Hoe v Manningham City Council - [2011] VSC 543

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 543
Decision Date: 25 October 2011

CaseChat Overview and Summary

The appellant, Hoe, appealed against a decision of the respondent, Manningham City Council, which had determined that the use of a residential lot for the storage of hobby cars constituted an unauthorised change of use. The dispute was brought before the Court of Appeal, which had to decide whether the use of the land could be properly characterised as ancillary to the residential use and whether the Tribunal's findings on the matter were open to question. The Court also had to consider whether the use was properly categorised as a ‘store’ and whether it could be reclassified as a ‘car park’.

The central legal issues before the court were whether the Tribunal could reasonably conclude that the use of the land for storing hobby cars constituted an ancillary use to the residential use of the land, and whether the Tribunal had correctly found that the use was not properly characterised as a ‘store’. The court needed to assess the intensity of the hobby use and whether this could support a finding that the use was ancillary, and whether the Tribunal could have reasonably concluded that the use was not a store but possibly a car park. The court examined the evidence and submissions from both parties to determine if the Tribunal's findings were open to question.

The Court of Appeal found that the Tribunal's findings were open to question and that the use of the land for storing hobby cars could be properly characterised as an ancillary use to the residential use of the land. The court held that the Tribunal had failed to properly consider the intensity of the hobby use and whether it could support the conclusion that the use was ancillary. The court also found that the use was not properly categorised as a ‘store’, but it could be reclassified as a ‘car park’. The Court of Appeal allowed the appeal in part and ordered that the declaration made by the Tribunal be amended by deleting the concluding words ‘as a “store” (as that term is defined in the Manningham Planning Scheme)’.

The Court of Appeal's decision resulted in the amendment of the declaration by the Tribunal, removing the reference to the use of the land as a ‘store’ and allowing for the possibility of the land being used as a ‘car park’. The Court's decision provided clarity on the characterisation of the land use and the ancillary use of the land for storing hobby cars.

Orders

Orders of the court

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)’.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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