1 This is an application for review of the decision of the Responsible Authority to refuse to issue a Certificate of Compliance pursuant to Section 97N Planning and Environment Act 1987.

2 Any person can apply to the Responsible Authority under Section 97N for

(a)

a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate.

(b)

a certificate stating that a proposed use or development (or part of a use or development) of land would comply with the requirements of the planning scheme at the date of the certificate.

3 Two previous decisions of the Tribunal have commented upon the purpose of a Certificate of Compliance indicating a certificate is intended to provide 'simple, quick and cheap means of obtaining documents certifying that a particular proposed or existing use or development can be carried on without a permit and are intended to avoid the need for a declaration in such circumstances, but are not intended to take the place of a declaration in difficult, doubtful or contentious existing use rights cases where the situation can only be ascertained after a consideration of evidence including evidence of the history of use and past planning controls in relation to statutory existing use rights provisions. It is not intended that a responsible authority will initiate certificates of compliance, or be required to itself gather and assess evidence in relation to allegations of existing use rights. The onus of establishing such rights being in accordance with authorities in relation to the subject, on the party asserting them'. Logie v Campaspe Shire Council & Murray Goulburn Co-operative Co Ltd [1999] 2 VPR 54 at [85]; [1999] VCAT 431 and McDonald v Nillumbik Shire Council [2000] VCAT 772 at [10] - [15].

4 The Responsible Authority can issue a certificate under either of the provisions of Section 97N (a) or (b) or refuse to issue a certificate if the existing use or development or any part of the existing use or development would require a permit or is prohibited or if the whole of the proposed use or development would require a permit or is prohibited.

5 On 10 September 2004 Mr Charlesworth a director of Farmyard Friends Pty Ltd requested the Responsible Authority issue a Certificate of Compliance that as he put it 'could be tendered to prospective lenders or Building Surveyors as a clear statement that:

•

At the date of the Certificate, the proposed use and development does comply with the provisions of the Planning Scheme, all be it, the nonconforming Existing Use Rights that predate the Scheme.

•

No planning permit is required for buildings and works associated with the proposed Moveable Dwelling Unit (Floor, Site and elevation Plans attached) to be built on She Oak Land at 1885 Plenty Road Yan Yean to replace the Section 1, "As of Right" Moveable Dwelling Unit indicated as Exhibit 1 on the 1994, 1998, 2002 and 2003 aerial photographs attached, which has Existing Use Rights.

6 The Responsible Authority did not respond to this request within the prescribed time of 30 days and that is why Mr Charlesworth has lodged this application. The Responsible Authority however did on 11 November 2004 indicate grounds of refusal as follows:

•

While the land might have existing use rights for a moveable dwelling unit in the form of a caravan or similar, the existing use rights do not extend to the type and extent of buildings or structures proposed to be erected on the land as described in the plan attached.

•

The buildings and structures proposed to be erected or placed on the land might also be more properly defined as dwellings rather than moveable dwellings. Dwelling is a section 2 use in the Green wedge Zone. Under clause 35.05, only one dwelling is permitted on each lot. The plans depict more than one dwelling.

•

If the proposed buildings or structures did fall within the scope of the existing use rights which may attach to the land, a planning permit would still be required for the erection of the buildings or structures and the carrying out of any works under clause 42.04 of the Scheme.

7 What Mr Charlesworth is requesting appears to fall under the provisions of Section 97N (b) in that he wants a certificate stating that a proposed use or development of the land, that is for 10 what he calls components of a moveable dwelling unit, comply with the requirements of the planning scheme in that there is existing use rights and therefore no planning permit is required.

8 Mr Montebello described the plans lodged with the application as showing 'a typical floor plan of 1 of 10 so called habitable rooms (bed/sitters) of the proposed replacement moveable dwelling unit including a garage attached to each building. The typical floor plan shows a building comprising a kitchen, bathroom laundry, areas denoted as store and a large area which is denoted as bed/sitting room. The building has a garage accessed via an internal doorway, decking and gas heating.

9 Mr Charlesworth submitted he wished to replace the existing movable dwelling unit located on the land, understood to be a caravan, with the 10 habitable rooms that in his view constituted one movable dwelling unit. He submitted that as he had existing use rights for a movable dwelling unit there was no requirement under the planning scheme for a planning permit to replace the existing unit. He therefore seeks a Certificate of Compliance to show a building surveyor in order to obtain a building permit.

10 Mr Charlesworth relied upon an earlier decision of the Tribunal, submitting that a caravan located on his land is a movable dwelling unit and has existing use rights. In Whittlesea City Council v Leigh Charlesworth 1999/38881 heard on 27 July 1999 and determined on 3 November 1999 the Whittlesea City Council sought a declaration pursuant to Section 149A Planning and Environment Act 1987 that:

1

The use of the lots within Eden Park Estate Restructure Area to which Clause 45 of the Whittlesea Planning Scheme applies, for the purpose of a Movable Dwelling Unit (such as a caravan) will not establish existing use rights which will enable their use and development for the purpose of a dwelling under the new Whittlesea Planning Scheme without a planning permit.

2

A planning permit will be required under the new Whittlesea Planning Scheme before any of the lots which have been used for a Moveable Dwelling Unit can be developed as a dwelling.

11 The subject land was located within the Eden Park Restructure Area. The Tribunal at paragraph 40 of its determination stated:

It is considered that the placing of a movable dwelling unit (caravan) on any lot within the Restructure Area prior to the coming in of the new planning scheme on the 8 July 1999 only gives rise to the movable dwelling unit (caravan) being a lawful existing use to have a caravan on the lot this does not give any additional rights.

12 Under the previous planning scheme provisions a movable dwelling unit was classed as a section 1 use and did not require a planning permit. The Tribunal concluded that a caravan fell into the category of a movable dwelling unit and therefore did not require a planning permit to be placed on the land. The declaration established that a caravan placed on land in the Restructure Area prior to the coming into force of the new format Whittlesea Planning Scheme on 8 July 1999 was lawful. The declaration does not state that specifically in relation to a caravan placed on Mr Charlesworth's land that his land has existing use rights, which appears to be the basis of Mr Charlesworth's application.

13 Mr Charlesworth submitted several statutory declarations as evidence of the existing use rights attaching to his land. These declarations were from persons who at various times had resided in a caravan on the land. These persons appear to have been either employed by Mr Charlesworth, assisting in the operation of the business conducted by Mr Charlesworth from the land namely; Farmyard Friends or, they were in some form of caretaker role. He also referred to a number of aerial photographs from 1994 to 2003 which showed a caravan on the subject land.

14 Mr Charlesworth contended that as a result of the declaration the caravan located on his land fell within the description of a movable dwelling unit referred to in the Tribunal's 1999 decision and that his land therefore had existing use rights for a movable dwelling unit under the provision of the new format planning scheme, which provides at Clause 63 that 'an existing use right is established in relation to use of land under the scheme if ... the use was lawfully carried out immediately before the approval date'.

15 Whilst Mr Charlesworth might very well be able to establish that the caravan located on his land fell within the description of a movable dwelling unit referred to in the Tribunal's 1999 determination and that the subject land is located in the area that the Tribunal was referring specifically to in its declaration, this does not however lead to the conclusion, as stated by Mr Charlesworth that his land has existing use rights for a movable dwelling unit. Although Mr Charlesworth submitted evidence that might go a long way to one reaching a conclusion that there is some form of existing use rights attaching to his land, this is not a hearing regarding the establishment of such rights. As previously stated by the Tribunal in Logie 'it is not intended that a responsible authority will initiate certificates of compliance, or be required to itself gather and assess evidence in relation to allegations of existing use rights. The onus of establishing such rights being in accordance with authorities in relation to the subject, on the party asserting them'.

16 It is therefore difficult to see that the Responsible Authority could at any time issue a Certificate of Compliance in the form requested by Mr Charlesworth, certainly not until such time as existing use rights are established for his land and the extent of those rights. As there are no established existing use rights specifically for his land then it is difficult to see how he can rely on non existent rights to establish that he can carryout a proposed development on the basis of those rights.

17 In the event that it was considered that Mr Charlesworth did have existing use rights for 'a movable dwelling unit (such as a caravan)' as referred to in the Tribunal's 1999 declaration then consideration must be given to what Mr Charlesworth is now proposing and as to whether that proposal would fall within the existing use rights description of 'a movable dwelling unit (such as a caravan)'. In this respect Mr Charlesworth submitted the proposed replacement movable dwelling unit was designed to be capable of being transferred from place to place, being specifically designed to be built in two 5m x 16m sections, on engineered steel framed bases, supported by steel stumps. The garages are also to be similarly constructed in 2 bolt-together steel framed base sections.

18 It was his contention that as they were movable, contained all the elements of a dwelling namely a kitchen, habitable room (bed/sitting room), bathroom laundry and store, and although each unit is separate from one another they are still connected to the one septic and drainage system as well as by pathways they fall within the description of a movable dwelling unit.

19 He further submitted that each unit could be described as a habitable room, and as he proposed 10 units this resulted in 10 habitable rooms. Nowhere in the planning scheme, he submitted, is a movable dwelling unit limited to the form of a caravan or similar, there are no conditions that limit the number of sections it can be transferred in, its size, other than it is not to be more than 10 habitable rooms, how each room is connected or where they are located on land. His reliance upon the maximum of 10 habitable rooms appears to come from the former definition of 'dwelling' in the former planning scheme which limited the accommodation to 10 habitable rooms. Such a definition is no longer applicable under the current planning scheme.

20 The land is located within a Green Wedge Zone and is subject to a Significant Landscape Overlay - Schedule 1 under the current Whittlesea Planning Scheme.

21 If there is existing use rights attached to the land those rights it could be said may only be confined to the use of the land for a movable dwelling unit namely a caravan or similar structure. There has been no conclusive finding in relation to that issue and it is not a matter before this Tribunal. It could further be said that what Mr Charlesworth is proposing does not fall within this description. Mr Charlesworth has put forward a somewhat tenuous argument that relies on part of a definition no longer found in the planning scheme and which he has linked to an existing use right that has not been established. It is difficult to conclude that because parts of a building can be transported to a site this results in the building falling into the category of a movable dwelling unit. It is also difficult to conclude that what Mr Charlesworth proposes becomes one movable dwelling unit just because it is connected to the same septic and drainage system and by pathways. Any proposal for two or more dwellings on a lot may be similarly connected but would not be classed as one dwelling. Whilst there may not be, as Mr Charlesworth submitted, specific conditions on a movable dwelling unit in the planning scheme, on the face of it, the proposal does not appear to fall within what any ordinary person would conclude is one movable dwelling unit rather it has all the attributes of 10 dwellings or some form of group accommodation or a residential building.

22 Whether classed as 10 individual dwellings, group accommodation or a residential building all of these proposed uses fall within section 2 of the Green Wedge zone provisions under the current planning scheme and require a permit. In relation to a dwelling the zone provisions are very specific and only permit one dwelling on a lot, there is already a dwelling on the land, any proposed additional dwelling is therefore prohibited.

23 Even if it could be said that what Mr Charlesworth proposes falls within any existing use rights attached to the land, which it is difficult to conclude, any proposed buildings or structures would still require a planning permit under the provisions of Clause 42.03-2 which provides that a permit is required in a Significant Landscape Overlay to construct a building or carry out works. Whilst the provisions of Clause 63.04 allow a use in Section 1 of a zone for which existing rights exist to continue this does not give any existing rights in relation to development. The placing of a building on land is classed as development (Section 3 Planning and Environment Act 1987) and Section 6(3) Planning and Environment Act 1987 whilst protecting existing use rights does not protect development. In such circumstances a permit would be required.

24 In the terms of what Mr Charlesworth sought to be stated on the Certificate of Compliance it is considered that the Responsible Authority is unable to make the required statements as any existing use right that may attach to the land has not been confirmed and would firstly be a conclusion reached by the Responsible Authority and if not then by this Tribunal. If there are any existing use rights such rights are likely to be confined to that of 'a movable dwelling unit (such as a caravan)' as referred to in the Tribunal's 1999 declaration and is what has been supposedly located on the land for a period of time. It is unlikely that such existing use rights would extend to what is proposed by Mr Charlesworth. Neither can it be concluded that the proposed use or development complies with the provisions of the planning scheme, a permit would certainly be required for any development and depending on how the proposal is categorised may be either prohibited or would require a permit for use. Given that all of these factors are unknown and not conclusive the reluctance of the Responsible Authority to entertain the issuing of a Certificate of Compliance is evident. They simply cannot do it

25 For the above reasons the application for review is disallowed and the Responsible Authority is directed pursuant to Section 97P Planning and Environment Act 1987 not to issue a Certificate of Compliance.