Planning Enforcement Officers Association State Conference 2015 12

Planning Enforcement Officers Association State Conference 2015 12 and 13 November 2015

Red Dot and Significant Tribunal Decisions Impacting on Planning Enforcement John Rantino | Partner | Maddocks Kylie Walsh | Senior Associate | Maddocks

Issues considered in 2014 and 2015 § Shared housing (meaning of ‘building’) § Clause 52. 29 (altering access to Road Zone 1) § Home occupation (‘store’) § Ancillary use (‘café’) § Shipping containers § Dependent persons unit § Characterisation of use (‘animal husbandry’) 3

Boroondara City Council v Dugdale (Shared Housing) 4

Boroondara City Council v Dugdale (Shared Housing) (Cont…) § Two dwellings each with nine habitable rooms § On two separate titles but attached by common property wall § Council alleged that dwellings were being used as a boarding house 5

Boroondara City Council v Dugdale (Shared Housing) (cont…) § Respondent claimed that the shared housing exemption (clause 52. 23) applied § Respondent argued that each dwelling was a ‘building’ and each building contained less than 10 habitable rooms § Council argued that there was only one building and that the building contained 18 habitable rooms. 6

Boroondara City Council v Dugdale (Shared Housing) (cont…) § Tribunal ruled that on facts of case, there is only one building § Tribunal’s ruling is consistent with purpose of the Scheme and the Armato decision 7

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) 8

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) (Cont…) § Clause 52. 29 applies to land ‘adjacent to’ RZ 1 § Create or alter access to a road in RZ 1 § Subdivide land adjacent to a road in RZ 1 9

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) (Cont…) § 17 dwelling development accessed off Nepean Highway via a side laneway § Council argued that no alteration adjacent to Nepean Highway would occur § Vic. Roads argued that ‘altering access’ goes beyond physical alteration 10

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) (Cont…) “I consider that changes in circumstance generated by a change in use or development of the land that would alter the nature of traffic access to the road, either in terms of volume, frequency or type of traffic, as well as physical changes to works on the land that facilitate access to the road, are all matters that will give rise to the need for a permit under clause 52. 29” (paragraph 54) 11

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) (Cont…) “In my view, “access” used in the context of clause 52. 29 means not only the physical way or means of approach or entry from land to a road in a Road Zone Category 1, but the opportunity of approach or entry to the road. That opportunity is the opportunity provided to traffic to approach or enter the road. Opportunity in this context means chance” (paragraph 56) 12

Peninsula Blue Developments v Frankston City Council (Access to Road Zone 1) (Cont…) § Does not apply to intensification of existing use § Applies to change of use even if the new use does not require a permit § Applies where access point is being removed § Does not apply to ‘indirect access’ points (such as side lane) 13

Halici v Manningham City Council (Home Occupation) 14

Halici v Manningham City Council (Home Occupation) (Cont…) § Application for permit to use garage to store electrical/household goods § Applicant operated an online sales business with principal office elsewhere § Question was whether ‘home occupation’ 15

Halici v Manningham City Council (Home Occupation) (Cont…) § Tribunal determined that it was not home occupation because: – Use was having an adverse affect on the amenity of the neighbourhood – Insufficient evidence that the applicant’s house was main place of business 16

Halici v Manningham City Council (Home Occupation) (Cont…) § Tribunal determined that the use was for ‘store’ because: – The storage of goods went beyond normal domestic storage – Was storage of goods in a building – Goods were used in conjunction with applicant’s occupation 17

Pileggi v Macedon Ranges Shire Council (Home Occupation/Ancillary Use – Café) 18

Pileggi v Macedon Ranges Shire Council (Home Occupation/Ancillary Use – Café) (Cont…) § Land in RLZ was used to grow, process and sell olives and olive products § Council and Tribunal accepted the use as ‘home occupation’ § Land owner sought declaration that a café to serve coffee ‘sandwiches, salads and pizza’ to customers on weekends was ancillary to the agricultural production and dwelling uses. 19

Pileggi v Macedon Ranges Shire Council (Home Occupation/Ancillary Use – Café) (Cont…) § Tribunal referred to earlier case of Lagas v Brimbank City Council concerning selling of coffee from window of dwelling § Tribunal indicated that not only would ‘café’ need to be ancillary, it would need to be compliant with clause 5. 11 20

Pileggi v Macedon Ranges Shire Council (Home Occupation/Ancillary Use – Café) (Cont…) § Tribunal determined on facts of the case that: – Simple serving of coffee manufactured on site would be ancillary and compliant with clause 52. 11 – Serving of tea would not be compliant – Serving of other items were not ancillary and not clause 52. 11 compliant 21

Nillumbik City Council v Harrison (Shipping Containers) 22

Nillumbik City Council v Harrison (Shipping Containers) (Cont…) § Four shipping containers on eight hectares of land in RCZ used to store goods and equipment § Council alleged that land was being used as ‘store’ § Respondent argued that goods were stored in association with animal keeping 23

Nillumbik City Council v Harrison (Shipping Containers) (Cont…) § Tribunal ruled that use was ‘store’ and the shipping containers were ‘buildings and works’ § Not associated with or ancillary to animal keeping § Referred to Watson v Monash City Council [2011] VCAT 2176 24

Nillumbik City Council v Harrison (Shipping Containers) (Cont…) § Ordered that two containers be removed § Allowed other two to remain provided respondents promptly applied for permission to construct a dwelling § Once dwelling constructed, containers to be removed 25

Walker v Baw Shire Council (Dependent Persons Unit) 26

Walker v Baw Shire Council (Dependent Persons Unit) (Cont…) § Proposed to install a DPU on farm land for use by mother who was dependent on daughter § Council contended that it was not a DPU because not a ‘moveable dwelling’ and not a ‘convenient distance’ from main dwelling 27

Walker v Baw Shire Council (Dependent Persons Unit) (Cont…) § Tribunal noted that there is no requirement for a DPU to be a ‘convenient distance’ although it might be factor in determining dependency § But the DPU was not ‘designed to be moved’ on the materials before the Tribunal 28

Yarra Ranges Shire Council v Happy Valley Free Range Pty Ltd (Characterisation of Use – Animal Husbandry) 29

Yarra Ranges Shire Council v Happy Valley Free Range Pty Ltd (Characterisation of Use – Animal Husbandry) § Four hectares of land in GWZ used to breed and keep pigs § Question was whether this was extensive animal husbandry or intensive animal husbandry § Considerable evidence produced as to feeding needs of farm pigs 30

Yarra Ranges Shire Council v Happy Valley Free Range Pty Ltd (Characterisation of Use – Animal Husbandry) (Cont…) § Tribunal recognised that the feeding requirements altered according to stages of growth and season § Hence need to consider proportions of food consumed as a whole 31

Yarra Ranges Shire Council v Happy Valley Free Range Pty Ltd (Characterisation of Use – Animal Husbandry) (Cont…) “I find that the purpose of supplying food to farm animals is to supply them with sufficient nourishment to keep them alive and to promote their growth. The consequence of not doing this is that the animals would starve and eventually die…what must be considered is the source of the food from which the animals derive their main nutritional needs, rather than simply looking at the volume of food consumed and its sources…” (paragraphs 42 and 43) 32

Red Dot and Significant Tribunal Decisions Impacting on Planning Enforcement John Rantino | Partner | Maddocks Direct 61 3 9258 3694 john. rantino@maddocks. com. au Kylie Walsh | Senior Associate | Maddocks Direct 61 3 9258 3880 kylie. walsh@maddocks. com. au 33