The Tribunal directs that the responsible authority issue a Certificate of Compliance pursuant to section 97N Planning and Environment Act1987 stating that:
(a) the use of the land at 100 Mount Dandenong Tourist Road, Tremont, (the subject land) for a shop would be permitted by the Yarra Ranges Planning Scheme; and
(b) subject to the grant of a permit the use of the subject land for the purpose of a dwelling would be permitted by the Yarra Ranges Planning Scheme.
The responsible authority must not issue a certificate stating that the use of the subject land for a service station complies or would comply with the Yarra Ranges Planning Scheme.
[2]
This is an application by Mr John Dunning to review the failure of the Yarra Ranges Shire Council, being the responsible authority administering the Yarra Ranges Planning Scheme, to issue a Certificate of Compliance under s.97N within the prescribed time.
The applicant is seeking a certificate stating that the use of the subject land at 100 Mount Dandenong Tourist Road, Tremont for the purposes of a shop, dwelling and service station complies or would comply with the requirements of the Yarra Ranges Planning Scheme.
The responsible authority failed to issue a certificate within the prescribed time and Mr Dunning seeks to review that failure pursuant to s.97P of the Act.
[3]
Ms Kovatch, who appeared as solicitor for the applicant, tabled a statement of facts that had been agreed with the responsible authority. There was some modification to this statement in the course of the hearing. The relevant facts as agreed between the parties are as follows
On 22 January 1991 the Shire of Sherbrooke, which was then the responsible authority, issued Permit No 2879 to develop and use the subject land at 100 Mount Dandenong Tourist Road, Tremont, for a shop, house and service station.
The land was developed in accordance with the permit and endorsed plans and a certificate of occupancy was issued on 9 June 1993.
The owners of the land used it as a service station and shop until 2 September 2005. On that date the business was sold to Caltex Petroleum Distributors Pty Ltd which leased the land from the owners and continued to use the land as a service station.
The service station business ceased trading in March 2011 and the petrol bowsers were removed towards the end of March 2011. The lease expired in December 2011, the lessee having continued to pay rent up to that date.
Since then the owners have actively promoted the sale of the land as a service station but until recently have been unsuccessful. They have now negotiated a sale which is subject to the issue of a Statement of Compliance under s.97NPlanning and Environment Act1987 stating that the use of the land for a service station would comply with the Yarra Ranges Planning Scheme.
[4]
Under the Yarra Ranges Planning Scheme the land is contained partly within a Commercial 1 Zone and partly within the Green Wedge A Zone. The structure housing the shop and dwelling is located in the Commercial 1 Zone. The canopy which provided shelter for the petrol bowsers and the underground fuel tanks are located in the Green Wedge A Zone.
In the Commercial 1 Zone the use of the land for a shop is permitted as of right, as is a dwelling provided the frontage does not exceed 2 metres. In this case the frontage does exceed 2 metres so the use is subject to permit. The use of land in the Green Wedge A Zone for a service station is prohibited.
[5]
The legal status of the land use has, of course, reacted to the changes in zoning. It must be assumed that when the permit was granted in 1991 the use of the land for a service station was allowed subject to permit, although the responsible authority was not able to confirm how the land was zoned at that date. This means that from the date of issue of the permit until the rezoning of the part of the land used for the service station that use operated under the terms of the 1991 permit. The permit was the only relevant planning control.
When the Green Wedge A Zone was introduced the service station became a prohibited use. However, this triggered an existing use right under clause 63.01 of the planning scheme because a permit for the use had been granted and acted upon before the approval date of the change in zoning. By virtue of clause 63.05 the service station use could continue provided that the permit conditions were observed. There is no suggestion that they were not observed.
[6]
The key to this case therefore is clause 63.06 which is entitled "Expiration of existing use rights". This clause provides:
[7]
The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession.
[8]
It is clear that more than two years have passed since the service station ceased operation. The question is whether the use has "stopped" within the meaning of clause 63.06. The Tribunal must apply the words used in the planning scheme in their ordinary and natural sense. The work "stopped" means what it says. No useful purpose is served by further philological analysis or recourse to synonyms.
On the face of it the use of the land for a service station clearly "stopped" when the service station ceased operation in March 2011 and the petrol bowsers were removed. However, Ms Kovatch argued with some dexterity that although the activities manifesting the service station use ceased the use itself did not. She pointed out that since taking the reversion in December 2011 the owners had continuously been trying to sell the land as a service station, which demonstrated an intention to continue the use as a service station, and negated any intention to abandon the use. She relied on a number of authorities of both this Tribunal and superior courts.
Ultimately the question of whether the use has stopped is a question of fact. The authorities turn on their own particular facts and circumstances. The Tribunal accepts that activities associated with the land use may cease without the use stopping. There may for example be a cessation of activities to enable repairs to be undertaken. This does not mean that the use has stopped (see Matthews v Bayside City Council[2013] VCAT 1262). Or the use may be seasonal with regular periods of inactivity, such as a ski lodge or an agricultural use. However, what happened in this case is more accurately characterised as a cessation of the use followed by the current endeavour to revive it.
[9]
Ms Kovatch's argument morphed subtly to a concept of abandonment, which does import an element of intention. If abandonment is the test a strong case could be made that the use was not abandoned in this case because there was clearly no intention to abandon the use. However, unlike some of the interstate legislation (see Meriton Apartments Pty Ltd v Fairfield City Council(2004) LGERA 35) the Yarra Ranges Planning Scheme does not use the word "abandon" which suggests both a "stopping" and an intention not to resume. Both the planning scheme and the ultimate legislative protection of existing land use rights, which is to be found in s.6(3) and (4) Planning and Environment Act 1987, use the word "stopped". This requires an objective appraisal uninfluenced by the intention of the user or a prospective user.
The Tribunal's conclusion of fact in this case is that the use of the land for a service station stopped in March 2011 which, being more than two years ago, means that the existing use rights to use the land for a service station have expired.
[10]
The right to use the land for a shop, being that part of the land in the Commercial 1 Zone, and, subject to obtaining a planning permit, for a dwelling was not in dispute. The applicant is entitled to a certificate of compliance in relation to these two uses of the land.
Parties
Applicant/Plaintiff:
Dunning
Respondent/Defendant:
Yarra Ranges SC
Legislation Cited (1)
Environment Act 1987
Cases Cited (1)
Dunning v Yarra Ranges SC (Including Summary) (Red Dot) [2014] VCAT 1287 (8 October 2014)