In a recent VCAT Appeal Clause:1 was asked to represent the interests of a business owner operating a prohibited DVD reproduction, sales and hire shop in a Residential 1 Zone (R1Z). Council had commenced enforcement proceedings and issued a fine against the shop operator, who also lived at the premises. Council’s action was initiated by complaints from a similar type of business located within a nearby Business 1 Zone.
Under the provisions of the R1Z the use of the site as a retail premises or shop is prohibited outright by virtue of the use being listed as a Section 3 use.
Our initial site visit found thousands of copied DVDs piled up on tables in the garage of the house, multiple DVD burners and three staff operating a busy little enterprise.
After a detailed review of the use we lodged, on behalf of our client:
- An application for Internal Review seeking reconsideration of the Planning Infringement Fine imposed, pending the outcome of;
- An application for a Certificate of Compliance seeking to confirm that the DVD reproduction, sales and hire shop was in accordance with the provisions of the Planning Scheme as a Home Occupation.
Council subsequently refused to grant the Certificate of Compliance and that decision was then appealed to VCAT.
At the VCAT hearing we argued that the DVD reproduction, sales and hire shop, although prohibited in its current form could be modified slightly to bring it into line with the provisions of Clause 52.11 Home Occupation. Under the provisions of Clause 52.11 uses which otherwise require a permit or are prohibited can be undertaken ‘as of right’ (without a planning permit) within a dwelling providing the tests contained within Clause 52.11 are met.
The Tribunal agreed with our assertion that the use could met the tests of Clause 52.11 and issued an Interim Order requesting a reduction in the signage provided onsite and other minor alterations. On receipt of evidence confirming these changes had been made a Final Order was issued by the Tribunal requiring Council to issue a Certificate of Compliance for the DVD Shop.
The provisions of Clause 52.11 Home Occupation are currently under review by the Department of Planning and Community Development (DPCD). The aim of the review is to bring the provisions of Clause 52.11 inline with the Small Business Ministerial Council’s (SMBC) national guidelines for home based businesses.
According to DPCD home-based business accounts for a large proportion of small businesses in Australia. As at June 2007, there were approximately 483,000 small businesses in Victoria and over 60% of those businesses were home-based.
Proposed changes to Clause 52.11 include:
- Allowing an additional (nonresident) employee in the dwelling (maximum of two persons that do not live in the dwelling);
- Allowing an additional commercial vehicle; and
- Allowing for one-third of the dwelling to be used by the business;
The proposed changes to Clause 52.11 are likely to be seen as favouring would-be business operators and may well result in an increase in the number of businesses establishing in homes across Victoria. Full details of the proposed changes can be viewed from www.dpcd.vic.gov.au/planning.
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