Appellant v Respondents

2 It was, therefore, only the legal member who could exercise the jurisdiction invoked. The legal member of the Tribunal construed the provisions of clause 63 of the scheme and concluded that two clubs did not have existing use rights protected by s 6(3) of the Planning Act. The presiding member of the Tribunal did not agree but, as she was neither a presidential member nor a legal practitioner, her view was of no effect. If the presiding member had been a presidential member or a legal member, her views about the construction and application of clause 63 would have prevailed by operation of s 66 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). It is perhaps curious that the Tribunal was constituted to exercise the power in s 149A with a member who could not by statute have exercised the power under any circumstances. Neither party, however, challenged the constitution of the Tribunal either at the time of its hearing or before me. In those circumstances I propose to say nothing further about the matter and assume (as did the parties) that the Tribunal's decision was at least sufficiently effective to enliven the appeal to this Court.

3 The proceeding before the Tribunal, and before me, proceeded largely upon an agreed statement of facts. The facts relevant to the determination of the dispute between the parties are almost all found in the reasons of the Tribunal from which the appeal is brought. I need not repeat them in any detail except to give context or explanation for my conclusion.

4 In 1984 the council purchased land known as Long Point Reserve. At the time of purchase three clubs were operating their respective activities with the agreement of the owner. The club activities were those of archery, clay target shooting and motorcycle events. The clubs continued their activities after the land was acquired by the council and the council would like the activities to continue. To that end the council has from time to time granted leases and issued permits. The permits have all expired but the council remains willing to allow the clubs to continue using the respective parts of the land for their various activities.

5 From 6 May 1999 Long Point Reserve became subject to the scheme under which it is contained within the public park and recreation zone in clause 36.02. None of the clubs currently have permits under the scheme and around 18 December 2007 several residents commenced enforcement proceedings contending that the land was being used in contravention of the scheme and that the council as responsible authority was not enforcing the scheme.

6 The critical point in dispute between the parties is whether the land enjoys existing use rights. Section 6(3) of the Planning Act protects the continuance of any use which had been lawful before the coming into operation of any contrary planning scheme or amendment. The scheme itself provides for the preservation of existing uses in clause 63. One of the bases upon which a use right can be established is by proof of a continuous use for 15 years under clause 63.11. It was common ground that this required proof of use by the clubs for a continuous 15 year period dating back from 18 December 2007.

7 The legal member found that the 15 year period was established in respect of archery but not in respect of motorcycling and clay shooting. The fundamental reason upon which that conclusion was based was the construction given by the legal member of clause 63 of the scheme as requiring that the use right established under this ground not include the periods during which permits were held. In that regard the legal member said:

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 been continued for at least 15 years is the right to use land contrary to the planning scheme, not just use the land simplicitor, because clauses 63.01 and 63.11 begin with the concept or entitlement called "an existing use right".

By "contrary to the planning scheme" the legal member did not mean that the activity needed to be unlawful,[1] but that the use was somehow contrary to the planning scheme. Having construed the provision in that way, the legal member turned to the facts relevant to each of the activities and concluded that only the archery club could show a period of 15 years of continuous use without a permit. The conclusion in favour of the use of the land for archery is not challenged in the proceeding before me. In contrast, the last permit for use of the land for motorcycling activities expired on 10 March 1994 and that for shooting expired on 4 November 2001; in both cases making a 15 year use "without a permit" impossible.

8 The legal member based her conclusion on what she described as the "seminal change wrought by clause 63.11". That clause provides:

Proof of continuous use

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, 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 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 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.

The legal member reasoned that this clause could only be invoked if an entitlement called "existing use rights" could be established for a continuous period of 15 years as distinct from an entitlement arising under a planning permit. Thus, she concluded that a continuous 15 year period of "existing use rights" had to be shown excluding any period under which planning permits were held. This was considered to be so notwithstanding that one of the other categories of use rights in clause 63.01 required only that the use was lawfully carried out immediately before the approval date irrespective of the basis upon which the lawfulness might be established.

9 I am unable to agree with the conclusion or reasoning of the legal member. There is nothing in the words of clause 63.11, or in the policy which it expresses, to require the conclusion which found favour with the legal member. 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.[2] 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. The words "the use" as the subject of the enquiry are not, and logically cannot be, substituted by the words "the existing use right". The relevant words in the clause cannot be read as if they said that "it is sufficient proof of the establishment of the existing use right if the [existing] use [right] has been carried out continuously for 15 years prior to the date of the application or proceeding". The definite article preceding the word "use" does not require any narrower or artificial investigation of what was carried out over the relevant period; that is to say, the enquiry called for by clause 63.11 is about the use actually carried on rather than whether it was carried on pursuant to a permit or was contrary to a planning scheme.

10 Support for that view can also be found in the opening words of the second paragraph of clause 63.11 which unambiguously contemplates the accrual of an existing use right with an entitlement under prior schemes. That paragraph, of course, extends the ambit of an existing use right to a use which did not comply with an earlier scheme but the words "even if" make clear that the primary contemplation of the clause is that an existing use right would ordinarily accrue by compliance with an earlier scheme. A permit under an earlier scheme would be one way such an entitlement would accrue. It is also interesting to see that in the second paragraph of the clause the words "the use" are used in a way that do not permit the definite article to refer back to the "existing use right" previously referred to in that paragraph. In other words, in both paragraphs of clause 63.11 there are sentences which contain both "existing use rights" followed by "the use" where in one instance "the use" cannot refer to "existing use rights" and in the other instance the natural reading would suggest the same. In both instances "the use" referred to is naturally to be read as the actual use of the land to be inquired into or discovered rather than to the conclusion to be drawn from the inquiry.

11 Planning legislation has typically had to develop mechanisms to protect uses which had been permitted before a change to a planning scheme. To that end it has often been said that provisions protecting existing use rights should be construed liberally.[3] To that may be added that provisions should be construed to give them a sensible operation.[4] The policy evident in clause 63 is to continue to permit a use which an earlier scheme had allowed notwithstanding a change. There is nothing in that policy that requires a reading of clause 63.11 to protect uses contrary to a planning scheme but to exclude from protection uses which were expressly allowed by permit. The underlying policy is to preserve the continuation of permitted uses and I see nothing in the policy evident in clause 63 to favour uses which are contrary to a planning scheme and exclude for consideration complying uses through permits. The actual use of the land pursuant to a permit is in my view unquestionably part of the use that clause 63.11 requires to be considered in the calculation of the 15 year period.

12 Counsel for the respondents contended that the construction adopted by the legal member of the Tribunal was necessary to avoid what was said to be the absurd consequence that would be obtained where a permit may have been granted for a limited period of time. In the case of these parties, permits for specified time periods had been granted and it is conceivable that the council might in some cases grant a permit for a use limited in time but in excess of 15 years. The construction adopted by the legal member would ensure that a permit for a period in excess of 15 years would be effective to prevent a use right to accrue under clause 63.11. It is unnecessary for me to decide whether a permit granted for a continuous use in excess of 15 years may, upon the expiration of that period, create an existing use right notwithstanding the apparent intention when granting the permit to limit the use to 15 years. Nor is it necessary to consider whether the unequivocal imposition of an end date on a permit may be effective as a condition or restriction for the purposes of clause 63. In each case these are considerations which a responsible authority may, and should, take into account if it seeks to prevent the accrual of an existing use right by operation of clause 63. It is sufficient in this proceeding to say that any authority seeking to impose time limitations upon the use of land should keep in mind that the operation of clause 63 may make the temporal limitation ineffective after 15 years of use whether with or without permits. Those considerations however do not warrant excluding the period of actual permitted use from the 15 years needed to invoke clause 63.11. Clause 63.11 could easily have provided that periods of use under permit were not to be included in the calculation of the 15 year period if the "seminal charge wrought by clause 63.11" had intended to do so. Counsel was unable to refer to any provision from which an inference could reliably be drawn that use under a permit for a time period was intended to have been excluded from the operation of clause 63.11.

13 The council also contended that the Tribunal had wholly failed to consider an alternative, and independent, basis which had been relied on to establish the existing user right. Clause 63.01 provides that an existing use right may be established by any one of five means. Proof of continuous use for 15 years under clause 63.11 is the fourth way in which an existing user right may be established. The council, however, had unquestionably also relied upon the first set out in clause 63.11, namely, that the use was lawfully carried out immediately before the approval date. For this purpose the approval date is 6 May 1999. Thus the Tribunal was required to consider whether immediately before that date the three uses in question were lawfully being carried out. Counsel for the respondents submitted that it could be inferred from the reasons of the legal member that she had considered these contentions because it was said to follow from her findings that the conditions necessary to invoke this basis for establishing existing user rights had not been made out. I am unable to agree with that submission and, on a fair reasoning of the reasons of the legal member, I cannot see how any of the legal member's conclusions were addressed to any basis for the establishment of an existing use right other than that requiring evidentiary proof of 15 years of continuous use under clause 63.11.

14 Whether the first ground to establish an existing use right in clause 63.01 was made out depends upon a tracking through of the lawfulness of the use of the three activities up to 5 May 1999. Putting aside the land used for archery, the enquiry called for is into the legal basis of the use during the period after the expiry of the permits namely, November 2001 in the case of the shooting club and March 1994 in the case of the motorcycle club.

15 The land has been governed by a series of planning schemes, or their amendments, over the years. On 12 May 1965 the Shire of Flinders Planning Scheme was approved. On 28 March 1979 amendment 119 was made to the Shire of Flinders Planning Scheme. On 16 February 1988 approval was given to the Flinders Planning Scheme. On 23 December 1993 amendment L98 was made to the Flinders Planning Scheme. As at the introduction of amendment L98, Long Point Reserve was reserved for the purposes of "Public Open Space - Recreation". Non-conforming use rights were preserved by clause 1.05 which, amongst other things, preserved non-conforming use of land lawfully used immediately before the approval date. In that instance "approval date" was defined to mean the date of coming into operation of that scheme or any amendment to the chapter in which clause 1.05 was found. Under amendment L98 the use of the reserve by the clubs was not prohibited albeit that it was permitted subject to permits.[5] The uses were, therefore, non-conforming uses under clause 1.05(a) and therefore lawful immediately before the approval date for the purposes of the scheme as at 6 May 1999.

16 It follows that I will allow the appeals and remit the proceeding to the Tribunal for it to determine the proceedings in accordance with these reasons.

17 The appellant has also sought the costs of and incidental to these proceedings in the event of it succeeding in the appeal. In my view it is entitled to its costs but I am concerned about the extent to which costs have been incurred. Seven folders were produced for the hearing which contained a great deal of material to which I was never taken and which to the extent that I was taken to the material was inadmissible as evidence. In that regard, it is sufficient if I note that the entirety of planning schemes occupying many pages were copied where only a small number of pages could ever conceivably have been relevant. Similarly, authorities were exhibited as if they were evidence. In the circumstances an order in the usual form of costs in favour of the successful party will reward inefficient preparation for the hearing. In those circumstances I think a fairer means of awarding costs is to exclude from the costs awarded to the appellant all but 20% of the costs of preparation of the court books. Accordingly, I make the following orders:

1. The orders in paragraphs 2 and 3 of the orders of the Tribunal in the proceeding P2845/2008 dated 8 January 2009 are set aside.
2. The proceeding is remitted to the Tribunal for further hearing and determination in accordance with law.
3. The appellant's costs of and incidental to these proceedings and the costs of and incidental to the application for leave to appeal to the Court (except all but 20% of the costs of the preparation of the court book) be taxed and paid by the first to eleventh respondents.
4. An indemnity certificate be issued in respect of costs under s 4 of the Appeal Costs Act 1998.

VICTORIAN FIELD & GAME ASSOCIATION (PORT PHILLIP) INC.

[1] Mornington Peninsula Shire Council v H & P Ackermann (Unreported, Victorian Civil and Administrative Tribunal, Senior Member Baird and Member Komesaroff, 8 January 2009, P2845/2008) [113].

[2] 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).

[3] Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295, 300 (Mason ACJ, Deane and Dawson JJ); City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645 (Kaye, McGarvie and Marks JJ); Stonnington City Council v Southern Property Corp Pty Ltd [2006] VSC 435; (2006) 154 LGERA 1, 6 (Osborn J).

[4] Deputy Commissioner of Taxation v Government Insurance Office of New South Wales [1993] FCA 464; (1993) 45 FCR 284, 299 (Hill J).

[5] Cascone v City of Whittlesea [1993] 80 LGERA 367, 379 (Ashley J).