Danieli v Campaspe SC & Ors [2009] VCAT 963

The application for enforcement order makes reference to the construction of the new shed in 1989 and construction of the extension to it in 1999 without planning permits.
In terms of the initial construction of the shed in 1989, I find that at that time, it was ancillary to the dwelling on the land and therefore did not require a permit. The subdivision had not occurred at this stage and the land was being used for two purposes - dwelling and motor repairs. I am satisfied that the shed was constructed for the purpose of storage in connection with use of the land as a dwelling, and the shed was not used in connection with the use of the land for the purpose of motor repairs until 1995.
I therefore find that construction of the shed in 1989 did not require a planning permit and this aspect of the enforcement order application must fail.
With respect to the shed extension in 1998, the Soares and the council concede that a planning permit was required. The Soares have lodged a permit application with the council, for the shed extension which has been put on hold pending the outcome of these proceedings.
In 1998 when the shed extension was constructed, existing use rights had not yet been established under clause 63.11 because at that time the land had only been used for the purpose of motor repairs for 10 years. Therefore, construction of the shed extension was a breach of the planning scheme.
However, an application for permit has now been submitted. Any decision about this application must be based on the circumstances as they exist at the time of the decision, which includes the planning controls as they exist at this time. With the passage of time since its unlawful construction, existing use rights have now been established for the land. Consequently, clause 63.05 enables a permit for a building to be granted. I consider that the council should now continue to process this permit application.
I note that the enforcement order application seeks no specific orders relating to removal of the shed or the extension. The orders sought relate only to use of the land and the shed. In all the circumstances, no enforcement order relating to the shed extension needs to be made as part of this proceeding.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (2)

Danieli v Campaspe SC & Ors [2009] VCAT 963 (18 May 2009)