1. This Application for Review of the failure of the Responsible Authority to issue a Compliance Certificate pursuant to Section 97P of the Planning and Environment Act 1987 is refused.

Application for Review of the failure of the Responsible Authority to issue a Compliance Certificate pursuant to Section 97P of the Planning and Environment Act 1987.

The subject land has a total area of about 10.7 hectares and it situated about 150 metres east of the intersection of Rogers Road and Healesville-Kinglake Road. The site is undulating in nature. The buildings on the subject land are located closer to the south-western boundary. Apart from the two main buildings which feature in this proceeding, there are also various other sheds and outbuildings. Vehicle access is via an existing crossover and driveway interface with Rogers Road. The site is mostly cleared, but with some patches of scrub. It is common ground that a single storey weatherboard building on the review site has been lawfully used as a dwelling.

1. The joint owners of the review site at 30 Rogers Road in Chum Creek are Francesca, Katerina and Giovanna Di Biase. As set out in the letter from A & D Di Baise to Council dated 14 January 2011, the Di Biase family purchased the review site in 1985, apparently in the belief that the site included 'two dwellings'. This letter indicates that the family then occupied the subject land until the year 2000, at which time they apparently moved to a new house in Lilydale. During the period up to 2000, this letter further provides that the Di Biase parents occupied the weatherboard building on the subject land and their daughter occupied the brick veneer building. The Applicant has further indicated that once the family moved to Lilydale, both the weatherboard and the brick veneer buildings were continually leased to tenants.
2. Council has advised (and the Applicant does not contest) that the subject land to date has always been rated for one dwelling. While Council also advises that the review site has had additional bins since 1998, I see little turning on this in itself. Paragraph 20 of Council's written submission usefully states:

Planning permit 29/77 issued on 11/2/1977 "to use the land for residential purposes". The permit conditions required further permits be obtained for any works, including construction of a dwelling.

1. This is an urban-fringe location, with the main characteristics of the site already described above. It is common ground that the single storey weatherboard building on the review site can be lawfully used as a dwelling. However under the current Green Wedge Zone, the use of land for a second dwelling is prohibited. The site is now also affected by a Bushfire Management Overlay, bearing in mind the site is part of an area substantially affected by the Black Saturday bushfires in 2009.
2. The owners seek a Compliance Certificate from Council pursuant to Section 97P of the Planning and Environment Act 1987. In particular, they seek a Certificate confirming that the brick veneer building also on the review site has existing use rights to be used for the purpose of a second dwelling on the site.
3. The Applicant has provided information which it believes adequately substantiates that over the key 15 year period in question, the brick veneer building was initially occupied continually be family members, and then continually commercially rented out to tenants, so as to create 'existing use rights' for that building to be used as a second 'dwelling' on the property. I refer here to the 'verification documentation' provided to both Council and the Tribunal by the Applicant.
4. This position has been contested by Council, with Council refusing to issue any such Compliance Certificate. This refusal has been appealed to the Tribunal. Council as part of its position relies on its letter to the owners dated 10 January 2011, where Council put on the record that it considers that the brick veneer building cannot be used for the purpose of a dwelling, such that it needs to be de-commissioned to be lawful. A copy of this letter was tabled at the hearing before me.
5. On the one hand, there is previous Tribunal caselaw that 'existing use rights' disputes of this type should be resolved by way of an Application for Declaration to the Tribunal, rather than by way of a contested Section 97P application. See for example McDonald Mary v Nillumbik SC [2000] VCAT 772 and Logie HC&CM v Campaspe SC [1999] VCAT 431. On a very strict view, the Tribunal in theory could refuse this Application on this basis alone ie that this Application has been brought in the wrong manner. However in all the circumstances I consider that it would be overly harsh to take this course of action, particularly when Council has not seriously challenged this procedural point in the lead up to the hearing eg through a strike out application.
6. However for future reference, I endorse that the Tribunal expects these types of disputes to be dealt with by way of an Application for Declaration.
7. The hearing of this dispute came before me on 5 September 2013. At this time I heard submissions from the two advocates listed above. In the course of the hearing, I mentioned to the advocates that I had done a somewhat comparable case more recently, in the form of Hanson v Manningham CC (VCAT Ref. P2996/2012). Before the end of the hearing, I provided both advocates with a copy of this Hanson case and gave them the chance to read it and make comments to me about it.
8. The first part of my reasons below more 'sets the scene' for how the Tribunal deals with this type of 'existing use rights' dispute, what the basic principles are etc. The balance of these reasons assess the key facts of the particular dispute here and sets out the Tribunal's findings. My overall conclusion is that there is inadequate reliable evidence before the Tribunal to justify allowing the Application for Review. Rather, the available information more reinforces Council's refusal to issue the requested Compliance Certificate.

1. A good starting point here is Clause 74 of the Planning Scheme, which defines a 'Dwelling' as follows (with my emphasis):

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling.

1. We then move to Clause 63 of the Scheme, where the critical sub-clause for our purposes is Clause 63.01, which sets out in five bullet points how "existing use rights" can be established. The fourth such bullet point is relevant here:
   • Proof of continuous use for 15 years is established under Clause 63.11.
2. The relevant text from Clause 63.11 reads as follows:

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 continually for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by the 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.

STANDARD ASPECTS TO HOW THE TRIBUNAL DEALS WITH 'EXISTING USE RIGHTS' DISPUTES

1. As with the Hanson decision, it is useful to 'set the scene' with how the Tribunal typically deals with this type of 'existing use rights' dispute. The easiest way to deal with this seems to paraphrase the same points which I set out in the earlier section of my reasons in the Hanson decision.
2. The definition of "Dwelling" found above has both a "use" and a "development" aspect to it. The "use" aspect is the initial words which I underlined in the relevant quote above ie 'A building used as a self-contained residence...'. There follow the built form requirements, being the four physical elements referred to.
3. In relation to precisely when the 15 year period would run from and to, it is clear from the terms of Clause 63.01 and Clause 63.11 that process operates as follows. The 'finishing point' for the 15 years is usually the date on which Council formally advised the landowner (usually by way of a letter) that Council believes the relevant use to be unlawful and orders that it cease. In other words, the period after the date of such a letter cannot be relied upon, as the Council letter 'stops the clock'. Rather, the 15 years runs 'backwards in time' from the date of the critical Council letter. Hence from a 'continuous use' point of view, the key issue is whether the alleged use was operating continuously over the 15 years running backwards in time from the date of the critical 'you are in breach' Council letter.
4. In terms of the potential extent of existing use rights, at a very basic level, there is consistent case law that existing use rights should be construed as broadly as the language in its context allows - see for example City of Nunawading v Harrington[2] and Dorrestijn v South Australian Planning Commission[3].
5. In terms of 'legality per se', the second paragraph of the text quoted above from Clause 63.11 makes it clear that if 15 years continuous use is established and neither of the two bullet points apply, it is beside the point whether or not the subject use was lawful when it first commenced.
6. In relation to who has the running with establishing their case, the previous case law is clear that the onus of establishing existing use rights lies with the person seeking to rely on them[4]. That is to say, in the situation here, it is up to the Applicant to prove the alleged existing use rights, rather than Council having an onus to disprove them.
7. As with the Hanson case, there was no real contest in this dispute whether the contentious brick veneer structure includes all four physical features of a "Dwelling" as defined in the Planning Scheme.
8. Finally, in considering the purpose for which the rear building may have been used, the leading case of Shire of Perth v O'Keefe[5] is authority for using the "real and substantial purpose" test, rather than getting lost in the detail of the situation. His Honour's discussion of this point includes the following statement:

...The application of the [scheme] in a particular case has therefore not to be approached through a meticulous examination of the details or processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the approximate designation of the purpose being served by the use of the premises at the material date...

WHAT IS THE PRECISE 15 YEAR PERIOD 'CONTINUOUS USE' PERIOD BEING CLAIMED AND WHAT SUPPORTING EVIDENCE HAS BEEN PROVIDED?

1. To avoid duplication, there is a useful summary at paragraph 13 of the Council written submission of the 'datable evidence' circulated by the Applicant in support of its existing use rights claim. In simple terms, this information takes the form of either relevant lease agreements or receipts of rent payments (plus an 'accountant ledger') in relation to the following periods:
   • 28 July 1999 - 21 January 2003;
   • 26 September 2008 - 30 June 2011.
2. I also to some extent found helpful the 'Rental receipt timeline 1997 to 2011' graphic which Mr Quelch included at the bottom of page 6 of his written submission.
3. In relation to other evidence relied upon, there are two Statutory Declaration (SD) documents provided by the Applicants, being:
   • The SD dated 11 July 2012 from a neighbour Bernice Egglestone of 691 Chum Creek Road, which states that "The Di Biase family have lived on the property at 30 Rogers Road from 1987 to 1998. The property has been continually tenanted from 1987 to the present day".
   • The SD from another neighbour Graham Stephens of 91 Rogers Road, which states that "I have lived at the above address since 1993. Over the last 19 years there have always been occupants of at 29 and 30 Rogers Road, either the Di Baise family or tenants or both".
4. For the reasons explained at the hearing, in the interests of a fair and workable hearing process, I have relied upon those documents which the Applicant provided to both Council and the Tribunal in the lead up to the hearing. If the Applicant either:
   • filed with the Tribunal in its original 'Application for Review package" information it did not copy to Council; or
   • kept originals of rental-type documents in its own records which it did not circulate either in lodging its Application at the Tribunal or in the lead up to the Tribunal hearing

then either way it would be an unfair 'ambush' situation if the Tribunal was to allow the Applicant to at the last minute seek to table and/or rely on this broader information at the hearing.

1. I turn now to the question of 'which is the critical 15 period of alleged continuous use of the brick veneer building for the purpose of a second dwelling on the property' which the Applicant is seeking to establish? In this regard, during the earlier part of his presentation, Mr Quelch sought to leverage off the relevant rental letter dated 5 May 1999 from Noble Knight, which indicates that a lease of the subject building had been terminated early. Following this line of thinking, Mr Quelch urged me to find that there must have been a commercial lease of the relevant building put in place sometime during 1997-1998, or even possibly earlier. On this basis, Mr Quelch ran the Applicant's case on the basis that the relevant 15 year period is the sequence of years starting in 1997 and running through to 2011.
2. This is usefully shown in the "Rental receipt timeline 1997 to 2011' set out at the bottom of page 6 of Mr Quelch's written submission.
3. However Mr Farmer correctly clarified that pursuant to the Clause 63.11 provisions discussed above, the 'clock stopped' with the relevant 15 year period once Council served on the owners its letter dated 10 January 2011. I agree and accept that the relevant 15 year period for our purposes is the 15 years running back in time from 10 January 2011. That is, the relevant 15 year period is the period 10 January 1996 - 10 January 2011.

1. In terms of how Mr Quelch framed his case at the hearing, he properly acknowledged that there were some 'gaps' in the rental documentation which the Applicant has circulated and is relying upon. That is to say:
   • the Applicant has circulated rental documentation in relation to the periods May 1999 - January 2003 and also September 2008 -June 2001; but
   • even Mr Quelch acknowledged that there is no such circulated rental documentation to rely upon in relation to the period prior to May 1999 and also with respect to the period between February 2003 and August 2008.
2. However the Applicant's case at its highest is that these gaps are suitably dealt with/overcome by the fact that the Applicant has provided the Statutory Declarations from Bernice Egglestone and Graham Stephens, which Mr Quelch argued 'cover the whole field' in a way which gets the Application over the line.

1. The following statement from my reasons in the Hanson case is equally applicable here and is a good opening to my findings here:

The stand out issue in this proceeding is whether or not the Applicant has been able to prove that the rear building has been used as a self-contained residence, as per the definition of 'Dwelling' in the Scheme. In other words, it is not enough for the Applicant to simply establish that the rear building meets the four physical elements of a 'Dwelling' as defined - the Applicant must also satisfy the necessary "use' aspect.

1. Turning to my findings here, I am not satisfied that the Di Biase family has made out an adequate case to satisfy the 'existing use rights' requirements of Clause 63, in relation to the brick veneer building on the review site being used as a dwelling. Hence the Application is refused. I rely on the following points in making this conclusion.

Not enough to show members of same family were spread over the two buildings

1. Firstly and for the reasons explained in the Hanson decision, where parents of a family occupy the primary dwelling on any one property, it is not enough for the purposes of Clause 63 for the Applicant to simply point to other members of the same family occupying a second building on the same property.
2. In other words, where members of the same family are spread over two buildings, the use of the secondary building is more properly described as in the nature of a 'bungalow' which is ancillary to the main dwelling. Such a 'members of the same family spread over two buildings' situation does not constitute the use of two separate 'dwellings', because it is self-evident that there is no self-contained use of the secondary building. For any one Applicant to have a real chance of demonstrating a building has been used in a self-contained manner so as to constitute a second 'dwelling' on the one property, the Tribunal would normally expect the following type of information to be provided to verify the 'self-contained use' aspect to the secondary building - commercial rental receipts, separate utility bills, separate rating by Council, and so on.
3. During the hearing, the members of the Di Biase family present in the hearing room indicated themselves (in supplementing Mr Quelch's submissions) that the parents were occupying the weatherboard dwelling on the review site and the daughter was occupying the brick veneer building until sometime in 1998, when they then moved to their new house in Lilydale. They further indicated that they were not sure when during 1998 this move occurred.
4. I have explained several paragraphs above why the critical 15 year period for our purposes runs from 10 January 1996 onwards. Following this approach, if the Di Biase family were sharing the occupation of both buildings for any part of 1998 beyond 10/1/98, then (for the reasons explained two paragraphs above) this would constitute a fatal two-year gap in the alleged continuous use of the brick veneer building for the purpose of a dwelling. Given that 10 January is so early in the calendar year, common sense suggests that it is very likely that the family move to Lilydale occurred sometime after 10 January. This major problem for the Applicant is exacerbated by the fact that the letter from the Di Baise family to Council dated 14 January 2011 actually refers to the family moving from the review site to Lilydale '...in 2000'.
5. In summary, I find that this problem in itself is very close to a 'knock out blow' for the Application.

1. Even if I was to give the Application 'the benefit of the doubt' with respect to the major problems which I have identified above, I am separately satisfied that there are fatal problems with the Application, in terms of the major gaps in the rental documentation provided.
2. Whilst recognising Mr Quelch's understandable desire to 'put his client's best foot forward', it needs to be said that the information provided in the 'Rental receipt timeline 1997 to 2011' glosses over some fundamental shortcomings which become clearer, upon a closer examination.
3. Whilst this timeline at a glance suggests that there is never more than a 'two year gap' in relation to the rental documentation provided, I consider a more correct analysis to be that the circulated rental documentation involves the critical gap over the period February 2003 to August 2008. Surely the correct way of viewing this situation is that what we are talking about is a '4 and a half year gap' in the circulated rental documentation.
4. I see such a gap as fatal for the Application, given the requirement under Clause 63 that there needs to be no greater than a two year stoppage of the alleged continuous use. During the period February 2003 to August 2008, there is simply no circulated rental documentation for the Application to rely upon, and from this perspective it is entirely possible that during much of this period the occupation of the brick veneer building simply ceased.

Problems with the Statutory Declarations provided

1. It is very open to debate whether even comprehensive Statutory Declarations provided by the Applicant could alleviate the 'four and a half year gap' problem described above. However in reality there a substantial shortcomings with the two Statutory Declarations provided, as follows.
2. On the positive side, both Statutory Declarations are provided by neighbours who live close by. However both documents are extremely brief - both consist of no more than two sentences of hand written information.
3. In relation to the Statutory Declaration provided by Ms Egglestone, it only refers to the one property in '30 Rogers Road' and does not specifically deal with the occupation or otherwise of the brick veneer building compared to the weatherboard one. The statement by Ms Egglestone that the property has been "...continually tenanted from 1987 to the present day" does not account for the period where the Applicant's own position is that it was a family member occupying the brick veneer building. It is unclear how long Ms Egglestone herself has lived in her property.
4. In relation to the equivalent document from Mr Stephens, it does at least clarify that he has lived on his land since 1993, and also refers to both No. 29 and No. 30 Rogers Road. However it is silent in relation to whether the brick veneer building has been occupied as well as the weatherboard one, and if so, for how long. While this document does acknowledge family occupation as well as occupation by tenants, no indication is given of when the former stopped and the latter started.
5. In summary, I agree with Council that these two Statutory Declarations (while I am sure provided with good intentions) are very primitive and have major shortcomings.

1. As per Council's comments at the hearing, I would not go so far as to say the Applicant's case in this matter is so hopeless as to be beyond further consideration.
2. However it is appropriate that I be frank in my feedback that the Applicant has not even come close to providing the type of comprehensive and convincing evidence needed to establish 'existing use rights' for the brick veneer building to be used for the purpose of a second dwelling on the review site. Whilst it seems a moot point whether this rigorous level of information is realistically capable of being obtained, this is now an issue for another day. I would also observe that given the fairly legalistic nature of contested 'existing use rights' disputes, many owners in this situation engage a specialist lawyer for their representation.

[1] I/we have considered all submissions presented by the parties although I/we do not recite all of the contents in these reasons.

[2] [1985] VicRp 64; [1985] VR 641

[3] [1984] HCA 76; [1984] 56 ALR 295

[4] See Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758 and also the Harrington decision at p 645.