A permit is granted for additions to a shop and a caretakers house at 129 Burnley Street, Richmond in accordance with the endorsed plans and subject to the following conditions:

1. This permit does not come into effect until amended plans showing:

(a) reduction in the total floor area occupied by the proposed Caretaker's House and balcony so that the east wall of the upper floor aligns with the east wall of the garage

2. All development and use must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.

3. The layout of the uses on the endorsed plans must not be altered without the written consent of the Responsible Authority.

4. This permit will expire if the use or development is not commenced within one year from the date of this permit. All development must be completed within 2 years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within 3 months of expiry.

(b) be maintained at all times to the satisfaction of the Responsible Authority.

Note: (i) A building permit must be obtained before development is

(ii) The site must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Simon Temple, Town Planner, for the Responsible Authority.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

1. The proposal is inconsistent with the definition of a Caretaker's House.

2. The proposal is inconsistent with the objectives and strategies of Element 3 : Industry and Commerce in Council's Municipal Strategic Statement.

3. The proposed use is considered a dwelling and is prohibited in the Industrial 3 Zone.

4. Insufficient car parking has been provided for the proposed Caretaker's House.

q This application has been discussed/advised at the counter by the council for a long time before making plans, the submission, which was set as the definition of local business zone.

q The proposal, caretaker's house, has been considered consistent within this zone at the time before submission.

q The number of car parking has been justified in accordance within our statement dated 8/6/99, which would be sufficient.

q The submission was done before the change of zone from local business to Industrial 3 zone by the City of Yarra.

q Council issued the advertisement/notice to this project.

q The application has bee advertised and received no objection from adjoining property owners and or public.

q The proposal would not affect the neighbourhood, front streetscape.

q The adjoining property No 131 Burnley Street, Richmond has been received consent from same project.

q We request the Victorian Civil and Administrative Tribunal to issue a permit for this project.

1. This is an application to review the refusal of the City of Yarra to allow additions to a shop and caretaker's house at 129 Burnley Street, Richmond by Thanh Thai Architects Pty Ltd.

2. The application to carry out the additions and extensions and to use a part of the site for a caretaker's house was lodged on 25 May 1999 at which time the land was zoned Local Business under the previous Yarra Planning Scheme. On 27 May 1999 the new VPP based Yarra Planning Scheme came into operation zoning the land Industrial 3. Whereas in the previous scheme the caretaker's house above a shop in a Local Business Zone may have received a relatively smooth passage, in the new format scheme council's strategies and policies come into operation which have quite a bearing on how this application was considered by the council.

3. Mr Thanh said both he and his clients had gained the perception that the Council planners supported the initial application. However, Mr Temple put forward a contrary view. It seemed from Mr Thanh's submission that there had been some lack of communication between the parties. On 1 July the application was advertised to owners and occupiers of adjoining properties and no objections were received. On 20 August the Council's Development Assessment Panel resolved to issue a notice of refusal to grant a permit on the grounds as listed. Mr Thanh then made an application for that decision to be reviewed on the grounds also as listed.

4. I have taken the description of this from Mr Temple's submission and this reads as follows:

"The application proposes the construction of ground and first floor alterations and additions to an existing double storey commercial building and use of first floor level as a Caretaker's House.

The alterations and additions involve extending the existing building to the northern boundary and along the southern boundary of the site. The ground floor level will be setback 3.4 metres from the eastern (rear) boundary of the site and consists of the existing bookshop, ancillary offices and tear room. The existing first floor level will be extended along the full length of the northern and southern boundaries of the site and will contain two bedrooms, dining, bathroom, kitchen and lounge/family area.

The maximum wall height of the proposed development will be 8.0 metres while the height of the wall at the rear of the site (to the top of the balcony) will be 5.7 metres.

Private open space is provided for the Caretaker's House at first floor level in the form of a rear balcony (13.7 square metres) accessed via the lounge/family room.

Car parking is provided at the rear of the site in the form of a double garage accessed via the adjacent laneway and Crown Street to the south.

The application also proposes ground floor alterations to the shop front involving a relocation of the existing entry and replacement of existing windows on the western (front) elevation of the building."

5. These were also well described by Mr Temple when he submitted that:

"The subject site is located on the eastern side of Burnley Street north of Crown Street. The land is rectangular in shape and has a frontage to Burnley Street of 4.7 metres and a depth of 32.5 metres resulting in an overall site area of approximately 152.7m2. The site fronts Burnley Street and runs through to a narrow laneway at the rear which is accessed via Crown Street. The appeal site contains an existing double storey Victorian building which is used as a bookshop at ground floor level and ancillary office/storage at first floor level. The rear of the site contains an open car park area and outbuilding (to be demolished).

A 3.0 metre wide laneway runs north-south along the rear of the properties facing Burnley Street and terminates at the northern end of the adjoining property to the north. Vehicle access to the laneway is via Crown Street.

The surrounding land is characterised by a mixture of commercial and industrial buildings/uses on the eastern side of Burnley Street, and predominantly single and double storey dwellings opposite the site on the western side of Burnley Street.

Properties adjacent and immediately north of the subject site are double storey Victorian terraces which are used as shops at ground floor level. The adjoining property to the south is a double storey Victorian terrace building which is used as a shop at ground floor level and has previously (29 January 1999) been issued with a planning permit by Council to construct alterations and additions (ground and first floor) and use the first floor as a Caretaker's House."

6. The land is zoned Industrial 3. The objectives of this zone are:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for industries and associated uses in specific areas where special considerations of the nature and impacts of industrial uses is required or to avoid inter-industry conflict."

7. The planning scheme at Clause 33.03-4 requires a planning permit to be obtained to construct a building or to construct and carry out works. Clause 33.03-1 requires a planning permit for the use of land for a caretaker's house.

8. The Municipal Strategic Statement locates the site within a core industrial area under its relevant framework plan. One of the key objectives of this framework plan is "a continual reduction in the incidence of amenity conflicts between business and residential activities". One of the strategies to achieve the above objective is "facilitate the trend to home based businesses through ... providing for single caretaker's dwellings ancillary to established business operations within business enterprise areas". Another is to "protect industrial and business enterprise areas from further encroachment by residential and retail activities". The site of course is not situated within a business enterprise area.

9. There is a local policy for caretaker's houses applying to land in the Business 3, Industry 1 and Industry 3 zones and this is contained in Clause 22.06 of the Yarra Planning Scheme. This policy is an interesting one because of that I have quoted it in full as follows:

This policy applies to land contained in Business 3, Industry 1 and Industry 3 zones.

Council acknowledges the need for on-site caretakers in association with various industrial and commercial activities but is concerned tha caretakers' houses are, in some instances, being developed for general residential purposes following subdivision of industrial premises.

To ensure that caretakers houses are properly planned for supervisory services to their associated industrial or commercial activity.

* Should be provided directly in association with and ancillary to approved commercial or industrial land use and development;

* Should be less than 10% of total floor area of the associated commercial or industrial use excluding car parking and loading bay areas or up to 100m2 whichever is less."

10. To complete the matters in relation to planning provisions and policies the planning scheme definition for a caretaker's house provided me by Mr Temple reads as follows:

"Under the Yarra Planning Scheme, a Caretaker's House is defined as "a dwelling on the same site as a building, operation or plant, and occupied by a supervisor of that building, operation and plant". "

11. This definition is similar to but not exactly word for word with the definition in the State Section of the VPP which reads as follows:

"Caretakers House is a dwelling on the same site as a building operation, or plant and occupied by an owner or supervisor of that building, operation or plant." (My highlighting)

12. The Applicant in its original submission told the Council its reason for a caretaker's house was due to a number of recent break-ins and that the owner and family would occupy the premises. The Council made the strange statement that:

"The reasons outlined by the applicant are not relevant planning considerations and cannot be substantiated as the existing business does not require constant 24 hour monitoring as implied by the above definition."

13. The problem I have with this statement is that I don't believe the definition of caretaker's house in the Council's scheme implies anything. If dictionary definitions of "caretaker" are taken into account then the following are relevant:

* The word `care' is defined as "to protect, and to look after".

* The pocket Oxford simply defines `caretaker' as "a person left in charge of house etc".

* The Hamlyn Encyclopaedia Word Dictionary defines `caretaker' as "a person who takes care of a thing or place, one whose job is to maintain and protect a building or group of buildings".

14. The owners of the premises and the future occupiers of the proposed caretaker's house are editors of a Vietnamese Language TV and News Weekly circulating throughout Australia as well as the operators of the book store. Their business can easily be called "an operation" and the premises they occupy "a building". An owner can also be a supervisor.

15. Mr Thanh in his submission said that the zone had changed almost overnight from Business to Industrial Zone whereas in the part of the zone in which the subject premises are situated is generally occupied by shops, offices, café, a post office etc and certainly not industrial premises. The buildings are mostly Victorian terraces. That is also quite obvious from the photographs submitted by Mr Temple, because it is not until one is south of Crown Street that more traditional industrial premises appear. However, the Tribunal is not an arbitrator on zoning decisions and therefore has to deal with this application according to the zone in which it is situated.

16. The Responsible Authority's policies are not favourably inclined to allowing residential type uses in the Business 3, Industry 1 and 3 zones, even though the only one which is not prohibited is a caretakers house. Its basis is that it wishes to prohibit caretakers houses or keep them to a very small size because it fears that some are being developed for general residential purposes following the subdivision of industrial premises. The problem I have with this is that the Council is trying to use policies to prohibit Section 2 uses in its own planning scheme rather than policing the scheme. If residential uses other than caretakers house are prohibited in the zones in question then the Council has the full powers of the Planning and Environment Act to take enforcement action against any one who uses such premises for other than caretaker purposes. This is its appropriate course of action.

17. Under the circumstances I therefore do not uphold the first three grounds of refusal as I believe they are based on incorrect premises. In relation to the fourth ground of refusal, that is, insufficient car parking being provided for the proposed caretakers house, the Council has the power to waive that parking requirement, particularly where the caretaker is also the supervisor of the building or operation as is required by the scheme. While the design shows a garage ostensibly for two parking spaces 4.7m wide, the property with double brick walls on either side has no room for parking other than that for occupiers of the premises.

18. I was provided with a set of proposed conditions by Mr Temple. Condition 1(a) requires the total floor area of the caretakers house to comply with the last dot point in the Council's policy that is less than 10% of the total floor area or up to 100m2 in area whichever is less. I find that neither of these propositions are appropriate for this particular situation, however, I do hold the view that the upper floor area should not extend further to the east than the lower floor. Therefore the combined building and balcony should be brought back to align with the east wall of the proposed garage. Both floors and the staircase may need to be redesigned to cater for this particularly if it is still intended to have a balcony.

19. My determination is that the decision of the Responsible Authority is to be overturned and a permit will issue for a caretaker's premises.