Mr G Peake of Counsel, direct brief on behalf of the Responsible Authority.

Mr A Finanzio of Counsel, direct brief on behalf of the Applicant.

1. This is an application to review a decision of the Responsible Authority to refuse to grant a permit for seven caretakers' dwellings and associated commercial uses at rear No 1 Sheffield Street, Coburg.

2. The Applicant raised a preliminary point as to whether a planning permit was required for the use of the proposal.

3. The issue is whether the proposed use of the development falls within the definition of `home occupation' and thus becomes an as of right use in a Business 3 zone.

4. This is the issue that is now before the Tribunal as a preliminary point.

5. A single storey brick warehouse currently occupies the subject site. It has an area of 866m².

6. It is proposed to redevelop the site with a three storey building containing seven two storey caretakers' dwellings each with an associated commercial area of 44m² at ground level. The area shown to be used for commercial use has not been designated to any particular purpose.

7. The first floor levels comprise a bedroom, bathroom, laundry and living/dining area. The second floor levels comprise a studio/bedroom and bathroom.

8. On 11 May 1999, Graphos Architects applied to use and develop the subject site for the purpose of seven attached two storey townhouses.

9. At the time of the initial application under the former Moreland Planning Scheme it is said the use of the land could have been described as a combination of shop or office and attached house. The question of whether the land use as contemplated by the proposed development ought to proceed or not was largely a matter of discretion.

10. Given the imminence of the new planning scheme and the difficulties it would introduce with regard to the residential component of the development, the Applicant was advised by the officers of the Responsible Authority that the description of the land use in the application ought to be amended. In their view the appropriate characterisation of the land use contemplated by the proposed development was as a caretaker's residence.

11. On 11 October 1999, Graphos Architects applied for a permit to use and develop the site for seven attached two storey caretakers' residences and associated commercial development comprising a ground floor office area of 44m² for each dwelling, in a three storey building.

12. On 21 December 1999 the Responsible Authority issued a notice of refusal to grant a permit.

13. At the time of the preliminary hearing the land was within a Restricted Business zone pursuant to clause 106 of the Moreland Planning Scheme. clause 106-1.1 provided that the use of the land for the purposes of a shop within a Restricted Business zone was permitted as of right. The use of the land for the purposes of an office required a planning permit under clause 106-1.2. Although the use of the land for the purpose of a detached house was specifically prohibited by virtue of clause 106-1.3, the use of the land for the purpose of an attached house was an innominate use and therefore permissible subject to a planning permit being obtained under clause 106-1.2.

14. Shortly after the hearing the new format Moreland Planning Scheme was gazetted and came into force on 4 May 2000. The matter before the Tribunal was argued in relation to the impending new format planning scheme and the Tribunal's determination is based on the new format planning scheme now in force.

15. The subject site is now within a Business 3 zone pursuant to clause 34.03 of the Moreland Planning Scheme. In this zone home occupation is a section 1, as of right, no permit required use subject to the provisions of clause 52.11 which apply to home occupation in addition to the zone controls by virtue of clause 51.

16. Under clause 34.03-1 the zone prohibits the use of land for the purposes of accommodation save for the use of land for the purposes of a caretaker's house.

17. Under clause 34.03-4, a permit is required to construct a building or construct or carry out works.

18. The Applicant contends that having regard to the definition contained in the new scheme the dwelling component of the proposed development can be categorised in the land use terms as either: home occupation; or caretaker's residence.

19. "Home occupation" is defined as a land use term in clause 74 of the Moreland Planning Scheme as:

An occupation carried on in a dwelling or on land around a dwelling, by a resident of the dwelling. It may include a use defined elsewhere, but not a Broth_e_l.

20. The Applicant submits that home occupation is a land use term in its own right, that it stands independently of the definition of accommodation - it neither includes nor is it included in the definition of accommodation as a land use term. It is said it incorporates certain components by reference to both the land use definition and clause 52.11. The resultant effect of the definition and clause 52.11 is to describe a land use incorporating small scale `occupation' in or on land around a `dwelling'.

21. The Responsible Authority contends that home occupation is not a stand-alone use. It is not nested with any other uses that are nested with accommodation. `Accommodation' is defined as "Land used to accommodate persons" and includes various types of accommodation - Camping and caravan park, Corrective institution, Dependent person's unit, Dwelling, Group accommodation, Host farm, Residential building, Residential village.

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

It includes outbuildings and works normal to a dwelling.

23. The Responsible Authority contends that the home occupation can only be conducted in a lawfully established dwelling or on land around a lawfully established dwelling. As such, before a use of home occupation can be established, there must first be a lawfully established dwelling, in which the home occupation can be conducted.

24. If, the Responsible Authority submits, it is accepted that by adding to what was originally proposed as two storey townhouses, an area of 44m² designated as a `commercial area', the whole of the use becomes the as of right use of home occupation in a zone where a dwelling is prohibited, the effect is that there would be no planning control over the location of a dwelling in a Business 3 zone. This the Responsible Authority states tends to be at odds with the purposes of the Business 3 zone and the clear expression of prohibition of accommodation other than a caretaker's house.

25. The purpose of the Business 3 zone is to encourage the integrated development of offices and manufacturing industries and associated commercial and industrial uses.

26. The Applicant submits that there is nothing in the planning scheme that states where a simple dwelling (falling within the nested land use term of accommodation) is prohibited, a dwelling in conjunction with an occupation that meets the requirements of the definition of home occupation is also prohibited.

27. Neither the definition, the Applicant submits, nor clause 52.11 states the dwelling must be in existence in its own right before the use of land for the purpose of a home occupation commences nor can such a conclusion be inferred from the use of the language in either portions of the planning scheme.

28. The Tribunal does not agree with this conclusion, rather it is considered that the language and the inference that can be drawn from the language leads to the conclusion that a dwelling must be a permitted use before home occupation can be contemplated.

29. Home Occupation is not nested with any other land use term, it is only a use that can be conducted in association with a lawfully established dwelling. If it were intended that home occupation would be a stand-alone use that included a dwelling it would be nested in the accommodation use group.

30. The land use term of home occupation is linked inextricably with the provisions of clause 52.11. Whilst the use can be as of right, to do so it must meet the requirements set out in clause 52.11.

31. Clause 52.11, relates to the way the home occupation, is conducted. In the terms of clause 52.11 none of the criteria can be considered to be met until such time as a particular home occupation is contemplated. Strict limits are placed on the home occupation by clause 52.11. The requirements that must be met are set out in clause 52.11-1. All of the requirements listed must be met if one is not met and the provisions of clause 52.11-2 are not brought in for consideration then there can be no home occupation. The requirements to be met include:

* The person conducting the home occupation must use the dwelling as their principal place of residence.

* Not more that one person who does not live in the dwelling can work in the occupation.

* The gross floor area used for the occupation must not exceed 50m² or one third of the gross floor area of the dwelling, whichever is the lesser.

32. The language of clause 52.11 is couched in a presupposed position that a dwelling already exists; "must use the dwelling". 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. It is difficult to consider that a persons principal place of residence is allowed in a zone that prohibits such dwellings merely because there is contemplated a home occupation use as well.

33. There is nothing, it is submitted, which prescribes the configuration of the land to be used for the purpose of a home occupation other than specific requirements regulating the floor area of the land to be used for the purpose of the occupation.

34. The gross floor area used for the occupation must not exceed 50m² or one third of the gross floor area of the dwelling. This is a small proportion of an overall dwelling, such a small area to be permitted for an occupation is at odds with the purpose of the Business 3 zone to encourage manufacturing and commercial uses which contemplate floor areas of at least 500m² or 1000m². The 50m² gross floor area is not at odds with the occupation being carried out when the principle use of the land is a dwelling and the occupants principle place of residence.

35. The purpose of clause 52.11 is to ensure that the amenity of the neighbourhood is not adversely affected by an occupation conducted in or from a dwelling. Would the amenity of the neighbourhood be adversely affected by an occupation that is promoted within a Business 3 zone merely because it is conducted in or on land around a dwelling. It is unlikely and clause 34.03.1 has considered this, home occupation as an as of right use within the Business 3 zone enables the resident of an existing dwelling that has pre-existing use rights to carry out an occupation within terms of home occupation. This accords with the purpose of the Business 3 zone that contemplates manufacturing and commercial uses.

36. The only intention of making home occupation as of right in the Business 3 zone is to enable it to be conducted in conjunction with a dwelling that has pre-existing use rights.

37. In the present case what is suggested is that although dwelling is prohibited, if it is linked with home occupation then the linking makes it an as of right use. This is not accepted.

38. The definition of home occupation is couched in terms that a dwelling is already in existence on the land and there is a resident in the dwelling before there is any contemplation of home occupation.

39. Dwelling is the basis of the home occupation, not the home occupation itself. Therefore if dwelling is prohibited an element of the criteria in home occupation cannot be met. The dwelling must either have pre-existing use rights, as of right use rights or is a permit required use before the considerations of home occupation in clause 52.11 can be met.

40. Home occupation is not nested within accommodation because it is not accommodation. It is a use that occurs with a dwelling. If the dwelling is prohibited then the use of home occupation cannot come into existence.

41. It is put alternatively that what is proposed falls within the definition of caretaker's house and therefore requires a permit. The Responsible Authority recommended the Applicant submit a permit application contemplating that the residential component fell within the definition of a caretaker's house. This was prior to the new scheme coming into force. On the coming in of the new format scheme the definition of caretaker's house was amended.

42. "Caretaker's house" is now defined in clause 74 as:

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

43. Under the former scheme Caretaker's house was defined as:

A dwelling occupied by the owner or manager of an industry, business or community or religious establishment conducted on the site, or by a person who has care of the building or plant of the industry, business or establishment.

44. The Applicant submits that the critical words in the definition of caretaker's house are site, operation and supervisor, which should all be given their ordinary meaning. It was further submitted that the phrase "on the same site" extends to include "within the same building on that site" and that the use of the term `operation' must be given a meaning that extends, at least to land uses that are carried on lawfully under the planning scheme.

45. The Business 3 zone allows the use of this land for the purposes of an office as of right. It is contended if the dwelling component is approved it would be open for future occupants of the dwellings to conduct or supervise the use of the lower levels for the purpose of an office without the need for further planning permission. Alternatively there is discretion within the zone to allow other uses which could be described as an `operation' within the meaning of the definition of caretaker's house. In the Tribunal's view this proposition tends to fall squarely within the terms of home occupation not caretaker's house.

46. The Tribunal has some difficulty in agreeing with the officers of the Responsible Authority that the dwelling component of the proposal falls within caretaker's house as defined. As they advised the Applicant prior to the change in the definition of caretaker's house that was then given a loose interpretation, what is proposed could fit within that former definition. However the change that has occurred to the definition, particularly in the Tribunal's view, a change of emphasis and a tightening of the definition possibly leads to the proposal now not falling within the definition.

47. Under the former definition the dwelling could be occupied by the "person who has care" of the building. In the new definition the occupation is required to be by the "supervisor". Does the supervisor have to take an active part in the supervision of what occurs in the building or is it sufficient for a person to merely occupy the dwelling component of the building to comply with the requirement of supervisor? It is the Tribunal's view that the supervisor must take an active role in the supervision of the activities to be carried out within the building. A caretaker might act in the capacity as a night watchman, it could therefore be said that by living above commercial premises that person is carrying out the function of a caretaker. This could be so but in the present context what is being proposed is that there are to be seven caretakers for seven individual commercial areas of no more than 44m² each.

48. It is the Tribunal's view that the proposition that what is proposed falls within the definition of caretaker's house is artificial and merely an attempt to avoid the prohibitions within the planning scheme. This artificiality appears to be working against the objectives of the Business 3 zone within the planning scheme.

49. There was no opposing argument put to the Tribunal with respect to this contention. There has been no application for a declaration. The Responsible Authority considered the permit application in terms of caretaker's house. The application for review relates to the refusal of the permit application. As expressed the Tribunal has some concern with the categorisation that the Responsible Authority has placed on this use. The Tribunal considers that in the light of the amended definition of caretaker's house since the coming in of the new format planning scheme this issue should be addressed at the hearing in relation to the refusal of the application for permit.

50. The Tribunal is of the view that the use as proposed does not fall within the land use term of home occupation and as such does not fall within the as of right no permit required provisions of clause 34.02.1.

51. The matter will be listed for a directions hearing to consider the future conduct of the application.

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