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[2001] VCAT 1081
Victorian Civil and Administrative Tribunal
2001-05-31
Mr J
Original judgment source is linked above.
Use of the land for the purpose of a Residential Building, a section 2 use under clause 32.01 Moreland Planning Scheme without a permit for that use.
Development of the land (buildings and works) not in accordance with planning permit MPS 2000/0290.
1. That the land at 437 Brunswick Road, Brunswick West cease to be used for the purpose of a Residential Building within 28 days of the date of this order.
2. That the land at 437 Brunswick Road, Brunswick West not be used for the purpose of a Residential Building prior to the issuing of a planning permit by the responsible authority for that purpose.
3. That the buildings and works at 437 Brunswick Road, Brunswick West that are the subject of planning permit MPS 2000/0290 be modified to accord with the conditions of the issued permit and the associated endorsed plans. That such modifications to the buildings and works be completed within 60 days of the date of this order.
4. The Applicant must serve a copy of this order on the Respondents pursuant to Section 140 Victorian Civil and Administrative Tribunal Act 1998.
Section 114 Planning and Environment Act 1987 - Moreland Planning Scheme - Residential 1 zone - use of building as Residential Building without a permit contrary to clause 32.01 Moreland Planning Scheme - buildings and works not in accordance with endorsed plans and conditions of permit
1. The application for an enforcement order is allowed.
For the applicant/responsible authority: Mr David Hargreaves
1. This is an application by the Responsible Authority seeking an enforcement order against the owners of 437 Brunswick Road, Brunswick West in relation to the use of the land for the purpose of a Residential Building without a planning permit and for non compliance of the buildings and works pursuant to planning permit MPS 2000/0290.
2. The subject site was described as a semi attached Edwardian Duplex situated on the north side of Brunswick Road between Grantham Street and Flemming Street. To the west is the other half of the Duplex and to the east is a block of retirement flats. To the north is a residential dwelling.
3. The site is located within a Residential 1 zone pursuant to the Moreland Planning Scheme and subject to a Heritage Overlay. The surrounding land is also zoned Residential 1. Within clause 32.01-1 a permit is required for the use of the land for the purpose of accommodation (other than dependant person's unit and dwelling).
4. The Responsible Authority alleges that the house is being used as a Residential Building and that no permit has been granted for such a use.
5. In the planning scheme nested within the term accommodation is a Residential Building it includes a Backpackers' lodge, Boarding House, Hostel, Nurses' home, Nursing home, Residential college and Residential Hotel. Residential Building is defined in the planning scheme as:
Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependant person's unit, dwelling, group accommodation, host farm or residential village.
6. The Responsible Authority submits the exemption found in clause 52.23 of the planning scheme in relation to Shared Housing cannot be relied upon. Clause 52.23 provides as follows:
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 (including people with intellectual disabilities) if the building meets all of the following requirements:
* Is in an area or zone which is used mainly for housing.
7. It is submitted the land is used for accommodating unassociated individuals and does not provide self contained accommodation.
8. Mr Hargreaves advised the Tribunal he had carried out a number of inspections of the property and had conducted interviews with persons on the site. In this respect he indicated that the dwelling had four separate bedrooms let out to four separate persons and that each of these persons had access to a shared kitchen, bathroom, laundry and toilet. Each bedroom contained a bar refrigerator and the laundry was equipped with a coin operated washing machine and clothes dryer. The entry door to each room included a lock normally associated with front or rear entry doors.
9. The Responsible Authority had issued permit MPS 2000/0290 on 22 June 2000. This permit allowed for the construction of an outbuilding to the rear of the existing dwelling. The endorsed plans show this outbuilding to consist of a bedroom, living room and games room. Mr Hargreaves indicated that the living room and games room as shown on the endorsed plan had been divided and a door had been provided for entry into each newly created room.
10. Mr Hargreaves described the outbuilding as containing 5 bedrooms each with a bar refrigerator. He advised one of the tenants interviewed described this outbuilding as comprising two double rooms and three single rooms. An area shown as storage on the endorsed plan was also it was submitted used from time to time as a bedroom although Mr Hargreaves indicated this was not in use as a bedroom on his more recent inspections. He indicated that the rooms shown on the endorsed plan as the laundry and study as well as the two bedrooms were used in the main building as bedrooms.
11. Interviews with persons on the site revealed that rooms are available to rent on a week to week basis. The cost of rooms is $120 for a single and $150 for a double per week. Rent is payable in cash and collected on Tuesdays.
12. Mrs Harvey, Mr Grant and Mr Baird all residents of the adjoining retirement flats and who all have been residents for a number of years described seeing numerous people usually young and of various nationalities coming and going from the site, some carrying backpacks. This increase in persons coming and going from the site had commenced mid 2000. They also indicated that a number of late night parties were held at the premises which were often noisy and disturbing. They also confirmed that residents of the property would often access the property by climbing around the security gate to the retirement flats and accessing the property from the car park of the retirement flats.
13. Mr Baird described how the sudden increase in occupancy on the adjoining property had resulted in the occupants disposing of their garbage in the bins provided for the retirement flats as one bin on the property was insufficient.
14. Mr Stranaghan indicated that the property had been purchased by his son and daughter in May 2000 as an investment. That a permit had been obtained to increase the size of the house in preparation for his son's possibly occupancy. In this respect he submitted the outbuilding had been built in accordance with the endorsed plans and permit. He indicated that the property was leased to a Mr Robbins and that permission had been given to Mr Robbins to sublet the property.
15. Mr Stranaghan indicated that he had carried out most of the building work himself and that he was unaware that the rooms had been subdivided. He indicated that he did not consider that he could prevent the lessee from subletting the premises. The Tribunal is of the view that Mr Stranaghan, his son and daughter are fully aware of the changes that have occurred to the building and the purpose the buildings are being used for.
16. The Tribunal was referred to a recent decision by the Tribunal in Intervarsity Developments Pty Ltd v City of Frankston (2000/80602) in which Senior Member Walker concluded that clause 52.23 did not apply as the proposed occupants were offered 6 and 12 month tenancies of their rooms and "self contained accommodation" was not provided as they were required to share kitchen, laundry, bathroom and living room facilities. It was not a situation the Member indicated where the whole house was rented to a group of people where it could be said that they were jointly provided with self contained accommodation in that each would have been given an undivided part of the whole house, including all its facilities. But where it deals with them individually and confers separate tenancy rights on each for the exclusive use of part of the premises and only the shared use of the essential facilities, not one of the occupants is provided with self contained accommodation.
17. I consider the use of the subject land is not dissimilar to that considered by Senior Member Walker in the Intervarsity Developments Pty Ltd case_,_ the weekly payment of rental entitles the occupant to accommodation in a room with the right to share the essential facilities. There is no self contained accommodation provided.
18. I consider the use of the buildings is that of a Residential Building which could given the description of the inhabitants, particularly their age, differing nationalities and means of carrying their belongings as well as the transitory nature of their stay would suggest that the premises were not dissimilar to a Backpackers lodge, which is included within the term Residential Building.
19. Whilst the building could fall within the definition within the planning scheme of a "dwelling" for which no permit is required I consider that the way the building is currently being used that is with weekly rental of rooms for the exclusive use of the occupants paying the rental and the sharing by those occupants of the essential facilities is not as a self contained residence:
Dwelling : A building used as a self contained residence, which must include:
It includes outbuildings and works normal to a dwelling.
20. I agree with the conclusions reached by Member Walker that as the building has been divided into areas of exclusive occupancy if only on a weekly basis in the present case then the proposed use is that of nine residences that is a room that is exclusively occupied and the use of the shared facilities and since they are not self contained then they do not fall within the definition of a dwelling within the planning scheme.
21. The Responsible Authority also submits the outbuilding with five rooms does not comply with the endorsed plans and the pre-existing building shown on the plan as a store is being used as a bedroom, accordingly condition 1 of permit MPS 2000/0290 is being breached. Condition 1 states:
The development as shown on the endorsed plan must not be altered unless with the written consent of the responsible authority.
22. It is also submitted condition 2 of the permit has not been complied with in that the existing building is constructed of red brick that is partly rendered to the front and rear whereas the outbuilding has been constructed of sheeting and the roof is zincalume. Condition 2 states:
The external material, colour and finishes of the building and works permitted mast match those on the existing building to the satisfaction of the responsible authority.
23. It is also submitted condition 3 has been breached in that it states
This permit does not allow for the outbuilding to be used as a separate dwelling.
24. This is not a condition of the permit but merely a note on the permit. Notes on permits do not form part of the permit and cannot be enforced. As notes do not form part of the permit it is considered by this Tribunal Member that they should not appear at all on the permit. If the Responsible Authority wishes to draw a permit applicants attention to other matters this should be done by way of letter accompanying the permit not on the permit itself.
25. I consider the building is being used as a Residential Building. A permit is required to use a building as a Residential Building within a Residential 1 zone. There is no permit to so use this building, accordingly for the reasons above I will allow the application for an enforcement order. The order will require the use to cease and to not commence unless or until a permit is obtained.
26. I also find that conditions 1 and 2 of permit MPS 2000/0290 have not been complied with and accordingly the order will require compliance with the conditions of the permit.
# Moreland CC
A & R Stranaghan \[2001\] VCAT 1081