Planning and Environment List; Villa Parma tourist establishment; application for dwelling; characterisation; whether building a dwelling or tourist/group accommodation; garden on subject land enjoys existing use rights as part of tourist establishment; whether continued use of garden in conjunction with tourist use disqualifies building and shed from characterisation as a dwelling; planning unit test.

[2005] VCAT 1435

1 The decision of the Responsible Authority is varied. A permit is granted and directed to be issued by the Responsible Authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at Lot 1, PS 96329 which allows construction of a dwelling and garden shed generally in accordance with the endorsed plans. The Tribunal directs that the permit must be subject to the conditions contained in the notice of decision to grant a permit No. 2004/8181 issued by the Responsible Authority on the 19 November 2004 subject to the following modifications:

Before the development commences, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans by W.A.Q. Drafting & Building Maintenance Project No. 04010 Dwg No.1 Amended 26/10/04; Dwg Nos. 2, 3, 4 & 5 all dated 13-8-04 & Dwg No. 7 dated 2/11/04; but modified to show:

a

a side setback a minimum of 1 metre for the garden shed;

b

a physical separation between the dwelling and shed and the remainder of the allotment to the satisfaction of the responsible authority.

ii

Condition 2 must read:

The layout of the site and the size and internal layout of the building and works as shown on the endorsed plan must not be altered or modified without the written consent of the Responsible Authority.

Before development commences, the owner of the land must enter into an agreement with the Responsible Authority pursuant to the Planning and Environment Act 1987, section 173 which agreement must provide that the registered proprietor of Lot 2 LP 96329 must not transfer that lot save under an arrangement whereby a 3 metre wide easement of carriageway is created in favour of Lot 1, PS 96329 generally in accordance with the access way depicted in the plans endorsed under this planning permit, with the intent that the agreement is registered pursuant to s.181 of the Planning and Environment Act 1987, as an encumbrance on both lots. A memorandum of the s.173 Agreement is to be entered on both titles and the cost of the preparation and execution of the Agreement and entry of the memorandum on title is to be paid by the owner.

iv

The remaining conditions must be retained and renumbered as made necessary by the above modifications.

2 Costs reserved.

3 Liberty to apply only in respect of a costs application.

1 Any party that wishes to make an application for costs must prepare, within thirty days of Monday 18 July 2005:

i

a detailed bill of its legal costs and disbursements (as they were billed to the client and not in taxable form);

ii

the scale of costs it seeks;

iii

the persons against whom it seeks those costs or part of them;

iv

its submissions on costs.

2 The party seeking costs must serve a copy of the above documents upon all parties and upon VCAT within seven days thereafter, and provide proof of service upon all parties to VCAT within seven days after service.

3 Parties must prepare their submissions in response within thirty days of service upon them of the costs application made against them.

4 Parties preparing submissions in response must serve a copy of their submissions in response upon all parties and upon VCAT within seven days after the elapse of time in Direction 3 above, and provide proof of service to VCAT within seven days after service.

5 The party seeking costs must serve any reply to the responses within fourteen days of service upon them of the parties' responses. Such service must be made upon all parties and to VCAT with proof of service to VCAT.

1 This is a dispute between neighbours who are abutting tourist establishment operators. Mr Rigby ("Rigby") operates the heritage listed Villa Parma at 128 Main Road Hepburn Springs and Mr Cross ("Cross") operates the Springs Retreat[1] with Conference Centre and Day Spa Centre next door. Both Villa Parma and Springs Retreat enjoy a heritage overlay, but the subject site, which is next door at Lot 1, PS 96329 ("Lot1"), does not.

2 The subject site's zoning is Residential 1, ESO Schedules 1 & 2 but dwelling and shed only require planning permission under the ESO2 overlay. The ESO1 overlay protects the ground water and water catchment. No permit is required under ESO1 if the site is sewered, which it is.

3 The ESO2 overlay protects the water catchment and mineral springs, but as yet, a planning scheme amendment designed to exempt sewered sites from planning permission under this overlay, has not been gazetted.

4 The Responsible Authority, which granted the permit, agreed that as this site is sewered, the proposal will not impact the mineral springs.

5 The objector reviews council's the decision to grant a permit for a dwelling and shed, based upon characterisation of the use and upon amenity grounds (loss of views, building bulk, neighbourhood character).

6 Rigby, the operator of Villa Parma on Lot 1 PS 76301 at 128 Main Road applied for a planning permit for

7 Lot 1 C/T 8956/864 is Lot 1 on Plan of Subdivision PS 96329 ("Lot 1") and is a different allotment to Villa Parma at 128 Main Road which is Lot 1 on a separate plan of subdivision, namely Lot 1 PS 76301.

8 If these proposed buildings are just a dwelling and garden shed, no planning permit is required for anything other than its construction under the ESO2 overlay, because a dwelling with ancillary garden shed have automatic use rights under the R1 zone and under the ESO1 if sewered.

9 Its Residential 1 zoning automatically permits the use and development of one detached dwelling. Use of a dwelling for a bed and breakfast accommodation for not more than six persons is also automatically permitted, provided one car park is supplied for each two persons invited.

10 Council gave public notice of the permit application describing the land affected as:

128 Main Road Hepburn Springs Lot 1 PS 96329

instead of just Lot 1, PS 96329 or Lot 1 Main Road Vol 8956 Fol 864, which was the address applied for. 128 Main Road is the address of Villa Parma but is not the address the subject of the application.

11 The neighbour Mr Cross, of Springs Retreat, objected. When council gave notice of its decision to grant a permit on the basis of it being a section 1 automatically permitted use under the R1 zone and not affecting ESO2, Mr Cross through his company Malcross Investments PL reviewed its decision to this Tribunal.

12 Rigby applied to Gibson DP to strike out Mr Cross' review, on the basis that Mr Cross' grounds, based upon amenity considerations, were neither relevant nor open under the limited purview of the ESO2 considerations.

13 Rigby's strike out application was based upon a similar application successfully made by him before Morris, J on 7 May 2004 in Lewand v Hepburn SC [2004] VCAT 834 concerning an application for a detached dwelling also recorded as concerning land at address 128 Main Road but abutting Ms Lewand's premises.

14 The Morris, J decision on 128 Main Road concerned Lot 5 PS 96329 which lies next door to Ms Lewand's premises at Lot 4 PS 96329. This Lot 1 review concerns Lot 1 PS 96329 which is three properties away from Ms Lewand.

15 Morris, J found that Ms Lewand's amenity grounds of review were:

not within the scope of discretion available to the tribunal under the ESO, and the range of relevant considerations was confined to the matters identified in the specific provisions pursuant to which a permit was required.

16 On 21 January 2005, Gibson DP refused to strike out Mr Cross' review, considering the question of characterisation of use arguable and listed it for hearing.

17 The question of characterisation was not argued before Morris, J. The assumption was that the proposal was for a detached dwelling.

18 Council agreed that if it was not a detached dwelling with ancillary attic roof storage and ancillary garden shed, but rather a tourist establishment or group accommodation, it would have considered an entirely different range of factors under the planning scheme, including matters of neighbour's amenity. However, given the characterisation in the permit application it felt constrained by the ESO2 controls and the Morris, J decision of 7 May 2004.

19 Rigby applies for a one bedroom self contained dwelling in a building with 45 degree pitched roof form set 37 metres back from the Main Road street frontage with no Main road vehicle access. Access is obtained off a ROW off Tenth Street to the rear. The building sits within the Rescode envelope.

20 The 37-metre setback contains a beautifully sculpted Italian garden. The building's 124 m2 ground floor area contains kitchenette, lounge/living, meals area and bathroom cum laundry. At first floor level is a 124 m2 attic store. It is described as ceiling space storage. Rigby also applies for a garden shed with a 4 metre high parapet wall.

21 On 26 October 2004 amended drawings were provided to the Responsible Authority because of Cross' concern that Rigby was gaining access over Cross' land Lot 12 PS96329 which lies off a rear right-of-way which in turn lies off Tenth Street.

22 The 26 October 2004 covering letter adverts to a future proposal by Rigby to consolidate Lot 1 (subject site) and Lot 2 (Parma Studio) with Lot 1 of Villa Parma, which gains access from Main Road. This is not part of the present application, and consequently the Responsible Authority's Engineering Department required the creation of a 3m wide easement over Lot 2 LP96329 Parma Studio which it included in the Notice of Decision conditions. Cross argues that the 26 October letter of future intent should be treated as evidence of group accommodation use.

23 Count Fabrizzio Crippa, a Vigneron, one of the early Swiss Settlers, built Villa Parma in 1864. Rigby operates the Villa Parma guest house with three bedrooms, shared bathroom and breakfast room in a heritage listed building at 128 Main Road Hepburn Springs immediately next door on Lot 1 PS 76301. Villa Parma enjoys existing use rights. Its website states:

Villa Parma caters for one couple only, unless you choose to stay with a group of friends. Villa Parma sleeps a maximum of 4 people.

24 The subject site on Lot 1 PS 96329 ("Lot 1") contains a beautiful Italian garden which the guests of Villa Parma enjoy. Villa Parma's website describes this garden:

.... based on the Italian gardens of the Seventeenth, Eighteenth, Nineteenth centuries. It is a series of interconnected rooms offering different areas to seek solitude, and clearing ones mind. Wandering through controlled spaces, dominated by shades of green. Like most gardens it is still growing and changing, with some five years before hedges show some maturity. We have moved a long way from the bare paddock with its lichen encrusted Lilacs stranded in the middle.

25 The Villa Parma website also promotes accommodation in Parma Studio on the opposite side of the subject site, ie on Lot 2 PS 96329, and contains a one bedroom self-contained living accommodation enjoying a Class 1[2] building permit.

26 However, the planning permit[3] for which Rigby applied in respect of Parma Studio was for a

corrugated iron zincalume cladded outbuilding and shed for storage purposes.

27 Interestingly, the supporting letter dated 6 August 2004 accompanying this permit application for dwelling and shed admits in respect of Parma Studio

there is an existing 2 storey corrugated metal clad dwelling on the north side and a commercial project[4] under construction to the south boundary.

28 The Parma website advertising does not include another building that looks like a dwelling further to the north on Lot 6 PS 96329 also owned by Rigby.

29 Rigby actually owns seven contiguous lots on Main Road being Lot 1 PS 76301 and Lots 1, 2, 3, 5, 6 & 7 PS 96329.

30 Cross owns five contiguous lots touching and behind a few of Mr Rigby's.

31 Cross has, pursuant to planning permission, built a Day Spa centre with extensive northern views over Mr Rigby's property, behind the Villa Parma heritage house and abutting the very portion of the Rigby land over which Rigby now applies for planning permission for a dwelling and shed.

32 Cross' Day Spa Centre comprises, an elevated single storey complex of steam (wet and dry), massage and soft-pack treatment and spa rooms, with relaxation lounges and open to air plunge pools, spa pools and a deck. It is part of a beauty treatment and rejuvenation complex. Besides lovely views to the north over Hepburn Springs generally, there is complete overlooking of Mr Rigby's beautiful, secluded Italian garden.

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:

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

39 The word store as defined in the R1 zone is problematic because it:

i

cannot be in a dwelling (and it is); and

ii

must be used to store equipment or goods used in conjunction with the occupation of a resident of a dwelling, and Mr Cross' thesis is that it is stored for a different person (the Parma Pensione operator) not the resident of the dwelling.

40 But I understand Mr Cross' argument that storage for the Parma Pensione purpose is not ancillary to dwelling and needs a use permit.

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:

•

the Villa Parma on Lot 1 PS 76301;

•

Parma Studio (described as self-contained accommodation on the roadside advertising) on Lot 2 PS 96329;

•

the new building one away from Lewands[5] on Lot 6 PS 96329.

57 The new building on Lot 6 around the corner one away from the Lewands has a delineated access path to Main Road up a fairly steep roadside verge. It has been characterised as the manager's residence, with the owner living there, and it looks like a dwelling. It is not advertised as part of the tourist or group accommodation.

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.

64 Rigby referred me to Woolworth's Ltd v Warrnambool CC[6] as a case in point. It concerned an application for a 227 m² convenience store located within a 3,300 m2 building in a B4 zone. There remained a dispute about the remainder or bulk of the building's characterisation as a shop or bulky goods store, which the Tribunal did not entertain in that decision.

65 The Tribunal followed Addicoat v Fox (No.2)[7] and Marock PL v Billjoy PL[8] where one looks at the application and accompanying plans to decide the nature and purpose of the application, and whether they convey to a fair-minded citizen what has been applied for. It found the documentation did describe a convenience store.

66 As the convenience store could be operated separately from the balance of the premises by separate cash registers, staff, and a discrete entrance, constrained by permit conditions requiring same, it was held that the convenience store could be distinguished from the balance of the floor area operated by the Warehouse Group, justifying a permit.

67 The basis of the Woolworth's v Warrnambool decision was:

i

an assumption that the use will be carried out and operate in a lawful manner, failing which other courses of action are open to the Responsible Authority and other parties to pursue;

ii

acceptance that more than one use can operate from the premises, and there was no impediment to the ability to grant a permit for a separately defined use on the same piece of land;

iii

acceptance that more than one separate use can be conducted within the one building, one allotment, one title, or one leasehold area, provided there was a clear delineation or separation between the different uses. A comparison was made with a liquor store abutting, but separate to, a supermarket, both of which were under the same roof of the same building, but could be separately identified and operated.

68 As Gibson DP held in Pacific Seven Pty Ltd v Knox CC**[9]**,

It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity.....not all activities constitute separate uses in their own right.

69 Rigby also referred me to Gibson, DP and Taranto, M in Cotsonis v Darebin CC[10] as a case in point which held:

...the Tribunal must consider the proposal as presented and cannot treat applications on the basis that the land may in future be used for some other (even unlawful) purpose.

70 Applying the Addicoat v Fox (No.2)[11] test of whether this application is clear and conveys to a fair-minded citizen in the light of the relevant definitions and in the planning scheme what has been applied for, I find Rigby clearly applies for a dwelling and shed.

71 I accept from Cotsonis v Darebin CC that I need to assess the proposal as applied for and not on assumptions based on the way another activity is being conducted (ie the outbuilding that has become Parma Studio).

72 The proposed building could be used either as a dwelling or as group accommodation. Case law requires me to be satisfied that it could be legitimately used as a dwelling, and not assume it will be unlawfully used. Rigby applies for a dwelling, not for a commercial operation, such as group accommodation or tourist establishment.

73 The building is on a separate allotment on a plan of subdivision, has legal access from a road, has all the necessary accoutrements[12] of a dwelling and can be used as a self contained residence, as the accompanying plans demonstrate.

74 As conceded by the Responsible Authority, the Villa Parma enjoys existing use rights as tourist establishment.

75 Mr Rigby owns a considerable parcel of land (seven allotments) which he could develop far more intensively as tourist establishment if he so wished, as evidenced by the intensely developed five lots enjoyed by Cross.

76 If the permitted dwelling is automatically used as a B&B[13], could it be used as tourist establishment or group accommodation without risk of enforcement for breach of the planning scheme? There is no scheme definition of tourist establishment. The definition of group accommodation is:

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

77 The definition of bed and breakfast must be carried out in a dwelling with the resident in residence. It is defined as:

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

78 The effective difference between group accommodation (assuming Rigby owns all seven lots) and dwelling even if it is automatically used as bed and breakfast for not more than six persons, is that it can only be used as bed and breakfast if it is a dwelling with its permanent resident residing therein.

79 The proposed dwelling cannot be used by Mr Rigby as bed and breakfast if he is not resident therein. Alternately, it cannot be used as a bed and breakfast at all unless its resident also dwells therein.

80 More to the point, there is a clear difference between the two land uses. They are clearly distinguishable if there were a need to issue an enforcement order for breach of planning permit. The former use[14] houses temporary residents or persons away from their normal place of residence, the latter[15] a permanent resident together with persons away from their normal place of residence.

81 Provided the building is on a separate allotment on a plan of subdivision, has legal access from a road, has all the necessary accoutrements of a dwelling and can be used as a self contained residence, there is no reason to deny it a dwelling permit.

82 Mr Rigby cannot use it even as bed and breakfast accommodation unless he lives therein with his guests, or its permanent resident lives therein. I glean from the website advertisements of Parma Pensione that the aim is to provide guests with solitude and not accommodation shared with the resident of the dwelling.

83 If Rigby integrates it as a B&B it into the Parma Pensione accommodation without getting a permit for group accommodation or tourist establishment, whether he or an independent resident lives in it, he risks a question whether it has mutated its character. That is not before me. I must assume lawful use.

84 Does the 124 m2 size of the attic preclude a dwelling permit? I accept it is large, but 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.

85 Even if it is used just as storage, that is not inconsistent with its designation as a dwelling. In my opinion, storage for the purpose of the Parma Pensione use would be unlawful without separate planning permission for same, but that is not the way it is notated on the application plans.

86 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. It falls within the description used by Gibson DP in Pacific Seven Pty Ltd v Knox CC**[16]**.

Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed "ancillary uses", the word "use" in this context is a misnomer. They are really activities which are an ancillary part of the primary use. [For an interesting discussion of this distinction see Mollica v Shire of Bulla 9 AATR 157 at pg 161-163].

88 Any permit for this dwelling and shed would be expressed to be in respect of Lot 1, PS 96329, since that is what is applied for. The Italian garden occupies much of the balance of Lot 1 PS 96329.

89 The Parma Pensione website[17] makes it clear that the Italian garden is an integral and valued part of the Parma Pensione guest's experience. If the Italian garden continues to be used for Parma Pensione purposes, does that disqualify my ability to give a permit for a dwelling?

90 Alternatively expressed, if the garden continues to be shared with Villa Parma, does this prejudice the building's capacity to be characterised as a dwelling instead of group accommodation or tourist establishment? Does a risk that it might share its garden with Parma Pensione make a difference, since Rigby owning all seven allotments, may build this dwelling and let it out to a tenant, while at the same time still use the garden for guests of Parma Pensione.

91 In Davey v Brightlight Nominees Pty Ltd[18], Nicholson, J said:

....[P]remises may be used for more than one purpose, and provided that each use is a distinct and separate use, then, in my opinion, such individual use may be unlawful even if the rest of the premises are used for lawful purposes. Taking an extreme example: the use of a portion of a hotel as a brothel could not be legitimised by the lawful use of the remainder of a hotel.

92 Mornington Peninsula Shire Council v Lindsay Edward Fox & Paula Fox & W Everton Park Pty Ltd & Ors[19] ("Fox") discussed the issue of the planning unit:

A planning unit is the area of land used for a particular purpose in relation to which planning permission might be required. It is frequently co-extensive with the title boundaries, but it is not necessarily so constrained. A planning unit may be part of an allotment, or a number of allotments, or a portion of several allotments.

93 The garden enjoys existing use rights as part of the Villa Parma tourist experience. The proposed building will not alter this activity in the garden. It is only use of the proposed building for group/tourist accommodation that would require planning permission, and this is not sought by Rigby. But use as a dwelling is as-of-right in this zone and, as Cotsonis says, I must not presume unlawful activity in something that looks like a dwelling, until that occurs.

94 In my opinion, continued use of the garden by Villa Parma would not change its characterisation and would not disqualify me granting a dwelling permit for the building and shed, provided the latter two were separately identifiable and distinguishable from the tourist operation. To draw on the Fox decision, this dwelling and ancillary shed would be a different planning unit to the Villa Parma tourist accommodation. What would disqualify it is:

i

use of the building by persons away from their normal place of residence, rather than by a permanent resident;

ii

use of the shed for the Parma Pensione purposes.

95 It is difficult for me to comment on the 26 October letter flagging an intention to consolidate all three lots in the future, as that proposal is not before me and I am tightening the permit condition requiring creation of an easement on this allotment title. In other words, I am only assuming a dwelling on the allotment of land as described in the application and my Order.

96 As Morris, J held in Lewand v Hepburn SC, the long held principles of the Full Court of the Supreme Court of Victoria in National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited[20], upheld by Balmford, J in Shalit v Jackson Clement Burrows Architects Pty Ltd[21] and which he recently followed in Victorian National Parks Association Inc v Illuka Resources Limited[22], apply:

in exercising a discretion conferred by a particular planning scheme provision, the decision maker is confined to considerations which are relevant to the purpose of the particular provision.

97 The National Trust case quoted Shrimpton v The Commonwealth[23]:

The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred.

98 As the overlay is directed at ensuring the protection of water catchments and groundwater and, in particular, the protection of these natural mineral springs assets from the impacts of waste disposal and drainage, there is no reason under ESO2 to deny a permit since the site will enjoy a reticulated sewerage system. Its amenity impact upon Cross is irrelevant to the purpose of the overlay control.

99 I can only repeat the words of Morris, J in Lewand v Hepburn SC [2004] VCAT 834:

... the case to be raised by the objector is misconceived, as it is not within the parameters of a permissible appeal in the context of the only need for a permit being the Environmental Significance Overlay

... as I find it, is not about a matter that is within the scope of the discretion available to the tribunal under the ESO, rather it is a complaint that the provisions of the Residential 1 Zone should contain a provision which would ensure that houses that are built ....have regard to amenity considerations

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.

i

if I find for Rigby, Cross does not raise any arguments under ESO2, therefore the review fails on its merits and a permit should be granted with costs reserved;

ii

if I find for Cross, this proceeding should be listed for a merits hearing, with a call for submissions from all parties on how it should be assessed as a tourist establishment or group accommodation under section 2 of the planning scheme.

112 As I have found for Rigby, I issue the above order directing council to issue a varied permit.

113 I must reserve costs as I was asked to do so, but as this is not a simple or clear-cut case, I would hope the parties could put this behind them and instead move forward.

[2] which applies to accommodation and not outbuildings

[4] this refers to Springs Retreat Day Spa Centre

[5] on Lot 4 PS 96329

[6] [2004] VCAT 2322

[7] [1979] VicRp 37; [1979] VR 347

[8] [1981] VicRp 41; [1981] VR 413

[9] (1993) 11 AATR 325 @ 329 et seq

[10] [2005] VCAT 232 (15 February 2005)

[11] [1979] VicRp 37; [1979] VR 347

[12] set out in the planning scheme definition of dwelling

[13] provided it supplies the necessary car spaces

[16] (1993) 11 AATR 325 @ 329 et seq

[17] unlike the postcard tendered to me in evidence

[18] [1984] VicRp 76; [1984] VR 957 at pg 965

[19] [2003] VCAT 772 (30 June 2003)

[20] [1976] VicRp 60; [1976] VR 592

[21] [2002] VSC 528

[22] [2004] VCAT 20

[23] [1945] HCA 4; (1945) 69 CLR 613 @ 620 per Latham, J