Mr Jason Sumner, town planner, of Apex Town Planning

1. This proceeding is an application for review under section 77 of the Planning and Environment Act 1987 against the council's refusal to grant a permit for the construction of buildings and works for three buildings to be used for bed and breakfast purposes. The purpose of the practice day hearing was to determine how the proposed use and development should be characterised.
2. One of council's grounds of refusal was that:

The use is characterised as Group Accommodation and cannot meet the conditions of the Green Wedge Zone, therefore is prohibited under the zoning provisions and must be refused.

1. The subject land is included in a Green Wedge Zone (Schedule 4) and a Significant Landscape Overlay under the Yarra Ranges Planning Scheme.
2. In the Green Wedge Zone bed and breakfast is a section 1 use for which no permit is required provided no more than 10 persons may be accommodated away from their normal place of residence. Group accommodation is a section 2 use for which a permit is required but it must be used in conjunction with agriculture, natural systems, outdoor recreation facility, rural industry or winery. If this condition is not met, the use is prohibited. Residential building is also a section 2 use subject to similar conditions. Other forms of accommodation, apart from dwelling, are section 3 uses and therefore prohibited in the Green Wedge Zone.
3. It is common ground that the proposed use does not meet the condition of being used in conjunction with agriculture etc. Therefore, for the use and development to be permitted, it must be characterised as bed and breakfast.

1. Under the planning scheme[1] the definition of bed and breakfast is:

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

1. Bed and breakfast is included within the definition of dwelling.
2. The definition of dwelling is:

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

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

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

1. The subject land has a total site area of 2.906 hectares and contains an existing single storey brick dwelling. Three buildings are proposed to be constructed on the land separate to the existing dwelling. They would feature identical floor layouts car parking arrangements and external finishes. Each building would contain a bedroom, bathroom, living room with bench tops and a sink, and porch. The plans accompanying the permit application contain the notation:

Each typical unit is a kit home by Smart Space Living Solutions available at Bunnings Warehouse. Selected unit is "Smart Space 2 - Living Package". Refer to Buyer's Guide and Technical Specifications for details.

1. Extracts from the Buyer's Guide were tendered at the hearing. The layout plans of the Smart Space 2 unit contain more details than shown on the plans forming part of the permit application. For example, on the plans accompanying the application in the kitchen whilst a bench and sink only is shown, in the Buyer's Guide the same bench is shown with a sink and a stove. In the permit application plans for the bathroom, a hand basin shower and toilet only are shown whereas in the Buyer's Guide a laundry component is also shown.

Will the three units form part of the existing dwelling?

1. For the land use to be characterised as bed and breakfast, it is essential that the three units form part of the dwelling on the land. This is because under the definition of bed and breakfast, it is the dwelling that must be used, by a resident of the dwelling, to provide accommodation. If the units are not part of the dwelling, there can be no bed and breakfast.
2. When considering the various definitions, it is essential to separate the concepts of use and development, particularly in considering the term "dwelling", which is used in the definition of both bed and breakfast and group accommodation, and which is also separately defined in the planning scheme. Regrettably, the planning scheme blurs the distinctions between "dwelling" as a land use and "dwelling" used to describe a particular type of built form. This distinction is evident in the definition of dwelling itself.
3. The definition of dwelling, which is set out above, is a definition of a land use term and the inclusion of dwelling in tables of uses within various zones relates to the use of land for a dwelling not its development for a building. Buildings and works are separately controlled by zone and sometime overlay provisions.[2]
4. There are two components to the definition of the land use term of dwelling - a use component and a development component. As the Tribunal said in Cotsonis v Darebin CC[3], the use component of the definition is: "a building used as a self-contained residence." The key aspect of the use component of the definition is the self-contained nature of the residence. The development component of the definition requires that a dwelling contain all the facilities listed: kitchen sink; food preparation facilities; a bath or shower; and a closet pan and wash basin.
5. In terms of the use component of the definition of dwelling, the Tribunal has held that for a building to be used as a self-contained residence, it must be a place where people live or reside either permanently or for a considerable period of time.[4]
6. With respect to the development or built form component of the definition of dwelling, apart from the specified facilities, the Tribunal has held that there is no requirement for a dwelling to comprise only of a single building. In various decisions, the Tribunal has held that a dwelling need not necessarily be confined to one building.[5]
7. In the present case, there is no dispute that the land is being used for the purpose of a dwelling. The existing house is being used as a self-contained residence by the owner and it contains all the facilities identified in the definition.
8. The question is whether the construction of the three units and their use to accommodate persons away from their normal place of residence would fall within the land use definition of bed and breakfast or whether they would more appropriately fall within the land use definition of group accommodation. This depends on how one characterises the three individual units. Do they form part of the existing dwelling in terms that they could be said to be outbuildings normal to a dwelling or, if not outbuildings, are they otherwise part of the dwelling? Alternatively, are they separate dwellings used to accommodate persons away from their normal place of residence within the meaning of the definition of group accommodation?
9. This is a question of fact, which must be determined having regard to the circumstances of each particular case.
10. In the present case, I do not consider that the three units can be characterised either as outbuildings normal to a dwelling or as part of the dwelling itself for the following reasons.
11. I accept that a dwelling does not need to comprise only a single building and that in other cases the Tribunal has accepted that a bungalow, a habitable outbuilding, or a single unit without all the facilities referred to in the definition of dwelling may be considered to be part of a dwelling. For example, in Hoppach v Wangaratta RCC[6], the Tribunal needed to consider whether three "pods" constructed to the rear of an existing dwelling running off an interconnected, and closed veranda were part of the dwelling. The Tribunal held, on the particular facts of that case, that there was sufficient integration between the various accommodation units and the rest of the dwelling, with food being offered to guests from the central kitchen, to support a finding that the three pods constituted part of a single dwelling and consequently the proposed use of this structure could be characterised as a bread and breakfast.
12. However, what we have in this case are three separate identical units all of which contain the basic facilities specified in the definition of dwelling, as well as a bedroom, bathroom and separate living room. They have no physical or functional connection to the existing dwelling. In these circumstances, I do not consider that the three units can be said to constitute outbuildings normal to a dwelling and nor are they part of the existing dwelling.
13. There is no definition of outbuilding in the planning scheme or the Act. Outbuilding is defined in the Macquarie Dictionary as a detached building subordinate to a main building. I do not consider that the notion of an outbuilding being subordinate to the dwelling carries any implications regarding relative size, but I do consider that it carries implications regarding function. This is further reinforced by the use of the word "normal" in the definition of dwelling where it refers to "outbuilding ... normal to a dwelling". Again according to the Macquarie Dictionary, normal means conforming to the standard or the common type; regular, usual, natural, or not abnormal.
14. I do find that three self-contained accommodation units are not normal to a dwelling. Many dwellings may have a single bungalow or a shed associated with their residential use. They may be said to be outbuildings normal to a dwelling, but three identical accommodation units are not usual; they are not normal.
15. I further find that the units bear no relationship to the existing dwelling either in terms of physical or functional integration with it.
16. Accordingly, I find that the units are not a part of the existing dwelling. On this basis, even though they will be used to provide accommodation for persons away from their normal place of residence, because they are not part of the dwelling the use of the land cannot be characterised as bed and breakfast.

1. I turn now to consider whether the proposed use of the land, if the units are constructed, should be characterised as group accommodation.
2. The definition of group accommodation refers to land, in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence. The use of the word "dwellings" in this context refers to a type of development or built form, not to use of the land as a dwelling. This is one of the situations, which I referred to earlier, where the planning scheme blurs the distinction between "dwelling" as a land use and "dwelling" as a particular type of building. Clearly, use of the term "dwelling" in the definition of group accommodation should not be confused with the definition of the land use term of "dwelling". In land use terms, a dwelling must be used as a self-contained residence and residence means a place where people live or reside either permanently or for a considerable period of time. This is the antithesis of the requirement in the definition of group accommodation that the dwellings are used to accommodate persons away from their normal place of residence.
3. In the definition of group accommodation, the reference to dwellings is therefore a reference to a type of building. In my view, the type of building, which would be a dwelling for the purpose of the definition of group accommodation, would be a building that includes the type of facilities included in the definition of dwelling, namely a kitchen sink; food preparation facilities; a bath or shower; and a closet pan and wash basin, and contains sleeping and other facilities, which are necessary in order to accommodate persons away from their normal place of residence. Such a building is likely to be a dwelling as that term is used in the definition of group accommodation, although each case will involve a finding on its own facts and circumstances. If there are a number of such dwellings on land in one ownership, which are used to accommodate persons away from their normal place of residence, then the use of the land must be characterised as group accommodation. It does not matter that the land may also be used for the purpose of a dwelling. Land may be used for more than one purpose, such as for a dwelling and for group accommodation.
4. In the present case, the applicant submitted that the proposed units should not be characterised as dwellings given that they do not contain fully equipped kitchens and food preparation areas. The Tribunal was advised that:

These outbuildings are provided with what is called a kitchenette which will consist of a sink, small bench, a kettle and a microwave. The purpose is to provide for the ability of the guests to have very light snacks and to make coffee, not to prepare meals.

1. In my view, the provision of food preparation facilities does not require the provision of a fully equipped kitchen. A bench, a kettle and a microwave will enable food to be prepared. There is nothing in the permit application or the material submitted by the applicant at the hearing, which indicates that guests will be provided with meals by the resident of the dwelling. Rather, there is a clear implication that the guests occupying the units will be self sufficient. for example, the land capability assessment describes the proposal as "new 3 self-contained bed and breakfast units". This contrasts with the situation in Hoppach where Member Cook found that the structure was not designed and it was not intended to use the guest rooms as self-contained accommodation and that they were reliant on the owners' facilities for any meals that may be desired and that food, including breakfast, would be offered to guests. Member Cook relied very much on the integrated nature of the guest rooms and the remainder of the property in form and function to reach the conclusion that this was a bed and breakfast use of land. Likewise, the absence of food preparation facilities in the form of hot plate, oven or microwave was a critical factor in the Tribunal's finding that the building in Cotsonis was not a separate dwelling.
2. Overall, I consider that the style and appearance of the three units and the facilities they will contain mean that they are dwellings as that term is used in the definition of group accommodation.
3. Therefore, as the subject land is one ownership and it will contain a number of dwellings used to accommodate persons away from their normal place of residence, I find that the proposed use and development of the land will fall within the definition of group accommodation.
4. I do not consider that removing the food preparation facilities completely would assist the applicant. It may be arguable that the units could not then be described as dwellings. However, for the reasons I have given, this would not mean they become part of the existing dwelling and hence fall within the definition of bed and breakfast. Rather, the use of the land would fall either within the broad definition of accommodation (land used to accommodate persons) or maybe residential building. Either way, the applicant is not assisted because accommodation is a section 3 (prohibited) use and residential building, although a section 2 use, is subject to conditions that cannot be met in the particular circumstances of this case. They are the same conditions that apply to group accommodation and make this use prohibited in this particular case.

1. For these reasons, I find that the proposed use and development of the land should be characterised as group accommodation. This means that council's ground of refusal that the use is prohibited because the conditions for group accommodation in the Green Wedge Zone cannot be met must be upheld. On this basis, the decision of the responsible authority must be affirmed.

[1] Clause 74 Yarra Ranges Planning Scheme

[2] Armato v Hepburn SC [2007] VCAT 603 at [12]

[3] [2005] VCAT 232 at [20]

[4] Armato v Hepburn SC [2007] VCAT 603 at [11]; Derring Lane Pty Ltd v Port Phillip CC [1999] VSC 269; Merrett v Moira SC [2005] VCAT 242 at [16] - [17]

[5] See Yarra Ranges SC v Yoxon [2009] VCAT 642 at [27]; Cotsonis v Darebin CC [2005] VCAT 232; Teichmann v Colac Otway SC [2008] VCAT 2219; Casey CC v Kelly [2004] VCAT 1838 at [16]

[6] [2009] VCAT 2785