Construct an Ancillary Building (Human Habitation)

No more than five (5) tourists shall be accommodated on the site at any one time to the satisfaction of the Responsible Authority.

1. Council advised that it has been unable to locate any endorsed plans which form part of the permit. What have been located are building permit plans which show the cottage comprising a central space, a spa, a 'bar area' and a bathroom. The applicant advised, and photographs show, that the central space is a combined bedroom and sitting/dining area.
2. According to the officer's report which provided an assessment of the Certificate of Compliance application (referred to below), the council planning report which resulted in the granting of the permit states that the building is to be used as part of the existing bed and breakfast operation and is to provide accommodation for couples.
3. It is common ground between the parties that the Victorian dwelling has existing use rights for a dwelling.
4. The dispute lies with respect of the cottage. The applicant's position is that it, too, has existing use rights for a dwelling. Council does not agree.
5. However, both agree that:
   • the cottage is not used as a 'Bed and Breakfast' as it is not a dwelling used by a resident of the dwelling to provide accommodation for persons away from their normal place of residence.[4] The cottage is not occupied by the applicant (the applicant resides in the Victorian dwelling). Occupants of the cottage have sole/exclusive use of that building for the duration of their stay. There is no connection (physical or otherwise) between the Victorian dwelling and the cottage. To access the cottage, the applicant has to exit the property, traverse the adjacent public footpath for a short distance and then use a separate driveway area to reach the cottage
   • the cottage has been used continuously as short term accommodation for a period exceeding 15 years and council has not given a written direction for the use to cease.[5]
6. An application for a Certificate of Compliance was made pursuant to section 97N of the Planning and Environment Act 1987 (Vic) in August 2025 and described the existing use and development as:

there is a house I live in and a cottage known as Rapunzel's cottage as well which has been used for short term accommodation since approximately 1998. There has never been a two year gap where it has not been used for these purposes. Currently platinum property group rent it from me for approximately the last twelve months

1. On 6 October 2025, council issued a Certificate of Compliance. It states:

THE CERTIFICATE REFERS TO: The use of the land for short term accommodation (Bed and Breakfast)

This Certificate is issued in accordance with section 97N(1)(a) of the Planning and Environment Act 1987. The use or development existing on the land and referred to in this Certificate complies with the requirements of the planning scheme at the date of this Certificate.

1. In light of the council's position that the cottage is not used as a dwelling, the reasons why this Certificate of Compliance refers to 'Bed and Breakfast' are not clear. The definition of 'Bed and breakfast' refers to a 'dwelling'. The applicant confirmed that at no time has the cottage been used by her or previous owners as residents of that building to provide accommodation for persons away from their normal place of residence. She also argued that the cottage cannot be defined as a 'Bed and breakfast' as it is not connected to the Victorian dwelling.[6]
2. Clause 73.03 of the Ballarat Planning Scheme provides the following definition of the land use term 'dwelling':

Dwelling

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

a) a kitchen sink;

b) food preparation facilities;

c) a bath or shower; and

d) a toilet and wash basin.

It includes outbuildings and works normal to a dwelling.

1. The parties agree that the cottage contains all these elements.[7] As a building, it meets the definition of a dwelling.
2. However, what needs to be considered is the use.
3. In Armato v Hepburn Shire [2007] VCAT 603 ('Armato'), the Tribunal found that, when considering whether the land is used as a dwelling, it is important not to be distracted by the form of buildings on the land. The Tribunal went on to say that just because there is a house on the land does not mean that it is being used as a dwelling, and further:

The use of land for planing [sic] purposes is not determined by the style of development but the purpose for which the land is actually used. Thus it is fallacious to say that because there is a house on the land ipso facto the land is being used as a dwelling.

1. Referring to the 'use' component in the definition of dwelling, that is, a building used as a self contained residence, the Tribunal found that 'residence' means a place where people live or reside either permanently or for a considerable period of time. In doing so, the Tribunal noted and adopted the findings of the Supreme Court in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269 and the findings of the Tribunal in Merrett v Moira SC [2005] VCAT 242.
2. Council submitted that the cottage is not being, and has not been, used as a dwelling. Rather, it has been used for short term accommodation where occupants stay for short periods of time, and not as a residence where people live or reside permanently or for a considerable period of time.
3. The applicant submitted that, in addition to the 'development' component of the definition, the cottage satisfies 'use' component of being self contained for the following reasons:
   • it is not physically joined to the Victorian dwelling; it is an entirely separate building
   • it has its own frontage, driveway, gas supply and meter, sewerage and drainage
   • it is separately rated by council, and land tax is paid based on council's valuation
   • the applicant does not provide any services or meals to persons staying at the cottage, and does not have any interaction with them
4. None of these matters raised by the applicant are evidence of, or substantiate the submission that, the cottage is used as a residence for the purposes of the definition of dwelling at clause 73.03. They are not relevant to the consideration of whether the cottage is a place where people live or reside permanently or for a considerable period of time.
5. The applicant referred to the decision of the Supreme Court in Swan v Uecker [2016] VSC 313 in support of an argument that short term occupation does not mean that the building is not a residence.
6. That case concerned a circumstance where a tenant had sub-let part of the leased dwelling without the landlord's consent and was a matter which considered the provisions of the Residential Tenancies Act 1997 (Vic). I agree with council that it is not relevant to the consideration of whether the cottage meets the definition of 'dwelling' under the Ballarat Planning Scheme. It concerns a different legislative context.
7. The applicant submitted that 'residence' in the definition of dwelling is a noun and it refers to the type of property, and not whether a person lives there permanently or for a considerable period of time. The findings in Armato do not support this submission. The submission refers to the built form, not the use. It is the nature and duration of the use (or occupation) which is relevant. The definition refers to how the building is used. Therefore, for the building to be considered to be used as a residence, it must involve a person or persons living there permanently or for a considerable period of time. Consistent with Armato, it does not follow that because the cottage is constructed as a house (or residence), it is being used as a dwelling. The use is a separate consideration to the built form, or 'development'.
8. Adopting the reasoning and findings in Armato, I find that the cottage is not used a dwelling. This is because it is not, and has not been, used as a self contained residence. It has been, and continues to be, used for short term accommodation. It is not a building where people live or reside either permanently or for a considerable period of time.

1. For these reasons, I find that the subject land does not have existing use rights for two dwellings.

REASONS CONTAINED IN THE PRACTICE DAY HEARING ORDER DATED 23 JUNE 2025**

1. Ms Mooney (the applicant) is seeking a review of Ballarat City Council's (Council) decision to refuse to grant a permit. The grounds of refusal are based on heritage concerns.
2. The applicant sought a planning permit for a two lot subdivision. The application form described the existing conditions as 'two dwellings'. The report submitted with the application also describes the existing conditions as being 'two existing single storey dwellings', and that the property is served by reticulated power, water, sewer, gas and telecommunications. The proposed plan of subdivision includes notations for two existing dwellings (figure 2 in Council's delegate report).
3. Planning permission is required to subdivide the land under the General Residential Zone and the Heritage Overlay.
4. The application report identifies the relevant type/requirement of subdivision requiring planning permission in the General Residential Zone as:
   • 'an application to subdivide land must meet the requirements of Clause 56 unless each lot contains an existing dwelling or car parking space'.
5. Council's delegate report outlines the permit history of the site, including that a permit issued in 1997 for the 'construction of an ancillary building (human habitation)'. The associated planning delegate report stated this building (described as a cottage) would be used as part of an existing bed and breakfast operation and the report notes that the plans showed a single bedroom, shower room with toilet and basin and a 'bar' (no sink). Council has a building permit endorsed plan in the delegate report for this proposed subdivision. It is dated March 1998 and shows the kitchen area in general terms, meaning it is silent as to what is constructed in the 'kitchen' area. Ms Mooney advises she provided this plan to Council.
6. Council's delegate report notes the applicant's advice that both buildings are dwellings including that they have separate gas meters and are billed separately; have separate rate notices; and up until 2015 were used as short-term rentals. During this hearing, Ms Mooney advised she has owned the property for at least 10 years and both buildings have been dwellings during that time as well as during ownership by the previous owner.
7. For this hearing, Ms Mooney provided information including photographs of the cottage to demonstrate the fitout of the kitchen and bathroom, which indicates it meets the definition of a dwelling. Council acknowledges this material demonstrates it has the requirements to be defined as a dwelling. This may mean the cottage has existing use rights for use as a dwelling. Council has not considered this, and Council has not assessed this permit application as it was applied for - being two dwellings.
8. Therefore, I have decided to remit the permit application back to Council for re-consideration. I am using the power under section 51A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as:
   1. It maintains the applicant's review proceeding with the Tribunal;
   2. It does not affect the priority of the processing of this proceeding as this matter has not yet progressed to being listed for a final merits hearing; and
   3. It enables Council to reconsider the applicant's permit application as it was originally sought.
9. Council foreshadowed that potentially considering the permit application on the basis of two dwellings may change the required processing including whether the giving notice of the application is necessary. Given this, I asked Council to nominate how long it needs to reconsider the application. The time allocated in Order 2 accords with Council's advice.
10. If notice is given and any objections are received by Council, this is a matter that the Tribunal will further consider following receipt of Council's new decision and the reasons for it (which will presumably identify any objections received). If necessary, the Tribunal will consider how to give notice of this application for review to the objectors.
11. Council must advise the Tribunal and the applicant of its new decision in writing. It should not issue a formal notice of any new decision.
12. I have allowed the applicant time after the new decision advice is received to decide whether to amend the grounds of review. The applicant must advise the Tribunal and Council in writing of any amended grounds of review.

REMARKS CONTAINED IN THE PRACTICE DAY HEARING ORDER DATED 3 OCTOBER 2025**

1. By order issued on 23 June 2025, the Tribunal invited council to reconsider its decision. That order explains in detail why this invitation was issued, so in these remarks I will simply summarise as follows:
   1. Ms Mooney submits she has existing use rights for the two buildings on her property to be used as dwellings;
   2. Council did not consider the application as put by Ms Mooney and referred to one of the buildings as not being a dwelling when making its decision;
   3. Given the information before me during that practice day hearing, I decided to remit the application so that Council could consider the permit application as put by Ms Mooney including whether one of the buildings has existing use rights for use as a dwelling.
2. Council has now reconsidered the application and has determined that the building does not have existing use rights because it does not have a planning permit for use as a dwelling. However, there is still a question about whether the building has existing use rights pursuant to clause 63.11 Proof of continuous use.
3. Council's report assessing the application when it was remitted notes that the applicant has lodged an application for a certificate of compliance with council. This material has not yet been lodged with the Tribunal, but the parties explain it is also seeking council's agreement that the building is a dwelling. Council has not yet made a decision on this.
4. The parties agree that this preliminary question needs to be determined.
5. Council has advised it will make a decision on the certificate of compliance application by 4pm on Monday 6 October and will advise the Tribunal and the applicant of this, together with any explanation as to why. Council will also provide a copy of this application to the Tribunal for its records.
6. If Council agrees the building is a dwelling, the preliminary hearing will not be required.
7. If Council does not agree the building is a dwelling, this is a matter that can be discussed at the compulsory conference together with the heritage reasons why council refused the application. If the issues in dispute are not resolved at the compulsory conference, the preliminary hearing will proceed to consider whether the building is a dwelling.
8. The parties agree that the preliminary hearing is primarily a question of fact but that it could possibly involve mixed considerations of fact and law. Both parties agree that the preliminary hearing can be heard by a planning member of the Tribunal rather than a legal member.
9. If the preliminary hearing finds that the building is not a dwelling, the council's grounds of refusal in the application for review will be formally amended to include Council's additional ground of refusal foreshadowed in its report assessing the remitted application. Otherwise, this additional ground of refusal will fall away and no amendment will need to be made .
10. The parties are aware that Amendment VC288 will come into effect on 16 October 2025 and this may affect this permit application. It may mean the permit application becomes a VicSmart application and the consideration of the merits as required by the planning scheme may change. Council wants to wait and consider this when the changes come into effect. Hence, the parties are aware of this Amendment and it will need to be considered further by them including its relevance to this proceeding when it comes into effect.

[1] The order arose from the compulsory conference held on 15 October 2025, where the matter did not settle.

[3] The orders are dated 23 June 2025 and 3 October 2025.

[4] Being the definition of the 'bed and breakfast' land use term at clause 73.03: 'A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence'.

[5] Refer to clause 63.11 of the Ballarat Planning Scheme.

[6] Reference was made to the Tribunal's decisions in Quitt v Yarra Ranges SC [2023] VCAT 94 and Stuckey v Yarra Ranges SC [2014] VCAT 295 where the Tribunal made findings regarding the need for the bed and breakfast accommodation to have a connection to the dwelling on the land.

[7] The building contains a kitchen sink and food preparation facilities in the area shown as 'bar' on the building permit plans.