A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants or 2 or more people if the building meets all of the following requirements:

• Is in an area or zone which is used mainly for housing.
• Provides self-contained accommodation.
• Does not have more than 10 habitable rooms.

Note: This provision does not exempt the development of land, including the construction of a building or the construction or carrying out of works and demolition.

1. I find that clause 52.23 operates to exclude the use of any land, which meets all the requirements set out in clause 52.23, from the need for a use permit arising under any other provision of the planning scheme.
2. Clause 52.23 is an exclusionary provision. It only exempts a use from the need for a permit if a permit is required under some other provision of the planning scheme. It does not create a separate use of land for shared housing for which no permit is required. It has no work to do if no need arises under any other provision of the planning scheme for a permit for the use of land meeting the requirements of clause 52.23. For example, the use of land for a dwelling in a residential zone, which meets the conditions for that use in section 1 of the relevant table of uses, does not require a permit. Thus, if there is no need for a permit in the first place, clause 52.23 cannot exempt the use from the need for a permit. Clause 52.23 only has work to do in terms of exempting a use from the need for a permit if a permit is required to use a building under some other provision of the planning scheme in the first place.
3. It therefore becomes important to determine how the proposed use of the land in this case should be characterised in order to decide whether clause 52.23 applies.
4. I note that clause 52.23 states that a permit is not required to use a building ..., rather than a permit is not required to use land .... Nothing turns on this. The use of a building is use of land for the purposes of the Planning and Environment Act 1987 and the planning scheme because:
   • The definition of land in section 3 of the Planning and Environment Act 1987 includes buildings and other structures; and
   • The definition of use in the Act in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed.
5. The words of clause 52.23 refer only to an exemption for a permit for use of the land. Clause 52.23 does not operate to exempt any development from the need for a permit that may be found elsewhere in the planning scheme. The note to the clause makes this clear. The note does not operate to expand or restrict the operation of the clause. It merely serves to make its meaning clear.[3]
6. The introduction of this note to clause 52.23 makes it clear that notwithstanding the decision in Department of Human Services v Maribyrnong CC with respect to the interpretation of clauses 52.24 or 52.22, the reasoning in that decision does not apply to the exemption in clause 52.23. Whilst clause 52.23 provides that a permit is not required for use, it does not extend to provide that a permit is not required for development either.

HOW SHOULD THE USE OF THE LAND BE CHARACTERISED?

1. In determining how the proposed use of the land should be characterised, clause 73 is relevant. It provides that a term used in the planning scheme has its ordinary meaning unless that term is defined in the planning scheme.
2. The certificate of compliance, which the applicant has applied for, relates to a proposed use of land not an existing use. Therefore, the provisions of clause 63.02 relating to the characterisation of use for the use of establishing existing use rights under the planning scheme does not apply.
3. Clause 63.02 provides as follows:

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 73.03 or in Section 1, 2 or 3 of any zone.

1. By contrast, clause 73.03 lists land use terms which may be used in the planning scheme in relation to the use of land. It provides that:

A term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.

1. Therefore, in characterising the purpose of a proposed use, there is a presumption that it should be characterised according to one or more of the land use terms listed in the table to clause 73.03 if the use is obviously or commonly included within one or more of those terms.
2. Of course, there remains the possibility that an activity may not fall readily within a defined land use term or may represent a completely new use, in which case it will be an 'innominate' use. But, wherever possible, characterising a proposed land use as a separate use, rather than as a defined use, should be avoided.
3. In the present case, the applicant seeks to characterise the proposed use of the land as being for shared housing. In this respect, he seeks to rely upon the decision to the Tribunal in Modo Project. In Modo Project, Senior Member Wright decided that a certificate of compliance for a similar use and development to that proposed in the present case should be issued for "shared accommodation" and that it did not require a planning permit for use or development because it was a dwelling.
4. There were thus three options three options for characterising the use of the land put forward by the parties:
   • Dwelling
   • Residential building
   • Shared housing
5. I have concluded that the proposed use of the land is for the purpose of residential building, not for the purpose of dwelling for the following reasons.

1. The definitions of dwelling and residential building in the table to clause 73.03 are as follows:

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village

1. Both dwelling and residential building are included within the land use term 'accommodation', which means land used to accommodate persons.
2. The important characteristic of the definition of dwelling is that it is a building used as a self-contained residence which must contain certain facilities. Residence means a place where people live or reside either permanently or for a considerable period of time[4].
3. In the present case, it was submitted that the building had all the facilities referred to in the definition of dwelling and that people would reside in the building for extended periods of time. However, the people living in the building will not have all the facilities referred to in the definition of dwelling within the rooms to which they have exclusive occupancy. Those rooms will contain a bath or shower, and closet pan and wash basin, but people will rely upon shared facilities for access to a kitchen sink and food preparation facilities. The question then arises whether the individual rooms or units that people have exclusive possession of, must be self-contained, in terms of possessing all the facilities referred to in the definition of dwelling or whether it is sufficient for the building as a whole to possess all these facilities. If so, is it therefore appropriate to characterise the whole building as a single dwelling, as the Tribunal did in Modo Projects?
4. I find the type of use proposed in the present case would commonly be described as a rooming house or a boarding house. In various decisions, the Tribunal has concluded that such uses fall within the definition of residential building[5]. In Armato v Hepburn SC[6] ,in considering the definition of residential building and the common characteristics of those land use terms nested within the term 'residential building, the Tribunal said:

[16] The common characteristic of all the land use terms included in "residential building" is that accommodation is provided for multiple people individually. In other words, there are multiple units of accommodation available within the single building or complex of buildings comprising the particular type of residential building. However, in the case of a single house (or flat or apartment etc) there is only one unit of accommodation even though more than one person may be accommodated. The important distinction is that the people accommodated would be accommodated as a group rather than individuals. On this basis Holly Lodge would not constitute a residential building.

[17] The other predominant characteristic is that most of the uses - boarding house, hostel, nurses home, nursing home, residential college and residential hotel - are places where people tend to live for extended periods of time as distinct from very short, temporary stays. The exceptions are backpackers lodge and motel, which is included in residential hotel. These types of accommodation tend to specialise in short term accommodation for certain types of travellers. The inclusion of backpackers lodge and motel in the land use term "residential building" appears to ignore this difference in type of accommodation - long stay compared to short stay. It also appears to be contrary to the decision of the Supreme Court in Derring Lane Pty Ltd v Port Phillip City Council.

1. The Tribunal in Armato went on to treat the exceptions of backpackers lodge and motel as anomalies within the definition of residential building. It found that a common characteristic of uses nested within the term 'residential building' was "being a building that offers multiple units of accommodation to multiple individuals or groups who are not necessarily related or connected to one another"[7].
2. The distinction between the way in which people are accommodated and the characteristics of each individual unit of accommodation - whether exclusively occupied by one or more people on their own or as a group - represents the sort of qualitative difference described by the then President of the Tribunal, Morris J in National Lifestyle Villages Pty Ltd v Wyndham CC[8] in his consideration of the differences between land use terms where meanings often overlap and may share essential requirements.
3. In the case of Knox CC v Tulcany Pty Ltd[9], the Tribunal found that the use of land as a boarding house was use for the purpose of a residential building.
4. In distinguishing between whether use of land is for the purpose of a dwelling, a residential building (including the sub-categories of a residential building, such as a boarding house, nested within this term) or some other form of accommodation, the characterisation will always turn on the facts of the case. Qualitative differences will be relevant and will include:
   • Whether there are multiple units of accommodation available within the single building or complex of buildings, and whether the units of accommodation that people have exclusive occupation of are self-contained or not.
   • Whether there is only one unit of accommodation even though more than one person may be accommodated.
5. In the case of a dwelling, each unit of accommodation to which there is exclusive occupancy by one or more people must be self-contained and include all the facilities included in the definition. In the case of a residential building, the building as a whole may be self-contained in terms of including all the facilities of a kitchen sink; food preparation facilities; bath or shower; and a closet pan and wash basin, but the units of exclusive occupation would not necessarily include all these facilities.
6. In the present case, there will be eight separate bedrooms with ensuite facilities that occupants will have exclusive possession of. These units of accommodation are not self-contained in themselves. Occupants will share kitchen and food preparation facilities, the rumpus room and laundry. They will not occupy the building as a whole as a group, but as separate individuals. Having regard to these characteristics, I find that the proposed use of the land is properly characterised as use for the purpose of a residential building. It is not a dwelling.

1. Shared housing is not a land use term defined in the table to clause 73.03. The principle set out in clause 73.03 is that a term describing a use or activity in relation to land which is not listed in the table to the clause must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table. Applying this principle, I find that shared housing should not be characterised as a separate use of land.
2. In my view, the concept of shared housing will always fall within one or more of the land use terms included in the broad land use term 'accommodation'. These various land use terms are set out in the nesting diagram for accommodation group in clause 73.04-1. Which appropriate land use term the use or activity for shared housing falls within will depend on the facts and circumstances of the case and the definitions of relevant land use terms listed in the table to clause 73.03.
3. The fact that there is a separate particular provision in clause 52.23 entitled 'shared housing' does not make shared housing a separate land use term. Rather, clause 52.23 sets out requirements that must be met in order to gain an exemption from the need for a permit for use of land where there is need for a permit under some other provision of the planning scheme. What that use might be is not specified in clause 52.23 by reference to any of the land use terms in clause 73.03. Thus, the clause does not say that a permit is not required to use a building for shared housing. Rather, it says that a permit is not required to use a building to house a person or people if the building meets all of the following requirements:
   • Is in an area or zone which is used mainly for housing.
   • Provides self-contained accommodation.
   • Does not have more than 10 habitable rooms
4. The term "to house" must be given its ordinary meaning because it is not defined in the planning scheme or the Act. The ordinary meaning of "to house" in this context is defined in the Macquarie Dictionary as meaning:

18. to put or receive into a house; provide with a house. 19. to give shelter to; harbour; lodge. 20. to remove from exposure; put in a safe place.

1. In Armato, the Tribunal gave this term a very general meaning. It said:

[45] Whilst the verb "to house" may carry connotations of harbouring or sheltering, equally it has a broader, more neutral meaning of lodging or simply providing someone with a house. This is something that the owner or landlord of tourist or other short term accommodation does for their tenants.

1. Equally, the term "to house" applies to owners or landlords offering most forms of accommodation, not just short term accommodation.
2. The result is that many forms of accommodation, which meet all three requirements under clause 52.23, will be exempt from the need for a permit for use if the need for such permit arises under any other provision of the planning scheme. However, the use must be characterised according to ordinary principles of interpretation, not just by reference to clause 52.23.

Should the Tribunal's decision in Modo Project be followed?

1. The applicant based his case on the decision in Modo Project. He submitted that Modo Project stands for the following propositions:
   • The criteria specified in clause 52.23 of the Scheme concerning shared housing establish a class of accommodation uses for which planning permission is not required, regardless of the balance of the Scheme (including the underlying zone controls);
   • Clause 52.23 does not otherwise obviate the need to obtain planning permission in respect of the proposed development of land; and
   • Whether a permit is required in respect of the proposed development of land will turn on the provision of the underlying zone and overlay controls.

...in Modo Project the Tribunal ultimately concluded that planning permission was not required in respect of any element of the proposal at issue in that case, because it was properly characterised as a "dwelling".

1. Whilst it may have been open to the Tribunal in Modo Project to make a finding based on the particular facts and circumstances of the case that the use was properly characterised as a dwelling (although I consider it is questionable), there are other aspects of the decision in Modo that I disagree with. For example, I do not consider that the criteria specified in clause 52.23 concerning shared housing establishes a class of accommodation uses for which planning permission is not required, regardless of the terms of the balance of the scheme (including the underlying zone controls).
2. The Tribunal in Modo Project says:

[13] The proposed use in this case is permitted as of right if the three specified requirements are met. ...

1. In my view, this statement is not correct. The use is not permitted as of right if the three specified requirements are met. Rather, for the reasons I have given, clause 52.23 means that a permit is not required for a use that would otherwise be required if the three specified requirements are met. Clause 52.23 does not make the use as of right. It is the zone provisions of the scheme that establish whether a use is as of right depending on whether the use, as properly characterised, is included in section 1 of the zone and any conditions are met. If a use is characterised as being for the purpose of dwelling then, depending on the zone, it may be an as of right use (as is the case in the Neighbourhood Residential Zone). But if this is the case and no permit is required for the use, then clause 52.23 does not apply and it is not relevant whether the three specified requirements are met. Clause 52.23 simply has no work to do.
2. A similar conclusion, which departed from the decision of the Tribunal in Modo Project, was reached in Timerail Pty Ltd v Maroondah CC. I agree with what the Tribunal in Timerail said:

[52] As I will explain further below, clause 52.23 is an exemption provision which relates to shared housing. It is not a provision which sets out land use definitions, and in my view, it is not the starting point for determining how a land use is to be categorised under clause [73] of the scheme.

[53] Rather, the starting point for categorising a proposed use of land is an analysis of the facts to determine the real and substantive purpose of the use.[10] Following this is a consideration of the way in which the use fits within the land use terms defined by clause [73] of the scheme. ...

1. Therefore, to the extent anyone considers that the style of development proposed in Modo Project or the current case is automatically exempt from the need for a permit for use or development because of the decision in Modo Project, this is fallacious.
2. The decision in Modo Project needs to be confined to its own facts and circumstances.
3. Instead, the need for a permit for use or development must first be checked by reference to the zone, overlay and any other relevant particular provisions. Depending on how the proposed use is characterised, the zone will identify if a permit for use is required. If so, then clause 52.23 may exempt the proposal from the need for a use permit if it meets the requirements of the clause. However, even if a proposal is exempt from the need for a use permit under clause 52.23, this does not change its status as a use requiring a permit under the zone or exempt it from the need for a permit for development under either the zone, an overlay or any other provision.
4. Further, Modo Project should not be relied upon for the proposition that the criteria specified in clause 52.23 establish a separate use of land for shared housing. The proper characterisation of a proposed use must have regard to the principles set out in clause 73.03 - that a term describing a use or activity in relation to land which is not listed in the table to the clause must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table - and other principles of interpretation.

1. Based on my finding that the proposed use in the present case should be characterised as residential building, a permit is required for this use in the Neighbourhood Residential Zone[11].
2. However, clause 52.23 operates to exempt the use from the need for a permit because the building in question will meet all of the requirements set out in clause 52.23. I find:
   • It is in an area or zone which is used mainly for housing.
   • The building as a whole provides self-contained accommodation.[12]
   • It does not have more than 10 habitable rooms.
3. I therefore find that no permit is required to use the land as proposed.

1. Whilst no permit is required to use the land for the proposed purpose by virtue of clause 52.23, the proposed use is still a section 2 use in clause 32.09-2. Clause 32.09-8 provides that a permit is required to construct a building or construct or carry out works for a use in Section 2 of clause 32.09-2. On this basis, I find that a permit for development of the building is required pursuant to clause 32.09-8 of the Neighbourhood Residential Zone.
2. Whilst the land is also included in the Significant Landscape Overlay - schedule 3, it is common ground between the parties that the proposed building complies with the criteria in SLO3 where a permit is not required. I accept the parties' position on this point and find that no planning permit is required for the development under SLO3.

1. Table 1 of clause 52.06-5 specifies a car parking requirement of 2 parking spaces for a 'dwelling' containing 3 or more bedrooms.
2. Table 1 of clause 52.06-5 does not specify the car parking requirement for residential building (or alternatively accommodation). Where a use of land is not specified in Table 1, before a new use commences, car parking spaces must be provided to the satisfaction of the responsible authority.
3. Because the proposed building is determined to be a residential building, rather than a dwelling, car parking spaces will need to be provided to council's satisfaction.
4. Further, a car parking plan must be prepared under clause 52.06-8 before a new use commences. Plans must be provided to the responsible authority under clause 52.06-8 wherever clause 52.06 applies, whether or not a permit application is being made under clause 52.06-3 or any other provision of the planning scheme.
5. I therefore find that although no permit is required to use the land, a car parking plan must nevertheless be prepared under clause 52.06-8.

1. In this application for review the council has refused to issue a certificate of compliance stating that the use and development of the subject land for shared housing does not require a planning permit for use or development of the proposal as described in the Revision E plans.
2. For the reasons I have given, I find the council's decision should be affirmed and no certificate of compliance should be issued.

[1] Letter from Best Hooper dated 25 May 2018

[2] [2017] VCAT 390

[3] The note to clause 52.23 was introduced by Amendment VC127. This amendment was made subsequent to the Tribunal's decision in Kingston CC v Wilson [2015] VCAT 88, which held that the exemption from the need for a permit for development that was read into the exemption in clause 52.24 for a community care unit in Department of Human Services v Maribyrnong CC, should also extend to the exemption in clause 52.23 for shared housing.

In Department of Human Services, the Tribunal found that clause 52.24, which creates an exemption from the need for a permit for a community care unit in similar words to the exemption in clause 52.23 for shared housing and clause 52.22 for crisis accommodation, must be interpreted as though it included the words "or develop". The Tribunal reached this conclusion based on then clause 16.04 of the State Planning Policy Framework (now clause 16.01-6S). It held that clause 52.24 must be interpreted as including, by necessary implication, development (buildings and works) within the exemption from the need for a permit. The Tribunal also suggested it would be desirable to amend the Victoria Planning Provisions by making it clear in clause 52.24 that a community care unit is exempt from the need for a permit for use and development. No such general amendment has been made, but the note to clause 52.23 was introduced by way of Amendment VC127. A similar note was not included in clause 52.22 relating to crisis accommodation or clause 52.24 relating to community care unit.

[4] See Derring Lane Pty Ltd v Port Phillip City Council [1999] VSC 269; Merrett v Moira SC [2005] VCAT 242 at [16] - [17]; Armato v Hepburn SC [2007] VCAT 603

[5] For example see Timerail Pty Ltd v Maroondah CC [2018] VCAT 1207

[6] [2007] VCAT 603

[7] Armato v Hepburn SC [2007] VCAT 603 at [21]

[8] [2006] VCAT 798

[9] [2003] VCAT 1763

[10] See eg. National Lifestyle Villages Pty Ltd v Wyndham CC [2006] VCAT 798; Cascone v City of Whittlesea (1993) 11 AATR 175

[11] Residential building is included in. accommodation, which is a section 2 - permit required - use in the Neighbourhood Residential Zone pursuant to clause 32.09-2.

[12] In Knox CC v Tulcany Pty Ltd [2003] VCAT 1763, the Tribunal found when considering a use for the purpose of boarding house (which is included in residential building) that for the purposes of clause 52.23 it is the building as a whole that must be self-contained. On appeal to the Supreme Court, this view was upheld. In Knox CC v Tulcany Pty Ltd & Ors [2004] VSC 375 Osborn J said at [23]:

The permit applicant contends that the building as a whole must itself provide self- contained accommodation for those who share it by way of housing. In my view this is the preferable construction.