How do the applicants propose to occupy and use the spaces shown on the application plans?

1. In my opinion, it is important to identify how the proposed buildings are intended to be used. I agree with the responsible authority that, as drafted, the declarations sought by the applicant, do not "marry up" the development with the proposed use, which is critical to the characterisation of the use.[2]
2. Mr Hoppach gave evidence as to the intended use of the proposed buildings and works[3] and was cross-examined by counsel for the responsible authority. He explained that he proposes to reside with his wife in the structure beside the existing building and for their teenage daughter to reside in the adjoining accommodation room in the closest pod. This would leave three rooms for visitors.
3. The existing house is proposed to be used by all visitors to the facility on a shared basis. Meals would be offered to visitors[4] and these would be prepared in the commercial kitchen area. Each accommodation room is proposed to accommodate a maximum of 2 people.[5]
4. Mr Hoppach also gave evidence that the subject land has ample room around the proposed pods for the parking of large numbers of vehicles, well in excess of the three parking spaces required by the condition attaching to the as-of-right use of the land as a Bed and Breakfast. However, I note that there are presently no car parking spaces shown on any of the plans submitted to date.

1. For reasons I discuss below, my consideration of the application focuses on the most recent iteration of the plans, being that in Appendix C. While some of my findings may be more generic, I have greater reservations in respect of the approved building plans being characterised as a Bed and Breakfast.
2. I agree with Mr Crawford that the test to be applied in characterising a proposed use of land is both subjective and objective[6]. That is, the question must be asked, how is the development depicted on the plans capable of being used/likely to be used? And then, how is it actually intended to be used? This is strongly supported by the decisions of the Tribunal I refer to in more detail below.
3. I consider that there are two main distinctions between the land use terms Bed and Breakfast and Group Accommodation. The first is that, for a Bed and Breakfast, the owner must reside on the property and operate the facility. Also, there must be no more than one dwelling. In the case of Group Accommodation or Motel, however, the presence or absence of the owner is not expressly relevant, and for Group Accommodation there is a requirement that the accommodation facility consist of multiple dwellings.
4. Having regard to these distinctions, I have turned my mind to the planning scheme definition of Dwelling which turns on the use of the building as a "self contained residence", and also the inclusion of various minimum facilities/features.
5. I support the principle developed by the Tribunal in earlier cases that a single dwelling can be comprised of a number of buildings[7], provided that they are used as a single dwelling. Similarly, I agree with the decision of Deputy President Gibson and Member Taranto in Cotsonis & Ors v Darebin City Council[8] where they found:

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.

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

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, Georgina Perkin, 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.

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". . .

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.

1. The development proposal before me is fundamentally different in form and function from those buildings which were considered by the Tribunal in the cases referred to by the responsible authority. In a case such as this which turns so substantially on its facts, I am not persuaded that these cases are of any current utility.
2. Returning to the proposal before me, in so far as the physical characteristics of the rooms are concerned, in the most recent set of plans (contained in Appendix C), there is only one pod that contains a complete set of facilities required for the existence of a dwelling - the one proposed to be occupied by the owners. The remaining rooms lack what I regard as a kitchen sink and food preparation facilities. They are essentially single rooms with an ensuite, and nothing more. On this basis, the 'development' component of the definition of a dwelling is not satisfied.
3. Importantly, in terms of the proposed use of the rooms to be made available for visitors, they are reliant on the owner's facilities for any meals that may be desired, and also on the original building for shared leisure opportunities. Whether or not each and every visitor takes advantage of this opportunity is not the point. There is clearly a large kitchen and meals area and food (including breakfast) will be offered to guests. Similarly, sizeable communal dining and family rooms will be provided. The integrated nature of the guest rooms and the remainder of the property is facilitated by a direct physical connection between the various accommodation units by an enclosed walkway, leading to the shared internal and external areas of the property.
4. So, in terms of the known features of the building, there is only one set of facilities for the overall structure sufficient for a dwelling. I also accept the evidence of Mr Hoppach that he and his wife will reside on the property with their daughter and that the facility is intended to be used by visitors as an integrated whole (with the exception of private areas for the owners), with food being offered to guests from a central kitchen. On this basis, I accept that there is no intention for the guest rooms to be used as "self contained residences" as required for a dwelling or Group accommodation, and they are not designed to enable this to occur.
5. I find that the three pods attached to the original dwelling by a central covered walkway constitute part of a single dwelling. It does not matter that the format is not that of a larger home with a number of bedrooms off a corridor such as that commonly found in a traditional Bed and Breakfast. In my opinion, it is reasonable to afford some flexibility to the form of the development to enable it to provide more generous facilities for guests, provided that the structure is designed to operate as an integrated whole.
6. Having regard to the above, it is apparent to me that the development shown on the most recent set of plans (Appendix C) suitably fits within all elements of the definition of a Bed and Breakfast in the planning scheme. In addition, it also accords with what I regard as the ordinary understanding of what this use entails which, to my mind, centres around the owners residing at the property and conducting the use, the rooms being limited in facilities which are geared towards only sleeping and bathing, the provision of shared leisure facilities and also the offer of meals (at least breakfast) in a shared dining area.
7. I agree with Mr Crawford that, if the development was constructed and used as a Bed and Breakfast but was used to accommodate more than 6 people away from their place of residence, enforcement action could be taken by the responsible authority to require this use to either be brought into compliance with the as-of-right requirements or to obtain a planning permit (if appropriate on the planning merits). However, what is important is that the building has been designed to provide only three rooms for guests which suggests that it is likely (and capable of being managed) to limit guests to a total of 6.
8. In this respect, I regard the approach taken by Senior Member Baird in Jefferson v Mornington Peninsula Shire Council[9] as a sensible and fair one, that:

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.

1. The applicant requested that I make a declaration in respect of this plan, in addition to the most recent iteration of the proposed development.
2. However, I regard the characterisation of the use of this development as less clear than that of the development shown on the plans referred to in Appendix C. This is principally because the original dwelling retains two separate bedrooms, two bathrooms and associated facilities. In my opinion, this makes it more likely that more than 6 people would normally be accommodated on the property away from their place of residence (offending the section 1 condition attached to Bed and Breakfast). Also, in this format, there would be no designated shared facilities for visitors staying in the pods. I consider this an important feature in influencing my characterisation of the use of the building overall, and in part distinguishing the use from a motel.
3. In the circumstances, I consider that there is no need for me to make a declaration in respect of the characterisation of the proposed use of the development depicted on the approved building plans.

What role do the planning merits play in this application?

1. The responsible authority submitted that, in view of the various options available for characterising the proposed use, I should prefer a use that is permit-required, to enable it to consider and control the proposed impacts of the use.
2. In this regard, I acknowledge and support the comments of Deputy President Gibson in Deputy President Gibson in Radford v Hume City Council[10] in relation to the characterisation of land use:

I have taken the view that when characterising uses that may fall within two or more definitions it is necessary to have regard to the structure, context and purpose of the planning scheme provisions at the time of interpreting the land use terms. It is also necessary to have regard to the "big picture" to ensure that the purposes of planning and the objectives that the planning scheme seeks to achieve are not frustrated by unduly restrictive interpretations of land use terms.

1. At the same time, whether the responsible authority considers that the use is one that should be controlled by a planning permit is not ordinarily a factor relevant to the characterisation of the use, particularly where there is no real ambiguity. Only if the use, properly characterised, falls within a use for which the zoning controls require a planning permit, is the responsible authority (or the Tribunal on review) able to consider the appropriateness of the use proposed for the subject land.
2. I do not agree with the responsible authority's submission that a planning permit is required under clause 35.07-4 for the increase of floor area of the dwelling irrespective of the use. This building and works requirement only becomes operative if the use is a section 2 use in the use table of the zone.

1. Having regard to the plans of the proposed development, specifically the plan referred to in Appendix C of the application, I find that the proposed use of this structure would be as a Bed and Breakfast. However, in order for such use to meet the as-of-right conditions for this use, no more than 6 people could be accommodated on the property away from their normal place of residence. Since the use has not yet commenced, it is appropriate for a declaration to be made subject to this qualification on the use. Likewise, the availability of car parking for visitors would be a further pre-condition for the use being as-of-right.

[1] I note that an earlier application was made by Mr and Mrs Hoppach for Group Accommodation, with an entirely different application plan to the current plans, and that this application was refused by the responsible authority but not appealed.

[2] I explained at the hearing that I was entitled to get to the substance of the application and to frame a declaration in the terms I thought most appropriate, not being tied to the form of wording proposed by the applicant.

[3] Contained in a signed statement dated 26 February 2009.

[4] Noting that Mr Hoppach is an experienced chef and Mrs Hoppach works in the food & hospitality industry in the local area.

[5] Noting that children would not be encouraged, and that if they attended, the occupation of the remaining rooms would need to be managed to ensure that no more than 6 guests were to be accommodated, referring to the section 1 condition in the zone controls.

[6] He referred to the decision of Drew v Baw Baw City Council [2006] 22 VPR 254.

[7] See for example, J & E Van Bavel v Shire of Eltham (1992/14297), referred to in Casey City Council v Gerard [2004] VCAT 1838 and subsequently _Merrett v Moira Shire Cou_ncil [2005] VCAT 93.

[8] [2005] VCAT 232.

[9] [2003] VCAT 806.

[10] [2006] VCAT 2662.