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[2004] VCAT 2624
Victorian Civil and Administrative Tribunal
2004-12-23
Original judgment source is linked above.
VCAT REFERENCE NOS. P1816/2003, P1365/2004 & P1879/2004
Application for s.114 Enforcement Order No. P1816/2003
Application for s.114 Enforcement Order No. P1365/2004
Application for s.114 Enforcement Order No. P1816/2003 brought by Responsible Authority
1
The respondent Ronald Kraan must remove the 780 m2 shed within six months from the date this Order is served upon him.
The tribunal directs that the Responsible Authority serve a copy of this enforcement order personally or by post on Ronald Kraan in accordance with the Victorian Civil and Administrative Tribunal Act 1998, section 140.
Application for s.114 Enforcement Order No. P1365/2004
1
The respondent Ronald Kraan must remove the 780 m2 shed within six months from the date this Order is served upon him.
2
From the date this Order is served upon him, the respondent Ronald Kraan must not carry out any industrial activities on any part of 715 Gembrook Road, Pakenham and must cease any such use or activities immediately, including but not limited to:
i metal fabrication and metal work (including grinding and cutting);
ii hammering metal; and/or
iii motor vehicle and equipment repairs and maintenance;
iv panel beating;
v spray painting;
vi modification to vehicles and equipment (including truck trailers, trucks, excavators, tree removal machinery and other heavy vehicles and equipment);
vii mulching.
3
No order is made as to the smaller shed on the southern boundary.
4
No order is made as to revegetation or restoration of disturbed areas.
5
Liberty to apply for costs from any party.
The tribunal directs that Kelly and Glenn Brooks-Macmillan serve a copy of this enforcement order personally or by post on Ronald Kraan in accordance with the Victorian Civil and Administrative Tribunal Act 1998, section 140.
The decision of the Responsible Authority is set aside. A permit must not be granted for a 780 m2 shed at 715 Gembrook Road, Pakenham.
For Applicants for Review and for an Enforcement Order
Mr Matthew Townsend of counsel, instructed by Slater and Gordon, Solicitors. Mr Townsend called Ms Kerry Thorpe and Glen and Kelly Brooks-MacMillan.
Mr John Rantino, solicitor of Maddocks, Lawyers. Mr Rantino called Mr Kraan,
1
This is a complex and difficult case involving a 780m² shed erected by Mr Ronald Kraan who runs two businesses of tree felling and water cartage from his dwelling and property at 715 Gembrook Road, Pakenham. It involves difficult questions of fact and law that go to non-conforming use rights. It is made all the more difficult because of its repeat appeal characteristics from a 2002 VCAT decision by Senior Member Young.
2
On 11 July and 21 November 2002, Senior Member Young issued orders in four proceedings after extensive and expensive hearings involving the same size shed. Those four proceedings were:
Responsible authority's decision to refuse 780m2 shed affirmed
s.87 cancellation of permit no. T970652 issued 4 May 1998 for 243m2 shed (1998 permit)
1998 permit for 243m2 shed cancelled for breach of permit conditions
Kraan must pay Brooks-Macmillans' costs of $19,212.95 on County Court Scale D
review against permit condition requiring reduction to shed size of 360m²
Responsible authority directed to issue permit for 243m2 shed subject to conditions limiting vehicles to one prime mover, one trailer, agricultural machinery necessary to farm the land.
s.149A declaration application against assertions by Mr Kraan that he had existing use rights for machinery and equipment store on the subject land pursuant to his 1998 permit no. T970652
Declarations refused as unnecessary because VCAT cancelled 1998 permit no. T970652.
Background to this hearing - the Enforcement issued by council (1st new proceeding)
3
On 29 July 2003, the responsible authority issued an enforcement application against Mr Kraan. Originally they sought the shed's removal, but later sought consent orders, effectively seeking a permit for the retention of the 780 m2 shed disallowed by VCAT's Senior Member Young.
4
The Consent orders appear as an appendix to this decision.
5
On 23 July 2004, council amended its enforcement application to seek two alternative orders, depending on the outcome of the objectors' review of council's decision to permit a 780m2 shed. If the shed was permitted, council sought its modification within six months. If it was not, theysought its entire removal.
6
Council's justification for now supporting a 780m2 shed was that the land carried existing use rights, and their conduct inside a shed would better protect neighbours such as the Brooks-MacMillans. The Brooks-MacMillans contest the existence of these rights.
Neighbours involvement - the enforcement issued by the Brooks-MacMillans (2nd new proceeding)
7
The Brooks-MacMillans were not directly advised by the council of the proposed consent order which council sought, even though they had been the successful party previously.
8
They found out because the EO application form asks if there are any affected persons. The Responsible Authority gave the Brooks-MacMillans names. On 24 January 2004, Cardinia sought a hearing date from the Tribunal. On 19 March 2004, Cardinia advised a consent order between them and Mr Kraan should obviate the usual hearing.
9
As VCAT notifies affected persons of a hearing, the Brooks-MacMillans sought to be made a party to the council's enforcement proceedings, and to contest the consent order. I made directions on 26 March 2004.
10
On 20 May 2004, the Brooks-Macmillans issued their own application for Enforcement order no. P1365/2004, as amended on 29 September 2004. The amended orders sought are set out in Appendix B.
11
On 28 April 2004, Mr Kraan issued a fresh planning application for construction of a 780m² shed on the subject land, for which the responsible authority determined to grant him a permit no. T040286 issued on 5 July 2004 based on the Advertised Plans Sheets 1-5 out of 5.
12
During a lengthy Directions Hearing on 8 July 2004, and again on the first hearing day, the application for 780m² shed permit and the notice of decision were amended to read "for the construction of a shed and associated earthworks generally in accordance with the approved plans".
13
At least half a day was taken up with the four points about the order of the evidence, the cross examination of witnesses who had made statements and the amendment of the Brooks-MacMillans EO application.
14
Decision on the points of law is made by Mrs Komesaroff.
EXISTING USE RIGHTS AND THE FIFTEEN YEAR DEEMING PROVISION
15
The basis of the responsible authority's notice of decision to allow a 780m2 shed in permit application No. T040286 issued 5 July 2004, directly contrary to Senior Member Young's Order, is their new found belief that Mr Kraan has existing use rights.
16
Cl.63.11 of the Cardinia planning scheme allows proof of more than 15 years continuing use of the land for the non conforming rights of water cartage and tree felling to satisfy their status as existing use rights, notwithstanding that at all times they were prohibited by the planning scheme.
17
Cl.63.11 first paragraph reads:
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.
18
The remainder of cl.63.11 goes on to qualify the straight 15 year period as follows:
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.
19
So it is necessary for the council to persuade us that:
viii Young SM did not rule on the existence or non existence, or the legality or illegality of these rights; and that
ix Council never issued a notice that such uses cease. This last point was not argued, as no such notice was produced.
20
Council and Mr Kraan allege Mr Kraan enjoys existing use rights for the conduct on the land of his two businesses of tree felling and water cartage. There is no contest that Mr Kraan has conducted these two businesses for over twenty years - the question is whether they have been conducted on or from the subject land for at least fifteen years prior to the date of the application or proceeding.
Did Young SM hold that this existing use right was unlawful?
21
Because he cancelled a 1988 planning permit for a 243m2 commercial vehicle store, Young SM held there was no need for him to make the declaration sought by council that Mr Kraan did not enjoy existing use rights for use of the shed as a vehicle, machinery and equipment store in association with a water carting and tree clearing and removal business.
22
Mr Rantino explained that the purpose behind issuing their s.149A declaration was in response to Mr Barber's[1] belated 'manoeuvre'[2] to use their 1998[3] permit as an existing use right permit for 'vehicle machinery and equipment store in association with a water carting and tree clearing and removal business carried out by..' instead of all it really was, which read:
For the purpose of commercial vehicle storage generally in accordance with the approved plans.
23
At the time of the issue of the 1998 permit, under the then Pakenham Planning Scheme, and under the then Conservation 1 zone, commercial vehicle storage was defined to mean:
Commercial vehicle storage means the keeping on land or within a building of not more than one commercial vehicle, as registered pursuant to the Motor Car Act 1958, whether with or without a trailer with a carrying capacity exceeding two tonnes and may include provision for servicing and running repairs of a minor nature but does not include the fuelling of or major repairs to or panelling beating of the vehicle within the curtilage.
24
Cardinia were therefore prompted to seek a declaration on existing use rights as the effect attributed to the permit by Mr Barber for Mr Kraan was so much broader.
25
Mr Rantino submitted that at no time did Young SM hold that Mr Kraan had no existing use rights thereto, even though he found and characterised the use of the land by Mr Kraan as agricultural contractor's depot which at that time had the following meaning:
Land and/or buildings used or intended to be used as a depot for the storage of materials or machinery used for agricultural production by hire or contract.
26
Mr Rantino submitted that Young SM held that it was a prohibited use of land under the scheme in that zone, but did not go that one step further and declare that such use being made of the land by Mr Kraan was illegal.
27
Young SM said:
Taking all of the above evidence and submissions together is indicative to me that Mr Kraan uses the shed and his property to operate and maintain a substantial and successful water carting and tree removal and disposal business. I agree with Ms Brennan of Counsel, for the responsible authority, that the most appropriate categorisation of the use to which Mr Kraan puts the shed and his property would be that of "agricultural contractors depot". Under the superseded Pakenham Planning Scheme this use was defined as "land and or buildings used or intended to be used as a depot for the storage of materials and machinery used for agricultural production by hire or contract". Under the Pakenham Planning Scheme this was a prohibited use of Mr Kraan's land.
28
Because, says Mr Rantino, Young SM cancelled the 1988 permit, saying there was no need for him to make a declaration on existing use rights for use of the shed as a vehicle machinery and equipment store in association with a water carting and tree clearing and removal business, it is open to us to find that Mr Kraan enjoys existing use rights for the conduct of two businesses, that of water cartage and tree felling, from the subject land.
29
Mr Rantino also submitted Young SM characterised Mr Kraan's use of the land as an agricultural contractors depot wrongly, but admitted Young SM was so persuaded by council's barrister Ms Susan Brennan. The error, submitted Mr Rantino, was in pigeonholing the use by reference to a definition in the scheme, rather than by what it actually is per se[4].
30
Given the definition of agriculture in the scheme, it is my opinion that Mr Kraan's businesses could never be characterised as agricultural production.
31
There are a few ways of looking at Mr Young's decision. Mr Townsend's first way is that even if Young SM wrongly pigeonholed or characterised the use, he:
i did make an accurate finding of fact that Mr Kraan uses the shed and his property now to operate and maintain a substantial and successful water carting and tree removal and disposal business;
ii did hold that this was a prohibited use of Mr Kraan's land under the planning scheme.
32
There is force in Mr Townsend's submission, as council's application for declaration appears broader than claimed by Mr Rantino. It reads[5]:
1. Use of the land at 715 Gembrook Road Pakenham ("land") for a vehicle, machinery and equipment store in association with a water carting and tree clearance and removal business carried out by Mr Kraan as a resident of a dwelling on the land ("proposed use") requires a planning permit.
2. The proposed use does not enjoy existing use rights pursuant to Permit T970652.
33
Mr Rantino's second way of looking at the decision is that Young SM did not make the declaration anyway, so that part of cl. 63.11 which reads
the use has been held to be unlawful by a decision of a court or tribunal
34
I am prepared to enter into an investigation of existing use rights because Young SM:
i clearly stated that Mr Kraan had no existing use rights as a commercial vehicle store (because he found Mr Kraan conducted industrial activity on the land) but that is not the existing use rights question I am asked to decide. It seems to me that Mr Young ran both declarations into each other, even though they can be read independently;
ii made no declaration on any existing use rights, so technically, a use may not have been 'held' to be unlawful by a decision of a court or tribunal.
35
Cl. 63.11 is a deeming provision, which only requires evidence of continuous user for that purpose for fifteen years prior to the date of the application or proceeding to make out a lawful existing use right.
36
I need to ask, what date corresponds to the fifteen year period? Or, to put it another way, from which date must we start counting back the fifteen continuous years?
37
This hearing involves three proceedings. The first enforcement proceeding No P1816/03, in our opinion raises the issue of existing use rights, as expressed in council's amended EO application and its pleadings dated 23 July 2004:
Mr Ron Kraan has used the land at 715 Gembrook Road, Cardinia, for a dwelling and for the purpose of his business of tree felling and water carting, for at least 15 continuous years.
The activities conducted on the land are those which normally take place when using land for the purpose of a tree felling and water carting business. Primarily, the activities have been general maintenance of equipment and storage in association with the tree felling and water carting business, but the precise nature, duration and extent of the activities that occur on the land at any one time may vary. It is not possible, nor appropriate, to specify the activities beyond the above description because activities vary in accordance with the normal factors affecting a water carting and tree felling business.
Both of the uses have been conducted on and from the land since approximately 12 August 1987, the date on which Mr Kraan received title to the land, or, in any event, at least 15 continuous years.
38
I say this because council's enforcement application seeks a positive order for Mr Kraan to construct a shed for which council gave planning permission in NOD No. T040286 issued on 5 July 2004, and council gave Mr Kraan that permission based solely upon its belief that the land enjoyed existing use rights, and a permit was a better solution than no permit and unbridled activity under the existing use right.
39
Even though council amended its enforcement application, it was first lodged on 29 July 2003. That makes the commencement of the fifteen years date from 29 July 1988.
40
We turn to the evidence that to see if the businesses of water cartage and tree felling have been carried out on or from the subject land continuously for 15 years prior to 29 July 1988.
41
Another way of counting back fifteen years is to count back from the Brooks-Macmillans enforcement application, which denies any exiting use rights to the land. As their application is dated 20 May 2004, the commencement of the fifteen years dates from 20 May 1989, so Mr Kraan does not have to go back as far to prove fifteen years continuous user. But I think the correct date is from 29 July 1988.
42
Mr Kraan's water carting business does not use large vehicles or equipment, but his timber felling and cartage business does.
43
The nature of Mr Kraan's timber felling business has changed over the years. He started out felling softwood and carting the logs to the timber mill for processing. To fell the timber, he used a skidder loader, chainsaws, climbing gear, cables and mulching equipment, first aid equipment and safety signs.
44
The logs would be scooped up in the skidder loader, loaded onto truck and trailer. Excess timber and scrub would be burned off on site, later mulching would occur and the client's site harrowed and levelled.
45
Fuels had to be carried to refuel the machinery he used to fell the trees. Water had to be carried to put out any fires. He would often sleep in his cabin en route to the sawmills.
46
Over the last five years, Mr Kraan has moved out of softwood and into the removal of difficult and dangerous trees.
47
He also performs a community service when he clears felled timber across roads and precarious house sites. There is no doubting the very high value of his community service and his community spirit. It is clear he has much community support behind him.
48
More recently he purchased an excavator and has built up his equipment. He employs fitters and turners and mechanics. He repairs some of his own machinery, depending on the type of repair and whether it is under warranty.
49
He has a magnificent 780 m2 mud brick and timber shed with equipment, machinery and tools, neatly fitted out and meticulously maintained. He stores quite a variety of vehicles and machinery used in the course of his two businesses as well as machinery and equipment he is in the course of patenting. He is, among other things, an inventor, highly skilled in his two occupations.
i That tree felling occurs on someone else's land;
ii That water cartage occurs to someone else's land.
51
Firstly, we were asked to take judicial notice of the advertisements in the Pakenham Gazette found by council's enforcement officer in the State Library of Victoria. These advertisements read:
9th December 1987 Water Carting... PHONE RON KRAAN ON (059) 411 373
2nd March 1988 Water Carting... PHONE RON KRAAN ON (059) 411 373
20th December 1988 Water Carting... PHONE RON KRAAN ON (059) 411 373
11th January 1989 Water Carting... PHONE RON KRAAN ON (059) 411 373
7th March 1990 Water Carting... PHONE RON KRAAN ON (059) 411 373
4th July 1990 Water Carting... PHONE RON KRAAN ON (059) 411 373
12th December 1990 Water Carting... PHONE RON KRAAN ON (059) 411 373
52
Between 14th January 1987 and 3rd May 1995, the only business phone number for Ron Kraan was his parent's dairy and home at Officer. Mr Kraan gave evidence that clients would leave messages on his parents' landline and he would collect same from his mother to contact clients.
53
These advertisements show that Mr Kraan was running two businesses of water cartage and tree felling, but, unfortunately for Mr Kraan, do not tie the running or administrative part of the business to the subject land as at 1988, or at all, until 1995. 1995 is the first advertisement of the subject land's landline as well his new mobile number.
54
The subject land was vacant until Mr Kraan started building his home on it in 1991. He received its certificate of occupancy in 1992.
55
The nature of Mr Kraan's sole proprietor business is that he is on the road most of the time - so it is not strange that telephone calls are diverted to his parents home and do not occur on the subject land for that period of time that it was unoccupied (until 1992).
56
The problem is that Mr Kraan cannot rely on these advertisements as proving that his two businesses were conducted on or from the subject land.
57
This time, unlike the previous hearing before Young SM, Mr Kraan gave evidence and was cross examined. The Brooks-Macmillans were unable to contradict this evidence, as they only purchased their neighbouring property in 1997.
58
We set out what Mr Kraan told us, although critical parts are later contradicted by letters written to the council on his behalf.
59
He started his business with a skidder loader on his truck tray and a container on the trailer of his truck, when he was still living on his parents' dairy farm at Officer. He bought his first skidder loader in 1979 and by 1987, he had fifty clients, his businesses were thriving and he ran out of room on his parent's to store all his equipment and logs. So he negotiated the purchase and mortgage of the subject land, after discussing the appropriateness of the site with council officers. The purchase of the subject land was settled in August 1987.
60
It is possible to operate these two businesses between two pieces of land, so it is necessary for Mr Kraan to prove that he actually did operate his business out of the subject land as well as the Officer land, where his business calls were received.
61
For three months prior to the August 1987 settlement date, he was allowed to store his equipment on site. For example, he stored logs at the front of the site, that he had felled, but was not yet able to deliver to sawmills. He said his average job involved twenty logs per load and he stored twenty loads of logs on the subject land.
62
Mr Kraan gave evidence that the subject land contained, at settlement, one dilapidated house, apple orchards, a dilapidated shed. He has since rebuilt the second smaller shed entirely, reusing some treated timber poles.
63
After August 1987, he placed two white lined ex-refrigeration shipping containers on the subject land and stored climbing gear, fuels, oils, a Gen-set generator, truck tyres. Over time, he has had six to eight containers on site, but now there are none.
64
He would store his vehicles under the trees abutting Mr Bill Roob's neighbouring property, for weather protection.
65
As a general rule then as now, he moves his heavy tree felling vehicles from job site to job site, instead of taking them back to his base[6] to save time and money, as every machinery move is costly.
66
He carries with him fuels for the powerful tree felling machinery, grinders and other equipment to repair machinery and equipment and water to put out fires.
67
He said he repaired his vehicles on the subject land from day one, using the gen-set and welding equipment.
68
Mr Kraan has no supporting documentary evidence, as he does not keep records longer than the required seven year tax period. The one accountant's letter he produced[7] did not help him, as it was addressed to him at his parents' home at Officer.
69
He has no photos of the original shed, albeit in dilapidated condition, on the land. We discuss later the photos he did produce.
70
Mr Kraan said he lived in three places:
i at his parents where he would collect his messages and his washing his mother had done for him;
ii in one of the containers on the subject land which he converted to hold a sink. He had an external shower serviced by his water tank (he was a water carrier) and no toilet, instead using what he colloquially called a long drop;
iii in the sleeper of his truck cabin, while he was on the road.
71
He demolished the dilapidated house on the subject land and built a home which received a certificate of occupancy in 1992.
72
His businesses have grown exponentially over the years, especially it seems since he built the 780m² shed without planning permission in 1998. His business is seasonal, in that the summer sees higher use of water cartage while winter enjoys more timber felling.
73
Twelve years ago he employed his first employee. He now employs three full time staff, all motor mechanics or fitters, all of whom can help him on the job site to fell trees. They return to the subject land (the base) to collect equipment, repair machinery and vehicles and collect wages.
74
Mr Kraan produced photos of the subject land taken since 16 July 1987. Some of these photos were date stamped with this date, others were not and were clearly from a different camera, not Mr Kraan's, although Mr Kraan could not call the taker of those photos to give evidence about the date they were taken.
75
The date stamped 1987 photos show a wild grassed portion of the subject land with pine trees in the background. Nothing else can be seen on the land at the time from these photos.
76
The undated photos which Mr Kraan represented as also having been taken on 16 July 1987 showed the same portion of his land, but completely de-grassed and graded. These photos show a truck, tray with loader and very thick, large logs on the trailer, coming up the gravel driveway. Nothing else can be seen on the land at the time from these undated photos, but the condition of his land is dramatically different to the dated 16 July 1987 photos. Mr Kraan explains away this dramatic difference as photos taken on two different sides of the driveway, but we are not satisfied about this on the balance of probabilities.
77
More undated photos which we were told were circa 1988-89 show logs (chopped into firewood size) being unloaded by the skidder loader and dumped on the land, with a pile of sand nearby.
78
The next batch of undated photos shows:
i a delivery of large boulders for his ornamental garden beds for his new house (circa 1991);
ii a water tanker in the background;
iii his father's tractor in the background;
iv two or three cylinder drums.
i His truck with two loads of large logs on the tray and trailer, when the house is already built and the ornamental garden bed in shape (circa 1992);
ii The unloaded piles of logs, a water tank and the original location of the electricity pole, before it had to be moved to accommodate his 780 m2 shed.
80
Later undated photos show two white containers around the time of the construction of the 780 m2 shed.
81
Mr Townsend submits the photos are consistent with preparations made by Mr Kraan to build his house, or the storage of firewood, but not with the operation of any business on the subject land.
82
We are unable on the basis of all of these photos, to find, on the balance of probabilities, that Mr Kraan used the subject land from 1987, 1988 or 1989 for the purposes of either of his businesses. The photos dated 1987 show no activity on the land.
83
Moreover, as to the alleged undated 1987 photo, they show activity on the land but not, on the balance of probabilities, that this activity occurred in 1987. The state of the land is so different, that we suspect it occurred later - we do not know when. The author of the photos was not called to give evidence.
84
The Brooks-Macmillans produced aerial photos showing evolution of the state of the land. These photos were criticised by council and Mr Kraan as an eye blink in time.
85
In March 1985, prior to the Kraan purchase, much of the site was cleared of treed vegetation, but with a thick perimeter of trees.
86
In January 1989, eighteen months after the Kraan purchase, the site is moonscaped and graded. No containers, logs or other chattels or improvements are visible, except perhaps for some skeletal uprights from an old shed.
87
On 9 December 1992, the house is up, the ornamental garden is taking shape and one can make out the storage of logs.
88
On 14 May 1998:
i the ornamental garden is taking better shape still
ii a second shed is erected in a position where none existed earlier
iii a pad has been created for a turning circle for trucks
iv the 780 m2 shed is under construction
v much more of the south eastern corner towards the Brooks Macmillans has been cleared of trees for the shed.
i the 780 m2 shed is completed;
ii storage of logs, vehicles, drums and other equipment is clearly visible.
90
These aerial photos show no activity on the subject land in 1989, no activity at all until building the house in 1992, and no activity directly relating to the conduct of Mr Kraan's businesses until 1998.
91
Mr Robert Michael Davey is the managing director of a turf farm. He met Mr Kraan on a job in 1983 and remembers visiting Mr Kraan at the subject site twice in 1987/1988, because that was when he had a 4WD. His next visit was when the house was being built (1991). He remembers Mr Kraan storing his machinery, trucks, tractors and truckloads of logs there. Therefore, he thought he conducted his business from that site. He did not see him repairing vehicles then, but was definite that he has seen Mr Kraan weld, grind, fabricate steel, and change tyres within the last ten years. (Tribunal emphasis)
92
Mr Davey remembers three shipping containers on the land. He has a memory of an old shed, but remembers the main storage in the containers.
93
Although Mr Davey's witness statement said Mr Kraan resided on the subject land for most of the twenty year period that he knew him, under cross examination he said he did not see him living at the property until the house was built in 1992. He gave Mr Kraan advice on turf.
94
Mr Neil Bosanquet is a long time neighbour, having known Mr Kraan for nineteen years. His evidence was unhelpful to Mr Kraan. Although his witness statement said Mr Kraaan resided at the subject land during most of that time, he could not substantiate same under cross examination. He says he remembered a container on the land since 1986, 1987, but has no idea what was stored therein. He remembers logs stored on the land, but under cross examination admitted he only visited the subject land after Mr Kraan shifted into his house, in 1992.
95
Mr Roob is a neighbour who has known Mr Kraan for sixteen years. He prepared a witness statement, but was not called for cross examination, so his evidence could not be tested. Although his witness statement said Mr Kraaan resided at the subject land during most of that time, and had operated his businesses since moving there, we cannot attach weight to it - particularly in the circumstances where:
i the evidence in chief of witness Mr Bosanquet did not stand up under cross examination
ii Mr Roob's evidence could not be tested.
96
Mr Corke's witness statement said he had delivered tyres for Mr Kraan's vehicles during the seventeen years he has known him, but again, he was not called for cross examination. In circumstances where Mr Bosanquet's witness statement did not stand up to cross examination, again, we are unable to place weight upon it.
97
He was not called and therefore could not be tested as to how he remembered which out of the seventeen years he knew Mr Kraan as a regular tyre customer he actually delivered to, and fitted tyres at, the subject land.
98
As to the neighbours generally, it is interesting that none of them attested to seeing Mr Kraan living on the land out of a container, nor using an external shower, nor his long drop, between 1987 and 1992 when he moved into his house.
Contradictory advice by Mr Kraan to the responsible authority
99
On 26 November 1997, during a planning application for the 780m² shed which was eventually refused by the responsible authority, Mr Kraan signed the following letter in support of his application to the council:
My livelihood is a number of tasks - dependent on the season - for which I need a variety of equipment. At this stage my machinery is located at my parent's property in Officer, which has now become inconvenient for both parties.(Tribunal emphasis).
Water cartage is one aspect of my work, and for this I have a rigid truck with tank. With the busy season just completed, and the forecast dry summer yet to come, I have purchased another two articulated tankers to help keep up with the demand.
When not carting water, I am carting logs. This involves the machinery to recover and load the logs as well as transport them. In addition, I have developed a machine which mulches stumps on a large scale.
Relying on this equipment for my existence, I need to have it protected; therefore I need a large shed. The height is to allow my large mulcher and loaded truck to enter the building. The side bays will store the equipment, whilst the centre bays will allow the vehicles to pass through if required. This equipment will not be operating on the storage site, simply stored there when not in use. Often the machines are on work sites for months.
100
On 18 February 1998, his planning consultant represented the following to the responsible authority:
In consideration of the advice given in your previous letter, the owner has agreed to maintain the base for equipment at his parents property at Officer, the current location. (Tribunal emphasis).
He has also agreed to reduce the size of the building, but rather than delete the wings off the barn style, he proposes to delete the last two bays, a 40% reduction in size. This will mean the building can still maintain its shape and the mud brick frontage can be completed at the same time.
Usage of the building will primarily be for storage of his farm machinery, caravan, boat, trailers etc[8]. The plan showing the amended size is attached for your reference. (Tribunal emphasis).
101
The Brooks Macmillans camped on their newly purchased land in late 1996 until October 1997, when their house was built. She was adamant that there was no noise from the Kraan land until the latter started constructing his 780 m2 shed which was mostly built in 1998.
102
She was adamant that only bush noises could be heard until the shed was built. Then Mr Kraan altered the topography with earthworks, created a batter, flattened a mound into a pad in front of his shed for his vehicles, removed trees along the boundary and built the shed - all without planning permission.
103
Mr Brooks Macmillan attested to noises such as grinding, metal on metal, hammering, generators, vibration and humming noise coming from Mr Kraan's.
104
The Thorpes bought next door to the Brooks Macmillans in 1996 and started building in 1997.
105
Mrs Thorpe attested to tree clearing occurring on the Kraan land October 1997. She saw sky opening up where trees had grown.
106
Since the shed was erected, she heard grinding of metal, explosions, banging like panel beating, sawing of metal, but said it stopped in the last year pending this hearing.
107
She did not want an industry nearby, as she wanted to operate a B & B in a pristine bushland location.
108
The first step is the need to characterise the use or activity which is said to have continued for fifteen years[9]. I need to ask
What according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date?
109
I agree with Mr Rantino's characterisation of Mr Kraan's activities as the cartage of water and the felling of trees since 1979.
110
This correlates with the following activities found by Young SM[10] and which we also found on our inspection:
5.15. ...the building is used to provide for both commercial vehicle, and domestic storage, as well as a workshop which is used predominantly for the maintenance and manufacture of the applicant's business related equipment. ........ large equipment is often stored on the site, such as a prime mover, semi-trailer mounted water tank, numerous flat tyre trailers and front end loaders, welding equipment, a quantity of steel and machinery spares......[the] shed accommodates a large number of tools and equipment often associated with the engineering trade .......... used for the maintenance and fabrication of machinery.
5.16. .......a large stump mulcher .........was being constructed or assembled by the applicant [in 2002].
5.17. ....... the store [is] effectively a depot for a business which employs people other than Mr Kraan and involves maintenance work on a large range of machinery.
5.18. [Mr Kraan keeps] a substantial list of equipment that in the shed. This consisted of a Scania truck with rigid frame and there were two large water tanks and three truck trays to fit the rigid chassis, plus a large articulated trailer the truck can tow. There were a number of other trailers and two diesel fuel tanks either trailer mounted or capable of being placed on a trailer.
5.19. In relation to the tree removal business there was a large log skidder, a large tree grabber, and various other large implements that fitted onto the log handling vehicles. One of the large log handling vehicles appears to be registered. .........There were a number of large sets of harrows in the shed and Mr Barber submitted that the tines of the harrows were replaced in the shed. This I consider would involve substantial metalwork. Hammering to get the worn tines off the harrow spikes; further hammering to get the new tines on, substantial grinding to maintain the tines during their working life.
111
The question remains their relationship with the subject land. Has Mr Kraan used the subject land for the purpose of his water cartage and tree felling businesses for the last continuous fifteen year period to 29 July 1988, even if it was at a dramatically smaller scale to start with?
112
The onus of proving existing use rights rests on the person alleging them and relying upon them. The standard of proof is the balance of probabilities[11].
113
A fundamental principle of existing use rights is to interpret them liberally, providing the facts so permit[12]. The following liberal principles have been applied to found existing use rights:
i Use of land does not necessarily mean physical use[13];
ii The use of land may serve a purpose of use of other land[14];
iii When land is kept vacant for use as the needs of a business demand, much will depend on the extent of its integration with the land in physical use and on the nature of the business being conducted;
iv It is not necessary that land be used 'as a water cartage and timber felling business' for it to be used for the purpose of water cartage and tree felling;
v The use to which land may be put and the activity on it may change, increase and decrease so long as the same purpose is served[15].
114
Harrington[16], warns not to characterise a use of land too narrowly, when a use diminished from bakery to activities ancillary to baking, such as storage of plant, equipment and ingredients used for baking. But there was never any doubt that the bakery existed in the first place. Harrington was not concerned with an initial finding of the land use as a bakery. That fact was accepted. The case concerned, instead, whether a reduction in activity meant the use had ceased.
115
In Norman v Gosford SC it was found as a fact that the land was used for the removal of topsoil and filling for the purpose of sale both before and after the relevant date. It was only a matter of dramatic intensification from manual removal to bulldozers and trucks. It was overt from the outset, and was not contested, that the removal of topsoil and fill occurred. There was also invoice evidence (albeit of small amounts initially) to prove this fact.
116
Norman v Gosford SC[17] held that once an existing use is established, intensification is not prohibited. Provided there are no changes in activities, the level of intensity can lawfully increase. Intensification did not amount to a change of purpose.
117
But I need evidence of the conduct of one or two businesses on and from that land in the first place. In Norman v Gosford, there was no doubt that the original purpose to which the land was being put was 'the removal of topsoil and filling'. There were invoices to prove it (unlike Mr Kraan who has no documentation that assists him at all).
118
In Eaton and Sons PL v Waringah SC[18] also, there was no doubt as to the characterisation or commencement of the use on the land, namely the storage and distribution of timber, or a timber reselling yard. The issue concerned the ever-expanding use of a parcel of land for that purpose. On its facts, the court held that use of part encompassed use of the whole, that future intended use of an adjoining part was sufficient to attract the existing use right. Again, this case is distinguishable, because there was no doubt in that case that the use of timber reselling yard had commenced. It was just a question of its intended future expansion and incorporation of a neighbouring parcel into the primary parcel clearly used from the outset.
119
The same principle was upheld in Rockdale MC v Clark[19], where night lighting of a tennis court did not change its use or characterisation as a tennis court.
120
And as Parramatta CC v Brickworks Ltd[20] emphasizes, the protected use must be a present use, as distinct from a contemplated or intended use, although it is not necessary that there be a present physical use of land. Barwick CJ explains this in Eaton:
Whilst the purpose for which land was purchased will not, of itself, determine its existing use at any subsequent time, that purpose, coupled with the integration of the land with land in undoubted business use will, in my opinion, be an important factor tending towards the conclusion that the land us currently used for the purpose of the business carried on on the land with which it is integrated.
121
Royal Agricultural Society of NSW v Sydney CC[21] explains the purpose behind the law allowing existing uses to continue is the matter of fairness. But there needs to be an existing use in order to attract this privilege.
Finding on facts and application of the facts to the law
122
The primary question is what purpose was being served by the actual use of the land in 1988 (or 1989)?
123
I find that I am unable to get to first base in this case on the incorporation of this land, continuously since 1987 or 1988 or 1989, into the way in which Mr Kraan conducted either of his businesses.
124
The issue is whether the testimony of Mr Kraan and Mr Davey, to the extent to which is not rebutted, proves on the balance of probabilities, that the subject land has been used for the purpose of water cartage and tree felling businesses for at least fifteen continuous years from 29 July 1988 (or even 1989).
125
I refer to their uncorroborated evidence of:
i the storage of logs between deliveries to the timber mills;
ii storage of equipment in containers on the land.
126
Even with the Kraan and Davey evidence, I am unable, on the balance of probabilities, to find existing use rights because:
i the photographic evidence is insufficient and inconclusive;
ii the aerial photos do not assist Mr Kraan;
iii there is no positive documentary evidence of the conduct of any business from this land;
iv there is positive documentary evidence both by and on behalf of Mr Kraan in contradiction of these alleged rights;
v there is no corroborative neighbour's evidence supporting Mr Kraan's activities at the relevant date;
vi Containers and storage of logs is equally equivocal of their use in the contemplated building of Mr Kraan's house and shed.
127
The weight of all the non-corroborative evidence tips the balance of probabilities against Mr Kraan.
128
I think there has been a change in the way Mr Kraan has operated his business over the years, gradually moving it from his parents' dairy farm at Officer over to the subject land after his parents retired in the 1990's. The evidence establishes a dramatic change in the conduct of the business since the 780 m2 shed was built.
129
I find the evidence equivocal as to the use to which he put the containers on the land. He says he lived in one converted, but not one of his neighbours has come along to say they saw him live there before his house was built in 1992, nor that they saw him use his water tank for the shower and his long drop for a toilet.
130
The use of the containers is equivocal with their use as storage of his equipment while he was building his house. The presence of graders, tractors, logs and firewood on the land is consistent with materials required to build his house.
131
On the basis of this evidence I find 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.
132
Existing use rights carry with them privileges which impact upon neighbours, because by their very nature they are unassailable by the planning system and the law allows them to increase as well as decrease. Therefore, they need to be proven, albeit on the balance of probabilities. Untested evidence is dangerous, especially in a field as complex as existing use rights and with such consequences. Liberal an interpretation as the courts say is required; there must be a factual basis for the right in the first place.
133
Enforcement orders are made in the above terms, but no order is made as to revegetation or reinstatement sought by the Brooks-Macmillans. Based upon our inspection of the site, we are satisfied that the area is revegetating naturally, and that re-instatement of pre-existing conditions would necessitate further disturbance which would be, in our opinion, detrimental.
134
The vehicle and equipment repairs, servicing and washing, their storage in the shed and on the land, the administration of the business and the testing and manufacture undertaken in the process of Mr Kraan's inventions, would be classified as industry.
135
Under the Environmental Rural zone of this land at the time the planning permit was lodged, industry is a section 3 prohibited use. Under that zone, planning permission for the shed was only available provided the land enjoyed existing use rights.
136
Even though the land is now zoned Rural Conservation by the cl. 57.03 Metropolitan Green Wedge Land provisions, transitional provisions preserve the planning scheme requirements in force before 19 May 2004.
137
Mr Kraan's permit application for the shed was lodged on 28 April 2004.
138
Given that on the evidence Mr Kraan has not established existing use rights for the conduct of businesses of tree felling and/or water cartage on the subject land, the basis for which the Responsible Authority permitted this size shed has fallen away.
139
We do need to make a decision on the Brooks-Macmillan review of council's decision to permit a 780 m2 shed on the land. We get a sense of de ja vu, given Young SM's exhaustive analysis in 2002.
140
Young SM dealt with the merits and there are no new facts which lead us to alter his decision on the merits.
141
A store can be permitted pursuant to another section 2 use relevant to Mr Kraan, but Senior Member Young also found this and directed that a permit be issued. Mr Kraan has chosen not to act on his permit.
142
The practice of repeat appeals and forum shopping is discouraged, unless new facts and circumstances have arisen[22]. As expressed in Southern Hemisphere Investments pl v Yarra Ranges SC[23]:
A repeat appeal for the same or essentially the same proposal for the same piece of land can expect to receive the same result as a previous appeal unless significant and relevant changes have occurred in the meantime that would indicate that a different result should be given.
143
Koutroubas & Ors v Melton SC[24] expressed the rationale behind this principle:
We add that the public interest also requires that there be an end to litigation: interest reipublicae ut sit finis litium. This time-honoured legal principle underpins common law rules preventing further litigation of issues which have already been the subject of adjudication between parties.
144
As the only new circumstance was council's belief in Mr Kraan's existing use right as the basis for a 780 m2 shed, and as we have found no such right exists, no new facts or circumstances have arisen upon which we should exercise a discretion contrary to Young SM. A 780 m2 shed is not consonant with this Environmental Rural zone.
Consent orders sought by the Responsible Authority in council's enforcement application:
1
That within 6 months of the date of this Order, the Respondent must either:
a construct the shed in accordance with Planning Permit No. T040286; or
b if Planning Permit No. T040286 is not granted, the Respondent brings the subject land into conformity with the Planning Scheme by removing the shed.
2
The Respondent must not carry out any of the following activities on the land at any time:
•
panel beating;
•
spray painting in the open air; and/or
•
modification to vehicles and equipment (including truck trailers, trucks, excavators, tree removal machinery and other heavy vehicles and equipment) which involves the construction, rebuilding or modification of more than 30 percent of the original design of the vehicle or equipment.
3
The Respondent must not carry out any of the following activities on any part of the land except wholly within the curtilage of the shed:
•
metal fabrication and metal work (including grinding and cutting);
•
hammering metal; and/or
•
motor vehicle and equipment repairs and maintenance, without first obtaining written consent from the Responsible Authority.
4
At all times when the activities referred to in paragraph 3 of these Orders are being carried out on the land, all openings to the shed must be kept closed.
5
The Respondent must not store:
•
vehicles and trailers;
•
equipment (including earth moving and tree felling equipment);
•
tanks (including fuel and water tanks);
•
rubbish; and/or
•
metal and other supplies used in connection with the activities referred to in paragraph c. of these Orders
on the land external to the shed in any locations other than the areas designated as "stores" on the sketch plan.
6
The Respondent must only carry out the activities permitted by paragraph 3 of these Orders between 7.00am and 6.00pm, Monday to Friday.
7
In exception to the hours specified in paragraph 7 of these Orders, the Respondent is permitted to operate heavy vehicles and equipment during the evening, night and early morning hours on the land provided that the operation of such vehicles and equipment is:
•
associated with emergency call-out work; or
•
the operation of heavy vehicles and equipment on any part of the land does not occur for longer than 2 hours outside of the hours specified in paragraph g. of these Orders in any 24 hour period.
8
The Respondent must cause the timber doors and panelling on the eastern wall of the shed to be removed and replaced with a mud brick wall in accordance with plan 1 of the alteration plans by no later than 6 (six) months from the date of these Orders.
9
The Respondent must cause the openings in bay 1 and bay 2 of the southern section of the shed to be fitted with sliding timber doors in accordance with plan 2 of the alteration plans by no later than 3 (three) months from the date of these Orders
10
The Respondent must not increase the floor area of the shed so as to exceed 780 square metres without the prior written consent of the Responsible Authority.
11
The Respondent must cause:
•
further dense landscaping to be planted in the area of the land designated "landscaping" on the sketch plan;
•
using trees and shrubs which are indigenous to the area
to the satisfaction of the Responsible Authority within 3 (three) months from the date of these Orders.
12
A s.173 agreement recording these obligations must be entered into.
Amended Enforcement orders sought by the Brooks-Macmillans
1
The Respondent, Ronald Kraan is ordered, within 60 days of service on him a copy of the Order to remove the building being the building the subject of proceeding Nos. P71303/2000, P4257/2001 and P510005/2001.
2
The Respondent, Ronald Kraan is ordered, within 60 days of service on him a copy of the Order to cease the uses that are contrary to the Cardinia Planning Scheme, in particular, "store" and "industry" or "agricultural contractors depot".
3
The Respondent, Ronald Kraan is ordered to pay the Applicant's costs of bringing this application.
4
Reinstatement of the land including the removal and/or identification of unlawful earthworks.
5
Reinstatement of the land including vegetation.
6
The Respondent, Ronald Kraan is ordered, within 60 days of service on him a copy of the Order to remove the building being the shed on the southern boundary[25].
7
Any other orders that the Tribunal considers appropriate.
[1] Mr Barber acted for Mr Kraan during that set of hearings
[3] Permit no. T970652 issued 4 May 1998 for 243m2 shed
[4] the businesses of water cartage and tree felling
[5] extracted from [2002] VCAT 473 @ para 1.4
[6] whether at Officer or the subject land
[8] Our site inspection revealed that the caravan, boat, and personal equipment are not stored in the proposed large shed, rather in the smaller second shed.
[9] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147.
[11] Clare v Jeff's Bulk Appliances PL [1981] VicRp 72; [1981] VR 758
[12]Dorrestijn v South Australian Planning Commission [1984] HCA 76; 54 LGRA 99; Parramatta CC v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 @ 25; [1972] HCA 21; 26 LGRA 437; Woollahra MC v Banool Developments PL [1973] HCA 65; (1973) 129 CLR 138 @ 144; [1973] HCA 65; 28 LGRA 410.
[13] Eaton and Sons PL v Waringah SC [1972] HCA 33; (1972) 129 CLR 270; 25 LGRA 369
[14] City of Nunawading v Harrington [1985] VicRp 64; (1985) 55 LGRA 139
[15] Norman v Gosford SC & Anor [1975] HCA 15; (1975) 132 CLR 83.
[16] City of Nunawading v Harrington [1985] VicRp 64; (1985) 55 LGRA 139
[21] (1987) 61 LGRA 305 @ 309-10
[22]Amoco Australia Ltd v Berwick CC (1983) 1 PABR 166
[24] Koutroubas & Ors v Melton SC [2002] VCAT 917 (24 June 2002)
[25] Otherwise known as the second or smaller shed
# Cardinia SC
Kraan \[2004\] VCAT 2624
(1972) 128 CLR 1
(1973) 129 CLR 138
(1972) 129 CLR 270
(1975) 132 CLR 83
(1964) 110 CLR 529