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

5 The Responsible Authority considered that the applicant's letter provided inadequate justification for the proposal. It was concerned first of all regarding the bona fides of the application. Secondly, it was also concerned regarding the possibility that, over a period, any nexus between the industrial use and the "caretaker's house" would be obscured by the passage of time, and the building would simply be used as a dwelling which is, of course, prohibited by the planning scheme.

6 The application was advertised and two objections were received. These the Responsible Authority summarised as follows:-

* Proposed windows that would abut the property at 6 Williams Place would pose concerns for any future redevelopment of 6 Williams Place.

* Proposed plans are not appropriate for the stated use as a screen-printing plant.

* Cause access problems along Williams Place from loading and unloading.

* Car parking spaces inadequate to house certain vehicles.

* Delivery trucks would not fit into these car spaces.

* Forklifts could not be used in the area allocated for car parking.

* Construction will pose health and safety hazards.

* Concerned about the level of noise during construction.

7 The Responsible Authority failed to determine the application within the prescribed time. An application for review was lodged against failure. Subsequently, the Responsible Authority resolved that, had the application for review not been lodged, it would have refused it on the following grounds:-

1. The proposed caretaker's house use would be contrary to the purposes of the Industrial 1 Zone.

2. The proposed caretaker's house use would not be necessary for the operation of the screen-printing business.

3. The proposed caretaker's house use would be contrary to the objectives of the City of Port Phillip Municipal Strategic Statement, particularly with regard to Industrial land use.

4. The proposed development and caretaker's house use would be contrary to the Port Phillip Planning Scheme Local Policy for the South Melbourne Industrial and Commercial areas, particularly with regard to policy for Caretaker's houses.

5. The proposed development of the caretaker's house would be inappropriate and poor planning, and would undermine the present and future operating capability of the surrounding industrial area.

8 On the hearing both Ms Marshall and Mr Bitmead tabled and read written submissions while Mr Duffield made oral submissions. An inspection of the review site was, in the circumstances, unnecessary.

9 Ms Marshall tabled a thorough written submission in which she comprehensively set down the Responsible Authority's concerns. It is fair to say that the Council is satisfied both the building and the commercial use proposed for it are satisfactory, and consistent with the purposes of the Zone. Its sole concern relates to the notion of a caretaker's house. It has a "Practice Note" dealing with the issue and, although this document does not form part of the planning scheme, it identifies the following matters as relevant to the exercise of its discretion:-

whether the person living in the caretaker's house will take an active role in the supervision of the primary use. The role of the occupier and their relationship to the use should be clearly identified in the planning application;

whether the proposed use is appropriate in the surrounding context. This includes whether there is or will be a conflict between the caretaker's amenity and the surrounding uses;

whether the primary use is an office use, being a use not generally acceptable within the relevant zones;

whether the external and internal design of the house is appropriate, including sufficiency of private open space;

where there is appropriate provision for car parking and whether parking dispensation is appropriate having regard to other dispensations permitted in the area and their cumulative effect; and

the possibility of addition or expansion of the caretaker's house use.

10 While this checklist does not form part of the scheme, it does offer a useful set of guidelines against which applications of this kind may be measured.

11 In answering the Council's submissions, Mr Bitmead described the operation of the business in the following terms:-

* Graphic production business that designs and prints T-shirt. The process of production is a very simple cost effective method. The business prepares artwork on a computer (3 computers on-site), which is saved and backed up to a disk.

* Selected images are then sent to the on-premise laser printer to be printed on special iron-on-transfer paper stock. The result from this is a high quality print in full colour.

* The print is then carefully cut out and a suitable T-shirt or garment is selected for pressing. The business has invested in a machine called a heat press. This is a solid cast iron press that is digitally controlled and uses high pressure and high temperatures to fuse the print into the clothing.

* The garments are then washed, dried (often overnight), folded and delivered to the various markets, which includes international markets in the United States and Israel.

* The T-shirts are purchased from a local wholesaler and transported in the cars of the business owners. The finished articles are delivered by the business owners to the retail outlets or the airport.

* There are substantial benefits to be gained from the owners and operators of the business living on-site, as evidence by the following:

- The business of manufacture is time consuming and often extends into the night time and requires on-site supervision.

- Producing the T-shirt imaging can often involve substantial time to develop the graphics, which also requires supervision.

- Discussion with the companies overseas markets often occurs late at night and early in the morning and requires access to material and print stock stored at the premises.

- The testing and manufacturing of the materials and print stock requires extended processing time where supervision is required.

- The business operation relies on sophisticated and expensive equipment. A full-time presence on-site provides security, an important consideration given the building's position at the end of the lane.

There is a clear nexus between the operation of the business and the owners and operators living on the premises.

12 The Tribunal has little doubt that, had this response been given following the s 54 request, the Council would have supported the application.

13 Applications of this kind pose a particular problem for Councils. In the first place, it is necessary to take the information provided to it at face value. There is no real way of verifying whether or not supporting information is true and accurate. In this case however, the fact that the business is an existing one, presently operating from a dwelling in Yarraville, provides some evidence as to the bona fides of the application.

14 It needs to be emphasised that it is not necessary that the applicant demonstrates "need" for a caretaker's house. It would be virtually impossible, the Tribunal believes, for a small business to demonstrate the necessity of having a caretaker on the premises. Moreover, a planning permit runs with the land. Future owners (or tenants) of these premises may operate entirely different businesses with different management requirements. The test provided by the planning scheme is not whether a caretaker's dwelling is "necessary" for the operation of the business, but rather whether there is a supervisory nexus between the business and the dwelling. Any attempt to force an applicant to demonstrate "need" would go beyond the question of "nexus" and involve the assessment of an irrelevant consideration.

15 In the present case, on the material before it, the Tribunal is satisfied that this nexus exists.

16 However, it follows that there is an allied problem, namely one of enforcement, particularly if the building changes hands. It will not always be an easy task to discern whether or not a building is being used as a caretaker's house or a fully fledged dwelling. While the Tribunal accepts that this is a potential problem for the future, it is not a sufficient reason - per se - to refuse to grant a permit.

17 There remains the question of ensuring that a reasonable mechanism exists to ensure that this nexus extends to future owners. In that regard Ms Marshall tabled a number of previous Tribunal decisions which demonstrate, if nothing else, that my colleagues have also grappled with this problem and adopted a variety of different approaches including:-

* a simple reliance on the provisions of the planning scheme and, one assumes, enforcement proceedings in the event of a breach;

* placing a "personal permit" condition on the permit.

18 In the Tribunal's view, the most appropriate means of ensuring that future proprietors of the land are aware of the situation, is by requiring the applicant to enter into a S.173 Agreement which shall serve as an ongoing reminder of the limitations associated with a caretaker's house, and which shall run with the land. The Tribunal accepts Ms Marshall's submission that the passage of time can tend to cloud the memory and, without an agreement, future difficulties may arise. Accordingly the Tribunal will include a condition requiring such an agreement.

19 Before parting with this matter the Tribunal notes the submissions of Mr Duffield. His principal concern was that an occupant of the caretaker's dwelling may be disturbed by music noise generated from his own premises. However, it seems most unlikely that such a complaint could ever be sustained in an Industrial 1 Zone. Mr Duffield also had some concerns with the original plans but these concerns were misconceived. In the result, he appeared satisfied with the explanations provided to him.

20 For all the foregoing reasons the Tribunal will order that a permit be granted subject to conditions.