Ms Joanne Lardner of counsel instructed by Wollerman Shacklock for the Rosebud & District Motorcycle Club.

[Mr B Paterson for the Victoria Field & Game Association (Port Phillip) Inc. and Messrs M Reed & P Dixon for Mornington Peninsula Bowmen Inc. were also in attendance].

Neighbours issued an enforcement application seeking an order restraining council from allowing the Long Point Reserve to be used at any time for motorcycle events and gun shooting events.

This was followed by an application for a declaration under the Planning and Environment Act 1987, s. 149A that the subject land enjoys existing use rights for the purpose of motorcycle events and gun shooting events as well as for archery.

P3279/2007 - section 114 Planning and Environment Act 1987.

P2845/2008 - section 149A Planning and Environment Act 1987.

Planning and Environment Act 1987 s.6(3) &clauses 36.02 & 63 Mornington Peninsula Planning Scheme.

Long Point Reserve, Cape Shanck, with Part A on the Plan used by the Bowmen (archery), Part B on the Plan used by the Gun clubs and Part C on the Plan used by the motorcycle club.

Alexopoulos v Moonee Valley CC [2007] VCAT 2473 (31 December 2007)

Kraan v Cardinia SC [2006] VCAT 1629

Beckman (No.2) v Port Phillip CC (2003) 14 VPR 190.

What orders are made by the Tribunal in P2845/2008?

1. Two proceedings are before the Tribunal. One is a declaration under section 149A of the Planning and Environment Act 1987 and the other seeks enforcement under section 114 of the same Act. The Tribunal has been constituted with myself as presiding member (who is not a legal practitioner) and Member Komesaroff who is a legal practitioner.
2. Any application under section 149A of the Planning and Environment Act 1987 must be decided by a presidential member or an Australian lawyer pursuant to sub-section 149A(4):

The Tribunal's power under this section is exercisable only by a presidential member of the Tribunal or a member of the Tribunal who is an Australian lawyer (within the meaning of the Legal Profession Act 2004).

1. I have a Bachelor of Town and Regional Planning (Hons) and a Graduate Diploma in Law but I am not an Australian lawyer.
2. I have read Member Komesaroff's reasons with respect to the section 149A declaration proceedings. Respectfully, I do not agree concerning the operation or interpretation of clause 63.
3. Section 66 of the Victorian Civil and Administrative Tribunal Act 1987 states:

If for the purposes of any particular proceeding the Tribunal is constituted by 2 or 4 members and the opinions of those members on a question before them are equally divided, the question must be decided according to the opinion of the presiding member.

1. If the section 149A proceeding was not required to be decided by a presidential member or an Australian lawyer, and opinions of the Tribunal were divided, then the opinion of the presiding member would prevail. In the current unusual circumstances, it is because of the particular requirements of section 149A(4) that I consider that the orders made by the Tribunal in Application for Review No. P2845/2008 must be in accordance with the question as decided by Member Komesaroff. Thus, the orders we have made with respect to the section 149A proceedings accord with Member Komesaroff's opinion.
2. The reasons why my opinion would differ are briefly as follows.
3. Clause 63 establishes existing use rights. A use may have existing use rights depending on whether it was commenced legitimately or having regard to the length of time it has been established and used continuously. That is derived from five tests that establish an existing use right at clause 63.01. The arguments advanced by the parties relate to the fourth point in clause 63.01. It states an existing use right is established if the following applies:
   • Proof of continuous use for 15 years is established under Clause 63.11.
4. That is the only point relied upon by the council and sporting clubs. Here, the parties agree the uses have been operating in the designated areas for more than 15 years as set out in Member Komesaroff's findings contained in paragraphs 16, 52 and 53 with which I agree. Thus, provided proof of continuous use is met in accordance with clause 63.11, an existing use right is established by a use operating continuously for 15 years. The provisions are not the same as those formerly known as non conforming use rights because clause 63 allows a use to continue simply because it has operated for 15 years continuously, lawfully or not. The 15 year period is counted backwards from the application or proceeding in which the extent of existing use right is in question. Clause 63.11 does not require, nor reference, a use being "nonconforming" or unlawful for 15 years. It simply states:

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period unless either....

1. There are then two bars to proof of continuous use.
2. The first is:

At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.

1. There is no evidence of any such finding in this proceeding.
2. The second is:

During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. There is no evidence of any such finding in this proceeding. I agree with Member Komesaroff's findings contained in paragraphs 154-161.
2. For these reasons, the declarations sought by the Council would have been answered by me (should I have been in a position to do so) as follows -
   • In respect of the area marked A an existing use right for the purpose of archery has been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme.
   • In respect of the area marked B an existing use right for the purpose(s) of gun range and target shooting activities has been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme.
   • In respect of the area marked C an existing use right for the purpose(s) of motorcycle events and activities has been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme.

1. All three uses, the motorcycle club, the clay target and shooting club and the archery club have been in continuous occupation and use of their respective portion of the subject land for at least twenty-seven years.
2. At their inception and during the course of their occupation of the subject land, they were at all times able to obtain planning permission for their respective use of the land.
3. Planning permits held at some point in time by all three respective uses, the motorcycle club, the shooting club and the archery club, have expired.
4. All three uses, the motorcycle club, the clay target and shooting club and the archery club are presently able to obtain a planning permit in their Public Park and Recreation Zone under section 2 of clause 36.02 of the Mornington Peninsula Planning Scheme. The motorcycle club would fall within the characterisation of motor racing track and the shooting and archery clubs would fall within the characterisation of outdoor recreation facility which is nested under minor sports and recreation facility.
5. The landowner seeks a s.149A declaration that the motorcycle club, the shooting club and the archery club enjoy existing use rights under section 6(3) of the Planning and Environment Act 1987 and clause 63.11 of the Mornington Peninsula Planning Scheme.
6. Why are existing use rights an issue in this case even though all clubs are able to apply for planning permits for the same activity?
7. They are an issue because the landowner (who is also the council and the Responsible Authority) and all three clubs rely on existing use rights to avoid the need to obtain planning permission under section 2 of clause 36.02. The need for planning permission would firstly invoke third party rights and secondly invoke permit conditions at least similar to the conditions imposed on them historically, if not more stringent. If the clubs enjoy existing use rights, they avoid the above consequences and arguably have free reign, although this raises debate about the extent of their existing use rights, which is not the subject of this Declaration.
8. Existing use rights arise under clause 63.01 of the General Provisions of the Mornington Peninsula Planning Scheme which, inter alia, establishes an existing use right in relation to use of land if proof of continuous use for 15 years is established under Clause 63.11. (Tribunal emphasis).
9. Clause 63.11 says that if the extent of any existing use right for a period in excess of 15 years is in question[1], it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding. An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period.
10. It is not only clauses 63.01 and 63.11 that deal with existing use rights. Each and every subclause under clause 63 deals with existing use rights.
11. An existing use right is and has always been, an entitlement or right called up by the imperative of circumstance and relied upon where necessary.
12. Permit holders are, as a rule, not referred to as having existing use rights.
13. Generally speaking, existing use rights are relied upon where planning controls have changed so that the user can no longer obtain planning permission for that identical use or development.
14. The historic entitlement to existing use rights was that the land use had to have commenced lawfully prior to the change in planning controls. This historic entitlement to existing use rights is maintained in the first three dot points of clause 63.01.
15. The seminal change wrought by clause 63.11 under the VPP format planning schemes is an evidentiary change; that it is no longer necessary to prove that the land use commenced lawfully, provided that the user can prove continuous use for that purpose for at least fifteen years.
16. What is it that has to be carried out continuously for 15 years prior to the date of the application or proceeding? It is my opinion that the activity or entitlement that must have continued for at least fifteen years is the right to use land contrary to the planning scheme, not just use of land simpliciter, because clauses 63.01 and 63.11 begin with the concept or entitlement called an existing use right.
17. Having interpreted clauses 63.01 and 63.11 in this way, namely applying the 'proof of continuous use for 15 years' to the existing use right, I have come to the conclusion that the archers do enjoy existing use rights pursuant to the cl. 63.11 amnesty principle, but the motorcyclists and the shooters do not.
18. I have come to this conclusion because it is my opinion that when the three clubs held planning permits, they did not have an entitlement called existing use rights; rather, they held planning permits. But once their respective permit expired, and they continued using the land unlawfully without the planning permission they were required to obtain, they were able to establish existing use rights because of the amnesty provisions of clause 63.11 which right accrues even if the use did not comply with the scheme immediately prior to or during the 15 year period (that is, even if the use of the land is unlawful).
19. Prior to the new VPP format planning scheme's clause 63.11, they would never have been able to accrue such a right, but now they can.
20. What the three clubs enjoyed when they held their respective planning permits is different to what the three clubs enjoyed after their respective permits expired or sunsetted. When the three clubs held their respective planning permits, they did not have existing use rights. What the three clubs enjoyed when they held their respective planning permits was a right to use the land subject to a permit and its conditions. But the three clubs enjoyed no rights under the planning scheme once their permits expired or sunsetted.
21. However, by virtue of clause 63.11, existing use rights can trigger once the clubs' respective permits expired and they continued to use the land contrary to the scheme for in excess of fifteen continuous years.
22. If I were to draw no distinction between the rights held by the clubs when they held planning permits and those held by the clubs when their permits expired (which were no rights), that, in my opinion, would be akin to drawing no distinction between occupation of land under a lease and occupation of land by over holding once a lease has expired, even though both rights are very different.
23. Having interpreted cll. 63.01 and 63.11 in this way, that is, applying the evidentiary provisions, the 'proof of continuous use for 15 years' to the existing use right or the right to use land contrary to the current planning controls, I have come to the conclusion that the archers enjoy existing use rights but the motorcyclists and the shooters do not. I now elaborate.

1. There are two proceedings, an enforcement application by residents and an application by council for a declaration.
2. Residents in the vicinity[2] of Long Point Reserve, Long Point Road, Cape Schanck ("the Reserve") commenced enforcement proceedings on 18 December 2007 seeking an order restraining council from allowing the Long Point Reserve to be used at any time for motorcycle events or activities of any kind and gun shooting events or activities of any kind.
3. Use of the reserve for archery events or activities of any kind was not part of their enforcement application.
4. Further and better particulars and statutory declarations attesting to the residents' experience of the activities on the subject land are contained in the Tribunal file no. P3279/2007. The declarants attest to recurrent disturbance from noise created by shooting including night shoots and the engines of motor bikes, the sound travelling in excess of one kilometre. They attest to being startled by late night noise of gun shots and dismayed by damage to the natural environment.

1. To counter this application, on 1 October 2008 council, the landowner, applied to the Tribunal for a declaration under section 149A of the Planning and Environment Act 1987 that use of the reserve by the various clubs that use it, does not contravene the Mornington Peninsula Planning Scheme by virtue of section 6(3) of the Planning and Environment Act 1987 and clause 63.11 of the Mornington Peninsula Planning Scheme.
2. More specifically, the council seeks the following orders, inter alia:

1. that the use of the area on the attached plan marked A on the attached plan entitled "Use of Long Point Reserve for Archery" for the purpose(s) of archery constitutes an existing use for the purpose of section 6(3) of the Planning and Environment Act 1987 or clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Act or that Scheme; 2. that the use of the area on the attached plan marked B entitled "Use of Long Point Reserve for Shooting" for the purpose(s) of a gun range and target shooting activities constitutes an existing use for the purpose of section 6(3) of the Planning and Environment Act 1987 or clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Act or that Scheme;

1. that the use of the area on the attached plan marked C entitled "Use of Long Point Reserve for Motorcycles" for the purpose(s) of motorcycle events and activities constitutes an existing use for the purpose of section 6(3) of the Planning and Environment Act 1987 or clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Act or that Scheme.
2. The parties agreed that the section 149A declaration proceeding be heard and determined first. In the event council's declaration application is successful, the enforcement application must be dismissed. In the event the declaration application is unsuccessful, the application for enforcement would have to come back to the Tribunal with the parties having an opportunity to be heard on the orders sought. Parties agreed that costs be reserved.

1. The parties responsibly and conveniently abridged the proceedings by compiling an Agreed Statement of Facts.
2. Council purchased the reserve from a Mr Douglas Clayton on or about 30 March 1984. At the time of purchase the following clubs were operating from the reserve by agreement with the former owner:

1. Rosebud and District Motorcycle Club Inc. (the motorcyclists) which conducted motor cycling activities on a motorbike track; 2. Nepean Clay Target Club Inc. (the clay shooters) which conducted target shooting activities;

1. Mornington Peninsula Bowmen Inc. (the archers) which conducted archery shooting activities within an archery course.
2. The reserve was effectively subdivided into three discrete areas for the above three different activities.
3. Since at least 1990, the Field and Game Association (Port Phillip) Inc. ("field shooters") have shared the clay shooters part of the reserve, and will now be collectively referred to as the shooters.
4. In 1990 and 1993 the council entered into three different leases for parts of the land to the motorcyclists, the shooters and the archers. These leases included conditions regulating activity including maintenance of the buildings on the land, insurance and liability issues, and which allow the council to make and/or alter rules and regulations relating to safety, cleanliness and for the preservation of good order, management and conduct of the site. The leases did not contain any restrictions on hours or days of operation by the clubs. The leases expired at midnight on 28 August 2000. The council intends to enter new leases with each of the clubs including conditions regulating the use of the land.

1. The three different leases delineated different Areas A, B & C for each of the three uses for the purposes of motor bike track, clay target and field and game shooting and archery. Area A was reserved for the archers, Area B for the shooters and Area C for the motorcyclists. The Areas are delineated on plans forming part of council's s.149A application.

Permits permitting use of the land and their expiry

1. The residents do not dispute that Long Point Reserve has been used in the manner described in the agreed statement of facts and in the witness statements of council's planning officer and of persons associated with each club, for in excess of 15 years for the recreational purposes of archery, motor bike track and shooting.
2. The parties also agreed that areas marked A, B & C on the plan attached to council's s.149A declaration application comprised the areas actually occupied by the various clubs, although there is an overlap in the case of the range of shot limit in the shooters' Area B which protrudes into the motorcyclists' Area C. For safety reasons, the motorcyclists do not ride when the shooters are active. Historically, that was also a requirement under the motorcyclists' permit conditions.
3. The parties also agreed to the following table of planning permits that existed over the land although all permits have expired.

The development and use of the land for motorcycle club activities (in accordance with endorsed plan)

Pt Lot 6 LP 84128

Pt Lot 6 LP 84128

Expires within 5 years of issue, unless extended. Extensions to 10 March 1992. Extended on 19 March 1992 such that it would expire on 10 March 1994.

Use of land described as Lot 6 LP84128 for the purpose of an archer course

Pt Lot 6 LP 84128

To use parts of Crown Allotments 20A, 20B and 22, Section C, Parish of Fingal, Boneo Rd, Fingal, Shire of Flinders, for the purposes of a shotgun club, and to erect buildings and works in accordance with the attached endorsed plans

To conduct one extraordinary shoot for charity purposes

The use of the abovementioned land for the purpose of a shotgun/clay target club

The construction of a new clubhouse building and associated works (this permit is expressed to require the permit to be read in conjunction with and form part of permit No. 15609)

1. Motorcycling activities have occurred on the land uninterruptedly since 1979. Permit no. 3752 for the development and use of the land being part of Lot 6 LP84128 for the purpose of motorcycle events and activities expired on 10 March 1994.
2. Shooting activities have occurred on the land uninterruptedly since 1978. Permit no. 15609 for the development and use of the land being Lot 2 LP 145102 for the purpose of a gun range and target shooting activities expired on 4 November 2001.
3. Archery activities have occurred on the land uninterruptedly since 1980. Permit no. 3521 for the development and use of the land being Pt Lot 6 LP84128 for the purposes of archery expired on 27 October 1984.
4. The planning permits for the respective recreational activities contained hours of operation and other conditions and restrictions. For example, the motorcyclists' permit was confined to bikes up to a capacity of 500cc, a restriction on the number of motorbikes riding at any one time and was prohibited at the same time as the gun club activities.

1. From 12 May 1965 Long Point Reserve was subject to the Shire of Flinders Planning Scheme and zoned Agricultural.
2. Following the gazettal on 28 March 1979 by Amendment 119, the Reserve was zoned Tideway Uplift Zone and part of the land was also included in a Natural Systems Unit Bushland Class C.
3. At the time of council's purchase in 1984, the Reserve was zoned Tideway Uplift Zone[3] under the Shire of Flinders Planning Scheme.
4. Then came the advent of the Day One Planning Schemes on 16 February 1988, when the Town and Country Planning Act 1961 changed to the Planning and Environment Act 1987.

1. From 16 February 1988 to 6 May 1999 the Long Point Reserve was subject to the Flinders Planning Scheme. Under this planning scheme, before 23 December 1993, the land was included within the Tideway Uplift Zone and part of the land was included within a Natural Systems Unit being Bushland Class C.
2. On 23 December 1993, Amendment L98 to the Flinders Planning Scheme came into operation which reserved Lot 2 LP 145102, Long Point Road, Cape Schanck (known as Long Point Reserve) for Public Open Space - Recreation. This amendment also inserted the following clause relating specifically to Long Point Reserve into Flinders Planning Scheme:

Land at Lot 2 LP 145102, Long Point Road, Cape Schanck reserved for Public Open Space - Recreation may only be used and developed in accordance with a plan prepared to the satisfaction of the responsible authority. This does not apply to use and development in accordance with an existing permit. (Tribunal emphasis)

In deciding whether the plan is satisfactory, the responsible authority:

• must consult the Department of Conservation and Natural Resources (DCNR);
• may include conditions on the use and development of the land.

The cl. 5.05 plan was prepared, but not approved by the council as responsible authority (because it could not resolve differences with the DCNR).

1. From 6 May 1999 to the present, Long Point Reserve was subject to the Mornington Peninsula Planning Scheme (the Scheme). Under the current controls the Long Point Reserve is contained within the Public Park & Recreation Zone in clause 36.02.
2. Although informal outdoor recreation is in Section 1 of the zone, all parties agreed that none of the uses fall within that characterisation.
3. Parties agreed that the motorcycling use would be characterised as motor racing track; and the shooting and archery activities would be characterised as a minor sports and recreation facility. An outdoor recreation facility falls within the clause 75.06 nesting of minor sports and recreation facility.
4. Under section 1 of clause 36.02-1, any other use not in section 3 can be an as-of-right use, provided it meets the section 1 condition which requires it to be conducted by or on behalf of the public land manager or Parks Victoria or requires it to be a use specified in an Incorporated Plan in the schedule to the zone.
5. Because the section 1 condition is not complied with, Mr Garde QC agreed with Mr Porter that, if the land uses required planning permission[4], they would need a planning permit under section 2 of 36.02. They would become a section 2 use by virtue of clause 31.01 of the Scheme which says:

A use in Section 1 does not require a permit. Any condition opposite the use must be met. If the condition is not met, the use is in Section 2 and requires a permit unless the use is specifically included in Section 3 as a use that does not meet the Section 1 condition.

1. It is common ground that all uses do not fall within the prohibited section 3 uses.

1. This is where the s.149A declaration comes into play. Since it is agreed that all permits have expired, so that the uses continue without planning permission and are not as-of-right uses under the zone, a declaration in favour of council that the land enjoys existing use rights is critical to the success or failure of the residents' enforcement application against it - that the land is being used in contravention of the scheme and that council in its capacity as the Responsible Authority is not enforcing its planning scheme.
2. If the subject land enjoys existing use rights, the residents concede their enforcement application will fail.
3. The primary question is whether the land enjoys existing use rights for the purposes of shooting, motorcycling, and archery pursuant to section 6(3) of the Planning and Environment Act 1987 or clause 63 of the Mornington Peninsula Planning Scheme?
4. A subsidiary question is whether a letter from the council to each of the three respective shooting, motorcycling, and archery clubs dated 10 February 1995 amounts to a clear and unambiguous written direction for the use to cease under the exception in the second dot point of clause 63.11. Mr Garde QC submitted that exception to the 15-year amnesty only applies to uses and not to cessation of buildings, development or works.
5. The letter dated 10 February 1995 enjoined the clubs to stop works which had occurred on the subject land and not to use or occupy the respective areas until planning and building permits were obtained.
6. As will be seen, it is unnecessary for me to decide this question in relation to the motorcyclists and shooters, although it is necessary in relation to the archers.

1. Mr Garde QC contends that the Reserve enjoys existing use rights because shooting, motorcycling, and archery commenced in 1978, 1979 and 1980 respectively and continued uninterrupted on the land to this very day; a period of over 27 years. Clause 63.01 establishes an existing use right if, inter alia, proof of continuous use for fifteen years is established under clause 63.11. Clause 63.11 of the planning scheme only requires the use to be carried out continuously for fifteen years prior to the date of the application or proceeding in which such a right is in dispute. In this case the agreed relevant date is the 18th December 2007, the date the enforcement application was lodged by the residents.
2. Put simply, Mr Garde QC submits that pursuant to clause 63 of the scheme, the land enjoys existing use rights for shooting, motorcycling, and archery because they have been conducted continuously on the land for more than fifteen years prior to the 18th December 2007.
3. Mr Porter, on the other hand, draws a distinction between what he calls controlled shooting, motorcycling, and archery uses and uncontrolled shooting, motorcycling, and archery uses. By controlled he means motorcycling, archery and shooting activity that occurred subject to planning permits with conditions. By uncontrolled he means motorcycling, archery and shooting activity that is not controlled by any permits because they have expired but which activity continues on the land unlawfully and unrestricted by permit conditions and restrictions.
4. Mr Porter draws a distinction between two classes of the same land uses of shooting, motorcycling, and archery - between the subject-to-permit or controlled use and a non-permitted or uncontrolled use which could have and should have applied for a planning permit.
5. Mr Garde QC rebuts, submitting that lawfulness or unlawfulness of those uses pursuant to the planning scheme is irrelevant under the second paragraph of clause 63.11 which reads:

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period.......

1. Clause 63 of the Scheme deals with existing use rights. Its enabling statute, the Planning and Environment Act 1987, under s. 6(3), says that nothing in any planning scheme or amendment thereof shall prevent the continuance of the use of any land, building or works for the purposes for which it was being lawfully used or erected before the coming into operation of that scheme or amendment as the case may be. (Tribunal emphasis).
2. The subordinate document, the planning scheme's clause 63.11 is broader than the scope of its enabling legislation, the Planning and Environment Act 1987, s. 6(3).
3. Deputy President Gibson discussed the breadth of the subordinate instrument exceeding its enabling legislation in Kraan[5]:

....whilst it might be said that section 6(3) of the Act "protects" existing use rights, in reality it is the planning scheme that protects existing use rights. All that section 6(3) does is to place a constraint on what a planning scheme may provide for. To the extent that a planning scheme was contrary to the provisions of section 6(3), the planning scheme would be invalid.

There is nothing in the Planning and Environment Act 1987 that limits the establishment of existing use rights only to those circumstances described in section 6(3). Until introduction of the new format planning schemes based on the Victoria Planning Provisions, planning schemes generally defined existing use rights by reference to uses lawfully established prior to approval of the planning control.....

The effect of these provisions[6] is that if a use has been carried out continuously for 15 years it is deemed to have existing use rights unless the legitimacy of that use has been seriously challenged during that time[7].

1. Kraan[8] concerned an application[9] to cancel or amend an enforcement order previously made by the Tribunal[10] which found

that the subject land was not used for the operation of either of his businesses for fifteen continuous years since 1988 or 1989 and that no existing use rights attach to the land for the purposes of operating businesses of water cartage or tree removal[11].

1. Deputy President Gibson held that unlawful operation of either of his businesses for fifteen continuous years was not a bar to proof of existing use rights under clause 63.11.
2. Section 6(3) has always been understood to be a protective device for a land use, building or works that may not now be in accordance with the planning scheme, but was lawful at the time the planning scheme or amendment thereof commenced. Very historically, such uses were termed nonconforming uses, since they did not conform to the planning scheme or amendment thereof when it came into operation. The authors of Planning and Environment Victoria[12] remind me that before the advent of the VPP format planning schemes, that phrase changed to existing use rights:

Under the Planning and Environment Act 1987, s. 6(3) ...non-conforming uses which were lawfully in existence before a planning scheme or amendment came into force are permitted to continue. These uses are also called 'existing' uses. The term 'existing use' is the term which the new format planning schemes use in clause 63. The term had also been used in the old format planning schemes and was a departure from the much earlier planning schemes which had used the old version 'non-conforming use'.

1. In my opinion clause 63 of the General Provisions of the planning scheme is a successor to previous planning scheme provisions that dealt with an entitlement called existing use rights.
2. The present proceedings however, deal with a seminal difference in the VPP format planning schemes. Clause 63.11 of the planning scheme introduces a new evidentiary provision into the law of existing use rights; the fifteen year proof of continuous use rule, which can also have an amnesty effect.
3. In Alexopoulos[13] Senior Member Byard correctly said:

Under the 15-year rule provisions a use that is unlawful, indeed prohibited by the planning scheme, that is commenced unlawfully can acquire existing use rights if those responsible can get away with the unlawful conduct for 15 years[14].

The 15-year rule creates an entirely new departure in this respect. It creates the possibility of legalising activities that were commenced illegally and continue illegally in contravention of the planning scheme[15].

Clause 63 also deals with the use of land for purposes that are not prohibited, but which would require a permit[16].

1. Many divisions of this Tribunal have implemented the fifteen year proof of continuous use rule irrespective of the lawfulness of the commencement of that use. See Mornington SC v Fox[17]; Kraan v Cardinia SC[18]; Beckman (No.2) v Port Phillip CC[19].

1. Do these three uses enjoy existing use rights? Under the more limited preservation of existing use rights under the Planning and Environment Act 1987, s. 6(3), all three planning permits having expired but each use continuing unlawfully without its respective requisite planning permission, it is my opinion that the motorcyclists, shooters and archers would not enjoy existing use rights.
2. But clauses 63.01 and 63.11 of the Mornington Peninsula Planning scheme deal more expansively with existing use rights. Since my interpretation of cl. 63.01 combined with cl. 63.11 differs to Mr Garde QC's, I set out my analysis.
3. Clause 63.01 starts off describing an entitlement called an existing use right. So does clause 63.11. When clause 63.01 provides, under the fourth dot point, as one option for establishing an existing use right in relation to use of land, that

proof of continuous use for 15 years is established under Clause 63.11

it is providing an evidentiary means by which an existing use right can be established.

1. Clause 63.01 does not say an existing use right is established in relation to use of land by proof of continuous use for 15 years. It says an existing use right is established in relation to use of land if proof of continuous use for 15 years is established under Clause 63.11.
2. Clause 63.11, in turn, deals with a situation where the extent of any existing use right for a period in excess of 15 years is in question. (Tribunal emphasis). The starting point, however, is still the same entitlement called an existing use right. Clause 63.11 is satisfied, from an evidentiary perspective, that an existing use right is established if the use has been carried out continuously for 15 years prior to the date of the application or proceeding even if the use did not comply with the scheme immediately prior to or during the 15 year period.
3. It is not only clauses 63.01 and 63.11 that deal with existing use rights. Each and every subclause under clause 63 deal with existing use rights.
4. An existing use right is and has always been, an entitlement or right called up by the imperative of circumstance and relied upon where necessary.
5. Permit holders are, as a rule, not referred to as having existing use rights.
6. Generally speaking, existing use rights are relied upon where planning controls have changed so that the user can no longer obtain planning permission for that identical use or development.
7. The historic entitlement to existing use rights was that the land use had to have commenced lawfully prior to the change in planning controls. This historic entitlement to existing use rights is maintained in the first three dot points of clause 63.01.

1. The seminal change wrought by clause 63.11 under the VPP format planning schemes is an evidentiary change; that it is no longer necessary to prove that the land use commenced lawfully, provided that the user can prove continuous use for that purpose for at least fifteen years.
2. In Beckman (No.2) v Port Phillip CC[20] I discussed the consequential amnesty effect that clause 63.11 has on use or development that commenced unlawfully provided it has continued for at least fifteen years.
3. What is it that has to be carried out continuously for 15 years prior to the date of the application or proceeding? It is my opinion that the activity or entitlement that must have continued for at least fifteen years is the right to use land contrary to the planning scheme, not just use of land simpliciter, because clauses 63.01 and 63.11 begin with the concept or entitlement called an existing use right.
4. Having interpreted clauses 63.01 and 63.11 in this way, namely applying the 'proof of continuous use for 15 years' to the existing use right, I have come to the conclusion that the archers do enjoy existing use rights pursuant to the cl. 63.11 amnesty principle, but the motorcyclists and the shooters do not.
5. I have come to this conclusion because it is my opinion that when the three clubs held planning permits, they did not have an entitlement called existing use rights; rather, they held planning permits. But once their respective permit expired, and they continued using the land unlawfully without the planning permission they were required to obtain, they were able to establish existing use rights because of the amnesty provisions of clause 63.11 which right accrues even if the use did not comply with the scheme immediately prior to or during the 15 year period (that is, even if the use of the land is unlawful).
6. Prior to the new VPP format planning scheme's clause 63.11, they would never have been able to accrue such a right, but now they can.
7. What the three clubs enjoyed when they held their respective planning permits is different to what the three clubs enjoyed after their respective permits expired or sunsetted. When the three clubs held their respective planning permits, they did not have existing use rights. What the three clubs enjoyed when they held their respective planning permits was a right to use the land subject to a permit and its conditions. But the three clubs enjoyed no rights under the planning scheme once their permits expired or sunsetted.
8. However, by virtue of clause 63.11, existing use rights can trigger once the clubs' respective permits expired and they continued to use the land contrary to the scheme for in excess of fifteen continuous years.
9. If I were to draw no distinction between the rights held by the clubs when they held planning permits and those held by the clubs when their permits expired (which were no rights), that, in my opinion, would be akin to drawing no distinction between occupation of land under a lease and occupation of land by over holding once a lease has expired, even though both rights are very different.
10. As I read clause 63.11 when combined with clause 63.01, it is an evidentiary provision designed to obviate the terribly arduous and costly task of tracing commencement of an existing use right prior to each change in planning controls. My interpretation of the combination of cll. 63.01 and 63.11 does not undo the intention behind this seminal new evidentiary provision.
11. Mr Garde QC submits that the interpretation contended for by the objectors requires cl. 63.11 to be read so:

If.....the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously and unlawfully for 15 years prior to the date of the application or proceeding.

1. Clearly this is not the case. In my opinion, the existing use right that has to continue for at least fifteen years is the right to use land contrary to the planning scheme. That does not mean that the activity contrary to the planning scheme is unlawful. Existing use rights mostly commence lawfully but end up contrary to planning schemes once planning controls change. That is why they accrue and are entitled to existing use rights.
2. However I do agree that a consequential effect of clause 63.11 is that the activity contrary to the planning scheme can be unlawful as in Beckman (No.2) v Port Phillip CC[21], which discusses the amnesty effect for use or development that commences unlawfully provided it has continued for at least fifteen years[22].

1. If I am wrong, then the combination of clauses 63.01 and 63.11 must be read as follows - and all the other words in the combined clauses are otiose:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

Proof of continuous use for 15 years. An existing use right may be established even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal;
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. This decision need be not much more than one sentence long: The three respective clubs, having, as agreed, used the land continuously for more than fifteen years, namely nearly twenty eight years, have existing use rights which they have not lost by virtue of the two dot provisos in clause 63.11.
2. There is no need to deal with the history of planning controls, changes to the planning controls, planning permits, expiry of planning permits or the ability to obtain planning permission under the current planning controls. In short there is no need to deal with all that took up the Tribunal's hearing time in this case.

1. Mr Garde QC submits that my construction of clause 63.11 leads to the following absurd outcome. Unlawful use for more than fifteen continuous years can be counted to achieve the amnesty under clause 63.11 (as in Beckman (No.2)[23]). But a combination of lawful use under a planning permit and subsequent unlawful use after the permit expires, for a combined total of fifteen continuous years, cannot be counted to achieve the amnesty under clause 63.11.
2. This is not an absurd outcome if clause 63.11 indeed deals with existing use rights. For, as I read clause 63.11 when combined with clause 63.01, it is an evidentiary provision designed to obviate the terribly arduous and costly task of tracing commencement of an existing use right prior to each change in planning controls. In my opinion, Mr Garde QC is confusing existing use rights with a use that has continued for more than fifteen years.
3. The following alternative absurd outcome would be created if Mr Garde QC is right and clause 63.11 is concerned with use rather than existing use rights.
4. Say a permit for a sign has a life of twenty years. It is purpose-designed to sunset or expire after that twenty years. The landowner can prove that the sign was displayed continuously for at least fifteen years under clause 63.11, therefore it has acquired existing use rights even before it has expired! Its purpose built sunset clause would be meaningless.
5. Take a different class of permits for land use, such as amusement parlours and open-air car parks, which may purposefully have a limited life. Landowners, who hold planning permits that eventually expire after, say, sixteen years, and who need to renew their planning permission under the planning scheme at the time of expiry, could claim existing use rights merely by saying: well, I've used the land continuously for the same purpose for sixteen years[24] so I enjoy existing use rights under clause 63.11 and there is no need for me to apply for planning permission even though my permit was designed to expire and the planning scheme allows me to re-apply for planning permission today.
6. Other questions arise about the extent of the rights or entitlement they enjoy. Does clause 63.05 deal with this? What if the permitted or 'controlled' land use, to adopt Mr Porter's expression, had expired many years earlier so no conditions applied? Has this become an unfettered existing use right under the 2nd dot point to clause 63.05?

HAVE EXISTING USE RIGHTS BEEN ESTABLISHED FOR EACH RESPECTIVE USE?

1. As is usual in this type of case, the planning controls changed over time, but it is agreed that the respective uses required planning permission at the time they commenced and they obtained permits pursuant to the relevant planning scheme in operation at the time.
2. It is also agreed that all three respective permits expired and all three respective uses are presently able to obtain planning permission under the Mornington Peninsula Planning Scheme.

1. When the motorcyclists first obtained planning permission on 11 June 1979, the Town Planning Appeals Tribunal[25] described the land as in an Agricultural Zone pursuant to the Shire of Flinders Planning Scheme 1962[26], and the use of motorcycle club as a discretionary use requiring planning permission.
2. Pursuant to clause 7 of this Scheme, in the Agricultural Zone private recreation grounds and motor bike track were permissible uses[27].
3. The motorcycle club use would have fallen within the characterisation of motor bike track; therefore a permissible use in the zone requiring a planning permit.
4. The motorcyclists' first planning permit[28] was expressed on its face to be in an Agricultural zone pursuant to the Shire of Flinders Planning Scheme 1962 and in and area of Special Significance Tideways Uplift pursuant to the Westernport Regional Planning Authority. It was subject to 31 conditions and expired twelve months later pursuant to its condition 30. A replacement permit No. 3752 was granted on 10 March 1981 which was subject to 35 conditions and which in turn expired five years later pursuant to its condition 30. Any new motor bike track permit application had to take into consideration noise emission or other nuisance from the use. As agreed by the parties, as a result of permit extensions, the last permit for use of the subject land for motorcycle activities expired on 10 March 1994 and thereafter the use continued without planning permission.
5. Under my interpretation of clause 63, it is critical to determine the status of each use at the date of expiry of each respective permit. Because until its respective permit finally expired, it is my opinion that each use was a permitted use, not an existing use right.
6. What were the planning controls when the motorcyclists' permit expired in 1994? On 23 December 1993, the land was reserved for Public Open Space Recreation pursuant to Am L98 to the Flinders Planning Scheme. Pursuant to clause 5.05, land at Long Point Reserve could only be used and developed in accordance with a plan prepared to the satisfaction of the Responsible Authority unless a permit was in existence. On 23 December 1993 the existing permit No. 3752 applied to the land to obviate the need for compliance with cl. 5.05. But when this permit expired on 10 March 1994, the use could only continue in accordance with a plan prepared to the satisfaction of the Responsible Authority.
7. The parties agreed that such a plan was prepared but not approved by the Responsible Authority, so the motorcyclists' use has continued without planning permission contrary to the planning scheme for the last almost fourteen years prior to the18th December 2007.
8. Since it is my opinion that the activity or entitlement that must have continued for at least fifteen years is the right to use land contrary to the planning scheme, not just use of land simpliciter, the motorcyclists' cannot take the benefit of the clause 63.11 evidentiary fifteen year proof of continuous use rule and therefore have not established existing use rights under clause 63.
9. As it is my opinion that the motorcyclists have not established existing use rights, it is not necessary for me to analyse the letter from the council to the club dated 10 February 1995.

1. When the shooters first obtained planning permission on 30 October 1978[29] private recreation grounds was a permissible use in the Agricultural Zone under clause 7 of the Shire of Flinders Planning Scheme 1962[30].
2. The shooters' use would have fallen within the characterisation of private recreation grounds; therefore a permissible use in the zone requiring a planning permit.
3. The shooters' permit was subject to 10 conditions and expired two years later pursuant to its condition 9. As agreed by the parties, replacement permits were granted, each for two ten year time limits. Pursuant to condition 4 of this last permit No. 15609, night shooting was permitted on any two Friday nights per month between 7pm and 11 pm.
4. Eventually pursuant to its condition 18, the last permit expired on 4 November 2001 and thereafter the use continued without planning permission.
5. Under my interpretation of clause 63, it is critical to determine the status of each use at the date of expiry of each respective permit. Because until its respective permit finally expired, it is my opinion that each use was a permitted use, not an existing use right.
6. What were the planning controls when the shooters' permit expired on 4 November 2001? From 6 May 1999 to the present, the Long Point Reserve was subject to the Mornington Peninsula Planning scheme and within a Public Park and Recreation Zone. Parties agreed that the shooting activities would be characterised as a minor sports and recreation facility. An outdoor recreation facility falls within the clause 75.06 nesting of minor sports and recreation facility.
7. A minor sports and recreation facility is not specifically expressed in the zone as an as-of-right use. But, pursuant to clause 36.02-1 any other use not in section 3 (i.e. not prohibited) could still be an as-of-right use, provided it met the section 1 condition which requires it to be conducted by or on behalf of the public land manager or Parks Victoria or requires it to be a use specified in an Incorporated Plan in the schedule to the zone.
8. Parties agreed that the Section 1 condition is not complied with.
9. Therefore, Mr Garde QC agreed with Mr Porter that the land uses would need a planning permit under section 2 of clause 36.02. They would become a section 2 use by virtue of clause 31.01 of the Scheme which says:

A use in Section 1 does not require a permit. Any condition opposite the use must be met. If the condition is not met, the use is in Section 2 and requires a permit unless the use is specifically included in Section 3 as a use that does not meet the Section 1 condition.

1. It is common ground that the shooters' use does not fall within the prohibited section 3 uses.
2. When the shooters' permit expired on 4 November 2001, this use required a permit pursuant to the Mornington Peninsula Planning scheme, by way of a combination of clauses 36.02-1 and 31.01. No such planning permit has been obtained, so it is my opinion that the shooters' use has continued without the required planning permit contrary to the planning scheme for the last six years prior to the 18th December 2007.
3. Since it is my opinion that the activity or entitlement that must have continued for at least fifteen years is the right to use land contrary to the planning scheme, not just use of land simpliciter, the shooters cannot take the benefit of the clause 63.11 evidentiary fifteen year proof of continuous use rule and therefore have not established existing use rights under clause 63.
4. As it is my opinion that the shooters have not established existing use rights, it is not necessary for me to analyse the letter from the council to the club dated 10 February 1995.

1. In 1980, archery would have been characterised as a use within the recreation use group requiring permission under column 4 of the zone.
2. When the archers first obtained planning permission on 27 October 1980, their permit was expressed on its face to be in a Tideway Uplift zone pursuant to the Shire of Flinders Planning Scheme 1962 and expired after two years. The parties agreed that this permit, which was subject to thirteen conditions, expired on 27 October 1984 after one extension was granted and thereafter the use continued without planning permission.
3. Under my interpretation of clause 63, it is critical to determine the status of each use at the date of expiry of each respective permit. Because until its respective permit finally expired, it is my opinion that each use was a permitted use, not an existing use right.
4. What were the planning controls when the archers' permit expired in 1984? From 1979 until Am L98 in 1993, the subject land was zoned Tideway Uplift, so that when its permit expired it would still have required a planning permit. No such planning permit has been obtained, so it is my opinion that the archers' use has continued contrary to the planning scheme for the last twenty three years prior to the 18th December 2007.
5. Since it is my opinion that the activity or entitlement that must have continued for at least fifteen years is the right to use land contrary to the planning scheme, not just use of land simpliciter, the archers can take the benefit of the clause 63.11 evidentiary fifteen year proof of continuous use rule and have established existing use rights under clause 63.
6. As it is my opinion that the archers have established existing use rights, it is necessary for me to analyse the letter from the council to the club dated 10 February 1995.

Clear and unambiguous written direction for the use to cease

1. An existing use right may be established under clause 63.11 even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless.....during the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.
2. Did a letter from the council to the Mornington Peninsula Bowmen Inc.[31] dated 10 February 1995 amount to a clear and unambiguous written direction for the use to cease?
3. The letter was written in 1995, therefore during the fifteen year period which commenced when the archers' permit expired on 27 October 1984.
4. Mr Garde QC submitted that this exception to the 15-year amnesty only applies to uses and not to written directions to cease building, development or works. Deputy President Gibson in Kraan said:

Existing use rights relate to use of the land not the development of land[32].

1. If Mr Garde QC is correct, that is the end of the matter because the letter addresses works, not use.
2. The letter dated 10 February 1995 enjoined the archers to stop 'works' which had occurred on the subject land and not to use or occupy any of the areas which are yet to obtain approval until planning and building permits were obtained[33].
3. Although in a Memorandum dated 9 February 1995, council's planning officer noted his concern that damage had occurred to significant vegetation in the area used by the Bowmen's Club, the letter does not identify unlawful works in any specific area occupied by the archers. The archers did not respond to that letter.
4. It is my opinion that this letter dated 10 February 1995 did not amount to a clear and unambiguous written direction for the use to cease for what had by then become an unlawful but existing use of land for the purposes of archery. At most, it only related to works, but I cannot tell the extent of those unlawful works. Therefore the exception to the establishment of existing use rights under cl. 63.11 is not made out by the objectors.
5. Since proof of continuous use for 15 years is established under clause 63.11, the archers have established existing use rights under clause 63.01 of the Mornington Peninsula Planning scheme.
6. I purposefully do not comment on the extent of this existing use right under clause 63.05 because I am not asked to do so. No enforcement proceedings have been commenced against the archers.

1. The Tribunal declares pursuant to the Planning and Environment Act 1987, s. 149A, that in respect of the area on the plan marked A entitled "Use of Long Point Reserve for Archery", an existing use right for the purpose of archery has been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and therefore does not contravene that Scheme.
2. The Tribunal declares pursuant to the Planning and Environment Act 1987, s. 149A, that in respect of the area on the plan marked B entitled "Use of Long Point Reserve for Shooting", an existing use right for the purpose(s) of a gun range and target shooting activities has not been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does contravene that Scheme.
3. The Tribunal declares pursuant to the Planning and Environment Act 1987, s. 149A, that in respect of the area on the plan marked C entitled "Use of Long Point Reserve for Motorcycles", an existing use right for the purpose(s) of motorcycle events and activities has not been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does contravene that Scheme.
4. Directions will be made in respect of Enforcement application no. P3279/2007 to determine listing date(s) and to discuss any other matters concerning the continuing conduct of the proceeding, including costs.

[2] Patterson Road, Boneo Road, Rogers Road, Bass Vista Boulevard, Birdswood Court and Long Point Road.

[3] Gazetted on 28 March 1979 by Amendment 119. Part of the land was also included in a Natural Systems Unit Bushland Class C.

[4] Because they did not enjoy existing use rights

[5] [2006] VCAT 1629 @ paras 29 & 30.

[7] [2006] VCAT 1629 @ para 32

[8] [2006] VCAT 1629 @ paras 29 & 30.

Deputy President Gibson held that clause 63 did not preclude Mr Kraan from relying on existing use rights in an s.121 application to cancel or amend an enforcement order.

[9] Pursuant to the Planning and Environment Act 1987, s. 121

[10] Cardinia SC v Kraan [2004] VCAT 2624 (23 December 2004)

[12] Byard Code Porritt and Testro @ paragraph 431,450

[13] Alexopoulos v Moonee Valley CC [2007] VCAT 2473 (31 December 2007)

[17] [2003] VCAT 1524

[18] [2006] VCAT 1629

[22] and the two dot provisos in clause 63.11 do not apply

[25] RDMC v Westernport Regional Planning Authority and Shire of Flinders & Ors. Appeal Nos. X78/1591C; X78/1778C dated 29 May 1979 @ page 2 per Members Robinson, Lea and Watt.

[27] The Scheme defined non conforming uses as:

Such existing use of any land or building which, had it been commenced after the approval date would have been a use not in conformity with the provisions of the zone within which it is located.

Pursuant to the Scheme, nonconforming uses were protected and could continue.

[32] [2006] VCAT 1629 @ para. 54

[33] The same letter was sent to the shooters and motorcyclists