2. Costs to date in relation to these proceedings are reserved.

3. The hearing of the enforcement order application under s.114 of the Planning and Environment Act 1987 is fixed to commence at 10:00am on Monday 29 September 2003, together with enforcement order applications P2841/2002 and P2844/2002 already fixed for hearing on that day when three days have been allocated for the hearing.

4. Any party intending to call a witness at such hearing in relation to any of the three proceedings, or any other proceedings listed for hearing together with or in conjunction with those proceedings, is to provide a written statement of the evidence in chief of such witness or, in the case of an expert witness, a written report containing the evidence in chief of such expert witness, such documents to be filed not less than 10 days before the date fixed for the commencement of the hearing with copies to be provided to the representatives of the other party not less than 10 days before the commencement of such hearing. So far as Graeme Charles Harwood is concerned, his affidavit sworn 11 August 2003 and filed herein can stand as his witness statement in relation to its contents, and there is only need to file and serve a further written statement in relation to Mr. Harwood if it is proposed to lead and rely on evidence beyond that in his said affidavit.

Mr. A. Southall QC, Barrister, appeared with Mr. G. L. Rice, Barrister on the instructions of the firm of Goddard Elliott Solicitors appeared for the Responsible Authority.

Ms. Sarah Porritt, Barrister, appeared on the instructions of the firm Home Wilkenson & Lowry, Solicitors, for the Respondents.

Application under s.120 of the Planning and Environment Act 1987 (PE Act) for an interim enforcement order.

Use of the land for accommodation (namely residential building) other than a dwelling or dependent person unit without a planning permit required by the Planning Scheme for such use and the construction of a building for such use, being a use within section 2 of the Table of Uses for the Residential 1 Zone without a permit for such development as required by the Planning Scheme.

1. The Enforcement Order sought in this case concerns the land and house constructed on the land. It appears that the planning enforcement officer of the Responsible Authority, who has been responsible for collecting evidence and initiated the proceedings, would not have been concerned about the use of the land if it was not for an extension to the existing dwelling that has reached a framework stage. The existing house, excluding the extension, has a bedroom with an ensuite and three other bedrooms. There is also a living room, dining room with a kitchen and a laundry. Apart from the ensuite already mentioned there is a bathroom containing two shower recesses, two wash basins and a water closet. There is another water closet immediately beside these facilities. These bathroom facilities are quite unusual, and not at all what one would expect to find in a normal house.

2. The proposed extension would contain a further living area, four more bedrooms and a further bathroom containing three wash basins, two shower recesses and two WC.

3. The definition of dwelling in the Planning Scheme calls for the dwelling to be "self contained" in a sense of having toilet facilities, bath or shower, a kitchen sink and food preparation facilities.

4. It is maintained by Ms. Porritt on behalf of the respondents that the current house, and also the current house if extended as proposed, would remain a dwelling, and would not constitute some other form of residential building. The Responsible Authority, on the other hand, maintains that it is not, or at least when extended will not be, a dwelling. According to the Responsible Authority it would be accommodation, other than a dwelling and that planning permission is needed for that use of the land and also for the development constituted by the extension to the building. The Responsible Authority is of the view that the form of accommodation is, in fact, residential building in accordance with the definition of that land use term in the Planning Scheme. More specifically it is a boarding house, or is probably a boarding house or something very like it.

5. It is common ground between the parties that it is not a Dependent person's unit within the meaning of that expression in the planning scheme. It is also common ground that the land is within a Residential 1 Zone and that no planning permit has been applied, or exists, for the use of the land for accommodation (other than dwelling) or for the building works presently underway.

6. At present, four people reside in the existing house. The respondents were concerned that the application for an interim enforcement order may be seeking an immediate order for the cessation of the use of the land for the accommodation of these people. However, it was clarified at the beginning of the hearing that the Responsible Authority, in bringing this application, is concerned to stop the construction work only. Any questions in relation to the use or future use of the land, or whether there should be an enforcement order in relation to the actual threatened use of the land, are matters to be dealt with upon a consideration of the application under s.114 PE Act for an enforcement order. The Responsible Authority does not seek an interim enforcement order under s.120 PE Act relating to those matters.

7. There are other proceedings before the Tribunal concerning these respondents or persons or companies associated with them. These other proceedings relate to two other properties namely 54 The Avenue, Ferntree Gully, which is not far away, and 10 Milton Street, Ferntree Gully, which adjoins the site that is the subject matter of this proceeding.

8. These other proceedings are brought by the Responsible Authority in Applications P2841/2002 (in relation to 54 The Avenue) and P2844/2002 (in relation to 10 Milton Street). They are both applications for enforcement orders. They were both before Mr. Roger Young, Member of this Tribunal, for directions on 16 June 2003. He set them down for hearing to commence on Monday 29 September at 10:00am with three days allocated for the hearing. He made certain orders and gave directions. These are recorded in interim determination documents that appear on those respective files.

9. I am informed that a permit application has been made in relation to each of those other two properties. Furthermore, the Responsible Authority has determined to refuse to grant a permit in relation to each of them, and applications for review under s.77 PE Act have been commenced.

10. It may be that, at the hearing on 16 June 2003, the possibility of these applications for review was foreshadowed to Mr. Young. There is a notice of refusal in relation to each of them on file P2841/2002. Each of these notices of refusal is dated 12 June 2003.

11. The applications for review appear, according to the stamp impressions on them, to have been lodged with the Tribunal on 26 June 2003. That is obviously after the hearing on 16 June, and after the interim determination issued in relation thereto dated 18 June 2003.

12. There is no mention of the permit applications, the notices of refusal or any foreshadowed applications for review in either of the interim determinations. There is no mention in the orders and directions given, and there are no remarks or reasons attached referring to them.

13. It appears that these foreshadowed review proceedings were mentioned orally at the directions hearing, in spite of the fact that there is no written record in relation to them. I was given to understand that it was contemplated that the review proceedings would also be set down for hearing to commence on 29 September 2003. This would be an entirely sensible arrangement.

14. On examining these two other files, in the course of the hearing of the present matter, I discovered that the two applications for review had in fact been lodged and the lodgement fees of $257.00 in respect of each of them had been paid. However, they were accompanied by covering letters making reference to the then existing associated enforcement proceedings, and to the file numbers of those proceedings in such a way that has apparently led staff to merely attach the applications for review to the existing enforcement files. No further steps had been taken in relation to either review proceedings. It appears that no directions as to service had been given and no request to the Responsible Authority for the provision of the information and materials normally required under Practice Note 2 of the Tribunal in relation to the Planning and Environment List.

15. It is fortunate that the current application caused me to look at those other two files, or nothing would have happened to render them ready for hearing, together with the enforcement applications, on 29 September 2003.

16. I have not read those other two files and I am not, at this stage, in possession of detailed information about them. I was assured by the representatives before me that, although there are some similarities with the current proceedings and some similar legal and interpretation points will arise in all three cases, there are nevertheless distinctions that may be of some significance between the current case and the other two. One distinction is that extensions to the house on the land in relation to the current case are underway. Apparently, extensions on the other two properties have been completed and are occupied.

17. In the course of the hearing I received some detailed evidence in relation to the history of the current case, and various formal proofs. However, the real question on 14 August 2003 was what should happen in relation to the partly constructed extension between 14 August 2003 and 29 September 2003? It was common between the parties that it was appropriate for this new case, and the application under s.114 in relation to it, to be set down for hearing together with the other two enforcement applications on that day. Ms. Porritt stated that she had only recently been engaged in relation to the case, and needed to give consideration as to whether an application for a permit should be launched in relation to the current case. At the hearing she was only in a position to foreshadow as a possibility.

18. The Responsible Authority was seeking an interim enforcement order to prevent further building works on the partly constructed extension pending further hearing on 29 September 2003. It is willing to give the "usual undertaking as to damages" in relation to such an interim order if it was to be made.

19. The respondents, on the other hand, initially resisted the making of an order. Mr. De Jong said that he is carrying out the building work himself and he has the timber framework in existence that will be exposed to the elements for six weeks if the order sought by the Responsible Authority was to be made. He said that he was concerned that such exposure might cause deterioration in the timber framework or other works that have been carried out so far.

20. However, ultimately and after some recesses to enable advice to be given and instructions to be received, the respondents agreed to consent to an order as sought by the Responsible Authority subject to the usual undertaking as to damages and also subject to a qualification that, although no further building work was to be undertaken, the partly constructed works could be protected by covering with tarpaulins and the like, all on the basis that costs to date would be reserved. The interim enforcement application under s. 120 was thus resolved, by consent, on that basis.

21. In relation to the possible permit application that might be lodged in relation to the land which is the subject of the current dispute, it was agreed that it would be highly desirable, and that the parties would facilitate so far as possible, that potential case being available to be heard with the other matters on 29 September 2003. This is not to say that anyone should forego their duties and responsibilities under the planning legislation, but if possible that situation should be achieved. I made the observation that, the merits of such an application may, in any event, need to be considered in relation to the exercise of a discretion as to whether to make an enforcement order or not. That may be of assistance to the parties, even if a formal hearing and determination of a review application cannot be achieved at that stage.

22. At the commencement of the hearing a sealed enveloped was on the hearing room table. It contained a witness summons issued on behalf of the Responsible Authority and served on Robert Lawrie. Mr. Lawrie did not appear in answer to this subpoena but the copy of the summons was accompanied by a covering letter of the Responsible Authority's solicitors, a letter dated 14 August 2003 of Mr. Lawrie himself, and a medical certificate dated 14 August 2003. This document merely stated:

"Mr. Lawrie has been suffering from shortness of breath due to severe airways obstruction."

23. There was also a $10 note, apparently conduct money. The Responsible Authority did not seek any further action to be taken in relation to its summons at that stage. I returned the $10 note to the representatives of the Responsible Authority and have retained the other contents of the envelope on the Tribunal file.

24. For the sake of clarity, I propose to give new directions in relation to the filing of witness statements as set out above.