The land use proposed in the permit application giving rise to these proceedings, having regard to the information provided as to the nature of the proposal including the permit application, supporting plans and documents, further information supplied and the proposed additional permit condition is "Residential hotel" as defined in cl.74 of the planning scheme, and not "Group accommodation" as therein defined.

_________________

RUSSELL BYARD

SENIOR MEMBER

Mr. M. Belmar, barrister, appeared on the instructions of his client for the responsible authority. He presented written and oral submissions.

Mr. P. Connor, barrister, appeared on the instructions of Hardham Dalton and Soundberg Solicitors for the applicants James and Linda Richardson. He presented written and oral submissions.

Mr. C. Canavan QC, barrister, appeared with Mr C. Townshend, barrister, on the instructions of the firm of Minter Ellison Solicitors for the respondent permit applicant, Rule Resorts Pty Ltd. They presented written and oral submissions.

Various plans and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to grant a permit.

Application under s.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit or Notice of Decision to grant a permit.

Development and use of land for tourist accommodation, golf course and removal of vegetation.

Farming Zone and subject to a Significant Landscape Overlay (Schedule 2) under the Bass Coast Planning Scheme.

To determine a question of law as to the correct characterisation of the proposed use of the land under the planning scheme.

1 These cases concern a permit application for planning permission to use the land for what is described in the permit application as "tourist accommodation". The applicants for review under s.82 of the Planning and Environment Act 1987 (PE Act), the Richardsons, contended the correct categorisation of the proposed use is as "Group accommodation". The applicant company, Rule Resorts Pty Ltd (the company), contends that the correct categorisation of the proposed use is "Residential hotel". The responsible authority agrees with the company.

2 This case concerns a substantial piece of land amounting to 120.8 hectares occupying space between Phillip Island Road to the north and the coast of Bass Strait to the south and abutting the west side of Punchbowl Road.

3 According to the permit application the proposal for which planning permission is sought is described as:

Use and development of tourist accommodation and associated facilities, golf course, removal of native vegetation and provision of site access.

4 The question raised for determination in this preliminary hearing is as to how the proposed use should be categorised. Various land use terms employed in the planning scheme are defined in its cl.74. There is quite an extensive list. The list does not include the expression "Tourist accommodation".

5 The Richardsons contend that the correct categorisation is as "Group accommodation". This is one of the accommodation group of land uses. It is defined in the following terms:

Land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence.

6 The company and the responsible authority, on the other hand, contend that the correct categorisation is as "Residential hotel". Residential hotel is also defined amongst the land use terms in cl.74 of the planning scheme. It too is an accommodation use. It is a variety of residential building, all of which are separate from the notion of group accommodation. Clause 74 also contains the defined land use of "Motel". Residential hotel is defined in the following terms:

Land used to provide accommodation in serviced rooms for people away from their normal place of residence. If it has at least 20 bedrooms, it may include the sale of liquor for consumption on, or off, the premises, function or conference rooms, entertainment, dancing, amusement machines, and gambling.

7 The distinction between group accommodation and residential hotel, for the purposes of this case, is of some significant importance. The land is in a farming zone. The zone provisions are in cl.35.07 of the planning scheme. That clause contains a table of uses some of which are prohibited and some of which do not require planning permission. However, section 2 of the table sets out land uses for which planning permission is required. Both group accommodation and residential hotel appear in section 2. Either would require a planning permit. If that was all, it would not matter which land use correctly categorises the proposed use. However, there is a distinction in section 2 of the table between these two land uses. Each has an attached condition. The conditions are attaching to each use differ one from the other. If the conditions specified for a use is not satisfied, the use becomes a section 3 use in the table and is prohibited. Any uses not listed in section 1 or 2 of the table are also prohibited in relation to this zone.

8 The Richardsons contend that the use, in this case, is group accommodation. This use is lawful, subject to a valid planning permit provided the following conditions are satisfied:

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

9 This proposal includes the provision of something in the order of 200 accommodation units. If they are dwellings, and this is group accommodation, then the proposal is prohibited under the planning scheme.

10 The land use "Residential hotel" in section 2 of the table also has a condition. It reads:

Must be used in conjunction with Agriculture, Outdoor recreation facility, Rural industry, or Winery.

11 Outdoor recreation facility is defined in cl.74 as "Land used for outdoor leisure, recreation, or sport". It specifically includes "Golf course". The company and the responsible authority consequently contend that this residential hotel, as they categorise it, will be used in conjunction with an outdoor recreation facility, namely a golf course, so that the condition is satisfied and the use is not prohibited, but allowable subject to the obtaining of planning permission.

12 In the course of the hearing the various representatives of the parties took me to many previously decided planning cases in relation to the question of categorising uses and other cases relevant to these particular uses and so on. They were, in effect, reminding me of the principles involved. These cases were attended to in the course of the hearing and discussed where necessary. I think it is fair to say that there was not disagreement between the representatives of the parties as to the principles to be applied and the approach to be made, in undertaking the task posed to me in this preliminary hearing. Of course, they come to differing views as to the proper characterisation in the circumstances. I have borne these cases, and the principles in them, in mind in determining this preliminary point. However, I do not think it is necessary here to go through them or to analyse them or isolate the particular principles.

13 I was also referred to the first paragraph under cl.74 of the planning scheme in relation to land use terms which reads:

The following table lists terms which may be used in this planning scheme in relation to the use of land. This list does is not exhaustive. However, 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.

No one was contending that the correct use in this case was anything different from one or other of the two that I have mentioned.

14 It will be necessary to examine what is proposed to determine which is the correct characterisation. Before doing that, I mention that there are certain anomalies about each of the definitions of each of the terms relevant in this case. The definitions may seem plain enough on first reading, but on looking more carefully, there are certain problems.

15 The definition of Group accommodation employs the word "dwellings". Unfortunately, that word is ambiguous in as much as it is used in more than one sense in the planning scheme. A number of cases that were referred to in this respect, including my decision in Coleman v. Manningham CC (No. 1) [2005] VCAT 618. It is sometimes used to mean something like its ordinary English meaning of a house or building or place of residence where a person or people live. That can be, in planning terms, a "development" as opposed to a land use. Clause 74 of the planning scheme contains a specific definition of dwelling, but it is clear, as explained in the cases referred to, that this land use definition does not mean the same thing as the development meaning. The land use "Dwelling" is defined in cl.74 as follows:

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

It includes out-buildings and works normal to a dwelling.

16 Where the definition of group accommodation refers to "a number of dwellings" it does not mean the land use term dwelling. The land use term dwelling is a further species of "Accommodation" which itself is defined in cl.74 as "land used to accommodate persons". That definition does not differentiate between temporary accommodation where people are accommodated away from their normal residence or dwelling or place of abode for a short period on the one hand, or permanent abodes on the other. It includes them both.

17 It is part of the scheme of cl.74 that some land uses are categories of other more broadly defined land uses. "Accommodation" is very broad and includes many sub-categories accommodation (including the two with which I am concerned) which are themselves defined. There can be further sub-sub-categories within those secondary land uses. Thus residential hotel is a variety of accommodation and it includes motel. So far as group accommodation is concerned the table of definitions in cl.74 makes it clear that this land use is a sub-category of accommodation but it does not include any further sub-sub-categories of itself. In the column of the table headed "INCLUDES", in relation to group accommodation, nothing appears. In particular, the word "Dwellings" does not appear. This is a strong indication that the word "dwellings" in the definition does not mean the land use "Dwellings" as defined in cl.74. It means dwellings in the sense of residence or abode or a place where someone lives permanently or for a considerable time.

18 One might expect such a "dwelling" to include facilities like sink, toilet, washing facilities etc. It should be appreciated, however, that the fact that a building or part of a building might include all the facilities necessary to be a place of permanent residence does not mean that it necessarily is such a place or that it is used in that way. For example, serviced apartments or a residential hotel may have rooms or units that have all the facilities in terms of washing, cooking and the like that would be necessary for use as a residence and yet not be in fact be used as a residence or part of a residence, but rather as part of some other land use.

19 There is another problem about this definition of group accommodation. It speaks of "dwellings" used to accommodate persons "away from their normal place of residence". In ordinary English dwelling connotes normal place of residence, not somewhere away from a person's normal place of residence.

20 Really, the expression "Group accommodation" seems to be very badly drafted in that it employs the word "dwellings" to mean something that must be other than either the land use definition "Dwelling" or the ordinary meaning of dwelling because the reference to accommodation away from normal place of residence contradicts that normal English meaning. It therefore seems to mean something like a place with the facilities of a dwelling that would be able to be used as a dwelling but which is used for temporary accommodation. It is a pity that the definition should have been drafted in such unclear terms.

21 The land use "Residential hotel" also has its problems. They are different problems. It refers to accommodation in serviced rooms without using the expression dwellings. It is to accommodate people away from their normal place of residence without the contradiction of using "dwelling". The accommodation in serviced rooms of people away from their normal place of residence is the essential element in the definition.

22 The thing that is confusing is that it is called "Residential hotel". The use of the word "Residential" in the name, having regard to the ordinary meaning of residents or residential, is contradictory of the notion that it is to be "temporary" accommodation away from normal place of residence.

23 This seems to be an unfortunate choice of name for this particular land use. However, it becomes at least explicable if it is contrasted with another land use defined in cl.74 namely "Hotel". The land use term "Hotel" is defined as:

Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.

24 The definition does not include any sub-categories of hotel. In spite of the inclusion of "accommodation", hotel is not in or within the definition of the land use term "Accommodation". It is not a species of accommodation in that sense. It is, in fact, a variety of a different category of land use namely "Food and drink premises". Food and drink premises is, in turn, a species of "Retail premises". Retail premises is defined as:

(a)

sell goods by retail, or by retail and wholesale;

(b)

sell services; or

(c)

hire goods.

25 This is retailing, not accommodation.

26 Food and drink premises, being a variety of retail premises, and including "Hotel", is defined as:

Land used to prepare and sell food and drink for immediate consumption on, or off, the premises.

27 It is all about retailing, not accommodation, and in this case retailing the food and drink. A "Hotel" is therefore quite a different land use, indeed quite a different sub-category of land use in quite a different broad category of land use, from "Residential hotel".

28 A "Hotel" as a land use includes the essential notion of selling liquor for consumption on or off the premises. It would appear to include a liquor store unconnected with other premises, or a bar or tavern. Meals and accommodation are no longer essential parts of the notion of hotels.

29 Traditionally the situation was quite different. Victorian licensing laws used to require "hotels" to provide both meals and accommodation. Such accommodation might be used temporarily or permanently by hotel guests. It was unlawful for hotels not to provide meals and accommodation. Clearly that is no longer the case, at least so far as the notion of "hotel" definition of the planning scheme.

30 I have mentioned that this proposal includes something like 200 units for the accommodation of people. Having regard to the present land use definition of hotel, in contrast with the definition of "Residential hotel", it becomes clear that this proposal is not for a "Hotel". It may well be a "Residential hotel" as defined, but it is not truly a "Hotel". Of course nobody contended as it would be.

31 It is, it seems to me, a bit confusing to have the terms "Hotel" and "Residential hotel" where they mean such different things. They sound like varieties of the same thing where they are not. That is added to the confusion of calling the second a "Residential" hotel where it is for temporary accommodation. It might have been clearer to call it an "Accommodation hotel". It might be clearer, that this is not the expression that has been used.

32 That is enough of analysis of the terms. Which is the two expressions is the appropriate one here?

33 To determine this, it is necessary to look at what is proposed. To do that reference must be made to the permit application, including supporting plans and documents. Where further information has been required by the responsible authority pursuant to s.54 PE Act, or where it has been provided voluntarily by the applicant, such further information is relevant in assessing which characterisation, indeed which land use, is the appropriate one.

34 In this particular case the company has sought to put the matter beyond doubt by drafting and offering to accept a permit condition which would require it to bind itself to an agreement under s.173 PE Act in terms that would exclude group accommodation and point pretty clearly to residential hotel.

35 Mr. Connor complained in his reply to the submissions of the other parties, perhaps a little wistfully, that the application had changed since it was first lodged. Whether it has changed or been clarified is questionable. Certainly, the words in the application document including "tourist facility" are changed to the extent that the company now contends that the proposal is "Residential hotel" as defined. That is not necessarily contradictory. The permit application form used calls for a description of what is proposed in lay terms, rather than strictly in terms of land use expression as defined in the planning scheme.

36 Whether the proposal has been changed or merely amplified, I must consider what is now proposed, and what would now be given permission if the permit application ultimately proves to be successful. In doing this I should have regard to all the information (including in this case, I consider) the draft permit condition that the permit applicant has indicated it is willing to submit to.

37 Planning permits are normally giving permission for future use and/or future development of land. Normally assessments and characterisations have to be made upon the basis of what is proposed. If something quite different to what is proposed is in fact constructed, or if the land is used for something quite different from that for which planning permission is granted, that becomes a question of enforcement, rather than characterisation in the first place.

38 Apart from the golf course, the accommodation components of this proposal are various. There is to be a hotel (in the ordinary English meaning of the word) of 100 rooms. Apparently, they will be arranged to have inter-connecting doors so that two rooms might be hired and the door between them unlocked to provide a suite of two. As far as I understand it, these 100 hotel rooms are to be in a single hotel building to contain other facilities including office administration for the whole site and cooking and food facilities sufficient to provide for people being accommodated throughout the land, for example, in relation to a conference or convention.

39 Apart from the hotel rooms there are other accommodation units described as 31 hotel villas, 13 executive villas and 48 lodges each to contain 3 bedrooms and to also have facilities for washing up, preparation of food, washing and toilets and laundry facilities. This means that they "could" be used as dwellings in that they would have the facilities necessary for independent self contained living. These various units would be in either detached buildings or perhaps with a couple of such units attached to each other but in otherwise detached buildings. These would be spread in various places around the site.

40 Having those extra facilities means that guests occupying the units would not be compelled to rely on the establishment as a whole for food (whether in the dining room or by room service) or laundry. Guests could look after themselves if they chose, or rely on the common service for the whole place otherwise. People using the detached units for a holiday may wish to save some money whereas participants in a conference or convention may not. The point is that the provision of the facilities does not necessarily determine that the units are "dwellings" in the land use sense, the "development" sense, the ordinary English sense, or whatever sense is meant by the use of the word in the definition "Group accommodation".

41 It is not decisive that the accommodation units, or some of them, are detached from the main building. A hotel based on a lagoon on some tropical island might have the accommodation units spread around the lagoon (beside or over it) with access by paths and bridges without disturbing the essential nature of the facility which otherwise might be the same thing with all rooms in one building. Although the so called villas and lodges may have the facilities to be "dwellings" in one or other of the possible senses of the expression, having regard to their construction and facilities, that does not mean that they are, or that the use is "Group accommodation".

42 The essential element that points to "Residential hotel" is the provision of "services rooms" and accommodation in such services rooms. There are many other indicators.

43 It is intended that people would be able to invest money in this undertaking whereby they will acquire rights to occupy accommodation units for certain periods of time each year. However, it is of considerable significance that they will not acquire a right to occupy any particular one of such units. That remains at the discretion of the management of the place as a whole, and a particular investor might have to be content with a different accommodation unit during every visit. All the furnishings and equipment in the units will belong to the undertaking as a whole. Guests, even investor guests, will only be able to bring other personal chattels with them during their stay, and must then take their own property away. There is no facility for even investor guests to store property on the land between visits.

44 Accommodation units will be "serviced" with beds being made up, towels provided and the like with all such linen and towels remaining the property of the undertaking. Cleaning will also be provided.

45 There will be one administration for the whole place which will decide where people are to stay and which will attend to the accounts and bills and complaints if necessary.

46 The responsible authority has issued a notice of determination to grant a permit. In that document it has included a number of proposed conditions. These current proceedings include the challenge to some of them. However, as I have mentioned, the company has put forward a draft for a proposed additional condition which it will accept. This additional condition is proposed in the following terms:

•

All accommodation units will be managed by one operator as part of an integrated residential hotel to the satisfaction of the responsible authority.

•

All residential units will be serviced by one operator as part of an integrated residential hotel to the satisfaction of the responsible authority.

•

All accommodation units will be maintained by one operator, including refurbishment and replacement of furniture and fittings, as part of an integrated residential hotel to the satisfaction of the responsible authority.

•

All accommodation units will be let by one operator as part of an integrated residential hotel to the satisfaction of the responsible authority.

•

Access to all accommodation units and internal roads (save for access to the main reception) must be regulated by an access card, or other device issued by the resort operator to the satisfaction of the responsible authority.

•

Accommodation unit will not be used to accommodate any person other than for the period of time authorised by this permit.

•

No person may leave any personal effects in any accommodation unit except during the period that they occupy that unit as a guest of the resort.

•

No person may individually furnish an accommodation unit.

•

No investor in the resort shall have the right to occupy a specific accommodation unit during any period for which they are a guest at the resort.

•

Any person using an accommodation unit must be a guest of the residential hotel and must abide by the rules and regulations of the residential hotel and be entitled to reasonable access to all hotel facilities.

•

All utilities (including TV, telephone, power, water and gas) which service the accommodation units will be managed and invoiced, where appropriate, by the operator of the residential hotel.

47 All this is to be read in conjunction with condition 5 on the notice of decision to grant a permit which is proposed to be retained and which would require a s.173 agreement providing for various things including that:

•

any habitable building must not be used to accommodate any person other than for a maximum of 10 consecutive weeks per year away from their normal place of residence.

48 I am satisfied, on the basis of the information available as to the nature of the proposal, that the land use here proposed is "Residential hotel" within the meaning of that land use expression defined in cl.74 of the planning scheme and that it is not "Group accommodation" as therein defined.

49 Bearing in mind those definitions, and the evidence as to what is proposed, I am satisfied that the real and substantial purpose, to use an expression that appears in some of the cases, is as "Residential hotel".

50 In coming to this conclusion I am not troubled by the quibble that Mr. Connor was thrown back upon in his reply where he suggested that some one might occupy a unit for 10 weeks and then depart over night to return for another 10 weeks. Although that is technically possible, and may even on rare occasions occur, it does not represent the real and substantial intended situation. Even if it did occur, the returning guest has no claim on the same unit.

51 Mr. Connor, also in his reply, posed this perhaps rhetorical question "What is residential about this proposal, how can it be even a residential hotel? It is just hotel".

52 The answer to that proposition is found in the discussion I have set out above as to the difference between "Hotel" and "Residential hotel" in the land use definitions. This is not in fact a "Hotel" as now defined, when that definition is properly analysed. It is in fact a "Residential hotel" as defined, even if that name is confusing and might be clearer if it was called an accommodation hotel.

_________________

RUSSELL BYARD

SENIOR MEMBER