1. The application for an enforcement order is refused.

For the Applicant/ Responsible Authority: Mr T. Montebello of Maddocks,

and D & L Beaman: Mr A Southwell, QC instructed by O'Donnell, Frampton, Salzano Lawyers.

For the Person Affected: Mrs M Markus appeared personally.

1. This is an application under section 114 of the Planning and Environment Act 1987 for an enforcement order made by Kingston City Council ("the Council") against D & LJ Beaman, the owners and occupiers of 23 Ormond Street, Mordialloc and PMP Distribution Pty Ltd ("PMP")("the Respondents").

2. The application sought an order against the Respondents "for the home occupation to cease operating from 23 Ormond Street, Mordialloc".

3. The grounds on which the application was made were that the use of the subject land contravenes clause 52.11 of the Planning Scheme. The application stated that PMP Distribution in conjunction with Lorraine Beaman were contravening this provision.

4. The conduct and facts by which the provision specified was being contravened was stated to be:

"1. More than one person working in the occupation who does not live on the premises.

2. Occupation causes detriment to the amenity of the area through the transportation of goods, including the delivery and collection of material."

5. Paragraph 8 of the application specified Ms Marcus of 1/21 Ormond Street, Mordialloc as a person who has been or maybe adversely affected by the alleged contravention and stated Lorraine Beaman as a person who may be affected if the order is made.

6. By letter dated 7 October 2002 Maddocks, Lawyers on behalf of the Council sought leave to make amendments to the application. The amendments were:

"It is alleged that the use of the land contravenes, has contravened and unless prevented will continue to contravene:

* Clause 32.01 of the Kingston Planning Scheme; and

"1. The use of the land for the storage, collection and/or distribution of printed or other materials associated with the business/non-residential activity being conducted must immediately cease and must not recommence.

2. All goods and materials associated with the business/non-residential activity being conducted must be removed from the land within 30 days of this order.

3. The use of the land for in connection with a business which employs more than one person who is not a resident of the dwelling on the subject land must immediately cease and must not recommence without an appropriate planning permit.

4. The Respondents must pay the costs of the Responsible Authority in this application."

7. The Council also sought leave during the hearing to amend PMP's name as Respondent to PMP Print Pty Ltd (trading as 'PMP Distributors').

8. At the hearing with the consent of the Respondents leave was granted to the Applicant to make these amendments.

9. The orders are sought against the owners and PMP. PMP has an established business of distributing promotional material and local newspapers through letterbox delivery. It has contracted with Mrs Beaman to distribute the material in designated areas and also has contracted individually with individuals ("walkers") who collect the material from the subject land and deliver it to households in the designated areas. Bulk quantities of the materials are delivered by large trucks to the subject land which is then collected by the walkers who are recruited by and coordinated by Mrs Beaman. Whilst Mr Beaman is a joint owner and occupier of the land, there is no evidence he is involved in the activities. Council seeks the orders against PMP and the owners but not against the walkers.

10. The subject land is a residential house and land owned and occupied by Mr and Mrs Beaman situated on the south east corner of the intersection of Edith and Ormond Streets, Mordialloc. It has a frontage of 24.61 metres to Ormond Street and a depth of 27.03 metres along Edith Street. The side boundary has a high wooden fence, Towards the rear of the property in Edith Street double gates access a driveway to a garage on the land.

11. Mrs Marcus occupies Unit 1/21 Ormond Street, one of three units situated on the north west corner of the intersection with frontages to both streets. Both frontages are fenced with a high fence. Her kitchen/living room window faces north to Edith Street. There are 3 parking spaces between her unit and unit 2. The driveway to those spaces have access to Edith Street 5 -6 metres to the south of the Beamans' side driveway to their garage.

12. The land is zoned Residential 1 within the Kingston Planning Scheme. It is not subject to any overlays.

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

* To encourage residential development that respect the neighbourhood character.

* In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs."

14. A dwelling and Home occupation are as of right uses in the zone. Warehouse and Mail centre are section 3, prohibited uses in the zone . The innominate use is a section 2, permit required, use and no permits are in force.

15. The provisions for home occupation set out in clause 52.11 of the scheme. The purpose of those provision are:

"To ensure that the amenity of the neighbourhood is not adversely affected by an occupation conducted in or from the dwelling.

Clause 74 of the Scheme defines home occupation as

16. Clause 74 of the Scheme defines home occupation as:

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

17. Pursuant to Clause 52.11-1 of the Scheme, a home occupation must meet a number of requirements including (relevant ones bolded):

"* No more than one person who does not live in the dwelling may work in the occupation.

* The gross floor area used in conducting the occupation including the storage of any materials or goods must not exceed 50 square metres or one-third of the gross floor area of the dwelling, whichever is the lesser.

* The occupation must not adversely affect the amenity of the neighbourhood in any way including:

* The appearance of any building, works or materials used.

* The transporting of materials or goods to or from the dwelling.

* The storage of chemicals, gasses or other hazardous materials.

18. Clause 52.11-2 provides for a permit to be granted for home occupation:

* which allows not more than 2 persons who do not live in the dwelling to work in the occupation; or

* which has a floor area not exceeding 100 square metres or one third of the gross floor area of the dwelling whichever is the lesser ..."

No permit has been issued or applied for under these provisions.

* Mr Mathew Hall, Planning and Building Liaison Officer, which included presentation of a video,

* Merle Irene Markus, the resident of Unit 1, 21 Ormond Street opposite the subject land, who produced diary notes/logs over selective periods, photos and printed material collected from her letterbox..

* Reverend John Lamont of 25 Ormond Street, Mordialloc;

* Mrs Nicole Annette Huggins of 2 Edith Street, Mordialloc;

* Mr Andrew Peacock of 2 Edith Street, Mordialloc (Ms Huggins' partner);

* Mr Barry Joseph Hiller of 7 Edith Street, Mordialloc;

* Mr William Granville Payne of 19 Edith Street, Mordialloc;

* Mrs Marjorie Pritchard of unit 2/29 Milan Street, Mentone; and

20. Mr Montebello and Mr Southwell both made submissions to the Tribunal. Formal certificates were given under section 140 and 141 of the Planning and Environment Act as to the zoning of the subject land, the existence of any permits and the provisions of the planning scheme and other formal matters. Mr Hall verified a video which was shown at the hearing. A variety of photographs, plans and other documents were produced to the Tribunal and tendered in evidence which remain on the Tribunal file. Subsequent to the hearing the Tribunal inspected the area. At the commencement of the hearing an order for witnesses to be absent from the hearing room before giving their evidence was made.

21. The evidence of Mr Matthew Hall, a Planing and Building Liaison Officer gave the history of the matter from Council's point of view from observations and to the best of his knowledge and experience from 24 January 2001 to 13 November 2002. His evidence included a video recording made on 13 November 2002 of observations between 7am and 10am including a truck delivery and collection of printed material by the walkers.

22. He confirmed discussions with Mrs Beaman on 24 January 2001 when she described the general nature of the business, he observed a truck delivery on 26 June 2001 at 4pm where the truck was parked on the wrong side of the road and also vehicles from walkers collecting material, also parked on the wrong side of the road.

23. On 16 July 2001 he attended with Phil Stewart, a parking infringement contractor for the City and observed walkers cars parked illegally in the street and advised Mrs Beaman to request that they park correctly, which she agreed to do. This visit was confirmed by letter.

24. On 12 November 2001 he met with Mr Chris Tsoronis of PMP, Mrs Beaman and Ms Markus in an unsuccessful attempt to mediate and negotiate acceptable delivery and pick-up times.

25. Following that time he recorded further observations of the land, further advices by Ms Markus of deliveries and a meeting on 12 December 2001 at which PMP was advised that Council considered the use was not a lawful home occupation.

26. After the enforcement order application was lodged with the Tribunal in April 2002, Ms Markus advised him of further truck deliveries, that a traffic study had been conducted and he himself made observations of cars parked illegally in Ormond Street and he made observations of the usual collection of printed material by walkers.

27. From December 2001 it appeared that the relationship between Ms Markus and Mrs Beaman was deteriorating as Ms Markus apparently was, on the advice of Council, taking down car registration numbers of the walkers vehicles and on 14 December 2001, Mr Hall advised her to stop doing so. He had observed the relationship between Ms Markus and Mrs Beaman was heated and he thought there was personal animosity. Mrs Beaman advised him she knew who was the complainant. He knew of no-one else who had made a direct complaint about the business, and had doorknocked the surrounding neighbours who raised no issues.

28. On 20 August 2002 he witnessed a request by Mr Tsoronis to Ms Markus to stop taking registration numbers down as it was distressing the walkers. Further observations and reports of truck deliveries and walkers collections were then observed and recorded in his affidavit.

29. There are no parking control signs in Edith Street and he confirmed the incorrect parking was the direction in which the walkers' cars were parked. This was Mrs Markus' initial complaint.

30. The meeting of 12 of November called by Mr Hall was an unsuccessful attempt to mediate. He understood the occupation at that time to be lawful use and believed with some fine tuning an agreement could be reached on acceptable hours and correct parking, but, the meeting got out of hand. He acknowledged that this activity had an unusually high number of complaints and in particular from a single complainant. He considered it was more usual for complaints of illegal activity to come from a number of complainants and he agreed there was a subjective element in Ms Markus' complaints. Recollections of the outcome of the meeting differed, Mrs Beaman and PMP believing Ms Markus had agreed to some propositions for the future conduct of the business, with Ms Markus believing to the contrary.

31. He had not heard any undue noise in relation to the deliveries except on one occasion when papers were being thrown from a truck onto the ground. He had not heard dogs barking at Mrs Beaman's property, but when he visited Ms Markus' property her dogs barked.

32. The loading and unloading was being conducted in an orderly manner. He believed there had been a complaint about the storage of the material in Mrs Beaman's property in that it could be observed when her rear side gates were open.

33. He confirmed the old metal gates of Mrs Beaman's rear yard were replaced with vertically slatted gates and that the "squeak" heard when opening and closing was remedied. He agreed any storage outside Mrs Beaman's garage in the rear of her backyard was only temporary. The garage was setback sufficiently to enable a truck to reverse into the property and unloaded material was placed in the garage.

34. He believed the main issues were the noise of the car walkers' doors, the hours of deliveries and the mode of transport.

35. Mrs Markus' affidavit forms the centrepiece of the Council's case and I set it out in full -

"1. My name is Merle Markus and I own and occupy Unit 1, 21 Ormond Street, Mordialloc and have been living there for approximately 22 years.

2. 1 am affected by the activities conducted on and associated with land at 23 Ormond Street, Mordialloc (Subject Land). Ms Beaman and her family have been residing at the Subject Land for a similar length of time to me.

3. From my observations, Ms Beaman has been running a business which consists of receiving regular deliveries of substantial amounts of both "junk mail" (printed material) and also local papers directly from delivery trucks and then she regulates and assists with the collection of this material by large numbers of regular collectors/walkers, who collect car-fulls of this printed material and presumably distribute this material within a designated area.

4. I am aware that Ms Beaman has conducted similar activities from the Subject Land over the past 6 or so years, but I have noticed a significant increase in the intensity of the business activity associated with the Subject Land in recent years which has increased the degree to which I am affected.

5. Since 23 May 2001 I have kept a record of a number of deliveries and collections which I have observed in connection with the commercial activity associated with the Subject Land. Now produced and shown to me and marked with the letters MM1 are true copies of diary notes and photographs taken by Merle Markus of activities on the Subject Land.

6. I have actively requested Council to take action in respect of the business activity associated with the Subject Land, believing it to be unlawful in a Residential Zone and causing an unreasonable disturbance to my enjoyment of my home and its surrounds. I have also attended a meeting with Ms Beaman and PMP Distributors together with Council staff.

7. I have noticed that almost all printed material which is delivered to the Subject Land is received by Ms Beaman in the garage area. This garage is freestanding and is located to the rear of the house on the Subject Land, fronting Edith Street. There are a comparatively limited number of deliveries which are made to the house itself, and they are generally carried out via smaller vans.

8. In the past I have also had difficulties with vehicles associated with the commercial activity on the Subject Land parking over crossovers and also parking the wrong way around. Following action by Council, this has resolved itself to a large extent. There is still one vehicle which normally arrives on a Wednesday morning before 8am which still parks the wrong way around.

9. I have noticed that some collectors/walkers collect local papers, others collect junk mail, and others collect a combination of each. It appears that Ms Beaman supplies these people with trolleys and that they then load the printed material into their cars which are parked outside the Subject Land in Edith Street, generally opposite my unit.

10. 1 estimate that 30-40 different collectors/walkers are involved with the commercial activity on the Subject Land. On some days 1 have observed up to 32 cars (some repeat attendances) collecting printed material from the Subject Land.

11. It is common for collectors/walkers to return excess printed material to Ms Beaman on the Subject Land.

12. I estimate that each week there are approximately 7 deliveries of printed material by truck to the Subject Land, including Saturdays.

13. The truck which delivers local papers comes once a week, generally on a Monday night and I have also observed it coming on a public holiday. This truck partly reverses into Ms Beaman's driveway and the side of the truck says "Telock Transport". I have been informed that Ms Beaman accepts approximately 10,000 local papers in each delivery and I have observed that the truck takes approximately 1 hour to unload. I have recently seen this truck conducting a delivery as late as 6:30pm. Following this, the collectors/walkers came to the Subject Land to collect this printed material for distribution.

14. The junk mail truck normally makes 6 deliveries to the Subject Land per week. It usually arrives before noon, parks on the side of Edith Street and unloads from both sides of the vehicle and carries substantial amounts of printed material, for example, on average 8 full trolley loads. This truck has "C & M Transport" written on it and normally takes a half hour to unload. I have occasionally observed the driver of this vehicle throwing bundles of printed material onto the driveway of the Subject Land when it was raining. Generally the driver uses his own metal trolleys to unload. Each section of this truck is "gated", and when these gates are opened and then closed afterwards, I am disturbed by the noise.

15. When there is a very large amount of printed material to be unloaded, I have sometimes noticed that the driver brings an assistant to help with the delivery.

16. I have seen collectors/walkers collecting material from the Subject Land as early as 6-6:30am, which is a more frequent occurrence in the summer months.

17. It appears that the entrance to the Subject Land from Edith Street is open 24 hours per day, and that it has a sensor light.

18. I have noticed that the level of activity associated with the Subject Land varies depending on the onset of major public holidays, such as the advent of Christmas (when the activity

increases at the Subject Land from say, October) and in advance of Easter and the June/July stocktake sales.

19. I think that I am more affected by the activity on the Subject Land than a number of other residents in the street since I generally do not work during the day and spend a sizeable part of each day at home.

20. I am particularly affected by the amount of vehicle activity associated with the business on the Subject Land - I hear cars and trucks pulling up, the noise of car motors, doors and boots slamming, collectors/walkers discussions with Ms Beaman and between themselves. Overall, during the hours that the deliveries/collections occur I notice what seems to be almost constant movement in the street opposite my unit. I also hear the scraping of the asphalt driveway from time to time.

21. I am also disturbed by the fact that Ms Beaman has a number of dogs on the Subject Land, which often bark when people approach the Subject Land.

22. I also find that the impacts of the business activity at No. 23 on me are cumulative in terms of the frequency of deliveries and collection, the noise which accompanies this activity, the hours over which the activity is conducted, the amount of printed material which is involved and the numbers of vehicles involved.

23. Ms Beaman also distributes printed material in the local area by hand and uses a buggy for this purpose, with a large cardboard box attached on top. She collates this material before placing it in local mailboxes. I will provide the Tribunal with examples of such material which have been given to me.

24. I do not think that I should be exposed to the ongoing disturbances which are "part and parcel" of the business activity being conducted on and from the Subject Land, especially since I live in a residential area which is otherwise very quiet and I believe that I am entitled to have a reasonable level of amenity, both day and night".

36. Ms Markus was subject to extensive cross examination.

37. The Respondents evidence was from Mrs Beaman and from neighbours.

38. It is useful to set out Mrs Beaman's affidavit. Whilst Ms Markus showed some emotion and distress during her evidence it must be said that Mrs Beaman was so distressed that she could hardly articulate her evidence. Her affidavit read as follows:

1. I am the second respondent to the Application for Enforcement herein. Save where otherwise appears, I am able to swear positively as to the truth of the matters hereafter set forth from personal knowledge, or from information and belief after having made all due and proper enquiry.

2. I am advised by my solicitors and believe that this Application by the City of Kingston ("the Council") has been made in respect of home occupation activities conducted at 23 Ormond Street, Mordialloc in the State of Victoria ("the land").

3. The land owned jointly by myself and my husband, and has been so owned, and the house thereon used as a family residence, for 23 years.

4. The land is situate at the corner of Ormond and Edith Streets, Mordialloc, with a frontage to Ormond Street of 27 metres (approx.) and to Edith Street of 27 metres (approx).

5. Erected on the land is a three bedroom 12 square dwelling of timber construction, which addresses and fronts Ormond Street, together with a separate single garage structure which fronts, and is accessed separately from, Edith Street by a separate driveway. Slatted timbered gates of 1.8 metres height separates and land from both street frontages along the property line. In this regard I refer to photographs to be tabled at the hearing of the application herein.

6. I have resided in the dwelling on the land with my husband, son and daughter for the whole of the time we have owned the premises, being 23 years. At the present time my daughter's fiancée also resides there with us.

7. My husband is a building supervisor employed full time with Fasham Johnson, Builders. My son, aged 25 is currently unemployed. My daughter is employed full time in a computer business in Oakleigh and her fiancée is self-employed full time as a concreter.

8. I have been involved in the distribution of advertising and newspaper material for the first respondent ("PMP") for approximately twenty years, commencing as a "walker" (deliverer). During that time no storage, distribution, collection or other form of business activity has occurred in the dwelling on the land, which is used exclusively as a private residence. In 1995 I commenced an arrangement with PMP to use my garage as a distribution point for their advertising and newspaper material. No other member of my family is involved in the distribution of the PMP material.

9. I am, and have been for the past seven years, the PMP distribution agent for the area comprising Mordialloc, Parkdale and Mentone. The garage located at the premises is the distribution point for such activities.

10. The material distributed from the garage on behalf of PMP comprises the following categories:

* Advertising brochures and catalogues for large retailers such as K-Mart, Bunnings, Clint's Crazy Bargains;

* Local Leader Press Newspapers, such as Mordialloc/Chelsea News and Moorabbin Standard;

* Municipal newspapers produced by Local Councils, including that of the Kingston City Council, the applicant herein;

* A small amount of addressed material, including the Aged Pension News. Hosking Jewellers brochures, and Viking Stationery brochures. Material in this category is distributed only once per month or once per quarter (3 monthly), and comprises approximately one to two percent of total material distributed.

11. None of the material distributed from the premises is sold, and none of the material is purchased by the recipients thereof.

12. The distribution material is transported to the land by truck and stored temporarily in the garage in bundles, awaiting collection by the walkers. The distribution material is brought to the premises by a tray truck, which has an external (open) metal frame, to prevent the material becoming dislodged or displaced.

13. No truck which brings material to the premises is registered at the address of the premises, nor is any truck owned or parked at the premises by myself or my husband, who drives his own station wagon to carry his own building supplies.

14. The truck deliveries are normally made through the double gates accessed from Edith Street, which are sometimes opened by myself shortly prior to the arrival of the truck or upon arrival. The truck reverses up the driveway from Edith Street to the garage doors, located some 8 to 10 metres beyond the double gates, where the distribution material is then physically offloaded by trolley and stored in shelves in the garage. Sometimes, if there is an unusually large amount of material, the drivers prefers to park the truck in front of the driveway and unload the material by trolley, up to the garage.

15. Once offloaded into the garage the distribution material is arranged by me into various bundles and labelled according to the distribution area and the identity of the relevant walker allocated to that area (which remains constant for each walker).

16. Approximately two-thirds of the internal garage space is used for the storage/distribution of the material, the balance being used for normal domestic garage purposes, including building and plumbing materials used in my husband's business, gardening and other tools, home equipment etc and the like.

17. If there is an excess of distribution material from a previous delivery, this is taken away by the same delivery truck which delivers material for distribution that particular day.

18. During offloading, the truck's engine is switched off, and no noise is produced. The delivery procedure usually occurs behind the closed gates accessing the garage.

19. There has never been any complaint from any neighbours, other than Mrs Markus, concerning the movement and parking of the trucks or the unloading procedures.

20. Deliveries occur usually three days per week, usually between the hours of 7.00 am and 7.00 pm.

21. The larger deliveries (the advertising material and the Leader Press newspapers) occur on Monday's or Tuesday's between 7.00 am and 7.00 pm, (once per day). The City of Kingston News is delivered every 3 months.

22. For the Monday/Tuesday deliveries, the average duration of the truck's presence on site is normally about 30 minutes, during peak periods (pre-Christmas months), this may extend to 40-60 minutes (max) and in the off (winter) season, only 15-20 minutes.

23. Occasionally on Thursdays, during the busy period, however mainly Friday's between 7.00 am and 7.00pm there is a shorter, smaller delivery by a small (3-4) truck, which delivers the municipal newspapers (Moorabbin Standard). The stay duration of this truck, again once per day (Wednesday morning) is about 5-10 minutes.

24. I note that Mordialloc Football Ground is less than 300m south of the land, and Edith Street is heavily trafficked and parked on both sides on each second weekend during the football season. I do not believe Mrs Markus has complained about this.

25. The walkers are primarily retires or semi-retired pensioners, or housewives who are otherwise unemployed. They are each allocated a distribution area, and work the same area with the distribution material.

26. The walkers arrive at the land either by car or on foot. Those who arrive by car are instructed to park their vehicles on the eastern side of Edith Street, outside the land, or if parked on the western side of Edith Street, instructed to park well to the north of the residence of Mrs Markus. I believe, and have observed, that the walkers adhere strictly to this instruction. I am vigilant to ensure that they do.

27. Although there is an average of between 10 to 20 walkers on any given distribution day, they do not arrive at the premises together; rather their arrivals are staggered throughout the day, usually individually or in twos with a maximum of four persons at any one time.

28. As the walkers are primarily comprised from retied or semi-retied ranks (including ex professionals and ex police officers), I am able to say from observations that their behaviour is orderly and well mannered.

29. The walkers proceed directly from the eastern side of Edith Street down the driveway into the garage, where they collect their pre-labelled bundles of distribution material, then proceed to carry out their deliveries according to their designated areas. They do not normally return to the premises after the daily deliveries, unless they have excess undelivered material, which is infrequent.

30. Often, I do not see the walkers when they arrive, as I am engaged in domestic activities in the dwelling at the premises, or am out socialising or engaging in recreational activities. As I know the walkers and truck drivers can be trusted, they have full and free access to the garage without any involvement of, or supervision by myself.

31. From my frequent observation and discussion with the walkers, they use the activity for socialising and exercise, as well as a form of income. Occasionally, we have barbecues and other social functions, including bus trips together. Many of us have become friends.

32. I have no involvement in the remuneration of the walkers or the deliverers. This is all arranged directly by them with PMP.

33. My payment by PMP is by direct credit into my individual bank accounts. I have no business name and I am not incorporated, nor am I the director of any company relating to PMP Distribution, its activity or otherwise.

34. None of my family is involved in the PMP Distribution, its activity, or receives any payment or remuneration from PMP.

35. In response to the complaints of Mrs Markus, the Council arranged a meeting at its offices in October 2001. The meeting, which was of approximately 40 minutes duration was attended by myself, Mr Tsoronis of PMP, Mr M Hall of Counsel and Mrs Markus.

36. Mrs Markus identified the areas of her complaint in relation to the distribution activity as follows:

(i) Alleged noise from trucks parking and unloading material in Edith Street;

(ii) Walkers parking their vehicles on the west side of Edith Street, adjacent to her dwelling;

(v) She also requested that I erect a sign on or near the double gates in Edith Street, indicating times when walkers could attend.

Mrs Markus indicated that if the above matters were rectified within a fortnight, then she would "be happy" or words to that effect.

37. Although I did not agree with the request concerning the erection of signage at my dwelling, I left the meeting believing that once those other matters were addressed, then Mrs Markus' complaints would cease. Further, as he told me and I believe, Mr Tsoronis also considered this to be the case.

38. On this basis, within a fortnight commencing November 2001, the following steps were taken in relation to the distribution activity from the premises:

* Specific instructions were given to walkers in relation to parking only on the east side of Edith Street, or well to the north of Mrs Markus' dwelling on the western side (refer paragraph 26, above);

* Trucks (drivers) were instructed as much as possible to unload directly insider the land by reversing from Edith Street through the open double gates, and unloading would be carried on behind the closed double gates, which are then closed to screen the unloading procedure. Unloading this way occurs on most occasions, unless the load is unsuitable for reversing and unloading on site;

* If a walker had been unable to pick up their deliveries before 7.00pm on a Friday, they have on occasion picked up their deliveries between 9.00 am and 6.00pm on a Saturday.

* Deliveries/distributions have not been made on public holidays since December 2001.

39. Despite the foregoing measures Mrs Markus has persisted with her complaints.

40. The overwhelming majority of local residents, in particular those residing in Edith Street support the continued conduct of the home occupation activity. I propose to call a number of these residents to give evidence at the hearing of the application. I further believe that Mrs Markus is the only objector/complainant to the activity carried on from the land. She is not supported, to my knowledge and belief, by any other resident or neighbour in Edith Street.

41. I believe Mrs Markus has a significant and longstanding history of complaint against neighbours in the area, where she has been a long time resident. This includes continuing complaints against a horse float parked in the street to the north carried on by a horse trainer, Mr McDonald (who has since left) and a current complaint against a side neighbour who resides behind her in Ormond Street, relating to their dogs. She has also made loud complaints to neighbours concerning radio music fro their properties.

42. I am further informed by walkers, and believe, that on many occasions Mrs Markus has harassed them by openly parading along Edith Street taking photographs of their motor vehicles and motor vehicle registration plates, causing them considerable anxiety and stress."

39. The evidence of the neighbours was uniformly that they were not disturbed by the activities on the land. Reverend Lamont lived next door in Ormond street, and Ms Huggins and Mr Peacock lived next door in Edith Street. The others lived close by in Edith Street.

40. Evidence was given by a number of walkers. It confirmed the evidence of Mrs Beaman. They are mostly retirees, single or unemployed persons who enjoy the distribution activity, not only because of the remuneration, but also for the physical exercise, the regular employment opportunity and the social opportunities generated by interaction with Mrs Beaman and the other walkers, the social events organised by Mrs Beaman such as BBQs and twice yearly bus shopping tours. Ms Marcus had complained about the buses parking in Ormond Street, with the motor left running, but the evidence is they now park away from Edith street near the football ground.

41. I agree with Mr Montebello's submissions that by way of summary, the "pattern" of activities observed in relation to the Subject Land appears to comprise:

* The regular arrival of a number of trucks and vans each week delivering substantial amounts of printed material (including advertisement fliers and local papers), and possibly collecting "unused" printed material or local papers;

* the placement of this material within the Subject Land, usually within a garage on the Subject Land (accessed via the Edith Street crossover);

* the collation of this material or the identification of the bundles with the names of individual "walkers/distributors";

* the collection of this material (with the use of metal trolleys) by "walkers/distributors" by these individuals (often with assistance); and

* the regular (but not consistent) return of "unused" printed material or local papers.

42. Mr Southwell's opening contained a summary of his instructions as to the size, scope and history of PMP's operation

"1.1 PMP Distribution ("PMP") is the business name of a publicly listed company which operates nationally as a distributor of non-addressed advertising and newspaper material to both residential and small business addresses.

1.2 PMP commenced in the field over twenty five years ago, and has grown to its present size as one of the two largest in the country, with an annual turnover of in excess of $26,000,000 (Australia-wide) and $16,000,000 in Victoria alone.

1.3 At the core of its distribution network is the use of individual members of the community as -

based on pre-allocated geographical areas of distribution.

1.4 The vast majority of distributors are individual homeowners - most located in residential areas (Zones) - who, under contract with PMP, provide their properties as distribution points, at which locations they received, collate and distribute the distribution material, to deliverers according to their geographical areas, who in turn deliver to the individual recipients.

1.5 The deliverers collect their pre-sorted and pre-allocated materials - under contract with the individual distributor - transport the material to their own place of residence, and distribute it within their pre-allocated geographic areas, according to a stipulated time schedule.

* Copies of distribution and delivery contracts tabled.

1.6 As a significant proportion of the distribution material - be it promotional literature or local newspapers - is "time sensitive", the contracts require the distribution to occur within a specified timeframe, usually less than 7 days ("windows"). In this way, there is no "stagnation" of stored material at distribution points, due to the regular turnover of the material.

1.7 The majority of distributors and deliverers are either retired or semi-retired people', or housewives otherwise unemployed, who become involved in the distribution network primarily as a means of providing a neighbourhood/community service, to keep fit and to socialise and inter react with like minded citizens. To this extent, it is very frequent for common groups of distributors/deliverers to form strong friendships and bond, and to engage in common community activities.

1.8 The particular characteristics of the PMP distribution network are identified in the affidavit of the second respondent, Lorraine Joyce Beaman sworn 15 November 2002 ("the Beaman affidavit") and in her oral evidence. Those characteristics are typical of the means by which the PMP distribution network operates successfully Australia-wide, thus far without hindrance.

1.9 for this purpose, PMP engages approximately 690 distributors across Australia, both in metropolitan and country areas. In Victoria alone, there are 190 distributors who provide their places of residences as distribution points, with approximately 9,000 deliverers to deliver the material to households and businesses.

1.10 the overwhelming majority of distributors (distribution points), both in Victoria and Nationally, are locate din residential 1 zones (or the interstate equivalent). The operation has been conducted without hindrance for twenty five years: to PMP's knowledge, this is the first time any kind of enforcement (injunctive) relief has been hitherto instituted against it or any of its distributors; further, no permit has been required in a Residential zone, on the basis that the use has always been classified and accepted as one of "home occupation" by the relevant municipal authority.

* Copy Holyrood Council (NSW) documentation tabled."

* The business activities on the Subject Land commenced some 6 years ago;

* The other residents in the immediate and or local area who gave evidence say that they are not unduly affected by the business activities on and around the Subject Land;

* Lorraine Beaman sorts newspapers and advertising catalogues into bundles in her garage and in part of her house in preparation for their collection and distribution. She does this on a part time basis;

* The garage on the property is has a floor area of approximately 2 metres x 5 metres;

* The walkers and Mrs Beaman are engaged by PMP distribution. Mrs Beaman has a contractual agreement with PMP. PMP makes separate contractual arrangements with the deliverers. Payments are made by bank direct deposit The walkers are not employees or contractors for Mrs Beaman, but are organised and supervised by her on PMP's behalf;

* There appear to be a minimum of 3 deliveries of printed material to the Subject Land per week, usually two on Monday/Tuesday and one on Thursday, but the number of trucks and the volume of material increases in busier periods, such as pre Christmas and pre Mothers and Fathers Days, when larger loads are delivered and there might be 5-6 trucks per week;

* The trucks for junk mail are large trucks up to 9 metres ranging down to smaller vans for some local papers;

(a) of the promotional material (junk mail) when the truck parks outside Mrs Beaman's house in Edith Street and the driver, sometimes with an assistant in busier times, trolleys the material into Mrs Beaman's garage, and

(b) the other of local papers when the truck or van backs into Mrs Beaman's driveway and unloads inside her property, this is when the reversing beeper is heard.

* I accept Mrs Beaman's evidence in her affidavit that each delivery normally takes from as low as 5-10 minutes up to 30 minutes (approx). A busy times it may be longer, and I note that Mr Symons recorded a delivery time of one and a half hours .

* Ms Beaman is "responsible" for the geographic areas of Mordialloc, Aspendale (Distribution Area 958) and Mentone (Distribution Area 35). Maps of these areas were produced. D

* on the east and south east by Springvale and Edithvale Roads (7 km);

* on the west mainly by the coast, Parker Street, Como Parade, Nepean Highway and Olive Grove (5 km).

The area west of Boundary and Wells Roads is dense residential areas, but to the east there is a large area of park, industrial estate and underdeveloped land. The estimated distances are approximate using the Melways scale and maps.

* on the north by Latrobe, Oak, Voltri, and Kembla Streets and Second Avenue (3km);

* on the east by an irregular boundary through Parkdale (3-4km).

* No estimate was given to the Tribunal of the numbers of residences in these areas but my observation was that they constitute a large area with many hundreds (or more) of houses and premises and took some time to traverse by car.

* About 20 collectors collect their respective bundles of catalogues from Mrs Beaman. I accept that the pickups generally take 5-10 minutes, may be longer due to social contact and occur 3 time per week, but may be on more days per week if the number of junk mail deliveries are higher in busy periods. Mr Symons recorded 43 pickups over 3 hours on 1 day;

44. Mr Symons' traffic counts of the existing street network were limited to Ormond Street, but he was of the opinion that Edith Street would most likely have similar traffic volumes. The Responsible Authority disputed this proposition but brought no traffic evidence. I was unable to observe any difference in the character or traffic conditions of these two streets and accept Mr Symon's evidence.

45. There are regular Council and private garbage collections, and there the usual business, delivery and trade activities which occur in a suburban street, although many of these will be infrequent or occasional and depend on what building projects are ongoing in the area.

46. Photos were produced of both trucks parked facing the wrong way.

47. Exhibit RA9 demonstrated that in September and October 2002 these were:

48. Arrival times were 7.35am at the earliest throughout the day at various times, latest being at 6.35pm

49. Whilst there was much debate and analysis of the logs kept by Ms Markus for limited periods, her impressions of the level of activity were confirmed by Mr Symons' Report commissioned by PMP over a period of a week over august 2002. Paragraph 2.3.2 of his report (with corrections) stated -

Over the same period as the Ormand Street survey, Ratio Consultants surveyed vehicle activity generated by 23 Ormond Street. The survey results are provided in Table 2.2 and they show:-

* total vehicle arrivals of normal "residential" frequencies on the surveyed Wednesday, Thursday, Saturday, Sunday, Monday (ie. In the range from 2 to 11 vehicle arrivals over the period from 7:00am to 7:00pm);

* a noticeable number of "walkers" arriving by car to pick up newspapers and catalogues on the surveyed Friday (11 cars) and especially on Tuesday (43 cars);

* one vehicle arriving to deliver bulk quantities of newspapers and catalogues on Thursday, Friday and Monday, and two on Tuesday.

Over the period of the five surveyed weekdays, the newspaper and catalogue distribution activities generated 99 vehicle arrivals, an average of 20 per day. That average is about half that which would be generated by a sole medical practitioner utilising a home surgery (such activities typically have appointments at fifteen minute frequencies over six working hours per day).

With more specific reference to commercial vehicle activity, the surveyed average of one small/medium sized commercial vehicle per day is not and unusual occurrence in a residential street. Council garbage collection and waste recycling, commercial deliveries and general domestic property maintenance all generate traffic by this type of medium of large commercial vehicle in local streets on a daily basis".

50. The definition of "Home occupation" in Clause 74 of the Planning Scheme and the text of Clause 52.11 are set out above.

51. Mr Montebello referred to the provisions of Clause 52.11-1 which required that no more than one person who does not live in the dwelling may work in the occupation and to the provisions of Clause 52.11-2 which allowed a permit for not more than two persons who do not live in the dwelling who work in the occupation. His submission was the number of people "working in the occupation" consists of the delivery, storage, collation and distribution of printed materials from the subject land. The employer is PMP and the employees are Mrs Beaman and the walkers. He said this occupation is clearly one involving large numbers of people and well beyond the number which the scheme contemplates as being consistent with the overriding residential scale and character of the relevant property.

52. He submitted that the occupation could not be carried out without PMP delivering the material to the site, its drivers and unloaders unloading the material, and likewise could not function without the walkers. He distinguished it from a case where customers resort to the land. He submitted that when considering how may persons are working in the occupation the Tribunal should look at how many people resort to the site, and that in this case the only persons who do so are the walkers who assist in the distribution process. The 25 - 30 walkers should be regarded as working in the home occupation, and as a consequence there is a fundamental breach of the requirements of Clause 52.11-1.

53. Mr Southwell responded by referring again to the definition of home occupation. He submitted it was intended to apply to the occupation carried on by the resident of the dwelling in or around her dwelling, that is to say, Mrs Beaman at the subject land.

54. He referred to her contract with PMP "to deliver or procure delivery of materials supplied by PMP to the premises nominated", and identified her duties in fact comprising:

* receipt of the distributing material from the PMP delivery vehicles unloaded at the land,

* Once unloaded, placement of the material in her garage being approximately 2/3 of an area between 20 and 25 metres,

* Sorting the material according to the delivery areas for collection by the walkers,

* Arrangements with walkers for collection of the distribution materials.

55. He said she may or may not be present when the walkers come to pick up material. They know when to come, and as the material is already sorted and labelled, what is theirs for delivery.

56. He submitted her duties are discrete and carried out under an individual contract with PMP, and the walkers each have separate independent contracts with PMP. He said the walkers are not involved in Mrs Beaman's contract, and they should be regarded as having their own individual occupations involving pick up from Mrs Beaman and delivery of the material (not on the land or around the dwelling).

57. I accept Mr Southwell's submissions in this matter. I consider Mrs Beaman's is the only person who works in the home occupation carried on at her land, and the drivers, unloaders and the walkers are not persons working in her home occupation. It is carried out by her on her land and she determines what happens there.

58. I acknowledge that PMP carries on a large distribution operation described above. However regard must be had to the actual and legal relationships as documented between the parties. Many people engaged in home occupations would have contracts or arrangements with organisations (sometimes large) who subcontract to them, supply goods or services or purchase products or services produced at the site. They may or may not be customers. However because a person conducting a home occupation has such relationships or that materials are delivered to or collected from the site does not carry with it the legal consequence either that the person conducting the home occupation must be regarded as being part of or "working in" the business carried on by the larger organisation, that the larger organisation carries on its business on the land, or that persons who collect deliver or collect material to or from the site under separate agreements with a third party are "working in" the home occupation. Different conclusions could be reached if Mrs Beaman was employing or subcontracting to the walkers, but her "organisation" of them appears to be confined to sorting and allocating the material, as a conduit for referring new walkers to PMP, organising social activities and , in conjunction with PMP, giving directions to the walkers to minimise complaints from Ms Markus

59. I consider that the appropriate finding is that Mrs Beaman's activities are confined to the site and should not be regarded as extending to the activities of PMP in delivering material or to the walkers in picking up material.

60. I consider that the discussion in Shire of Yarra Ranges v Hunter [1999] VCAT 2141 ("Hunter") is not relevant to this issue but is more related to the issue of characterisation.

62. Mr Montebello submitted a characterisation argument that a breach of the requirements of Clause 52.11, for example, by employing more than one person who does not live in the dwelling without a permit or an adverse amenity impact inherently prevents the use being characterised as a home occupation. I understood his submission was that the requirements were so fundamental that failure to meet them took the characterisation of what might have been a Home occupation use out of that category, notwithstanding that the use met the definition in Clause 74.

63. He referred to Hunter, in which the Tribunal considered a residence being used as a transport depot, and submitted that there the Tribunal adopted a test as to when an activity was a lawful home occupation, as distinct from another separate land use. He submitted the test was that the use was a Home occupation if the activities were within the normal scope of residential use, that is they were subservient or subordinate to the residential use, and the activity and its physical manifestations did not dominate the relevant land in the physical and visual sense. He referred to the Tribunal decisions of Rafferty and Dixon v Boroondara City Council 2001 VCAT 1926 (26 September 2001) ("Rafferty") and also Manningham City Council v Nicolosi [2001] VCAT 2166 (8 November 2001) ("Nicolosi") where Member Komesaroff commented in relation to parking large vehicle goods haulage prime movers and trailers on the land around a residence:

"It is doubtful whether home occupation could ever apply to this type of activity, given the size of the trucks, the amount of land they occupy and the fact that the occupation is carried out on the roads rather than in the home."

64. Mr Montebello submitted that the evidence supported the findings on these tests negatively and that as a consequence the use of the land cannot be categorised as a "Home occupation", and therefore must be characterised as either a Warehouse or a Mail centre which are prohibited uses or an innominate use which may require a permit.

65. Mr Southwell submitted this wrongly identified the primary issue, which is not whether the use of the site is that of a Home occupation, which has already been accepted by the Council. Rather the primary issue is whether the use of Home occupation has at the relevant times and on the whole of the evidence been conducted in accordance with the planning scheme. From Mr Montebello's submissions, he listed the alleged breaches of Clause 52.11-1 were:

* the number of persons working in the occupation (already dealt with) and

66. He referred to the statement of Member Davies in Rafferty as follows:

"I accept Mr Cicero's submission that complies with requirements of Clause 52.11-1 is mandatory, save where they can be varied pursuant to Clause 52.11-2....."

and relying on her comments submitted that the requirements of Clause 52.11-1 are a statement of restrictions on Home operation, that the provisions of Clause 52.11-2 represent the only situations in which a permit may be granted where Clause 52.11-1 requirements are not met, and that Member Davies comments in Rafferty were that the requirements of Clause 52.11 constituted a statutory code, which, if not met, were a breach of the planning scheme, unless cured by a permit under sub-clause 52.11-2, which is not applicable in this case. He further submitted that Hunter and Rafferty were not authority that there was some additional overriding power under the planning scheme to find that what would otherwise be a Home occupation could not be characterised as such.

67. I agree with Mr Southwell's submissions on these issues. "Home occupation" is defined in Clause 74 of the Scheme. Ordinary principles of statutory interpretation require the Tribunal or Court to use that definition in deciding whether an activity constitutes a Home occupation. Having decided the issue on the number of persons working on the premises, I find that Mrs Beaman's use of the land is a home occupation within that definition.

68. Some comments on the cases are necessary. Hunter is a decision of Deputy President Bruce where she found the land was used unlawfully as a transport depot and made an appropriate enforcement order. Large trucks were garaged at the premises both inside and outside buildings and were used in a transport business from and off the site.

69. The relevant scheme, which was pre VPP, defined "Home occupation" differently from Clause 74, namely: "a business carried on within a dwelling or a building ancillary to a dwelling, but does not include a brothel".

70. Clause 606 of the relevant scheme set out requirements for Home occupation akin to but not as extensive to those in clause 52.11-1.

71. Deputy President Bruce also considered whether the use was ancillary to the dwelling and referred to the definition in the relevant scheme of "Ancilliary Buildings, Works and Uses" as "buildings, works or uses which are subservient or subordinate to the primary building(s, work(s), or uses(s) established on the land.". She found that the use dominated the front of the land which became a truck parking area, and thus was not ancillary as defined above to the residential use.

72. In her decision the discussion of dominance, subordination and subservience was in the context of whether the uses were ancillary to the residential use, but I could find no reference which indicated she considered these questions were independent tests of whether an activity was a home occupation. I read her decision as finding that the use could not be a Home occupation because it did not meet the requirement that the activity be inside the dwelling or an ancillary building, and she made the orders because the requirements of Clause 606 were not met.

73. Nicolosi does not take the matter any further as the member there relied on the case law specifically including Hunter.

74. The remaining issue is whether Mrs Beaman's carrying on of that occupation complies with the requirements of Clause 52.11-1 and if not whether an enforcement order should be made.

75. The Council's principal claim in this matter is that the conduct of the business is in breach of the requirements of Clause 52.11-1 in that it adversely affects the amenity of the neighbourhood in any way including:

* The appearance of any building works or materials used.

* The transporting of goods too or from the dwelling and

Issues of appearance and storage of materials were not pressesd

76. Clause 52.11-1 in that respect requires that the affect on the amenity must be "adverse" and can be "in any way".

77. There is an issue arising from the nature of the order sought by the Council to provide for the immediate cessation of the use and also the associated clearance of the subject land.

78. The power to apply for an enforcement order set out in Section 114 of the Act arises:

".... If a use or development of land contravenes or has contravened, or unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under Section 183."

79. Section 119 of the Act sets out what an enforcement order may provide for but states that the enforcement order:

(i) the use or development which contravenes or has contravened or will contravene this Act or the planning scheme, permit condition or agreement."

80. The use has been carried on for many years, but has only become a problem in the view of Council and Ms Markus in the last 2 years. Also it is only alleged that at the times of deliveries and pickups it adversely affects the amenity of the area. The use is an as of right use, which it is alleged at times and from time to time offends the requirements of Clause 52.11-1, but Council requests a blanket order prohibiting the use entirely. There is a question as to whether the Tribunal is confined to making an order which only stops that part of the activity which contravenes.

81. Council's submission was that it needed a blanket order to obtain control over the situation as a whole, but I have doubts whether this is an adequate justification for a blanket order prohibiting an as of right use, but given th3e finding below it is not necessary to decide this point.

"The use has ongoing cumulative and demonstrated impacts on the amenity of an established residential area. Currently by its nature, it generates huge amounts of activity which are conspicuous and disturbing to any resident enjoying the property in their daytime hours. There is every potential for the proposed business to expand without limitation. The fact that only one person has appeared as a witness in this proceeding should not detract from the key issue in the proceeding - whether the use is in contravention of the scheme. In the present case the evidence of the single resident witness is well documented, consistent and reliable.

The use is separate from the use of the land as a dwelling. It does not comply with Clause 52.11 limitations on home occupation. It is prevented from being characterised as a lawful home occupation by the detriment which it causes to the amenity of the local area."

83. He said that to allow the use to continue from the subject land would be contrary to orderly planning, would allow residents in the area to experience ongoing disturbance at the mercy of the Respondents preferred operating practices, and contribute to making this pocket of residential land of a lesser order compared with other residential areas. Ms Markus' specific references to impact on amenity related to

* talking between the walkers themselves and with Mrs Beaman, and

* dogs barking, and the motors running in the shopping tour buses.

He relied on the evidence of Ms Markus and submitted that she was not an over sensitive witness and her evidence was that she was not a "whinger".

84. I consider the Tribunal must consider the state of affairs at the present time. The evidence is that the matter came to Council's attention 2 or more years ago when Ms Markus observed an increase in the level of activity, which is not disputed, but before that time the activity was not objected to. Also paragraph 38 of Mrs Beaman's affidavit indicates that from November 2001 steps were taken to modify the operation in relation to:

* Instructions to walkers to parking only on the east side of Edith Street or well to the north of Ms Markus's dwelling on the west side.

* Truck drivers were instructed as much as possible to unload directly inside the land by reversing from Edith Street through the open double gates and unloading could be carried on behind the closed double gates.

* Walkers pick up times have been regulated and if they were unable to pick up their deliveries before 7.00pm on a Friday they have picked up their deliveries between 9.00am and 6.00pm on Saturday.

* Deliveries, distributions have not been made on public holidays since December 2001.

85. The competing analyses of Ms Markus's logs respectively prepared by the Council (RA 25) and the Respondent (R 14) are consistent. On most days over the period from May 2001 to February 2002 there was one truck a day observed except on 4 June 2001, an additional bus on 20 November 2001, 8 February 2002 and 28 January 2002.

86. The number of cars observed are generally in the range from 1 to 8 on any one day except for 2 days when there were 30 and 32 respectively. Therefore the impact on the amenity alleged by Ms Markus arises from one truck (sometimes 2) a day on 3 to 5 days a week unloading inside the Beaman's property or at the kerb, or for a period ranging up to 30 minutes and at busy times sometimes longer.

87. Likewise the amenity suffered by her is the observations of the walkers cars and pickups with consequential impacts mentioned above.

88. The question is are these occurrences in a suburban street an adverse impact on the amenity of the area.

89. Mr Southwell referred me to the well known decision in Zerbe Starks v City of Doncaster and Templestowe [1984] PABR 101 at 110 - 111:

" Amenity (residential) is an elusive but invaluable concept in town planning. The amenity of a neighbourhood is a complex of many attributes. It goes much further than mere "pleasantness" and "agreeableness". In town planning terms it embraces all the features, benefits and advantages inhering in the environment in question. . . . . . .Mr Wright submitted that the residents of a neighbourhood should, within reasonable limits, be the principal arbiters of the amenity of that neighbourhood. In support of this submission he relied upon decisions of both the New South Wales Land and Valuation Court (Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) [1971] 2 NSWLR 314 and Terrigal Grosvenor Lodge Pty Ltd v Gosford Shire Council (1971) 25 LGRA 450) and the Victorian Town Planning Appeals Tribunal (Ware v City of Northcote, Appeal No X77/951A). On close analysis, however, the New South Wales cases stand for a slightly different principle, namely that in determining a planning appeal weight should be given to the fact that objections have been lodged by neighbouring residents and to any decision made by a local democratically elected council. This is not the same as saying that the residents of a neighbourhood should be the principal arbiters of the amenity of that neighbourhood. It is true that the Victorian case cited above contains a passage which supports Mr Wright's proposition, but that case remains unreported and for good reason. Clearly when the Board is required to have regard to the preservation of the amenity of the neighbourhood the Board itself must make an assessment of the existing amenity. It cannot delegate this task to any other person or group of persons or simply accept what the residents of the neighbourhood may say without giving the matter independent consideration. This is not to say that residents' views will be irrelevant, but rather that the Board must turn its own mind to the question and make its own assessment."

90. He also referred me to the decision of the Tribunal in Black and Cook v Liquor Licensing Victoria and Queen Dragon Pty Ltd [2000] VCAT 459 (29 January 2002) where His Honour Mr Justice Kellam, the President of the Tribunal had the following to say:

"Traditionally, the meaning of the word "amenity" in relation to liquor cases had been found to be more restrictive than that applied in planning cases. There are no authoritative decisions as to the meaning of "amenity" within the meaning of the present Act. Zerbe's case was referred to by both parties as being a comprehensive exposition of the definition of the meaning of the word "amenity" in planning cases. It was submitted we should adopt this interpretation as being applicable to liquor cases. (There followed the extract from Zerbe set forth in the last preceding paragraph)..." This of course does not mean that the individual's perceptions of the affect that a proposal will be likely to have on the amenity of a neighbourhood should not be taken into account in evaluating the effect that it might have on the amenity of an area. This is consistent with the approach adopted by Ormiston J (as he then was in City of Camberwell v Cherry Nicholson (unreported Supreme Court of Victoria 2 December 1988) where he said at page 26:

I add that nothing in Broad's case to which I drew Counsel's attention, nor any other of the plethora of cases on amenity presented to me... suggested a different conclusion.

Indeed in Broad v Brisbane City Council (1986) 2 Qld R 317... it is clear that Thomas J saw that relevant individual's perception of amenity had to be evaluated in the course of ascertaining what the effect of the proposal was on the amenity of the neighbourhood. Likewise, de Jersey J accepted that a resident's subjective perception of his locality could be taken into account (p.26) and indicated the weight which these perceptions might be given by observing at 325 -

"In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course the evidence of such a view would be accorded little if any weight. In forming his own view of the likely effect of a proposed development on the amenity of the area a judge would I think ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development. But as I have said, I would not exclude evidence of more subjectively based views as being necessarily irrelevant, although in a judge may well accord them little weight."

We find this consistent with the statement made by Mr Morris QC in Zerbe's case."

91. Mr Southwell submitted that the following propositions of law should be extracted from these references:

* The ultimate determination as to adverse amenity impact is an object of one to be made by the Tribunal itself,

* It cannot delegate this task to any person or group of persons, including neighbourhood residents, without giving the matter independent consideration,

* In arriving at its objective decision, the Tribunal should give weight to the expressed to those who might be exposed to amenity detriment, namely the neighbourhood residents,

* Where, as here the unanimous body of local neighbours who might be equally affected by the use activity provide statements and give evidence of no perceived amenity detriment, there views carry significantly greater weight than a single objecting neighbour. If for now other reason than it would tend to show that the latter person is affected by unusual sensitivity and subjectivity and is not "a reasonable neighbour" in terms of assessing the amenity impact of a use.

92. The Tribunal therefore has to make an objective determination of the impact.

93. Mr Montebello argued that the impact can be "in any way" however small. Mr Southwell argued that these words in Clause 52.11-1 referred to the "ways" listed immediately below in which amenity may be disturbed rather than the level of the disturbance of the amenity. I consider that Mr Southwell's interpretation is correct and that the Tribunal must come to an objective conclusion that there is an adverse impact on the amenity in the context of Zerbe's case and Black.

94. In relation to the loading and unloading of trucks the evidence is that one and at the most two trucks park opposite Ms Markus's house on any one day and some of those trucks will reverse into Mrs Beaman's rear yard to unload. Truck traffic in suburban streets is a normal incident of suburban life. Whilst this traffic is regular, many trips through streets are also regular such as commuter traffic and delivery runs. Vehicles parking in a street are a regular incident of suburban life.

95. I find that in this case one or sometimes two trucks on any day parked for half an hour outside Mrs Beaman's house or inside her rear yard behind closed gates unloading some material in an orderly and quiet manner would not be an adverse impact on the amenity of that area.

96. In relation to the parking of vehicles, whilst on some days over a number of hours there may be larger numbers, I agree with Mr Southwell that the uncontradicted evidence is that a maximum of 3 to 4 walkers (as opposed to their motor vehicles) arrive at the site at any one time and stay for 5 to 10 minutes, and that for the year (2002)

* under instruction, they have parked their motor vehicles in designated areas away from Ms Markus's residence and on the opposite side of each street.

* There have been two or three days of abnormal parking but according to Mr Symons these figures are still within normal parameters for vehicle traffic and consequent parking for a residential street.

* There was no allegation of abnormal behaviour or disorder conduct by any walker whether relating to the parking of their vehicles or otherwise.

97. My finding is that the parking of the walkers vehicles and the pick ups on foot do not constitute an unreasonable or adverse impact on the amenity of the area.

98. The hours of operation at the present time appear to be between 7.00am and 6.00pm and at the meeting in November 2001 Ms Markus herself appeared to accept those hours. It appears that truck deliveries are mainly made in morning hours between 7.00am and 11.00pm.

99. There is no evidence that Ms Markus or any other resident during these hours has their sleep disturbed and Ms Markus's evidence is that she rises early, takes her dog for a walk and of more recent times is frequently away from her place of residence thus limiting the extent of the observation she can make.

100. On the evidence there is nothing in the hours of operation which in my view contributes to the activities constituting an adverse impact on the amenity of the area.

101. Whilst Ms Markus has complained about Mrs Beaman's dogs, the only relevant independent evidence is Mr Hall's who said he experienced Ms Markus' dogs barking rather than Mrs Beaman's. In any case the dog ownership is not part of the home occupation business and there is no evidence that the activities of the trucks or the walkers disturb any dogs unduly.

102. The neighbours do not express any adverse impact on their amenity. Whilst it might be said that the trucks park opposite Ms Markus's property, the neighbours are equally affected as the trucks travel southwards down Edith Street towards Ormond Street towards the intersection and they would suffer any breaking noise as the trucks slow down as well as any audible reverse beeping noise from the trucks reversing into Mrs Beaman's rear yard. Likewise the walkers are concentrating their parking and loading and unloading activities on the opposite side of Edith Street from Ms Markus's property and to the north away from her property closer to the neighbours. It is reasonable to find that if there is an adverse impact on the amenity it would be experienced by the neighbours to the same or to a greater degree as Ms Markus, but the contrast of the neighbours evidence from that of Ms Markus is that they are not disturbed or adversely affected. For example Ms Huggins and Mr Peacock seem barely aware of the home occupation activities, but live next door to the Beaman's house where one would expect a similar impact.

103. Whilst Ms Markus's has observed the trucks and the walkers making their pick ups and parking, she has not stated how she is affected, for instance, by being woken up, or by people or vehicle noise interfering with her activities in the house, which is the kind of evidence one would normally expect in this kind of case. I gained the impression that Ms Markus may be more concerned by the fact that the home occupation use is taking place, for instance the initial parking of vehicle walkers' on the wrong side of the road, rather than as a consequence of impacts on her amenity. Her evidence lacks balance when compared with the evidence of the other residents who should on consideration of all the factors suffer a similar or greater disturbance, but who, in contradiction to her position support the Respondents by express evidence that they are not disturbed.

104. Mr Southwell made submissions on the question of Ms Markus being an over sensitive witness. I agree with Mr Montebello that her observations of the events are most likely correct. However when the evidence of the other witnesses and residents and my inspection of the area are is put into the balance, my finding is that in relation to the present level of activity, I accept the evidence of the neighbours that the activities do not cause an adverse impact on the amenity of the area, as objective and impartial evidence from a number of unrelated persons, in preference to the evidence of a single complainant. . I take Ms Markus' evidence as indicating that she has taken a strong position of objection to the activities, but this is not equivalent to proof of an adverse impact on her amenity. I agree with Mr Southwell that there is an element of over-sensitivity in her approach. I do not consider that the Council has proven its case on adverse amenity impact and I decline to make an enforcement order.

105. However one observation should be made. The distribution areas are quite large and the evidence is that in the busy times the number of truck deliveries to the site has increases to 6 trucks per week with the number of walkers' pickups increases correspondingly. It is clear that PMP's business is very successful and that the volume of material that they are endeavouring to distribute from Mrs Beaman's property has increased. I accept that during most months of the year the level of activity is relatively low but in busier times they should appreciate the level of activity could increase to a point where the number of truck deliveries and walker pickups might create an adverse impact on the amenity of the area.

106. In busy times this may involve some management arrangements by PMP to avoid excessive numbers of truck deliveries, and larger loads involving long unloading times. PMP's and Mrs Beaman's businesses are obviously successful, but it is the experience of the Tribunal that success, whether it be a hotel, a night club or any other business can lead to adverse amenity impacts. It would be desirable if the measures referred to in Clause 38 of Mrs Beaman's affidavit were maintained.