[2001] VCAT 2166

Andrew Nicolosi and Ride Rite Auto Freighters Pty Ltd

The use of the subject land as a vehicle store contravenes Clauses 32.01-1 and 52.11 of the Manningham Planning Scheme.

1. That within thirty days from the date of service of this Order on either of the respondents, the respondents and their employees and agents must not use the subject land and the vicinity thereof as a vehicle store including the parking, servicing or repairing of commercially registered vehicles, trucks or trailers and must not use the subject land and its vicinity for the parking, picking up or dropping off of vehicles (whether damaged or otherwise), provided however that the respondent Andrew Nicolosi, while resident at the subject land may use the subject land and its vicinity to park one commercially registered vehicle (including one trailer only), which he uses to drive between his home and his place of work and provided that nothing prevents his use of the subject land to store his collectors' item Holden unregistered shell on a tray base at the side of the house.

2. Within thirty days of the date of service of this order on either of the respondents, the respondents must cease to carry out the following activities at or in the vicinity of the subject land:

(a) loading or unloading of goods or vehicles carried or intended to be carried by any vehicle for hire or reward;

(b) storage, garaging, or use of more than one commercially registered vehicle (including one trailer only) at any one time, used for carrying goods or vehicles for hire or reward, provided that the one commercially registered vehicle permitted by this Order is used by the resident of the dwelling to drive between his dwelling and his place of work;

(c) storing parts or equipment used in the maintenance or repair of motor vehicles other than vehicles owned by the residents of the dwelling on the subject land for their own private use (which parts or equipment must be stored wholly within a building).

(a) must serve a copy of this enforcement order personally or by post on Andrew Nicolosi, and on the registered office of Ride Rite Auto Freighters Pty Ltd, in accordance with the Victorian Civil and Administrative Tribunal Act 1998, section 140;

(b) must advise the following persons of the making of this order:

Mr Nicholas Crawford, Solicitor of Maddock Lonie & Chisholm. Mr Crawford called Mr Vidler, Council's Enforcement Officer.

For the Respondents/Occupiers: Mr J. Powell, Solicitor.

For the Respondents/Affected persons: Mr V. Mirabelli, Solicitor for Messrs Longo and Perreau. Mr Mirabelli called Mr Longo, Mr Perreau and Mr Skoien to give evidence.

1. Application under section 114 of the Planning and Environment Act 1987 for an enforcement order to prevent the use of the subject land contravening Clauses 32.01-1 and 52.11 of the Manningham Planning Scheme.

2. The use of the subject land as a vehicle store, contravening Clauses 32.01-1 and 52.11 of the Manningham Planning Scheme.

3. The subject land is zoned Residential 1, under which a Store, within which a Vehicle Store is nested, requires a planning permit.

4. The old transport depot definition has become the new vehicle store definition, under the VPP format planning schemes:

vehicle store - land used to park or store vehicles in connection with a goods or passenger transport business

5. In a Residential 1 zone, a Store is a permit required section 2 use on the condition that it:

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_.

6. No planning permits pertain to the subject land.

7. The Home occupation definition requires the carrying on of a business from the land. Mr Nicolosi's solicitor argued that because the business of hauling goods (vehicles) was carried on "on the streets of Melbourne" that it was not carried out `on the land'. However, the haulage business conducted by Mr Nicolosi is registered to the home address as its principal place of business. In Yarra Ranges v Hunter [1999] VCAT 2141, Deputy President Bruce held that where a company owns the commercially registered vehicles, it cannot take advantage of the "Home Occupation" clause, unlike a resident of a dwelling.

8. The respondents are in the business of vehicle (goods) haulage on a cabin and tray truck or on a prime mover and trailer.

9. No evidence was given by either Mr Nicolosi nor Ms Kim Forrest who resides with him. Mr Nicolosi was present on the first day of the hearing while Ms Forrest was present during the entire hearing.

10. The 1 May 2001 company search served by the Responsible Authority, indicates that the principal place of business from which the Ride Rite Auto Freighters Pty Ltd business of vehicle haulage takes place is the dwelling address at 19 Valepark Drive, Donvale, 3111.

11. The land use was attested to by Mr Vidler, Enforcement Officer for the Responsible Authority, as well as by neighbours, Messrs Longo, Perreau and Skoien, who live opposite or one away from Mr Nicolosi.

12. Mr Vidler's evidence involved oral evidence of visits to the land which were logged in detail, together with photographic evidence which remains on the Tribunal file.

13. Mr Longo's evidence involved oral evidence of observations of the land which were logged in detail, together with photographic evidence which remains on the Tribunal file.

14. Messrs Perreau and Skoien's evidence involved oral evidence of observations of the land while they were driving to and from their homes each day.

15. The following tables are collated from the tested observations and evidence of Mr Vidler. Together with the tested evidence of the neighbours, the evidence clearly indicates a consistent pattern of the storage of vehicles, well beyond anything ancillary to use of the land as a dwelling.

16. Mr Vidler's observations were logged in detail, not for the purpose of his judging whether the vehicles breached the planning scheme, but for the purpose of the Tribunal being able to adjudicate upon same. He admitted confusion between characterisation of ancillary use, home occupation, and vehicle store. He kept details of vehicles, their registration numbers and their location in respect of the land. He could not differentiate between which vehicles were private and which were used in a business. He saw this case as a test case, admitting that the council had other cases which were awaiting this decision.

17. The neighbours were far more certain than Mr Vidler, that the activities carried on by their neighbour breached the planning scheme and constituted a vehicle store.

18. The following tables summarise Mr Vidler's records:

Blue covered unregistered cabin with chassis - Ford "F100"

Blue covered unregistered cabin with chassis - Ford "F100"

Blue covered unregistered cabin with chassis - Ford "F100"

Blue covered unregistered cabin with chassis - Ford "F100"

Blue covered unregistered cabin with chassis Ford "F100"

Blue covered unregistered cabin with chassis Ford "F100"

Blue covered unregistered cabin with chassis Ford "F100"

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

Blue covered unregistered cabin with chassis Ford "F100" make

19. Mr Longo's photographic and oral evidence indicates a course of conduct consistent with the conduct of a transport haulage business from the dwelling at 19 Valepark Drive. The photo album which he tendered into evidence remains on the Tribunal file.

20. His photos show the Hino White Tray-truck PBO 348 - Truck cabin + tray and the Blue prime mover DUK 048 with the words Ride Rite Auto Freighters Pty Ltd painted on the drivers door.

21. His photos also show considerable loads of between four to six cars loaded onto trailers attached to the back of the Hino or the Prime Mover, outside the subject land.

22. They often indicate at least two large vehicle haulage trucks parked outside the subject dwelling. They also indicate the permanent presence of the unregistered Ford "F100" make, blue tarpaulin covered Cabin with chassis at the right hand side (looking towards) the dwelling. He gave evidence that that latter vehicle also had the words Ride Rite Auto Freighters Pty Ltd painted on the drivers door as well, but the drivers door was in a damaged state.

23. The photos taken in the year 2000 and early in 2001, together with Mr Longo's evidence, indicate far more activity related to the conduct of a business including the movement of cars onto and off the trucks and their storage within the front setback of the dwelling, sometimes under tarpaulins.

24. Photos taken subsequent to the first day of the hearing indicate a considerable decrease in vehicle activity at the subject dwelling.

25. The other two neighbours who gave evidence also advised that the movement of cars on and off the haulage trucks had stopped after the Responsible Authority had issued Mr Nicolosi with a planning contravention notice on 5 September 2000.

26. I was referred to a number of cases by the Responsible Authority. Waverley Municipal Council v Rolley (1975) 30 LGRA 392 held unlawful in town planning terms, the conduct of a tow truck business operated from a dwelling in a Residential zone using a two way radio system set up at the home and using the road pavements to park four tow trucks, a trailer, occasionally damaged vehicles in transit to repairers, and maintaining the tow trucks.

27. Ferrigno v Keilor SC (1992) 9 AATR 145 citing NSW and unreported Victorian Tribunal decisions, held that the overnight parking of one prime mover by a resident of a dwelling whose occupation was a truck driver, did not require planning permission as it was ancillary to the use of the property for residential purposes.

28. French v Berwick CC and Others (P90/03853 unreported, noted at 5 AATR 4) held the same, on the basis that the occupant of the dwelling, who was a heavy vehicle driving instructor and operated this business of his from alternative premises using three heavy vehicles, was able to park his prime mover overnight at his dwelling without planning permission and drive it to his place of work every day. The prime mover was merely used as a vehicle of his choice as a means of commuting between his business and his home.

29. How Seng Ng v Monash CC (1997/02981 unreported AAT (Vic) decision by Member Bryant) concerned the parking of only one commercial vehicle, at any one point in time, at residential premises, but which commercial vehicle varied in type. The vehicles used by the resident varied from a prime mover with a trailer, to a tray truck, to a tip truck, to a tractor with a back hoe and front end loader, to a tip truck, to a tip truck with a front end loader hoe, to a tip truck with a tandem trailer. The occupant of the dwelling was the self-employed operator of heavy vehicles used in demolition and site clearing work. He drove the truck and trailer as a means of commuting between his business and his dwelling. The Tribunal held there was insufficient evidence, on the balance of probabilities, to characterise the use of the land by the occupant as either home occupation, transport depot, or industry, or anything other than use ancillary to use as a dwelling.

30. In Yarra Ranges v Hunter [1999] V.C.A.T. 2141, Deputy President Bruce held that the parking of more than one truck and trailer at the dwelling constituted a transport depot, notwithstanding that the resident, who was in the business of transporting goods for reward, also had a transport depot in an industrial estate 50 metres up the road from his dwelling, which depot housed more trucks. She said:

I do not consider that garaging two trucks at once on the subject land, even if the motivation for doing so is only by way of garaging them securely, is within the normal scope of residential use. The garaging of the trucks is related to the transport business, not the residential use. Within the definition of `ancillary use' garaging of one truck overnight could be acceptable, as it could be parked in the driveway beside and to the rear of the house, so as not to dominate the subject land, and was operated so that noise and fumes did not give rise to complaints. But to have a second truck parked in the setback in front of the house, and to have it jump the kerb at a school crossing to enable it to do so, as well as having a truck parked in the drive, would leave the trucks dominating the whole front of the subject land, both visually and in terms of space occupied....The front part of the subject land becomes a truck parking area, instead of a setback to a dwelling, when this occurs. ......

Once more than one vehicles (sic) used for carrying goods for hire or reward is shown to be regularly garaged there, unless the activity is ancillary to another use of the subject land, the definition of `transport depot' is met.

...With two trucks parked in the open, and sometimes goods stored there, it seems unlikely that the area limit [of home occupation] could be met.

31. The final case referred to my attention was Beckman v Port Phillip CC [2001] V.C.A.T. 444, where a furniture removalist lived. He owned three trucks, which he used in the course of his furniture removal business and Caulfield Auction Rooms (second hand furniture sales). Two of the three trucks were garaged at the dwelling, when not in use. He drives one truck and an employee arrives each morning to drive the other truck. The third truck is garaged at Caulfield Auction Rooms. Some administration occurs at the auction rooms and after hours administration occurs at the dwelling. The tribunal held that the dwelling was used as a depot for the storage of trucks, and beyond the ancillary use of the land as a dwelling.

32. It is clear from the caselaw that the respondents have breached the planning scheme as they continue to park more than one commercially registered vehicle and trailer attachment on or in the vicinity of the subject land, namely the White Hino tray truck and the Blue Prime Mover with trailer. They also store a presently unregistered, unrepaired Ford F100 truck on the land, which would also be used in the course of their goods haulage business. The green trailer mentioned in the evidence is also in breach of the `store' provisions, as are any vehicles loaded onto and off the land from these haulage vehicles. Although the loading and unloading activities have dissipated they need to be included in any order made.

33. It is also clear from the evidence that the unregistered Holden shell at the front side of the house on a trailer is for private purposes, as are any private vehicles used for the private carriage purposes of the residents of 19 Valepark Drive.

34. It is also clear from the caselaw that Mr Nicolosi can park one commercially registered vehicle at his dwelling (including one trailer) provided it is used by him to transport himself between his home and his place of work (even if his place of work is the streets of Melbourne). That is because his use of that vehicle is ancillary to his use of the subject land as a dwelling. It would not offend the 2 tonne limitation of the Home Occupation definition, because it would not be classified as a "Home Occupation" activity, just as an "Ancillary to a dwelling" activity.

35. The Tribunal accordingly finds the allegations proven and makes an Order in terms not to prevent private use of the dwelling and activities ancillary thereto.

36. It is doubtful whether "Home Occupation" could ever apply to this type activity, given the size of the trucks, the amount of land they occupy and the fact that the occupation is carried out on the roads rather than in the home.

37. Whereas the Tribunal would normally award the Responsible Authority costs in a case such as this, where the allegations are made out, it does not propose to do so in this case, because of the latter's admitted uncertainty as to what activity conducted on the subject land constituted a breach of the planning scheme. Mr Vidler attested that Mr Nicolosi and Ms Forrest were given conflicting advice from Council, and its different branches. He attested that the council were treating this as somewhat of a `test case' upon which other enforcement applications would be made. Mr Nicolosi has reduced his activities. I will make no order as to costs, as it is now clear what activities are prohibited and what is permitted.