1. The applicant has applied to the Council for a certificate of compliance under section 97N(1)(b) of the Planning and Environment Act 1987 (Vic) ('PE Act').
2. Section 97N(1) of the PE Act provides the opportunity to seek a certificate either for a current use and development or for a proposed use or development. It states:

(1) Any person may apply to the responsible authority for -

(a) a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate; or

(b) a certificate stating that a proposed use or development (or part of a use or development) of land would comply with the requirements of the planning scheme at the date of the certificate.

1. The application to the Tribunal is made under section 97P(1) of the PE Act which permits an applicant to apply for review of a refusal by the Council to grant a certificate of compliance.
2. The subject site is in the Township Zone. It was agreed that this zone is a residential zone in that it is one of the nominated residential zones within the Scheme.
3. The purposes of that zone are as follows:

Purpose

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To provide for residential development and a range of commercial, industrial and other uses in small towns.

To encourage development that is responsive to the neighbourhood character of the area.

To allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.

1. The use of land for a 'home based business' is a use for which no permit is required under the Scheme.
2. 'Home based use' is defined as 'An occupation carried on in a dwelling, or on land around a dwelling, by a resident of the dwelling. It may include a use defined elsewhere.'
3. The applicant says that if a permit were required for the use other than as a home based business it would be required for the use as a rural store which is defined under the scheme as 'land used to store unprocessed agricultural produce, or products used in agriculture'.
4. There are a number of requirements set out in clause 52.11 of the Scheme which a use must meet to be considered a home based business which does not require a permit under the Scheme. These are:

A home based business must meet the following requirements:

• The person conducting the home based business must use the dwelling as their principal place of residence.
• No more than two persons who does not live in the dwelling may work in the home based business at any one time.
• The net floor area used in conducting the business including the storage of any materials or goods must not exceed 100 square metres or one-third of the net floor area of the dwelling, whichever is the lesser. This does not apply to the education or care of children. The net floor area includes out-buildings and works normal to a dwelling.
• The business must not impose a load on any utility greater than normally required for domestic use.
• The business must not adversely affect the amenity of the neighbourhood in any way including:
  • The appearance of any building, works or materials used.
  • The parking of motor vehicles.
  • The transporting of materials or goods to or from the dwelling.
  • The hours of operation.
  • Electrical interference.
  • The storage of chemicals, gasses or other hazardous materials.
  • Emissions from the site.
• No motor vehicle may be adjusted, modified, serviced or repaired for gain.
• Only one commercial vehicle associated with a home business not exceeding 2 tonnes capacity and with or without a trailer registered to a resident of the dwelling may be present at any time. The vehicle must not be fuelled or repaired on the site.
• No goods other than goods manufactured or serviced in the home based business may be offered for sale. This requirement does not apply to goods offered for sale online.
• Materials used or goods manufactured, serviced or repaired in the home based business must be stored within a building.
• No goods manufactured, serviced or repaired may be displayed so that they are visible from outside the site.
• Any goods offered for sale online must not be collected from the dwelling.

• any motor vehicle which is used or intended to be used for carrying goods in the course of any business; or
• a commercial motor vehicle within the meaning of the Road Safety Act 1986.

1. It is possible to apply for a permit for a home based business which does not comply with certain nominated aspects of these requirements. No permit has been sought in this application.

1. The key issues in this proceeding are:
   1. Does the proposal meet the definition of a home based business?
   2. Does the proposal meet the requirements for a home based business as set out in clause 52.11 of the Scheme?

1. The applicant applied for a certificate under 97N(1)(b) on the basis of a 'proposed use'. The proposed use is described in the report attached to the application. This describes the application as for a 'proposed use of land for a Home Based Business at 27 Cricket Street, Cowwarr'. The report describes the following features of the application:
2. The home based business would be confined to 12m x 7.5m within the outbuilding located on the land 997.5m3)=.
   1. The nature of the home based business involves the storage of fertiliser, specifically urea which is stored on pallets in large hessian bags and taken out to farms as part of the landowners agricultural consulting business.
   2. An electric forklift/pallet jack[2] is parked in the shed and used to move the pallets on and off the racking as required.
   3. The business does not undertake sales from the land, and there is no display or in-person access to the business.
   4. The extent of the business activities is confined to the landowner storing the urea, and loading it as required for use off site.
   5. Activity hours are confined to ordinary business hours on weekdays, with usual operation being two to three hours per week.
   6. The Council should consider whether the application (which would be defined as a Rural Store under clause 73.03) meets the requirements of clause 52.11 of the Scheme.
3. The area of the proposed use is depicted in figure 1:

Figure 1 - Depiction of part of shed to be used for the business

The bays used for the proposed use are shown in figure 2.

1. The Council also provided the following photos taken inside the shed[3] showing:

1. The Council issued a decision on 21 May 2025 under section 97O(2) PE Act which states after the formal headings:

Use of the land for a home based business (fertiliser storage)

The following parts of the use or development referred to in the application for this certificate are prohibited by the planning scheme or prohibited by the scheme unless a permit is granted by the responsible authority:

Clause 32.05 Township Zone. The proposed use (Rural Store is a Section 2 use in the Township Zone).

Clause 52.11 Homebased Business. (The proposed use does not meet the requirements of a Home base business).

1. This is the decision which forms the basis of this application for review.

1. The application included an aerial photograph of the site associated with the building permit for the construction of the shed reproduced in figure 5:

Figure 5 - Subject site and location of the house and shed

1. The subject site is in the township of Cowwarr which was described as a hamlet accommodating around 389 persons. It comprises an area of land in the Township zone in which the properties close to the subject site are in the order of 1000 to 2000 square metres depending on whether each comprises one or two standard lots.
2. The subject site is approximately 2030 square metres in area comprising three titles being two regularly shaped parcels consolidated with a former laneway. The three parcels are required to be used together in accordance with an agreement made under section 173 of the PE Act.
3. Cricket Street was described at the hearing as a quiet country street.
4. A shed has been erected in the area shown in red in figure 1.
5. The Council provided a further photograph of the site showing a vehicle being unloaded on site prior to the applicant ceasing the previous use of the shed as required by the Council.

Figure 6 - Photograph of the site provided by Council

1. Prior to the hearing the following was filed on behalf of the applicant:

• A four page document prepared by the applicant for the purpose of his evidence. Relevantly it indicates that the applicant: * Imports granular urea into Melbourne in 60 metric tonne lots (3 x 20 foot containers). * Imports a maximum of 400 tonnes per annum or 20 containers. This translates to 1.6 truck movements per month. This translates to three in one month, then nothing for a month or two. * Would have trucks back into his shed (designed for the purpose) and would unload them with an electric forklift (more specifically an electric double reach truck). * Has a shed which is divided into three areas - one for his personal use and a smaller area at the rear has pallet racking (four racks high) that can store his fertiliser requirements (in accordance, he says, with the Home Based business rules), and the unloading area where he also stores his tractor/trailer and cars. * Says that twice per week (Tuesdays and Fridays in general) he would use his Reach Truck to load my tractor/trailer (which takes less than an hour) and he drives to his clients to apply the agreed annual fertiliser application ensuring it does not exceed an annual budget. In oral evidence he says that he does not need to use the tractor/trailer and can take the urea on and off the site in a regular vehicle. * Says the tractor is washed at the client's farm and will be stored at a nearby farm clean and empty. * Does not start before 7am and is not usually home later than 5pm. * Indicates that there is no mixing/manufacturing/blending on the premises and in general around 50% of the product stored is organic. * Says that nobody would come to the premises to buy/collect fertiliser, not even clients. * Says a commercial vehicle of over two tonnes was stored at the premises but the applicant now stores it elsewhere. * Indicates fertiliser is or would be delivered in a large truck. * Says that urea is not a hazard as per the material safety data sheets he provided to the Tribunal. * Considers that concerns that the photos provided by the Council are misleading.

1. Three academic articles relating to the use of urea, two of which were written by the applicant[4].

• A material safety data sheet for the relevant form of urea was also provided.

2. Mr Spilsbury gave oral evidence about the use that he proposes to make of the site and the business he runs from his dwelling on the site. In summary:
   1. He runs a business which essentially has two parts, one is akin to a pure consultancy by which he uses his knowledge and research in the area of optimisation of farming land through the use of fertilisers to advance knowledge in this area generally.
   2. In addition, he runs a business with a practical component. That involves the importation of urea in the form of pallets which is proposed to be stored in the shed on site in hessian bags.
   3. The business consults to a limited number of local farmers as to the optimum application of fertiliser. This involves him conducting detailed and targeted assessments of pasture. The data collected is analysed and the optimal amount of fertiliser in the form of urea is identified. He then takes the correct amount of urea to the site and applies that amount to the site (within an agreed annual limit which he is contracted to apply annually).
   4. The correct dosage of fertiliser is applied by use of a tractor/spreader specifically modified for that purpose.
   5. The storage of urea is for the practical component of his business. It is not sold from the premises by retail or wholesale and is not available for sale.
3. The evidence of Mr Spilsbury was not contested by the Council. He provided full and frank responses to the questions asked of him and I accept his evidence as to the facts underpinning this application[5].

Does the proposed use meet the definition of home based business?

1. Home based business is defined as 'An occupation carried on in a dwelling, or on land around a dwelling, by a resident of the dwelling. It may include a use defined elsewhere'.
2. The elements of this use include an occupation carried on on the land.
3. The use as explained by Mr Spilsbury, includes an identifiable occupation (e.g. farm management consulting or a similar description) of which the storage of urea forms a component.
4. At the hearing Mr Spilsbury confirmed that he used a part of the house as his home office which he indicated was in the order of four square metres in area and which was not included in the application.
5. The applicant's representative described the use of this office area as being ancillary to a dwelling and thereby not requiring planning permission.
6. I do not consider that the application, as lodged, complies with this definition. It does not identify an 'occupation' and does not include the area where the consulting activity occurs. It identifies the storage component without identifying the area in which the 'occupation' is carried on. While this may be a physically small area, I do not consider that a home based business, in this instance, can be properly described by reference to the storage component alone.
7. Further, I have real doubts as to whether a home based business can be one where the majority of the business activity occurs on another site. The urea is proposed to be stored not for use in the home based business on the site but on other sites.
8. I was not taken to any cases which supported the proposition that this form of business could be considered a home based business. To some degree this is not surprising as this is an unusual use, and I accept that finding a clear understanding of how this should be assessed under the Scheme is not self-evident.
9. I agree with the applicant that the use is quite different to a rural co-operative selling fertiliser and should be addressed quite differently from that use.
10. Perhaps the closest analogy used at the hearing was to a builder living in a residence who had some trade materials on site. Each case needs to be considered on its merits, but I am not convinced that this would necessarily be a home based business rather than simply a domestic use by someone who carries on a building business elsewhere - unless there was significant on-site building work to justify such as description. Each case would of course turn on its own facts.
11. In this case, at a minimum to be considered a home based business, it would be important to identify in the application the of the dwelling used for the consulting business. The absence of the connection between the storage and the area in which the 'occupation' is conducted is fatal to the current application.
12. If it were the case that simply making this change would have meant that the use clearly fitted within the definition of home based business, I would have considered whether there was a process by which this change could be made in this proceeding. I do not consider that the situation is so self-evident that simply making this change would mean that the proposed use would become a home based business.
13. The applicant said that if the application were not considered a home based business, then the use of the 'shed' for the storage of urea may meet the definition of 'rural store' for which a permit could be granted. I do not have that matter before me, but that is a proposition which aligns with the submission made that the 'consulting use' could be considered ancillary to the dwelling.
14. I was referred to the decision of the Tribunal in Quarrell v Wellington SC [2025] VCAT 697 in respect of submissions in relation to fire risk but also as an example of a home based use where part of the use was conducted off site - in that wood was delivered off site.
15. I have reviewed that decision and note that there is a description of the activity onsite as follows:
    • Logs as well as processed timber is delivered to site from cleaning up of local farms.
    • Once onsite processed timber is stored in storage area.
    • The location of the permanent storage/activity area is in a position which provides all year access, as most of the deliveries are done through winter and it can get quite wet which would result in damages to the land if it wasn't located in this position.
    • Logs are cut using a chainsaw and split with hydraulic splitter which is powered by a Honda gx690 (very similar to your typical lawn mower engine) which then joins the rest of the processed timber.
    • Once the applicant receives an order, firewood is then loaded onto a trailer via tractor and delivered to the customer.
    • Estimated output is 100-150 cubic metres annually depending on supply of timber as well as other work commitments. The applicant estimate that this is approximately 100 hours of labour onsite to produce this amount annually, due to the nature of his casual employment. He argues (sic) that he can go months without processing any firewood as well as working 2-3 days at a time, where he tries to be courteous to the surrounding property and only ever operate between the permitted residential noise restriction periods.
16. While this too was an unusual application, it is apparent that significant work was occurring on the site, and, critically, that aspect of the application and the area in which it was occurring was squarely within the area identified in the application.
17. I do not consider this decision assists the applicant's case here.
18. For the reasons set out above I find that the use described in the application is not for a home based use.

Does the proposed use satisfy the criteria set out in clause 52.11?

1. In view of my finding that the use is not a home based business it is not strictly necessary to address the various factors set out in clause 52.11. However, in view of the evidence and submissions before me I have addressed these as it may assist the parties in the future.
2. So far as there is a need to make judgments in respect of the acceptability of criteria contained with clause 52.11, I consider that these must be made in the context of the amenity expectations consistent with the zone and the site context. In this case that is within the Township zone, which is a residential zone, albeit one where a wider range of uses may be expected than a neighbourhood residential zone. I accept, as the parties submitted, that it is a quiet residential area albeit some buses and large vehicles use the roads.
3. I have addressed the elements of clause 52.11 which the Council contested at the hearing. The following criteria were assessed as having been met: principal place of residence; no more than two persons working at the site; no additional load on utilities; hours of operation; electrical interference; emissions from the site; no motor vehicle repairs for gain; storage of materials within the building; display criteria and no collection of goods offered for sale.

The business must not adversely affect the amenity of the neighbourhood in any way including:

• - The appearance of any building, works or materials used.
• - The parking of motor vehicles.
• - The transporting of materials or goods to or from the dwelling.
• - The hours of operation.
• - Electrical interference.
• - The storage of chemicals, gasses or other hazardous materials.
• - Emissions from the site.

1. I have addressed each of the elements which was in dispute.

1. I agree with the applicant's submission that the appearance of the building would remain the same whether or not the application is granted.
2. I have not been persuaded that there is any additional aspect arising from this application which would make the appearance of this site unacceptable.

1. The application describes the proposal as follows:

The business will receive a delivery every 3-4 months (3-4 deliveries a year). The delivery will arrive in a Heavy Rigid curtainsider truck on standard pallets, which can be unloaded by the electric forklift/pallet jack owned by Mr Spilsbury. The pallets will then be placed inside the shed, onto the installed pallet racking. The delivery process is estimated to take approximately 30 minutes. The delivery truck will be turned off during delivery and the electric forklift/jack does not have a motor and therefore operates silently.

In terms of materials from the dwelling, the goods will be loaded into a spreader which will be driven to the site to collect the goods as required. This is estimated to be 1-2 times a week, taking approximately 10-15 minutes to load the spreader. The spreader will be turned off while being loaded.

The extent of transport is therefore in the order of 20-30 minutes a week from the business, with a 30 minute delivery quarterly, into vehicles that are switched off. There is no adverse amenity impact from this degree of activity.

1. The applicant clarified that there are three deliveries each three - four months which would all occur in close succession in large trucks following the arrival of each container in Australia. Otherwise, he indicated that this was an accurate description.
2. This aspect of the operation is the most difficult in terms of assessing the amenity impacts. It is apparent that any impact from the large truck backing up the driveway is short and at an average of once a month is infrequent. That said the amenity expectations set out in 52.11 require more than an acceptable impact as might be required when considering a planning permit application. The purpose of 52.11 is 'to ensure the amenity of the neighbourhood is not affected by a business conducted in or from a dwelling'.
3. The requirement in respect of amenity is that the 'business must not adversely affect the amenity of the neighbourhood in any way'. In this application, that is a matter the applicant must satisfy the Tribunal in relation to. I am not satisfied on the material before me that this element of the assessment is satisfied.
4. In view of the size and scale of the truck reversing along the driveway, I am not persuaded that this does not affect the amenity of the neighbourhood in any way - even though I accept that the impact would be for a short period.
5. I note that having read the complaints received by the Council, I have not put any weight on these. I accept that they either: raise expectations as to what will occur which are not based on the material I have before me; or, address matters such as the appearance of the building which will not change if the application were granted.
6. My reservations are limited to the deliveries to the property.
7. The application states that no other commercial vehicles would attend the site for the purpose of distributing the urea once it is delivered. I do not consider that the taking of urea to the farms for use would cause other detrimental amenity impacts if it were conducted in a standard vehicle in the manner described to me at the hearing.

1. Aside from the delivery issue addressed above I do not agree with the Council that the parking of vehicles would cause amenity impacts. This is based on the evidence before me that this proposal does not involve the parking of any commercial vehicles on site.

No goods other than goods manufactured or serviced in the home based business may be offered for sale. This requirement does not apply to goods offered for sale online.

1. The applicant says that there are no sales of goods occurring from the property because the fertiliser which is stored there is used only as a part of his business which is conducted on farms and is not otherwise available for sale whether from the property, online or by telephone or other order. The only urea he imports is that which is required as fertiliser for the farms he is working on. He says there is no direct sale of the fertiliser from the property.
2. On the basis of the applicant's evidence, I would have concluded that this criterion had been met.

Only one commercial vehicle associated with a home business not exceeding 2 tonnes capacity and with or without a trailer registered to a resident of the dwelling may be present at any time. The vehicle must not be fuelled or repaired on the site.

Only one commercial vehicle associated with a home business not exceeding 2 tonnes capacity and with or without a trailer registered to a resident of the dwelling may be present at any time. The vehicle must not be fuelled or repaired on the site.

In this clause, a commercial vehicle means:

any motor vehicle which is used or intended to be used for carrying goods in the course of any business; or

a commercial motor vehicle within the meaning of the Road Safety Act 1986.

The business has no motor vehicle parking associated with it. As detailed further below, the extent of parking of vehicles consists of the loading and unloading of deliveries, as no vehicles are otherwise driven to or parked on the site.

...

No commercial vehicles associated with the business are to be parked/stored on the site.

1. I find that this element is met by the application.
2. I also accept that the position in relation to vehicles proposed to be used on the site was clearer after the evidence of Mr Spilsbury. As I understand it there were three vehicles previously observed on the site by the Council. One was an electric forklift like device which is hand operated and referred to as a 'reach truck'. This is not registered and cannot operate other than on the concrete apron.
3. The large delivery truck is not registered to the applicant.
4. The applicant does own a tractor spreader which is currently stored off site and was not proposed to be used on site.

The storage of chemicals, gasses or other hazardous materials

The business stores urea in large fertiliser bags, stored on pallets in racking within the shed.

Urea is a colourless, odourless solid used in fertilisers as a source of nitrogen. Urea is not a hazardous material and does not require any notifications or registrations under the Dangerous Goods Act.

As it is colourless, odourless, and stored within the shed on the land, its presence cannot be said to have any effect on the neighbourhood.

1. The applicant provided material safety data sheets and gave evidence about the properties of the urea he was storing and using. On the basis of that evidence, the Council did not contest that the storage was not hazardous, and I agree with the Council's revised position.

The net floor area used in conducting the business including the storage of any materials or goods must not exceed 100 square metres or one-third of the net floor area of the dwelling, whichever is the lesser. This does not apply to the education or care of children. The net floor area includes out-buildings and works normal to a dwelling

The net floor area used in conducting the business including the storage of materials or good must not exceed 100 square metres or one-third of the net floor area of the dwelling, whichever is the lesser. This does not apply to the education or care of children. The net floor area includes out-buildings and works normal to a dwelling.

The net floor area of the use (net floor area being defined as 'the total floor area of all floors of all buildings on a site. It includes half the width of any party wall and the full width of all other walls. It does not include the area of stairs, loading bays, accessways, or car parking areas, or any area occupied by machinery required for air conditioning, heating, power supply, or lifts) is less than 100m², noting that the total floor area of the dwelling and outbuilding is approximately 450m².

It is noted that the floor area requirement specifically excludes areas for loading bays, accessways and car parking areas. However, for the avoidance of doubt, we have included the area between the 2 rows of pallet racking as part of the area calculation. If the accessways were excluded, the area would be closer to 50m².

1. The parties agreed that the shed is an 'outbuilding or works normal to a dwelling'.
2. The Council initially considered this criterion to be met but amended its position at the hearing to say that it was not met because it considered that the portion of the accessway within the building in which the forklift operated should be included.
3. The application identifies the floor area of the racks on which the urea is stored as the primary area of the use. The applicant says the aisle area between those racks could also be included because it fits within the 100 square metre limit. The wider area of the pathway that the forklift must pass along to get the bags to the rack when the delivery truck is unloaded is not included.
4. The answer to whether the wider area should be included depends on the view taken of the definition of 'net floor area' in this context. That definition is:

The total floor area of all floors of all buildings on a site. It includes half the width of any party wall and the full width of all other walls. It does not include the area of stairs, loading bays, accessways, or car parking areas, or any area occupied by machinery required for air conditioning, heating, power supply, or lifts.

1. In view of the clear words in the definition of net floor area which exclude accessways, I agree with the first proposition of the applicant that the accessways should not be included. The drafters of the provision have used this defined term in combination with the reference to storage of goods. I have not been persuaded by the Council that there is any reason to depart from the words of the provision to include other accessways, however, I find that the area between the shelving being used (the yellow area in figure 2) as being part of the area of the use. It would create too artificial a distinction to identify the use as being conducted solely on the shelves to the left and right of the gap between the shelving units. I consider that the area up to the end of the aisle can be considered an access way but that the area between the shelves is better considered part of the area used for the storage of urea.

1. For the reasons given above, the decision of the responsible authority is affirmed, and the responsible authority is directed that a certificate pursuant to section 97N (1)(a) of the Planning and Environment Act 1987 (Vic) must not be issued.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Referred to at the hearing as an electric reach truck.

1. [3] The applicant says that figures 5 and 6 are not indicative of what is currently on site. I was provided with more recent images which have collectively clarified the nature of what is proposed on the land.

2. [4] Spilsbury, S. and Quin, B.F. 2016. Changing farmer perceptions and profitability on irrigated dairy farms in Victoria by improving pasture growth and utilisation efficiency. In: Integrated nutrient and water management for sustainable farming. (Eds L.D Currie and R. Singh). http://flrc.massey.ac.nz/publications.html Occasional Report No. 29 Fertilizer and Lime Research Centre, Massey University, Palmerston North, New Zealand. 7 pages; Spilsbury, S. and Quin, B.F. 2017. Gibberellic acid application in summer (applied with wetted nbpt-treated prilled urea) increases pasture production on five irrigated dairy farms in Victoria, Australia. In: Science and policy: nutrient management challenges for the next generation. (eds L.D. Currie and M.J. Hedley) http://flrc.massey.ac.nz/publications.html. Occasional Report No. 30. Fertilizer and Lime Research Centre, Massey University, Palmerston North, New Zealand, 7 pages; Spilsbury, S. and Quin, B.F. 2017. Gibberellic acid application in summer (applied with wetted nbpt-treated prilled urea) increases pasture production on five irrigated dairy farms in Victoria, Australia. In: Science and policy: nutrient management challenges for the next generation. (eds L.D. Currie and M.J. Hedley) http://flrc.massey.ac.nz/publications.html. Occasional Report No. 30. Fertilizer and Lime Research Centre, Massey University, Palmerston North, New Zealand, 7 pages.

3. [5]I note that my decision should not be taken in any way as a reflection on the merits of his business or to indicate the outcome of any permit application or other application under the PE Act which may be made in the future.