3 A directions hearing is to be fixed on a Friday six weeks from today in order to make directions as to the hearing of the enforcement order application and as to whether or not it be heard in conjunction with any other proceeding that might eventuate by reason of the application for a permit in relation to the use of the land for an antiques market.

5 Geelong Markets Pty Ltd and Daramking Pty Ltd must provide to the council, within four weeks of today's date, the names and addresses of each person who has a tenancy agreement which permits them to occupy or use part of the land to be used for an antiques market.

For Graincorp Operations Ltd, Pilkington Glass Pty Ltd, and Barrett Burston Malting Pty Ltd

(given orally at the hearing and subsequently revised)

1 The Greater Geelong City Council (the council) has made application pursuant to sections 114 and 120 of the Planning and Environment Act for an enforcement order and an interim enforcement order in relation to land at 13-35 Mackey Street, North Geelong. The council seeks enforcement orders against Geelong Markets Pty Ltd, which is the owner of the land, Daramking Pty Ltd, which is the occupier of the portion of the land that is relevant to the application and Mr Ian Ballis, who is closely associated with the occupier of the land.

2 Before setting out the nature of the orders sought it is desirable to set forth some of the background matters.

3 The land is located in an area in North Geelong, east of the Princes Highway. It is in an industrial area where the uses tend to be of a heavy industry character and are, at least to some extent, port related. The subject land has been used for industrial purposes for many decades and contains numerous buildings which largely consist of sheds of various types.

4 The land is included in an Industrial 2 Zone pursuant to the Greater Geelong Planning Scheme. This zone is designed to make provision for heavy industry in particular. One of the purposes of the zone is to keep the core of the zone free of uses which are suitable for location elsewhere so as to the available for manufacturing industries and storage facilities that require a substantial threshold distance as the need for these arises.

5 The vast majority of the land is also affected by a heritage overlay being Heritage Overlay 1648. This overlay is a site specific overlay and applies only to the subject land. Moreover the subject land is included on the Victoria Heritage Register pursuant to the Heritage Act 1995. The entry on the Heritage Register records the premises as the Classweave mills. By virtue of the inclusion of the subject land on the Heritage Register, physical changes to the premises would require, at least in the general course of things, a permit pursuant to the Heritage Act. Moreover, because the land is on the Victorian Heritage Register, the provisions of clause 43.01-6 of the scheme mean that a permit may be granted to use the heritage place for a use which would otherwise be prohibited.

6 It would appear that until 2002 the land was owned by an industrial company which, in turn, let parts of the premises to various other industrial concerns from which they conducted their businesses. In 2002 the present owner purchased the land and some of those businesses have continued to operate as they were operating before 2002. However it is equally apparent from the evidence as it is before me that a substantial portion of the subject land is vacant.

7 In 2003 part of the land commenced to be used for a use which I will describe, for convenience, as an antiques market. This part of the land is generally at the southern end of the subject land. I was told in evidence that the antiques market consists of 32 separate businesses which operate from the subject land and which trade in a communal fashion from one of the buildings on the land. The evidence was that these businesses entered into a sub-lease with the tenant Daramking Pty Ltd (there was other evidence that the arrangement was directly with Geelong Markets Pty Ltd, but this does not matter for present purposes). Evidence was given in the form of a pamphlet, which apparently was produced in July 2003, that the antiques market trades seven days a week from 10:00am to 6:00pm. The antiques market is served by a car park which I was told has a capacity for 80 cars and that the peak parking demand is such that this car park can always accommodate the demand.

8 Daramking and Geelong Markets propose to add an additional 28 businesses or sub-tenants by utilising buildings generally in the south-east portion of the subject land. It is proposed that these new businesses will open in conjunction with a weekend sale commencing on Friday 30 April 2004. The sale is actually advertised as the 29th Annual Geelong Antique Fair and the impression is created by the advertisement that this is, in fact, a one-off function. However the evidence was it is more in the nature of an opening sale, as the 28 additional businesses to be added from that weekend will continue to trade thereafter in much the same way as the existing 32 businesses trade now.

9 In 2002 a permit application was made to redevelop a major portion of the site as an arts, entertainment and market precinct. Subsequently a fresh application was made sometime in 2003 to use the premises as a market and for trade supplies purposes. The latter application was called in by the Minister for Planning pursuant to section 97B of the Planning and Environment Act. Subsequently, pursuant to section 97F of that Act, the application was refused by the Minister on 26 February 2004. The grounds of refusal were as follows:

(a) the proposal was inconsistent with the planning scheme including the State planning policy framework, the local planning policy framework and the purpose of the Industrial 2 Zone applying to the land;

(b) The proposal would negatively impact on the integrity of the North Geelong Industrial Area and would constrain the ongoing operation of established industrial and port related uses; and

(c) the proposal would compromise the availability of the North Geelong Industrial area for manufacturing industries and storage facilities that require a substantial threshold distance as the need for these arises.

It is not clear whether, prior to making this decision, the application had been referred to a panel pursuant to section 97E of the Planning and Environment Act, but it would appear that no such panel consideration occurred.

10 No permits have been issued pursuant to the scheme or any of its predecessors which specifically relate to an antiques market or some similar type of use.

11 In its application for an enforcement order the council asserts that the land is being used on an ongoing basis for the sale, including retail sale, of recycled furniture and a wide range of other goods. It also highlights that there is a proposal during the weekend commencing 30 April 2004 for a sale of a wider range of antique goods, including furniture, jewellery, fine china, decorative arts, glassware, collectables, pottery, ceramics, linen and lace. As things have emerged that is not to occur just on three days over a long weekend, but those three days are the start of an ongoing use of that nature.

12 In its application for an enforcement order the council seeks an order that the use of the premises cease save to the extent that any such uses might in the future be authorised by the grant of a permit pursuant to the scheme.

13 The council has also applied for an interim enforcement order pursuant to section 120 of the Planning and Environment Act. Section 120 provides, in substance, that a responsible authority who has applied for an enforcement order may apply to the tribunal in an urgent case for an interim enforcement order. It also provides that before making such an interim enforcement order the tribunal must consider, inter alia, what the effect of not making the interim enforcement order would be and whether the applicant should give any undertaking as to damages.

14 In Stonnington City Council v Blue Emporium Pty Ltd [2003] VCAT 1954, I considered the nature of the powers contained in section 120 and some of the principles which should guide the exercise of those powers. I adopt what I said in that case. However I would highlight that the reason why relief was granted in that case, without requiring an undertaking as to damages, was due to the peculiar nature of the facts in that case, in particular, that the only real defence offered by the occupier to the council's claim that it was entitled to an interim enforcement order was that it intended to obtain a permit variation to rectify the breach. I took the view that that went to whether the use should be permitted to operate in a lawful manner prospectively and should not be taken to determine the question of the lawfulness of what was occurring at the particular point in time when the interim enforcement order was sought.

15 The council's case, put simply, is this. The land is located in an Industrial 2 Zone. The use being made of the land is not authorised by section 1 of the use table in that zone. And there are no permits authorising the use. Hence the use is unlawful and, being unlawful, should cease.

16 The occupier countered by asserting that it had existing use rights which it was entitled to rely upon and which permitted the antiques market. It pointed to the fact that the land had been used not only for industrial purposes for a relatively long period of time, but also it claimed that activities included materials recycling and the sale of second hand materials. Mr Ballis gave evidence that, prior to 2002, a wide range of goods were sold on the land and activities carried out on the land. Thus it was said that the use being made of the land as an antiques market was lawful, not only pursuant to the existing use rights provisions in the planning scheme, but also by reason of section 6(3) of the Planning and Environment Act 1987.

17 It is not incumbent upon me today to decide this question and I do not do so. Rather I need identify whether the council has raised a serious issue and, further, having regard to my reasoning in the Stonnington case, the probability of the council's case succeeding. There is no doubt the council has raised a serious issue to be tried. Further, as matters presently stand, there is a high probability that the council will succeed in demonstrating that the use being made of the subject land as an antiques market is an unlawful use.

18 This is not the occasion to enter into a dissertation on the nature of existing use rights. It is probably sufficient to point to clause 63.02 of the scheme which, in many ways, is a summary of what would otherwise be the position having regard to the development of the common law. Clause 63.02 provides that if a use is being characterised to assess the extent of any existing use right, the use is to be characterised for 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 section 1, 2 or 3 of any zone.

19 I suspect that if this was a final hearing I would probably conclude that the proper characterisation of the purpose of the actual use at the relevant date was that of industry, possibly industry and industrial sales. I doubt whether the proper characterisation of the use would be such as to embrace what is in effect an antiques market. It is unnecessary to examine the definitions of the various terms used in the planning scheme, because this is not the approach dictated by clause 63.02. However I note that the brochure describing the use refers to there being over 40 stalls at the antiques and collectable centre. It I was deciding the matter today I would be inclined to think that the characterisation of the present use was different than the proper characterisation of the previous use, having regard to existing use principles. In saying this Exhibit 1, which sets out a list of existing uses, and by crosses a list of those existing uses that involve recycling of some sort or another, is misguided as it probably fails to give effect to the proper principles that must be applied in relation to existing uses. It is more in the nature of a cataloguing of individual activities than a characterisation of the purpose or purposes being served by the use. I am not so sure whether at this stage I would go so far as Mr Nelson when he described the attempt to rely on existing uses as a sham, but if I was finally deciding the case now, on the evidence currently before me, I might describe it as a few straws blowing in the wind.

20 I conclude this part of the case by observing that I am satisfied that there is a serious issue to be tried and further I am satisfied that there is a high probability of the council showing that the existing use is unlawful.

21 I now turn to the balance of convenience. Council has argued that it should not be required to give an undertaking as to damages and has relied on the Stonnington case. I distinguish that case from the present one because here the occupier is asserting that it is acting lawfully and does not require a further exercise of discretion to be acting lawfully. Hence if any interim enforcement order is to be given I would require an undertaking as to damages by the council. The council has indicated to me that if that was required it will be given.

22 Normally when an undertaking as to damages is required and offered, it provides a high degree of security to the tribunal or court deciding the matter because if it should ultimately turn out that the interim order was wrongly granted, the court or tribunal can be satisfied that those who suffer damage would be entitled to recover it from the person giving the undertaking. However there are factors in this case that mean that the undertaking may not be the complete answer in the event that it finally turns out that an interim order requiring the use to cease is wrongly made.

23 It does seem apparent to me that there are a large number of persons who will be potentially affected if the use is required to cease by interim order. Obviously the owner and the occupier of the land will be affected. So too will the sub-tenants. Any undertaking as to damages that is given would protect not just the owners and occupiers, but it would also protect the sub-tenants. However the persons who are potentially adversely affected does not stop there. It would include persons who travel to Geelong and travel to the premises, particularly on the weekend of 30 April to 2 May 2004, in respect of which there has been extensive advertising, and who would find when they arrive at the premises that it was not open. I have been told in evidence that $28,000 has been spent. It is not entirely clear whether that is all on advertising, but I infer from the evidence I have received that the so called 29th Annual Geelong Antique Fair has been widely advertised. I also infer that there will be people travelling from Melbourne and from other parts of Victoria, indeed possibly from interstate, to attend the fair. I exercise my right to have regard to common knowledge to take into account that members of the community interested in antique goods are sometimes fanatical about that interest and do travel long distances to pursue the interest. I am troubled by the fact that many people may go to Geelong or, if living in Geelong to the subject premises, to find that it is not open and will not only be inconvenienced by that in a monetary sense but also in a non-pecuniary sense. Obviously any undertaking as to damage that is given cannot effectively deal with this loss or disadvantage that may be suffered.

24 The occupier of the land has given an undertaking to me that, in the event that I was to refuse to grant the interim enforcement order now sought, it would make application to the council within 28 days for a permit to use a portion of the land for an antiques market. Such an application might be made under clause 43.01-6 of the Heritage Overlay or it might be characterised in a way that it was a legitimate application under section 2 of the Industrial 2 Zone. I would be inclined to regard the proposal as a market, but it is unnecessary for me to express any concluded view on that matter.

25 The fact that such an undertaking is to be given is relevant because it does mean that prompt attention can be given to whether the use now sought to be restrained should in fact be allowed. The matter is complicated by the fact that a similar proposal has recently been considered by the Minister and has been refused. But I am persuaded on the evidence that is before me that the proposal that the Minister considered was more broad ranging that what would be involved if an application was made just for the antiques market use.

26 It needs to be borne in mind that we have a unique site in this case. The uniqueness of the site comes about because of the imposition of two planning controls that might be thought to be contradictory. One control effectively designates the land for heavy industry. The other control effectively requires the retention of existing buildings on the land for heritage reasons. It is notorious that heavy industry often requires re-engineering of land and re-engineering of buildings in order to deal with new industrial circumstances. Where there is a site which contains a very large building that is protected for heritage reasons, that will inevitably inhibit the effective use of that land in the future for heavy industrial purposes. Indeed Mr Ballis told me that in the time he has had the site, which is approximately two years, and has advertised part of the site available for lease, he has not received any applications from any person to lease the land for industrial purposes. Given this, I believe this is a case which must be considered carefully and flexibly, because if it is not, there is a real danger that the land will effectively be sterilised, which would not be a sound outcome in the community interest.

27 Therefore an undertaking that the occupier will make an application for a permit to validate the use of the land as an antiques market is a relevant factor that I should weigh in assessing where the balance of convenience lies. Obviously the making of any such application is without prejudice to the occupier pursuing its claim that it does not need a permit to use the land for an antiques market. It could achieve that outcome by either obtaining a declaration to that effect or by successfully resisting the council's assertion in the enforcement order proceeding that the use is unlawful.

28 I am conscious that the continuation of the use until the hearing of the enforcement order application may involve unlawful conduct and that is not an outcome that is desirable. However I am informed that there is sufficient parking on the subject land, not only to accommodate the existing scale of use, but also to accommodate the additional 28 businesses or sub-tenants that intend to commence on the land on 30 April this year. Further the nature of the use in question is that it could easily be dismantled in a relatively short time. That is a further factor that points to the balance of convenience being to refuse to grant the interim enforcement order in the circumstances.

29 If I can summarise, I am persuaded that there is a serious issue to be tried and I am persuaded that there is a high probability that the application will succeed if the facts remain as they are at the moment. Normally in such a circumstance an interim enforcement order would be made unless the balance of the convenience firmly pointed the other way. The fact that an undertaking as to damages is proffered by the council is highly relevant in that respect. But nonetheless I am persuaded that there are sufficient factors pointing the other way to justify refusing the application for an interim enforcement order. These include the fact that the opening of the additional businesses has been widely advertised and will involve many consumers attending the land, some of whom will travel from long distances; the fact that so many persons are potentially adversely affected, including not only the consumers but also the various businesses; and the fact that the land is the subject of a Heritage Overlay and the building is on the Victorian Heritage Register, notwithstanding that the land is zoned Industrial 2 pursuant to the scheme. This latter fact is relevant because the options for the land are severely restricted by these controls.

30 Having regard to my conclusions, I believe the appropriate course in relation to costs is that they be reserved. I propose to set a directions hearing down for six weeks from today, and at that time a further evaluation should be made by the tribunal as to when to set the matter down for hearing and whether any hearing of the enforcement order should also be the hearing of another proceeding which may eventuate by reason of the application for a permit.

31 The rejection of this interim enforcement order is without prejudice to the bringing of any further application by the council, particularly one that might be directed at ensuring that the use of the land as an antiques market is conducted in a manner that minimises any adverse effects upon nearby landowners, particularly adverse effects by reason of traffic or parking.