Hoe v Manningham City Council
[2011] VSC 543
•25 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2010 04820
| ALEX HOE | Appellant |
| v | |
| MANNINGHAM CITY COUNCIL | Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2011 | |
DATE OF JUDGMENT: | 25 October 2011 | |
CASE MAY BE CITED AS: | Hoe v Manningham City Council | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 543 | |
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TOWN PLANNING – Declaration as to character of land use – Keeping of hobby cars on residential lot – Whether open to conclude ancillary use – Relevance of intensification of hobby use – Whether particular findings of fact open – Whether use properly characterisable as ‘store’ – Possible alternate characterisation of land use as ‘car park’ – Declaration varied as to part - Planning and Environment Act 1987, s 149A - Victorian Civil and Administrative Tribunal Act 1998, s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms S Brennan | Maddocks |
TABLE OF CONTENTS
The relevant principles..................................................................................................................... 5
Did the Tribunal err in its conclusion that the use of the land for the parking of cars was incidental to Mr Hoe’s hobby, but was not incidental to use as a dwelling?............................................... 10
Did the Tribunal err in the view it took of the significance of the intensity of this element of Mr Hoe’s land use?............................................................................................................................................ 13
Did the Tribunal err in reaching a particular conclusion not open to it?.............................. 14
Did the Tribunal err in concluding that Mr Hoe’s use of the land for his hobby constituted a store? 15
Other matters..................................................................................................................................... 17
Conclusion......................................................................................................................................... 17
HIS HONOUR:
Mr Hoe owns and lives in a single dwelling located on a large residential allotment in Lower Templestowe. He is a sports car enthusiast and owns a number of cars which he takes to shows and rallies.
In June 2010, Manningham City Council (‘the Council’) obtained an order from Deputy President Dwyer of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) in the following terms:
For the purposes of s 149A of the Planning and Environment Act 1987, I declare that the semi-permanent parking of between 8 and 10 vehicles (of which only three are registered vehicles) on the land at 36 Ardgower Court, Lower Templestowe is not ancillary to the use of that land as a dwelling, but constitutes an additional and separate use of the land as a ‘store’ (as that term is defined in the Manningham Planning Scheme).[1]
[1]Manningham City Council v Hoe [2010] VCAT 1079 (29 June 2010).
The order was made pursuant to s 149A of the Planning and Environment Act 1987 which enables a council (among other specified persons) to apply to the Tribunal for a determination of a matter if the matter relates to the interpretation of a planning scheme in relation to a particular use of land.[2] In determining such an application, the Tribunal may make any declaration that it considers appropriate.[3]
[2]Section 149A(1)(a).
[3]Section 149A(2).
In the proceeding before the Tribunal the Council had sought determination of three matters:
(a) Is the keeping of vehicles on the subject land in circumstances such as this a lawful use that is considered ancillary to the lawful use of the land for a dwelling?
(b) Is the keeping of vehicles on the subject land in circumstances such as this considered a non-compliant ‘store’ in that a ‘store’ may be permitted (with a planning permit) on the land, but must be in a building?
(c) To what extent can the keeping of vehicles on the land be considered a hobby and therefore ancillary to the lawful use of the land for a dwelling in a residential area?
The Tribunal in effect made declarations that were responsive to the Council’s case with respect to the first two matters but declined to give an advisory ruling with respect to the third matter.
Mr Hoe now seeks to have the Tribunal’s order set aside by way of an appeal on questions of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998.
The core passages of the Tribunal’s decision were as follows:
1.Mr Hoe is a car enthusiast. He has paved an area of his land at 36 Ardgower Court, Lower Templestowe, upon which he parks a number of vehicles. At an inspection on 18 January 2010, authorised officers of the Council counted 10 vehicles being parked on the land, only three of which were registered. There is no evidence that Mr Hoe is ‘trading’ or ‘repairing’ the vehicles on the land. It would appear that the vehicles are simply being kept on the land as part of Mr Hoe’s hobby as a car enthusiast.
…
3.Whether a use is ancillary to the use of land as a dwelling is a matter of fact and degree to be decided on the particulars circumstances of each case. On behalf of the Council, Mr Howard indicated that there were a number of issues relevant to the characterisation of the use in this instance. These include the following:
· Only three of the vehicles are registered. The others are therefore being ‘kept’ on the land on a semi-permanent basis and are not therefore being used as ordinary vehicles by the occupiers of the dwelling.
· More than 50% of the open space area on the land is taken up with the parking of the vehicles.
4.The subject land is an ordinary suburban block of approximately 766m2. The Council argues that Mr Hoe’s hobby has increased to a level of intensity where it has become a separate use in its own right. The Council conceded that, if only 2 or 3 or 4 vehicles were parked on the land in a similar manner, they may consider the keeping of vehicles in such number to be ancillary to the use of the land as a dwelling, having regard to the size of the land. If the land was larger in area, perhaps a semi-rural allotment, then it may be capable of having more vehicles kept there. Equally, the Council conceded that a greater number of vehicles might be able to be kept on the land if they were in a large garage or shed.
5.The consideration of when a hobby increases in intensity, such that it becomes a separate and additional use of the land, is problematic. Here, however, I agree with the Council’s overall analysis. The keeping of 8-10 vehicles in the manner described has in my view become something which is no longer ancillary to the use of the land as a dwelling. Another indicator of whether a use has ceased to be ancillary is the extent to which it is creating off-site amenity impacts. Although this is again not wholly determinative, the indications are the storage of vehicles is causing amenity impacts.
6.Mr Hoe strongly contested the application. However, on balance, I find that the keeping of 8-10 vehicles on the land is something that is no longer ancillary to the use of the land as a dwelling, particularly as many of the vehicles are kept there on a semi-permanent basis and are unregistered. Under the Manningham Planning Scheme, the land use of ‘store’ includes the storage of vehicles. I consider that the keeping of vehicles in the number and in the circumstances described here now constitutes a separate additional use of the land as a ‘store’ in addition to the primary use of the land as a ‘dwelling’. Such a separate and additional use would require a planning permit.[4]
[4]Manningham City Council v Hoe [2010] VCAT 1079 (29 June 2010), [1], [3]-[6].
The questions now raised by Mr Hoe may be reduced in essence to the following:
(1) Did the Tribunal err in law in its conclusion that the use of the land for the parking of cars was incidental to Mr Hoe’s hobby but was not incidental to use as a dwelling?
(2) Did the Tribunal err in law in the view it took of the significance of the intensity of this element of Mr Hoe’s land use?
(3) Did the Tribunal err in law in reaching particular conclusions in respect of the number of vehicles kept on the land and the area utilised for the keeping of motor vehicles?
(4) Did the Tribunal err in law in concluding that Mr Hoe’s use of the land for his hobby constituted a store?
The sense in which these questions can be said to raise questions of law as distinct from questions of fact is central to the resolution of the appeal. I will say something first about the underlying principles governing the resolution of these issues and secondly consider the application of those principles to the facts in issue.
The relevant principles
The planning scheme governs the use of land within zones by way of a table of uses. Under that table:
(a) Section 1 uses are as of right and do not require a permit. They may, however, be subject to stipulated conditions.
(b) Section 2 uses are permissible by planning permit. Once again, the scheme may confine the category of permissible uses by condition.
(c) Section 3 uses are prohibited.
Mr Hoe’s land is within a Residential 3 zone and in that zone ‘dwelling’ is a section 1 use. Dwelling is defined as follows:
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.
This definition contemplates the use of Mr Hoe’s land as a self-contained residence.
The question of whether particular circumstances fall within the meaning of ordinary English words such as ‘use as a self-contained residence’ is a question of fact. In turn, the Tribunal’s conclusion as to the meaning of such words will only be capable of appeal on a question of law if the conclusion reached by the Tribunal was not open to it.[5]
[5]Franceschini v MMBW and Ors (1980) 57 LGRA 284; S v Crimes Compensation Tribunal [1998] 1 VR 83, 88.
The as of right use of a dwelling potentially embraces a complex of activities which fall within the contemplated purpose. As Kitto J explained in Shire of Perth v O’Keefe[6] in the context of a by-law governing existing use rights:
First it is required that a purpose be identified as the end for which it can be seen that the premises are being used … Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the [scheme] in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized …, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree … and for that reason border-line cases will inevitably arise in which opinions will differ.[7]
[6](1964) 110 CLR 529, 534-5.
[7]Ibid.
In turn, cl 64 of the planning scheme provides:
If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.
The ordinary meaning of ‘ancillary’ is accessory or auxiliary.[8] A use may be ancillary to another if it is a necessary adjunct to another use, or if it is subsidiary to that other use.
[8]Macquarie Dictionary, 4th Edition.
Clause 64 may thus be understood as reflecting or amplifying the concept that it is the real and substantial purpose of a land use which determines its character for planning purposes. It amplifies that notion by making clear that even when two or more substantial and distinct activities can be identified upon land, an otherwise not permitted ancillary use may be legitimised by a lawful dominant purpose. Thus a café, car park, office, some industrial uses, residential accommodation and a shop may all be ancillary to a hospital, if it is plain their purpose is as facilities ancillary to the primary land use purpose of hospital.
In Cascone & Anor v Whittlesea,[9] Ashley J expressed the application of these concepts to the assessment of a planning permit application as follows:
The ascertainment of purpose of a proposed use may yield the result that more than one separate and distinct purpose is revealed. In that event the question initially arises whether one is dominant. The further question that may arise is whether the lesser purpose or purposes are ancillary to the dominant purpose. If the answer to both questions is ‘Yes’, and the dominant purpose is available as of right or is permitted, the lesser purpose or purposes are legitimised. Then, in planning terms, there is but one purpose. But if the answer to the first question is ‘No’, each revealed purpose must be available as of right or permitted, else there will be a breach of the scheme. The mere fact that one purpose is authorised will not prevent other revealed purposes from being prohibited.[10]
[9](1993) 11 AATR 175.
[10]Ibid, 190.
As the judgment of Kitto J in Shire ofPerth v O’Keefe[11] acknowledges, the question of what is the real and substantial purpose of a particular land use activity will often involve questions of fact and degree.
[11](1964) 110 CLR 529.
In Lizzio v Ryde,[12] the High Court considered the application of these principles to a dwelling. The question was whether the sale of flowers from a roadside stall in front of a dwelling in a residential zone was to be regarded as incidental to use of the land as a dwelling, or constituted a separate use. Gibbs CJ stated:
[12](1983) 155 CLR 211 (‘Lizzio’).
The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty. Ltd. v. Solicitor-General, where Glass J.A. said:
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass J.A. in Foodbarn Pty. Ltd. v. Solicitor-General become apposite:
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others ...[13]
[13]Ibid, 216 (citations omitted).
The present case raised the question for the Tribunal whether Mr Hoe’s keeping of cars for a hobby at a dwelling fell within the incidental purpose of, in effect, ‘garaging his cars’ as part of the residential use of the property, or whether it constituted a separate use.
In Northcote Food Wholesalers Pty Ltd v Northcote City Council,[14] Teague J reviewed a series of higher court and tribunal decisions considering whether one use was ancillary to another, concluding:
[T]here is no single test to determine dominant against ancillary, and … different criteria, themselves not readily susceptible of classification, perhaps relating to appearance or association, perhaps of a planning nature (like traffic or parking), perhaps of a monetarily quantitative nature (like revenue), perhaps of a geographically quantitative nature (like scale) are looked to as appropriate in the circumstances of each case.[15]
[14](1994) 84 LGERA 54.
[15]Ibid.
In can be seen that, although the ultimate question of fact for the Tribunal was clear (namely whether the keeping of cars for Mr Hoe’s hobby was or was not incidental to the use of the land as a dwelling), it was for the Tribunal to determine what facts and circumstances were, on the evidence, significant in answering that question and, in turn, what the answer was. The question whether Mr Hoe’s land use fell within the relevant planning scheme designation was in both the sense I have referred to a question of fact. As JD Phillips JA said in S v Crimes Compensation Tribunal:[16]
[16][1998] 1 VR 83.
2.Once the task of construction is over, the question whether the claimant's particular circumstances fall within the relevant statutory description is essentially a question of fact.
Where an appeal may be brought to the court only on a question of law, the question just identified is peculiarly the province of the tribunal below, not the court.
The determination of that question of fact may depend upon the acceptance or rejection of evidence that is led; it may depend upon a choice between witnesses, and an assessment of their credibility or reliability; or it may depend more directly upon the sufficiency or insufficiency of the evidence that is given. All these things are committed to the tribunal, and not to the court; and although I speak of evidence, the same is true where the tribunal is authorised to obtain information otherwise than from witnesses on oath or to act upon its own expertise. Essentially, the question whether the particular circumstances of the claimant are such as to bring his or her case within the statutory description is a question of fact, not law.
It is in this context that it is sometimes said that where the question is one of degree, involving some element of value judgment, the question is one of fact, not law. Thus if the question whether the claimant's circumstances fall within the statutory description is one on which minds can legitimately differ, involving a value judgment on the evidence (or other material), it is a matter for the tribunal. In that category one can put most questions of a causal link, or (in a case like this) whether some identified expense was the result of the relevant injury, or whether the claimant suffered ‘total or partial incapacity for work’. Involving questions of degree and evaluation, on the facts as otherwise established, these are essentially questions of fact which are committed to the tribunal, and not to the court.[17]
[17]Ibid, 89 (citations omitted).
The primary question before the Tribunal in the present case was one of fact ‘involving questions of degree and evaluation’.
It is only if it was not open to the Tribunal to conclude as it did that it will have erred in law. Again, as JD Phillips JA stated in S v Crimes Compensation Tribunal:[18]
3.Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.
The result below may have been the product of the tribunal's misapplying the statutory description in a case where the facts that were found could have led only to the conclusion opposite to that reached by the tribunal (and the error in that regard may be exposed in the reasons given for the decision or it may lie hidden). Or it may have been that the tribunal's conclusion depended upon a finding of fact which was simply not open to it on the evidence (or other material, if relevant) in which case that conclusion was not open to it. It is this last that shows how something which is otherwise a finding of fact may become relevant on an appeal which can be brought only on a question of law.
It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it. In so referring to a ‘finding’ I use the term not only to include a finding of a fact derived from the acceptance of direct evidence to that effect; I include also an inference of fact drawn by the tribunal from other facts found by it. If the finding (be it a finding on direct evidence or inference) was not open to the tribunal, that may bespeak a relevant error of law.[19]
[18]Ibid.
[19]Ibid, 89-90 (citations omitted).
It follows that in the present case, the Tribunal was correct to state that ‘[w]hether a use is ancillary to the use of land as a dwelling is a matter of fact and degree to be decided on the particular circumstances of each case’.[20]
[20]Manningham City Council v Hoe [2010] VCAT 1079 (29 June 2010), [3].
It is only if it could not have reached the conclusions it did on the evidence before it that it will have erred in law.
I return then to the questions of law which are raised by Mr Hoe’s appeal in the simplified form in which I have expressed them.
Did the Tribunal err in its conclusion that the use of the land for the parking of cars was incidental to Mr Hoe’s hobby, but was not incidental to use as a dwelling?
In his submissions to this Court, Mr Hoe submitted in part:
The activities of the ‘hobby’ are functionally unassociated with the ‘dwelling’ except for the ‘use’ of some of the cars. In my opinion, the ‘purpose’ of the use by the ‘hobby’ is a ‘discrete purpose’. It is not for the ‘purpose’ for a ‘dwelling’ or place of ‘habitation’. Although related by the ‘use’ of some of the vehicles, the ‘use of a hobby’ in my view is a ‘related’ but ‘separate and distinct use’. It is not a ‘use’ of the premises for the ‘purpose of a dwelling’ or ancillary to the ‘use’ by the owner for ‘habitation’ or that of a ‘dwelling’.
In terms, Mr Hoe thus submitted to this Court that the use was not to be regarded as ancillary to the use of the land for a dwelling.
In turn, Mr Hoe submitted that the hobby use was nevertheless as of right because it constituted ‘informal outdoor recreation’, an as of right use. I do not accept this submission. Informal outdoor recreation is by definition a use of the land for the purposes of a public facility. The term is defined as follows:
Land open to the public and used by non-paying persons for leisure or recreation, such as a cycle track, picnic or barbeque area, playground, and walking or jogging track.
Putting aside this argument, Mr Hoe’s notice of appeal raises the proposition that no Tribunal acting reasonably could have reached the conclusion the Tribunal reached. The Tribunal’s decision makes clear, first, that it considered the evidence as to the land use as a whole; and, secondly, that it accepted the Council’s case as to the intensity of the hobby use, including the significance of the two factors highlighted by the Council, namely that the majority of the vehicles were unregistered and kept on the land on a semi-permanent basis and that more than 50 per cent of the open space area on the land was taken up with the parking of vehicles. The Tribunal also had regard to amenity impacts as a relevant, but not determinative, factor. The relevant amenity consideration was evidently the appearance of the land.
There was no error of law in this approach. The Tribunal reached a conclusion of fact which was open to it.
Other decisions of the Tribunal to which the Court was referred make clear that the characterisation of the purpose of the land use where vehicles are kept on residential land must always turn upon the factual matrix of the particular case and reflect judgments as to the proportionality of the subsidiary use to the primary residential use.
In Cardinia Shire Council v Rees,[21] Mr Rees had a hobby of collecting and dismantling vehicles and stored approximately nine vehicles around his property. The Tribunal found that ‘the use of the land for the hobby of dismantling, storing and repairing approximately nine cars and car parts is out of proportion to what could reasonably be accepted as an activity incidental to a residential use, or ancillary to the ordinary use of a dwelling.’[22]
[21][2000] VCAT 1659, (31 August 2000).
[22]Ibid, [24].
In Greater Geelong City Council v Filep,[23] the respondents lived on land zoned for Rural Residential purposes on which they kept approximately 35 vehicles as well as a quantity of building materials. The Tribunal declined to find that the storage of the building materials was unlawful but found that ‘storage of vehicles in the order of thirty-five in number, goes beyond anything that could be ancillary to the enjoyment of the land as a dwelling.’[24]
[23][2000] VCAT 2161, (31 October 2000).
[24]Ibid, [24]
In Shire of Flinders and Dalton,[25] the evidence showed that Mr Dalton had kept between four to 16 motor vehicles on his property over an extended period of time. The Tribunal accepted that Mr Dalton had a ‘genuine love’ of motor vehicles, but found that ‘his ability and enthusiasm to repair and restore the motor vehicles have not matched the pool of vehicles and the parts he has accumulated around them and that pool has grown and got out of all proportion to what could be reasonably accepted as a hobby or activity incidental to the use of the premises for residential use.’[26]
[25](1995) AATR 174.
[26]Ibid, 178.
Mr Hoe’s underlying contention before the Tribunal was that the use of the land to keep cars for the purpose of his hobby was sufficiently related to his residence upon the land to be legitimate. It is plain that there is a relationship between his residential use and his hobby, but it was for the Tribunal to determine whether, nevertheless, the keeping of the cars constituted a separate and substantial land use. It did so by reference to the proportionality of the contentious activity to the as of right use. It was open to it to approach the facts on this basis.
Mr Hoe’s notice of appeal identifies a series of matters which might be thought to favour his case. Whether considered alone or together, however, such factors do not compel a conclusion in his favour. Appeal ground 3(c)(iv) to (viii) identifies the following considerations:
(iv)The uncontroverted evidence before the Tribunal was that there was no commercial business operating the Appellant’s land, in that there’s car repairs, car vehicle sales, or anything like that being conducted.
(v)The uncontroverted evidence before the Tribunal was that there was no local law issue of the Appellant’s hobby being unsightly or dangerous.
(vi)The uncontroverted evidence before the Tribunal was that the vehicles were present on the Appellant’s land because Appellant was a hobbyist and they were part of the Appellant’s hobby as a motor enthusiast.
(vii)The planning scheme does not regulate the nature or extent of hobbies that can be pursued on the Appellant’s land used for the purpose of a dwelling to the extent that it would constitute the land or its use as a store in relation to a hobby as a motor enthusiast.
(viii)The Tribunal expressly acknowledged that the legitimacy of motor enthusiasts keeping some vehicles on the land at which they reside as being properly ancillary to the use of that land as a dwelling.
In my view, it cannot be said that the specific matters identified by Mr Hoe compelled a decision in his favour.
Did the Tribunal err in the view it took of the significance of the intensity of this element of Mr Hoe’s land use?
In his submission to the Court, Mr Hoe stated:
The first matter in relation to the appeal is whether the proposal of storing eight, nine or ten vehicles on the premises for the purpose of a hobby of sports cars is merely a continuation of purposes to which the site was put at the purchase date by the owner or whether it amounts to the development of a new purpose at the relevant date of formal inspection (on 10 vehicles on premises) by responsible authority.
In turn, Mr Hoe took particular issue with the Tribunal’s reliance on the intensity of the relevant land use component in issue. Mr Hoe referred to a series of High Court and Supreme Court decisions which make clear that the intensification of a land use will not change the character of a land use for the purpose of existing use rights (in the absence of statutory provisions to the contrary).[27]
[27]Rockdale Municipal Council v Clark (1982) 47 LGRA 159; Norman v Gosford Shire Council (1975) 132 CLR 83; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1.
These cases are not directly in point. This is not an existing use case. Mr Hoe’s use commenced in 2004 under the current planning scheme provisions. The issue is that which arose in Lizzio, namely whether a use undertaken by a resident is or is not properly regarded as incidental to the use of a dwelling. In my opinion it was open to the Tribunal to have regard to the intensity of the use as a relevant factor in answering this question. Ultimately, that question fell to be resolved by reference to the whole of the evidence relating to the use, but self-evidently an activity may intensify to a point where it can no longer be regarded as incidental to residential use.
Did the Tribunal err in reaching a particular conclusion not open to it?
Mr Hoe objects that the evidence before the Tribunal was not evidence on oath. He further takes particular issue with the Tribunal’s finding that more than 50 per cent of the private open space upon his land was used for the keeping of cars and its findings as to the number of cars.
The Tribunal was not bound by the rules of evidence.[28] It expressly stated that it would rely on the documentary material supplied to it by the parties. It gave Mr Hoe a fair opportunity to answer the factual allegations put against him.
[28]Victorian Civil and Administrative Tribunal Act 1998, s 98.
Insofar as the number of cars kept on the land is concerned, the Tribunal had evidence of observations of the land on 4 October 2006, 15 December 2009 and 18 January 2010. The officers’ observations as to the car numbers (and the number of cars apparently unregistered) were not put in issue by Mr Hoe at the Tribunal and were corroborated by photographs taken on the last inspection. They were also consistent with Mr Hoe’s own submissions and, in particular, his explanation that the vehicles were utilised by him using special driving permits. The Tribunal’s conclusions as to the number of cars kept at the property on an ongoing basis were open to it.
Insofar as the area of private open space utilised for hobby purposes is concerned, I am satisfied that it was open to the Tribunal to accept the Council’s position when reference is made to the aerial and ground level photographs tendered to the Tribunal. These show the parking observed within the front yard area, a side driveway and behind the house together with the overall layout and relative dimensions of the areas used for parking.
Did the Tribunal err in concluding that Mr Hoe’s use of the land for his hobby constituted a store?
The definition of ‘store’ contained in the planning scheme is:
Land used to store goods, machinery or vehicles.
Within the Residential 3 zone, store is a section 2 use which requires a planning permit. Conditions upon the permissible use are:
Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident or a dwelling on the lot.
If it is correctly characterised as a store, the current use is unlawful because the ‘store’ is not contained in a dwelling.
The planning scheme also contains a definition of ‘car park’:
Land used to park motor vehicles.
Car park is a permissible use in a Residential 3 zone subject to the condition:
Must be used in conjunction with another use in Section 1 or 2.
The Tribunal has formulated its declaration expressly by reference to ‘semi permanent parking’. In my view, the Council should have drawn to the Tribunal’s attention the possibility that the semi-permanent parking of which the Council complains is characterisable as a use for the purpose of a car park in conjunction with the use of the land as a dwelling.
Mr Hoe submitted that the Tribunal erred in fitting the characterisation of his hobby use to the definition of ‘store’. The notice of appeal alleges that the Tribunal misdirected itself by:
Impermissibly characterising the activities on the Appellant’s land by reference to the defined terms in the Manningham Planning Scheme rather than by reference to the facts of the particular case.
In my opinion, this submission should be accepted in part. The Tribunal did not have regard to a relevant consideration, namely the possibility that the use could be characterised as a car park. This consideration was one which bore on the appropriateness of the terms of the declaration.
Ms Brennan submitted that the better view is that the vehicles upon Mr Hoe’s land are ‘stored’ rather than ‘parked’. I do not accept this is necessarily so. Mr Hoe’s evidence was that the vehicles are driven on and off site utilising special permits. A car park may accommodate long term parking. The Council obtained relief expressly in respect of ‘semi-permanent’ parking.
Ms Brennan further submitted that, if the concepts of ‘store’ and ‘car park’ were regarded as potentially overlapping, the declaration made by the Tribunal remained justifiable. I accept there may be some overlap between the concepts. The definition of store includes ‘vehicle store’ within the subsidiary terms nested under it in the planning scheme. Vehicle store is defined as:
Land used to park or store vehicles in connection with a goods or passenger transport business.
This form of store is thus defined expressly by reference to land used to park vehicles of a particular character.
Despite the potential overlap of the concepts, however, the effect of the conditions contained in the table of uses with respect to the Residential 3 zone is significant from Mr Hoe’s point of view. In particular, his use might be regularised either in part or in whole without the construction of a building if the use is characterisable as use for a car park. Conversely, if the use could not be regularised save by way of a permit for a store, such a permit would require the construction of a building to accommodate the use.
These issues were not raised before the Tribunal and I should not be taken to be expressing any concluded views with respect to them. Nevertheless, it seems to me that the declaration should not be expressed in terms which foreclose or might be regarded as foreclosing relevant possibilities which were not argued before the Tribunal. I would allow the appeal in part and delete from the declaration the final words commencing ‘as a store’.
Other matters
In his notice of appeal, Mr Hoe asserts that the failure of the Tribunal to make a declaration specifying what number of vehicles could legitimately be kept on the land by way of use ancillary to that of a dwelling demonstrated error of law. I do not accept this. The Tribunal was entitled to refrain from giving what was, in effect, a hypothetical advisory opinion.
Lastly, I record that at one point Mr Hoe’s submissions proceeded on the basis that the Tribunal could not conclude the use was for the purpose of store unless the conditions were met which govern the permissibility of the use in the relevant zone, pursuant to the table of uses. This submission misconceives the effect of the conditions contained in the table of uses. The conditions do not prevent characterisation of the use as a store, but they do govern and limit the terms on which such a use might be regularised by permit.
Conclusion
For the above reasons, the appeal will be allowed in part. I shall order that the declaration made by the Tribunal be amended by deleting from the declaration the concluding words ‘as a “store” (as that term is defined in the Manningham Planning Scheme)’.
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