1. In relation to the application for review of the decision of the Responsible Authority to refuse to grant a Certificate of Compliance I affirm the decision of the Responsible Authority in refusing to issue one and I direct, in accordance with Section 97P(2)(a) that a certificate, not be issued.

2. The application for a declaration is dismissed.

Mr. Patrick Doyle, Solicitor of Maddocks Solicitors appeared for the Responsible Authority. He presented written and oral submissions.

Ms. Sarah Porritt, appeared on the instructions of her client (who is a solicitor). She presented written and oral submissions.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under Section 97P of the Planning and Environment Act 1987 (PE Act) for a review of a decision of the Responsible Authority to refuse to issue a Certificate of Compliance under Section 97N of that Act.

Application under Section 149A PE Act for a Declaration.

Certificate of Compliance to the effect that the use of the land as an office complies with the Boroondara Planning Scheme.

Declaration that the use of the land as an office complies with the Boroondara Planning Scheme and that the use of the land as an office in conjunction with educational uses or that the use of the land as an educational centre is in accordance with the Planning Scheme.

Residential 1 Zone and subject to an heritage overlay under the Boroondara Planning Scheme.

1. This case concerns a substantial two storey mansion house known as "Monnington" at 15 Adeney Avenue, Kew. A declaration is sought as to whether the current use of this house as a solicitors office (ground floor) and as a residence (first floor) complies with the Boroondara Planning Scheme.

2. The land is in a Residential 1 Zone under that Planning Scheme. There is no question as to the residential use of land in that zone. It can be used for the purpose of a dwelling as of right. It is the office use that is of concern. According to the zone control provisions of the Planning Scheme applicable in the Residential 1 Zone, office is a prohibited use. The land might nevertheless may lawfully used for such a purpose if it has the benefit of the exception created by the existing use provisions of the planning scheme found in Clause 63 thereof.

3. The onus for establishing the existence of such rights falls upon the party asserting them, in this case the applicant, Mr Egan. As he has applied for a declaration as to the existence of such rights, he also has the obligation of justifying the declaration he has sought. In any event, a large number of authorities dating back to the Victorian Supreme Court decision in Bell v Hyde [1939] VicLawRp 44; [1939] VLR 300 established that the onus of establishing existing use rights (sometimes called non-conforming use rights) rests on the party asserting their existence. These authorities include Morris v Woollahra MC (1967) 16 CLR 23 at 33-34; Eaton & Sons Pty Ltd v Warringah SC [1972] HCA 33; [1972] 129 CLR 270, [1972-73] ALR 203; Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758, Kogarah Municipal Council v Johnstone [1979] 41 LGRA 366, Davis v Pember [1958] 5 LGRA 87, and R v City of Oakleigh Ex Parte New Gamble Brick Works Pty Ltd [1963] VicRp 92; 1963 VR 679 and Edgar v Hannaker (1988) 1 AATR 367. I have referred to and relied on these authorities in various cases including City of Brighton v BDL Electrical & Cable Co. Pty Ltd [1989] 2 AATR 215 and City of Northcote v El Alam [1993] 13 AATR 28.

4. The basis of the claim for the existence of existing use rights is that it is alleged that the property was previously, and lawfully, used by the Minister of Education as offices and the right to continue its use for that purpose is protected by Clause 63 of the Planning Scheme.

5. Clause 63.01 provides that an existing use right is established in relation to the use of land if any of several situations apply. These include that:

(i) the use was lawfully carried out immediately before the approval date of the planning scheme.

(ii) proof of continuous use for 15 years is established under Clause 63.11 (which includes the proposition that it will become an existing use right even though that continuous use was unlawful), and

(iii) the use was a lawful continuation by a utility service provider or other private body of a use previously carried on by a minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

The approval date of this planning scheme was 16 December 1999.

6. As I have said, this land is in a Residential 1 Zone. Clause 32.01 contains the relevant zone provisions in relation to that zone. Clause 32.01-1 contains a table of uses in 3 sections. Section 1 uses do not require a permit. Section 2 uses, to be lawful, require a permit and any relevant specified conditions must be complied with. Section 3 uses are prohibited. Office is a Section 3 use.

7. Clause 63.05, in relation to existing use rights, provides that a use in Section 3 for which an existing use right is established may continue subject to 3 provisos. The right may also expire if the use stops for a continuous period of two years, or has stopped for two or more periods together totalling two years in any period of three years.

8. It is obvious enough that the use of the land in relation to which the continuing use right is claimed must be the same as the previous use alleged to give rise to the right. Accordingly it is frequently necessary to give consideration to the proper characterisation of the use or uses concerned.

9. The Planning Scheme contains a number of definitions of land use terms. For example, Clause 74 (which contains the definitions of land use terms) defines "office" in the following words:

"Office Land used for administration, or clerical, or technical, professional or other like business activity. No goods or materials intended for manufacture, sale, or hire may be stored on the land. Other than electoral office and medical centre, it does not include any other defined use."

The land use "office" includes "Bank", "Electoral office", "Medical centre", "Real estate agency" and "Travel agency". Of these only the second and third are the subject of further definitions in Clause 74.

10. A solicitors office clearly comes within the definition because it is used for professional activity. There is an interesting point as to the meaning of the first sentence in the definition of office. The phrase "other like business activity" implies, at least, that the clerical, technical or professional activities must also be business activities. It has not been necessary, for the purposes of this case, to determine whether the requirement of "business activity" also applies to "administration".

11. Care must be taken in the use of the definitions of land use terms in Clause 74 of the Planning Scheme, and perhaps other undefined land use terms that appear in the Planning Scheme. Such terms may vary from time to time in the applicable planning controls, either by amendments or replacement of previous planning controls with new ones. These variations can be in relation to the names given to land use terms and to their definitions.

12. Cases in relation to existing use or non-conforming use provisions in planning schemes have recognised that the concept of use of land for the purpose of existing use provisions is not dictated by the land use terms that appear in planning controls from time to time, or their definitions. The situation in this respect has now been spelt out in Clauses 63.02 and 63.03 of the Planning Scheme. These sub-clauses read:

If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.

63.03 Effect of definitions on existing use rights

The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any use right established prior to the inclusion of the definition or amendment."

13. I do not discern any real difference between the competing cases put to me, so far as the correct approach to characterisation is concerned. The purpose for which land is used is the relevant use and expressions used to describe or name such uses are to be given their ordinary or natural meanings, rather than their defined meanings. Furthermore, some land use terms, whether defined or as used in ordinary English, may be very broad. That does not mean that a specific use coming within such a term will give rise to a right to continue the existing use for any purpose coming within such a broad term. For example, "industry", or "light industry" or "shop" might include a multiplicity of industries or light industries or shops. Existing use rights do not allow subsequent users to slide around within such categories. For example, in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 an existing use right for pottery making, though it may be a light industry, does not convey an existing use right for some other form of industry or light industry. Similarly a bakery, in City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 gives right to use as a bakery, but not for other forms of industry. An existing use right arising from a prior use as a butchers shop may give rise to an existing use right for that purpose, but not for any other sort of shop. Mr Doyle, in his written submissions, referred to some other examples arising in other cases.

14. Of course the term "office", whether considered in terms of the planning scheme definition, or in terms of the ordinary and natural meaning of the expression, is a broad one. Prior use as a solicitor's office may certainly give rise to an existing use right to continue its use as a solicitor's office. There may not be a problem in relation to a change to an accountant's office, but that does not mean that the prior use as a solicitor's office can give rise to an existing use right for any form of office or vice versa. In terms of the present case, if there was prior lawful use of the land by the Minister of Education for public education purposes, that would not necessarily imply that any existing use rights thus created would authorise use as a private solicitor's office. Ms Porritt did not really deal with this problem in her submissions.

15. Another matter that calls for consideration in relation to characterisation of uses, and the use of words or expressions in accordance with their ordinary or natural meanings, is the difficulty that such words or expressions frequently have several, sometimes many, such meanings. The meaning of a particular word or expression, in ordinary English, frequently has to be considered in its context. A mere reference to a dictionary is likely to give rise to several, or many, definitions. Many, perhaps all of them, may not be relevant in the particular context.

16. Although expressions naming or describing a particular use may need to be considered in terms of their ordinary or natural meanings, there is a potential trap that must be avoided. A single particular use may have various components or ancillary aspects. The example I used at page 161 in the case of Mollica v Bulla SC [1992] 9 AATR 157 concerned offices. I said:

"However if an activity..... is regarded as an ancillary use, then, in planning terms it is not a separate use, but is part of the dominant use. Hence "offices" on the 6th floor of the Myer Emporium in Bourke Street, Melbourne would be offices in planning terms if located separately from the Myers Department Store (that is to say Myers Shop) but in fact, being located as they are in and as part of the dominant use of shop, they are merely an ancillary part of the shop. In planning terms, they are shop, admittedly part of a shop, and not the separate use as office."

17. That is the correct planning analysis, although a lay person using ordinary English might well describe one or all of the rooms on the 6th floor of Myers as an office or as offices, and such a description would not be incorrect in terms of ordinary English. In a similar way the head master's office of a school and the secretary's administrative area, perhaps associated with the reception area, of a school, might similarly and appropriately be referred to as an office or offices in ordinary English usage. Nevertheless, in planning terms they would not be separate uses as office, but mere ancillary activities associated with the actual use of land which, in ordinary and natural English usage, would be said to be a school. Similarly the science room would not be a laboratory or pharmacy; the storage room for sports equipment would not be a "store" and the car park for staff and visitors would not be a "car park" in planning terms. They would merely be parts of the school.

18. The issue in this case was initially raised by the Applicant in a particular way. He made an application under Section 97N of the Planning and Environment Act 1987 (PE Act) for a Certificate of Compliance. That section enables a person to apply to the Responsible Authority for a certificate stating that an existing use or a proposed use of land does or will comply with the requirements of the planning scheme. He sought a certificate that the use of the land as an office complies with the planning scheme.

19. In the course of the hearing I was referred to my previous decisions of Logie v Campaspe Shire Council and Murray Goulburn Co-operative Co Ltd [1999] 2 VPR 54 [1999] VCAT 431 and McDonald v Nillumbik Shire Council [2000] VCAT 772 where I expressed the view that Certificates of Compliance are intended for clear cut cases where the propositions to be certified could be ascertained by reference to planning scheme provisions and that they were intended to provide a simple, quick and cheap means of obtaining documents certifying that a particular proposal or existing use or development can be carried out without a permit. Such certificates might be used to satisfy a lender of money who might not otherwise accept a security without a planning permit. Such a certificate could avoid the need to apply for a declaration in a straight forward case, but is not intended to take the place of a declaration in a difficult, doubtful or contentious existing use rights case where the legal situation in relation to which a certificate is sought can only be ascertained after a consideration of evidence, including evidence of the history of the use and past planning controls in relation to statutory existing use rights provisions. I supposed that it was not intended that a Responsible Authority would be required itself to gather or assess evidence on such contentious points for the purpose of determining whether alleged existing use rights exist.

20. Since expressing those views, I see no reason to depart from them. On that basis the Certificate of Compliance would be an inappropriate procedure for Mr Egan in relation to the present case, for it certainly is a contentious and doubtful case in relation to which it is necessary to receive, consider and assess evidence. Those cases, and those views, do not raise any particular problem in the present case, because prudently in my opinion, Mr Egan has also applied for a declaration. Nevertheless, an application for a Certificate of Compliance was his initial step.

21. Section 97O PE Act provides that the Responsible Authority must consider such an application and either a issue a Certificate of Compliance or refuse to issue one on a ground set out in sub-section (4) or (5) of Section 97O.

22. Section 97O (4) and (5) provide that the Responsible Authority must refuse to issue a certificate applied for if the whole or part of the use or development would require a permit or is prohibited under the planning scheme.

23. The appropriate response for the Responsible Authority may have been to refuse to grant a Certificate of Compliance on the ground that the use as "office" is prohibited under the Planning Scheme.

24. In fact, it appears that the Responsible Authority overlooked, or did not quite see how to apply, the limited grounds of refusal provided for under sub-sections (4) and (5). The application for a Certificate of Compliance required more than reference to the planning scheme because it did seek to raise a contentious or at least arguable issue in relation to existing use rights. To this end the application was supported by documentary evidence listed by Ms Porritt in her written submissions as follows:

"? "History of Monnington Services 1969 to 1996" prepared by the previous proprietor, the Department of Education who remained in occupation until January 2001;

? Department of Education floor plan of the subject building;

? Valuation Report dated 11 May 2000 (indicating the majority of rooms in the subject building were converted to office use prior to the Department of Education (sic);

? Copy Leaseback to the Department of Education dated 6 June 2000;

These documents were attached to Ms Porritt's submission.

25. In response to the application the Responsible Authority wrote to Mr Clayton Brown of Clayton Brown Architects (who was apparently acting on behalf of Mr Egan) on 21 November 2001 referring to discussions in relation to established existing use right status of the land for the purpose of an office. It is clear from this letter that the Responsible Authority, at least at that stage, was taking up the challenge of trying to determine whether existing use rights existed under Clause 63 of the Planning Scheme. The heading of the letter referred to the property and "Request For Further Information". It said that an existing use right may be established in relation to the land if, amongst other things "proof of continuous use for 15 years is established under Clause 63.11". The letter continues:

"Correspondence provided to date states that the property has been in continuous use for an office for more than 15 years by the Department of Education. However, the information currently submitted does not prove that this has been the case. Accordingly, we request evidence from the Department of Education verifying that the building has been used as an office (in accordance with the plan provided) for a period of at least 15 years, and continued to do so without stopping for a period of 2 years.

Following receipt of this information, Council will be in the position to be able to confirm whether the property does benefit from existing use rights for the purpose of an office."

26. With a letter dated 5 June 2002 the Applicant subsequently provided, as listed in Ms Porritt's submissions:

"? Copy correspondence from Elizabeth Garwoli, psychologist to Thomas Egan dated 29 May 2002;

? Statutory Declaration from Frank James Ham who has lived next door to the Subject Site since 1969."

27. The letter of 5 June 2002 and its contents do not respond to the specific request in the letter of the Responsible Authority of 21 November 2001. On 3 July 2003 the Responsible Authority wrote refusing to grant a Certificate of Compliance. As I have observed, it did not do so on the specified statutory ground. It did set out three grounds as follows:

* Insufficient information has been submitted to clearly demonstrate the use of the site as an office over 15 years;

* Based upon the information submitted, it is considered that classifying the previous use of the site as an "office" is not accurate given the educational nature of the use of the land; and

* In the event that it could be demonstrated that the site was used as an office for over 15 years, this use could only continue subject to compliance with any condition or implied restriction applicable to the original use, pursuant to clause 63.05 of the Planning Scheme. It is noted that an office is a prohibited use in a residential zone and that the use of the subject land by the Education Department was exempt from the requirement of a planning permit because of the order of the Governor in Council in 1988. This exempted the Minister for Education from being bound by the planning scheme. Given the existence of this restriction, the use of the land could only continue provided it was occupied by the Education Department or another Department not bound by the planning scheme. By allowing the use to continue without compliance with such restrictions, applicable prior to the commencement of the new scheme, would allow a general broadening of the existing use rights, which was not intended by section 6(3) of the Planning and Environment Act 1987".

28. The first of these grounds are clear enough. The first is that, in the view of the Responsible Authority, there is insufficient evidence to justify a finding of prior use as an office for 15 years.

29. The second is that on the information in fact submitted the previous use should not be classified as an office.

30. The third ground refers to the basis upon which the Minister for Education was able to use the land. The Minister's ownership and use of the land dates back to the 1960's. That predates the current PE Act which came into force on 16 February 1988. The previous legislation was the Town and Country Planning Act 1961. That Act contained no provision stating that it was to bind Crown, although Section 35(d) provided that it did bind responsible authorities and public authorities with the proviso that they could be exempted from such compliance.

31. An act of parliament is presumed not to bind the Crown unless it contained a provision stating that the Crown is to be bound.

32. The current PE Act does not contain the normal simple statement that it binds the Crown. Rather, in Section 16 it states that:

"A planning scheme is binding on every Minister, government department, public authority and municipal council except to the extent that the Governor in Council, on the recommendation of the Minister, directs by Order published in the Government Gazette."

33. That would be sufficient to bind the Minister for Education and the Education Department, but they have long since been exempted by an Order in Council pursuant to that section. The relevant order appears on page 266 of Government Gazette of 10 February 1988. That was just before coming into operation of the PE Act. It provides that "Planning schemes shall not be binding on the use or development of land carried out by or on behalf of ...the Minister for Education."

34. The order is subject to some exceptions that are not relevant for present purposes. It is sufficient to mean that the Minister for Education could use or develop land free from the constraints which a planning scheme would otherwise impose. In particular the Minister could use or develop land in spite of any prohibitions in a planning scheme and without obtaining any planning permits that otherwise might be required under a planing scheme for such use or development. The use and development of the Monnington property by the Minister for Education prior to 16 February 1988 was not subject to the Town and Country Planning Act 1961, or planning controls thereunder, as that legislation did not bind the Crown; and the use and development of the land since that date by the Minister was similarly exempt under Section 16 PE Act and pursuant to the order thereunder.

35. These exemptions and privileges of the Crown, of course, only apply to the Crown or to the Minister for Education. They do not extend to private people or private successors entitled to the land. The Responsible Authority has sought to take the point that this amounts to a restriction or condition on the use of the land. One of the provisos under Clause 63.05 in relation to the right to continue an existing use is that any condition or restriction (including any implied restriction on the extent of the activity within the use) continues to be met. The argument is that any existing use by the Minister for Education is restricted to his or her use of the land in that capacity for the purposes of public education and that any use of the land by a private solicitor for his office would amount to a failure to meet that restriction.

36. It does appear to me that there is some weight in this argument. It appears to me to be a very strange proposition to suggest that a privilege or exemption of the Crown can be and is intended to be extended to a private professional, not for the public purposes of the Crown or, more specifically for public educational purposes, but for his private professional business. However, there are contrary arguments, and it would be helpful if an amendment was to put the matter beyond doubt.

37. The existing use rights originally applied only to lawful existing uses. Now they can also apply to "unlawful" uses if the perpetrator can get away with it for 15 years. In either event the existing use provisions do not contain qualifications excluding use by the Crown or a Minister. In fact one of the modes of establishing an existing use right under Clause 63.01 is that the use is a lawful continuation by a utility service provider or other private body of the use previously carried on by a Minister, government department or public authority even where the continuation of the use is no longer for a public purpose. I would suppose that this is to cover situations created by "privatisation" of government business activities like the former State Electricity Commission, but Mr Egan might argue that he is a private body, that the use was simply "office" (not something more specific and certainly not something else), and that he is merely continuing the use, though no longer for a public purpose. Ultimately I have not found it necessary to resolve that question to determine this case.

38. The Responsible Authority's third ground also makes reference to Section 6(3) PE Act. That provision prescribes certain minimum existing use rights but cannot be varied or reduced by a planning scheme provision such as Clause 63. It includes a provision that a planning scheme shall not prevent the use of any building which was erected before the coming into operation of the PE Act for any purpose for which it was lawfully being used immediately before that coming into operation.

39. Section 97P PE Act provides that an applicant for a certificate of compliance can apply to this Tribunal for a review of a decision by the Responsible Authority to refuse to issue a certificate of compliance. The first proceeding before me is an application for such a review. The second, as I have said, is an application under Section 149A PE Act for a declaration to somewhat similar affect. Both proceedings were heard together. Ms Porritt, on behalf of the Applicant, presented her case first, followed by Mr Doyle on behalf of the Responsible Authority. The attitude of the Responsible Authority was that its refusal to issue a Certificate of Compliance was correct and should be affirmed, and that no declaration should be made. At the end of the hearing Ms Porritt suggested that I might wish to consider certain matters raised at the hearing and give an interim determination with a view to a further hearing at a later date. I was of the view that the parties had their opportunity to present their cases and that I should determine the proceedings on the basis of the evidence and arguments advanced. However, in deference to what Ms Porritt said, I announced, at that stage, the case was adjourned to a date to be fixed and that I may give an interim decision and direct a further hearing or I may give a determination on the basis of the evidence and arguments presented. I am following the latter course.

40. By far and away the most important and informative piece of evidence in relation to the relevant past use of the land is the first item referred to by Ms Porritt namely the 8 page document entitled "A History of Monnington Services 1969-1996". Although it appeared that the source of this document would be the Education Department, its status and purpose are not clear. It is unsigned and undated. The best that can be said as to its date is that it cannot have been earlier than 1996. It contains an, at times sketchy, history of the evolution of educational activities on the Monnington property from 1969.

41. It certainly appears to have been prepared for some purpose other than the current cases. One could wish for further relevant details and particulars for the purpose of assessing and characterising the use of the land over the period during which it was owned by the Minister for Education. It has some characteristics suggesting that it may be a submission advocating some changes in relation to the Monnington centre, or perhaps seeking to justify its continued existence.

42. Ms Porritt, in her submissions, asserts that this document justifies a conclusion that the use of the land during the Minister for Education period was as office rather than any other use such as school or education establishment. Similar assertions are made in a written opinion of Mr Stuart Morris QC (now Morris J of the Supreme Court of Victoria and President of this Tribunal) dated 10 October 2002 prepared on behalf of the Applicant Mr Egan and intended in support of his contentions that he should receive a Certificate of Compliance. It seems to me that Ms Porritt and Mr Morris (as he then was) beg the question as to whether that prior use was an office. They assert a conclusion to this key issue favourable to their client with a suggestion that the history of Monnington Services document, perhaps faintly supported by the other documents tendered, establish such prior use as an office.

43. I am unable to agree that the history document, either alone or taken together with what I consider to be the slight support of the other documents, does any such thing. It does not, in my opinion, establish prior use during the Minister's period as an office, either generally or as an education office or a solicitors or other professional office. I am so much in doubt, having considered all the evidence, that I could not possibly make a declaration based on a finding that the prior use was an office. Not only am I not satisfied on the balance of probabilities that such use was properly to be characterised as an office, I find it considerably more probable that it was not an office, and that any office like activities involved in the prior use were merely ancillary.

44. According to the history document the Education Department operated Glendonald School for the Deaf from 1964 to 1968 in Marshall Avenue, Kew. Marshall Avenue is the next street parallel to Adeney Avenue. Demand for the services of this institution grew over several years, apparently exacerbated by a rubella epidemic in the mid 1960's. There was need for an educational facility from children suffering from deafness and blindness and in 1968 the Education Department purchased Monnington for the purpose. The transfer of land to the Minister was registered 11 February 1969. In February 1969 Monnington Special Education Centre was established. Four teachers were transferred from then Glendonald School for Deaf Children and a visiting teacher service was established, all under a phycologist in charge. As the history document says:

"A Deaf/Blind Unit was also established at Monnington, initially on a trial basis. In 1970 the first full time school deaf/blind student was enrolled. Within the next 12 months it became apparent that there was a growing need for full time educational facilities for school age deaf/blind children. This, together with the increasing administration resulting from the expansion of the teaching staff, made desirable the creation of a position of school principal. Thus, in February 1971 part of the Monnington Special Education Centre was classified as State School 5060 Monnington and Peter Evans was appointed to the position of temporary principal.

By 1974, the school had 15 school/age deaf/blind students enrolled on a full/part time basis, while the parent guidance service was catering for a 120 pre school-age children and their families."

45. I note that ordinary state schools commonly afford guidance, counselling and advice, formally or informally, to students and parents where special needs were identified. I find it hardly surprising if a much greater emphasis on such support is called for in relation for students with problems relating to total or partial deafness and or blindness. Furthermore some schools provide "distance education" with educational material being provided to students with or without additional support and guidance material to parents, being prepared and sent out by radio, postal correspondence and now by other electronic means to students and parents for whom remoteness makes attendance or regular attendance at the school centre impractical. It is entirely understandable a school catering for people with these sorts of special problems should develop both on and off campus educational services, supported with ancillary advice, support, counselling and the like for parents and families. It appears from the history document that this is what happened in relation to Monnington and State School 5060. I do not know, from the evidence provided, how long State School 5060 continued on the Monnington property. The range of educational facilities for impaired children widened to include language disordered children and some severely and moderately intellectually handicapped children. It appears that activities became focussed on early childhood development although the extent to which educational services to other age groups continued is not clear.

"By the end of 1976, the total staff members at the Centre had grown to 45, 23 being attached to the school staff, and 22 to the Counselling, Guidance and Clinical Services staff. The number of disciplines involved at the Centre had also grown, by then including of (sic) teachers, psychologists, social works, speech therapists, welfare officer and interpreters."

46. A section of the history deals with 1981 to 1987. Apparently there was some difficulty about hierarchy and accountability. In mid 1981 a "senior teacher" was appointed. In 1986 there was a brief period in which Monnington was transferred to the Health Commission. In 1987 it was "recommissioned" as an Education Department service and was given a new staffing structure and, in accordance with an agreement between the "Parents and Friends of Monnington" and the then Minister for Education "a brief" was prepared which is stated or summarised in the history document in the following terms:

"1. To provide parent education/guidance to families of pre-school children who are hearing impaired.

2. To provide support programmes for country families with pre-school hearing impaired children (subject to the processes of Regional Co-ordination of Specialist Child and Family Services Programme).

3. To provide professional advice to Ministry agencies in relation to individual client needs.

(The term "parent education/guidance" refers to services provided by an inter disciplinary team comprising teachers of the deaf, psychologists, social workers and speech pathologists. The term "early intervention" would now be more commonly used to describe such a service)."

47. Another section of the history document deals with 1988 to present (whenever that was). This section, after referring to considerable developments in policy and practice, states that the above brief continues to be relevant although the specialist child and family services programme was disbanded in 1992. It described the then current statement of Monnington's charter as:

"Monnington Centre is a state wide early intervention service for deaf and partially hearing children below school age and their families. through a range of services, to provide parents with the support, knowledge and skills they need to promote their children's development, especially communication and language."

The document then goes on to complain about its then current structure lacking flexibility. At the time of the previous restructure there had been less than 50 children on service and there was no capacity for increases. There is also discussion of support given to other facilities for children with hearing, sight and intellectual handicaps. It observes that "Monnington has been through many changes in the 25 years of its existence". A school for deaf and blind students known as "Carronbank" was initially established as an annex of Monnington and using adjoining land in Marshall Avenue, Kew. It was subsequently relocated. By its latter days Monnington was providing a base rather than an on campus service, with home visiting and with other decentralised facilities being available in metropolitan and country centres. However these services, so far as I understand the document, continued to be of an educational nature and particularly directed to children with mild to profound hearing losses and the need for special help in relation to communication. Various additional activities included playgroups, parent seminars, family camps, signing classes and family days. It also had resources such as toys, books and videos available and published a monthly newsletter and a quarterly magazine. It was felt that its then structure was too rigid in relation to staffing and budgets and, amongst the concerns arising there from, was that it was hampered in relation to the purchase of curriculum and teaching materials. To the end so far as covered by the history document, Monnington was concerned about curriculum and teaching materials.

48. Reading the document as a whole, and taking the evidence as a whole, I consider that the history of Monnington during the Minister of Education time was as a school and/or as providing educational services to one or more categories of people with special difficulties (particularly sight and hearing defects) and their parents. This involved the professional activities of teachers, including teachers with special training and experience in relation to such handicaps, and other professionals such as psychologists able to provide additional support assistance, counselling, and advice. These educational services were provided directly and indirectly (on and off campus) and "office" style activities were ancillary to the essential purpose of the establishment, although the content of the essential services evolved and varied over time.

49. The other documents referred to include a floor plan said to relate to the ministerial period, although its date is unknown. There are quite a number of rooms, including a number of rooms denoted as office but with others such as conference room, studio, playroom, two toy libraries, hearing room, room A and room B. The lack of date or indication of the status or purpose of the plan do no assist and I consider its weight to be slight in relation to the correct characterisation of the prior use of the land.

50. The land valuation notice does not really assist me. It dates from the time when the land was being sold and contains some description and particulars, no doubt relevant to land valuation, but of little or no weight of relevance for my purposes.

51. When the land was originally sold by the Minister for Education to Mr Egan there was a leaseback arrangement that applied for a while and a copy of the lease was tendered. However, it was not otherwise relied upon.

52. The copy of the Certificate of Title informs me of the date of registration of the transfer of land to the Minister.

53. A brief two paragraph letter of Elizabeth Garwoli, psychologist dated 29 May 2002 reads:

"I hereby confirm that the above property was owned by the Department of Education and Training from 1994 - April 2000 and was used as an office for Glendonald School for Deaf Children, 1964 - 1968 and a statewide early intervention centre for Deaf and hearing-impaired pre-school children, 1968 - 2000. The premises were used continually as offices during a period of 36 years.

I have been a part of Monnington Centre staff for over 15 years and can attest to the above."

54. I am not sure that the above strictly accords in all particulars with the history document, but, in any event, there is no reason to doubt that there were "offices" on the property throughout the ministerial period. Probably all schools have offices, as ancillary parts of their essential purpose. It is not apparent that this distinction, between use of land as an office on the one hand, and another use such as a school or department store containing ancillary offices", was understood or taken account of by the writer of the letter. The same applies to the statutory declaration of Mr Ham.

55. Far from being satisfied that the ministerial period use of the land was as an office to the extent that I could make a declaration thereon, I think that the proposition is not only very doubtful indeed, but, on the balance of probability based on the available evidence, office was not the use. I think that a lay person describing the use in terms of ordinary and natural English usage, if such person had access to the evidence available to me, would say that the land was used, not as an office, but for education. Mr Doyle, in paragraph 45 of his written submissions, after reviewing the evidence and the principles applicable to classification of the prior use said"

"This material suggests that the use of the Land was directed towards educational services towards children with hearing impairment and various kinds of leaning difficulties."

56. I agree with him. The phrase "land used for education" happens to be the definition of the land use term "Education centre" in the planning scheme. That is a coincidence. I am conscious that that expression and definition, will, in all probability, have differed in the various planning schemes that applied to the land since it was first acquired by the Minister for Education. Nobody has traced through that history for me. I am conscious that the characterisation of the previous use for existing use right purposes does not depend on the defined expressions or their definitions. Nevertheless in so far as it can be discerned from the evidence available I would say that this land was used for education or educational purposes, and not as an office (except so far as there may be offices as ancillary aspects of the essential use of the land). In any event, I am not prepared find or to make any declaration based on a finding, that such prior use was as an office. On that basis I affirm the decision of the Responsible Authority not to grant a Certificate of Compliance and I decline to make the declaration sought. (Furthermore I cannot see that a declaration that the land can lawfully be used as an education centre would be in anyway relevant).