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[2001] VCAT 1926
respondent. The application for review was disallowed and the responsible authority's decision affirmed, subject to amended conditions. A permit was directed to be issued for use of the existing dwelling as a...
The Tribunal allowed a home business selling computer products by telephone and doing office administration to operate from a Kew residence. It found that the operator lived there as his principal residence, that the sales restriction concerned goods physically kept at the premises, and that the activity remained ancillary to the dwelling. The Tribunal did not find an adverse effect on neighbourhood amenity, but imposed limits on when non-resident staff could work and when deliveries could occur.
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Margaret Rafferty and other neighbours applied under s 82 of the Planning and Environment Act 1987 to review Boroondara City Council's decision to grant a permit for a home occupation at 306 Cotham Road, Kew. The proposed activity was described as telephone sales and office administration. It involved 58.2 square metres of the dwelling and could include up to two people who did not live there, as well as resident workers. Proposed operating hours were 9 am to 5.30 pm, Monday to Friday ([1], [11]-[13]).
2 cited instruments linked from this judgment.
The business was associated with Innovision Technologies Australia, an importer and wholesaler of computer products. Its head office was at Shepparton and stock was kept at a Tullamarine warehouse. Mr Mitchell, the proposed operator, described his work as sales and marketing, including canvassing sales. He did not process orders. The evidence was that goods were not dispatched from the Kew premises apart from occasional sample products ([46]).
The objectors raised both threshold questions and amenity concerns. They argued that the premises were not the operator's principal residence, that telephone sales of goods not made or serviced at the dwelling could not qualify as a home occupation, and that the real use was an office rather than a residentially based occupation ([30], [36], [45], [50]-[56]). They also raised concerns about parking, deliveries, hours, residential character and compliance with permit conditions ([26], [28]).
The Tribunal disallowed the review and affirmed the Council's decision, subject to amendments. It directed that a permit issue for the home occupation, with additional conditions limiting non-resident employees and deliveries to 9 am to 5.30 pm, Monday to Friday. It also required that the occupation operate only while conducted by a person who had the premises as their principal place of residence (order; [100]-[102]).
The first threshold issue was whether a person conducting the business used the dwelling as their principal place of residence. The Tribunal treated this as a question of fact to be assessed objectively, referring to P W Tovey v City of Stonnington & Ashley ([43]). Mrs Rafferty's observations included periods when there appeared to be little activity at the property, overflowing mail and bins, and no visible lights or vehicles. Mr Mitchell acknowledged that he often stayed at his girlfriend's home and was frequently away at weekends ([41]-[42]).
The Tribunal nevertheless accepted Mr Mitchell's evidence. He said he slept at 306 Cotham Road and regarded it as home. More significantly for the Tribunal, documents including his driver's licence, a traffic infringement notice, motor cycle registration and bank statements gave that address. The Tribunal considered those documents the best available evidence and found that the premises were his principal place of residence ([42]-[44]). The order's residence condition reflected the importance of this requirement ([102]).
The second threshold issue concerned the Clause 52.11-1 restriction that no goods other than goods manufactured or serviced in the home occupation may be offered for sale. The Tribunal held that the requirements in Clause 52.11-1 were mandatory, except where Clause 52.11-2 allowed a permit for a specified variation. It rejected the suggestion that the provisions were merely policy guiding an unfettered discretion ([58]-[59]). This mattered because a failure to meet an unvaried mandatory requirement could mean the use was not a home occupation eligible for a permit.
The Tribunal did not accept the objectors' strict contractual interpretation of “offer for sale”. It accepted the permit applicants' alternative submission that the restriction related to goods physically on the premises. It reasoned that the restriction did not concern simply telling people that goods not at the property were available elsewhere, and that restricting sales of goods not kept at the premises served no purpose in the circumstances. It noted the contrast between this proposal and cases involving goods physically stored and sold at a site ([60]-[65]). The result was a contextual interpretation tied to the facts before it, not an express finding that every form of telephone sales will qualify as a home occupation.
The Tribunal also had to decide whether the activity was in substance a separate office use. It considered the approach in Shire of Lilydale v Groen and the test quoted there from Kaydren Pty Ltd v Gold Coast Council. The cited test treated the residential character of a home occupation as a matter of degree, depending on the activity and its setting ([51]). The Tribunal noted features of the real estate business in Lilydale, including a street-facing studio, a business appearance and an adjacent car park, which had made the premises resemble business premises ([69]-[70]).
The Kew proposal was materially different on the evidence. It was to take place inside the dwelling, in a limited area, without signs or indications to passers-by and without inviting the public to attend. The Tribunal also found that the use would not cause adverse amenity effects. It therefore concluded that the activity was ancillary to the dwelling ([67]-[71]).
Amenity was a separate and important issue. Clause 52.11-1 required that a home occupation not adversely affect neighbourhood amenity in any way, a requirement the Tribunal described as strict and onerous ([72]). It assessed appearance, parking, deliveries, hours and noise against the site and evidence. The dwelling would retain a residential appearance, no advertising was proposed, and the Tribunal considered the visibility and use of the parking area limited ([75]-[81]). It accepted that deliveries could occur more often than at a typical residence, but found no basis to expect a dramatic increase or an adverse impact, particularly given the location on busy Cotham Road ([82]-[86]).
The Tribunal imposed conditions to address the remaining practical concerns: non-resident employees and deliveries were limited to the proposed weekday business hours. It did not consider it necessary to prevent resident workers from working evenings or weekends, reasoning that preparation by residents would be consistent with ordinary domestic use and would not affect amenity ([86], [88]-[91]).
The judgment applied the Boroondara Planning Scheme as it stood in 2001. Clause 74 defined a home occupation as an occupation carried on in a dwelling, or on land around it, by a resident of the dwelling ([14]). Clause 52.11-1 set detailed conditions for as-of-right home occupations, including principal residence, limits on non-resident employees and floor area, and the requirement not to adversely affect neighbourhood amenity ([16]). Clause 52.11-2 allowed permits for specified departures, including up to two non-resident workers and a larger floor area within its stated limit ([17]-[18]).
The decision clarified how this Tribunal member read two aspects of those provisions in this dispute. First, the Clause 52.11-1 requirements were restrictions, not merely policy considerations that could be displaced by broad discretion; the express permit pathway in Clause 52.11-2 mattered ([58]-[59]). Second, the goods-for-sale restriction was read as directed to goods physically on the premises, in the circumstances of telephone sales where stock was held elsewhere ([60]-[65]).
The reasons also applied an objective, fact-based assessment of principal residence, and a contextual, degree-based approach to distinguishing a home occupation from a separate commercial use ([43]-[44], [51], [67]-[71]). The judgment does not provide a comprehensive account of the law before the cited authorities or later amendments to the Planning Scheme. It therefore does not establish from this source what the present-day provisions say or how the broader law has since changed.
At [43], the Tribunal recounted that whether a place is a “principal place of residence” is “a question of fact to be determined objectively.” In plain English, labels or impressions alone do not settle residence. The Tribunal examined the evidence, including documents showing Mr Mitchell's address, and made a factual finding at [44].
At [58]-[59], the Tribunal rejected the argument that Clause 52.11 was only a policy allowing broad discretion. It treated the specified requirements as restrictions, with Clause 52.11-2 providing the relevant exceptions. In practical terms within this decision, the Tribunal first had to decide whether the use met the applicable requirements before weighing the planning merits.
At [60] and [62], the Tribunal said it accepted that the goods provision related to goods “physically on the premises” and did not apply to telling customers that goods elsewhere were available for purchase. In plain English, the Tribunal distinguished telephone sales of off-site stock from storing and offering for sale goods at the home.
At [71], the Tribunal concluded that the proposed use was ancillary to the dwelling. It reached that conclusion after considering where the work would occur, the absence of public attendance or advertising, the limited area used, and the nature of the proposal.
At [91], the Tribunal found that the proposal would not adversely affect neighbourhood amenity. That conclusion was tied to the evidence and to the additional operating limits. It was not a general statement that any home-based sales activity has no amenity effects.
At [95], the Tribunal observed that planning controls could not guarantee good neighbours or neighbours with a particular affinity. The passage explains why complaints about matters such as bins, gates, lights and garden maintenance did not, without more, determine the planning question. The Tribunal acknowledged the neighbours' expectations but distinguished them from the planning effects it was required to assess.
The decision is most directly relevant to applications under the then applicable Clause 52.11 for a home occupation involving remote or telephone sales, where stock is stored elsewhere and the premises are used for office or sales administration. Its reasoning on the goods restriction depended on evidence that goods were not ordinarily present or dispatched from the site ([46], [60]-[65]). The decision contrasts that situation with visible storage and sale of products physically at the premises, discussed through Monash City Council v Dadalias & Ors ([64]).
It is also relevant where the parties dispute whether the operator genuinely uses the dwelling as their principal residence. The Tribunal considered testimony, observations by neighbours and documentary evidence, then made an objective factual assessment ([40]-[44]). The case does not set out a closed list of proof; it describes the material presented and the finding made on that record.
For land-use characterisation, the decision may be relevant where an activity takes place within a residence but an objector argues that its true character is a separate commercial office. The Tribunal focused on factors such as public attendance, street-facing appearance, advertising, the area used and the relationship between the business and the dwelling ([67]-[71]). It distinguished those facts from the business-like premises described in Lilydale.
Finally, the decision is relevant to amenity assessment for a home occupation in a residential area where the issues include employee attendance, parking and deliveries. The Tribunal's assessment was site-specific: it considered the arterial-road setting, limited visitor numbers, existing parking and the evidence about delivery frequency, then added conditions ([75]-[91]). It expressly noted that future applications would be assessed on their own merits ([98]).
The supplied judgment contains no decisions issued after 26 September 2001 that assess, follow, distinguish or criticise Rafferty v Boroondara CC. The source therefore does not establish how later courts or tribunals have treated this decision. It would be unsafe to infer subsequent treatment from the authorities that Davies Member cited, because those were earlier decisions relied on or discussed in deciding this application.
The judgment does describe how the cited earlier authorities informed its reasoning. It applied the objective residence approach attributed to Tovey ([43]-[44]); considered Leech but rejected the permit applicants' reading of it as supporting unfettered discretion ([57]-[59]); considered Lilydale and the test from Kaydren in analysing residential character ([51], [67]-[71]); and distinguished Dadalias from a proposal involving telephone sales of goods not physically at the site ([63]-[65]). Thompson was cited as an example involving a travel agency selling products not manufactured at, or physically present on, the premises ([63]). These are relationships to earlier authorities, not evidence of later treatment of Rafferty.
The reasons resolve the specific sales issue on the facts that the goods were generally held at a warehouse and the Kew property was not a dispatch centre. They do not specify every situation in which goods might be considered physically present or “offered for sale” at a home occupation. A proposal involving substantial sample stock, regular dispatches, public visits or visible sales activity could present different facts from those described here ([46], [62]-[65], [84]-[86]).
The decision also does not set a precise threshold for when work in a dwelling ceases to be ancillary and becomes a separate commercial use. It adopts a question of degree and identifies relevant contrasts, but the assessment remains tied to the particular activity, premises and surrounding area ([51], [67]-[71]).
The Tribunal found no adverse amenity effect on the evidence before it, while acknowledging that deliveries and employee attendance required limits. The judgment does not establish how different traffic volumes, operating hours, building alterations, noise, signage or neighbourhood settings would affect the balance ([72]-[91]). Nor does it determine how the scheme provisions may have changed since 2001. Those matters cannot be resolved from this judgment alone.
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Medium Neutral Citation [2001] VCAT 1926
The Application for Review is disallowed and the decision of the Responsible Authority is affirmed (subject to amended conditions). A permit is granted and directed to be issued.
The use of the existing dwelling for the purpose of a Home Occupation (telephone sales and office administration) in accordance with the endorsed plans.
The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 7 December 2000 and the following additional conditions:
* Employees who are not residents of the building shall only take part in the use hereby permitted between the hours of 9am - 5.30pm, Monday to Friday.
* Deliveries to and from the site associated with the use hereby permitted shall only be carried out between the hours of 9am - 5.30pm, Monday to Friday.
* The use hereby approved shall only operate while conducted by a person who has the premises as their principal place of residence to the satisfaction of the Responsible Authority.
Mr Paul Baulch, planning consultant (Coomes Planning), represented the Responsible Authority.
Mr John Cicero, Solicitor of Best Hooper, appeared for Mrs Rafferty, an Objector/Applicant for Review. He called Mrs Rafferty to give evidence. He also called Mr E Zagami, planning consultant, to give expert evidence.
Ms Gwen Dixon, an Objector/Applicant for Review, was represented by her son, Mr Craig Dixon. Ms Dixon was called on to elaborate on some of the submissions.
Mr Egils Stokans, Solicitor of Russell Kennedy, appeared for the Applicants for Permit/Respondents. He called Mr Jamie Mitchell to give evidence.
The written submissions of the parties, including supplementary submissions after the hearing, Mr Zagami's report, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.
1. This is an application by Objectors under Section 82 of the Planning and Environment Act 1987 to review a decision by the City of Boroondara to grant a permit (in Application No BOR/00/00174) for the land at 306 Cotham Road, Kew to be used for the purpose of a Home Occupation.
2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"), Mr Stokans requested the Tribunal to amend the application for permit by including Mr Jamie Ian Mitchell as an Applicant for Permit.
3. Mr Stokans explained that it was intended that the Mr Boyd Dainton, the Applicant for Permit, would operate the proposed business but that the situation has changed. While Mr Dainton may reside at the premises and operate the proposed business in the future Mr Stokans advised that it is now intended that Mr Mitchell will operate the proposed business. Mr Stokans submitted that Mr Mitchell currently conducts an as-of-right Home Occupation.
4. There were no objections from any of the parties to the inclusion of Mr Mitchell as an Applicant for Permit/Respondent. Being also of the opinion that it was appropriate that Mr Mitchell be joined I allowed the request in the manner sought.
5. The subject site is located on the southern side of Cotham Road, commencing approximately 50m east of John Street. The site has a frontage of 18.29m and a depth of 60.05m, yielding a site area of 1135m2.
6. The site is developed with a two storey brick dwelling. The rear of property has a tennis court and swimming pool. There is a single garage on the western side of the dwelling. A large section of the area within the frontage is paved.
7. A high brick fence extends along the frontage. Gates provide separate vehicle and pedestrian access.
8. Surrounding land on the southern side of Cotham Road is developed for residential purposes. The property abutting to the east (308 Cotham Road) has a double storey brick dwelling - the home of the Applicant for Review, Mrs Rafferty. The other Applicants for Review, Mrs Dixon and Ms Taggart, are the owners of units within a single storey four-unit development on the property abutting to the west (304 Cotham Road). To the south are the rear of residential properties fronting Alfred Street.
9. In the vicinity of the subject site the land on the northern side of Cotham Road is used for a variety of non-residential purposes ; for example, St Georges Hospital, a liquor outlet, a petrol station, a telephone exchange and Genezzano school.
10. There are pedestrian lights immediately to the west of the subject site. A tram stop is nearby. Cotham Road is a major arterial road. It has "Clearway " parking restrictions on the north side during the afternoon peak and the south side during the morning peak.
11. Permission is sought to extend the current limited Home Occupation by increasing the floor area used for this purpose to 58.2m2 and increasing the number of non-resident employees to two.
12. Information accompanying the application for permit described the proposed use as "telephone sales and office administration". It was noted that "two people who live in the dwelling will work in the occupation and a maximum of two additional persons who do not live in the dwelling will also work in the occupation". The rooms to be used are the sitting room, dining and living rooms - all on the ground floor.
13. The proposed hours of operation are 9.00am to 5.30pm, Monday to Friday.
14. A Home Occupation is defined in Clause 74 of the Planning Scheme as:
An occupation carried on in a dwelling, or on land around a dwelling, by a resident of the dwelling. It may include a use defined elsewhere, but not a brothel.
15. Particular provisions with respect to Home Occupation are contained at Clause 52.11 of the Planning Scheme. The purpose of these controls is:
To ensure that the amenity of the neighbourhood is not adversely affected by an occupation conducted in or from a dwelling.
16. Under the Boroondara Planning Scheme the subject site is zoned Residential 1 and not affected by any overlay controls. Within this zone a Home Occupation is permitted as-of-right if the requirements of Clause 52.11-1 are met. These requirements are:
* The person conducting the home occupation must use the dwelling as their principal place of residence.
* No more than one person who does not live in the dwelling may
* The gross floor area used in conducting the occupation including the storage of any materials or goods must not exceed 50 square meters or one-third of the gross floor area of the dwelling, whichever is the lesser.
* The occupation must not adversely affect the amenity of the neighbourhood in any way including:
* The appearance of any buildings, works or materials used.
* The transporting of materials or goods to or from the dwelling.
* The storage of chemicals, gases or other hazardous materials.
* No motor vehicle may be serviced or repaired for gain.
* Only one commercial...not exceeding 2 tonnes capacity ...registered to a resident of the dwelling may be present at any time. The vehicle must not be fuelled or repaired on the site.
* No goods other than goods manufactured or serviced in the home occupation may be offered for sale.
* Materials used or goods manufactured, serviced or repaired in the home occupation must be stored within a building.
* No goods manufactured, serviced or repaired may be displayed so that they are visible from outside the site.
Despite the requirements of Clause 52.11-1, a permit may be granted for a home occupation:
* Which allows no more than two persons who do not live in the dwelling to work in the occupation: or
* Which has a floor areas not exceeding 100 square metres or
one-third of the gross floor area of the dwelling, whichever is lesser.
* Which allows no more than one additional commercial vehicle...not exceeding two tonnes capacity...registered to a resident of the dwelling, to be present at any time.
18. Clause 52.11-2 requires that before deciding on an application, in addition to the guidelines in Clause 65, the responsible authority (and this Tribunal on review) must consider, as appropriate:
* Whether there is a need for additional parking or loading facilities.
* The effect of any vehicle parking, storage or washing facilities on the amenity and character of the street.
* Whether the site is suitable for the particular home occupation and is compatible with the surrounding use and development.
* Whether there is a need for landscaping to screen any outbuildings or car parking or loading areas or any other area relating to the home occupation.
19. Clause 65.01 of the Planning Scheme directs the responsible authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.
20. The purpose of the zone, set out at Clause 32.01 includes:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.
21. Council's Municipal Strategic Statement ("MSS") is at Clause 21. Mr Baulch highlighted Clause 21.08 (Commercial Sector).
22. A number of policies within the Local Planning Policy Framework are also relevant - the Car Parking policy (Clause 22.03), the Neighbourhood Character policy (Clause 22.07) and the Discretionary Uses in Residential Areas policy (Clause 22.04) (hereafter "Discretionary Uses policy").
23. At Clause 22.04-2 the objective of the Discretionary Uses policy is stated as "To ensure the sensitive integration of discretionary uses into their surrounding areas". General policies, at Clause 22.04-3, include that a discretionary use "provides services that respond to local need" and "minimises its impact on existing residential areas". The "creation of clusters of non-residential activity" is to be avoided.
24. A section of the Discretionary Uses policy relates to "Domestic" uses which are "defined as minimal impact, residential appearance. Includes home occupation". Particular policies for this category are:
* Nearby residential properties are not disturbed by the operation of the activity at night.
* The dwelling retains a residential appearance.
* Alterations not preclude a return to solely residential use in the future.
* Sites be landscaped to minimise the effect of the development upon adjoining and nearby residential properties.
* The visual appearance of the site be enhanced through landscaping.
* Landscaping areas be provided along the frontage and sideage/s, and for new buildings along boundaries abutting residential properties.
25. Performance standards for the policy are contained at Clause 22.04-4. As explained by Mr Baulch they are one way a proposal may satisfy the relevant policy objectives and statements outlined above. For home occupation the performance standards are:
* Possible spread of hours 8am - 6pm Monday - Friday.
* 1 car space to be provided for each employee, 1 for the dwelling and customer parking to be assessed on an individual basis.
26. The Application for Permit was lodged on 22 February 2000. Following the giving of notice of the application four objections were received. Mr Baulch summarised the grounds of objection as follows:
* The southern side of Cotham Road is mainly residential. The existing non-residential uses in the area are significantly located on the north side of Cotham Road which effectively demarks the
non-residential uses in the area from the residential uses.
* To allow a commercial use on the south side of Cotham Road, which is clearly a residential area, will erode the residential amenity of the neighbourhood.
* The proposed use is not as of right and should be rejected unless there are special circumstances.
* The proposal fails to comply [with] the as of right use for two reasons - employee numbers and the area of the dwelling to be used.
* The application does not describe the exact nature of the business to operate there.
* Telephone sales often rely heavily on after hours contact with prospective customers and the proposed hours of operation (9.00am - 5.30pm) does not sit well with this.
* The existing front fence will not totally hide the parking of vehicles in this area and will create the appearance of a commercial car park that will detract from the residential amenity of the area.
* The residential character is taken away and replaced by an office use. The proposed office area substantially impinges on the residential amenity of the dwelling making it primarily an office and workplace for an unacceptable number of workers.
* Every aspect of what is proposed for the site has a commercial orientation.
* The proposal results in a substandard level of residential accommodation.
* The use is better suited in a commercial area.
27. The planning officer's recommendation that the application be allowed was adopted by the Council's delegate. A Notice of Decision to Grant a Permit, subject to 14 conditions, was issued on 7 December 2000.
28. On 28 December 2000 a joint application for review was lodged by three of the Objectors. The following grounds were stated:
1. The proposal is not appropriate to the location.
2. The notice of decision has not specified trading hours which is inappropriate given the sites [sic] residential location and zoning.
3. There is no reasonable expectation that the applicant will comply with the conditions of permit.
4. The size and intensity of the proposed use will be detrimental to the amenity of the neighbouring residential properties.
5. There are no delivery times of goods to and from the premises specified.
6. The applicant has not provided the Council and the objectors with all relevant information with respect to the conduct of the proposed use.
7. There has been no specified size of delivery vehicles.
8. There has been no specified frequency of delivery vehicles.
29. The Applicant for Permit's Statement of Grounds, received by the Tribunal on 19 February 2001, stated the following:
Grounds 2, 5 and 8 of the grounds for review can be the subject of conditions, and the grounds themselves are insufficient to justify rejection of the proposal.
There will be no significant site amenity impacts from the use of the premises.
30. As noted earlier Clause 52.11-1 contains numerous requirements for a Home Occupation. During the hearing Mr Cicero sought to exclude the use on the basis that one of these requirements is not currently satisfied and would not be complied with - that is, that the person conducting the home occupation must use the dwelling as their principal place of residence. Towards the end of the hearing Mr Cicero submitted that a further requirement of Clause 52.11-1 is not and would not be complied with - that is, "no goods other than goods manufactured or serviced in the home occupation may be offered for sale".
31. The matters raised by Mr Cicero are both threshold issues concerning the characterisation of the use which must be determined before the merits of the proposal are considered.
32. Notice of the first of these matters had been given to the other parties and I heard submissions on the issue. However, the second matter was only raised after the evidence of Mr Mitchell was heard.
33. I determined that the parties should have 14 days in which to make further submissions on the second matter raised by Mr Cicero. Any submissions were to be served on the other parties.
34. A submission on behalf of Mrs Rafferty was received on 3 August 2001. A submission on behalf of Ms Dixon was received on 7 August 2001. A submission on behalf of the Applicants for Permit, dated 8 August 2001, was received on 10 August 2001. Only the Responsible Authority took up the opportunity I offered for parties to provide a response to any further submissions within an additional 14 days. A submission on behalf of the Responsible Authority, dated 23 August 2001, was received on 27 August 2001.
35. I record that although I have a legal qualification I am not a legal member of the Tribunal. Nevertheless, the parties consented to me determining these questions.
Whether Resident of Dwelling Conducting the Use
36. Mr Cicero submitted that contrary to Clause 52.11-1 the home occupation is not conducted, or intended to be conducted, by a person who has the dwelling on the subject site as their principal place of residence. He argued that the dwelling is not the principal place of residence of anyone.
37. This submission was originally based on Mr Dainton being the Applicant for Permit. It was, however, conceded by Mr Stokans that 306 Cotham Road is not the principal place of residence of Mr Dainton. He currently resides at Shepparton.
38. As noted earlier I allowed Mr Mitchell to be joined as an Applicant for Permit. According to Mr Stokans it is Mr Mitchell who will conduct the home occupation and reside at the premises.
39. While Mr Cicero conceded that that a person "conducting the home occupation" may include an employee of the owner he submitted that 306 Cotham Road is not the "principal place of residence" of Mr Mitchell.
40. On this matter Mr Cicero relied on the evidence of Mrs Rafferty. At the suggestion of a Council officer Mrs Rafferty had maintained a detailed record between November 2000 and April 2001 of vehicles present on the subject site and signs of occupancy. A copy of this record was tendered. Mrs Rafferty had also had conversations with Mr Mitchell.
41. Mrs Rafferty observed that there were lengthy periods when there was apparently no one living on the premises. Indications of this were the lack of lights, overflowing mail, garbage bins only occasionally put out and no vehicles visible. Mrs Rafferty recalled a conversation with Mr Mitchell in which he said that as part of his job he should stay at the premises but he lived with his girlfriend at Templestowe. Mr Cicero submitted that Mr Mitchell is "baysitting the premises" and is not using the dwelling as his principal place of residence.
42. Mr Mitchell's evidence was that while he does stay at his girlfriend's home more often he sleeps at the subject premises. He acknowledged that he is frequently away on weekends. He called 306 Cotham Road his "home" and noted that while he has minimal furniture of his own he does have a bed (positioned in bedroom 4) and all of the kitchen equipment is his. Mr Mitchell stated that he is not fond of gardening and does not hang clothes on the line. More significantly, Mr Mitchell produced various documents showing his address as 306 Cotham Road. These included a driver's licence, traffic infringement notice, motor cycle registration and bank statements.
43. Mr Stokans referred me to the decision of the Tribunal in P W Tovey v City of Stonnington & Ashley 18 AATR 14. In that case Member Bryant held that whether a dwelling constitutes the "principal place of residence" in any situation is a question of fact to be determined objectively. Residency could be established through the production of documentation such as electoral rolls, drivers licence, tax files and the like.
44. I am satisfied that the evidence of Mr Mitchell, particularly the documentary evidence, establishes that 306 Cotham Road is his "principal place of residence". As Mr Mitchell is not an Australian citizen he does not have some of the documents referred to in Tovey. Nevertheless, those documents he was able to produce can be considered to be the best available. They all point to his residence being 306 Cotham Road. I accept Mr Stokan's submission that Mrs Rafferty's observations cannot outweigh the evidence of Mr Mitchell which was fully tested at the hearing. I also note that Mrs Rafferty's own recorded observations include the consistent parking of Mr Mitchell's vehicle at the subject site.
Whether Use Falls Within Definition of Home Occupation
45. After hearing Mr Mitchell's evidence about his role Mr Cicero submitted that what is being carried on is not a home occupation in that it does not comply with the requirement in Clause 52.11 that "no goods other than goods manufactured or serviced in the home occupation may be offered for sale".
46. It was the evidence of Mr Mitchell that he is the "Sales and Marketing Manager" of "Innovision Technologies Australia". The company is an importer and wholesaler of computer products. Its main clients are large companies. The head office is at Shepparton. Stock is kept at a warehouse at Tullamarine. No goods are dispatched from the premises in Kew, apart from sample products on odd occasions. No manufacturing, servicing or production takes place on the subject premises. Currently there are two persons in the "sales team" based at 306 Cotham Road. Mr Mitchell is the only person on the premises throughout the day. The other member of the team is "primarily on the road". Mr Mitchell described his role as generating new business or "canvassing sales". He does not process orders. Under cross-examination by Mr Cicero Mr Mitchell described his role as "telemarketing". He explained that he is involved in the sale and marketing (including the design of boxes) of goods over the phone and by direct visit.
47. In his supplementary submission after the hearing Mr Cicero submitted that the activities described by Mr Mitchell involve the "offering of goods for sale" which are not "goods manufactured or serviced in the home occupation". Mr Cicero referred to various contract law texts as to the meaning of "offer". For instance, he noted that as a general rule the courts regard an offer as a proposal of terms that is capable of constituting a contract if accepted. He noted the Macqaurie Dictionary definition of "offer" which includes "to present for sale", "the condition of being offered : an offer for sale" and "something offered". He also noted that Dictionary's definition of "marketing":
1. the total process whereby goods are put on to the market.
...if a potential customer makes a telephone enquiry about the supply of goods, and the trader gives details about the availability, specifications, quality or price of the goods then this constitutes an offer. If the customer accepts the offer to purchase goods on those terms, this constitutes acceptance and a binding contract is created.
...if a trader, in the absence of any request for goods, telephones a person and proposes to sell particular goods for a certain price this too constitutes an offer...
It is irrelevant for the purpose of complying with requirement 8 in Clause 52.11-1 that the goods offered for sale are accepted by a consumer, or whether a contract of sale is effected at all. The requirement simply prohibits in a "home occupation" the offering of goods for sale that are not manufactured or serviced in the home occupation.
49. Mr Cicero submitted that based on Mr Mitchell's evidence I should be satisfied that the existing and proposed activity is a breach of the mandatory requirements of Clause 52.11-1 and effectively results in a land use other than a home occupation.
50. In the alternative activity Mr Cicero submitted that even if all the requirements of Clause 52.11- were satisfied the appropriate land use classification is not home occupation but an office used for the purpose of making sales. Such a use is prohibited in the zone.
51. Mr Cicero referred me to Shire of Lilydale v Groen (1990) AATR 188. In that case Member Gibson allowed an enforcement order on the basis that that the use of a studio at the front of a dwelling as a real estate business, having the appearance of a shop with associated car parking, could not be characterised as ancillary to a home use. The Tribunal held that even if the real estate use was within the planning scheme guide rules for "home occupation" it was not automatically to be classified as a home occupation. The Tribunal adopted the test for a legitimate home occupation in Kaydren Pty Ltd v Gold Coast Council 1 APAD 376 which stated, in part:
...whatever the use, the planning philosophy for a home occupation must emphasise the residential characteristic involved in the use, so that the activity carried on does not go beyond what is essentially residential, and become what might be recognised as either commercial or light industrial. It is essentially a question of degree and whether or not a particular home occupation which qualifies by definition, might not be regarded as a legitimate home occupation from a planning point of view, will depend on the circumstances of each case, including the nature of the particular use and the area in which it is sought to pursue it.
52. In the light of the above test Mr Cicero submitted that in this instance the use of the dwelling as a residence is artificial, the predominant use of the land is for the purpose of office and the proposed use goes beyond a residential land use.
53. Some of these broader issues raised in Mr Cicero's supplementary submission were also raised in the further submission made on behalf of Ms Dixon, by her daughter, Ms Karen Dixon, a legal practitioner. It was submitted that there is a threshold issue of what is the primary purpose of the use of the land.
54. Specifically Ms Dixon submitted that Mr Mitchell only occupies the premises in order to facilitate the conduct of the business, the prime use is that of a business and any occupation by Mr Mitchell "is ancillary to this ; indeed, contingent on the continued use of the premises for the business".
55. Furthermore, Ms Dixon argued that Mr Mitchells' tenancy arrangement as part of his employment, his role on the premises and the use of the premises "have all the hallmarks of a business activity unrelated to the usual understanding of the term `home occupation'."
56. Ms Dixon concluded that the proposed use fails the threshold issue she identified.
57. Mr Stokans further submissions on behalf of the Permit Applicants can be summarised as follows:
* The proper construction of Clause 52.11 is that if any of the requirements of that clause are not met a permit is required (per F & H Leech v Greater Bendigo City Council (1999) VCAT 1392 (31 August 1999).
* The goods offered for sale are "serviced" in the home occupation and therefore the requirement in Clause 52.11-1 is met. "Servicing", as defined in the Macquarie Dictionary includes "the supplying or supplier of an article, commodities, activities required or demanded". The activities carried out as part of the home occupation, including dissemination of information, services to prospective purchasers in the from of collection and distribution, arranging delivery and completion of paperwork, amount to the goods being offered for sale being "serviced".
* Clause 52.11 is intended to be policy to assist the use of discretion. It is not a control. Mandatory provisions in a policy are prescriptive and contrary to the philosophy of the recent reform process.
* Alternatively, the requirement in Clause 52.11-1 is not mandatory, but simply discretionary. That is the use of the words "may be offered for sale", rather than "shall be offered for sale" at the very least raises doubts as to the proper meaning of the requirement.
* A literal interpretation of the requirement produces an absurd result: that is, it would prohibit most sales activities from home occupations despite there being no adverse amenity impacts of such activities.
It makes no sense to permit goods which are manufactured, serviced or repaired on the site to be stored within the building and to prohibit the offering for sale of goods not on the site which have no effect on surrounding amenity. To give the words their literal meaning will result in the absurdity of prohibiting an activity which furthers the objectives of providing home employment opportunities which have no possible external amenity impacts.
The Applicant's primary submission is that the subject requirement relates to goods being offered for sale which are physically on the premises. When one considers the purpose of home occupation, it becomes apparent that the provision is intended to prevent goods from being offered for sale which are physically on the premises and which have not been manufactured or serviced in the home occupation.
This interpretation is supported by the last two requirements of Clause 52.11-1 which clearly contemplate the physical presence of such goods on the site.
* An absurd result can and should be avoided by using recognised principles of statutory interpretation.
* A strict legalistic approach should be avoided in the interpretation of planning instruments, especially new format planning schemes.
* Clause 52.11 should not operate as a defacto zone control. Instead it must be asked, what will the outcome be? Will the proposed use further the objectives of the policy, or will it be contrary to them? If it will satisfy the purposes of the policy, then it must be asked, why not allow the use?
58. Mr Stokans' submissions include many alternative arguments. Some of them I reject outright. I accept Mr Cicero's submission that compliance with the requirements of Clause 52.11-1 is mandatory, save where they can be varied pursuant to Clause 52.11-2. There is not unlimited discretion. In the present case, if the requirement that "No goods other than goods manufactured or serviced in the home occupation may be offered for sale" is not met then the use cannot be a home occupation for which a permit can be issued. Having read the decision of Member Rickards in F & H Leech I consider that Mr Stokans has read more into the Tribunal's description of the planning controls relating to home occupation than warranted. Member Rickards was also deciding different issues to those arising in this application for review.
59. Nor do I accept that the Particular Provisions for Home Occupation at Clause 52.11 are "policy" and intended to guide unfettered discretion. I consider that the requirements in Clause 52.11-1 are a clear statement of restrictions on a home occupation. The provisions of Clause 52.11-2 represent the only situations in which a permit may be granted where Clause 52.11-1 requirements are not met.
60. It is arguable whether it is appropriate to adopt the broad meaning of "servicing" suggested by Mr Stokans. Mr Stokans' submission with respect to the use of the words "may be offered for sale" also seems to be drawing a long bow. Ultimately I do not find it necessary to endorse those submissions as I fully accept an alternative submission and the "primary submission" of Mr Stokans. That is, that the requirement in Clause 52.11-1 relates to goods being offered for sale which are physically on the premises.
61. In a brief supplementary submission that was also the view of the Council. I was advised that in making its decision the Council was of the opinion that telephone sales met requirement 8 of Clause 52.11-1 as the goods being sold were not present on the site at any time.
62. There are obviously many possible meanings of "offer for sale". I do not accept that the strict contractual definition suggested by Mr Cicero is the appropriate one. I do not consider that the requirement in Clause 52.11-1 relates to advising that goods not on the premises are available for purchase elsewhere. I accept Mr Stokans' submission that no purpose would be served by restricting the sale of goods not on the premises. This is especially so where the activity (telephone sales) can be said to have no amenity impacts.
63. As highlighted by Mr Stokans, in Thompson v Moonee Valley CC (1998) VCAT 771 the Tribunal directed the issue of a permit for a home occupation (travel agency). Such an agency offers travel products for sale which are not manufactured on the premises or physically on the premises.
64. This is in contrast to the situation considered in Monash City Council v Dadalias & Ors [2000] VCAT 1047. That case concerned the visible storage and sale of garden products which were physically on the premises. Member Komesaroff ordered the cessation of the use and accepted evidence that the goods were not manufactured, serviced or repaired on the subject land and thus their sale was in breach of old format Planning Scheme provisions comparable to Clause 52.11-1.
65. My finding is that the use now, and as proposed, is not precluded by the requirement in Clause 52.11-1 that "no goods other than goods manufactured or serviced in the home occupation may be offered for sale".
66. My direction with respect to further submissions restricted submissions to the abovementioned question. However, as outlined above the parties raised additional matters in their further submissions. I have considered those submissions and note the following.
67. I do not consider that it has been established that the current use or the proposed use will be "ancillary" to the occupation of the dwelling and therefore not a home occupation on a primary purpose test.
68. The use is to occur in a limited area of the dwelling. The floor area proposed to be used is only marginally greater than that allowed as-of-right. The use does not preclude the use of the dwelling by additional residents (be they Mr Daiton and his family or others).
69. Although not referred to by the parties I note that in the Lilydale case Member Gibson added an "independent test" to the test in Kaydren of "what is the interpreted intention of the Ordinance". The Tribunal held that transformation of the studio into an office used for "full time commercial business of a Real Estate Agent", including inviting the public and conducted as if it was in a commercial zone, was contrary to the intention of the Ordinance which intended to prohibit this type of occupation in the residential zone. The Tribunal stated:
Home occupations are intended...to be limited to commercial activities conducted from within a residence/home which does not cause nuisance to adjoining residence".
70. Member Gibson noted that the real estate agency was not conducted from the home but from a building fronting the street with "decoration". There was also an adjacent car park. The Tribunal held that these features "turned the building into a business premises where upon it ceases to be ancillary to the dwelling".
71. In contrast, the proposed home occupation is to be conducted from within the dwelling, involves no advertising or indication to a passer-by of its use, would not invite the public and, as discussed in the following section, would have no adverse amenity impacts. I conclude that the use would be ancillary to the dwelling.
72. One of the requirements for an as-of-right Home Occupation is that it "must not adversely affect the amenity of the neighbourhood in any way...". That requirement is not varied by Clause 52.11-2. It is a strict and onerous requirement.
73. The Clause 52.11-1 amenity provision includes a list of seven factors which may lead to an adverse effect on amenity. There may be other factors. Three of the listed factors are clearly not relevant in this case (that is, electrical interference, the storage of hazardous materials and emissions).
74. The appearance of any building is one of the listed factors. I also note that one of the policies for the "Domestic" category in Council's Discretionary Uses policy is that a dwelling should retain a residential appearance.
75. On that matter I accept Mr Baulch's submission that "when viewed from the street by a casual passer-by, there would be no indication that the premises are used for anything other than residential purposes". In particular, I note that no advertising signs of any type are currently erected or proposed.
76. The parking of motor vehicles is a listed factor in the amenity provision in Clause 52.11-1. "T_he effect of any vehicle parking...on the amenity and character of the street_" is also a required consideration Under Clause 52.11-2.
77. The plan submitted with the application indicates a total of 4 spaces within the frontage - the two closest to the frontage in a tandem arrangement. Condition 1(b) of the Notice of Decision requires an amended plan showing 4 spaces in a tandem arrangement utilising the existing paved area and thus retention of the existing garden beds.
78. I accept Mr Stokan's submission that in recent years car parking has existed in the front setback. I accept Mr Zagami's evidence that the openings in the brick wall and the slope of the land would cars allow cars parked within the frontage to be visible. However, I consider that visibility would be limited. Cars parked in the forecourt would not dominate the streetscape. As I understand the intended use it is likely that the parking area would be rarely fully utilised. Mrs Rafferty's recorded observations confirm the low level of vehicle movements on site in association with the current use.
79. With respect to the number of spaces I note that the provision complies with the performance standard in Council's Discretionary Uses policy. The policy calls for visitor parking (or "customer parking") to be assessed on an individual basis.
80. According to Mr Mitchell's evidence, which I accept, visitors do not ordinarily attend the site. Mr Mitchell estimated that with the current use there are no more than 2-3 visitors a month. As noted by Mr Baulch there would be spaces available on Cotham Road if on-site spaces were fully utilised.
81. I do not consider that the parking arrangement would adversely affect neighbourhood amenity or character.
82. The transporting of materials or goods to and from the dwelling is a further factor listed in the amenity provision of Clause 52.11-1. On this matter Mr Baulch advised that Council considers that there is likely to be a small number of delivery and commercial vehicles associated with the proposed use. Based on an assessment of the general "office" type activity proposed Mr Baulch suggested that there would be vehicles delivering stationary and vehicles used by technicians servicing equipment.
83. More particular information on this issue was included in the evidence of Mr Mitchell. He advised that in association with the current use there is a courier delivery/collection "a couple of times a week". There are no other deliveries although occasionally (perhaps once or twice a week) there is a mistaken delivery of goods which are intended for the company's headquarters or warehouse. It was Mr Mitchell's evidence that there are no other dispatches of any significance.
84. Contrary to Ms Dixon's suggestion I do not consider that the current or proposed use can in any way be characterised as a "dispatch centre". I also have doubts about Mr Zagami's conclusions on this matter. Mr Zagami's said that he had been observing "the general activity on the subject site over the last 10 months". Apparently his involved frequently driving past the site. He concluded that the "frequency of deliveries currently experienced together with irregular trading hours will have an impact on the existing residential area".
85. I acknowledge that a permit as now sought would allow a marginally greater scale of business to be conducted. However, in the light of Mr Mitchell's evidence I do not consider there is any reason to suggest that the number of vehicles delivering goods to and from the site would dramatically increase. While the frequency is likely to be higher than experienced at most residences it is unlikely to have an adverse impact on amenity, particularly given the location on busy Cotham Road.
86. Nevertheless, given the abutting dwellings I consider that it is appropriate to restrict the hours at which deliveries can be made. In the light of Mr Mitchell's evidence about the frequency of deliveries I do not consider that it necessary to restrict type of vehicle making deliveries, if deliveries only occurred during normal business hours.
87. I do not consider there is any need to provide further landscaping to screen the car parking or "loading area".
88. The hours of operation is a further factor listed under the amenity provision in Clause 52.11-1. In this case the proposed hours are 9am to 5.30pm on weekdays. These hours are within the spread of hours in the performance standard in Council's Discretionary Uses policy.
89. Mr Baulch highlighted that at the present time there are no restrictions on hours of operation, apart from indirectly via the mandatory amenity requirement in Clause 52.11. I accept his submission that the issue of a permit offers an opportunity to impose conditions limiting the hours. I accept Mr Baulch's suggestion that a condition should restrict the attendance of non-residential employees to the proposed hours of operation. I also agree with Mr Baulch that given the nature of the use it is not necessary or appropriate to restrict the hours when residential employees can conduct the business. It should be possible for residents to work on weekends or evenings, in preparation for the following day, without any impact on neighbourhood amenity. This accords with ordinary domestic use.
90. I accept Mr Baulch's submission that there is unlikely to be any noise associated with the use. Mrs Rafferty conceded that she cannot tell what occurs inside the dwelling now. I heard no evidence that the use is likely to affect the "quiet residential environment" which Ms Dixon values. Ms Dixon (who resides in a unit at the rear of the abutting property) submitted that she currently sees cars on the forecourt and vehicles delivering things when she comes to the front of the property to collect mail or tend the garden. I do not consider that such experiences constitute an adverse impact on her amenity or the amenity of others in the neighbourhood.
91. My finding is that the proposed use would not result in any adverse effects on the amenity of the neighbourhood. Condition 9 on the Council's Notice of Decision adequately spells out the requirement for the use to be conducted in a manner which ensures this.
92. Clause 52.11-1 requires that any Home Occupation "not impose a load on any utility greater than normally required for domestic use". The proposed use, involving a limited number of computers and a telephone, is likely to comply with this.
93. Clause 52.11-2 calls for consideration of "whether the site is suitable for the particular home occupation and is compatible with the surrounding use and development". The objective of Clause 22.04 is "to ensure sensitive integration of discretionary uses into surrounding areas".
94. Given my findings with respect to amenity impacts I am satisfied that the site is suitable for the particular use and compatible with surrounding uses. I note that Council's Discretionary Uses policy covers a broad range of possible uses. The proposed use, in the "Domestic" category, is seen as having the least impact. This is an appropriate requirement where neighbouring properties are zoned and used for residential properties.
95. I gained the impression that Mrs Rafferty and Ms Dixon are seeking a conventional neighbour. They want permanent occupancy of the subject site and a feeling of security that that would afford them. Their concerns with respect to the current occupancy centre on things like gates being left open, lights left on, rubbish bins not being brought in, mail overflowing and the garden not being maintained. They are concerned that the current occupancy does not display the "usual trappings of residential occupation", as Mr Cicero described the situation. The neighbours have legitimate and understandable expectations. Unfortunately, however, planning controls can have only a limited role in any of these types of matters. Planning cannot guarantee good neighbours or neighbours of any particular type or affinity.
96. The Applicants for Review have raised the issue of compliance with conditions. The Tribunal has to be satisfied that compliance is possible. There is no reason to suggest otherwise in this instance. On this matter I also note Mr Baulch's submission that if there are allegations of breach of conditions the Council would fully investigate them and, if found to be substantiated, initiate enforcement action. In this instance the permit applicants have certainly been alerted to the likelihood of Mrs Rafferty continuing to be a diligent observer of activity on the site and any breaches of conditions.
97. Non-residential uses that "serve local community needs are encouraged within a Residential 1 zone. It is also local planning policy that discretionary uses "provide services that respond to local need". While the proposed use does not directly serve that function I do not consider that that in any way automatically precludes it. The particular provisions in the Planning Scheme with respect to the use contain no restrictions regarding function. As noted by Mr Baulch there are various "critical social changes" making the use of dwellings for home occupation a growing activity. Provided there are no inappropriate effects on local amenity I consider that there is no fundamental objection to a use which does not principally serve local needs.
98. Lastly I note that the Applicants for Review are concerned that approval of the use would create a precedent for further non-residential uses on the southern side of Cotham Road. I do not consider that the issue of a permit in this instance would create any such "precedent". Any further applications would need to be considered on their particular merits. I note that the Council policy regarding the undesirability of the agglomeration of such uses may then arise as a relevant consideration.
99. In summary I have found that the proposed use is not excluded by the provisions of Clause 52.11. The permit would allow the scale of the current operation to be increased. However, subject to compliance with mandatory provisions and extra conditions I am satisfied that it would be able to operate without any adverse impact on neighbourhood amenity.
100. Accordingly I will disallow the Application for Review and make the appropriate order.
101. The conditions I intend to impose are those included in the Council's Notice of Decision with additional conditions to reflect my findings in relation to the hours of deliveries and hours of employment by non-residents.
102. I note that many of the conditions derive from requirements of Clause 52.11-1. Strictly speaking they are redundant and would more appropriately be "Notes" on the permit, as a reminder of mandatory requirements. Nevertheless, I do not proposes to vary the approach adopted by the Council. I consider, however, that Condition 6 does not fully express the requirement for the occupation to be operated by a person who resides at the premises. There should be an additional condition to that effect.
Margaret Rafferty & Gwen Dixon
Boroondara CC & Others [2001] VCAT 1926
The application for review was disallowed and the responsible authority's decision affirmed, subject to amended conditions. A permit was directed to be issued for use of the existing dwelling as a home occupation for telephone sales and office administration. Additional conditions limited non-resident employees and deliveries to 9 am to 5.30 pm, Monday to Friday, and required the use to operate only while conducted by a person who had the premises as their principal place of residence.