Mr Stuart Morris QC assisted by Mr Nick Tweedie, both of Counsel, instructed by Hoeys Lawyers. Mr Morris called the following evidence:

• expert planning evidence from Mr Kel Twite of SJB Planning. Mr Twite gave sworn evidence in relation to any historical aspects;
• lay sworn evidence regarding the history of the subject land and the relevant brothel activities from Ms Murdoch and from Mr Norman Williams.

P469/2010 - Application for Declaration pursuant to section 149A of the Planning and Environment Act 1997.

P490/2010 - Application that the Tribunal make orders requiring the responsible authority to issue a certificate pursuant to section 97N of the Planning and Environment Act 1997.

62 Dudley Street in West Melbourne is located on the north side of Dudley St, opposite the flagstaff garden. It is improved by a double-storey period style terrace dwelling.

1. This overall matter involves two proceedings but the one site at 62 Dudley St in West Melbourne. Since January 1997 the registered owner of this property has been Classic Terrace Pty Ltd, of which Ms Donna Murdoch is the sole director/secretary. Although I understand she is known in different contexts as either Donna Murdoch or Donna Lawson, for the purposes of this decision I shall refer to her as "Ms Murdoch". The site lies on the north side of Dudley St, opposite the Flagstaff Gardens. The subject land is improved by a double-storey period terrace building.
2. The first proceeding is P469/2010, involving an Application for Declaration pursuant to section 149A of the Planning and Environment Act 1997. The application material for this proceeding sets out various background facts and other points relied upon, and then seeks the following orders from the Tribunal:
   1. Pursuant to Clause 63 of the Melbourne Planning Scheme, the land at 62 Dudley St, West Melbourne has an existing right to be used for the purpose of a brothel.
   2. The Respondent is to pay the costs of the application.
3. The other proceeding is P490/2010. This is an application under section 97P of the Planning and Environment Act 1997. Again the application material sets out various background facts, point relied upon and then seeks the following orders:
   1. Within 7 days of the date of these Orders the Respondent shall issues a certificate pursuant to Section 97N of the Planning and Environment Act 1987 which states that the land at 62 Dudley St, West Melbourne has an existing right in accordance with Clause 63 of the Melbourne Planning Scheme to be used for the purpose of a brothel.
   2. The Respondent is to pay the costs of the application.
4. In terms of other relevant information regarding the site and surrounds, it is common ground that as at the late 1990s the appeal site had been used for the provision of prostitution services ie a brothel. I am told that the adjoining property at 60 Dudley St has been and remains being used for the purposes of a brothel, although the operator of this No. 60 brothel has no relationship with the Applicant here.
5. Moving one property further west again, the property at 58 Dudley St is owned by Popular Pastimes Pty Ltd, which Ms Murdoch is again the sole director/secretary of. No. 58 has been and remains used for a brothel known as "the Main Course". In relation to this No. 58 brothel business, Ms Murdoch is the holder of a Prostitution Service Providers Licence No. PCA3998BE allowing her to operate same.
6. In summary, if these proceedings are successful, I am told that Ms Murdoch plans to:
   • relocate the Main Course brothel business to No. 62 Dudley Street;
   • renovate the No. 58 terrace house; and
   • then move the business back into No. 62.
7. The hearing of these two proceedings came before me on a combined basis on 10 February 2011. At this time I heard submissions from Mr Morris (assisted by Mr Tweedie) on behalf of the Applicant and from Mr Rantino on behalf of the Council.
8. Mr Morris called certain planning evidence from Mr Kel Twite of SJB Consultants. With respect to the history of the appeal site and the relevant brothel activities in question, he also called sworn lay evidence from his client Ms Murdoch and a staff member of the No. 58 Dudley St business in the form of Mr Williams.
9. In the course of the hearing Mr Morris confirmed after some discussion that the Applicant was not actively pursuing any costs claim against Council in relation to this proceeding.
10. To summarise the Tribunal's findings, I have first dealt with some other background information and the more straightforward aspects of the proceeding (which were either uncontested or involve less complexity). The balance of my reasons address the central aspect of this proceeding, being whether or not the circumstances/evidence supports a finding that the existing use rights for the No. 62 Dudley Street property to be used for the purpose of a brothel continue to exist today. My overall conclusion has been to decline to make either of the Declarations sought by the Applicant.

1. Other relevant background circumstances include the following.
2. The new format Melbourne Planning Scheme was gazetted on 4 March 1999. With respect to the previous planning scheme, and prior to the reform of the prostitution industry in Victoria, I understand that planning permits would commonly be issued for the purpose of a 'massage parlour', but in practice would then frequently operate to provide sexual services.
3. Following a decision of the Planning Appeals Board dated 3 December 1981, a planning permit No. CM3666 was issued allowing the use of the appeal site as a "relaxation centre (massage parlour)".
4. However during or in the lead up to 1984 the then Cain Government established the Neave Enquiry into the prostitution industry, which recommended the decriminalisation of prostitution and the creation of an associated new licensing system. This recommendation was accepted and in due course implemented by the then Government. From about November 1984, this new regime included a change to the Melbourne Metropolitan Planning Scheme which allowed properties benefiting from a "massage parlour" planning permit to validly operate as a brothel. However either at that point or over the following years a restriction was also put in place that any one person should only have, at the one time, an interest in a single brothel.
5. By the year 2000 Ms Murdoch apparently had acquired an interest in more than one brothel. However I understand that for some time this was still potentially lawful, depending on the nature/age of the planning permits involved. However this regulatory situation was tightened up, which in due course led to Tribunal proceedings dealing with Ms Murdoch still having an interest in more than one brothel - see the Tribunal decision by Member Davis as he then was in Donna Murdoch v Business Licensing Authority [2001] VCAT 1986. For my purposes, the main features of Mr Davis' orders were that:
   • Ms Murdoch was granted a protitution service provider licence in relation to the No. 58 Dudley Street property, but only on the basis that she hold no other interest in any other brothel business. This requirement is reflected both in the relevant Tribunal orders and also by way of the undertaking which Ms Murdoch gave to the Tribunal - see paragraph 44 of Mr Davis's decision.
   • It was implicit that Ms Murdoch could continue to be the registered owner of the No. 62 Dudley Street property, but it was crystal clear that she was to have no interest whatsoever in any prostitution services being provided at No. 62.
6. Because of this new restriction, I understand that the brothel at 62 Dudley St (following Mr Davis' orders) immediately stopped operating and Ms Murdoch sought to sell the business. However as this was unsuccessful, Ms Murdoch via Classic Terrace Pty Ltd has continued to be the registered owner of the 62 Dudley St property.
7. In terms of the practical reason why Ms Murdoch has initiated these two proceedings, I was told by Mr Morris that she now wishes to carry out the major renovations to the terrace house at the No. 58 property which were authorised by DP Dwyer's orders in Popular Pastimes Pty Ltd v Melbourne CC [2008] VCAT 1184. These renovations will apparently make it unviable for "the Main Course" brothel business to continue operating on the No. 58 premises at the same time. Ms Murdoch estimates the time frame for the carrying out of the No. 58 renovations to be about 8-10 months. Hence her aim is to move the Main Course business to No. 62 for the duration of these renovations, then in due course move it back to the newly renovated No. 58 premises.

1. In terms of the relevant planning framework provisions, the key ones which are relevant to this type of 'existing use rights' debate are Clause 63 of the Planning Scheme, together with Sections 6(3) & (4) of the Planning and Environment Act 1987. I do not need to spell these provisions out here, as both parties are legally represented and no doubt are already familiar with them.
2. In terms of the scope of those issues which I am required to make a finding on, it is important from the outset to understand those points which were not in debate at the hearing.
3. In this regard, I acknowledge that whereas most 'existing use rights' type proceedings at the Tribunal involve the practical question of whether exisiting use rights have been established, it is important to keep in mind that the practical issue in this proceeding is whether or not the contentious existing use rights in relation to the 62 Dudley St property have expired. In other words, in the course of the hearing Mr Rantino conceded that as at 1999 the 62 Dudley St property did enjoy existing use rights to be used for the purpose of a brothel - the issue in dispute is whether these existing use rights still exist today.
4. As part of clarifying the points in debate, I acknowledge that the precise wording used in Clause 63.06 of the Planning Scheme is that it deals with whether the existing use rights have "expired" due to the use in question having "stopped" in the prescribed manner. However many of the cases in question use certain other terms such as "discontinued", "abandonment", "terminated" or "cessation". However in my view nothing particularly turns on the choice of these words as the basic meaning is clear enough both in Clause 63.06 and in these cases.
5. Turning now to the P490/2010 proceedings involving Section 97P of the Planning and Environment Act 1997, Mr Rantino in the course of the hearing queried whether the Tribunal in fact has jurisdiction to make the type of order being sought by the applicant (see above). In the alternative, he argued that relevant previous Tribunal decisions indicate that it would be inappropriate for Section 97P to be utilised in this way.
6. After some debate on this issue, Mr Morris on behalf of the Applicant indicated that his client was content to not actively pursue the P490/2010 proceedings, but rather to simply rely on the Application for Declaration pursuant to section 149A of the Planning and Environment Act 1987 in its P469/2010 proceeding. This is the basis on which I have made my finding.
7. I should also acknowledge at this stage that during the hearing I was taken to considerable previous caselaw on the question of the potential expiry of existing use rights, involving both Tribunal decisions in Victoria and Court decisions in different state jurisdictions and the High Court. As these various relevant cases are to some extent discussed in the two written submissions provided to me by Mr Rantino and Mr Morris (and copies provided in the folder helpfully provided by the Applicant), I do not need to repeat them all here, but will more deal with them on a 'as need' basis. A copy of these written submissions and the folder of cases from the Applicant are retained in the Tribunal file.
8. In relation to the evidence put to me regarding the treatment of the interior of 62 Dudley St building over the period 1999 to the present, I accept that there is convincing evidence that this interior area has been left essentially unchanged since the active provision of prostitution services in the building ceased during 1999. By way of example, the evidence (including two sets of photos) indicates that the waiting area is essentially the same, and that the various bedrooms remain fitted out with beds, basic linen etc. In addition, the interior décor as a whole certainly still has a strong (some would say tragic) 1980s feel to it.

Role of Clause 63.05 of the Planning Scheme/ Prostitution Control Act 1994

1. Clause 63.05 of the Planning Scheme provides that an otherwise prohibited use may continue provided:
   • no building or works are constructed or carried out without a permit; and
   • any condition or restriction to which the use was subject continues to be met; and
   • the amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
2. However the most directly relevant part of Clause 63 is Clause 63.06, the key provisions of which provide that:

* the use has stopped for a continuous period of two years, or has stopped for two or more periods which together total 2 years in any period of 3 years.

1. Hence the critical question in this appeal is whether the existing rights which undoubtedly attached to the subject land as at 1999 have expired pursuant to Clause 63.05.
2. In the hearing before me, the parties disputed which of them had the formal onus to either prove or disprove (as applicable) that the existing use rights still exists today.
3. I note that the current Planning Scheme definition of "Brothel" is:

"Land made available for prostitution by a person carrying on the business of providing prostitution services at the business's premises".

1. This planning definition is almost identical to the definition of "Brothel" in the Prostitution Control Act 1994, except that the latter definition adds the word ""offering or..." after the word "providing".
2. This 1994 Act defines "Prostitution" as "the provision by one person to or for another person (whether or not of a different sex) of sexual services in return for payment or reward". There is also a wide-ranging definition of "sexual services" which I do not need to repeat here.

1. It is useful to set out some quotes from what I regard as the most relevant cases which have been tackled similar issues, as follows.
2. I accept that Dorrestijn v SAPC [1984] HCA 76; (1984) 56 ALR 295 at 300 and Nunawading City Council v Harrington [1985] VicRp 64; [1985] VR 641 are authority that existing use rights should be liberally construed as the language in its context allows. I also acknowledge the following passage from page 56 of Meriton Apartments Pty Ltd v Fairfield City Council [2004] NSWLEC 423; 137 LGERA 35:

Cases such as Hudak and Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 and Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) LGRA 123 make it clear that a finding that an existing use right has been abandoned is not lightly made. Even the total cessation of a use for a short period will not constitute abandonment of that use in circumstances where it is intended that the use be continued in some way in the future.

1. I agree that it assists a case in favour of on-going existing use rights if the premises in question remain fitted out for the alleged on-going use. For example, the court in Leeming v Port Adelaide CC [No. 2] 62 LGRA 296 held that the subject premises retained existing use rights for the purpose of a meat works despite about 3 years of non-activity between the last occupation of the building and the point at which Council first asserted that any existing use rights had ended. One factor was that the building had been purpose-built at a meat works and none of the fittings and fixtures had been removed in the intervening period.
2. In Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; 129 CLR 138 at 144, Justice Mason stated as follows:

The expression "continuance of the use" in its natural and ordinary sense may be conveniently rendered as "the continued use". So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment, nor a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use.

1. In the Leeming decision Chief Justice King (in delivering the leading judgment) said as follows (with my highlighting):

Use of land then is something different from activity pursuant to or in the exercise of that use. An existing use continues until it is discontinued and superseded by a new use or a state of non-use. Whether there has been dis-continuance must be gathered from all the circumstances. Where activity pursuant to the use has ceased, the intention of the owner or occupier as to resumption is relevant although not a decisive consideration. Essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier. The significance, for example, of the continued presence on the premises of equipment and fittings appropriate to the existing use may depend upon the intentions of the owner or occupier with respect to such equipment and fittings. If they are allowed to remain on the premises for the purposes of facilitating the resumption of activity pursuant to the use on the premises, their continued presence will be a strong indication of the continuance of the use. If they remain on the premises only for convenience pending sales as chattels separated from the freehold, or pending removal to other premises, their continued presence will not indicate the continuance of the use. Mr Byrt argued that subjective intentions could never be relevant to the determination of whether an existing use has been discontinued. I think that the argument overlooks the aspect of which I have just referred. It is also inconsistent with the authorities to which I have referred above.

A use may be discontinued by means of ceassation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use. It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future.

1. The case of Hudak v Waverley Municipal Council 18 NSWLR 709 involved consideration of whether existing use rights continued to exist in relation to a building that had not been occupied (and had suffered vandalism) over a period of six years or so. The leading judgment was delivered by Acting Justice of Appeal Hope, who stated as follows (which my underlining) at paragraphs 716-717.

It is difficult to imagine that an existing use will continue indefinitely despite absence of actual use merely because an owner has an intention to carry on the existing use or to resume it at some stage in the future. It was suggested that his intention would operate to continue the existing use if the delaying factor was related to some consideration relevant to the restoration of the use, such as a financial problem or, as in the present case, litigation with his former wife and with the local council. I have no doubt that these may be relevant considerations but as it seems to me the existence of an intention based on some factor should and does not necessarily continue the existing use. Thus the owner of an uninsured factory which has been burnt down may intend to continue the existing use and to re-erect the factory building for the relevant purpose if and when he wins the lottery. Could it be said that after, for example, ten years, no lottery win occuring in the meantime, the existing use still continued. In my opinion it would not have done so. It was put that in such a case there would not have been a continuance in the relevant sense, but with respect such a response begs the question. What is the relevant sense? In Shannahan Crash Repairs Pty Ltd v Port Adelaide City Council (1978) 20 SASR 491 at 511; 41 LGRA 50 at 69, Wells J said that one of the circumstances in which a use will be abandoned is "because it has been discontinued for so long that the inference must be drawn that the previously existing use is not just in temporary abeyance but is no longer in existence". His Honour went on to say that the question was one of fact and degree but with respect the question remains, to what must the fact and degree be related.

As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant persons, an to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use. Where these continues to be activity designed to continue a non-conforming use as was the case in Woollahra Municipal Council v Banool and Woollahra Council v TAJJ Investments Pty Ltd, and the length of the ceasation of actual use is not very long, it may be easy enough to conclude there has been no abandonment. If however years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character, such as winning the lottery, there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment.

1. The Harrington decision is also relevant, and I will return to this case further below. The facts of this case involved one of two bakery sites owned by the Applicant. Baking and deliveries activities continued at the other site in Clayton but ceased on the subject land over a certain period. However the ovens on the subject land were left intact and maintained. The company's employees and vehicles continued to make regular use of the subject land. Fuel and flour were stored there. It was held that the subject land still enjoyed existing use rights for the purpose of a bakery.
2. Some common principles I see arising from these cases are that:
   • each of these cases ultimately turns on its own fact and the issues in question are often a qustion of degree rather than a "black and white" situation;
   • there can be certain interruptions to or breaks in the relevant activities on the subject land which will not necessarily lead to the discontinuance of that use;
   • it assists a case in favour of on-going existing use rights if the premises in question remain fitted out for the alleged on-going use;
   • the subjective intent of the owner or occupier is relevant but not determinative;
   • likewise in relation to whether items associated with the alleged on-going use have been stored on the premises, although query whether this storage may be driven simply by convenience;
   • it assists the case in favour of existing use rights if there are demonstrable on-going synergies between any remnant activities on the subject land and another part of the same overall business being run elsewhere by the same operator;
   • the length of time since the relevant activity ceased is a key factor;
   • a considerable lapse in time since the relevant activity last took place on the subject land can point to the discontinuance of that use, regardless of the subjective intent of the owner or occupier. This will be a particular factor where it is problematic to set a timeframe for the resolution of the factor said to be delaying the resumption of the activity.

Tribunal's findings whether the 62 Dudley St property still has the benefit of existing use rights to be used for the purpose of a brothel

1. If one reviews the sworn evidence of Ms Lawson/Murdoch and Mr Williams, the key points for my purposes are that:
   • the day to day use of the No. 62 property as a brothel ceased in mid to late 1999 and this property was then locked up by Ms Murdoch;
   • the No. 62 property has not been put to any other use since 1999;
   • the No. 62 property remains set up for use as a brothel and is periodically cleaned;
   • the property remains locked and only Ms Murdoch and the managers of the No.58 brothel business have the keys to the No. 62 property;
   • one or two rooms in the the No. 62 property have been used to store brothel paraphernalia from both the No. 58 and No. 62 properties including tea and coffee, pillows, mattresses, linen, towels and specialist brothel equipment;
   • Ms Murdoch has not permitted anyone to sleep or stay at the No. 62 property;
   • it is Ms Murdoch's on-going hope that the relevant prostitution regulation regime in Victoria will one day be relaxed so as to allow her to validly have an interest in more than one brothel at a time.
2. Taking these points, the key features of Mr Morris' submission to me in summary were that:
   • there is no evidence that the pre-1999 use of No. 62 as a brothel has ever been replaced by a different use or non-brothel activities;
   • the No. 62 premises remain set up as a brothel and has essentially been mothballed awaiting a change to the prostitution licensing regime which would allow Ms Murdoch to have an interest in more than one brothel. Consistent with this, it remains Ms Murdoch's subjective intent to use No. 62 as a brothel in the future;
   • on this basis, the No. 62 property has on a dormant basis continued to be used as a brothel since 1999;
   • the Harrington decision stands for the principle that land may continue to be used for a particular use even where there is minimal actual activity associated with that use. Applying this principle to the contentious facts here, Mr Morris argued that the No. 62 premises has continued to be used for the purposes of a brothel, although it is common ground that no actual sexual services in return for payment have occurred on-site since 1999;
   • Mr Morris took me through various other cases which are not mentioned in his legal submission but which he submitted supported his case - see his folder of decisions.
3. In response, Mr Rantino did not contend that all of the relevant factors to be considered suited his case. In relation to the storage of brothel-related items in the subject premises, he did query whether this was driven simply by convenience (if not contrived), in the sense that such items could just as easily be stored in a nearby professional storage facility.
4. However Mr Rantino mainly focused on the one issue, being the length of time since the provision of sexual services in return for payment had actually occurred on the appeal site ie not since 1999. He contended that this 11 year lapse in time without this activity occurring on-site was the fatal aspect to the Applicant's claim that existing use rights still exist for No. 62 to be used for the purpose of a brothel.
5. Following this approach, even if:
   • Ms Murdoch's subjective desire was that in the future No. 62 could again be used as a brothel; and
   • No. 62 was being used since 1999 for the storing of brothel-type items associated with either No. 62 or No. 58

the "11 year lapse in time" factor was still fatal to the Application. Mr Rantino argued that given this 11 year intervening period, Ms Murdoch's hope that the relevant brothel licensing regime might be relaxed so as to allow her to operate more than one was akin to Ms Murdoch hoping to win the lottery.

1. If I was required to make this "existing use rights" finding at a point much closer to the ceasation of the provision of sexual services in return for payment on the subject land in 1999, I acknowledge that the Applicant would have a real prima facie case that the subject land still enjoys existing use rights for the purpose of a brothel. That is, during the period soon after 1999 I accept that the key cases (notably the Harrington decision) offer significant support for the proposition that despite the absence of the provision of sexual services in return for payment on the subject land, the appeal site continued in a dormant manner be used for the purpose of a brothel on the strength of:
   • the premises remaining set up as a brothel;
   • the intent of Ms Murdoch to use the premises again as a brothel in the future, if this became legally possible;
   • the storage of brothel-type items on the premises (although there is only so much weight I can give this factor, given that these items could just as easily be kept in professional storage nearby);
   • there being some degree of overlap (albeit modest) between the on-going operation of the No. 58 brothel and the storage of brothel-type items at No. 62, in the same manner discussed in the Harrington case;
   • the sworn evidence that the premises have been kept locked since 1999 and no other use has occurred on the site in the meantime.
2. However as one moves further away in time from 1999, I consider that this "real prima facie case" gradually recedes and instead what emerges is a compelling case that the sheer lapse of time without the relevant activity occurring on the subject land constitutes the abandonment or expiry of the existing use rights, regardless of the subjective intent of the owner or occupier. To re-state this in the circumstances of this case, my view is that where 11 years have passed since sexual services in return for payment have been provided on the appeal site, this very lengthy intervening period of non-activity in itself provides a compelling case that the previous "brothel" existing use rights have expired, regardless of Ms Murdoch's desire to at some future point use No. 62 as a brothel again if this became legally possible.
3. For the removal of any doubt, where there is an 11 year lapse period since sexual services in return for payment have occurred on the subject land, I do not see the mere storage of brothel-type items over this period as constituting "prostitution services" so as to give this use situation the character of a "brothel".
4. I see this "very lengthy intervening period of non-activity" factor as making the circumstances here quite distinguishable from those in the Harrington case. I also agree with Mr Rantino that the Harrington situation involved a more meaningful on-going connection between the subject land in that case and the other bakery in Clayton, whereas the "storage of brothel type items" at No. 62 seems a weaker link between the No. 62 property and the on-going brothel activities at No. 58.
5. To contrast the 11 year period of non-activity in question here to the relevant circumstances of some of the cases referred to by Mr Morris:
   • The Harrington decision involved a period of non-baking activity on the subject land of about three years, three months.
   • Miron Nominees Pty Ltd & Abalece Pty Ltd v City of Heidelberg 14 AATR 265 involved a hotel building that was burnt down in September 1992 and a Tribunal existing use rights hearing held in May 1995.
   • The Hudak decision involved a flats building that was last occupied in 1980. Over the following period the building was not occupied and its conditions substantially deteriorated - vandalism occurred and the trial judge described its condition after this neglect as "derelict". In December 1985 Council served an order on the landowner requiring the building to be demolished given this derelict condition. The subsquent litigation included a request for a Declaration that the existing use right for the building to be used for the purpose of residential flats had not been abandoned. The trial judge found that by 1986 "abandonment" had occurred, and this finding was upheld on appeal.
   • The Leeming decision involved a period of non-activity of the relevant meat works facility between 1981 and when Council first raised its challenge to existing use rights in January 1984.
   • The Banool Developments case involved a rather complicated situation in that the existing use rights debate involved multiple buildings. However it appears that the period of non-activity in question is over a range of time no greater than 2-3 years.
   • R v City of Oakleigh Ex parte New Gamble Brickworks Pty Ltd [1963] VicRp 92; [1963] VR 679 was described by Mr Morris as a key precedent in the Applicant's favour. Whilst I acknowledge it has some supportive elements, it is telling that the period of non-brick making activity with the factory in question was between April 1942 and August 1945[1].

In summary, none of these cases apart from Hudak involve a non-activity period beyond 3-4 years - Hudak is more like 6 years. I am still unaware of any precedent decision whether it was held existing use rights still survived over the type of very long lapse period in question here.

1. My conclusion that this "non-activity over an 11 year lapse period" factor is fatal for this proceeding is reinforced by:
   • the on-going major uncertainty whether there is any realistic prospect that the brothel licensing regime in Victoria will be relaxed so as to allow Ms Murdoch to have an interest in more than one brothel. Whilst it is true we have had a recent change in Government, I am not aware that the Liberal Opposition went to the last election with a stated policy of making this change, and certainly this was not put to me by Mr Morris. This seems an obvious example of the type of on-going more indefinite uncertainty referred to unfavourably by the court in the Hudak decision;
   • the unfavourable comparison which can then be made with the concept of an owner hoping to "win the lottery", as was also discussed in the Hudak decision. In other words, I agree with Mr Rantino that where 11 years have gone past and there is still no obvious sign on the horizon of Ms Murdoch being able to legally have an interest in more than one brothel, this leaves Ms Murdoch's position in relation to her preferred future use of No.62 open to the criticism that it is akin to hoping to win the lottery; and
   • the fact that the court in Hudak expressly commented on a 10 year lapse of time as being the type of period of non-activity that it would regard as fatal for the asserted on-going existing use rights.

1. In conclusion, my main findings have been that:
   • by consent, the application under Section 97P is refused;
   • Mr Morris has put forward comprehensive submissions but I was not seduced by them - I decline to make the Declaration sought pursuant to Section 149A of the Planning and Environment Act 1987; and
   • as the Applicant is no longer actively pursuing any costs claim against Council, I do not need to make any finding on this issue.
2. I consider that I am not required to make any formal finding as to which party had the onus of proving the termination or survival of the existing use rights for 62 Dudley Street, because I can indicate that I would have made the same overall finding regardless of which way the onus might operate. However my initial impression is that virtually none of the cases discussed at the hearing specifically address this issue. However there is a specific statement on this issue at page 359 of Henshall & Ors v Shire of Flinders 4 PABR 350, where the Tribunal found that "...the onus falls upon those asserting the cessation of non-conforming use rights rather than than on the Applicant once the rights have been established". The decision of Willoughby Municipal Council v FG Nissen Pty Ltd 13 LGRA 106 provides some supplementary support for Henshall on this point.
3. This suggests to me that where there is a dispute as to who bears the onus of proof in a dispute whether existing use rights have expired, these two cases are a good starting point and anyone wanting to move away from them would need to either find other authoritative cases or provide submissions why they were wrongly decided.