1. Two applications are before the Tribunal relating to 4 Chaundy Road, Belgrave South. Application P89/2008 is an application by the Responsible Authority seeking an enforcement order requiring the removal of a temporary dwelling and crossover that allows access to this dwelling. Application P2156/2008 is an application for a declaration by Mr Yoxon, this application was lodged after the first day of hearing of the enforcement application. Mr Yoxon seeks a declaration in the following terms:
   1. That without a kitchen the smaller building is not a dwelling, and
   2. The building is an outbuilding to the principal dwelling and its use for Bed and breakfast accommodation is permitted.

1. Mr Yoxon obtained planning permit PE 99/1998 on 12 May 1999 for the construction of a two storey dwelling on the land at 4 Chaundy Road, Belgrave South. Construction commenced but was not completed within the expiry date of the permit. The Responsible Authority was unable to extend the time on the permit.
2. Mr Yoxon obtained planning permit YR-2001/959 on 30 July 2001. The permit allows for a relocatable unit to be placed on the land whilst a dwelling is under construction. The permit requires the removal of this temporary dwelling within two years of the date of the issue of the permit. This permit was amended on 31 December 2004. Condition 2 provides:

The temporary dwelling hereby permitted must be removed by 15 January 2006, unless the further consent of the Responsible Authority is obtained to retain the building on the land beyond this date.

1. Permit YR-2003/1426 issued on 15 January 2004 allows for the construction and use of one dwelling on the land. This permit requires the temporary dwelling to be removed within 3 months of the commencement of the use of the dwelling or within 3 months of the expiry of planning permit YR 2001/959 (15 April 2006). This permit was amended by consent on 14 December 2004[1] requiring a section 173 agreement be entered into in relation to the removal of the temporary dwelling. Condition 1(f) provides:

Within 60 days of the date of this Permit the owner will enter into an agreement pursuant to Section 173 of the Planning and Environment Act 1987.

The Section 173 agreement must provide that the relocatable unit together with the associated crossover situated towards the Chaundy Road frontage of the land and subject to Permit No. YR2001/959 must be removed by the earlier of either:

1. within 3 months of the commencement of use of the dwelling allowed by this permit; or
2. within 3 months of the expiry of Permit YR2001/959

provided however the requirement for removal of the relocatable unit shall not apply id new planning permission has been obtained to use the relocatable unit for a dependent persons unit or some other lawful use.

The agree will provide that it will come to an end once the relocatable unit is removed from the land.

The agreement must be registered on the title to the land and the owners agree to pay on demand to the council the Council's reasonable costs and expenses (including any legal fees incurred on a solicitor-client basis) of and incidental to the preparation, execution and registration of this Agreement.

1. On 29 September 2006 an extension of time was granted for this permit until 15 January 2007 and again on 9 July 2007 an extension of time was granted to 15 November 2007. The section 173 agreement has not been entered into.
2. An application to use the relocatable unit as a dependant persons unit on the land was refused by the Tribunal on 30 June 2005[2]. The Tribunal found that the dwelling that had been relocated to and placed on the subject land was not a movable dwelling within the definition in the planning scheme and could not therefore be used as a dependent persons unit. The dwelling that was relocated onto the land was described by the Tribunal in its determination as an 'L' shaped weatherboard dwelling.
3. An application was made to use, after its use as a temporary dwelling, the weatherboard dwelling that had been relocated onto the land, as a habitable outbuilding for a study/office and animal stock storage facility. This was refused by the Tribunal on 30 June 2006[3]. The Tribunal considered that the two types of uses proposed did not appear to be compatible and the prominence of the building on the land was not consistent with an outbuilding in association with the new dwelling. It was the Tribunal's view that the building would retain its appearance as a 'large structure, still with the appearance of a full scale dwelling and associated decking, in a visually prominent position on the site'.
4. On 4 September 2007 Mr and Mrs Yoxon moved into the new dwelling on the land. It is evident that prior to this time and shortly after the Tribunal's refusal to allow the temporary dwelling to be used as an outbuilding, they applied for, and obtained registration with the Yarra Ranges Shire Council Health Department, for this dwelling to be registered as a Bed and Breakfast facility[4]. The premises have been so registered on an annual basis and at the time of the hearing were registered until 31 December 2008.

1. The land is located within the Rural Conservation zone (clause 35.06) and is also affected by a Significant Landscape Overlay Schedule 18, Wildfire Management Overlay and Erosion Management Overlay under the Yarra Ranges Planning Scheme.
2. Under the provisions of the Rural Conservation zone, more than one dwelling on the land is prohibited. Dwelling (other than Bed and Breakfast) is a section 2 use under clause 35.06 and is conditional on being only one dwelling on the lot. This does not apply to the replacement of an existing dwelling if the existing dwelling is removed or altered (so it can no longer be used as a dwelling) within one month of the occupation of the replacement.
3. Under the zone provisions Bed and Breakfast is a section 1, as of right use and is conditional on no more than 6 persons being accommodated away from their normal place of residence. At least 1 car parking space must be provided for each 2 persons able to be accommodated away from their normal place of residence.
4. Dwelling is defined in the planning scheme as 'a building used as a self contained residence which must include: a) a kitchen sink; b) food preparation facilities; c) a bath or shower; and d) a closet pan and wash basin. It includes out-buildings and works normal to a dwelling'.
5. Bed and Breakfast is defined in the planning scheme as 'a dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence'.

1. The Responsible Authority submits the temporary dwelling referred to by Mr Monaghan as the smaller dwelling is being used as a dwelling and should be removed as there is no permission for two dwellings to remain on the land. Failure to remove the temporary dwelling results in Mr Yoxon being in breach of the permit conditions.
2. Evidence by Mr English indicates that on his two separate visits to the land the temporary/smaller dwelling displayed all the attributes of a dwelling that was being occupied.
3. Mr Yoxon submits he is using the temporary dwelling as a lawful use namely as a Bed and Breakfast facility. In this respect Mr Yoxon gave evidence and produced a register of persons who had stayed at the temporary/smaller dwelling. From his evidence it was ascertained that his son, partner and child lived in the smaller dwelling as he understood that the operator of the Bed and Breakfast facility must reside in the dwelling. He indicated that from time to time and for varying periods people would come and stay in this small dwelling. They were referred generally by word of mouth, although he had placed an advertisement locally. The charge was $110 per night, although his register showed that a number of people that had stayed had not paid.
4. The Yoxon's have made a number of applications and have ever since the temporary dwelling was located on the land sought a way to retain it. These attempts appear to stem from a desire to use the temporary dwelling in that form, for some form of respite for persons with an illness. To understand this it is necessary to be aware of past events in Mr and Mrs Yoxon's life.
5. Mrs Yoxon has suffered breast cancer and is very involved in supporting women who have also suffered this type of cancer and ever since they became aware of Mrs Yoxon's illness there have been attempts to retain the temporary dwelling. Hence the various applications, which all refer to an intent to use the temporary dwelling for a place in which persons suffering from cancer could have a 'time out' period. It is people in this situation that Mr Yoxon indicated they generally did not charge when they came to stay.
6. Whilst there has not been any attempt to comply with the conditions of the permit to remove the temporary dwelling, I do not consider this is a blatant attempt by the Yoxons' to breach the requirements of the Yarra Ranges Planning Scheme, although Mr and Mrs Hickman and Mr Laukart, owners of neighbouring dwellings may disagree with me. There has always been a reference within the conditions imposed that the temporary dwelling could remain if it could be used for a lawful use which the Responsible Authority approved. Hence this is why Mr Yoxon has attempted to fall within the provisions of a Bed and Breakfast facility, which is a use that is as of right within the zone.
7. In this case however, I am unable to reach the conclusion that the use of the temporary dwelling falls within the terms of a Bed and Breakfast facility that would allow such a use to continue as of right.
8. The Responsible Authority submitted Mr Yoxon does not reside in the temporary/smaller dwelling and it is necessary that he do so for the dwelling to be classed as a Bed and Breakfast facility. Even if he did reside in the temporary dwelling there still remains two dwellings on the land, which are prohibited.
9. The Responsible Authority referred to the determination of Member Komesaroff in Malcross Investments Pty Ltd v Hepburn Shire Council[5] where she found that the application was for a dwelling on one of several lots owned by the permit applicant Mr Rigby. The adjoining lots contained a Villa which had existing use rights as a tourist establishment and a Studio used for accommodation which did not have a permit. Member Komesaroff determined that Mr Rigby could not use the proposed dwelling for Bed and Breakfast accommodation unless he lives in it with his guests, or its permanent resident lives in it. She stated that if he does not intend to live in it, but wishes to use it for accommodation, then he would need a permit for either group accommodation or tourist establishment.
10. A recent decision in Hoppach v Wangaratta RCC[6], Member Cook declared that the proposal depicted on a set of plans that showed a dwelling that was to be modified with three additional 'pods' running off an interconnected, enclosed verandah with the owners to reside in the dwelling was to be used for Bed and Breakfast accommodation. The Responsible Authority submitted the proposal was for group accommodation and required a permit. In this regard Member Cook stated "I consider that there are two main distinctions between the land use terms Bed and Breakfast and Group Accommodation. The first is that, for a Bed and Breakfast, the owner must reside on the property and operate the facility. Also, there must be no more than one dwelling. In the case of Group Accommodation or Motel, however, the presence or absence of the owner is not expressly relevant, and for Group Accommodation there is a requirement that the accommodation facility consist of multiple dwellings". She noted "Importantly, in terms of the proposed use of the rooms to be made available for visitors, they are reliant on the owner's facilities for any meals that may be desired, and also on the original building for shared leisure opportunities...The integrated nature of the guest rooms and the remainder of the property is facilitated by a direct physical connection between the various accommodation units by an enclosed walkway, leading to the shared internal and external areas of the property".
11. I find based on what exists on the land that
    • Two separate and distinct dwellings are located on the land; the new two storey dwelling occupied by Mr and Mrs Yoxon and two of their sons. The Temporary/smaller dwelling occupied on a permanent basis by the Yoxons' son, his partner and child.
    • The temporary/smaller dwelling on the land contains all the requirements of a dwelling as defined in the planning scheme, that is it has a) a kitchen sink; b) food preparation facilities; c) a bath or shower; and d) a closet pan and wash basin.
    • The Temporary/smaller dwelling is occupied on occasions by other persons away from their normal place of residence, who come for short term stays of varying duration. Some pay for the accommodation and some do not.
    • The temporary/smaller dwelling on the land cannot be used for Bed and Breakfast accommodation as it is not the only dwelling on the land and more than one dwelling is prohibited under the zone provisions.
    • The Yoxons' do not reside in the temporary dwelling and their son and his partner and child residing in the temporary/smaller dwelling does not overcome the issue that there is more than one dwelling on the land.
    • Being registered for Bed and Breakfast accommodation under the Health Department of the Yarra Ranges Shire Council does not mean the temporary/smaller dwelling can be used, as of right, under the planning scheme provisions for Bed and Breakfast accommodation.
    • The distance between the two dwellings on the land is approximately 32m and even with a walkway this does not provide sufficient connectivity to consider that they are part of one dwelling.
    • The temporary/smaller dwelling is a separate and distinct dwelling and cannot be considered to be ancillary to or an outbuilding of the main dwelling..
12. I was asked to consider whether the removal of the kitchen facilities in the temporary/smaller dwelling would result in this building no longer being a dwelling, as it would not contain one of the criteria found in the definition of a dwelling within the planning scheme. If the building was no longer a dwelling, it was submitted it could then be considered to be a habitable outbuilding that could be considered to be part of the main dwelling. The definition of dwelling in the planning scheme does include 'out-buildings' normal to a dwelling.
13. In Teichmann v Colac Otway SC[7] the applicant proposed to construct a building to accommodate guests in conjunction with her use of an existing two bedroom dwelling on the property. The parties to the proceeding agreed that an 'outbuilding may include a shed, bungalow or other similar structure'. The Tribunal commented that 'it strikes me that it may include a studio apartment such as was considered in the matter of Casey City Council v Kelly[8] or some other building used for accommodation in conjunction with the main residential building on the property'.
14. In relation to the size of the building, said to be in Teichmann to be dominant, the Tribunal went on to state 'while common experience may be so in the majority of cases, it has been the view adopted by other divisions of the Tribunal that it may not always be the case or that a dwelling has to necessarily be limited to one building. Put another way, there is nothing in the scheme that requires an outbuilding be subordinate to the main domestic residential building nor that a domestic residential building be confined to one building'. In this case before the Tribunal what was absent in the building was the food preparation facilities and a kitchen sink. The Tribunal concluded the purpose of the building is one for use in conjunction with the existing dwelling and not as a separate dwelling. This however did not resolve the issue that the proposed building, which also required a permit for buildings and works under the Rural Conservation zone would have an adverse impact on the landscape. The Tribunal was not satisfied 'that the design blends with the landscape in a way that minimises impacts to the landscape values sought to be protected under the zoning and the applicable policies of the planning scheme'.
15. In this case, unlike in Teichmann, the temporary/smaller dwelling has been approved and whilst Mr Laukart and Mr and Mrs Hickman do not approve of the dwelling and to a certain extent consider it has an impact on the landscape values of the area, I am unable to consider it in these terms.
16. I consider that the removal of the food preparation facilities and kitchen sink in the temporary/smaller dwelling would result in the building no longer being considered to be a dwelling as defined in the planning scheme. It could then be considered to be an outbuilding for the accommodation of guests, or in other words part of the Bed and Breakfast accommodation offered on the land.
17. If the food preparation/ kitchen facilities were removed from the temporary/smaller dwelling I find that
    • The building could be considered to be an outbuilding and part of the main dwelling. Only one dwelling would exist on the land in terms of the requirements of the zone provisions.
    • The outbuilding could be used to accommodate guests. As the outbuilding is considered to be part of the main dwelling in which Mr and Mrs Yoxon reside this would fall within the definition of Bed and Breakfast accommodation, a use that is as of right under the zone provisions.
    • The removal of the food preparation/kitchen facilities would result in any person being accommodated in the outbuilding relying as in Hoppach 'on the owner's facilities for any meals that may be desired'. Such facilities only being in the main new dwelling.
    • There is nothing within the planning scheme that requires the accommodation of guests to be confined to part of the main dwelling. The accommodation can therefore occur in an outbuilding that is part of the dwelling. The only restriction under the planning scheme is the number of guests that can be accommodated being 6 at any one time and the number of car spaces to be provided.
18. I am not prepared to make a declaration on the basis requested, as the food preparation /kitchen facilities are in existence and therefore, at this point in time, the use of the temporary/smaller dwelling for Bed and Breakfast accommodation is prohibited.
19. I accept that Mr Yoxon has breached the planning permit in that he has not removed within the time required the temporary/smaller dwelling on the land. In this respect I consider an enforcement order should be made requiring Mr Yoxon to remove the dwelling within 6 months of the date of this order.
20. In acknowledging that some changes internally to the temporary/smaller dwelling could result in it being considered to be an outbuilding and part of the new dwelling on the land, I intend to include in the enforcement order, an ability for the food preparation facilities and kitchen sink to be removed. If this is done within 6 months of the date of this order then the use of the temporary/smaller dwelling could be used as of right for Bed and Breakfast accommodation.

Failure to remove temporary dwelling from land pursuant to Condition 2 Planning Permit YR-2001/959 (Amended)

1. The Respondents Marcelle and Anton Yoxon are to remove the temporary dwelling and crossover associated with this dwelling located on the subject land by the 8 October 2009 and reinstate within 6 months of removal the area with the planting of vegetation, unless during the 6 month period prior to this date the food preparation facilities and kitchen sink are removed from the building to the satisfaction of the Responsible Authority.
2. The Respondents Marcelle and Anton Yoxon must notify the Responsible Authority if they undertake to remove the food preparation facilities and kitchen sink from the temporary dwelling and request the Responsible Authority inspect the subject building within 7 days of removal.
3. The applicant must serve a copy of this order on Marcelle and Anton Yoxon pursuant to section 140 Victorian Civil and Administrative Tribunal Act 1998.

[1] Yoxon v Yarra Ranges SC [2004] VCAT 2486 (7 December 2004)

[2] Yoxon v Yarra Ranges SC (Red Dot) [2005] VCAT 1275 (30 June 2005)

[3] Yoxon v Yarra Ranges CC [2006] VCAT 1294 (30 June 2006)

[5] [2005] VCAT 1435

[7] [2008] VCAT 2219 )31 October 2008)

[8] [2004] VCAT 2031, also reported as Casey City Council v Gerard [2004] VCAT 1838