i

Can a use condition be imposed on a permit for buildings and works?

ii

Is this permit application a change in activities pursuant to the third dot point of clause 63.05?

2 The facts are set out in the directions dated 7 March 2005 made by Member Naylor, who is the presiding member in this proceeding. In summary, the subject land is used as a private tennis club. The application for review is made pursuant to section 82 of the Planning and Environment Act 1987 in respect of the decision of the Responsible Authority to grant a permit for tennis court lighting to tennis courts 1, 2 and 3 of the St Paul's Bentleigh Tennis Club at the subject site.

3 Private tennis club is an unspecified, section 2 use in the Residential 1 Zone. A permit is required to construct a building or construct or carry out works for a use section 2 pursuant to clause 32.01-6 of the Residential 1 Zone.

4 The private tennis club has existing use rights pursuant to clause 63.01 of the Glen Eira Planning Scheme as the use has been established over 50 years. There are no existing planning permits for the private tennis club therefore there are no conditions or restrictions that must continue to be met as part of the existing use.

5 Clause 63.05 of the Planning Scheme deals with sections 2 and 3 uses as follows:

A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

* No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.

* Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

* The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use rights.

6 A permit is required for buildings and works in respect of the tennis court pursuant to the first dot point of clause 63.05.

7 The questions of law arise in the context of whether conditions can be included in a permit for the lighting facilities regulating hours of operation of the tennis courts and otherwise regulating use of the tennis courts during the extended hours of operation facilitated by the development. On behalf of the Responsible Authority and the Applicants for Review, written legal submissions were made in accordance with the Tribunal's directions dated 7 March 2005. An opportunity to provide a response was extended to the parties but no responses were received.

8 With respect to the first question, both parties submitted that a use condition can be imposed on a permit for buildings and works in certain circumstances. I agree. If the buildings and works will affect the amenity of the area or give rise to other related town planning issues, a condition relating to use may be imposed provided that condition reasonably relates to the development. This was the view expressed by Deputy President Ball in Challister Limited v City of Caulfield (1992) 8 AATR 22 at 32 where he said:

In my view, if in circumstances such as this a development permit is sought which would vary, intensify or extend the use in some manner so as to affect the surrounding amenity or give rise to other related town planning issues, then provided a condition is reasonably related to the development then conditions affecting the use could in those circumstances be imposed.

9 Similar views have been expressed by the Tribunal in John Paul College v City of Frankston appeal no. 1991/02059 (unreported)[1]; Roy Boyz Pty Ltd v Port Phillip CC [2002] VCAT 907 and East Melbourne Group Inc v Melbourne CC [2004] VCAT 1341.

10 The second question is whether the permit application (construction of flood lights) is a change in activities beyond the limited purpose of the use preserved by the existing use right?

11 The first issue to be determined in responding to this question is to determine what the purpose is of the use that is preserved by the existing use right. Clause 63.02 deals with characterisation of use and states:

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.

12 According to the Responsible Authority the existing use of the subject land can be characterised as use for the purpose of tennis courts, unconstrained by the present hours of use. The Applicants for review contend that the existing use must be characterised as that of a private tennis club that operates in daylight hours only. They contend that night tennis and day tennis are clearly separate activities for a tennis club that only possesses existing use rights to operate during daylight hours. They submit that it is therefore open to the Tribunal to find on the facts that the permit application is a change in activities pursuant to the third dot point of clause 63.05.

13 The High Court case of Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 is one of the best known cases on existing uses. In that case, Kitto J observed that the characterisation of use was -

....not to be approached through a meticulous examination of the details or processes or activities, or through a precise cataloguing of individual items that was dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.[2]

14 This test has been affirmed and applied in numerous Victorian cases since. Applying this test to the circumstances of the present case, I find that the purpose of the use preserved by the existing use right is use of the land as tennis courts for playing tennis.

15 The question then arises whether playing tennis at night, as distinct from playing tennis during the day, constitutes a change in activities. In my view, the activity remains the same, namely playing tennis. The only thing that may change as a result of the permit application for tennis court lighting is the time when tennis playing and other related activities may occur. Construction of the lights may result in tennis being played for longer hours and at night and this may constitute an intensification in the level of activities, but it will not constitute a change of activities, or for that that matter a change of purpose. Tennis playing is tennis playing whether it occurs during the day or at night. This was the conclusion of the NSW Court of Appeal in Rockdale Municipality Council v Clarke (1982) 47 LGRA 159 and of the Victorian Planning Appeals Board in Royal South Yarra Lawn Tennis Club v City of Prahran (1985) 18 APA 405. As Hutley JA commented in the Rockdale case:

I confess that I am unable to see how the intensification of the use for tennis, namely the use of a place in which tennis is properly played during the day is extended into the night, amounts to the development of a new use and a new purpose.

I know of no case in which it has been held that a property, for town planing purposes, is devoted to one purpose for only portion of the day or for one purpose when the sun is up and one purpose when the sun is down.

...[T]he non conforming purpose for which this property is available is for playing tennis, morning, noon and night...

16 My response to the questions of law that I have been asked to determine are therefore as follows:

a

Can use conditions be imposed on a building and works permit?

Yes provided the condition reasonably relates to the development.

b

Is this permit application (construction of flood lights) a change in activities pursuant to the third dot point of clause 63.05 (a change in the activities beyond the limited purpose of the use preserved by the existing use right)?[3]

[1] John Paul College v City of Frankston appeal no. 1991/02059 was heard in two parts. The first part was reported in (1991) 7 AATR 185, but the second part of the case was unreported. It is the second part that deals with this issue of whether a condition concerning use can be included in a development permit

[2] (1964 ) [1964] HCA 37; 110 CLR 529 at 535

[3] I note that the application for permit describes the proposal as: To floodlight the three (3) red porous tennis courts at the St Paul's tennis club with a low level environmental side lighting system. The Responsible Authority has issued a Notice of Decision to Grant a Planning Permit for the construction and use of floodlights in association with the use of the three existing tennis courts (restricted recreation facility) in accordance with the endorsed plans. The permit requirements under the planning scheme are for buildings and works pursuant to clause 32.01-6 and a permit for buildings and works pursuant to the dot point of clause 63.05 of the planning scheme. There is no requirement for a permit for use of floodlights required.