1. The applicant, Lindsay Farr, operates a plant nursery next to the subject site at 67 Church Street and resides in a caretaker dwelling on site. Both the subject site and Mr Farr's property are located in a Business 2 Zone.
2. Planning permit TP912 (Permit) was issued by the City of Hawthorn on 26 September 1978. The permit allowed the site to be used for the purpose of panel beating. The permit contained the following conditions:
   1. The layout of the site and the size of existing buildings shall not be altered or modified without the consent of the responsible authority.
   2. A spray painting booth shall be installed in accordance with the requirements of the relevant regulations under the Labour and Industry Act and shall be used at all times when spray painting is affected.
   3. The amenity of the neighbourhood shall not be affected by the omission of noise or dust, with the operator under this permit being responsible for the proper removal of discarded motor body parts.
   4. No further advertising shall be exhibited or displayed without the consent of the responsible authority.
   5. All business activities associated with the approved use shall be effected within the curtilage.
3. Council believes that the site has operated continuously as a panel beating shop since 1978. On 14 October 1997, council refused a permit application for business signage on the site.
4. In March 2010, the Donnellons replaced a diesel-powered spray painting booth/oven with a gas-fired spray painting booth/oven. The booth required the replacement of the inlet and exhaust stacks on the roof. These works prompted Mr Farr to contact several government authorities, including council, the Environment Protection Authority (EPA) and Worksafe Australia, to complain about fumes, noise and asbestos.
5. In response to Mr Farr's fumes complaint, the EPA issued a Minor Works Pollution Abatement Notice (PAN) requiring that the booth meet certain criteria to abate fumes. As the new exhaust and inlet stacks were now required under the PAN, council determined that they were exempt from requiring planning permission pursuant to clause 62.02-1 of the Boroondara Planning Scheme.
6. Council and the EPA have investigated Mr Farr's noise complaints and no enforceable breaches have been found to date. Council has also investigated Mr Farr's asbestos concerns and has not required the Donnellons to take any further action.
7. Aside from complaints received from Mr Farr, Council records indicate that no significant enforcement action has been taken regarding the site.
8. On 25 March 2011 council issued planning permit PP10/00334 for a wash bay at the rear of the subject site. This application was appealed by Mr Farr and withdrawn by consent (VCAT Ref No. P3074/2010).
9. The applicants say that problems have arisen regarding the installation of the exhaust stack and air inlet entry duct, which are associated with the new spray painting booth. The applicants have provided no details or evidence of what they say constitute the breaches of conditions referred to in paragraph 1 of the declarations except to say at the hearing that an example of the breache of condition 5 is that business activities are undertaken on the street and in the roadway almost daily. They say that they are not required to provide any evidence at this stage. Any evidence will be provided at the hearing on the merits.

1. Section 149B of the Planning and Environment Act 1987 enables a person to apply to the Tribunal for a declaration concerning:

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

1. The declarations being sought by the applicants concern alleged breaches of the permit and the existence, or rather non-existence, of existing use rights in respect of the subject land. The Tribunal will only have jurisdiction under section 149B if each of these issues can be the subject of a separate application to the Tribunal.
2. Nothing has been done by the responsible authority in the circumstances of the present case, consequently the applicants must rely upon section 149B(1)(a) - "any matter which may be the subject of an application to the Tribunal under this Act".
3. An application for enforcement order by "any person" under section 114 of the Act in respect of breaches of the permit could be the subject of an application under the Act and therefore could be the subject of a declaration under section 149B.
4. What is more doubtful is whether it is possible for the applicants to seek a declaration about the existing use rights, or rather the lack of existing use rights, in respect of land that they neither own, occupy nor have any other interest in. My doubts arise because the applicants appear to have no rights to make an application concerning such existing rights under any other provisions of the Act.
5. Section 149A enables a specified person to apply to the Tribunal for a determination of a matter if:

(c) the matter relates to a provision of a planning scheme or amendment permitting the continuation of a use lawfully existing before the coming into operation of the planning scheme or amendment, or permitting the use of buildings or works for a purpose for which they were lawfully erected or carried out before the coming into operation of the planning scheme or amendment.

However, the applicant is not a specified person as defined in section 148 of the Act. Therefore, they have no right to apply for a declaration under section 149A.

1. Section 97P of the Act enables an applicant for a certificate under section 97N to apply to the Tribunal for a review of a decision by the responsible authority to refuse or fail to issue a certificate. Under section 97N, a person may apply to the responsible authority for a certificate that an existing use or development of land complies with the requirements of the planning scheme.
2. However, the applicants are not the owners, occupiers or developers of the subject land and they are not seeking to establish that the existing use and development of the subject land complies with the scheme. Rather, they are seeking to establish that no existing use rights exist under clause 63 of the planning scheme. Therefore, in my view, it is doubtful whether the applicants can look to section 97P as establishing the basis for seeking a declaration under section 149B.
3. Although section 149B is a broad power, it is not unlimited. It must relate to any matter which may be the subject of an application to the Tribunal under the Planning and Environment Act 1987. It is unclear whether this means an application by anyone at all or an application by the applicants for declaration. This issue was not argued before me and I am therefore not prepared to make a definitive ruling on the point. Nevertheless, the uncertainty of the applicants' standing to seek a declaration under section 149B regarding the respondents' existing use rights raises doubts about the appropriateness of using section 149B as a means of declaring that land, which the applicants have no interest in, does not have existing use rights.

1. Even if the Tribunal has jurisdiction to make a declaration, whether or not such a declaration could or should be made is another issue. Declarity relief is a discretionary remedy. The availability of an alternative remedy is a factor that should be considered in deciding whether or not to make a declaration. This issue and the various authorities was discussed in Phillips v Greater Shepparton CC[1] where I said:

[109] The power to make a declaration is not ousted by the existence of alternative remedies. The provision within a statute setting out a particular procedure for determining an issue in relation to which a declaration has been sought will not automatically or necessarily lead to the conclusion that a declaration will be refused, but it will be an important factor that may influence whether discretion to make a declaration should be exercised.

1. In general terms, the following principles govern the exercise of the power to make a declaration:
   • There must be a dispute in existence.
   • The jurisdiction is not available if the issue is purely theoretical.
   • The issue must not only be in existence but must be attached to facts. The dispute must be real, not hypothetical, and must be of practical importance.
   • The making of a declaration must be of practical use.[2]
2. Under section 75(1) of the Victorian Civil & Administrative Tribunal Act 1998, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. The applicants acknowledge that the grant of a declaration is a discretionary remedy and equitable principles are relevant, but say they are not able to be assessed until after all the evidence is heard. The council submitted that this proceeding should be struck out as there is no evidence to support the applicants' assertions about a breach of the permit. The applicants say they do not need to produce any evidence at this stage of the proceeding. The extent of evidence is a matter for final hearing. They say they are not required as part of their application to submit evidence to justify the relief they seek and in this they rely upon Norman v Australian Red Cross Society[3], which upheld that the principles set out in the Court of Appeal's decision in State Electricity Commission v Rabel[4]. They summarised these principles as follows:
   • In essence, it is a very serious matter to strike out a proceeding and it should only be done in a very obvious case. Prime facie, a party is entitled to call his evidence, present his case and have it dealt with in the normal course at a full hearing. He should only be deprived of that right if the case that he wishes to present is manifestly hopeless or has no chance of success.
   • A clear distinction must be drawn between the complaint itself and the evidence that is to be given in support of it. A complaint cannot be struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims made.
   • The power [under s.75] may not be invoked where all that is shown is that, on the material currently before the tribunal, the complainant may fail to adduce evidence substantiating an essential element of the complaint.
   • It is not for the Tribunal at least at an interlocutory stage of the proceedings to conduct a pre trial assessment of the complainants' evidence to determine whether the complainant can prove his case. Such an approach is incorrect.
2. This is not a situation like Rabel where the Tribunal had not permitted the complainant to call certain evidence. In the present case, the applicants chose not to provide any evidence or details of the alleged breaches of conditions, either with the application or at the practice day hearing, maintaining that such evidence would be called in due course.
3. I consider that the issue of evidence, or the lack thereof, is not relevant in determining whether or not this proceeding should be summarily struck out or dismissed. In my view, it is not a question of whether there is evidence that may demonstrate a breach of the permit conditions. Rather, even assuming a breach could be proved, the question is whether the Tribunal would exercise its discretion to grant the declarations sought based on the principles which govern the exercise of declarity relief. In my view, irrespective of the evidence, the Tribunal would not exercise its discretion for the following reasons.
4. This proceeding is not in the nature of a review of the merits of a particular decision such that a summary dismissal/strike out would deny the applicants a remedy. They have an alternative and far more suitable remedy in the form of an enforcement order application under section 114 of the Act. This remedy would deliver, if appropriate, tangible relief in the form of an order that potentially compelled compliance with the permit or directed specified things to be done.[5] A proceeding for declaration, in the absence of an application for an enforcement order, cannot deliver such relief. Therefore, the making of a declaration is of no practical use: it has no utility.
5. If the applicants were to apply for an enforcement order, the Donnellons may have a defence by relying on existing use rights under clause 63 of the planning scheme. The question that arises is whether, if the Tribunal was prepared to make the declarations in the current proceeding that the applicants seek, what status they would have in any enforcement proceeding.
6. In any enforcement proceeding, I do not consider the Tribunal would be bound by or estopped from making its own findings and reaching its own conclusions by any declarations that may have been made on similar issues in the current proceeding. Therefore, I consider there would be no utility in proceeding with the current application for declarations. The proceeding would amount to a waste of Tribunal time and resources and also expose the parties to unnecessary costs and inconvenience.
7. In my view, the application for declarations is an abuse of process. There is an alternative, more suitable remedy available to the applicants in the form of an enforcement order application, which they should pursue if they are serious in contending that there is a breach of the permit and that there are no existing use rights protecting the use of the land. If they are not serious in their contention and this application for declarations has been instituted for a collateral purpose other than to remedy the alleged breach, then it may be said that the proceeding is vexatious. This in itself would justify it being struck out under section 75(1) of the Victorian Civil & Administrative Tribunal Act 1998.
8. I do not intend to make any findings about the applicants' motives. I will accept that they are genuine in seeking to remedy what they perceive to be a breach of the permit. I make no comment about the substance of the alleged breaches or whether a defence based on existing use rights could be established. I find, though, that the most appropriate proceeding by which to establish these matters is by way of an enforcement proceeding under section 114 of the Act and that to continue with this proceeding would be an abuse of process. If this proceeding was to continue, I consider it would have no chance of success due to the existence of an alternative, more appropriate, remedy and the lack of any utility in making a declaration.
9. For these reasons, I determine that the application should be struck out pursuant to section 75(1)(b) of the Victorian Civil & Administrative Tribunal Act 1998.

[1] [2005] VCAT 653 at [93] and [109] - [119]

[2] Hill v Campaspe SC [2005] VCAT 1128 at [11]; Ainsworth v Criminal Justice Commission (1002) 175 CLR of 564, [1992] HCA 10, cited in Phillips v Greater Shepparton CC [2005] VCAT 653 at [108]

[3] (1998) 14 VAR 243

[4] [1998] 1 VR 102; [1996] VSC 78

[5] See section 119 of the Planning and Environment Act 1987