A permit is not required to use a building for services funded by the Department of Human Services which provide self-contained accommodation for its clients if all of the following requirements are met:

• The buildings or buildings are in an area or zone which is used mainly for housing.
• No more than 20 clients plus supervisory staff are accommodated on the site.

1. It is not in dispute that the building is in an area or zone used mainly for housing.
2. The applicants made application for an enforcement order under s 114 of the Planning and Environment Act 1987. Although the use has not yet commenced, s 114 does allow an applicant to seek an enforcement order to restrain a prospective use if the use "unless prevented by the enforcement order, will contravene ... a planning scheme".
3. I note that s 114 uses the word "will" rather than "may". In order to restrain a prospective use by way of enforcement order, I need to be satisfied that there will, on the balance of probabilities, be a breach of the scheme. In relation to this:
   • The orders actually sought by the applicant are more in the nature of declaratory relief, namely orders that the proposed use is not a community care unit, and that the proposal requires a permit.
   • Despite detailed submissions by Mr Porter for the applicant, and numerous documents presented to the Tribunal on behalf of the applicant, the applicants provided no material which indicates that there will be a breach of the scheme. Indeed, the very nature of the submissions made by Mr Porter was to the effect that the applicants did not have such information, and sought through the proceeding to access the DHS funding arrangements and broader details of the proposal, on the basis of a belief that there may be a breach.
4. The common test for a finding on the balance of probabilities is that:

When the law requires the proof of any fact, the Tribunal must feel actual persuasion of its occurrence or existence before it can be found[1].

I am not so persuaded by the totality of Mr Porter's application and submissions that the proposed use will, on the balance of probabilities, contravene the planning scheme. I am also not persuaded that an application for an enforcement order should be used as a trigger for a fishing expedition into DHS records without any reasonable apprehension of a pending breach. The applicant has access to other mechanisms (eg. Freedom of information legislation) to seek such material.

1. Mr Porter urged upon me that, given the assertion by the applicants that the proposed use may not be a community care unit, the onus shifted to the respondent to prove that it came within the Clause 52.24 exemption. He relied upon the comments of McInerney J. in Wajnberg v Raynor & MMBW[2] to the effect that:

The quantum of evidentiary material required on a given point may depend on whether the point is contested or not, and whether there is evidence tending to a contrary direction.

1. I accept that, where there is a at least a prima facie case made out, it may be for the person seeking to avail itself of the planning scheme exemption to then prove its use falls within that exemption. However, I am not satisfied on the basis of the submissions and documents before me that there is a serious issue to be tried at all in this case, at least not yet. Even if Wajnberg applies, Mr Porter provided no real evidence tending in a contrary direction, and the "contest" seems to me to be more of an attempt by the applicants to maintain a back door objection to a use which appears to be exempt under the planning scheme, and where a permit requirement and third party review rights do not arise.
2. All parties referred me to the decision in Cobden v Greater Bendigo City Council[3] which considered in detail the exemption in Clause 52.24 and what may be required to constitute a "community care unit" for the purposes of that exemption. In that case, an objector sought declarations that a residential drug and alcohol rehabilitation service was not a community care unit. The then Acting Deputy President Byard determined that the facility was a community care unit and, in particular indicated the following:
   • If the specifications of Clause 52.24 are satisfied, then a particular proposal or use is a community care unit, exempt from any need to have a planning permit for the use, and is clearly defined at least to that extent.
   • "Accommodation" did not need to be the sole principal objective of the facility. It need only be part of the services provided, whereby the people deriving a benefit from the services are to live or be housed in the facility whilst receiving its services.
   • The users of the service and accommodation would be "clients" of DHS if it funded the undertaking, even if the management and service provision was through another intermediate organisation.
   • The accommodation must be self-contained in an overall sense. Each bedroom did not need to be self-contained. It was sufficient if there was separate bedrooms and shared facilities - this being in line with the notion of a community care unit and the sort of care, support and encouragement envisaged.
3. I endorse the decision in Cobden.
4. The respondent submitted that its proposal squarely fell within the Clause 52.24 exemption and the Cobden requirements, and that the applicant's assertions were wholly unsubstantiated. Mr McKenzie for the respondents also indicated that they had provided material to the local community, and held a public meeting to explain the proposal, but that certain members of the community where just philosophically opposed to it. Mr McKenzie offered to call a DHS officer present at the hearing to confirm the DHS funding - in the circumstances, this was not required by the Tribunal.
5. Ms Perlstein for the Responsible Authority made a simple submission to the effect that the respondents were well aware of the matters needed for the Clause 52.24 exemption to apply, and were well aware of the principles in Cobden, and there was no reason at this time to doubt that they would be complied with in the proposed community care unit. The Tribunal agrees. There is no reason at the present time to presume that the proposed facility will not operate other than within the framework of a community care unit and the Clause 52.24 exemption.
6. In my view, the application by way of an application for enforcement order is misconceived, unsupported by any real evidence, and at best premature. The application ought properly be dismissed. The respondents should however be mindful that there is sceptical element in the local community and should, to the extent possible, keep the community reasonably informed about the proposal as it proceeds.

[1] See the comments of Dixon J. in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361.

[2] [1971] VicRp 82; [1971] VR 665

[3] [2003] VCAT 1395