I declare that the use of land at 440-448 Point Cook Road, Point Cook contemplated in application for planning permit WYP4902 pursuant to the Wyndham Planning Scheme and described in the booklet "Point Cook Lifestyle Village" is the use of land for the purpose of a "residential village" pursuant to the scheme.

Mr Jeremy Gobbo QC of counsel instructed by Minter Ellison lawyers

1 National Lifestyle Villages Pty Ltd wishes to establish a "Lifestyle Village" on land at Point Cook. The proposal involves the placement of 292 factory built homes in landscaped grounds with communal facilities. The homes are typically of 70 to 90 square metres (or thereabouts) in area and consist of a kitchen, a lounge, one or two bedrooms, a bathroom and a carport.

2 The land is located in a Green Wedge Zone pursuant to the Wyndham Planning Scheme ("the scheme").

3 In order to determine whether the proposed use can be permitted under the scheme it is necessary to characterise the purpose of the use. If this purpose is characterised as a "camping and caravan park" a permit may be granted for the use. On the other hand, if the purpose is characterised as a "residential village" the proposed use is prohibited.

4 This is not the occasion to set out a treatise upon the characterisation of land uses in the context of planning scheme controls. Others have attempted this,[1] although the verbiage used has sometimes tended to obscure, rather than clarify, the method to be applied. What must be emphasised is that the task of characterising a use for the purpose of applying zone provisions takes place in the context of particular planning scheme provisions. Thus it is the structure, context and expression of planning scheme provisions which will usually determine the outcome, rather than general statements about how land uses ought be characterised.

5 Clause 74 of the scheme contains a table of land use terms that are used in the scheme. Although the list is not exhaustive, 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. Further, and importantly, land use terms have the defined meaning they are given in the table. Clause 74 contains the following land use terms and definitions.

Land used to allow accommodation in caravans, cabins, tents, or the like.

Land, in one ownership, containing a number of dwellings, used to provide permanent accommodation and which includes communal, recreation, or medical facilities for residents of the village.

The definition of "residential village" draws upon the land use term "dwelling". In this respect, clause 74 provides:

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

It includes outbuildings and works normal to a dwelling.

Dwellings must be buildings. Hence a tent or a caravan would not normally be regarded as a dwelling, even if equipped with a kitchen sink, shower, toilet and so on. However a cabin, which is fixed to the ground in some way (whether temporarily or permanently), could be a dwelling if it contained the specified elements.

6 In the 1980s Victorian planning schemes typically defined the land use "caravan park" in a manner that emphasised its use by travellers and tourists. An example is the definition introduced into the "plain English" Melbourne Metropolitan Planning schemes on 30 October 1989, which provided:

Caravan park Land used to provide accommodation in caravans, tents and the like for travellers and tourists and where recreation facilities may be provided for people in the park.

During this period it was common enough for permits for caravan parks to prohibit or regulate permanent accommodation within caravan parks. Notwithstanding this, it was equally common that a substantial proportion of caravan park occupants were permanent residents. In order to deal with the legal and social implications of these phenomena, a report was prepared for the Victorian Government by a task force chaired by Mr Mal Sandon MP. This led to the enactment of the Caravan Parks and Movable Dwellings Act 1988, which had as its principal purpose the protection of the rights of persons who live in caravan parks. Although this Act has now been repealed, key provisions which are relevant in the present context are now contained in the Residential Tenancies Act 1997.

7 Section 518 of the Residential Tenancies Act provides:

A planning scheme or permit under the Planning and Environment Act 1987 whether made before or after the commencement of this section cannot limit the duration of residency in a caravan park.

The expression "caravan park" is used in section 518 in the sense defined in section 3 of the Residential Tenancies Act:

An area of land on which movable dwellings are situated for occupation on payment of consideration, whether or not immovable dwellings are also situated there.

A dwelling that is designed to be movable, but does not include a dwelling that cannot be situated at and removed from a place within 24 hours.

The Act then defines "dwelling" in a manner quite different than the planning scheme, by defining it as:

Any structure that is designed to be used for human habitation and that is capable of being so used, and includes a motor vehicle or trailer that is so designed and capable.

Thus under the Residential Tenancies Act a caravan will often be a dwelling and a movable dwelling.

8 The definitions in the Residential Tenancies Act cannot determine the meaning of land use terms defined in the planning scheme. However section 518 of the Residential Tenancies Act is in a different category, as it effectively adds a rider to the definition of "camping and caravan park" to the effect that there cannot be a limit on the duration of residency.

9 The structure of land use terms contained in the table to clause 74 of the scheme is that terms are specified at different levels of abstraction[2] or specificity. Some terms are nested within other terms; or even within nested terms. Hence land use terms often overlap. Even when terms are not nested it will still be common enough for a particular use to naturally fall within more than one specified term.

10 If a use clearly falls within more than one specified land use term, the proposed user is entitled to take advantage of the most (or more) favourable provision. But it will not always be appropriate to regard a use as falling within more than one specified land use term. This is because some parts of the scheme are structured so as to invite a choice between different land use terms, at least where an activity can obviously or commonly fit within a specified term. The present case is of this character. As the nesting diagram in clause 75 of the scheme demonstrates, there are many different types of uses that might be called "accommodation". Two land use terms which are nested within "accommodation" are "camping and caravan park" and "residential village". Having regard to this context, it is the intent of the scheme that in characterising a use of the type proposed a choice be made having regard to what is the best fit (or, in the present context, the better fit).

11 If a proposed use comfortably fits the definitions of two specified land use terms, the choice will often involve giving preference to the more specific term. However it is not always clear which is the more specific term. At first blush "camping and caravan park" might be thought to be a more specific term than "residential village". But the parameters of "residential village" will be more limiting in at least some circumstances. In any event this factor will not be the only relevant consideration.

12 Usually it will be necessary to identify critical differences between land use terms. These may flow from comparing the definitions. Sometimes the words of the definitions will be vague and the task of interpretation will be more challenging. Thus in the present case the applicant emphasises that a camping and caravan park may consist of "cabins ... or the like" and points to the broad dictionary definitions of the word "cabin". Although this is a legitimate approach, in my opinion the meaning of the word "cabin" must be influenced, at least to some extent, by the term being defined, namely "camping and caravan park". I accept the logic that a term can be defined to have a meaning completely unrelated to its natural meaning. But the planning scheme, which is a document to be used by non-lawyers, does not generally adopt that approach. Rather it tends to use terms that are commonly used in the community, even though the natural meaning might be adjusted by a definition. Thus I conclude that the word "cabin", where used in the definition of "camping and caravan park" should be understood to mean a cabin of a type typically found in caravan parks in Victoria.

13 Well, what distinguishes a "camping and caravan park" from a "residential village"? I think there are two types of factors: essential requirements and qualitative differences.

14 For a use to be characterised as a "camping and caravan park" it will be essential that land is available for use for accommodating persons in caravans, cabins, tents or the like. For a use to be characterised as a "residential village" it will be essential that:

(c) the land is used to provide permanent accommodation (although it does not follow that all dwellings on the land must be used for permanent accommodation, as it is the way the land as a whole is used which is relevant); and

(d) communal, recreation, or medical facilities for residents of the village are provided.

It is to be observed that a camping and caravan park may also consist of land in one ownership. Moreover a camping and caravan park may contain dwellings: for example, cabins may be equipped so as to be self contained and have the necessary attributes of dwellings. Dwellings forming part of a camping and caravan park may also provide permanent accommodation. Finally, a camping and caravan park may contain communal, recreation, or medical facilities for residents. Hence the fact that a use satisfies the four elements essential to a "residential village" - which is the case here - does not necessarily make the use that of a residential village; it may still be a "camping and caravan park". In order to determine whether or not this will be so it will be necessary to look at qualitative difference.

15 In my opinion, qualitative differences between the two uses will include the following.

a

Permanency of residence: if the accommodation is intended to be occupied on a permanent basis, the more likely it will be that the term "residential village" is appropriate. This is so notwithstanding section 518 of the Residential Tenancies Act: that section prohibits a restriction on permanent residency in a caravan park; it does not make permanent residency mandatory. Typically, camping and caravan parks have many residents who are not permanent residents.

b

Accommodation standard and size: the higher the standard of the accommodation provided, the more likely the term "residential village" will be appropriate. Although cabins may be dwellings, they tend to be at the lower end of the scale of all dwellings when ranked in terms of accommodation standard. Further tents, caravans, cabins and the like tend to be small when compared with all types of accommodation units.

c

Moveability of accommodation units: accommodation units which are permanent and fixed, and not movable, are more likely to be a "residential village" than a "camping and caravan park". As there will be degrees of physical permanency (or movability), the position on the spectrum will be relevant.

d

The nature of communal facilities: Although both a "residential village" and a "camping and caravan park" may have communal facilities, if those facilities are oriented towards ablution and cooking facilities, it will be more likely that the appropriate characterisation is "camping and caravan park".

16 When measured against these qualitative criteria, it becomes plain that the proposed use as currently formulated is better characterised as a "residential village" than a "camping and caravan park". The proposal is to house permanent residents. There is to be no provision for the temporary occupation of accommodation units. The accommodation units are modest, but are significantly larger and better equipped than tents, caravans or cabins (or the like) typically found in caravan parks. Moreover the accommodation units are likely to be permanent - and rarely moved - notwithstanding that the units may be capable of being moved in a 24 hour period. Finally, the communal facilities are generally directed towards recreation and do not include any significant communal facilities for ablution or cooking.

[1] See, for example, Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 and Cascone v City of Whittlesea (1993) 11 AATR 175.

[2] Compare Hutchison 3G Australia Pty Ltd v Director of Housing [2004] VSCA 99 at [39].