The decision in this case considered that the applicant's proposal met the cl 52.11 requirements and was capable of being conducted as a home occupation, subject to the home occupation being conducted on an on-going basis so as not to adversely affect the amenity of the neighbourhood. The decision discusses the neighbourhood amenity requirement in cl 52.11, as well as the requirement that no goods.

The decision also discusses the cl 52.11 requirement that no goods, other than goods manufactured or serviced in the home occupation, may be offered for sale. The term 'manufactured' in cl 52.11 must be given its ordinary meaning, which includes 'the making of anything'. In its context, particularly having regard to the limited scale of use envisaged by the overall requirements for a home occupation, the term 'manufactured' does not connote manufacturing in commercial/industrial quantities and can include the preparation of take-away coffee and food items made on the premises as part of the home occupation.

Planning and Environment Act 1987 s 149A; Brimbank Planning Scheme cl 52.11; definition and requirements for 'home occupation'; whether home occupation can include take-away food premises (preparation and sale of take-away coffee).

Lagas v Brimbank CC (includes Summary) (Red Dot) [2009] VCAT 568

1. Pursuant to s 149A of the Planning and Environment Act 1987, I declare that the proposed use of part of the subject land to prepare and serve take-away coffee can be characterised as a "home occupation" and does not require a planning permit, provided it continues to meet the requirements of Clause 52.11 of the Brimbank Planning Scheme.

1. The applicant seeks to convert part of his existing residence into a

"walk-up" coffee shop, predominantly to serve and sell take-away coffee. 2. The land is within a Residential 1 Zone under the Brimbank Planning Scheme with no Overlay controls. The land is on the southwest corner of Mulhall Drive and Clover Avenue in St Albans, in close proximity to Ginifer Railway Station. 3. The applicant's residence was historically a corner milk bar, and later a hairdresser shop, but has been used in recent years exclusively as a dwelling. It has long since lost any existing use rights as a shop. The applicant's intent is to sell take-away coffee from a walk-up window at the front corner of the dwelling, close to the street, and predominantly to commuters walking past the site to and from the railway station during the morning and afternoon peak periods. Minor external works are proposed, to reduce the height of the front fence, and to reconfigure a window with a roller shutter and service counter to create the walk-up facility. I am informed that the general appearance of the old shop front will not be substantially altered. 4. The applicant contends that the use will be a "home occupation", which is a Section 1 use in the Residential 1 Zone. If this is the case, a planning permit is not required for the use or the buildings and works. The alteration to the front fence would in any event be exempt under Clause 62 of the Brimbank Planning Scheme. 5. The responsible authority contends that the use is for a "take-away food premises" (a prohibited use in the zone). The responsible authority also submits that the use is inappropriate for the site. 6. The matter has been brought before the Tribunal as a prompt final hearing to resolve the characterisation of the proposed use. On 15 December 2008, Deputy President Gibson amended the application to be an application under s 149A of the Planning and Environment Act 1987 seeking the following declaration:

That the proposed use of the land to serve take away coffee can be characterised as a home occupation and does not require a planning permit.

1. Having heard from the parties and reviewed the submissions and materials provided, I consider that a declaration can be made to this effect, subject to a proviso in relation to continuing compliance with cl 52.11 of the planning scheme, particularly in relation to the protection of neighbourhood amenity. My reasons are summarised below.
2. "Take away food premises" is defined in all VPP-based Planning Schemes as follows:

Land used to prepare and sell food and drink for immediate consumption off the premises.

On its face, the applicant's proposal to prepare and sell take-away coffee meets this definition. If this proposal is characterised as a separate and distinct use of the land, and is not ancillary to the primary use of the land as a dwelling (having regard to cl 64.01 of the planning scheme) or not otherwise authorised by the scheme, it would be prohibited in the Residential 1 Zone.

1. "Home occupation" is defined in all VPP-based Planning Schemes as follows:

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

The second sentence in this definition is critical, and must be accorded its obvious meaning. A "home occupation" may include a use defined elsewhere in the planning scheme, even if that use might otherwise be prohibited or require a planning permit if characterised as a separate use of the land.

1. It follows that, even if the proposal here is capable of being characterised as a "Take away food premises" (as defined), or indeed any other defined use other than a brothel, that use is still capable of also being a "home occupation". This outcome ought not to be considered surprising. Indeed, it is the very essence of a "home occupation" - enabling a resident to conduct a small business enterprise from home, be it a professional office, dressmaker, home caterer, or a myriad of other occupations that might not be capable of being conducted separately in a residential zone. It is one of the ways of meeting the challenge of providing a greater diversity of home, work and life-style choices within our society, and thus meeting some of the basic objectives of planning under the Planning and Environment Act 1987.
2. When the broader planning scheme framework for a "home occupation" is considered, it is readily apparent that the assessment of a home occupation for planning purposes is predominantly one arising from the scale of use, rather than the type of use. That scale is clearly articulated in clause 52.11 of all VPP-based planning schemes, which sets out the requirements that must be met by a home occupation. Clause 52.11 clearly constrains the definition of "home occupation" by essentially setting the level or scale of a home occupation, beyond which it will be considered a separate and distinct use of the land where the use must separately comply with the planning scheme.
3. It follows that if a use meets the requirements of clause 52.11, it can be characterised as a "home occupation" (and thus be a Section 1 use in the Residential 1 Zone), even though it may also fall within another defined use such as "Take away food premises". The responsible authority's view of the appropriateness of the use for the land does not therefore become relevant, as the use at this scale is considered by the planning scheme to be "as of right". If, however, the use does not meet the requirements in clause 52.11 and exceeds the scale imposed by those requirements, the use is regarded as a separate use of the land and must separately comply with the planning scheme.
4. In the present case, I consider that the proposed use of the land for the serving and sale of take-away coffee does meet the requirements of clause 52.11 of the planning scheme. I will deal with these in turn:
   • (a) The person conducting the home occupation must use the dwelling as their principal place of residence - this is conceded by the responsible authority. The applicant has confirmed that the balance of the dwelling will continue to be used as the principal place of residence.
   • (b) No more than one person who does not live in the dwelling may work in the occupation - this is conceded by the responsible authority. The applicant has confirmed that not more than one additional person would be employed as part of the proposal.
   • (c) The gross floor area used in conducting the occupation including the storage of any materials or goods must not exceed 50m2 or one-third of the gross floor area of the dwelling, whichever is the lesser - although the responsible authority submitted that the proposal may not comply with this requirement, I am satisfied on the material provided that the applicant only proposes to use 14m2 of internal floor area for the purpose of the home occupation within a total floor area of the building of approximately 85m2.
   • (d) The occupation must not impose a load on any utility greater than normally required for domestic use - this is conceded by the responsible authority. It is unlikely that the scale of operations will impose any material load on utility services.
   • (e) The occupation must not adversely affect the amenity of the neighbourhood in any way - I will deal with this item separately, below.
   • (f) No motor vehicle may be serviced or repaired for gain - this requirement is not relevant to this proposal.
   • (g) Only one commercial vehicle, not exceeding 2 tonnes capacity may be present at any time. The vehicle must not be filled or repaired on the site - although the responsible authority submitted that the proposal may not comply with this requirement, I am satisfied that the level of likely deliveries to the site will be minimal and it is most unlikely that two or more vehicles would make deliveries (and thus be present) at the same time. The applicant can manage the home occupation to avoid this outcome.
   • (h) No goods other than goods manufactured or serviced in the home occupation may be offered for sale - I will deal with this item separately below.
   • (i) Materials used or goods manufactured, serviced or repaired in the home occupation must be stored within a building - this item was not contested by the responsible authority for this proposal.
   • (j) No goods manufactured, serviced or repaired may be displayed so that they are visible from outside the site - I do not agree with the responsible authority that the proposal fails this requirement. I am satisfied, on the material provided, that the coffee making facilities and ingredients will not be visible externally from the walk-up window, and certainly not visible from outside the broader site. I note that this requirement only refers to the display of goods. The visibility of people entering the site, or people leaving the site with a purchased item (i.e. in this case, a cup of coffee in its take-away container), is not caught by this item.
5. There are two requirements above that I have indicated I will deal with separately, and that warrant a slightly more detailed discussion.
6. First, as indicated in sub-paragraph (e) above, the home occupation must not adversely affect the amenity of the neighbourhood in any way, including by reference to a number of non-exhaustive criteria set out in clause 52.11. These criteria include the appearance of the building, works or materials used, the parking of motor vehicles, the transporting of materials or goods to or from the dwelling, the hours of operation, and emissions from the site.
7. It is difficult for me to state with certainty, in relation to a proposed use that has not yet commenced, whether or not that use will adversely affect the amenity of the neighbourhood. However, there is no reason per se, in the way the proposal has been described to me by the applicant, to indicate that it could not be conducted on a basis that does not adversely affect neighbourhood amenity. The existing dwelling already has the appearance of an old corner shop (reflecting its former use). It will operate for limited hours in the morning and afternoon peaks at a relatively busy intersection close to a railway station. It is likely to cater predominantly to pedestrian traffic, and will need little in the way of deliveries to or from the dwelling. Although not necessarily required, a car space is provided.
8. In expressing a view on likely amenity impacts, the responsible authority focussed on the negative aspects of amenity. Amenity is however a nebulous concept relating to the pleasantness or agreeability of one's surroundings. Some in the neighbourhood may consider the availability of a take-away coffee facility adjacent to the railway station to be nett positive for the neighbourhood in amenity terms.
9. The applicant nonetheless bears the risk of meeting the neighbourhood amenity requirement in clause 52.11. If the applicant's proposed home occupation becomes successful to the extent it attracts a high number of customers by vehicle, or creates undue noise emissions or other adverse amenity impacts, then it may fail the neighbourhood amenity test in clause 52.11. In such event, the use would effectively become a separate use of the land as a "Take away food premises" and thus be a prohibited use on the land.
10. In this sense, the applicant is in no different position to any other user of land who must conduct his or her use on an ongoing basis so as to make sure it remains within the confines of a use definition or scheme requirement or permit condition. Indeed, there are many examples of other uses in zones within the planning scheme that are subject to a general requirement that the use must not adversely affect the amenity of the neighbourhood. I cannot assume that the applicant will not comply with the planning scheme requirements in this case, and nor should the responsible authority make such an assumption at this stage. The applicant here is well aware of the responsible authority's concerns that the use could intensify to a level where it might impact adversely on neighbourhood amenity, and the risk to his business if that was to occur. The applicant is perhaps in a curios position where he cannot let his walk-up coffee enterprise become too successful, lest he become a (planning) victim of that success. He must ensure that the scale of the use remains within the clause 52.11 requirements on an on-going basis. The applicant should not read into this determination any implication that I endorse the use of the land for the preparation and service of take-away coffee at any scale, or that the use may lawfully intensify over time beyond the scale set by the clause 52.11 requirements.
11. The second matter warranting further discussion arises from sub-paragraph (h) above in the clause 52.11 requirements, namely that no goods, other than goods manufactured or serviced in the home occupation, may be offered for sale.
12. I do not agree with the responsible authority that the proposal fails this requirement simply because the grinding of coffee beans and making of coffee is not in its view a "manufacturing" process, and that what would be required here is the home roasting of coffee beans on a commercial scale. The term "manufactured" in clause 52.11 is not a defined term and is therefore to be given its ordinary meaning. By reference to the Macquarie Dictionary (4th Edition), "manufacture" can in its context include "the making of goods or wares by manual labour or machinery, especially in large quantities" or, indeed, "the making of anything". Assuming that food and drink are goods, I am satisfied that food and drink preparation such as the making of a cup of coffee falls within this requirement.
13. Many home caterers prepare cakes, cocktail platters or meals as a "home occupation". The making of a cup of coffee is, at a base level, no different to other food preparation, with the mixing of ingredients together to create a product that can be offered for sale. I do not agree with the responsible authority that the use of the term "manufactured" in this provision connotes a process of production at commercial/industrial quantities. To my mind, that runs counter to the more limited scale of a "home occupation" intended by the requirements in clause 52.11 and the way in which those requirements are applied to other common forms of home occupation.
14. The applicant has indicated that he proposes to offer a small amount of food (e.g. biscuits or doughnuts) in conjunction with the sale of the take-away coffee. To meet this aspect of the clause 52.11 requirement, those food items must also be made on-site as part of the home occupation in order to be offered for sale as part the home occupation use. The applicant cannot offer for sale goods (including food items) not made as part of the home occupation within his dwelling.

1. The responsible authority expressed concern that the proposal in this case was inappropriate for the land in a Residential 1 Zone, and intimated that it would be an adverse precedent for land in a Residential Zone to be capable of being used as a take-away coffee outlet in the manner proposed. That may well be so, but it is not a matter that I am called upon to determine. If small-scale take-away food premises are to be considered an inappropriate form of home occupation, it is a matter for the policy makers and drafters of the planning scheme to impose an additional restriction on "home occupation" to restrict or regulate the use. I must however apply the planning scheme as I find it.
2. If the proposal meets the definition and requirements for a "home occupation" or is capable of meeting those requirements (as I believe it is in this case), it is a Section 1 use and issues of its appropriateness from a broader planning policy perspective do not arise for my consideration.
3. On the evidence and submissions before me, I am satisfied that the proposed use of the land to serve take-away coffee can be characterised as a home occupation and does not require a planning permit, provided it continues to comply with the requirements in clause 52.11 of the Brimbank Planning Scheme. The applicant must ensure that the home occupation is conducted so as not to adversely affect the amenity of the neighbourhood.

[1] The applicant has indicated that he proposes a small identification sign. A "home occupation sign" does not require a planning permit provided the advertisement area does not exceed 0.2m2. A larger business identification sign would require a planning permit under clause 52.05-9.