Preamble
Home Occupation complaints made to Councils are possibly the most common type of
investigation conducted by Planning Enforcement Officers, given this I hope this
document helps members in their day to day tasks performed.
Home Occupation
Before venturing out to investigate an alleged Home Occupation, like all investigations I
first look at the planning controls specific to the land, Zone and Overlay etc. I than print
off a copy of Clause 52.11 Home Occupation from the Scheme to give to the property
owner/occupier for their perusal and record and also as a means of a tick and flick audit
whilst conducting the site inspection.
Each element is referred to as a means to ascertain the level of compliance with Clause
52.11-1 requirements to be met;
A home occupation must meet the following requirements:
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The person conducting the home occupation must use the dwelling as their
principal place of residence.
No more than one person who does not live in the dwelling may work in the
occupation.
The gross floor area used in conducting the occupation including the storage of
any materials or goods must not exceed 50 square metres or one-third of the
gross floor area of the dwelling, whichever is the lesser.
The occupation must not impose a load on any utility greater than normally
required for domestic use.
The occupation must not adversely affect the amenity of the neighbourhood in any way
including:
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The appearance of any building, works or materials used.
The parking of motor vehicles.
The transporting of materials or goods to or from the dwelling.
The hours of operation.
Electrical interference.
The storage of chemicals, gasses or other hazardous materials.Emissions from
the site.
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No motor vehicle may be serviced or repaired for gain.
Only one commercial vehicle (a commercial goods vehicle, commercial
passenger vehicle or tow truck within the meaning of the Transport Act 1983), not
exceeding 2 tonnes capacity and with or without a trailer registered to a resident
of the dwelling may be present at any time. The vehicle must not be fuelled or
repaired on the site.
No goods other than goods manufactured or serviced in the home occupation
may be offered for sale.
Materials used or goods manufactured, serviced or repaired in the home
occupation must be stored within a building.
No goods manufactured, serviced or repaired may be displayed so that they are
visible from outside the site.
Clause 52.11-2 Permit required
Despite the requirements of Clause 52.11-1, a permit may be granted for a home
occupation:
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Which allows no more than two persons who do not live in the dwelling to work in
the occupation; or
Which has a floor area not exceeding 100 square metres or one-third of the
gross floor area of the dwelling, whichever is the lesser.
Which allows no more than one additional commercial vehicle (a commercial
goods vehicle, commercial passenger vehicle or tow truck within the meaning of
the Transport Act 1983), not exceeding two tonnes capacity and with or without a
trailer registered to a resident of the dwelling, to be present at any time.
When dealing with property owners/occupiers I have found explaining their standard
disclaimer on their insurance policy as a way to gain compliance willingly. That is, “You
must comply with all rules, regulations, statutory law, by-laws and local laws.”
By Council deciding the Home Occupation does not meet the requirements of Clause
52.11-1 of the Scheme and issues a notice of contravention this may make their
insurance policy null in void, leaving them open with no protection if an accident occurs.
(the bottom line and back pocket is always a good incentive to comply willingly rather
than just simply apply the laws of the land)
Generally I have found that if the land use cannot fall with Clause 52.11 Home
Occupation of the Scheme it than automatically falls with a Section 3 use – Prohibited.
i.e. industry type land use
Clause 73 Outdoor Advertising Signs
Home occupation sign;
“A sign at a dwelling that advertises a home occupation carried on in the dwelling, or on
the land around the dwelling.”
52.05-7 Category 1 - Business areas
Section 1 - Permit not required
Home occupation sign, Condition “The total advertisement area of all signs to each
premises must not exceed 8 sq m. This does not include a sign with an advertisement
area not exceeding 1.5 sq m that is below a verandah or, if no verandah, that is less
than 3.7 m above pavement level.”
52.05-8 Category 2 - Office and industrial
Section 1 - Permit not required
Home occupation sign, Condition “The total advertisement area of all signs to each
premises must not exceed 8 sq m. This does not include a direction sign.”
52.05-9 Category 3 - High amenity areas
Section 1 - Permit not required
Home occupation sign, Condition “The advertisement area must not exceed 0.2 sq m.”
52.05-10 Category 4 - Sensitive areas
Section 1 - Permit not required
Home occupation sign, Condition “The advertisement area must not exceed 0.2 sq m.”
Ancillary land use
Clause 64 General Provisions for Use and Development of land of the Scheme states in
part;
“64.01 Land used for more than one use
If land is used for more than one use and one is not ancillary to the other, each use
must comply with this scheme.
64.02 Land used in conjunction with another use
If a provision of this scheme provides that a use of land must be used ‘in conjunction
with’ another use of the land:
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there must be an essential association between the two uses; and
the use must have a genuine, close and continuing functional relationship in its
operation with the other use.”
Clause 71 Meaning of Words of the Scheme states;
“A term used in this planning scheme has its ordinary meaning unless that term is
defined:
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In this planning scheme.
In the Planning and Environment Act 1987 or the Interpretation of Legislation Act
1984, in which case the term has the meaning given to it in those Acts unless it is
defined differently in this scheme.”
Land use terms are found at Clause 74 of the Scheme.
The test for characterising whether a use is ancillary was identified in Lizzio v Ryde
Municipal Council where the High Court approved the statement of Glass JA in
Foodbarn Pty Ltd v Solicitor-General that:
“where a part of land is used for the purpose which is subordinate to the purpose for
which another part is used, the whole of the land is regarded as being used for the
dominant purpose. The subordinate purpose is merely incidental or ancillary to the
dominant purpose.
where the whole of the land is used for more than one purpose, but the other purposes
are subordinate, the whole of the land is regarded as being used for the dominant
purpose.
where the whole of the land is used for more than one purpose, none of which
subserves the others, it is irrelevant to ask which of the purposes is dominant. If any
one of the purposes is operating in a way which is independent and not merely
incidental to others and it is prohibited, it is “immaterial that it is overshadowed by
others”.
Case Law
Lia v Banyule CC [2007] VCAT 1108 (19 June 2007)
“Planning is not an exact science and therefore things are not meant to be measured to
the millimetre. Therefore if a sign or something else approximates the size as specified
in the planning scheme, it is considered to be a reasonable and acceptable outcome.
From the submission of the responsible authority and my own consideration I have
concluded that the proposed home occupation complies with the relevant provisions of
the planning scheme to be approved as a section 2 purpose.
On the issue of the forklift being used and while this is most unusual in a residential
street, in general terms because the premises are opposite commercial premises, there
must be much more noise made by trucks and other vehicles operating on a very
regular basis and is therefore not an issue that I need to deal with. That is more
appropriate for the local laws and planning enforcement officers to deal with if they see
fit and if there is any non-compliance with noise and road traffic regulations.”
Lagas v Brimbank CC (includes summary) (Red Dot) [2009] VCAT 568 (2 April 2009)
“This decision serves as a reminder that the characterisation of a “home occupation” for
planning purposes is predominantly one arising from the scale of use, rather than the
type of use.
Under the definition of “home occupation”, the occupation may include a use defined
elsewhere in the planning scheme, other than a brothel. Therefore, even if the proposal
is capable of being characterised as a “take away food premises” (or any other defined
use other than a brothel), that use is still capable of also being a “home occupation” and
a Section 1 use in the Residential 1 zone.
However, cl 52.11 clearly constrains the definition of “home occupation” by essentially
setting the level or scale of a home occupation, beyond which it will be considered a
separate and distinct use of the land where the use must separately comply with the
planning scheme.
When the broader planning scheme framework for a “home occupation” is considered, it
is readily apparent that the assessment of a home occupation for planning purposes is
predominantly one arising from the scale of use, rather than the type of use. That scale
is clearly articulated in clause 52.11 of all VPP-based planning schemes, which sets out
the requirements that must be met by a home occupation. Clause 52.11 clearly
constrains the definition of “home occupation” by essentially setting the level or scale of
a home occupation, beyond which it will be considered a separate and distinct use of
the land where the use must separately comply with the planning scheme.
It follows that if a use meets the requirements of clause 52.11, it can be characterised
as a “home occupation” (and thus be a Section 1 use in the Residential 1 Zone), even
though it may also fall within another defined use such as “Take away food premises”.
The responsible authority’s view of the appropriateness of the use for the land does not
therefore become relevant, as the use at this scale is considered by the planning
scheme to be “as of right”. If, however, the use does not meet the requirements in
clause 52.11 and exceeds the scale imposed by those requirements, the use is
regarded as a separate use of the land and must separately comply with the planning
scheme.
The responsible authority expressed concern that the proposal in this case was
inappropriate for the land in a Residential 1 Zone, and intimated that it would be an
adverse precedent for land in a Residential Zone to be capable of being used as a takeaway coffee outlet in the manner proposed. That may well be so, but it is not a matter
that I am called upon to determine. If small-scale take-away food premises are to be
considered an inappropriate form of home occupation, it is a matter for the policy
makers and drafters of the planning scheme to impose an additional restriction on
“home occupation” to restrict or regulate the use. I must however apply the planning
scheme as I find it.”
F & H Leech v Greater Bendigo CC [1999] VCAT 1392 (31 August 1999)
Northern Grampians Shire Council v Clemenston [2005] VCAT 1244 (20 June 2005)
Mills v Cardinia SC [2007] VCAT 558 (30 March 2007)
Memery v Mitchell [2007] VCAT 1517 (17 August 2007)
Gunaratna v Monash CC [2002] VCAT 1177 (18 September 2002)
Agius v Brimbank CC [2007] VCAT 1735 (3 October 2007)
Payne v Mitchell CC [2005] VCAT 2334 (26 October 2005)
Driessen v Yarra Ranges SC [2002] VCAT 67 (25 October 2001)
Conclusion
When you look at the VCAT cases there is a common theme, Home Occupation it’s all a
go.
We can only work within what the policy makers and drafters of the planning scheme
impose.
At the moment the State Government is looking at amending the Home Occupation
requirements to be met, that is allow a further commercial vehicle and a person who
does not reside in the dwelling to work within the Home Occupation without the
requirement of a permit.
Good luck and hope this helps