Malcross Investments PL v Hepburn Shire Council

Malcross Investments PL v Hepburn Shire Council - [2005] VCAT 1435 - VCAT 2005 case summary — Zoe

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33 Cross' first proposition is that the use should be characterised as Bed and Breakfast for more than six persons. But no Parma Pensione website advertising their existing buildings seeks more than four persons, and the primary desire seems to be for two only per building. Parma Villa with three bedrooms is advertised as sleeping four persons. Given that the proposal is a one bedroom dwelling only, I cannot see how more than six persons could be accommodated therein under the designation "Bed and Breakfast for more than six persons." I discuss bed and breakfast characterisation later.

34 Otherwise Cross says it should be characterised as Group accommodation (Section 2 Use), in conjunction with Villa Parma next door and Parma Studio. Mr Cross maintains the dominant use of the land is for the conduct and operation of the respondent's Villa Parma business.

35 Cross' second proposition is that the attic storage and garden shed component of the proposal are not ancillary to the dwelling applied for, but are part and parcel of the tourist accommodation business conducted at Villa Parma and Parma Studio ("Parma Pensione"). He submits the size of the attic store is out of proportion to the size of the 124m² dwelling proposed and is in fact ancillary to the dominant use of the land as tourist accommodation. He says the garden shed is ancillary to the Italian garden that is in turn part of the tourist accommodation.

36 Cross' third proposition is that the attic component is being constructed for the subversive collateral purpose of blocking views to the north from Cross' Day Spa Centre.

37 Alternatively, Cross argues even if the dwelling is "a dwelling" the garden shed is not ancillary to it but to the garden attached to Villa Parma and therefore needs a permit under Section 2 as an innominate use.

38 Alternatively, Mr Cross argues even if the dwelling is "a dwelling", if the attic store is not ancillary to the dwelling underneath it, but to the Villa Parma Pensione operation, the same applies. That is to say a permit is required, but not for "store" as defined in the residential 1 zone, because that definition reads:

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41 Although I was presented with very illustrative photographs at the hearing, I was specifically asked to inspect the site, which I did on Sunday 26 June and Sunday 17 July 2005, and I record my observations. My site inspections confirmed the photographs.

42 The seven Rigby lots are a very low-density operation. There are presently three buildings on seven allotments, another two of the latter enjoying permits for dwellings. The five Cross lots are an intense, high density operation. Springs Retreat large car park to the rear, as well as kerbside parking, was full when I inspected on both Sundays.

43 Notwithstanding the five large allotments enjoyed by Springs Retreat, the Day Spa Centre component of Springs Retreat is located as close as possible to Villa Parma's land and as close as possible to what is supposed to be its tranquil and secluded garden retreat.

44 There was minimal and deciduous landscape screening of this elevated Spa Centre in the pebbled side setback from Rigby's. The evergreen screen that exists consists of pine trees planted by Rigby on his boundary.

45 The Spa Centre sits atop its staff room, pool pumps and filtration system and equipment.

46 The Villa Parma's gardens are very beautiful and fastidiously maintained. Its proprietors have created 'garden rooms' by segmenting the land into portions, with each portion conveying a different theme. One portion's hedges are heavily sculpted into Italianate shapes. Other portions contain a vegetable garden, next is a private retreat with realistic looking bird life feeding on the grass, next is a BBQ area, then a vineyard, and other portions again give more distant corridor views to statuary. I have not described each and every portion.

47 Each portion is secluded from the other by evergreen pines, hedging or a thick deciduous hedge of trees. It is a remarkably built garden, which would take an enormous amount of imagination, effort, time and labour to create and to then maintain.

48 The main sculpted garden is on the subject site. There is a small shed on Villa Parma's lot, which services this garden. Mr Cross erected wide bamboo tubing to screen Rigby's garden shed from view of the Day Spa centre.

49 The Italian sculpted garden and the vegetable patch abut the Day Spa component. In the vegetable patch and on the paths, I could clearly hear the sound of guests revelling and discussing their health or the water temperature in the open-to-air plunge pools, which are elevated. Walking through the gardens generally, I could clearly hear not only laughter but also normal voices from the open-to-air plunge pools travel across Mr Rigby's entire backyard and garden including past the Parma Studio component of his property.

50 It was only behind the solid building of Parma Studio that the noise from the Day Spa Centre abated somewhat.

51 The Day Spa Centre appears double storey and is clearly seen from within the Rigby property, given its proximity to the common boundary. The Day Spa Centre overlooks the entire Rigby property. The rooms of the Day Spa Centre which overlook at very close range are the open-to-air relaxation deck, two open-to-air mineral water spa pools maintained at 37 degrees Celsius, and a third cold water plunge pool maintained at 24 degrees Celsius.

52 Views from the Day Spa Centre can be had over Hepburn Springs in the distance, over neighbouring buildings and roofs and directly over Villa Parma.

53 The Day Spa Centre borrows heavily from Villa Parma's magnificently landscaped outlook of interconnected rooms without giving back any landscaping or landscaped screening in return for such an intense commercial use with elevated open-to-air pools.

54 The Day Spa Centre significantly intrudes upon Villa Parma's privacy and disturbs Villa Parma's seclusion and attempts at tranquillity, which appears to me what a tourist operator tries to give clients in this district.

55 Views can also be gained from within the clay soft-pack treatment rooms, but the blinds remain drawn to protect Cross' guests' privacy.

56 There are connecting pathways between all three Rigby buildings to its garden on Lot 1:

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58 I am not surprised about the proposed dwelling's 37 metre setback from Main Road and access of the rear laneway off Tenth Avenue, given the magnificent Italian garden with which one would not wish to interfere.

59 As for Mr Cross' charge that the attic component is being constructed for the subversive collateral purpose of blocking views to the north from his Day Spa Centre, I think the dwelling with 45 degree attic roof and the garden shed with 4-metre high parapet wall are designed to block overlooking and noise interference from Mr Cross' open-to-air plunge pools. But if it is a section 1 dwelling use, this purpose cannot be challenged, as it is not an ESO2 consideration.

60 This type of A-frame construction with Swiss style 45-degree pitch roof form is not the first construction of its type in the area. A neighbour at 18 Tenth Street, Rainbow's End, enjoys the same style in what is distinctly a private dwelling.

61 Parma studio is not a corrugated iron zincalume cladded outbuilding because it clearly looks like a building accommodating persons. It appears to me to require retrospective planning permission for use as a tourist establishment or dwelling.

62 I do not wish to bind any other decision maker about its characterisation as a tourist establishment, group accommodation or dwelling, as I did not enter this building. It appeared very low scale, consistent with a single detached dwelling, with its own driveway access and on a separate allotment of land. It is only the advertising as Parma Studio that takes away its single dwelling character. Parma Studio's advertising describes its accommodation for one couple only with 'breakfast provisions provided' as part and parcel of the Parma Pensione accommodation. It is associated with and on the same advertising postcard and website as Villa Parma.

63 But the dwelling on Lot 6 is not so associated. If, as represented at the hearing, the new building on Lot 6 PS 96329 is used as a dwelling by the manager of Villa Parma, that would explain its connectivity through the Parma gardens and still not detract from its characterisation as a dwelling. It is on its own allotment, has its own rear car access and looks like a single detached dwelling.

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100 I find the dwelling and shed to be what they are represented in the application, shown on the plans, and deserving of a permit for just that, for the following reasons.

101 The A-frame 45-degree pitch roof Swiss Chalet style construction is similar to its neighbouring home at 18 Tenth Street.

102 Although Rigby appears to be unlawfully using a building on Lot 2 with only an outbuilding permit as part of the advertised Parma Pensione, he also owns another dwelling on Lot 6 which is not so advertised and appears lawfully used as a dwelling. So I cannot assume he will use the proposed building unlawfully.

103 A shed with dimensions of 2.2 m x 6 m is not out of all proportion or inconceivable as an outbuilding to a dwelling.

104 The first floor attic can always be used by the resident of the dwelling for study, rumpus room or gymnasium purposes so its size is not necessarily unusual. Even if it is used as storage, that is not inconsistent with its designation as a dwelling.

105 I am tightening council's condition for creation of easement access from the rear ROW off Tenth Street, which provides lawful independent access appropriate to this dwelling. Many other neighbours use this vehicle access.

106 I am tightening permit conditions generally. I am requiring by way of condition that a physical separation be created to the satisfaction of the Responsible Authority, separating the shed and dwelling from the Italian garden tourist component, so one can see it is on a different planning unit. The physical separation can be vegetation, it need not be solid structure.

107 Given the extent of overlooking, noise disturbance and invasion of privacy created by Mr Cross' development, I am not surprised at the chosen dwelling and shed design.

108 There is no reason under ESO2 to deny it a permit as the site is sewered.

109 The dwelling cannot be incorporated into Parma Pensione without being in clear breach of its permit, readily ascertainable from the nature of its occupant.

110 Finally, the dwelling cannot be advertised anywhere as part of the Parma Pensione accommodation (in the manner of Villa Parma and Parma Studio currently) without being in breach of its permit.

At a glance

Court

Decision date

Source

Judgment (92 paragraphs)

Malcross Investments PL v Hepburn Shire Council (Red Dot) [2005] VCAT 1435 (18 July 2005)

Parties

Legislation Cited (1)

Cases Cited (1)