1. Pursuant to s 149A and/or s 149B of the Planning and Environment Act 1987, I determine that, in respect of the land at 580 Andersons Inlet Road, Bena:
   1. the buildings and works and caravan on the land do not together or separately constitute a 'dwelling' as defined in, and for the purpose of, the South Gippsland Planning Scheme; and
   2. an existing use right has not been established under clause 63 of the South Gippsland Planning Scheme that enables the land to be used, or to continue to be used, as a dwelling.
2. The application is otherwise dismissed.

1. The enforcement proceeding is adjourned to a Multi Purpose Hearing at the practice day on Friday 1 April 2011. The purpose of the hearing is
   • to consider the future conduct of the enforcement proceeding having regard to the decision in P3019/2010; or
   • if the parties agree and the matter can be determined within one hour, to finally determine the enforcement proceeding.

Having regard to the decision in P3019/2010, the Tribunal will consider making an order 'on the papers' without the further hearing if the parties provide written minutes of a proposed consent order, signed by or on behalf of both parties, not less than 3 working days prior to the dated listed for the hearing. Without limiting the form of order, that order may provide for the withdrawal of the enforcement proceeding, or a consent order that any use of the land as a 'dwelling' cease within an agreed time.

Mr Gary Chisholm, senior town planner, of Beveridge Williams & Co Pty Ltd. Mr Chisholm called as a lay witness:

1. Mr & Mrs Furness own rural land near Bena, used primarily for extensive grazing. On the land is a large farm shed with some basic facilities and connected to a septic system, and there is also a caravan parked within an open area of the shed. An old farmer occupied these 'premises' from at least 1983 and, since his death in 2008, the premises have been occupied on a month-to-month tenancy.
2. The question for determination is essentially whether these buildings and works and caravan, separately or together, comprise a 'dwelling'.
3. Mr & Mrs Furness have sought a determination or declaration that the premises are a 'dwelling', and that the land now enjoys existing use rights as a dwelling through continuous use as such for over 15 years[1]. The responsible authority takes the opposite view. It refused a certificate of compliance in 2009, and now seeks an enforcement order[2].

1. The facts are not materially in dispute. The debate is one of planning scheme interpretation and characterisation of the use.
2. The primary facts are essentially as follows:
   • In 1981, a planning permit was issued to a Mr Canobio for the construction of an 'implement shed' on the land, and the shed was erected shortly thereafter. In the permit application, Mr Canobio had stated that the shed was "to house farm machinery and plant". The shed is approx. 18m x 10m, and comprises two enclosed bays (the enclosed area) and three bays that are roofed but open on one side (the open area).
   • The caravan was purchased by Mr Canobio in late 1980. It is parked within the open area and has been there since at least 1983, probably earlier, but retains its wheels and towing gear. The caravan contains a sleeping and living area, kitchen facilities and a shower.
   • A septic tank system was approved in 1981, to facilitate the installation of a single flush toilet. Sometime prior to 1983, a small free-standing 'amenities' building of approx. 3m x 4m was erected adjacent to the caravan and within the open area. This building has the appearance of a pre-fabricated unit often found on construction sites, and there is no record of any building approval for it as a permanent structure. An inspection in 1983 noted a shower/bath, washbasin and toilet within this amenities building, and it now also houses a washing machine. An alteration to the septic system was approved in 1985, and both the amenities building and caravan are connected the septic system.
   • Water is collected as run-off from the shed roof, stored in a tank, and reticulated to both the amenities building and caravan. The shed is connected to the electricity supply.
   • Since at least 1993, the land has been separately rated by the Council as 'vacant' land.
   • In 1997, the Council issued a caravan permit under its Local Law that entitled Mr Canobio to occupy the caravan as a 'temporary dwelling'. The caravan permit expired on 30 June 1999. Before its expiry, the Council had written to Mr Canobio indicating it had 'no concerns' with the then arrangement. However, Mr Canobio did not renew the caravan permit, nor does it appear that the Council took any further action at that time.
3. The planning permit and septic system plans refer to a 'shed', and none of the early documents acknowledge the use of the shed, amenities building and/or caravan for permanent accommodation. It is not unusual for a farm shed to be connected to a small septic system, water and/or electricity, so these factors are not therefore, by themselves, proof of authorised use as a permanent residence.
4. The uncontested evidence[3] is however that Mr Canobio effectively lived on the land under these arrangements from prior to 1983 until his death in 2008. Since 2008, there have been two tenants consecutively occupying the premises. Putting to one side the exact characterisation and lawfulness of the use, a substantially similar use of the premises for some form of accommodation has therefore existed since at least 1983 until the present time without any material break in that use[4].
5. In 2009, the present owner sought a certificate of compliance[5] that the use complied with the planning scheme. On 30 November 2009, the Council refused that application on similar grounds to those upon which it now relies in the current proceedings. Mr & Mrs Furness did not avail themselves of the rights that then existed to review that Council refusal[6].
6. Mr & Mrs Furness made their current application to the Tribunal[7] in October 2010. As is apparent, the use of the premises had not materially changed in the 15 years prior to that date.

Do the buildings and works and caravan on the land comprise a 'dwelling'?

1. Under the South Gippsland Planning Scheme, a 'dwelling' is defined in clause 74 as follows[8]:

A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a building.

1. It should be noted from the outset that the existence of the four required facilities (i.e. kitchen sink, food preparation facilities, bath/shower, and toilet/washbasin) does not of itself, or alone, satisfy the definition. A dwelling must be a building used as a self-contained residence.
2. On behalf of Mr & Mrs Furness, Mr Chisholm did not suggest that the shed and amenities building considered alone, or the caravan considered alone, would comprise a 'dwelling'. Indeed, they could not, as none of the components considered alone comprises a self-contained residence with the four required facilities. Mr Chisholm's argument was that the buildings and works and caravan, considered together, comprise a dwelling.
3. Having regard to the definition of 'building' in s 3 of the Planning and Environment Act 1987, I am not satisfied that the 'caravan' is a building, or can be construed as part of a building or as an out-building, service installation or appurtenance to a building. It is a vehicle, physically and structurally separate from the shed and amenities building, and in this case still has its wheels and towing gear even though it has remained in its current location for some time. The caravan sits within the shed but is not part of it. The buildings on the land are the shed and amenities building, and these do not comprise a self-contained residence.
4. The definition of a 'building' in the Planning and Environment Act 1987 includes 'a structure'. Mr Chisholm contended that the caravan is a 'structure' and could therefore be a 'building' through this factor alone. Under a broad dictionary definition of the term 'structure' (e.g. something built or constructed), that may be so. But on that view, a pipeline or a canal, or a motor car, or even a birds nest, would be a building simply because it was a structure of some type. In the context in which the term is used here, that would be a nonsense. I consider that a 'building' or 'structure', as the terms are used in the Act and planning schemes, has a more limited meaning that does not include a vehicle. This is also consistent with the approach taken under related legislation, such as I understand is the case for building regulations.
5. I note that the definition of 'building' in the Planning and Environment Act 1987 is an inclusive rather than exhaustive definition, but the parties had not considered this definition, nor took me to any authority on the issue. I am unaware of any direct Australian authority. However, in England, in a similar planning context, it has been suggested that whether something is a 'building' should be considered, as a matter of fact and degree, in the light of factors such as size, permanence, physical attachment and composition by components, and that a caravan or moveable dwelling would not ordinarily be considered a building by reference to these factors[9]. Here, there is perhaps a greater level of 'attachment' through the septic connection, which would not apply to a touring caravan, but I do not consider this sufficient to change the outcome. Given the different statutory definitions and planning schemes that might apply, I do not consider the English judicial approach binding, but I am comforted that it broadly supports the analysis and conclusion I have reached.
6. It follows that, if the caravan is not a building or part of a building, the caravan is not a component to be considered in determining whether the actual building (i.e. the shed and amenities building) is a dwelling. On this basis, there is no dwelling on the land.
7. Even if I am wrong, and the caravan is considered as part of a building, I am still not satisfied that the buildings and works and caravan, in combination, comprise use as a 'dwelling'. There are a number of reasons for this.
8. First, the need for Mr & Mrs Furness to rely on a combination of components to form a 'dwelling' suggests that there is no building that provides a 'self-contained' residence.
9. Secondly, I was provided with an extract from the former Korumburra Planning Scheme in force[10] around the time Mr Canobio first occupied the shed and caravan. That scheme defined 'dwelling' as follows:

"Dwelling" means a building or portion of a building which is used, or intended, adapted or designed or used for living purposes and is a self contained unit, but does not include a tent, caravan or omnibus body or similar structure however adapted.

1. Through this definition, a dwelling could not include a caravan however adapted. The buildings and works and caravan were not then a 'dwelling', as defined in the planning scheme. The South Gippsland Planning Scheme replaced the Korumburra Planning Scheme in December 1999, although the now prevailing state-wide definition of 'dwelling' may have been introduced a little earlier. However, from 1983 until the late 1990's, the premises could not have been a 'dwelling' as then defined, given the specific exclusion of a caravan. At best, the premises could only have been characterised as a dwelling after that definition ceased to apply.
2. Thirdly, a 'dwelling' is not the only land-use term encompassing accommodation for planning purposes. A person can clearly live in a caravan on a temporary or permanent basis, and caravans occasionally satisfy needs for affordable housing and are recognised in legislation such as the Residential Tenancies Act 1997[11]. But that form of accommodation is not necessarily as a 'dwelling'. Planning schemes recognise a variety of accommodation types. A 'dwelling' is nested as one of several forms of 'Accommodation' in the common land-use terms and nesting tables in Clauses 74 and 75 of all planning schemes, and there may also be other innominate forms of accommodation not listed there. Planning schemes define a 'Caravan and Camping Park' as 'land used to allow accommodation in caravans, cabins, tents, or the like', although this land-use term is more commonly used for groups of caravans in a caravan park rather than an individual caravan. The definition of a 'Residential building' excludes a caravan and camping park. Unfortunately, planning schemes do not appear to deal clearly with the circumstance here, but this may be because single caravans on rural land are commonly regarded as a temporary use intended for regulation under local laws.
3. Fourthly, although a dwelling is a building, the Tribunal is here concerned with the 'use' of the premises rather than solely being concerned with the physical structures. The Tribunal has previously held that the use of land for planning purposes is not determined by the style of development (although it may be an indicator of use) but the purpose for which the land is actually used[12]. For example, just because there is a house on land, it does not mean that the land is being used as a 'dwelling'.
4. Finally, land-use definitions in planning schemes must be read within a contextual, common sense and purposive approach to interpretation[13]. Given that these proceedings are ultimately about existing use rights, clause 63.02 of the South Gippsland Planning Scheme also applies:

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.

1. Strictly or technically meeting a planning scheme definition is not therefore conclusive. Having regard both to clause 63.02 and a contextual and purposive approach to interpretation of the scheme, including the matters discussed above, I do not consider a caravan can reasonably be, or is intended to be, characterised as a 'dwelling' for planning purposes. Nor for the same reason does the farm shed, amenities building and caravan in combination comprise a dwelling. What is happening here, in reality, is that a person is residing semi-permanently in a caravan, and using toilet and washing facilities in an adjacent amenities building. The primary 'residence' is the caravan, where the sleeping, living, cooking etc occurs. Irrespective of whether it is lawful or not, the use is no more than this. The use may be one of permanent accommodation in a caravan, but it is not a 'dwelling' as that term is commonly understood and applied for planning purposes.

Does the land have existing use rights as a dwelling?

1. Given my finding that the land use is not for a dwelling, it follows that no existing use rights arise that would enable the land to continue to be used as a dwelling.
2. The Council referred me to a previous VCAT decision where a similar use of a caravan was characterised for the purpose of existing use rights as a 'moveable dwelling unit' rather than a dwelling[14]. That decision turns on its facts, as it appears that the relevant planning scheme had expressly recognised the concept of a movable dwelling unit. However, it supports the view that the existing use rights (if any) that are established in a case such as this are for the specific use of the land for accommodation in a caravan, howsoever described, rather than use for a dwelling.
3. Even if I am wrong, and (contrary to my views) the land use can be characterised as a dwelling, I still do not consider that existing use rights have been established that would enable the land to continue to be used as a dwelling without the grant of a planning permit.
4. Clause 63.01 of the South Gippsland Planning Scheme sets out how an existing use right might be established, as follows[15]:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

• The use was lawfully carried out immediately before the approval date.
• A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.
• The use is 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.

1. The fifth dot point in cl 63.01 clearly does not apply. It is common ground that no permit has issued under the former Korumburra Planning Scheme or the current South Gippsland Planning Scheme that would enable the use of the land as a dwelling or for accommodation generally. The only planning permit is for the farm shed. The second and third dot points in cl 63.01 do not therefore apply. This leaves the first and fourth dot points - i.e. whether the use was lawfully established, or whether it is deemed to have been established under the '15 year rule' in clause 63.11 .
2. Section 6(3) of the Planning and Environment Act 1987 protects the continuing use of land or a building for any purpose for which it was being lawfully used immediately prior to the coming into operation of a planning scheme or amendment to the scheme. The first dot point in clause 63.01 gives effect to this statutory principle. It should be noted that under both s 6(3) and cl 63.01, the lawfulness relates to the 'use' rather than the lawfulness of the buildings and works.
3. Subject to clause 63.11 of the planning scheme (addressed separately below), the use of the subject land as a dwelling has never been lawful, because:
   • it was not contended that any existing use rights for a dwelling or other use for accommodation pre-dated the occupation of the premises by Mr Canobio in or around 1983. It is common ground that the use for accommodation first commenced around that time.
   • under the former Korumburra Planning Scheme, as discussed above, a 'dwelling' did not include a caravan. No planning permit ever existed for use for a dwelling or for any use of the land for accommodation under that scheme, nor was it contended that the use was ever 'as of right' under that scheme during the relevant period. The shed was only ever permitted as a farm shed. At the time the new South Gippsland Planning Scheme came into operation in 1999, and superseded the former Korumburra Planning Scheme, the use for a dwelling or accommodation was therefore contrary to the scheme and unlawful, in that the use was prohibited, or required (and lacked) a permit. No existing use rights were thus established and/or transferred at that time[16].
   • under the South Gippsland Planning Scheme, although there have been various iterations of the Rural Zone or Farming Zone over the years under various amendments to that scheme, the use of the subject land for a dwelling has always been either prohibited or required a planning permit. No planning permit for use of the land as a dwelling or for accommodation has ever been sought or granted. The continuing use of the land as a dwelling or for accommodation has thus been contrary to the planning scheme and unlawful throughout the operation of the present planning scheme, in the absence of any lawfully established existing use right.
4. Mr & Mrs Furness sought a certificate of compliance in 2009, effectively seeking to have the use certified as lawful, which was refused. For better or worse, they did not seek to review that refusal. To the extent there may be an element of discretion in whether I should make the declaration they now seek, it is relevant that they then 'sat on their rights', and now seek what is effectively a back-door and out-of-time review of that refusal. In any event, as is apparent from my reasons, I consider that refusal was correct.
5. It follows that no existing use right is established under the first dot point in clause 63.02 of the planning scheme. This leaves only the fourth dot point, upon which Mr & Mrs Furness primarily rely, namely whether proof of continuous use for 15 years is established under Clause 63.11.
6. Clause 63.11 of the South Gippsland Planning Scheme provides:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. As I have indicated, the application for a certificate of compliance has come and gone, but the present proceeding is still a proceeding under the Planning and Environment Act 1987 through which the 15 year rule can potentially be triggered.
2. As is apparent, the 15 year rule allows an existing use right to be established for planning purposes through continuous use, subject to certain restrictions, even if the use was not lawful for the whole period relied upon or even if the use was not lawful in the period immediately before the application or proceeding. It thus allows non-conforming or non-compliant uses to be legitimised through long and continuous use, and is perhaps somewhat analogous to property rights established by adverse possession.
3. The use must have "... been carried out continuously for 15 years prior to the date of the application or proceeding". The application to the Tribunal was made in October 2010. It is reasonable to conclude, from the findings I have made earlier, that the use of the land has remained similar and continuous - whether for accommodation in a caravan (as I have found) or as a dwelling (if I am wrong) - for that period of 15 years prior to October 2010.
4. However, as I have indicated, the 15 year rule is subject to certain restrictions. One of these restrictions, set out in the final paragraph of clause 63.11, is that an existing use is not established for a non-complying or unlawful use if, during the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.
5. Mr & Mrs Furness fail this test. They applied for a certificate of compliance. In the letter dated 30 November 1999 to Mr Furness refusing the certificate, the Council stated, amongst other things:

As the use of the land for a dwelling is prohibited under the scheme, you must comply with the scheme by ceasing to use the land for a dwelling by 1 February 2010.

1. The responsible authority has, within the 15 year period prior to the proceeding, clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme. It follows that even if, contrary to my views on other matters, Mr & Mrs Furness have demonstrated continuous use of the land as a 'dwelling' (albeit unlawful), the Council has become aware of the non-compliance with the scheme and sought to rectify it. No existing use right is thus established under clause 63.11.
2. This proceeding is framed specifically in relation to the contended use as a 'dwelling'. However, I consider my findings would apply equally to the broader use of the land for accommodation in the caravan. In my view, for similar reasons, such a use for permanent accommodation in the caravan (even if not a dwelling) also remains non-compliant with the South Gippsland Planning Scheme, and is thus unlawful. Should Mr & Mrs Furness subsequently assert that existing use rights exist for accommodation in the caravan, this decision would prevent those existing use rights being established under clause 63.11.

1. It follows that, in proceeding P3019/2010, pursuant to s 149A and/or s 149B of the Planning and Environment Act 1987, I determine that, in respect of the land at 580 Andersons Inlet Road, Bena:
   • the buildings and works and caravan on the land do not together or separately constitute a 'dwelling' as defined in, and for the purpose of, the South Gippsland Planning Scheme; and
   • an existing use right has not been established under clause 63 of the South Gippsland Planning Scheme that enables the land to be used, or to continue to be used, as a dwelling.
2. The effect of this is that P3019/2010 is dismissed.

1. The Council urged that, if I found in its favour on the matter of existing use rights, I should automatically make the enforcement order it sought. For Mr & Mrs Furness, Mr Chisholm argued that there may still be some aspects of the enforcement application that might be opposed, for example the requirement to return the building to a farm shed. He indicated that a directions hearing or further hearing might be required.
2. I have referred the enforcement proceeding P3391/2010 to a practice day hearing. If there are any remaining contested matters, these may be able to be decided then, or the matter listed for further hearing. However, based on my findings, Mr & Mrs Furness may be willing to avoid the costs of the practice day hearing or a further hearing and agree to a short timeframe (having regard to their tenant's month-to-month tenancy) within which the use can cease. If so, the matter might be capable of being finalised. In such event, there is an opportunity for the matter to be finalised by a consent order 'on the papers'.

[1] This is the subject matter of P3019/2010. The '15 year rule' arises under clause 63.11 of the South Gippsland Planning Scheme

[2] This is the subject matter of P3391/2010

[3] Statutory declaration by Russell Buchanan, and the sworn evidence and statement at the hearing by the co-applicant Gavin Furness, who lived nearby and inherited the land from Mr Canobio after his death.

[4] Under s 6(4) of the Planning and Environment Act 1987, existing use rights cannot be established for a use which has stopped for 2 years. For the reasons given, that circumstance does not arise here.

[5] under s 97N of the Planning and Environment Act 1987.

[6] under s 97P of the Planning and Environment Act 1987. These rights were clearly set out in the Council refusal.

[7] under ss 149A and/or 149B of the Planning and Environment Act 1987.

[8] The land use definitions in Clause 74 are common to all Victorian planning schemes.

[9] Measor v Secretary of State for the Environment, Transport & the Regions [1999] 4 PLR 93 (Queens Bench) , followed in Massingham v Secretary of State for Transport, Local Government & the Regions [2002] EWCA Civ 1420 (Court of Appeal).

[10] Mr Chisholm had searched this at the Public Records Office. It is not clear if this extract was part of the actual version of the planning scheme in force in or around 1983. It is believed this scheme version and definition of 'dwelling' applied from about December 1976.

[11] e.g. Part 4 of the Act, dealing specifically with Caravans and Moveable Dwellings

[12] see Armato v Hepburn Shire Council [2007] VCAT 603, particularly at [12] per Gibson DP. A house there was deemed not to be a 'dwelling' having regard to the nature of the occupation, but was another form of accommodation.

[13] see further discussion of this issue in Hall v Kingston CC (Red Dot) [2008] VCAT 1060, particularly at [16]-[23], referring also to Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157, particularly the oft-quoted comments of Marks J at pp162-3.

[14] Farmyard Friends Pty Ltd v Whittlesea CC [2005] VCAT 464 per Rickards M.

[15] Clause 63 is common to all Victorian planning schemes.

[16] At most, there was a period between 1997 and 1999 when the temporary use of the land for accommodation in the caravan was authorised under a local law. This certainly did not create lawful use rights for permanent accommodation under the planning scheme.