1 Zone.

2. The proposed use is not consistent with applicable State and Local Planning Policy Frameworks.

3. The proposed use is not consistent with Council's Industrial and Commercial Framework Plan and the policies for Core Industrial Areas as contained at Clause 21.05-3 of the Yarra Planning Scheme.

4. The proposed use is not consistent with Clause 22.06 of the Yarra Planning Scheme.'

4 This Application for Review was received by the Tribunal on 23rd January 2004 from Mr Eckersley on grounds that essentially refute the Council's grounds of refusal.

5 During the course of the hearing, Ms McMaster referred to the proposal requiring planning approval to reduce the car parking requirement for industry and a caretaker's house, as there was no evidence that the review site had been used for industrial purposes since 1997. Ms Katz then sought leave to amend the application to refer to 'a reduction in the car parking requirement'. There being no objection to this, I granted leave in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

6 Ms McMaster and Ms Katz both provided written and oral submissions, together with plans, photographs and other supporting documentation. All of the material has been taken into consideration and has provided me with a good understanding of the review site and surrounds.

7 The review site is contained within a four storey building located on the corner of Langridge and Rokeby Streets in Collingwood.

8 The building was originally constructed in the 1960s and has recently been subject to renovation and improvement. It contains a number of industrial tenancies of varying sizes with associated car parking and loading bay access.

9 The review site is located on the third storey of the building and contains an upper mezzanine level. It has a floor area of approximately 110 square metres and is provided with one car space on the ground level of the building. The premises currently contains four principal rooms, a kitchen and a bathroom.

10 Ms McMaster described the uses in the surrounding area as light industry (warehouses) and associated commercial uses.

11 Ms Katz provided a detailed explanation of the `Wimmera Logic' business activities being undertaken and to be undertaken in the premises:

* Design and manufacture of prototype small electronic equipment and motors. The types of equipment designed include power supplies, measurement and control equipment and industrial automation equipment.

* Testing of this prototype equipment which involves temperature, functional and safety tests. These tests often extend over periods of several days to several weeks and require supervision both for safety reasons and to make adjustments for the testing.

* Web hosting of critical project management and timing charts for other companies. Supervision of this process is required to ensure that the information does not go offline.

* Electronic Mail Out of events for the Institute of Electrical and Electronic Engineers (approximately 2000 members). While the process is automated supervision is required to ensure that any server technicalities or other malfunctions are dealt with swiftly.

12 Ms Katz submitted that the caretaker's dwelling is an ancillary component of the business that is required for the following reasons:

* The manufacture and testing of equipment requires extended processing time, often including temperature testing, where supervision is required.

* Safety and insurance requirements do not allow for some testing to be undertaken without a person on hand.

* Large electronic mailouts are undertaken, often overnight, and it is necessary that these are monitored to run smoothly.

13 Ms Katz submitted that the layout of the premises will comprise:

* A conference/reception area/living area of 48.27m2.

* An office/bedroom of 22.56m2 containing a fold down bed.

* The existing storage room, kitchen and bathroom.

14 The review site and surrounding land is contained within an Industrial 1 Zone pursuant to Clause 33.01 of the Yarra Planning Scheme ('the Planning Scheme'). The purpose of this zone is:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

15 A planning permit is required under this zone to use land for the purpose of a caretaker's house.

16 A caretaker's house is defined in the Planning Scheme as:

`A dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation, or plant.'

17 There are no overlay controls that affect the review site.

18 Clause 52.06 of the Planning Scheme requires that car parking be provided at a rate of 1 car space for a caretaker's house and 2.9 car spaces to each 100 square metres of net floor area for industry. A planning permit is required to waive or reduce the required number of car spaces.

19 Ms McMaster submitted that Clause 14.02 Metropolitan Development, Clause 17.03 Industry, and Clause 18.02 Car parking and public transport access to development of the State Planning Policy Framework are relevant to this proposal. She also submitted that the review site is located within a `Core Industrial Area' in the Industrial and Commercial Framework Plan at Clause 21.05 and that the Caretakers Dwellings local planning policy at Clause 22.06 is relevant to this proposal.

20 Ms McMaster submitted that the Council had no concern with the industrial use of the land, which does not require planning approval, nor does the Council have any concern about the reduction in the car parking requirements for an industry and caretaker's house. Therefore, I find that the issues before me for consideration are whether the caretaker's house is appropriate having regard to the planning policy context and the intended layout and use of the review site.

21 I note that the strategies of Clause 21.05-3, Industry and Commerce, of the Municipal Strategic Statement include:

'Designate and consolidate Core Industrial Areas (based on existing industrial concentrations) to:

* Support the retention of existing industrial operations

* Provide certainty and locational opportunities for new 'modern' industries

* Accommodate existing industrial operations which have the potential to cause amenity impacts'

22 The review site is within the Core Industrial Area and I am of the opinion that its use for a 'modern' industrial purpose is in accordance with Clause 21.05-3.

23 Ms McMaster highlighted the Caretaker's Houses local planning policy at Clause 22.06 of the Planning Scheme that states:

Council acknowledges the need for on-site caretakers in association with various industrial and commercial activities but is concerned that caretaker's houses are, in some instances, being developed for general residential purposes following subdivision of industrial premises.

To ensure that caretakers houses are properly planned for supervisory services to their associated industrial or commercial activity.

* Should be provided directly in association with and ancillary to approved commercial or industrial land use and development.

* Should be less than 10% of total floor area of the associated commercial or industrial use excluding car parking and loading bay areas or up to 100m2 whichever is less.

24 I note that Ms McMaster did not dispute Ms Katz's submission that the business activities on the review site will require supervision and hence will require a supervisor/caretaker. I find that the provision of a caretaker is in association with the existing industrial use of the land and is in accordance with the first dot point of the policy listed above.

25 I also find that the caretaker's house will be located above ground and therefore accords with the second dot point of the policy.

26 In regard to the floor area of the caretaker's house, I find that the bathroom, kitchen and living areas of the premises will be shared by both the business and caretaker activities. A workroom/laboratory and an upper level Office/Plan room are to be used in association with the business activities. This leaves one room that is nominated as an office/bedroom and will be utilised as the sleeping quarters for the caretaker, when required. Ms Katz submitted that this `office/bedroom' area is 22.56m2 or 20.5% of the total floor area, and therefore does not comply with the policy requirement. I agree with and adopt Ms Katz's submission that:

`The residential use of the site has been kept to a minimum with the dominant use in all rooms being a commercial use. Given the smallness of the site with approximately 100m2 available for use, a limit of only 10% of that area is not achievable. However, as has been demonstrated with the plans all areas of the site have multiple uses and there is no area that will be used exclusively for the caretaker's dwelling.

The proposed use meets the objective of this clause as it is a caretaker's dwelling associated and ancillary to the main use of an industry. A caretaker's role is required for the cost-effective, efficient and safe running of the business and will provide an appropriate and complementary activity for the site.'

27 I consider it noteworthy that the planning permit history of the building containing the review site, as outlined by Ms McMaster, highlighted four other tenancies in the building that have already been granted planning permits for caretaker's houses in association with their industrial uses.

28 Ms McMaster tabled a real estate advertisement of the review site, prior to it being purchased by Mr Eckersley, that illustrated its potential use for residential purposes. Ms McMaster indicated that the Council had considered enforcement action but as there was no evidence that the review site was occupied by residents, this was not pursued. Given this history and the proposed layout of the review site as shown on Mr G P Eckersley Plan dated 3/5/04, Ms McMaster questioned whether the proposal was actually a `Home Occupation'.

29 I adopt the findings of the Tribunal in the matter of Graphos Architects v Moreland City Council (2000/002033), where the Tribunal found that:

`...a dwelling must be a permitted use before home occupation can be contemplated ... The dwelling must be the principal place of residence of the person conducting the home occupation. This is at odds with the Business 3 zone where all accommodation apart from a caretaker's house is prohibited.'

30 In the Industrial 1 zone, all accommodation apart from a caretaker's house is also prohibited. Therefore I find that this proposal cannot be described as a home occupation. I note Ms Katz's submission that Mr Eckersley's principal place of residence is elsewhere and that the review site will be his place of business rather than his principal place of residence.

31 The definition of a caretaker's house is silent on the duration of occupation required, and it is silent on whether it has to be the principal place of residence of the supervisor. Therefore, I am of the opinion that it is not a requirement that the caretaker's house be continuously occupied and I note that from Ms Katz's submission that this is certainly not intended to be the case.

32 In the matter of Intex v City of Yarra (P272/2002), the Tribunal found that:

`There must be a nexus between the occupant of the caretaker's house and the business on the subject site. The Macquarie definition of "supervise" is "to oversee during execution or performance". A direct association is referred to at Clause 22.06.'

33 I am satisfied that this nexus has been shown to exist in this proposal as:

* Mr Eckersley is the owner of the land and manages the business operation; and

* Mr Eckersley has a supervisory role in overseeing the testing on the review site, or will supervise the overseeing of the testing by a contractor or other specialist.

34 Ms McMaster referred to the Tribunal determination of Tigger Enterprises v Yarra CC (P1004/2003 and P1005/2003) that found the proposed caretaker's houses to be inconsistent with the policy framework of the Planning Scheme. I note, however, that that particular proposal sought planning approval for four offices and four caretaker's houses and the Tribunal was not persuaded that the number and size of these caretaker's houses should be allowed. I am of the opinion that this proposal is markedly different to the above case, as it proposes to allow for a supervisor on the premises, which is ancillary to the principal use of the premises as a business, as is clearly depicted in the layout of the premises on the Mr G P Eckersley Plan dated 3/5/04.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.