Kraan v Cardinia SC [2006] VCAT 1629

Kraan v Cardinia SC [2006] VCAT 1629 - VCAT 2006 case summary — Zoe

[23]

17 For Mr Kraan, the consequences of complying with the enforcement order are significant. On the other hand, the Tribunal on two separate occasions has made extremely critical findings about Mr Kraan in terms of the way he has used his land; the effect this use has had on the amenity of his neighbours; the adverse impact the shed has had in environmental and visual terms; and his cavalier disregard of the need to comply with the planning scheme and the way he has proceeded to use and develop his land without necessary planning permits. The Brooks-MacMillans effectively say, "enough is enough". They rely on the orders and decisions made by the Tribunal and say that Mr Kraan should have to comply with them.

18 An impasse has been reached with each party adopting an apparently intractable position. For its part, the council is adopting a neutral stance. Although it has brought the contempt application, it has done nothing to implement the enforcement order itself. (Under section 123 of the Planning and Environment Act 1987, the responsible authority may carry out work required by an enforcement order and recover the costs of the work from the person in default).

19 Mr Kraan has been given encouragement to make this application by the President during the course of his dealing with the contempt application. In my view, in light of this encouragement, it would seem inequitable to now deny him the opportunity to present his case as he sees fit. It would only add to the sense of injustice he feels about the circumstances which have led to the making of this enforcement order. The consequences of implementing the enforcement order are so significant that any doubt regarding the basis of the order should be resolved by providing an opportunity to present any new, relevant material.

20 Mr Kraan says he has additional evidence regarding his existing use rights in respect of the land. Before presenting this evidence though, it is necessary to consider first whether it is open to him, as a matter of law, to rely on any existing rights in this application, and second, what sort of existing use rights are relevant to this case. In my view, there are possible issues with the way the previous Tribunal decisions have analysed his use of the land and characterised the nature of this use.

21 I will deal with the legal issue first.

[32]

28 Planning legislation and planning schemes have always acknowledged and protected existing use rights. In broad terms, an existing use right arises where a use has commenced lawfully even though subsequent changes to the planning controls would mean that the use was no longer permitted.

29 It is the planning scheme that establishes existing use rights, not the Planning and Environment Act. The Planning and Environment Act 1987 provides that planning schemes are the principal way of controlling the use, development and protection of land in Victoria[6]. Section 6 of the Act sets out what a planning scheme can provide for. Section 6(1)(b) provides that a planning scheme may make any provision which relates to the use, development, protection or conservation of any land. However, section 6(3) provides that, subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall prevent the continuance of the use of any land, building or works for any purpose for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be). The exceptions set out in sub-sections 4 and 4A deal with situations when the use has stopped and Codes of Practice. Thus, whilst it might be said that section 6(3) of the Act "protects" existing use rights, in reality it is the planning scheme that protects existing use rights. All that section 6(3) does is to place a constraint on what a planning scheme may provide for. To the extent that a planning scheme was contrary to the provisions of section 6(3), the planning scheme would be invalid.

30 There is nothing in the Planning and Environment Act 1987 that limits the establishment of existing use rights only to those circumstances described in section 6(3). Until introduction of the new format planning schemes based on the Victoria Planning Provisions, planning schemes generally defined existing use rights by reference to uses lawfully established prior to approval of the planning control. However, as the approval date of many planning schemes and amendments receded into the past, the practical difficulties associated with proving the lawful establishment of a use prior to this date increased. Witnesses, who might attest to when the use was established and its nature, died or disappeared. Records were lost. Ironically, the longer a use was in existence the more difficult it became to prove existing use rights.

31 In response to these problems, clause 63.01 of the Victoria Planning Provisions (upon which all planning schemes in Victoria are based) included a new means whereby an existing use right was established - proof of continuous use for 15 years established under clause 63.11. Clause 63.11 provides as follows:

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36 In his application to cancel or amend the enforcement order, Mr Kraan seeks to produce evidence and materials relevant to the question of his existing use rights which have been obtained subsequent to the enforcement order hearings and which respond to the deficiencies identified in the Tribunal's reasons for making the enforcement order.

37 Mr Townsend says that Mr Kraan cannot do this. He has had his opportunity to argue existing use rights in the previous enforcement order proceedings and he was unsuccessful. It is not open to him to have "a second bite at the cherry". The order made by Members Komesaroff and Hewet is final and determinative of the matter. Mr Kraan did not take the order on appeal to the Supreme Court. He cannot rely on section 120 of the Victorian Civil and Administrative Tribunal Act 1998 to reopen the order on substantive grounds because he appeared at and participated at the hearing at which the order was made. Nor was there any mistake that would justify application of the slip rule provided for in section 119 of the Victorian Civil and Administrative Tribunal Act.

38 Mr Townsend says that the Tribunal decision was made after commencement of the 15 year period which is relied upon by Mr Kraan to establish his existing use rights under clause 63.11. As a result, the Tribunal's decision triggers the first dot point exemption to the deeming provision in clause 63.11.

39 By contrast, Mr Rantino says that the words "after commencement of the 15 year period" in the first dot point of clause 63.11 really mean "during the 15 year period" when read in the context of the remainder of clause 63.11.

40 I agree with Mr Rantino's interpretation. Clause 63.11 provides that an existing use right is established if the use has been carried out continuously for 15 years prior to the date of the application or proceeding in which the extent of any existing use right is in question. In the case of the enforcement proceedings before Members Komesaroff and Hewet, the relevant date was determined to be 29 July 1988. This was 15 years prior to the first of the enforcement order applications then being considered by the Tribunal, which was lodged on 29 July 2003.

41 Clause 63.11 also provides that 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" except in two circumstances. One of those circumstances is that during the 15 year period, the validity of the use has been directly challenged by the responsible authority clearly and unambiguously giving a written direction for the use to cease by reason of its non-compliance with the scheme. The other circumstance is that which is in issue here, namely that at any time before or after commencement of the 15 year period the use has been held to be unlawful by decision of a court or Tribunal.

42 I find that the words "after commencement of the 15 year period" must be read in the context of the immediate preceding part of the clause, which refers to "during the 15 year period". Therefore, unless a decision of a court or tribunal has held the use to be unlawful before or during the 15 year period, then the establishment of an existing use right "in relation to an application or proceeding under the Act or the scheme" is not affected by a decision of a court or tribunal after the expiration of the 15 year period.

43 Of course, the question then arises as to whether it can be said that the current proceedings, which are brought under section 121 of the Act, can be said to be in relation to the enforcement order proceedings dealt with by Members Komesaroff and Hewet. If they are, then the 15 year period will be the 15 years prior to the date of the enforcement order application, which is the period between 29 July 1988 and 29 July 2003. If this is the case, then the decision by the Tribunal subsequent to that 15 year period will not affect the establishment or extent of any existing use right in relation to that application or proceeding.

44 But if it cannot be said that the current application is in relation to the previous enforcement order proceeding, and if the extent of any existing use right therefore arises in relation to the current application or proceeding, then the decision of the Tribunal in the enforcement order proceeding becomes highly relevant and would operate as a bar to the establishment of existing use rights in relation to the current proceeding. This is because the relevant 15 year period would date back from the commencement of the present application under section 121, which was 10 March 2006. The decision of the Tribunal in the enforcement order proceeding was made during this 15 year period. Hence Mr Kraan would be unable to comply with the requirements of clause 63.11 and he would therefore be unable to establish an existing use right in accordance with this clause.

45 I consider that any application under section 121 to cancel or amend an enforcement order must be considered to be an application or proceeding in relation to the enforcement order. Section 121 only has any effect if an enforcement order has already been made. It relates directly to the enforcement order made. It does not enable a new enforcement order to be made. Rather it allows an existing enforcement order to be cancelled or amended. Therefore, if I am considering whether to cancel or amend the enforcement order and my decision involves the extent of any existing use right which influenced the making of the enforcement order, then it must be said that what is in question is the extent of an existing use right in relation to the original enforcement order.

46 Section 121 effectively allows an enforcement order to be revisited if the circumstances are justified. It is a mechanism to enable justice to be done if new information comes to light or circumstances change. It would be contrary to this intent if the making of the original order thereby operated to preclude its subsequent cancellation or amendment by virtue of the operation of this provision of clause 63.11. I do not consider this is what clause 63.11 intended. Certainly clause 63.11 intends that a ruling by a court or tribunal that a use is unlawful will be determinative of the issue in any other case, but not in the same case. An application under section 121 must be regarded as being in relation to the same case as the original application under section 114 for these purposes.

47 Consequently, I find that the decision by the Tribunal in the enforcement order proceeding is not a bar to considering the extent of any existing use right in relation to the enforcement order.

48 I consider there are issues that need to be addressed about the exact nature of the existing use rights that are relevant. But before dealing with these matters I will address the other issues raised by Mr Townsend in connection with the question of law.

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50 Mr Townsend argues that the existing use is discontinued or extinguished if one or more of the three conditions are not met.

51 I disagree with this interpretation. Clause 63.05 sets out conditions under which existing use rights may continue but it does not provide that those existing use rights will be extinguished if any of the conditions are not met. Clause 63.06 deals with expiration of existing use rights. This clause reflects the provisions of section 6(4) of the Act. Only the matters set out in sections 6(4) and (4A) operate to prevent the continuation of existing use rights established under the planning scheme in compliance with section 6(3). To the extent that any other provision of the planning scheme purports to extinguish existing use rights in circumstances governed by section 6(3), those provisions would be ultra vires and invalid.

52 On this basis, I interpret clause 63.05 of the planning scheme as establishing conditions that an existing use must comply with. Non-compliance with those conditions may open a person to penalty by way of a planning infringement notice, or may provide the basis for an enforcement order or an application under section 87 to cancel or amend a permit under which an existing use right is established. But non-compliance with any of the conditions does not automatically mean that the existing use right is extinguished. Due process must be followed.

53 The situation is akin to non-compliance with a condition in a planning permit. Non-compliance with the condition does not automatically mean that the rights under the permit are extinguished. They can only be affected by due process. The same applies to existing use rights.

54 As a consequence, I find that although the shed was constructed without a permit, this does not mean that existing use rights in relation to use of the land are extinguished by reason of this fact. In this respect it should be noted that the construction of the shed does not create any existing use rights. The shed remains an illegal structure. Existing use rights relate to the use of land, not the development of land.

[65]

75 In my view, it is time to step aside from the bitterness and animosity that this dispute has generated and look for a way forward. A solution needs to be found. Rather than focussing on past actions, I consider it would be more productive to contemplate instead what might be a reasonable in the way of use and development of the land that recognises the needs and amenity of all parties. However Mr Kraan uses his land, proper regard must be had to the amenity of neighbours, especially in respect of noise and hours of operation. There should be no detrimental environmental effects to neighbours' property due to runoff or soil erosion. Earthworks should be stabilised. There should be no emission of artificial light, vibration, odour, smoke, dust, stormwater, waste or the like from the property.

76 If these matters are addressed, how will the Brooks-MacMillans be harmed by the continued existence of what is acknowledged to be a "magnificent" mud brick shed? Any trees that were removed in connection with its construction have long gone. The Tribunal made no enforcement order regarding revegetation or restoration of disturbed areas because they were satisfied that the area was revegetating naturally, and that reinstatement of pre-existing conditions would necessitate further disturbance which would be detrimental.

77 Past consideration of permits for the shed seem to have focussed on how the shed was to be used. In the absence of existing use rights or the ability to obtain a permit to use the shed, both previous Tribunals have considered that the development should not be permitted. They have focussed on the use not the development, whereas I consider that the nature of the development itself needs to be considered separately from use of the land.

78 In my view, section 121 provides an opportunity to amend the enforcement order in a way that meets the reasonable needs of both Mr Kraan and his neighbours. If either party adopts an intransigent attitude, I doubt that a satisfactory outcome will be achieved. Strict compliance with the enforcement order as it presently stands may result in financial ruin for Mr Kraan, closure of his businesses, loss of employment for employees and contractors, and loss of valuable services he provides for the community. On the other hand, if he persists with the unbridled use of his land, not to mention the aggression he has apparently displayed towards the Brooks-MacMillans, they feel they cannot live in their house and enjoy their land. A compromise is in everyone's best interests.

79 A number of things need to be established:

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

Kraan v Cardinia SC [2006] VCAT 1629 (10 August 2006)

Parties