Two dwellings on a single allotment
All Zones either require a Permit for the construction and extension of two or more
dwellings on a lot or
Must result in no more than two dwellings on the lot or
Must be the only dwelling on the lot. This does not apply to the replacement of an
existing dwelling if the existing dwelling is removed or altered (so it can no longer be
used as a dwelling) within one month of the occupation of the replacement dwelling.
Clause 74 Land Use Terms of the Scheme defines ‘dwelling’ as;
“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 ba-sin.
It includes out-buildings and works normal to a dwelling.”
When conducting this type of investigation look at all the attributes of a dwelling and
take photographs of each component, including inside cupboards (cookware, cups,
washing detergent, food etc) and the fridge to ascertain if the building is currently being
occupied and find out who is occupying the dwelling.
When was the dwelling constructed?
When was the dwelling first occupied?
Who constructed the dwelling?
Why was the dwelling constructed?
What is the purpose of the building served now?
Has a Building Permit been issued?
Has a CFO been issued?
Make notes on the following including photographs;
 Separate assets (power boxes, gas meters, water meters etc)
 Separate vehicle entries
 Separate mail boxes
 Measure the distance between dwellings
 The external characteristics of each dwelling i.e. pitch of roof, weatherboard
building, (to a lay person does the building have all the characteristics that make
it look like a normal dwelling from the outside)
 The approximate floor area of each dwelling
The definition of dwelling in the planning scheme does include ‘out-buildings’ normal to
a dwelling.
For example if the food preparation area, kitchen sink and oven were removed the
building would be considered an ‘out-building’ normal to a dwelling, not requiring a
permit.
The occupants would then be reliant upon the main dwelling for food preparation. The
problem with this is that the building maybe converted back into a dwelling at any time
in the near future.
Some ‘out-buildings’ constructed still require planning approval if they are located within
the set back provisions under Buildings and Works within the Zone, i.e. Green Wedge
Zone 100m from a dwelling not in the same ownership and so on. Also an Overlay may
trigger the requirement of a permit too.
OK now the buildings kitchen has been removed making it an ‘out-building’ and remains
occupied. If the building is a permanent structure the building would than require
building approval (retrospective certification) in accordance with the Building Act 1993,
however if the building was a portable type building such as you would find normally in a
caravan park it would not require building approval as it falls under the Caravan Parks
and Movable Dwellings Act 1988 and only requires a certification plate to be place on
the portable building.
Case Law
Yarra Ranges SC v Yoxon [2009] VCAT 642 (8 April 2009)
Yoxon v Yarra Ranges CC [2006] VCAT 1294 (30 June 2006)
Yoxon v Yarra Ranges SC (Red Dot) [2005] VCAT 1275 (30 June 2005)
Yoxon v Yarra Ranges SC [2004] VCAT 2486 (7 December 2004)
Malcross Investments Pty Ltd v Hepburn Shire Council
Hoppach v Wangaratta RCC
Teichmann v Colac Otway SC [2008] VCAT 2219 (31 October 2008)
Casey City Council v Kelly
City of Casey v Casey CC [2004] VCAT 2031 (20 September 2004)
Warren v Yarra Ranges SC [2006] VCAT 1782 (21 August 2006)
Armato v Hepburn Shire [2007] VCAT 603 (18 April 2007)
Land Use Terms
There many different types of accommodation i.e. Dependent person's unit, Host farm
Bed and breakfast, Caretaker's house.
A strong understanding of the different types of accommodation is important, if unclear
seek advice.
Conclusion
Give consideration if the use falls within Clause 63 Existing Uses of the Scheme.
Determine the property occupiers/owners intent; for the purpose of the land use being
served.
Ensure their legal rights under planning law are exercised to ensure due process and
natural justice. Don’t take short cuts, extend to parties their legal rights under planning
law.
Directing people to submit a planning permit application is not the way to go, if they wish
to retain the works/use ‘planning approval is required’ is a better way to attempt to get
an application submission to Council for assessment.
The rationale behind this is that if you direct someone to place an application and
subsequently it is refused the applicant may seek costs of their application from Council
as you instructed them to submit one. I haven’t heard of a case yet seeking costs made
on these grounds but its best to avoid this type of proceeding from occurring to start
with.
The below example notice was issued is a result of conducting an investigation into a
second dwelling occupied by a person displaced by the recent Victorian bush fires and
the property owner claimed to have an existing use right given he purchased the
property with the existing building and to the best of his knowledge has been on the
property for over 15 years and continuously occupied by persons and used as a second
dwelling.
“I refer to Council’s previous correspondence dated the 21 December 2007, 13
September 2007, 6 September 2004 and 15 March 1983 copies of which are enclosed
for your perusal and record.
Inspection of the property on 17 March 2009 revealed the use and development of a
second dwelling (weatherboard dwelling and ancillary brick outbuilding) remain
outstanding.
Under the Planning and Environment Act 1987, any person who fails to comply with or
contravenes a planning scheme is guilty of an offence.
As such you are hereby directed within 90 days of the date of this letter (by 23 June
2009) to either:

immediately cease the use of land for the purpose of a second Dwelling and
remove from the land the weatherboard Dwelling and ancillary brick Outbuilding
constructed located to the rear of the lot (Southern property boundary) to the
satisfaction of Council;
or
 submit to Council for review and assessment a Statement of Grounds contained
within a sworn affidavit providing sufficient proof of the establishment of the
existing use/development right for the weatherboard dwelling and brick
outbuilding constructed has been carried out continuously for 15 years prior to
the date of this application or pending proceedings (see enclosed copy of Clause
63 of the Yarra Ranges Planning Scheme);
or
 submit a Section 149 Declaration application to VCAT in accordance with the
Planning & Environment Act 1987 regarding the current use and development
weatherboard dwelling and brick outbuilding constructed;
or
 if you wish to retain the weatherboard dwelling and ancillary brick outbuilding
constructed submit a Planning Permit application to Council for the said use and
development. An Application for Planning Permit form is enclosed herewith for
your perusal and consideration.
Please notify me on xxxxxxxxx upon completion of one of the aforementioned options
so that this case may be further reviewed and/or an inspection can be arranged to
ensure the remedial action has been completed as required.
Failure to comply with the above may result in Council initiating VCAT enforcement
order proceedings pursuant to the Planning and Environment Act 1987 Section 114
against you the property owners to bring the subject sites use and development into
compliance with the provisions of the xxxxxxxx Planning Scheme.
After considering the circumstances and facts of this case the Council has determined
not to take any enforcement action in this matter providing the required remedial action
is completed to our satisfaction.
In the event a further contravention or failure to comply occurs, this caution should not
be relied upon as a more strict approach will be adopted in such circumstances.
I look forward to your prompt action in this matter and trust no further action will be
required.
Should you have any further queries regarding this matter please contact me on
xxxxxxxx.
Yours faithfully
Rhett English
SENIOR PLANNING ENFORCEMENT OFFICER”