Mr Steve Lipson, town planning officer, Melton Shire Council.

1 The permit applicant reviews two conditions placed by council on his planning permit for a store (outbuilding) requiring:

a) A reduction in the floor area of the shed to at least 160 square metres and a maximum height of 4.5 metres to accord with Council's Shed and Outbuildings Policy.

b) A minimum setback of 3 metres from the eastern rear boundary be provided for the shed.

2 The permit applicant's principal position is that no planning permit is needed for his outbuilding, because it is ancillary to his use of the land for a detached dwelling.

3 Mr May is a retired motor mechanic, who wishes to store a racing boat, two cars, motorbikes and a trailer in his large shed, and possibly use part of it as a personal gymnasium. However lately, he has also used the shed to build a kit aeroplane as a private hobby.

4 His land is zoned Residential 1, and lies between a Low Density Residential zone and a Green Wedge Farming zone.

5 In a Residential 1 zone, a 'store' requires planning permission if it is used to store equipment, goods or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot. Neither Mr May nor any other member of his family conducts an occupation at present.

6 This large shed is located behind Mr May's ranch style dwelling, which has a very wide frontage (as far as detached dwellings are generally concerned). This means that the shed is well screened from the street, but is readily visible from his rear and side neighbours.

7 His 220 square metre shed is 10 metres wide and 22 metres long, with an overall height of 5.29 metres. It is set back three metres from his southern boundary and two metres from his eastern boundary. The shed sits on his block of land measuring 2,011 square metres in area, with a frontage of 36.9 metres and a depth of 60.88 metres.

8 The impact of council's conditions are to require an overall height reduction by 79cm, an overall size reduction of 60 square metres down to 160 square metres and an additional one metre setback from the eastern boundary of the land.

9 Mr May obtained building permission for his detached dwelling, and outbuildings including a shed, on 28 October 2005. His building surveyor was unaware of a draft council policy on sheds and outbuildings adopted in October 2005.

10 The status of the council policy on sheds is unclear except to say that it is currently on public exhibition. Council's planner could not advise me of a planning scheme amendment number. Nor was I advised whether the policy was to be a shed policy incorporated into the planning scheme, or a provision such as to remove ancillary sheds of a particular size from as-of-right outbuildings and require them to obtain planning permission under the planning scheme (such as has occurred with satellite dishes and helipads).

11 Pursuant to the 'shed policy' on land over 2000 square metres in size, (which applies to the subject land) an outbuilding under 160 square metres in size and 4.5 metres in height does not require planning permission.

12 Council advised Mr May that he requires planning permission because of the overall size and height of the shed.

13 If no planning permission is required for this outbuilding, because it is ancillary to the main use of their dwelling, unfortunately permit conditions cannot be imposed requiring landscaping to soften and screen the shed from rear and side neighbours. The issue is whether the size of this shed takes this structure out of an "outbuilding ancillary to a dwelling" or "outbuildings normal to a dwelling" and into a separate use of the land.

14 Unusually, this block of land together with other lots in the same subdivision enjoys the following covenant:

1.1 Not to build or erect on any Lot hereby transferred any building other than one single brick or brick veneer dwelling house (with or without a garage or other usual outbuildings) having an area of not less than one hundred and fifty eight (158) square metres exclusive of the area of any garage or other usual outbuildings

1.2 not to subdivide the property nor construct or allow to remain constructed any dwelling house exceeding 9 metres in height

1.3 not to build or construct any garage or other usual outbuilding on the property other than of a colorbond or brick or stone construction of no greater size of two hundred and twenty five (225) square metres.

15 This means that the minimum house size must be 158 square metres but the maximum garage or other outbuilding size must be no greater than 225 square metres and of colorbond or brick or stone construction.

16 All parties agreed the shed/outbuilding complied with the restrictive covenant.

17 I find this restrictive covenant remarkable as it implicitly acknowledges that a large shed is an ancillary use of the land, which, in the absence of planning controls, requires a restrictive covenant in order to place a limit on its size (with which limit this shed complies).

STORE AND OUTBUILDING POLICY AND GUIDELINES ADOPTED OCTOBER 2005

18 Council represents that in a Residential 1 zone or a Low Density Residential zone, the following land size, shed size and shed height requirements must all be met 'for a permit to not be required':

Total Cumulative Floor Area dedicated to Outbuildings that is considered beyond typical.*

Maximum height (to the roof pitch) of outbuildings that is considered to be typical to a dwelling

* The Total Cumulative Floor Area includes the 20 sqm Bay Size variation allowance, required by industry standards.

** A 100 square metre outbuilding allows for the storage of 4 vehicles, and provides an additional 20 square metres of storage space. Council recognises that as land size increases, property owners will have greater maintenance demands and may require larger machinery, for example ride on lawn mowers. As a result, the total cumulative floor area that is considered to be typical increases as the property area increases. A cumulative floor area in excess of the above calculations is not considered normal to a dwelling and therefore requires a planning permit.

19 The shed therefore is larger than even the largest shed which council says would not require a permit if its associated land was greater than 3000 square metres.

20 However, in fairness to council, they do make clear within this policy that

'these guidelines apply to the development of all stores and outbuildings within the Shire of Melton that require the benefit of a planning permit'.

21 Apparently sheds are a popular outbuilding in the immediate area and council analysed the size of sheds built within this subdivision called the Highfield Estate:

22 The permit applicant pleads that even if a permit is required, council policy not be applied against it, due to the prohibitive cost of demolition or reducing its size and reducing its height and relocating it by one metre - given that:

i

it was unaware of this policy when it obtained building permission and thought it was an ancillary use of the land;

ii

it has sited the shed to the rear of its land well away from the public view of the street;

iii

its two metre setback from the east boundary is adequate room for a generous amount of canopy tree planting to occur.

23 Where a part of land is used for the purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose. The subordinate purpose is merely incidental or ancillary to the dominant purpose. Lizzio v Ryde Municipal Council[1]; Foodbarn Pty Ltd v Solicitor-General**[2]****.**

24 In Alphonso v Casey CC[3], Senior Member Byard went through a helpful analysis of all sorts of activities which can be an adjunct to residential occupation of a dwelling. I find his analysis at paras. 17 & 18 pertinent to the facts of this case:

It is quite clear that such ancillary activities are correctly regarded as part of the use of the land. For example, in relation to the residential use of a dwelling the people living there might indulge in a variety of hobbies, interests or past-times as part of their living in the house. Such activities may, or may not be essential to the use of the place as a dwelling. Cooking, eating, washing and sleeping would normally be regarded as essential elements. On the other hand, the keeping of a few pet rabbits, the playing of social tennis on a domestic tennis court, or swimming in a domestic swimming pool, or cultivating a vegetable garden or a flower garden or entertaining friends for afternoon tea (regularly or irregularly) or holding a party (regularly or irregularly) or having a book club discussion (regularly or irregularly) or, for that matter, a Bible study or prayer meeting are all activities that would quite commonly and quite properly be regarded as ancillary to and thus part of the domestic use of a house as a dwelling.

Of course, it is possible for something to start out as a hobby or past-time that is ancillary to the use of the place as a dwelling and for it to subsequently grow in various ways so as to evolve into something that exceeds the concept of an ancillary activity so as to become a separate use of the land for which planning permission may, if the planning scheme says so, require a permit. If the social playing of tennis on a domestic tennis court evolved to become commercial tennis coaching, a point might be reached where it had changed to a second and separate use. If the vegetable garden became a commercial market garden, or the hobby of restoring of vintage cars became a panel beating business, or the keeping of a few chooks grew into a commercial poultry farm, then a second and separate use would have evolved.

25 It is my opinion that Mr May's use of this large 220m2 store to store a racing boat, two cars, motorbikes and a trailer, possibly use part of it as a personal gymnasium and build a kit aeroplane as a private hobby, is an ancillary use of his land as a dwelling, for which no planning permission is required.

26 In the event Mr May uses this 220 m2 shed in the future for a commercial purpose, this will be a change of facts requiring a different consideration at that point in time.

27 Unfortunately, that makes it impossible for me to direct the issue of a planning permit, to which a condition could be attached, requiring the rear and side setback to neighbours to be landscaped with medium canopy vegetation (shrubs and trees) to screen same from the neighbours. Two metres is ample room for such landscaping to occur.

28 I rely on the May family's good will and consideration for their neighbours to carry out same.

[1] (1983) CLR 211 High Court of Australia

[2] (1975) 32 LGRA 157 at 161

[3] (Red Dot) [2006] VCAT 595 (6 April 2006)