1 The application for enforcement order is refused.

2 No order as to costs.

1 This is an application for enforcement order by a neighbour, Mr Michael Fuggle, of the subject land. A shed has been constructed on the land in accordance with advice provided by the council that a planning permit was not required for the shed because it met the specified setbacks in the Farming Zone, it does not exceed 200 square metres in area as required under schedule 1 to the Environmental Significance Overlay, and it is proposed to be used for agricultural purposes.

2 The applicant disputes that the subject site is being used for agriculture, which is a section 1 in the Farming Zone. The land is vacant; the land is not currently being used for grazing; and as there is no dwelling on the site, use of the land for a store is prohibited.[1] According to him, the shed has no permit, cannot get a permit and should therefore be removed.

3 According to the respondent, the land is being used for agriculture, and a permit is not required for a building or works association with a section 1 use. The shed is used in associated with the agricultural use of the land. Farming equipment is proposed to be stored in the shed as soon as council issues a Certificate of Final Inspection. The subject land has previously been used for the purpose of cattle grazing and is to be continued to be used for that purpose, although no cattle are on the property at present. "Use" is defined in section 3 of the Planning and Environment Act 1987 as follows:

"Use" in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed; [Tribunal emphasis]

Because the land is proposed to be used for agriculture, it can be said that the land is being used for this purpose.

4 Both the council and the respondent oppose making an enforcement order and have applied for costs against the applicant. The council contends that it is a "claim that has no tenable basis in fact or law"[2]. The respondent contends that the application for enforcement order is misconceived and vexatious.

5 I find that no permit is required for the shed because it is a building associated with a section 1 use in the Farming Zone, namely agriculture. It does not fall within the specified setbacks and hence does not require a permit under clause 35.07-4. It is not greater than 200 square metres and as it is an outbuilding associated with the use of agriculture, it does not require a permit under the Environmental Significance Overlay either.

6 I find that although the land is not currently being used for grazing, it has been used for grazing in the past and I accept that the respondent intends to use it for grazing in the future. Whilst the subject land is only 1.3 hectares in area, this does not preclude it from use for agriculture. The respondent, who lives at the dwelling located on a 63 acre property directly opposite the subject land, has recently acquired the land. She is registered with the National Livestock Identification Scheme and is also registered for GST as a primary producer, all of which lends weight to her expressed intention to use the land for grazing again in the future. At present, the land may have existing use rights for agriculture[3]. However, this is not a case that turns on existing use rights. The land is suitable for grazing; it has been used for this purpose in the past and it is proposed to be used for this purpose in the future. As such, I find that having regard to the definition of "use" in the Planning and Environment Act 1987 it can be said that the land is being used for agriculture.

7 My findings in this case turn on facts as they presently exist. Clearly, if the proposed use of the land for agriculture does not eventuate within a reasonable time, the foundation for this shed not requiring a permit would be lost. However, that is a matter for the future. As things stand at present, a permit is not required for the shed and consequently this application for enforcement order must be refused.

8 With respect to the applications for costs, I am not prepared to depart from the normal rule that parties in a proceeding bear their own costs.[4]

9 Originally, the respondent proposed to construct the shed in a different location on the subject land, which would have required a planning permit because it did not meet the setbacks in clause 35.07-4. The applicant objected to the grant of this permit. A satisfactory outcome was not able to be negotiated and consequently the respondent withdrew her application for a permit and relocated the shed to a site when no permit was required. The applicant has maintained his opposition to the shed and prior to this application brought a previous application (P47/2007) under section 149 of the Planning and Environment Act 1987. This was summarily dismissed as misconceived by Justice Morris on 2 February 2007. As Justice Morris said, section 149 "is not a provision designed to contest the lawfulness of a particular development." An application for a declaration under section 149B of the Act or an application for an enforcement order was more appropriate.

10 The present application was lodged immediately after the order in the previous proceeding was made. It is in the same terms as the previous proceeding. The applicant appeared ill-prepared for the present hearing and presented no submissions to substantiate his application.

11 Since the hearing both Mr Fueggle and Russell Kennedy, solicitors for the council, have submitted additional written material amplifying and responding to mattes raised at the hearing. No leave was given to the parties to do this. The hearing was the time when this material should have been presented. The hearing notice is quite explicit about the need to present all evidence and documentation in the eventuality that the application is heard on the day. Accordingly I have not taken this material into consideration.

12 Notwithstanding this, I do not consider that his behaviour can be characterised as vexatious or that Mr Fueggle's application has no tenable basis in fact or law. I consider that his case was tenuous but not untenable.[5] My decision in the case has turned upon a legal interpretation of the use of the land and it was a case that required argument on the part of the respondent regarding this point. The matter has been dealt with promptly and disposed of, and I therefore do not consider that an award of costs is justified in the present circumstances.

[1] In the Farming Zone store is a section 2 use subject to the condition that it: "Must be in a building, not a dwelling, and used to store equipment, goods, or motor vehicles used in conjunction with the occupation of a resident of a dwelling on the lot."

[2] See section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998

[3] No evidence was given as to when the land was last used for grazing purposes.

[4] Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998.

[5] See Solid Investments Australia Pty Ltd v Greater Geelong CC [2005] VCAT 244.