The mixed use function of this building being home office will also assist the economic development and complement the mixed-use function of Napier Street.

1. There was then reference to the objective of the home occupation policy involving the conduct of business from a place of residence. It is said that the home office is not inappropriate and will be used as an architectural drafting and design office. The section then goes on to discuss the Good Design Guide then applicable. The Good Design Guide was only relevant to dwellings and would be irrelevant if this was to be an office. It is claimed :

In conclusion, the proposed development of land at 73 Napier Street for the use and development of a dwelling and home office, sufficiently meets and at all times exceeds the requirements as specified in the Moonee Valley Planning Scheme.

1. Perhaps it goes without saying that use of the development as office would directly contravene that Planning Scheme. The submission is over the name Giovanni Gattini.
2. The Responsible Authority through one of its planning officers wrote to John Alexopoulos care of Gattini and Partners on 19 June 2000 asking for further information in relation to the application seeking :

Detail as to the proposed office component, including expected number of employees (and whether they will live on site), hours of operation and nature of the proposed office.

1. The reply on letterhead of Gattini and Partners Pty Ltd and signed by Peter Carapellotti dated 21 June 2000 states that the existing office on site employs two full time staff and that the number of staff is not expected to increase in the new building. It goes on to say 'The Applicant presently does not live at the site, however intends to reside in the new building', The Applicant was, of course, John Alexopoulos.
2. Subsequently Planning Permit MV/12086 was issued in relation to that permit on 7 August 2000. It states that permission is granted in the following terms :

THE PERMIT ALLOWS FOR: Development of double storey dwelling & to use part as Home Occupation (site under 300 sqm) in accordance with Endorsed Plans[11].

1. The permit contains nine conditions. The second requires the layout of the site, the site's design and location of buildings and works to be in accordance with the endorsed plans and that they must not be altered or modified without the further consent of the responsible authority. Condition 7 provides that no more than 2 people who are not permanent residents of the building, should be employed on site at any one time. Plans were endorsed in relation to the permit on 21 September 2000. They show a two storey building. On the ground floor at the front there is an office of 45.4 m2. Behind it there are two bedrooms with built in wardrobes and behind that a garage. Also on the ground floor there is a sink, shower and hand basin. On the first floor there is a large living area including a kitchen, family and meals area and lounge behind the first floor deck looking out over Napier Street. Behind that there are two more bedrooms (making four in all), both with built in wardrobes. There is also a bathroom containing shower, washbasin and toilet. The plans also indicate washing machine, storage, refrigerator, kitchen sink, kitchen bench and stove.
2. On 3 February 2001 John Alexopoulos applied as owner of the land for a building permit for construction of a new building which he intended to construct as an owner-occupier. The intended use of the building is 'HOME OFFICE'. The application is signed by John Alexopoulos. Subsequently on 22 May 2001 building permit 01/0407 was issued to John and Shelley Alexopoulos to construct a dwelling and attached garage. The number of dwellings is given as one and the project classification as '1a(i), 10(a)'. Class 1a means single dwelling attached house. Class 10(a) means a non-habitable dwelling being a private garage, carport, shed or the like. There is no mention on the permit of Class 5 which refers to an office building used for professional or commercial purposes.
3. In the mean time on 21 March 2001 Gattini and Partners Pty Ltd in a letter signed by Peter Carapellotti wrote to the Council seeking to amend the approved plans under the building permit. The new plans involved a rearrangement but still with a single room to be used for office purposes. It is relocated to the first floor. There is no indication of its area on the copy provided to me although it appears to be a little larger than the equivalent on the originally endorsed plans. The ground floor is shown to be occupied with three bedrooms, meals and living room, kitchen facilities, bathroom facilities and garage. On the first floor, in addition to the office room, there are two more bedrooms, a meals area, bathroom, kitchen facilities including sink, stove and refrigerator and storage areas. These alterations were regarded as minor amendments and approved pursuant to section 62(3) PE Act as advised in the Council's letter of 17 April 2001.
4. Various other documents relating to building insurance, certificate of final inspection, occupancy permit, supplementary rate valuation etc refer to the land, the applicants or their company and the project being for a dwelling.
5. The original building was vacated and the business conducted there relocated to other premises for a number of months while the original building was demolished and the new building was constructed.
6. On 23 February 2007 Gattini and Partners Pty Ltd wrote to the Council on behalf of the applicants claiming existing use rights for the purpose of 'office' and seeking some confirmation thereof. Under a subheading 'Recent Site History' the following appears:

The current owner and occupier of the site, Mr John Alexopoulos, took possession of the site on or about 25 June 1990. At that time the site was occupied by a single storey weatherboard dwelling. The building was built to the boundaries of the site at the Napier Street end of the allotment. It is highly likely that the building was used for commercial purposes, such as a corner store, with an attached dwelling.

The building remained unchanged until August 2000 when the building was demolished and the current two storey brick building was constructed pursuant to planning permit MV/12086. This permit allowed for a double storey dwelling and the use of part of the building for 'Home Occupation'.

The owner of the land has provided written advice to the effect that since possession of the site until present day the site and the buildings upon it have been used exclusively for the purpose of an 'Office'. The office catered for a drafting service involving a number of contractors as well as a building construction company.

1. The letter goes on to observe that office is a prohibited section 3 use and to refer to the 15 year rule provisions in clause 63. It continues :

The 15 year period of existing use has been established by on-going record of the use of the land as an 'office'. The owner and occupier, Mr John Alexopoulos, has provided a written statement to the effect that :

We initially purchased the property on 25 June 1990.

We occupied the original building until August 2000, at which stage we demolished the old weatherboard office and constructed the existing building.

From the date of purchase to this date (over 16 years), we have continually used the whole of the premises for Office use.

At no stage during the 16 years of occupation did we cause a nuisance to any neighbouring properties or (have been) challenged by a court or by the Responsible Authority.

The letter goes on to mention two Tribunal decisions said to be relevant. They are not relevant. I will mention them later.

1. There followed some communications and reference to evidence culminating in a reply from the Responsible Authority dated 28 June 2007. It included the sentence :

From the information you have provided it appears that the current and former dwelling building on this land has not been used as a dwelling since 1990 but has been used solely as an office.

1. This is not quite the unqualified acceptance of that proposition subsequently claimed on behalf of the applicants. The letter does not accept that existing use rights for an office have been established. It refers to clause 63.10 in relation to 50% of floor area having been destroyed and the circumstance that this, in the absence of a further planning permit, destroys existing use rights and requires the use of land to comply with the planning scheme. That is correct in the absence of a further planning permit. No such further planning permit in fact exists. The letter also refers to a case named as 'Simons Gilbert v Stonnington CC (2003)'. That is a misnaming of a decision of mine namely Simons v Stonnington CC[12]. This misnaming and date, without citation, appears in subsequent documents on behalf of the applicants, including their written submission for the hearing in this case. The letter concludes that the Responsible Authority has reviewed the other decisions mentioned on behalf of the applicants but remains of the same opinion. It also recommends that the applicants seek their own legal advice in the matter and perhaps seek a declaration under section 149A(2)(a).
2. The applicants have applied for a declaration under section 149A but apparently ignored the suggestion of seeking legal advice. That is, perhaps, unfortunate. A declaration is a legal judgement as to questions of law and fact. It is more akin to other legal proceedings than a Town Planning merits review of a type more commonly handled before the Tribunal by Town Planners.

The Argo Hotel Case and Other Cases Cited by the Applicants

1. Stonnington CC v Abgol Pty Ltd[13] (also referred to as the Argo Hotel case) is cited on behalf of the applicants for the proposition that, if land is used for a purpose, (in that case a hotel) and there are existing use rights to use the land for a hotel, then the whole of the land is used for that single purpose and it is not correct to break the land up into little portions and attribute existing use rights in relation to various activities forming part of the use as hotel to those parts. The proposition is perfectly correct. It is correct, but has no relevance to the present case. There is no issue in this case similar to the one that was raised in that case.
2. Check v Frankston CC[14] is 'referred to'. I might have expressed myself in a different way, but I do not need to deal with the case here because, as with the Argo Hotel case, it does not relate to any issue in the present case. The reasons in the Argo case refer to a proposition in City of Nunawading v Harrington and Others[15]. I have no quarrel with the quotation from Harrington's case, but again it does not relate to an issue in the present case.

Clause 63.10 Damaged or Destroyed Buildings or Works

If at least 50 percent of the gross floor area of a building or at least 50 percent of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with the scheme, unless a permit is granted to continue the use, and to construct or carry out building or works."

1. 100 percent of the gross floor area of the building on this land was damaged and destroyed when it was demolished in 2001 to make way for the new two storey brick building that has now been constructed on land. The result is that, as from that destruction, the land must be used in conformity with the scheme. Conformity with the scheme means that it can be used for a dwelling in accordance with its Residential 1 zoning, but not for the prohibited use of office. A home occupation office, associated with the use of the land as a dwelling, and conforming with all of the constraints on home occupation, would conform with the scheme. Use as at present, and as now claimed to be have been carried on since 1990, as an office in accordance with the planning scheme definition and not in association with the dwelling, is prohibited and not in accord with the scheme. No permit has been granted pursuant to Clause 63.10 allowing continuation of the use. Of course such a permit could only be granted, and would only have effect, if there was an already established existing use right. The issue in this case as to whether any such right has ever been acquired.
2. In Simons v Stonnington CC and others[16] I gave a ruling on a question of law concerning Clause 63.10 that was referred to me. This is the case previously mentioned as having been misnamed Simons Gilbert v Stonnington CC (2003). The question raised the point as to whether damage or destruction in clause 63.10 included instruction by deliberate demolition. At paragraph 12 I said:

[12] I am satisfied that for the land to be used in conformity with the scheme includes the notion that it will be used in conformity with the relevant zone control provisions. In other words, if the existing use right is lost by the destruction of more than 50% of the gross floor area of the building, then the land must be used in conformity with the scheme, including the zone controls. Even if this land was currently being used for an office, in the event of at least 50% of the gross floor area of the building was destroyed, the use would have to stop, because office is prohibited in the Residential 1 Zone unless a permit for the continuation of the use is granted under Clause 63.10.

1. In paragraphs 15 and 16 of the reasons in the Simons case I said:

[15] It was suggested that Clause 63.10 does not apply because the word "damage" and the word "destroyed" connote accidental damage or destruction, or at least damage or destruction by some means other than deliberate demolition.

[16] I am satisfied that this submission is incorrect and I have decided to that effect in previous cases, although there (sic, that), may well have been before the coming into operation of the new Victorian (see Victoria) Planning Provisions. Mr Scally submits that the draftsperson of Clause 63.10 could and should have referred to demolition specifically if that was intended to be covered. In fact, the person who drafted this provision was not drafting it afresh, but was translating it from previous terms into the so-called "plain English" drafting style. In any event I consider the plain and ordinary meaning of "destroy", "destroyed" and/or "destruction" to include destruction by demolition. Demolition is merely one way in which more than 50% of the floor area of a building may be damaged or destroyed. Furthermore, this understanding is in accordance with the purposes of and the principles underlying existing use provisions in planning schemes, including this planning scheme, and including this particular provision in this planning scheme. It recognises that it is in accordance with the purposes of the planning scheme that land uses within the various zones should ultimately be in accordance with the zone control provisions of those zones and that substantial destruction of the building and works necessary for a non-conforming use (i.e. an existing prohibited use) can be the appropriate occasion for change to a conforming use. So far as that is concerned, it makes no difference whether the destruction is accidental or deliberate. If the existing buildings have become so obsolete or inappropriate that their demolition is proposed, that is just as much an opportunity and indicator that the time for complying with the planning scheme has arrived, as if the destruction was by some accident.

1. I remain satisfied with what I said in Simons case to the effect that deliberate demolition is destruction for the purposes of clause 63.10, just as much as destruction by accident or other means. Applied to the present case, this means that any existing use right to use the land for office was lost by that destruction. That is not to say that any such right existed at that time, but if it did, it did then.
2. Mr Coleiro on behalf of the applicants, having referred to Simons case sought to distinguish it. The points of distinction he raised are not material and the principle in Simons case applies to the present one.
3. He said that Clause 63.10 does not automatically extinguish existing use rights. In the absence of a permit granted under Clause 63.10, that is exactly what it does do. The submission is simply as perverse as saying that black is white.
4. He submits that Clause 63 has to be considered in its entirety. I agree. That is what I have done.
5. He submits that if Clause 63.10 was to be taken as an impediment to the establishment of an existing use right under Clause 63.10 it would be structured accordingly. Clause 63.10 is not concerned with and does not impede the establishment, or proof of the establishment of existing uses rights. It is concerned with their cessation on the destruction of more than 50% of floor area, or their possible continuation pursuant to a permit.
6. Mr Coleiro also referred to Stafford v Yarra CC[17] in paragraph 10 of the reasons in that case my decision in Simons was referred to and approved. Indeed, that paragraph may be the origin of the misnaming of the case, although the citation is correct[18]. Mr Coleiro referred to it in relation to some discussion as to whether Clause 63.10 might relate to the entrenchment of an existing use right. I am not sure whether he has correctly understood the case on this point. At paragraph 21 of the reasons in Stafford, it is said that one of the big issues was whether the granting of a permit for total redevelopment of the site and the continuance of the residential use would entrench the residential use. The Tribunal continued -

While Ms Lane submitted this would be so, Mr Pitt took a contrary view saying that Clause 63.10 actually contemplates the entrenchment of existing use rights by its very nature.

The Tribunal was correct in saying that this was an issue in a case where a permit under Clause 63.10 was sought. Ms Lane is right in saying it raises the question as to whether such entrenchment as would be implicit in the granting of the permit is desirable, or whether the stage had been reached where the planning scheme should now be complied with. Mr Pitt was also right in observing the grant of a permit would entrench such uses. The real question was whether the permit should be granted, rather than whether the result of granting it should be described as entrenchment. All this is interesting, but beside the point so far as the present case is concerned. The present case is not an application for a permit under Clause 63.10.

1. In any event there are no existing use rights to use the land as an office. The requirements of the 15-year rule are not satisfied on any view of the evidence in this case. Clause 63.1 provides that an existing use right is established in relation to the use of land under the planning scheme if any of several circumstances apply. One of them is

Proof of continuous use for 15 years is established under Clause 63.11.

1. Clause 63.11, so far is relevant for present purposes, reads:

If, in relation to an application or proceeding under the Act, or this scheme... 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[19] 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, unless ....[20]

1. I have emphasised the word "continuously". It is an essential requirement of the 15-year period. Lack of continuity interrupts the count of the 15 years. In this case there was such an interruption. The use was discontinued at 73 Napier Street and relocated to another address in Essendon during the period when the building at no. 73 Napier Street was being demolished, and while the new brick building was being constructed. This gap in continuity lasted for a number of months. During that period 73 Napier Street was unused for the purpose of office. As the Full Court said in City of Nunawading v Harrington[21] on page 645 line 13:

If premises are unused they cannot be said to be used for a given purpose, notwithstanding an intention to do so: Rosenbaum[22]

1. It is not to the point, in this connection, to refer to Clause 63.06. That is the clause that provides that an existing use right, if and where one exists, expires if the use is stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
2. The effect of that is, when there is an existing use right, it is lost by a stoppage for 2 years. In other words the use does not have to be continuous, once it exists. There can be a stoppage, for example of one year.
3. That has no application to Clause 63.11 or the question under that clause of the establishment, as opposed to the possible expiry of an established right, pursuant to the 15 years rule. The 15 years must be continuous. It is not continuous in the present case. The gap of several months occurs roughly in the middle of the 16 years being claimed so there cannot be 15 years on either side of the gap.

1. Mr Testro submitted on behalf of the Responsible Authority that there is a defect in the current proceeding. He raised a question as to whether there is in fact jurisdiction to make a declaration. He did not suggest that this was necessarily fatal, but did invite Mr Calera to consider whether he needed to make an amendment of some sort. That might have been to amend the application so as to seek declaration pursuant to s149B of the PE Act, although I am not a Presidential Member of the Tribunal, and consequently would not have been able to hear the case.
2. I referred to s124 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), and as to whether it would be possible to make a declaration pursuant to that section. That enables a declaration to be made as an alternative remedy, or an additional remedy, in relation to a proceeding. It might not help if the current application under s149A of the PE Act is in fact misconceived. I do not think that s124 of the VCAT Act itself empowers the initiation of a proceeding. It rather extends the possible remedies that can be given in a proceeding under some other provision, presumably a valid proceeding for which there is jurisdiction. I also invited Mr Calera to consider whether he wished to proceed in the circumstances if I might not be able to give a legally effective declaration. In the event he elected to proceed and did not apply for any amendment.
3. The potential problem pointed out by Mr Testro is that section 149A, and for that matter s 6(3), of the PE Act was drafted and inserted in the legislation long before there was any such thing as the 15-year rule. They were drafted on a basis that did not contemplate any such thing. They, perfectly understandably, referred to the continuation of use lawfully existing before the coming into operation of the planning scheme or amendment etc. At the time they were enacted the notion of illegal use, illegally commenced and illegally continued, becoming lawful was completely beyond the pale. I think that no one then understanding planning law in relation to existing use rights and the principles underlying it would have or could have anticipated such an eventuality as the 15-year rule. It certainly has not been provided for in these provisions.

1. For the reasons already given I certainly would not make the declaration sought by the applicants. I think such a decision would be wrong in fact and law.
2. In any event, a declaration is an equitable remedy, and a discretionary one. Even if the factual and legal situation exists for the granting of the declaration, a court or tribunal has a discretion as to whether it will in fact make a declaration. There is a saying that he who comes to equity must come with clean hands. In other words, an applicant for equitable relief, like a declaration, can expect to have that relief refused if the applicant has behaved dishonestly, deceptively, illegally or the like.
3. Although I could not, and would not, make the declarations sought by the applicants, I have before me a factual and legal situation that justified a finding that there is no existing use right to use 73 Napier Street as an office. I hold that accordingly. A declaration of that effect would be justified. I would make such a declaration but for the doubt raised by Mr Testro in relation to the scope of s 149A of the PE Act and the limitations of s 124 of the VCAT Act. In the circumstances I think it will be sufficient if I rule and find that no such right exists. If that is indeed sufficient, then I need not go further into the question of whether the present application is sufficient to sustain the declaration.

[1] It also provides for the loss of the right if the use stops for a total, but not continuous period of two years within any period of three years, or if seasonal in nature, it does not take place over two years in succession

[2] See City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 at 645 line 25 referred to in paragraph 49 below

[3] [2003] VCAT 1524

[4] [2006] VCAT 1629

[5] the provisions established within the 15 year rule are then referred to

[6] [1966] HCA 65; (1967) 116 CLR 23 33-34

[7] [1972] HCA 33; (1972) 129 CLR 270, [1972-73] ALR 203

[8] [1939] VicLawRp 44; [1939] VLR 300

[9] [1981] VicRp 72; [1981] VR 758

[10] [1985] VicRp 64; [1985] VR 641 645 line 25

[12] [2003] VCAT 741.

[13] [2005] VCAT 2346

[14] [2006] VCAT 2557

[16] [2003] VCAT 741

[17] [2006] VCAT 221

[20] There follow two exceptions that are not presently relevant.

[22] This is a reference to the High Court decision in Ronsenbaum v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35