Victorian Civil and Administrative Tribunal|2013-09-17

Poulton v Macedon Ranges SC [2013] VCAT 1639 (17 September 2013)

N & J Poulton/D Mahmood - Mahomed, Yvonne von Hartel and Others

Poulton v Macedon Ranges SC [2013] VCAT 1639

This proceeding is an application for review under section 82 of the Planning and Environment Act 1997 by objectors against the council's decision to grant a permit for a supermarket, a reduction in car parking requirements and signage, in Riddells Creek. A hearing for five days is scheduled to commence on 23 September 2013.
The purpose of the practice day hearing was to consider whether recent changes to the Macedon Ranges Planning Scheme result in all rights of review by third party objectors being removed, thereby meaning that this application for review should be struck out as misconceived.
The permit applicant relies on the following basis for its application to strike out the application for review.
- The land is in a Commercial 1 Zone. Pursuant to clause 34.01, the use of land for a shop (including a supermarket) is a conditional section 1 (permit not required) use. The section 1 condition requires that the leasable floor area for all shops must not exceed any amount specified in the schedule to the zone. As there is no floor area limit specified in the schedule, the proposed use satisfies the section 1 provisions. Consequently no permit for use is required.
- Pursuant to clause 34.01-4 a permit is required to construct a building or construct or carry out works in the Commercial 1 Zone. Pursuant to clause 34.01-7 an application for buildings and works is exempt from the notice and review provisions of the Act where the land is more than 30 metres from:

...land (not a road) which is in a residential zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.

The site is partly affected by the Land Subject to Inundation Overlay. Pursuant to clause 44.04-1 a permit is required for buildings and works on land affected by the overlay. An application requires referral under section 55 of the Act to the relevant flood plain management authority, however under clause 44.04-4 an application under this overlay is exempt from the notice and review provisions of the Act.
Pursuant to clause 52.06.4 a permit is required to reduce the number of car parking spaces required under clause 52.06-5. An application under clause 52.06-3 is exempt from the notice and review provisions of the Act if:
- The application is only for a permit under Clause 52.06-3; or
- The application is also for a permit under provision of the planning scheme and in respect of all other permissions sought, the application is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of the Act.

The permit applicant submits that as the use is exempt from third party notice and review rights in respect of the permission required for buildings and works under the zone and overlay provisions, it is also exempt from the permission required under clause 52.06 to reduce the number of car parking spaces required. Accordingly, as there are no third party review rights in respect of any part of the permit application, the application for review is misconceived and should be struck out.
The applicants for review submit that a permit for buildings and works is required under the zone provisions because the land is within 30 metres of an education centre. They submit that the building shown on the site plan immediately to the west of the subject land as a community centre (on the permit application plans) and a neighbourhood house (on plans submitted with witness material for the hearing) should be characterised as an education centre. Consequently, as there is no dispute that this building is within 30 metres of the subject site, the applicants for review submit that the exemption in clause 34.01-7 is not met.
An education centre is defined in the planning scheme[1] as follows:

An education centre includes business college, employment training centre, primary school, secondary school, tertiary institution.

In arguing that the Riddells Creek neighbourhood house is an education centre, rather than an alternative use such as a restricted place of assembly or a restricted recreation facility, the applicants for review submitted material illustrating the activities undertaken at the Neighbourhood House and range of classes offered. They include exercise classes; language classes; children's art groups and school holiday programs; art and craft groups; self help classes, groups and workshops; meetings of special interest groups and other community activities such as a regular farmers market.
Ms Dunn, on behalf of the applicants for review, submitted that neighbourhood houses clearly fall into the category of land used for education despite not being specifically nominated under the inclusions in the definition of education centre in the Planning Scheme. The definition of education[2] means the act or process of educating, the imparting or acquisition of knowledge, skill, etc. She submitted that this is a function the neighbourhood house delivers on a daily basis. These days, neighbourhood houses are centres for local learning. They represent a new model of the old Mechanics' Institutes, which were establishments, originally formed to provide adult education, particularly in technical subjects, to working men. This is evidenced by the 'Learn Local' logo on the front of the Macedon Ranges Neighbourhood Houses Term 3 Program 2013, which indicates financial support through the Victorian Education Department for adult community education and training programs offered by neighbourhood houses in the region.
The Term 3 Program for Macedon Ranges Neighbourhood Houses submitted by the applicants for review sets out the programs for neighbourhood houses in Woodend, Riddells Creek, Kyneton, Lancefield and Romsey. A number of classes offered by these neighbourhood houses, especially in Kyneton and Woodend, have a 'Learn Local' logo beside them or a 'Nationally Recognised Training' logo or an 'Adult, Community and Further Education' logo. These logos indicate an accredited training course. None of the classes or activities offered at the Riddells Creek Neighbourhood House have such a logo.
I accept that the concept of education can embrace the acquisition of knowledge in a broad range of fields. However, this does not mean that every centre that may offer a class in something will fall within the ambit of the definition of education centre in the Planning Scheme. The examples of uses that are included in the definition all denote a degree of formality associated with the delivery of the education resulting in some form of recognised standard or accreditation at the successful conclusion of the training or course of instruction. In my view, centres offering such education can be distinguished from those where classes are offered for recreation, cultural, social or self fulfilment purposes.
In Fisher v East Gippsland SC[3] Member Cimino considered how a neighbourhood house should be characterised and whether the use fell within the definition of an education centre. He did not make a ruling on this point but indicated that it may be an innominate use.
In terms of the activities offered, it was common ground that the Riddells Creek Neighbourhood House offers community facilities and also some learning opportunities. However, for the purpose of characterising the real and substantial purpose of the way in which the land is used, the exercise is not "to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date."[4] This principle was elaborated on by Ashley J in Cascone & Vella v Shire of Whittlesea[5] where he said:
- (1) In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.
- (2) Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.
- (3) It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme.
In the present case, I am not prepared to find that the primary purpose or the real and substantial purpose of the Riddells Creek Neighbourhood House is that of an education centre. I would characterise it rather as a community centre. Some of its activities may be educational in terms of imparting learning, but they are not of a sufficiently formalised nature, leading to some form of recognised standard or accreditation, such that the primary purpose of the land could be said to be used for education.
For the purpose of this proceeding, I am not required to make a finding as to whether a community centre is an innominate use or falls within some other definition of the Planning Scheme, such as a restricted place of assembly or a restricted recreation facility. I am only required to make a finding as to whether the Riddells Creek Neighbourhood House, in terms of the way in which the land is presently used, falls within the definition of an education centre. I find that it is not an education centre.
As a consequence of my finding, the exemption on third party notice and review rights under clause 34.01-7 applies. This, in turn, means that the exemption in clause 52.06-4 also applies. In these circumstances, the objectors have no rights of review in respect of any aspects of the development or reduction in car parking for which a permit is required in this particular case. I therefore rule that the application for review must be struck out as misconceived because the Tribunal has no jurisdiction to determine the merits of the case.

[2] Macquarie Dictionary, 5th Edition 2009

[4] Shire of Perth v O'Keefe (1964) 110CLR529 at 535

Poulton v Macedon Ranges SC [2013] VCAT 1639

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Poulton v Macedon Ranges SC [2013] VCAT 1639 (17 September 2013)

Parties