El Houli v Brimbank CC [2010] VCAT 831

1. The following declaration is made pursuant Section 149A Planning and Environment Act 1987:

Permit application P88/2009 is an application for a permit to use the land at 449 Sommerville Road, Brooklyn for "livestock feed and equipment, grains and stockfeed sold in bulk, speciality supplements for animals, poultry and livestock, pet supplies sold at wholesale prices, pet supplies - birds (predominantly sold at wholesale process)". This application is an application to use the land as retail premises which is a permit required use under the provisions of the Industrial 1 Zone.

1. Leave is granted to the Responsible Authority to withdraw this application and the application is withdrawn.

Declaration as to whether the use of the land is for 'retail premises' or a 'shop'

Section 149A Planning and Environment Act 1987

The subject land is located in Sommerville Road close to the corner of McDonald Road, Brooklyn. The land contains two attached buildings with a car park at the front of the buildings. One building is used by a tyre business.

The subject building is 250sqm divided internally into two sections. The northern half of the building is used for the stocking of goods and the other half is used for the keeping of birds.

Radford v Hume CC [2006] VCAT 2662

Hall v Kingston CC [2008] VCAT 1060

1. Mr EL Houli has applied to the Responsible Authority for a permit P88/2009 to conduct a business selling birds (pigeons), feed and equipment mainly related to birds as well as some livestock supplies and specialty supplements from premises at 449 Sommerville Road, Brooklyn. Mr El Houli has been operating the business from the premises for a short period of time and was not aware he required a permit.
2. The Responsible Authority has not decided on the permit at this stage as it was having difficulty characterising the use applied for as either 'retail premises' or 'shop'. The subject land being in an Industrial 1 zone means that a permit is required for use of the land for retail premises but use of the land for a shop is prohibited. Mr El Houli has sought a declaration in relation to the characterisation of the use.
3. The following definitions apply under the Brimbank Planning Scheme

Land used to: a) sell goods by retail, or by retail and wholesale; b) sell services; or c) hire goods.

Land used to sell goods or services, or to hire goods. It includes the selling of bread, pastries, cakes or other products baked on the premises. It does not include food and drink premises, gambling premises, landscape gardening supplies, manufacturing sales, market, motor vehicle, boat, or caravan sales, postal agency, primary produce sales, or trade supplies.

1. Mr El Houli provided a list of various businesses that provide pet supplies, not dissimilar to what he wishes to conduct, located within the Industrial 1 zone. The Responsible Authority provided information in relation to a number of these businesses, including details of permits[1] as well as delegate reports. Several of the premises have permits for warehouses. Not all the premises were located within the Industrial 1 zone.
2. A warehouse is a permit required use within the Industrial 1 zone and is defined in the planning scheme as 'land used to store or display goods. It may include the distribution and the wholesale selling of the goods'.
3. The Responsible Authority submitted the use was more akin to that of a shop. This was based on the view that the premises were small, more akin in size to that of a shop and the goods sold were on a small scale. It was the Responsible Authority's view that there was unlikely to be goods sold wholesale from the premises and that generally premises that did this had larger floor areas.
4. The Responsible Authority also expressed the view that the use was more appropriate in an activity centre than an Industrial 1 zone and referred to the purpose of the Industrial 1 zone which is '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'.
5. Reference was made to two Tribunal determinations, Radford v Hume CC[2] and Hall v Kingston CC[3]. I have adopted the approach taken in Radford where the 'big picture' was encouraged when categorising a use and to ensure that the 'purposes of planning and objectives that planning schemes seek to achieve are not frustrated by unduly restrictive interpretations of land use terms'. In that matter the Tribunal went on to say ' an important aspect of planning is making specific decisions about proposals in terms of where they are best or most appropriately located in a geographic or spatial sense and where such proposals will foster the goals and principles of planning set out in the planning scheme'.
6. Mr El Houli is using the subject land as retail premises in that he is selling goods by retail, or by retail and wholesale. This is a use that requires a permit within the Industrial 1 zone. It is a use that does not require all items to be sold wholesale in fact items do not need to be sold wholesale at all from the premises.
7. I have considered the purposes of the Industrial 1 zone but do not consider that what Mr El Houli proposes to do is in anyway in conflict with the purposes of the zone. It is a use that provides for the distribution of goods in a manner which does not affect the safety and amenity of local communities. The number of birds kept on the premises as well as the bulk goods would not be appropriately located in an activity centre, as suggested by the Responsible Authority. Although in a small building which the Responsible Authority equated to the size of a shop, it would not be appropriate and would be in my view more likely to have an impact on the community if such a number of birds was kept within an activity centre.
8. It is therefore open for the Responsible Authority to consider the permit application made by Mr El Houli as an application for retail premises. The size of the premises is not an issue nor is the fact that the goods on the site may only be sold by retail and not wholesale, although I accept Mr El Houli's submission that he does sell various supplies wholesale as well as some of the birds, which he sells to pet shops as well as individuals.

[1] P261/2004 -39 Wright Street, Sunshine, P000406 - 586 Ballarat Road, Sunshine and P990093 - 35 Slater Parade Keilor East

[2] [2006] VCAT 2662

[3] [2008] VCAT 1060