1. The decision of the responsible authority in relation to permit application no. P/2003/7534/B is varied.
2. Planning Permit No. P/2003/7534/B is amended and an amended permit is directed to be issued for the land at 43 Power Street, Bayswater. The permit is amended as follows:
   1. The preamble to the permit is amended to read:

• Four factory / warehouses with part of factory 1 to be used as an office.

1. Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing the ground floor of factory 1 to be used as office.

3 All other amendments sought to permit No. P/2003/7534/B are refused.

Ms Claudia Tonelli, Town Planner of Glossop Town Planning.

Amendment to an existing permit for four factories to use one factory, now on separate title for use as a caretakers dwelling and office. The proposal also includes conversion of a communal area of landscaping in front the building to a secluded lunch area for workers of the factories.

Application under Section 77 of the Planning and Environment Act 1987.

cl. 33.01- 1 Use and development of a caretakers dwelling in an industrial zone.

cl. 33.01 - 1 use of an office in an industrial zone.

cl. 33.01 - 4 buildings and works in an industrial zone.

cl. 10, 11, 15.01, 17, 21.01, 2.102, 21.03, 21.07, 22.02, 33.01, 52.06 and 65.

43 Power Street contains four factories on separate titles with common property that contains car parking and landscaping to the front. Three of the factories are currently used for two different timber component production companies. The first factory is used as an office and caretaker's house (without planning permit).

Land to the north, south and east is industrial and used for general industrial purposes. This includes a car wreaker to the immediate south east of the site.

To the west is the Ferntree Gully railway line with residential development to the west of this railway line.

Intex Pty Ltd v Yarra CC & Anor [2002] VCAT 472 (17 July 2002)

Jablonski v Port Phillip CC [2004] VCAT 1781 (10 September 2004)

Eckersley v Yarra CC [2004] VCAT 826 (10 May 2004)

1. Mr Laukart is the sole director of a number of companies, including Civic Home Improvements (Vic) Pty Ltd that operates an office from factory 1, 43 Power Street, Bayswater. This factory building is owned by Mr Laukart in his personal name[2]. He has established the office without a planning permit and also converted part of the building to a caretaker's house where he is now living. He is seeking a retrospective planning permit to enable him to continue these uses within factory 1, along with alterations to the area of landscaping in front of factory 1 to form a secluded BBQ and deck area. Knox City Council has refused to issue an amendment to the permit for any of these changes.
2. From submissions made at the hearing and material presented I find the key issues I need to determine are:

1. Should a caretaker's house be able to establish in Factory 1 having regard to the purpose of the use and the zone? 2. Should an office be able to establish in Factory 1?

1. Are the alterations to the front landscaping to the building appropriate?
2. The Tribunal must decide whether the amendments to the permit should be granted. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Knox Planning Scheme, I have decided to generally affirm the decision of Council. I find a caretakers house on the factory 1 site is untenable, however, I am satisfied that factory 1 may be used as an office. I further find there is insufficient rationale to enclose and alter the landscape area from in front of factory. My reasons follow.

Should a caretaker's house be able to establish in Factory 1 having regard to the purpose of the use and the zone?

1. Mr Skinner submitted the purpose of the caretakers is to enable Mr Laukart as owner of the business at 1/43 Power Street and adjoining businesses to supervise operations of the site and other business on the adjoining titles both during business hours and as a security guard at night.
2. A caretaker's house is defined in the planning scheme as "a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation, or plant"[3]. By definition the dwelling is not then simply to house a person who may work or operate the business but is a supervisor of the operation on the same site. As identified in Eckersley v Yarra CC[4] to "supervise" is "to oversee during execution or performance", on the site where the business is conducted. I find there therefore needs to be a sense of proportion and relationship between the scale of the dwelling and the scale of the business operation it is supervising that requires the dwelling to be located on site.
3. From the material provided by Mr Skinner, and as explained in Paragraph 1, it is clear that Mr Laukart is an owner of factory 1, from which he then operates a company Civic Home Improvements (Vic) Pty Ltd. The office component of this factory is proposed to be approximately 83 sqm with a first floor two bedroom unit comprising approximately 163sqm above. The ground floor also includes a garage and storage area that Mr Skinner advised included storage of prestige cars unrelated to the business.
4. I find that it there is insufficient nexus to substantiate that a 163sqm dwelling is required to oversee and supervise work in an 83sqm office that is contained within factory 1. The primary purpose of the site should remain a business, not residence. I therefore find that a caretaker's house cannot be substantiated for the use of 1/43 Power Street alone. This was also acknowledged by Mr Skinner in his verbal submissions at the hearing.
5. Mr Laukart also owns two other businesses, Westwood Timber Pty Ltd and Reproduction Mouldings Pty Ltd. Westwood Timber Pty Ltd operates from factories 2 and 3 of 43 Power Street and Reproduction Mouldings Pty Ltd operates from factory 4 of 43 Power Street. Mr Skinner submitted that Heino Laukart Superannuation Fund Pty. Ltd owns factories 2, 3 and 4.
6. Mr Skinner submitted that because Mr Laukart is the sole director of the three other businesses that operate at 43 Power Street and the superannuation fund that owns three of the factories, there was a direct and effective control of the entire site by Heino Laukart and Civic Home Improvements as a parent company. He submitted that this, combined with the role Mr Laukart takes in monitoring security of the four businesses from his dwelling provided a supervisory nexus between his dwelling and the four businesses.
7. I find there is no binding link between the ownership of the four factories or between the ownership of the three companies that operate from the four factories. From information tabled, Mr Laukart appears to be the sole director of the companies and the superannuation fund that owns the businesses and the buildings, but there is nothing to require that any of these businesses must be retained in common ownership or that the buildings cannot be separately sold by either Mr Laukart or his superannuation company. The factories are in four separate titles and the businesses are separate entities that happen to be owned by the same person. Whilst Mr Skinner stated Mr Laukart provides security that is monitored to his dwelling the only business he is directly supervising 'on site' is his office within 1/43 Power Street. The others are immediately proximate, but no 'on site'.
8. Mr Skinner submitted that an agreement could be entered into to link the caretakers dwelling with the four factories. This approach was undertaken in Jablonski v Port Phillip[5] where Member Marsden imposed a condition on the permit that an agreement be entered into to require that "the dwelling on the land shall only be used for a Caretaker's house for occupation by a supervisor of the existing use of the building, or other subsequent use of the building...[6]"
9. Mr Skinner suggested that in demonstrating that the caretaker role is proportional and sufficiently supervisory it would need to link at least two of the titles, although he did not indicate whether it would be factory 2, 3 or 4 that would link with factory 1 that contains the caretaker's house.
10. I find such an arrangement too convoluted and demonstrates that it is not that the caretaker's house is an integrated part of supervising the business on site, but convenient that the owner of the current tenancies across four sites is close to each of the business. If an agreement were entered into I remain unclear as to how it could effectively work in practical circumstances. The agreement would need to be between at least two different businesses (e.g. the tenancies of factories 1 and 4) and two different owners (as the owners of these two factories are different). It would then need to bind both the owners and the tenants that the separate businesses must operate together and across two separate titles. I find this an untenable position and not the intent of the caretaker's house provision which is to provide for a person to live 'on site' to supervise operations occurring where the business is held.
11. Further I find that such a house needs to be considered in context of maintaining a viable operation not only of the business on site, but also the nearby businesses of the Industrial 1 area. In this location there is car wreaker immediately to the south east of the site that has significant off site amenity impacts.
12. Mr Skinner noted that a permit applicant does not have to demonstrate a need for a caretaker's house on site[7], only that it provides a supervisory role. I agree that the planning scheme does not require need to be demonstrated, but it does require some understanding that the business on site is of a scale or form that requires support of an on site caretaker to distinguish the dwelling as primarily for taking care of the business, rather than primarily to provide general accommodation as a dwelling. In this site context, the site of 1/43 Power Street clearly does not support a caretaker's house for the business within this site, even by Mr Skinner's own admission. Linking titles on the site to in effect make up a 'critical mass' of caretaker role I find a tenuous demonstration of how the house is necessary to the needs of the business 'on site'. In this location where there is substantive industrial uses, I find there is greater onus on demonstrating that the house is a necessary part of the business, rather than simply convenient to be close by.
13. On balance of the impacts to these adjoining businesses and the lack of supervisory nexus as explained above I find that the use and development of the caretakers house Factory 1 cannot be supported.

Should an office be able to establish in Factory 1?

1. Ms Tonelli submitted that Council was not opposed to the notion of an office locating in Factory 1, provided it was part of the broader establishment of the factory use across all for factories that comprise 43 Power Street. The proposed office comprises the ground floor area of factory 1 and exceeds more than 10% of the building. I find the office needs to be considered as a separate use to the other three factories at 43 Power Street as again this office use is for a separate business on a separate title to the other factories. However, I find this is a use that can better sit in an industrial context than a caretaker's house, given that is not for residents living on site all day, every day of the week.
2. I am satisfied that the potential amenity conflicts between an office use at 1/43 Power Street and adjoining industrial uses will be small. I am also satisfied that given the scale of the office it will not detract from broader strategic objectives of Council to direct primarily industrial uses to the industrial zone.
3. Ms Tonelli noted that Council was satisfied that the change in use to office would not result in any significant car parking shortage. I therefore find that factory 1 of 43 Power Street can be used for a factory. The approval of this part of the amendment will require alteration of plans submitted to Council to remove the caretakers house use in 1/43 Power Street to only office. This change will need to be submitted to Council for endorsement.

Are the alterations to the front landscaping to the building appropriate?

1. Mr Skinner submitted the front landscape area, that forms part of the communal property of the site has been altered to include an outdoor deck and BBQ area with an enclosed screen fence to provide an outdoor lunch space for staff of all four factories.
2. Clause 22.02 of the Knox Planning Scheme provides specific direction to establish landscaping to the front of industrial properties. This includes a performance standard that buildings and car parking areas are to be set back a minimum of 7.5 metres from the street. This leaves the front 7.5m for use as landscaping to achieve the objective of Council to establish green leafy spaces and a garden industrial setting. The existing building has been setback in accordance with this policy and the front setback designated as landscaping in the original permit issued for development of the four factories.
3. The local policies of Council in relation to this matter are clear. The street does appear to maintain a generally consistent setback with use of most front areas as an amenity buffer to the street, often with landscaping to achieve a "green leafy" image as sought by the objectives of the municipal strategic statement. I acknowledge that some of the older nearby sites have poorer landscape outcomes, but I do not find this is a reason to further reduce the area set aside for landscaping to the street.
4. I find no overriding or specific need for an outdoor BBQ area for staff in the front yard of an industrial complex. I therefore do not support the proposed amendment to plans to include a deck and BBQ area. I accept the high picket fence may be necessary for security and provided it is retained as visually permeable with the building setback retained as landscaping, I am satisfied the fence can stay. However, landscaping should be reinstated as a front landscaped area to the street.
5. The original permit issued in 2004 details "landscaping" in the front setback but does not include any details of what this is. Condition 4 of the permit requires a landscape plan to be prepared and endorsed with landscaping then constructed in accordance with this plan. I am unaware if this plan was ever endorsed and landscaping constructed. This is a matter for Council to address as part of implementing the existing planning permit.

1. Whilst I find that a caretaker's house may provide benefits to the landowner of 1/43 Power Street, Bayswater I find these benefits do not outweigh the potential amenity costs to the adjoining industrial businesses and the possible consequences to orderly planning. I find there is insufficient nexus between the use of a caretaker's house in 1/43 with the office use in this building and an untenable link between the occupation of 1/43 as a caretaker's house to oversee supervision of separate businesses on adjoining titles.
2. I am satisfied that plans can be amended to use factory 1 as an office, but will require that the front setback of the building is retained as landscaping that is visible to the street as part of the garden industrial objectives of Knox City Council.
3. I therefore will allow the amendment to the permit in part by accepting the alteration to include an office in 1/43 Power Street. All other amendments are refused.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Mr Skinner submitted the factory is in Mr Laukart's name. The title submitted with the application indicates 1/43 Power Street was owned jointly with Ms Noreen Laukart, as referred to in the title dated 18/11/2009. I assume, based on Mr Skinner's submission that this ownership has since changed.

[3] Clause 74 of the Knox Planning Scheme.

[4] Eckersley v Yarra CC [2004] VCAT 826 (10 May 2004)

[5] Jablonski v Port Phillip CC [2004] VCAT 1781 (10 September 2004)

1. [7] See Intex Pty Ltd v Yarra CC & Anor [2002] VCAT 472 (17 July 2002) Jablonski v Port Phillip CC [2004] VCAT 1781 (10 September 2004)