THE INTENTION IS THE KEY, WHAT IS ‘A DWELLING’ FOR THE PURPOSES OF PLANNING ENFORCEMENT?
By Justin Cotton, Partner, of Lovegrove & Cotton
In a key VCAT decision, while the Member advised that a Council had ‘every right to be suspicious’ of whether the use of a building complied with the planning scheme, the Member ultimately refused a Council’s bid for an enforcement order. VCAT ruled that the Council had the onus to prove the intention of the Owner was to actually use a building as a third dwelling on the land, rather than merely showing the building was capable of being used as a dwelling.
The decision concerned is Banyule CC v Girbau  VCAT 2251, and turned on enforcement of the Banyule Planning Scheme. A central question was this: Was the studio/bungalow on the site “a dwelling” as defined in the Banyule Planning Scheme? If the answer was yes, then it constituted a third dwelling on the site and would be unlawful unless authorised by a planning permit. All parties agreed there was no planning permit for a third dwelling.
It was necessary for the VCAT to initially examine the definition of “use”, and that included the proposed use as well as the actual use being conducted at present. But even the “proposed use” suggested there needs to be an intent to carry out a use of the building for a particular purpose, rather than just looking at whether the building is capable of being used for that purpose.
Deputy President Dwyer agreed with an earlier case, in that the Tribunal needs to be satisfied that there is an intention to use the studio as self-contained accommodation, and to look at the way the building is actually being used. Given it was the Council applying for an enforcement order, the Council had the onus of proof in showing this to be so. Also, the Member said that a contested application for an enforcement order carries a higher standard of proof than an ordinary application for review.
In the planning scheme, “dwelling” was defined to be a building used as a self-contained residence which must include:
- a kitchen sink;
- food preparation facilities;
- a bath or shower; and
- a closet pan and wash basin.
It also includes out-buildings and works normal to a dwelling.
So the Tribunal considered there were two limbs to the definition, ie (i) the four nominated facilities must all be present, and (ii) even if all four facilities are present, the building must still be “used as a self-contained residence”.
It was found that on the evidence provided, that the studio/bungalow was at least capable of being used as a self-contained residence, given that the four nominated facilities all existed, and that a portable cooking device (eg a microwave oven) could be added.
While the Owner obviously argued the building was not being used as a dwelling or self-contained residence, Council retorted that it had been so used in the past, and there was nothing to stop it being used as a dwelling in the future. However, the Tribunal considered it was not enough to rely on past use or capability of the building to be used as a dwelling, rather than its actual or proposed use.
The final conclusion was this: “At present, there is insufficient evidence that the building (as opposed to the ‘capability’ of the building) is as a self-contained residence, nor any clear evidence that this is the intended future use.”
This case is illustrative of the principles the VCAT will apply in these common disputes about use of buildings that permeate the planning and construction spheres.
By Justin Cotton, Partner in Construction and Head of Practitioner Advocacy
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing firstname.lastname@example.org.