1. The proposed building takes the form of an "arrow head". An "outer shell" of two separate residential wings embracing a central building containing the function centre and the public facilities for development shapes the development. The curved residential wings will comprise a band of 1 and 3 storey serviced apartments containing a total of 120 self contained units and a manager's dwelling. Each unit will provide accommodation in the form of a single bedroom "dwelling" or bed sitting rooms. There would be 60 units of each type of accommodation. The "dwellings" include a living space, kitchen, laundry, bathroom and bedroom with an associated balcony. The bed sitting rooms provide more confined, single room (plus bathroom) space.[39]
2. The permit application seeks approval for two separate types of accommodation use:
   • An 80 bedroom residential hotel use; and
   • A 40 dwelling group accommodation use.
3. The definitions of each of these uses are as follows:

Land used to provide accommodation in serviced rooms for persons away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

Land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence.

1. According to the applicant, the residential hotel and group accommodation uses can be distinguished as separate uses through physical and operational demarcations.
2. In terms of operational demarcations:
   • The hotel and the group accommodation components will be structured and managed as separate and distinct accommodation offerings.
   • The hotel will provide full daily room service consistent with luxury hotel standards and will be targeted at the business conference market and the "romantic couples" market, typically seeking 2 - 3 days stays.
   • The group accommodation will involve limited room servicing and will cater more for longer stays and be targeted more to families and groups of friends seeking an indulgent food/wine and leisure experience.

• The accommodation is arranged in 10 building clusters around central conference and visitor facilities.
• The hotel will be based around clusters 1 - 6, closest to the reception and guest facilities.
• The group accommodation will be based around clusters 8, 9 and 10, with cluster 7 as shared.

1. I do not accept that the accommodation components of this proposal can be separately characterised as residential hotel and group accommodation for the following reasons.
2. Where the definition of group accommodation refers to land containing a number of "dwellings", I consider it is referring to land containing a number of physically separate accommodation units. The definition of dwelling is:

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

It includes out-buildings and works normal to a dwelling.

1. The definition of dwelling in the planning scheme has two components - a use component and a facilities component The use component requires that the building is used as a self-contained residence. Residence means a place where people live or reside either permanently or for a considerable period of time.[40] The building must also include the facilities of a kitchen sink; food preparation facilities; a bath or shower; and a closet pan and wash basin.
2. When the definition of group accommodation refers to "dwellings used to accommodate persons away from their normal place of residence", it must be taken to be referring to dwellings in the sense of buildings that include the facilities specified in the definition of dwelling. The requirement that they are used to accommodate persons away from their normal place of residence is a direct antithesis of the use component of the definition of dwelling, which requires the building to be used as a self-contained residence. I would endorse what Senior Member Byard said in Richardson v Bass Coast SC[41] regarding the definition of group accommodation:

[20] Really, the expression "Group accommodation" seems to be very badly drafted in that it employs the word "dwellings" to mean something that must be other than either the land use definition "Dwelling" or the ordinary meaning of dwelling because the reference to accommodation away from normal place of residence contradicts that normal English meaning. It therefore seems to mean something like a place with the facilities of a dwelling that would be able to be used as a dwelling but which is used for temporary accommodation. It is a pity that the definition should have been drafted in such unclear terms.

1. Richardson was a case involving the characterisation of a proposal for "tourist accommodation" and whether it constituted a residential hotel or group accommodation. Senior Member Byard held that it is not decisive that the accommodation units, some of them, are detached from the main building.

[41] ... Although the so called villas and lodges may have the facilities to be "dwellings" in one or other of the possible senses of the expression, having regard to their construction and facilities, that does not mean that they are, or that the use is "Group accommodation".

1. He found that the essential element that pointed to the use as a whole being a residential hotel is the provision of service to rooms and accommodation in such serviced rooms.[42] Other indicators were management arrangements, which involved a single administration and management for the whole place, and the fact that all units will be serviced "with beds being made up, towels provided and the like with all such linen and towels remaining the property of the undertaking."[43] Cleaning would also be provided.
2. In the present case, I do not consider that any distinction can be drawn between the units said to be part of the hotel and those being part of the group accommodation simply on the basis that some include more facilities than others. Both types of units will involve some degree of room servicing. There will be no external differentiation between the types of units. Although built in clusters, the effect will be of a single building complex. All will have access to the recreation facilities and the restaurant.
3. Whilst the definition of residential hotel makes it discretionary for additional facilities to be provided for the sale of liquor, function or conference room, entertainment etc, their inclusion in the definition nevertheless indicates that these things are common features of a residential hotel. By contrast, the definition of group accommodation includes no such additional facilities. It is simply land used to provide accommodation in a number of dwellings (buildings). The definition does not preclude servicing of the accommodation but that is not an integral part of its definition, as is the case with the definition of residential hotel.
4. Earlier I referred to the case of National Lifestyle Villages Pty Ltd v Wyndham CC. In that case, Justice Morris spoke of the need to identify critical differences as well as qualitative differences between land use terms in situations where the proposed use comfortably fits the definitions of two specified land use terms. He also observed that whilst a term can be defined to have a meaning completely unrelated to its natural meaning, the planning scheme, which is a document to be used by non-lawyers, does not generally adopt that approach and tends to use terms that are commonly used in the community.
5. "Group" means an assemblage of objects standing near together, and forming a collective unity; a cluster (of things); a number of things in certain relation, or having a certain degree of similarity.[44]
6. I consider that the land use term "group accommodation" would normally be applied by the general community to a group of self-contained, short-term accommodation units on land in one ownership. Use of the term "group" implies that the accommodation units would be similar in type but would be in physically separated buildings. It would not apply to the type of accommodation that is proposed in the present case where units of accommodation will be connected in clusters, where the clusters will provide a mix of unit types but the clusters will form part of a single recognisable building complex.
7. I place no weight on the assertion that the hotel and group accommodation will be structured and managed as separate and distinct accommodation offerings.[45] This would not be evident to guests. The plans show a single reception facility and it is unlikely that booking arrangements, queries or responses to guests' needs would be handled separately. I am not persuaded that internal accounting arrangements would result in the accommodation units being separately classified in land use terms. Notwithstanding they may be capable of providing self-contained accommodation, the intention is that all units will be serviced. Accommodation in serviced rooms is the critical element of the definition of residential hotel. The accommodation proposed here meets that requirement.
8. Looked at as a whole, I consider that the bed/sit units and the single bedroom units are no more than variations of room types forming part of a single overall development, which I find should be characterised as a residential hotel.
9. Based on this conclusion, I find the proposed use of the land for residential hotel exceeds the number limit in the planning scheme of 80 bedrooms and hence would be a prohibited use.
10. I find there is nothing within the planning scheme controls that would prevent group accommodation being provided on the same land as a residential hotel. However, there would need to be a clear distinction between the types of accommodation being offered in order to avoid a finding that the group accommodation is simply part of the residential hotel use and is no more than a device to avoid the number limits on that use in the planning scheme. Both uses would need to meet the requirements of clause 64.02 and satisfy the general planning requirement that the scale was commensurate with the primary use of the land and appropriate in the particular location.

1. The proposed development includes recreation facilities such as a day spa, lap pool, gymnasium etc. I find that these are not separate uses in their own right but a part of the residential hotel and are ancillary to that use even though some limited use may be made of them by day visitors or patrons of the function centre who may not be staying at the residential hotel.
2. Likewise, the amphitheatre is intended to be used as part of the function centre for weddings, ceremonies performances or the like. It is not a separate use in its own right.
3. I note that a caretakers house is one of the uses proposed as part of the application. This aspect of the proposal was not discussed in any detail. Caretakers house is not listed as a separate use in the Green Wedge Zone. It is included within the use dwelling and would therefore be required to meet the conditions attaching to the use dwelling in clause 35.04-1.

1. Following the introduction of Amendment V43, there is a condition in the Green Wedge Zone requiring a minimum 40 hectare lot size for various uses, including the relevant uses here.
2. However, clause 35.04-8 provides a transitional provision for permit applications made before 31 October 2006. On that basis, the 40 hectare condition is not relevant in the present case provided a final decision is made prior to 31 October 2007.

1. This is an application for a declaration, not a merits review of the permit application. It remains open to the permit applicant to amend the permit application to meet the requirements of the planning scheme in light of the interpretation and declarations I have made.
2. Based on the conclusions I have reached, I make the following declarations:

1. The accommodation component of permit application P06/1655 is properly characterised as a residential hotel. It does not include group accommodation. 2. The conference/function centre component of permit application P06/1655 is properly characterised as a function centre, which requires a permit. It is not part of the residential hotel use.

1. The following aspects of permit application P06/1655 are prohibited pursuant to the Mornington Peninsula Planning Scheme: * Conference/function facilities for 300 patrons * The component of the residential hotel which exceeds 80 bedrooms

1. Permit application P06/1655 would not be an application for prohibited uses if it was amended so that the number limits for the uses "restaurant", "residential hotel" and "function centre" do not exceed the number limits specified in clause 35.04-1 of the Mornington Peninsula Planning Scheme. 2. Permit application P06/1655 is for uses in conjunction with agriculture and winery.

64.02 Land used in conjunction with another use

If a provision of this scheme provides that a use of land must be used 'in conjunction with' another use of the land:

• there must be an essential association between the two uses; and
• the use must have a genuine, close and continuing functional relationship in its operation with the other use.

• Residential 1 Zone
• Residential 2 Zone
• Residential 3 Zone
• Low Density Residential Zone
• Environmental Rural Zone
• Rural Living Zone
• Green Wedge Zone
• Green Wedge A Zone
• Rural Conservation Zone
• Farming Zone

Must be used in conjunction with another use in Section 1 or 2.

The goods stored must be agricultural produce, or products used in agriculture.

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot[46].

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

The number of patrons present at any time must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares[Green Wedge Zone] 8 hectares [Green Wedge A Zone]

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

The number of dwellings must not exceed the number specified in a schedule to the zone or 40 dwellings, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares [Green Wedge Zone] 8 hectares [Green Wedge A Zone]

Must be used in conjunction with Agriculture, Rural industry, or Winery.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares. This condition only applies to land in Metropolitan Melbourne.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used in conjunction with Refuse disposal or Refuse transfer station.

Must not include the collecting, dismantling, storing, recycling or selling of used or scrap construction and demolition materials.

Must be used in conjunction with Agriculture, Natural systems, Rural industry, or Winery.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares [Green Wedge Zone] 8 hectares [Green Wedge A Zone]

Residential building (other than Residential hotel)

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used to provide accommodation for persons away from their normal place of residence.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares [Green Wedge Zone] 8 hectares [Green Wedge A Zone]

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

number specified in a schedule to the zone or 80 bedrooms, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares.

Must be used in conjunction with Agriculture, Rural industry, or Winery.

The number of bedrooms must not exceed the number specified in a schedule to the zone or 80 bedrooms, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares. This condition only applies to land in Metropolitan Melbourne.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

The number of patrons present must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.

If used in conjunction with Function centre, the total number of patrons present at any time must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares [Green Wedge Zone] 8 hectares [Green Wedge A Zone]

The number of patrons present must not exceed the number specified in a schedule to the zone or 150 patrons, whichever is the lesser.

The lot on which the use is conducted must be at least the minimum subdivision area specified in a schedule to this zone. If no area is specified, the lot must be at least 40 hectares. This condition only applies to land in Metropolitan Melbourne.

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

• Residential 1 Zone
• Residential 2 Zone
• Residential 3 Zone
• Low Density Residential Zone
• Environmental Rural Zone
• Rural Living Zone
• Farming Zone

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

Store (other than Freezing and cool storage and Rural store)

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot.

Squash court other than in conjunction with a dwelling

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

No more than 150 patrons may be present at any time. If used in conjunction with Restaurant, the total number of patrons present at any time must not exceed 150.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used in conjunction with Refuse disposal or Refuse transfer station.

Must be used in conjunction with Agriculture, Natural systems, Rural industry, or Winery.

Must be used in conjunction with Agriculture, Natural systems, Rural industry, or Winery.

Residential building (other than residential hotel)

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used to provide accommodation for persons away from their normal place of residence.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

No more than 150 patrons may be present at any time. If used in conjunction with Function centre, the total number of patrons present at any time must not exceed 150.

Land used to sell or hire sexually explicit material, including:

1. publications classified as restricted under the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995; and
2. materials and devices (other than contraceptives and medical treatments) used in conjunction with sexual behaviour.

Land used to sell sawn, dressed, and treated timber, wood fibre boards, and the like. It includes cutting the timber and boards to order, and selling hardware, paints, tools, and materials used in conjunction with the use and treatment of timber.

[1] Pursuant to section 149A of the Planning and Environment Act 1987

[2] Planning permit application P06/1655

[3] See Boucher v Dandenong Rangers Steiner School [2005] VSC 400, (2005) 21 VPR 229

[4] It is apparent from this table that the second condition applicable to the use "freezing and cool storage" in the Green Wedge A Zone is an error. The second condition appears to be a repeat of the condition applicable to the uses "store" and "rural store" as they appear in various zones. Whilst the condition may be relevant to these uses, it is not relevant to the use "freezing and cool storage" in the Green Wedge A Zone and does not appear opposite that use in other zones. The Victoria Planning Provisions and all planning schemes require amendment to correct this apparent error.

[5] Similar phrases and concepts are employed in other parts of planning schemes; for example in the schedule to clause 53 of the Yarra Ranges Planning Scheme many uses must "be associated with" other uses.

[6] Boucher v Dandenong Ranges Steiner School [2005] VSC 400 (2005) 21 VPR 229

[7] Mornington Wine Company Pty Ltd v Mornington Peninsula SC [2006] VCAT 2651

[8] Neve v Macedon Ranges SC [2002] VCAT 277

[9] They include: Dandenong Ranges Steiner School v Cardinia SC [2005] VCAT 1152, (2005) 20 VPR 196; Boucher v Dandenong Ranges Steiner School [2005] VSC 400, (2005) 21 VPR 229; Gibson v Mornington Peninsula [2004] VCAT 1457; Gillies v Mornington Peninsula [2004] VCAT 2218; Perks v Wyndham CC [2005] VCAT 2335, (2005) 21 VPR 262; Vidoni v Mornington Peninsula Shire Council [2005] VCAT 1445; William Sipthorp & Ors v Nillumbik Shire Council [2005] VCAT 1765; Croydon Developments Pty Ltd v Yarra Ranges SC & Trevor Hill & Ors [2006] VCAT 360, (2005) 23 VPR 29; Buxton v Yarra Ranges Shire Council [2005] VCAT 1645

[10] The land was subsequently rezoned to Rural Conservation 2 wherein an education centre was prohibited. However, transitional provisions applied.

[11] [2005] VSC 400, (2005) 21 VPR 229

[12] Justice Osborn was considering the phrase in the context of clause 57 of the planning scheme. It is the same provision as appears in the Green Wedge Zone and other zones.

[13] [1999] NSW LEC 241

[14] If a use is ancillary, then it does not require a separate permit and the issue of whether the ancillary use is 'in conjunction with' the dominant use is irrelevant.

[15] [2006] VCAT 360, (2005) 23 VPR 29

[16] Schedule 2 of clause 53 in the Yarra Ranges Planning Scheme requires that outdoor recreation facility must be associated with an agricultural activity being carried out on the land.

[17] [2005] VCAT 1445

[18] [2004] VCAT 2218

[19] [2005] VCAT 2335, (2005) 21 VPR 262

[20] Perks v Wyndham CC [2004] VCAT 584 (also [2004] VCAT 544)

[21] For example Croydon Developments Pty Ltd v Yarra Ranges SC and Perks v Wyndham CC

[22] [2006] VCAT 2651

[23] [2007] VCAT 277

[24] This did not apply to the caravan and camping park. This is a section 2 use in the Green Wedge Zone without any conditions.

[25] The existing use of the site was for grazing but this use was proposed to cease.

[26] The Tribunal uses the term "necessary association" in [para 30]. However, this appears to be a typographical error and what the Tribunal is really referring to is the test of 'essential association'.

[28] See the Australian Concise Oxford Dictionary, 2nd Edition; and Macquarie Dictionary, 4th Edition.

[29] We are not talking here about a secondary use that is ancillary to a primary use because if a use is ancillary to another use, it does not need a permit. Clause 64.02 relates to separate identifiable uses - see Boucher v Dandenong Ranges Steiner School [2005] VSC 400; (2005) 21 VPR 229.

[30] See [2003] VCAT 277 at [30]

[31] [2006] VCAT 1645

[32] An exception to this would be in the case of a car park which in a number of zones, (as can be seen from Appendix A) must be used in conjunction with another use in section 1 or 2. This condition applies when car park is a separate use of the land, not where a car park is ancillary to another use of the land. The primary use would, by necessary implication, be carried out on land other than the subject land.

[33] [1964] HCA 37; (1964) 110 CLR 529

[34] [1982] VicRp 14; [1982] VR 157

[35] (1993) 11 AATR 175

[36] 11 AATR 175 at 190

[37] [2006] VCAT 798

[38] 11 AATR 175 at 190

[39] This description is taken from the planning report (July 2006) prepared by Coomes Consulting and forming part of the planning permit application.

[40] See Derringlane Pty Ltd v Port Phillip City Council [1999] VSC 269; Merrett v Moira Shire Council [2005] VCAT 242 at [16] - [17]

[41] [2007] VCAT 563

[42] [2007] VCAT 563 at [42]

[43] [2007] VCAT 563 [44]

[44] Shorter Oxford English Dictionary, Vol I (1980)

[45] Although from the evidence of Mr Bell at the hearing this may no longer be the case in light of other amendments to the planning scheme introduced by Amendment VC43.

[46] This condition appears to have been included by error - see footnote (3)