VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P907/2020
Permit Application no. WH/2017/313	
CATCHWORDS	
Section 79 of the Planning and Environment Act 1987;  Whitehorse Planning Scheme;  Commercial 1 Zone;  Residential Growth Zone;  Multi-storey mixed use development, including office;  Question of law;  Whether office use is prohibited;  Meaning of the expression ‘the total floor area of all floors of all buildings on a site’	

APPLICANT	Zen Box Hill Pty Ltd	
responsible authority	Whitehorse City Council	
Referral Authority	The Head, Transport for Victoria	
RESPONDENTs	Shangyi Vision Pty Ltd
Ryan Cox Poly Global
Kevin Earl	
SUBJECT LAND	837 Whitehorse Road and 3 & 5 Poplar Street, Box Hill	
HEARING TYPE	Hearing on question of law	
DATE OF HEARING	30 April 2021	
DATE OF ORDER	4 May 2021	
CITATION	Zen Box Hill Pty Ltd v Whitehorse CC [2021] VCAT 422	
Order
Question of law
1	In my opinion, the answer to the question of law raised in this proceeding is as follows:
Question
Having regard to the relevant condition placed on the use of land for office in section 2 of clause 32.07-2 of the Whitehorse Planning Scheme, is the proposed office use prohibited?
Answer
No

Geoffrey Code
Senior Member			
Appearances
By videoconference
For Zen Box Hill Pty Ltd	Jane Sharp of Counsel, instructed by Francke Lawyers	
For Whitehorse City Council	Maria Marshall, Maddocks Lawyers	
For The Head, Transport for Victoria	No appearance	
For Shangyi Vision Pty Ltd	Tyrone Rath, Planning & Property Partners Pty Ltd Lawyers	
For Ryan Cox Poly Global	No appearance	
For Kevin Earl	In person	

Reasons
background
1	My task in this part of the proceeding is to determine the following question of law (the question):
Having regard to the relevant condition placed on the use of land for office in section 2 of clause 32.07-2 of the Whitehorse Planning Scheme, is the proposed office use prohibited?
2	The land identified in permit WH/2017/313 (in these reasons, the permit) comprises three lots (the subject land).  Under the Whitehorse Planning Scheme (the Scheme), one of the lots (at 837 Whitehorse Road) is in the Commercial 1 Zone (the C1Z) and the other lots (at 3 & 5 Poplar Street) are in the Residential Growth Zone (RGZ).
3	Zen Box Hill Pty Ltd (Zen) has applied to the Tribunal to amend the permit.  Senior Member Sibonis conducted a merits hearing of the application in November 2020.  After the hearing, the parties agreed a question of law had arisen and agreed on the form of the question.  Senior Member Sibonis will consider my answer to the question in issuing final orders.
4	In my opinion, the proposed office use is not prohibited, for the following reasons.
Facts
5	Each of the three lots that comprise the subject land are proposed to be used for office.
6	Use of land in the C1Z for office does not require permission under the Scheme.  Use of land in the RGZ for office does require permission under the Scheme and is subject to the following three conditions:
The land must be located within 100 metres of a commercial zone.
The land must have the same street frontage as the land in the commercial zone.
The leasable floor area must not exceed 250 square metres.
7	If one of the conditions is not met, office use is prohibited.
8	Only the third of the three conditions is in dispute (the condition).

9	‘Leasable floor area’ is defined as:
That part of the net floor area able to be leased. It does not include public or common tenancy areas, such as malls, verandahs, or public conveniences.
10	In turn, ‘net floor area’ is defined as:
The total floor area of all floors of all buildings on a site. It includes half the width of any party wall and the full width of all other walls. It does not include the area of stairs, loading bays, accessways, or car parking areas, or any area occupied by machinery required for air conditioning, heating, power supply, or lifts.
11	It is not in dispute that the leasable floor area for office on the plans substituted in the proceeding (being the plans prepared by Peddle Thorp Architects, Rev M, dated October 2020) exceeds 250 square metres on the subject land and does not exceed 250 square metres on that part of the subject land in the RGZ (the RGZ land).
12	The basement is constructed across the subject land (ie including on the RGZ land) and contains car spaces allocated for both the office use and the other uses.  The sole access ramp to the basement is located on the RGZ land.
What is the site for the purposes of the condition?
13	The proposal is example of an integrated development of land comprising two or more lots in two or more zones of a planning scheme.  Application of a planning scheme can be challenging in these circumstances.
14	Shangyi Vision Pty Ltd (Shangyi) contends the condition is not met because, in summary:
(a)	The net floor area is the ‘total floor area of all buildings on a site’.
(b)	‘Site’ is not defined in the Scheme, either generally or for the purposes of the condition.
(c)	The drafters of the Scheme did not use ‘site’ in the condition and should be taken to have intended to rely on the meaning of ‘site’ in the net floor area definition.  They also did not use ‘land’ or ‘lot’ as has been employed in other conditions on uses in the RGZ.
(d)	In the context of the net floor area definition, site must mean ‘a’ site and not ‘part of a’ site.  This meaning is supported by the definition of ‘leasable floor area’ which expressly includes ‘part’ of the net floor area.
(e)	If the net floor area included part of a site, there would be an absurd outcome of several net floor areas on a site which would be contrary to it being a ‘total’ floor area.
(f)	‘Site’ must therefore mean the subject land and not that part of it in the RGZ.
(g)	The net floor area for office use exceeds 250 square metres on the subject land and, accordingly. the application to amend the permit is prohibited.
15	I must construe words and expressions in accordance with the principles of statutory interpretation.  Those principles are not in dispute.  They are usefully summarised in Melbourne CC v Minister for Planning.  It is unnecessary to repeat them here.  It suffices to state that the task of construction of a word or expression in a statutory instrument requires consideration of text, context, purpose and practicality.
Text
16	As ‘site’ is not defined in the Scheme, the starting point is its ordinary meaning.  I was taken to dictionary meanings.  The ordinary meaning is of little assistance in determining the question.
17	The authors of the Scheme chose to not employ the word ‘lot’ or ‘land’ or ‘land in the permit application’ in the definition of net floor area.
18	It is well established that ‘site’ could mean a lot, part of a lot or more than one lot, depending on the facts and circumstances in a particular case.  The authors must have therefore intended ‘site’ in the definition of net floor area to be a more flexible concept, to be determined according to the facts and circumstances in a particular case.
Context 
19	The context and purpose of the condition are of greater assistance in deciding the question.
20	The expression ‘total floor area of all floors of all buildings on a site’ must be interpreted in its context within the Scheme.  It is to fall into error to reason that because all buildings in the application stretch across the subject land (including the RGZ land), ‘site’ must therefore be the land on which those buildings are located.  That reasoning focuses on the definition rather than the context of the condition that applies the definition.
21	The context of the condition is the RGZ.  A provision in a zone of a planning scheme applies to land in that zone.  If a provision was intended to have operation in another zone, clear words would be required.  The condition does not apply to the C1Z land.
22	In Barnes Capital Pty Ltd v Surf Coast SC (No. 1), I construed the effect of an analogous provision with similar reasoning.
23	In that case, the subject land was in two zones, the C1Z and the General Residential Zone (GRZ).  A residential building was proposed to be constructed across the subject land (ie on land in both zones).  In the GRZ, a minimum garden area requirement (a MGAR) applied to an application to construct a residential building on a lot.
24	Although I held ‘the lot’ was the lots comprising the subject land, I said that ‘unless there is an express or clear contrary intention in the Scheme, the provisions of one zone cannot apply to land in another zone’.  There was no express or clear intention to apply a MGAR in the C1Z.
25	Consistent with a finding about purpose, and having regard to relevant policy in the planning scheme in that case, I held the MGAR only applied to that part of the lot in the GRZ.
26	Although that case did not involve to a provision relating to a site, I would adopt similar reasoning in this proceeding.  Accordingly, the reference to ‘total floor area of all buildings on a site’ in the definition of net floor area means a site within the relevant zone for the purpose of the condition.  There is no express or clear intention that the condition applies in the C1Z to disturb this principle.  To the contrary, office use is a permitted use in the C1Z and is not subject to any leasable floor area restriction.
27	Having regard to context, the ‘site’ therefore means the RGZ land and not the subject land for the purposes of the condition.
Purpose
28	The parties did not draw my attention to any express purpose from the relevant amendment to the Scheme that introduced the condition.
29	Having regard to context and policy, I find the purpose of the condition is to limit office floor area on a site in the RGZ.  That purpose is reinforced by the provisions of the C1Z to which I have referred.  Purpose supports a finding that ‘site’ for the purposes of the condition is the RGZ land.
Practicality
30	Another principle accepted by the Courts is that subordinate instruments, including planning schemes, should be interpreted bearing in mind their use by practical people skilled in a particular industry.  A planning scheme should therefore be construed in light of practical considerations.  In short, an interpretation which leads to a reasonably practical result is to be preferred.
31	Shangyi reasoned that if the ‘site’ was the subject land, the construction yielded a reasonably practical result.  Zen reasoned finding that if the ‘site’ was the RGZ land, the construction yielded a reasonably practical result.  It is unnecessary to set out the respective reasoning.
32	It suffices to states that Shangyi’s reasoning results in a less reasonably practical result because it results in prohibition of otherwise permitted office use on the C1Z.
Conclusion
33	The ‘site’ for the purposes of the leasable floor area in the condition is the RGZ land.  As a question of fact, the leasable floor area does not exceed 250 square metres on the site.  Accordingly, the office use is not prohibited.
Access to the office use
34	As I have stated, the accessway to the basement for the office and other uses is located on the RGZ land.
35	Shangyi submits that Senior Member Sibonis raised with the parties the possibility that the location of the accessway on the RGZ land may be prohibited having regard to the reasoning in in Marble Swirl Holdings Pty Ltd v Kingston CC.
36	Having considered the reasoning in that case, Shangyi now submits the accessway is prohibited and, accordingly, the application is prohibited.
37	Having regard to the published reasons in Marble Swirl, the facts in that case may be relevantly summarised as follows:
(a)	The subject land comprised land in a Business 2 Zone (B2Z) and a Residential 1 Zone (R1Z).
(b)	The application showed a mixed use development comprising various commercial uses (including ‘retail premises’ and ‘office’) plus dwellings on the B2Z land.
(c)	The application included, on the R1Z land, an accessway to a basement on the B2Z land for the development and an area for larger vehicles to manoeuvre into a supermarket loading bay on the B2Z land.
(d)	Use for ‘retail premises’ and ‘office’ was prohibited under the Scheme on the R1Z.
(e)	The applicant submitted the purpose of the use of the R1Z land was access and not ‘retail premises’ and ‘office’ or, alternatively, an unspecified mixed use and, accordingly, that purpose was not prohibited on the R1Z.
38	The Tribunal held the purpose of the use of the R1Z land was not separate but formed part of (or an ancillary activity to) the commercial (and other) uses.  Accordingly, the use of the R1Z land was prohibited.
39	The characterisation of a use is based on a finding of the real and substantial purpose of that use.  The finding must, in turn, be based on the particular facts and circumstances.
40	The facts and circumstances in this proceeding are relevantly different.
41	First, the RGZ land is not solely used for access as was the case with the R1Z land in Marble Swirl.  The RGZ land includes office use with a floor area not exceeding 250 square metres.
42	Second, even if the use of the accessways and parking for office use on the RGZ land is part of the office use on the subject land, the office use is not prohibited on the RGZ land in the same way that the office use was prohibited on the R1Z land in Marble Swirl.  Office use of the RGZ is a use for which permission is required and may be granted.  Permission is subject to the condition.
43	If the condition was not met, it might be argued that the resultant prohibition aligns the outcome with that in Marble Swirl.  However, as I have found, the condition is met and the circumstances must be distinguished from those in Marble Swirl.
Conclusion
44	For the above reasons, the answer to the question is ‘no’.

Geoffrey Code
Senior Member