Manningham CC v Hoe [2010] VCAT 1079

Manningham CC v Hoe [2010] VCAT 1079 - VCAT 2010 case summary — Zoe

[6]

Mr Hoe is a car enthusiast. He has paved an area of his land at 36 Ardgower Court, Lower Templestowe, upon which he parks a number of vehicles. At an inspection on 18 January 2010, authorised officers of the Council counted 10 vehicles being parked on the land, only three of which were registered. There is no evidence that Mr Hoe is "trading" or "repairing" the vehicles on the land. It would appear that the vehicles are simply being kept on the land as part of Mr Hoe's hobby as a car enthusiast.
Rather than seeking enforcement action against Mr Hoe, the Council has sought a declaration under s 149A of the Planning and Environment Act 1987 to determine whether the keeping of vehicles in this manner is a lawful use that is considered ancillary to the lawful use of the land as a dwelling, or whether it constitutes an additional and separate use.
Whether a use is ancillary to the use of land as a dwelling is a matter of fact and agree to be decided on the particulars circumstances of each case. On behalf of the Council, Mr Howard indicated that there were a number of issues relevant to the characterisation of the use in this instance. These include the following:
- Only three of the vehicles are registered. The others are therefore being "kept" on the land on a semi-permanent basis and are not therefore being used as ordinary vehicles by the occupiers of the dwelling.
- More than 50% of the open space area on the land is taken up with the parking of the vehicles.
The subject land is an ordinary suburban block of approximately 766m2. The Council argues that Mr Hoe's hobby has increased to a level of intensity where it has become a separate use in its own right. The Council conceded that, if only 2 or 3 or 4 vehicles were parked on the land in a similar manner, they may consider the keeping of vehicles in such number to be ancillary to the use of the land as a dwelling, having regard to the size of the land. If the land was larger in area, perhaps a semi-rural allotment, then it may be capable of having more vehicles kept there. Equally, the Council conceded that a greater number of vehicles might be able to be kept on the land if they were in a large garage or shed.
The consideration of when a hobby increases in intensity, such that it becomes a separate and additional use of the land, is problematic. Here, however, I agree with the Council's overall analysis. The keeping of 8-10 vehicles in the manner described has in my view become something which is no longer ancillary to the use of the land as a dwelling. Another indicator of whether a use is ceased to be ancillary is the extent to which it is creating off-site amenity impacts. Although this is again not wholly determinative, the indications are the storage of vehicles is causing amenity impacts.
Mr Hoe strongly contested the application. However, on balance, I find that the keeping of 8-10 vehicles on the land is something that is no longer ancillary to the use of the land as a dwelling, particularly as many of the vehicles are kept there on a semi-permanent basis and are unregistered. Under the Manningham Planning Scheme, the land use of "store" includes the storage of vehicles. I consider that the keeping of vehicles in the number and in the circumstances described here now constitutes a separate additional use of the land as a "store" in addition to the primary use of the land as a "dwelling". Such a separate and additional use would require a planning permit.
The Council requested that I provide a further declaration that indicated what number of vehicles might be kept on the land as ancillary to the use of the land as a dwelling. The Tribunal is reluctant to provide an advisory opinion, or deal with a hypothetical scenario. In circumstances under s 149A of the Planning and Environment Act 1987, a declaration should only pertain to particular issues in dispute between the parties. At this stage, it is sufficient that I indicate that the storage of between 8-10 vehicles is not ancillary. As I have alluded to above, the storage of 2 or 3 or 4 vehicles might well be considered ancillary. In the context of a Practice Day hearing, and without the benefit of a site inspection, I will however refrain from specifying a particular number at which the line between an ancillary use and a separate use is crossed.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Manningham CC v Hoe [2010] VCAT 1079 (29 June 2010)

Manningham CC v Hoe [2010] VCAT 1079 (29 June 2010)

Parties