This application for enforcement order is dismissed.

For the Respondents: Daniel Lam and Anita Lam in person

For the affected person: No appearance by Kristopher John Cheslet

1. This started off as an application under section 114 of the Planning and Environment Act 1987 to enforce clause 32.01-1 of the Monash Planning Scheme over the land at 17 Aloomba Street, Chadstone to prevent its continued use as a 'commercial bus vehicle store'.

2. The two buses concerned are 29 seater and 19 seater tourist buses registration 1544 AC and 1545 AC. The AC registration permitted their use to transport tourists.

3. By 18 February 2003, the respondents altered the registration of both tourist passenger buses from commercial to private, namely SBW 109 & SBW 110, and were in the course of selling same. One of the buses is being stored offsite and the other is only onsite when attempting to sell it.

4. To that end, the following directions were issued by me on 23 May 2003, as a holding measure to ensure compliance with the planning scheme:

(a) he will not store two buses on the subject land at any one time

(b) he will only store one bus on the subject land on an occasional basis for the purpose of selling it privately

this Application for Enforcement Order is adjourned sine die.

The parties agreed the above 'holding' directions suffice, with a view to the Responsible Authority withdrawing the proceedings when the buses are sold and there is no longer a basis behind the application. If however, the respondents re-commence their commercial operation, the Responsible Authority can re-activate these proceedings.

6. A neighbour, Mr Kristopher John Cheslet complained to council that Mr Lam was still operating two tourist buses from the subject land, but Mr Lam contests this strenuously and Mr Cheslet has not appeared to attest to his assertion.

(i) he sold SBW 109 in August/September 2003 in compliance with my 23 May 2003 Directions no. 1;

(ii) he does not use the remaining privately registered SBW 110 for commercial purposes;

(iii) he is still trying to sell mini-bus SBW 110 (although he has still had no success as he does not wish to lose money on the sale) and that

(iv) if he cannot sell the privately registered mini-bus, he may convert it to a campervan;

(v) he and his wife own another privately registered vehicle, a Toyota Cressida, which is garaged in his home;

(vi) the mini-bus SBW 110, which is no more than 6 metres long, does not fit inside his garage as its roof is too high.

8. Mr Reddy's photograph of a second mini-bus on the land on 1 February 2004, indicates a new commercial vehicle Registration no. 1320 AC also parked thereon. Mr Lam explained that he now works on a casual basis for Aulia Coach tours, and that he garages the minibus at home overnight on an occasional basis in the course of his job. Otherwise, it is garaged in Aulia's premises.

9. Case law establishes that using a vehicle in the course of one's occupation, in that one parks it overnight at home and then uses it to drive to and from work, is ancillary to use of the land as a dwelling and not in breach thereof. That applies to commercial vehicle Registration no. 1320 AC. See Manningham CC v Nicolosi [2001] VCAT 2166 and the cases mentioned therein.

10. As to the privately registered SBW 110, it appears that this slips through the planning scheme net, because:

(i) it neither falls within vehicle store as it is not used in connection with a passenger transport business,

(ii) nor does it fall within the Residential 1 zone's Section 2 definition of 'store' because it is not a motor vehicle used in conjunction with the occupation of a resident of a dwelling on the land

(iii) it is not unusual for two persons residing in a dwelling to have two privately registered vehicles.

11. Rather, SBW 110 is now being maintained for private purposes, for the purpose of sale or conversion. Accordingly, it appears there is no breach of the planning scheme, as use as a commercial vehicle store has now ceased and there is no longer any basis for making an enforcement order against Mr Lam.

12. Of course, if Mr Lam alters the registration and use of the second minibus to commercial vehicle purposes, and continues to store same on the land, that may justify the Responsible Authority issuing fresh proceedings against him.