Nepean Clay Target Club Inc. & Rosebud & District Motorcycle Club

Ackerman & Ors v Mornington Peninsula SC [2010] VCAT 911

1. In application P2845/2008 pursuant to section 149A of the Planning and Environment Act 1987 I make the following declarations:
   • (a) 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 been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Scheme;
   • (b) 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 been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Scheme.
2. The 'plan' referred to in these Orders is the relevant plan attached to the section 149A application.
3. Costs reserved.

1. In application P3279/2007 the application for an enforcement order is dismissed.
2. Costs reserved.

1. By no later than 30 June 2010 any party wishing to make any application for costs in respect of the proceedings must file with the Tribunal and serve on each other party to the matter details of the application for costs together with submissions supporting its application.
2. By no later than 15 July 2010 any party against whom an order for costs is sought must file with the Tribunal and serve on each other party to the matter any submissions it wishes to make in respect of the application for costs and indicate whether it seeks a hearing before the Tribunal in respect of the application for costs.
3. The Tribunal will determine the matter on the basis of written submissions filed and served by the parties unless it determines that a further hearing is required either in response to an application made by a party or according to its own determination.

Mr Craig Porter of counsel, instructed by Graeme Johnson

Mr Greg Garde QC and Ms Sarah Porritt of counsel, instructed by Russell Kennedy

Ms J Lardner of counsel, instructed by Wollerman Shacklock

P3279/2007 - section 114 Planning and Environment Act 1987

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

Application for enforcement order by neighbours to restrain council from allowing Long Point Reserve to be used at any time for the purposes of:

• Motor cycle events or activities of any kind.
• Gun shooting events or activities of any kind.

Application by council for declaration that the land enjoys existing use rights for the purpose of motor cycle events and gun shooting events, as well as for archery.

1. The hearing before me is a result of an order made by Pagone J[1] of the Supreme Court remitting the proceeding to the Tribunal for further hearing and determination in accordance with law. The proceeding is application P2845/2008, which is an application for the following declarations:
   1. 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 been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Scheme;
   2. 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 been established pursuant to clause 63 of the Mornington Peninsula Planning Scheme and does not contravene that Scheme.[2]
2. The declaration proceeding involves the issue of whether there are existing use rights to use the Long Point Reserve at Cape Shank for the purpose(s) of a gun range and target shooting activities, and for the purpose(s) of motorcycle events and activities.[3] The declaration proceeding follows an enforcement order application by nearby residents that Long Point Reserve is being used for these purposes contrary to the provisions of the Mornington Peninsula Planning Scheme.
3. By agreement between the parties, the declaration application was heard first by the Tribunal[4] before the enforcement proceeding on the basis that if existing use rights did exist, they were a defence to the enforcement order application. Member Komesaroff determined that the land did not have existing use rights and there was a contravention of the planning scheme.[5]
4. The council appealed to the Supreme Court. By judgment dated 27 June 2009 in Mornington Peninsula Shire Council v Anderson and Others[6], Pagone J made orders that the appeal was allowed and set aside the Tribunal's orders that existing use rights for the purpose(s) of gun range and target shooting activities, and motorcycle events and activities had not been established and use for those purposes contravened the planning scheme.
5. Having regard to His Honour's decision, the council and the user groups (in particular, Rosebud and District Motorcycle Club Inc) submitted that I should make declarations that the land did enjoy existing use rights and to dismiss the enforcement order proceeding.

1. However, the residents contend that I should not make these declarations, but instead make the same declarations as previously made by Member Komesaroff but on a different basis.[7] They say, in effect, that both Member Komesaroff and Pagone J failed to properly address the arguments put by the residents regarding the way in which the uses should be characterised for the purpose of clause 63 of the planning scheme. Accordingly, although the Tribunal's decision was set aside, the findings made by Pagone J that the land did enjoy existing use rights cannot bind me when considering arguments that neither the Tribunal or the Supreme Court addressed. This position was summarised by the residents in their outline of submissions dated 6 November 2009 as follows:
   1. It will respectfully be submitted on behalf of the residents, that although the Tribunal must now re-determine the Council's application in accordance with law, and taking care to accord with His Honour's reasons, those reasons will be seen to be very limited. They do not constitute a blueprint, laying down the critical path to be followed. They leave the Tribunal pretty much at large, on the issues between the parties which now need to be re-decided.
   2. In particular:
      1. the first ground referred to by His Honour did not resolve the issue between the parties with regard to the characterisation of the use as at 18 December 2007 by reference amongst other things, to conditions or restrictions, in accordance with Clause 63.02;
      2. the second ground did not resolve the issue between the parties with regard to the characterisation of the non-conforming uses so created, and whether or not they were independent of the existing permit, and able to continue after the expiry of the existing permit.
2. At the hearing on 10 December 2009, Mr Porter, on behalf of the residents, did not produce a written submission but relied on oral argument. I found it difficult to follow his line of reasoning or to fully appreciate the distinctions between the way his arguments were characterised by the Tribunal and the Supreme Court, and the way in which he was now presenting them and as he says they had been originally presented by him.
3. In order to ensure that I properly understood what was being put to me by the residents on this point, I directed them to file and serve a full written statement of the submissions and arguments they rely upon in support of the orders they seek in this proceeding, namely that the applications for declarations in relation to motorcycling and shooting be dismissed. Leave was given to the other parties to respond. That has now occurred. My decision is based on this material as well as on material previously submitted and submissions made at the hearing.
4. I have not found the further written submission by the residents particularly helpful. Much of it consists of a recitation of facts, submissions put in the earlier proceedings, the decision of the Tribunal, and Pagone J's judgment. It is still not clearly articulated as to why the residents say their arguments put before the Tribunal and then before His Honour have not been dealt with or why I should make findings contrary to the explicit findings by Pagone J on the basis that they constitute obiter dicta and are not necessarily binding on me.
5. The residents say that:

"The appeal to the Supreme Court was heard and decided without specific reference to the Council's grounds of appeal."

1. The residents do not elaborate on what the grounds of appeal were that were not specifically referenced. It seems to me that if the residents believe Pagone J made an error of law, then their correct remedy is an appeal to the Court of Appeal. I do not accept that they can return to the Tribunal and argue that I should disregard the Supreme Court judgment because, in some way, it was flawed or deficient.
2. It is not in contention that Pagone J allowed the appeal on two grounds (although I would dispute the residents' contention that they were "two very limited grounds").
3. He found that[8]:
   1. Existing use rights in respect of both the shooting and motorcycle uses existed under clause 63.11 because the uses have been carried out continuously for 15 years prior to the relevant date.
   2. Existing use rights in respect of the shooting and motorcycle uses are also established under the first dot point of clause 63.01, namely the use was lawfully carried out immediately before the approval date (which for present purposes is the introduction of the Mornington Peninsula Planning Scheme on 6 May 1999).
4. As I understand it, the residents contend that the point which the Tribunal and the Supreme Court failed to consider properly was how the uses should be characterised for the purpose of assessing the extent of any existing use right having regard to clause 63.02. They say that there is a difference between characterisation of the uses as shooting and motorcycles[9] without constraint, which the residents accept is the way in which the land was being used at the relevant date[10], and the uses as conducted pursuant to the permits. The residents say that characterisation of the uses falls into two distinct periods and differs between each period. When the uses were being conducted pursuant to the permits, they were subject to conditions. Under clause 63.02 they must be characterised by the purpose of the actual use, subject to any conditions in the permits. After the expiry of the permits, they were no longer subject to those conditions and therefore the uses can be characterised as being without constraint insofar as they are not subject to conditions in the permit. However, they say the uses unconstrained by conditions have not continued for a continuous period of 15 years prior to the relevant date. They have only continued since the permits expired in 1994 and 2001 and this is a lesser period than 15 years. Hence continuous use has not been established under clause 63.11.
5. In my view, this argument is misconceived for the following reasons.

1. Existing use rights are created by the provisions of clause 63.01 of the planning scheme. They are not created by permits nor by the Planning and Environment Act 1987, although some existing use rights are protected by the Act in terms of section 6(c) which provides that the planning scheme cannot prevent the continuation of certain uses.[11]
2. Clause 63.01 sets out five circumstances in which an existing use right is established in relation to use of land. The two relevant circumstances in this case are:
   • The use was lawfully carried out immediately before the approval date (6 May 1999); and
   • Proof of continuous use for 15 years is (prior to 18 December 2007) established under Clause 63.11.
3. In the present case, it has always been the council's primary contention (and that of the user groups) that existing use rights are established under the fourth dot point of clause 63.01, namely that proof of continuous use for 15 years is established under clause 63.11.
4. In characterising the use of land for the purpose of clause 63, clause 63.02 is relevant. It provides as follows:

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

1. Clause 63.02 provides that the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date (ie the relevant date).
2. When considering clause 63.11, the relevant date is the date the enforcement application was made (18 December 2007). In the present case, there were no conditions or restrictions applying to the shooting or motorcycle uses at the relevant date because there were no permits in existence at that time. Therefore, the use must be characterised at the relevant date by reference to the purpose of the actual use of the land at that time.
3. The concept of the purpose of use is articulated in a range of well established authorities. As the Full Court stated in City of Nunawading v Harrington[12]:

The purpose of the non-conforming use is to be characterized by the appropriately designated purpose of the actual use at the approval date and not by its classification in the list of prohibited purposes such as is to be found here in Column 5 of the PSO: Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529. That appropriate designation of purpose is a question of fact to be determined 'by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date': Shire of Perth v O'Keefe at p.535.[13]

1. The Full Court also stated in City of Nunawading v Harrington[14]:

In the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: see Mason ACJ, Deane and Dawson JJ in Dorrestijn v South Australian Planning Commission;[15] Parramatta City Council v Brickworks Ltd;[16] Woollahra Municipal Council v Banool Developments Pty Ltd.[17]".

1. Thus, as Pagone J says about the words of clause 63.11[18]:

[9] ... The clause is designed to facilitate the establishment of a use right. It does so by making as its only condition for application that "the use has been carried out continuously for 15 years" prior to a relevant date. The use to be enquired into is the actual use rather than to any legal or other use. This view is consistent with long established authorities that actual use determines the appropriate designation of a purpose for "existing use" or "non conforming use" rights.[19] What clause 63.11 requires is an enquiry into the actual use of the land over a period of time rather than an inquiry into how, why or the basis upon which that use may have been conducted. ...

1. Having regard to the agreed statement of facts by the parties, upon which the case proceeded before the Tribunal and the Supreme Court, I find that the uses of the subject land at the relevant date can be characterised as uses for the purpose of a gun range and target shooting activities, and uses for the purposes of motorcycle events and activities. I further find that even when uses on the land were conducted under the various permits, the uses of the land can still be characterised as uses for these purposes. Whilst the uses may have been subject to conditions when the permits were operative, this does not affect the characterisation of the use in terms of the purpose of the actual use.
2. When characterising the use of land for the purpose of establishing the extent of an existing use right, it is important to distinguish between the purpose of the actual use and any conditions or restrictions applying to the use. The purpose of the actual use is not to be characterised by reference to any conditions, although the use may be subject to conditions or restrictions. In other words, there is a distinction between the way in which a use may be characterised and the conditions or restrictions to which that use may be subject. In my view, this is the effect of clause 63.02. This effect is reinforced by reference to the second dot point of clause 63.05, which provides:

63.05 Sections 2 and 3 uses

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

• Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

1. Clause 63.05 refers to any condition or restriction "to which the use was subject". It draws a distinction between the use for which an existing use right is established and any condition or restriction to which this use is subject.
2. Bearing this distinction in mind, I do not accept the distinction relied upon by the residents, which is that the purpose of the use of Long Point Reserve must be characterised in two different ways - its use during the time when permits were applicable and its use after the permits expired. At all times, the purpose of the actual use was the same.
3. For the purpose of establishing an existing use right in accordance with clause 63.11, I find that the uses of the relevant portions of Long Point Reserve for the purpose of shooting and motorcycles have been carried out continuously for 15 years prior to the date of the enforcement proceeding. I find that the provision in clause 63.02, which provides that the characterisation of the use of land is subject to any conditions or restrictions applying to the use at the relevant date, is not relevant in this case to the existing use rights established under clause 63.11.
4. This qualification in clause 63.02 may be relevant to the circumstance where an existing use right is established under the first dot point of clause 63.01 namely that the use was lawfully carried out immediately before the approval date. Reliance on this particular circumstance to establish an existing use right raises different issues to reliance on proof of continuous use for 15 years under clause 63.11.
5. The first dot point of clause 63.01 was discussed by the Tribunal in Fosters Group Ltd v Mornington Peninsula SC[20] where the Tribunal said:

[69] The first dot point in clause 63.01 - the use was lawfully carried out immediately before the approval date - will often apply in situations where the use was being carried out under a permit, which was lawfully granted before the planning scheme was amended. It may also apply in situations where the use being carried out did not require a permit under the planning scheme (i.e. it was a Section 1 use) ...

[71] If the establishment of an existing use right is one that depends on a permit for the use having been granted, it is the use in the permit, subject to any conditions or restrictions in the permit applying to the use, that characterises the extent of the existing use right. Under clause 63.02, the extent of the existing use right is constrained by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date. In the case of a permit, the conditions or restrictions applying to the use would be the conditions in the permit. In the case of a Section 1 use, the conditions or restrictions would be the conditions or restrictions applying to the use under section 1 or other provision of the planning scheme (eg. definition or particular provision).

[72] For this reason, although it is common to say that a permit establishes an existing use right or that land has an existing use right under a permit, we do not consider this is strictly correct. The correct analysis is that an existing use right may exist under clause 63.01 of the planning scheme because the land was being lawfully used under a permit at the time when the scheme changed and that one needs to look at the permit to assess the extent of the existing use right.

1. Thus if the council (and the user groups) had only relied on the first dot point of clause 63.01 to establish existing use rights, the qualification in clause 63.02 relating to any conditions or restrictions applying to the use of the land may arguably have been relevant. However, it is not necessary for me to consider whether existing use rights have been established under this provision because I have already found that they have been established under clause 63.11.
2. In any event, Pagone J considered this issue (even though Member Komesaroff had not) and specifically found that: "The uses were ... non-conforming uses under clause 1.05(a) [of the Flinders Planning Scheme] and therefore lawful immediately before the approval date for the purposes of the scheme as at 6 May 1999."[21]
3. On the basis of this very specific finding by his Honour, it is not appropriate for me to depart from this finding or to embark on an independent analysis of whether his Honour was correct. If the residents considered that this aspect of his Honour's decision was wrong, they should have appealed against his decision. They did not do so.
4. In their written submission, the residents submitted "that on a fair reading of Amendment L98 (clause 5.05) and Clause 1.05(a) ... the uses did not become non conforming uses by virtue of Amendment L98, or anything referred to in the passage from his Honour's judgment". They go on to submit that the reasoning in paragraph 15 of the judgment "should be regarded as clearly obiter dicta, ie. in the sense of not being necessary for the purposes of deciding the case and accordingly not possessed of the binding weight to be given to the judgment."
5. Whether or not it was necessary for Pagone J to make the finding that he did about whether the uses were lawfully carried out immediately before the approval date is not relevant to my decision for the reasons I have previously stated. No matter how the residents seeks to characterise his judgment, I consider it is clear that he decided that Long Point Reserve had existing use rights for the purpose of shooting and motorcycles because there was proof of continuous use for these purposes for 15 years established under clause 63.11. Independently of what Pagone J found, I have considered the residents' submissions about characterisation of the uses and have also found that existing use rights are established under clause 63.11. This is all that is necessary for me to make the declarations, which the council seeks.
6. The residents raised arguments about absurdity, which they said would flow if clause 63.11 could be used to defeat the permit conditions pursuant to which a use had been conducted for more than 15 years, on the ground that after the expiry of 15 years, the use would have acquired existing use rights pursuant to which it could continue indefinitely without restriction.
7. The residents acknowledged that both Pagone J and the Tribunal dealt with the issue of absurdity, but they say that neither dealt with in any length if at all with the situation referred to above.
8. It is not necessary for me to deal with these submissions. Nothing new has been raised on this issue by the residents that has not already been addressed or that is relevant to my decision having regard to what Pagone J has said.

1. The residents conceded that if the Tribunal is prepared to make the declaration sought it follows that the application for an enforcement order must fail.
2. Although application P3279/2007 is adjourned to an administrative mention, I do not consider that there is any point in not disposing of it now. I therefore propose to reject the application.

1. Costs have been reserved in these proceedings throughout their consideration by the Tribunal. I propose to reserve costs again and make directions about any costs applications. Failing agreement, the question of costs will be determined on the papers.

[1] Mornington Peninsula Shire Council v Anderson & Ors [2009]VSC 301

[2] The plan referred to is attached to the original section 149A application lodged with the Tribunal.

[3] It has been established and is not in contention that the Long Point Reserve enjoys existing use rights for archery. The Tribunal made a declaration to this effect in the order dated 21 December 2009

[4] Consisting of Senior Member Baird and Member Komesaroff. Under section 149A(4) of the Planning and Environment Act 1987, the declaration proceeding was decided by Member Komesaroff as a legal member.

[5] Ackerman & Ors v Mornington Peninsula SC [2009] VCAT 66

[6] [2009] VSC 301

[7] I note that nowhere have the residents articulated the specific declarations, which they say I should make. I have inferred the declarations they wish me to make on the basis of the submissions they made to me at the hearing and subsequently in writing.

[8] [2009] VSC 301 at [13] - [15]

[9] I use the terms "shooting" and "motorcycles" as abbreviations for the more fulsome description of these uses in the application for declaration, "gun range and target shooting" and "motorcycling events and activities".

[10] ie. the date the enforcement order application was made, which was 18 December 2007.

[11] Fosters Group Limited v Mornington Peninsula SC [2010] VCAT 104 at [68]; Kraan v Cardinia CC [2006] VCAT 1629 at[28] - [29]

[12] [1985] VicRp 64; [1985] VR 641 at 644

[13] Existing uses falling under cl.63 of the present planning scheme may be non-conforming uses in the strict sense, i.e. uses which are prohibited under the scheme but have prior use rights, or they may be permissible uses which have prior use rights.

[14] [1985] VicRp 64; [1985] VR 641 at 645

[15] [1984] HCA 76; (1984) 56 ALR 295 at 300.

[16] [1972] HCA 21; (1972) 128 CLR 1 at 25.

[17] [1973] HCA 65; (1973) 129 CLR 138 at 144.

[18] [2009] VSC 301

[19] See Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); Stonnington City Council v Southern Property Corporation Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1, 9 (Osborn J)

[20] [2010] VCAT 104.

[21] [2009] VSC 301 at [15].