1 The application is amended to include an application pursuant to section 149A of the Planning and Environment Act 1987 that:

a A determination pursuant to section 149A(1) of the Planning and Environment Act 1987 that the current uses of the subject land have the protection of section 6(3) of the Act and may continue lawfully in accordance with clause 63.01 of the Cardinia Planning Scheme; and

b A direction pursuant to section 149A(2) that the Council refrain from seeking to enforce the enforcement orders or from otherwise pursuing proceedings directing at denying the applicant the continuation of the current use of the subject land.

2 I rule that clause 63 of the planning scheme does not preclude Mr Kraan from seeking to establish that he has any existing use rights or from relying on any existing use rights to justify a cancellation or amendment of the enforcement order made by the Tribunal dated 23 December 2004.

3 This matter is listed for a directions hearing on 12 September 2006.

Mr Matthew Townsend of counsel, instructed by Slater and Gordon

1 The source of this proceeding is a long running, bitter dispute about the construction of a very large shed by Mr Kraan without a planning permit and the use of his land in connection with his water cartage and tree removal business. The proceeding is an application under section 121 of the Planning and Environment Act 1987 to cancel or amend an enforcement order made by the Tribunal dated 23 December 2004 to remove the shed and to cease using his land for any industrial activities.[1]

2 Mr and Mrs Brooks-MacMillan own the adjoining property. They have been trying for many years to get the shed removed and to stop activities on the land that interfere with their amenity, such as metal work; motor vehicle and equipment repairs and maintenance; panel beating; spray painting; and mulching. The Tribunal's enforcement order dated 23 December 2004 grants them the relief they seek, but Mr Kraan has not obeyed the enforcement order. He has not removed the shed or ceased to use the land in connection with his businesses.

3 The dispute has caused stress and anxiety for all parties, and has led to abuse, threats, aggression, and alleged intimidation on the part of Mr Kraan.

4 The failure by Mr Kraan to obey the Tribunal's enforcement order led Cardinia Shire Council to instigate an application for contempt against Mr Kraan (V8/2005). Justice Morris has handled the contempt application and several directions hearings have been held. During the course of these Mr Kraan has raised issues that challenge the basis of findings made by the Tribunal which led to making the enforcement order, in particular matters relating to the existence of existing use rights.

5 In dealing with a contempt application, the Tribunal cannot revisit a previous order made by the Tribunal. The only mechanism for that to occur in respect of an enforcement order is for an application to be made under section 121 of the Planning and Environment Act 1987. This section provides:

121 Cancellation of enforcement order or interim enforcement order

The Tribunal may cancel or amend any enforcement order or interim enforcement order.

6 By order dated 3 March 2006, Justice Morris gave directions to facilitate an application to cancel or amend the enforcement order, which has led to this application being made.

7 These are the circumstances that have led to my consideration of application P620/2006. In this application, Mr Kraan seeks to cancel the enforcement orders made by the Tribunal on 23 December 2004. The orders sought are that, in lieu of these enforcement orders, the Tribunal make enforcement orders in accordance with those set out in Appendix A of the reasons for decision of the Tribunal dated 23 December 2004. (A copy of these proposed orders is included in Appendix A).

8 In addition, Mr Kraan seeks:

a A determination pursuant to section 149A(1) of the Planning and Environment Act 1987 that the current uses of the subject land have the protection of section 6(3) of the Act and may continue lawfully in accordance with clause 63.01 of the Cardinia Planning Scheme; and

b A direction pursuant to section 149A(2) that the Council refrain from seeking to enforce the enforcement orders or from otherwise pursuing proceedings directing at denying the applicant the continuation of the current use of the subject land.

NATURE OF APPLICATION TO CANCEL OR AMEND ENFORCEMENT ORDER

9 Section 121 of the Act, which enables the Tribunal to cancel or amend any enforcement order, is a broad power. There are no machinery or other provisions in the Act to guide the way in which it should be exercised. The Tribunal may exercise the power of its own motion or upon the application of a party.

10 Senior Member Byard considered the nature of an application under section 121 in the case of King v Shire of Gisborne[2] where he said:

There is an important constraint that must be borne in mind in relation to an application of this kind. An application under Section 121 does not enable an unsuccessful party to recontest the hearing which gave rise to the making of the enforcement order in the first place. In this present instance there was a three day hearing in November 1991, quite a part from the two days in October 1989, when all parties had ample opportunity to bring forward all the evidence and arguments they wanted to rely upon. Once the Tribunal, having heard the parties, makes a final determination on an enforcement order application, the matter is closed. That is subject to the right to appeal to the Supreme Court on a question of law (or perhaps the need to correct an accidental slip in the wording of an order if the miswording does not convey the intention of the Tribunal when it made the order). An Applicant for the exercise of the power to cancel or amend under Section 121 would normally need to be able to point to something material that has arisen or come to light since the making of the order. It is not enough that the applicant omitted by oversight to advance some evidence or argument at the original hearing if the Applicant could or should have advanced it then.

11 There have been two sets of proceedings before the Tribunal which have considered the issue of existing use rights. The first set of proceedings was before Senior Member Young[3] in 2002. A summary of those proceedings is included in Appendix B.[4] The second set of proceedings was heard by Member Komesaroff and Member Hewet in late 2004.[5] This set of proceedings involved two applications for an enforcement order against Mr Kraan - one by Cardinia Shire Council and one by Mr and Mrs Brooks-MacMillan - and an application for review by Mr and Mrs Brooks-MacMillan against the decision of the responsible authority to grant a permit for the shed as it exists. Members Komesaroff and Hewet refused to grant a permit for the shed and, as noted earlier, made the enforcement order which is now the subject of this application for cancellation or amendment.

12 At the hearing before Senior Member Young, Mr Kraan was legally represented. At the hearings before Members Komesaroff and Hewet, Mr Kraan was not legally represented but appeared in person. Mr Kraan did not give evidence at the hearing before Senior Member Young, and this was unfavourably commented upon in the decision. At the hearings before Members Komesaroff and Hewet, Mr Kraan gave evidence and was cross-examined. Other witnesses also gave evidence on behalf of Mr Kraan regarding his use of the land. However, Members Komesaroff and Hewet were not persuaded on the evidence presented that Mr Kraan enjoyed existing use rights for the conduct of businesses of tree felling and water cartage on the subject land. Specifically, they said:

[131] On the basis of this evidence I find that the subject land was not used for the operation of either of his businesses for fifteen continuous years since 1988 or 1989 and that no existing use rights attach to the land for the purposes of operating businesses of water cartage or tree removal.

13 The comments in King v Shire of Gisborne would appear to be particularly relevant to the present case. Essentially what Mr Kraan is seeking to do is to reopen the findings which Members Komesaroff and Hewet made regarding his existing use rights and which they relied upon when making their enforcement order. The evidence that Mr Kraan now seeks to lead specifically addresses the shortcomings in his evidence regarding existing use rights which the members identified in their decision. The question is whether Mr Kraan should be permitted to adduce his evidence in these circumstances.

14 As noted, Mr Kraan was legally represented at the first hearing before Senior Member Young and appeared in person before Members Komesaroff and Hewet where he was apparently given considerable assistance by Mr Rantino who was appearing on behalf of the council. Therefore it cannot be said that he did not have an opportunity to advance this evidence or argument at the original hearing.

15 Mr Rantino submitted that the section 121 application is founded on two bases:

•

Firstly, that the applicant has evidence and materials relevant to the question of his existing use rights, obtained subsequent to the two enforcement orders, which respond to the deficiencies identified in the Tribunal's reasons for making those orders.

•

The applicant wishes to present the Tribunal the circumstances in which he now finds himself, in particular difficulty in finding suitable premises to move his business to (in the event that it was determined that the use cannot be allowed to continue on the site).

•

In the mid 1980's, when he was looking for premises to base his business, he was encouraged by council officers to purchase land in the Pakenham Upper area.

•

Pakenham Upper is an area where there are numerous service providers who have established similar home bases for their businesses, in a similar zone.

•

Council has issued permits for other sheds of similar size for similar purposes.

•

There is no purpose in demolishing the existing shed given the quality of its construction, especially as it is possible to obtain a permit for the erection of a smaller, poorer quality shed.

•

The financial impact of demolishing the shed and relocating his business could force closure of the business and financial devastation for Mr Kraan and his family; loss of jobs for four permanent employees and contractors; and adverse flow on economic affects.

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.

Why are existing use rights so important in this case?

22 At the outset of the hearing, Mr Townsend (on behalf of Mr and Mrs Brooks-MacMillan) raised a question of law, which he said should be ruled upon before parties proceeded to call the large number of witnesses lined up to give evidence in this case. Mr Rantino (on behalf of Mr Kraan) agreed that if the question was determined against Mr Kraan it would be determinative of this application to cancel or amend the enforcement order under section 121 of the Act.

23 Essentially in this application, Mr Kraan seeks to introduce new evidence to establish that he has existing use rights to use the land in the way he is currently doing, notwithstanding findings to the contrary made by the Tribunal previously.

24 Mr Townsend submits that clause 63 of the Cardinia Planning Scheme precludes Mr Kraan from seeking to establish that he has any existing use rights or from relying on any existing use rights to justify a cancellation or amendment of the enforcement order because:

•

The use has been held to be unlawful by a decision of the Tribunal (clause 63.11).

•

Works have been carried out without a permit (clause 63.05).

•

The amenity of the area has been damaged by a change in the activities beyond the limited purpose of the use (clause 63.05).

•

The application is inconsistent with clause 63.12.

25 The reason why the establishment of existing use rights is so important to Mr Kraan's case is that both previous Tribunal decisions have characterised his use of the land as uses that are (and were) prohibited under the planning scheme. Senior Member Young characterised the use as (agricultural contractors depot) which in 2002 had the following meaning:

Land and/or buildings used or intended to be used as a depot for the storage of materials or machinery used in agricultural production by hire or contract.

26 Members Komesaroff and Hewet found that "Mr Kraan's business could never be characterised as agricultural production." Instead, they characterised the use of the land as industry. Under the zoning of the land in 2004, industry was a section 3 prohibited use. According to Members Komesaroff and Hewet, under the relevant zoning of the land, "planning permission for the shed was only available provided the land enjoyed existing use rights." Thus in considering the merits of the planning permit application for the shed, Members Komesaroff and Hewet said:

[138] Given that on the evidence Mr Kraan has not established existing use rights for the conduct of businesses of tree felling and/or water cartage on the subject land, the basis for which the Responsible Authority permitted this size shed has fallen away.

27 On this basis, if Mr Kraan wants to convince me that I should cancel or amend the enforcement order, it is important that he is able to establish existing use rights. The basis of his application is that he in fact enjoys existing use rights and they are uncontrolled in terms of hours of operation, activities, intensity of use etc. Notwithstanding this, he says he is prepared to give up some of those rights so long as he can retain the shed and continue to use the land for the purpose of his business.

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:

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.

32 The effect of these provisions is that if a use has been carried out continuously for 15 years it is deemed to have existing use rights unless the legitimacy of that use has been seriously challenged during that time. A decision by a court or tribunal that the use is unlawful will operate to preclude the deeming provision. Similarly, a clear and unambiguous written direction by the responsible authority to cease the use by reason of its non-compliance with the planning scheme will also preclude reliance upon the deeming provision. Presumably such a direction would place the land user on notice that if they disagreed with the direction and its reason, they need to take action to establish that the use is in compliance with the planning scheme or that they have existing use rights. An application under section 149A(1)(c) would be one means of challenging such a direction.

33 However, whilst the intent behind the creation of this new category of existing use right might be clear, the way in which it has been expressed in the planning scheme gives rise to a number of issues of interpretation. Some of these are issues raised by Mr Townsend, which I will now deal with.

The use has been held to be unlawful by a decision of the Tribunal

34 Mr Townsend says that the first reason as to why existing use rights cannot be said to attach to the subject land is that the use has been held to be unlawful by a decision of a tribunal within the meaning of the first dot point of clause 63.11.

35 In the decision by Members Komesaroff and Hewet, the Tribunal made an express finding that no existing use rights attached to the subject land:

[131] On the basis of this evidence I find that the subject land was not used for the operation of either of his businesses for fifteen continuous years since 1988 or 1989 and that no existing use rights attach to the land for the purposes of operating businesses of water cartage or tree removal.

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.

49 Mr Townsend says that existing use rights cannot be said to attach to the subject land because the works have been carried out without a permit. He relies on clause 63.05, which provides as follows:

Sections 2 and 3 uses

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 right.

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.

55 The third reason why Mr Townsend says that existing use rights cannot be said to attach to the subject land is that the amenity of the area has been damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by any existing right. In this argument he relies upon the third dot point of clause 63.05. He refers to findings made in the previous Tribunal decisions by Senior Member Young and Members Komesaroff and Hewet that the activities of Mr Kraan on the land caused detriment to the amenity of the area.

56 Mr Townsend relied on the case of Starera v Melbourne City Council[7] (the Lemon Tree Hotel case). In this case, the Tribunal considered the third arm of clause 63.05, which provides that an existing use right may continue provided:

•

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 right.

57 In the Lemon Tree Hotel case, which was an application for declaration under section 149A of the Act, the Tribunal held that no existing use right had been established or existed in relation to the use of the hotel premises. It found that there had been a change in the nature of the operation of the premises as a hotel and that the real and substantial purpose being served by the use of the premises was that of a night club and/or late night function venue. The Tribunal said:

[53] ...the damage to the amenity of the area, the late night patron activity and music noise are symptomatic of the change in the limited purpose.

58 Mr Townsend submitted that the assessment of the Tribunal in the Lemon Tree Hotel case is directly on point with what has happened in the present case. Mr Kraan has asserted that he has been using the subject land for the operation of his tree felling and water carting business since 1987, but the Tribunal has found that the use of the land has changed quite considerably over the course of the last 15 years, most notably since the construction of the shed which is the subject of the present proceedings. Mr Townsend says that the amenity of the area has been damaged by this change in activities which has gone beyond the limited purpose of any use that may be preserved by an existing use right.

59 Mr Townsend may have a valid argument when it comes to a categorisation of the nature of any existing use right. However, it is an argument about the substantive merits of whether an existing use right exists and how the purpose of the existing use right should be categorised. It is not possible to make a determination on this issue at the moment. Until there is a determination on the evidence that the amenity of the area has been damaged by change in the activities beyond the limited purpose of the use preserved by the existing use right, the operation of the third arm of clause 63.05 is not relevant.

60 At this stage of the proceeding I am only dealing with the issue of whether the operation of clause 63 preclude the opportunity to establish or rely upon existing use rights. For the reasons outlined above, in connection with works being carried out without a permit, I find that clause 63.05 as a whole does not operate to extinguish existing use rights, although it may operate to constrain them or to place conditions upon them.

The application is inconsistent with clause 63.12

61 Finally, Mr Townsend submitted that the application is inconsistent with clause 63.12, which provides:

Before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the responsible authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.

62 He referred to the findings made by Senior Member Young when considering the merits application in respect of a planning permit for the shed. Senior Member Young found that the shed, and the use Mr Kraan makes of it, to be inappropriate. He made adverse findings about amenity, noise and environmental affects, including the effects of earthworks associated with the shed. In all the circumstances, Mr Townsend submitted it is clear that the requirements of clause 63.12 are not met.

63 In the context of this proceeding, and the legal ruling I am being asked to make, clause 63.12 is not relevant. Clause 63.12 sets out decision guidelines to be considered before deciding on certain applications. This proceeding does not involve an application under any of the provisions identified in the clause. There is no application for the permit for buildings or works under clause 63.05; there is no application for an alternative use under clause 63.08; and there are no damaged or destroyed buildings or works that give rise to a need for a permit under clause 63.10. I therefore find that clause 63.11 is no bar to allowing Mr Kraan to produce evidence which may relate to the extent of his existing use rights.

64 I have been asked to make a ruling on the point of law that in all the circumstances, clause 63 of the Cardinia Planning Scheme precludes Mr Kraan from seeking to establish that he has any existing use rights or from relying on any existing use rights to justify a cancellation or amendment of the enforcement order because:

•

The use has been held to be unlawful by a decision of the Tribunal (clause 63.11).

•

Works have been carried out without a permit (clause 63.05).

•

The amenity of the area has been damaged by a change in the activities beyond the limited purpose of the use (clause 63.05).

•

The application is inconsistent with clause 63.12.

65 For the reasons I have set out above, the answer is no: clause 63 of the planning scheme does not preclude Mr Kraan from seeking to establish that he has any existing use rights or from relying on any existing use rights to justify a cancellation or amendment of the enforcement order made Members Komesaroff and Hewet.

66 In deciding how to proceed with this case, it is pertinent to consider the purpose of enforcement orders. Essentially, they seek to ensure that the use or development of land does not contravene the Act, a planning scheme or planning permit. The purpose of proceedings under Division 1 of Part 6 of the Act is not to punish people. It is Division 2 of Part 6 that relates to offences and penalties. It is therefore not uncommon if an application for enforcement order is made alleging use or development of land without a permit or as being contrary to a planning scheme, that the opportunity is provided to the respondent to make an application for a permit before an enforcement order is made. Alternatively, a respondent will have an opportunity to establish whether there are any existing use rights.

67 Mr Kraan has made a number of applications for permits for a 780 square metre shed, which have been unsuccessful. He has a permit for a 243 square metre shed subject to conditions limiting the number of vehicles, but this is not the permit he wants. Surprisingly, he has not made an application for use of his land at any stage, presumably because he has always relied upon what he considers to be existing use rights to use the land for the businesses of water cartage and tree felling.

68 For example, at no time has Mr Kraan applied for a permit to use his land for rural industry. Rural industry is a section 2 use in the Rural Conservation Zone.[8] The definition of Rural Industry is land used to:

a) handle, treat, process, or pack agricultural produce; or

b) service or repair plant, or equipment, used in agriculture.

69 In the previous enforcement order proceedings it does not appear to be disputed that Mr Kraan keeps a large number of vehicles and pieces of machinery on the land in his shed which are used primarily in connection with his tree felling business, but also in connection with his water cartage business. Members Komesaroff and Hewet described the shed as "a magnificent 780m2 mud, brick and timber shed with equipment, machinery and tools, neatly fitted out and meticulously maintained." Mr Kraan services and maintains vehicles and equipment used in his businesses on the land. He employs fitters and turners and mechanics as part of his business. He also uses the shed for personal reasons, tinkering with vehicles and machinery for recreation and inventing new equipment.

70 Members Komesaroff and Hewet found that activities carried out on the land fell within the category of industry, presumably because of the view expressed that:

[30] Given the definition of agriculture in the scheme, it is my opinion that Mr Kraan's businesses could never be characterised as agricultural production.

71 However, this statement appears to overlook the fact that timber production is nested within the agriculture group in clause 75 of the planning scheme. The definition of timber production includes the harvesting of timber. It would appear self evident that a large part of Mr Kraan's business is involved in harvesting timber. It would therefore appear that the subject land may be used for rural industry in so far as the land is used to service or repair plant or equipment used in agriculture, or to process timber products.

72 It is the storage of his vehicles and machinery that presents a problem. This would appear to come within the definition of store which is defined as:

In the Rural Conservation Zone store is a prohibited use.

73 It seems anomalous that in the Rural Conservation Zone land can be used for the purpose of agriculture, including timber production, and if the vehicles and equipment used in connection with agricultural uses were kept on the same land, this would be ancillary to the use of the land for these purposes. Equally, a permit may be obtained to use the land for rural industry, which would enable the service or repair of such equipment. Yet because store is an innominate use, and the innominate uses are included in section 3 of the Rural Conservation Zone, the objection may be raised that the land cannot be used to store the same vehicles and equipment, even though they may be kept inside a shed out of view.

74 It is therefore no wonder that Mr Kraan is confused by the intricacies of the planning scheme and questions why he should be required to remove his shed and cease carrying out activities that he might obtain a permit for as rural industry. This is especially so in light of the fact that no enforcement order was made to prevent him from using the land to store the vehicles and equipment he uses in his timber felling and water cartage businesses. Instead the enforcement order requires him to remove the shed and cease carrying out activities which were found to cause a nuisance and loss of amenity.

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:

•

Does Mr Kraan have existing use rights to store vehicles and equipment used in connection with his tree felling and water cartage businesses on the land? In other words, are there existing use rights in connection with the land for its use as store?

•

Are there reasonable conditions that would enable the land to be used for the purpose of store without damage to the amenity of the area?

•

Are there reasonable conditions that would enable the land to be used for the purpose of rural industry without damage to the amenity of the area?

•

What alterations would need to be made to the existing buildings and earthworks to minimise their impact on visual amenity and to eliminate so far as possible any adverse offsite environmental impacts?

80 In light of my findings and in light of what I consider to be the preferable way forward, parties should be given an opportunity to respond to the points raised (other than my rulings on the legal point argued before me at the hearing on 11 July 2006). I therefore propose to list the matter for a directions hearing for this purpose.

Consent orders sought by the Responsible Authority in council's enforcement application:

1 That within 6 months of the date of this Order, the Respondent must either:

a Construct the shed in accordance with Planning Permit No. T040286; or

b if Planning Permit No. T040286 is not granted, the Respondent brings the subject land into conformity with the Planning Scheme by removing the shed.

2 The Respondent must not carry out any of the following activities on the land at any time:

•

panel beating;

•

spray painting in the open air; and/or

•

modification to vehicles and equipment (including truck trailers, trucks, excavators, tree removal machinery and other heavy vehicles and equipment) which involves the construction, rebuilding or modification of more than 30 percent of the original design of the vehicle or equipment.

3 The Respondent must not carry out any of the following activities on any part of the land except wholly within the curtilage of the shed:

•

metal fabrication and metal work (including grinding and cutting);

•

hammering metal; and/or

•

motor vehicle and equipment repairs and maintenance, without first obtaining written consent from the Responsible Authority.

4 At all times when the activities referred to in paragraph 3 of these Orders are being carried out on the land, all openings to the shed must be kept closed.

•

vehicles and trailers;

•

equipment (including earth moving and tree felling equipment);

•

tanks (including fuel and water tanks);

•

rubbish; and/or

•

metal and other supplies used in connection with the activities referred to in paragraph c. of these Orders

on the land external to the shed in any locations other than the areas designated as "stores" on the sketch plan.

6 The Respondent must only carry out the activities permitted by paragraph 3 of these Orders between 7.00am and 6.00pm, Monday to Friday.

7 In exception to the hours specified in paragraph 7 of these Orders, the Respondent is permitted to operate heavy vehicles and equipment during the evening, night and early morning hours on the land provided that the operation of such vehicles and equipment is:

•

associated with emergency call-out work; or

•

the operation of heavy vehicles and equipment on any part of the land does not occur for longer than 2 hours outside of the hours specified in paragraph g. of these Orders in any 24 hour period.

8 The Respondent must cause the timber doors and panelling on the eastern wall of the shed to be removed and replaced with a mud brick wall in accordance with plan 1 of the alteration plans by no later than 6 (six) months from the date of these Orders.

9 The Respondent must cause the openings in bay 1 and bay 2 of the southern section of the shed to be fitted with sliding timber doors in accordance with plan 2 of the alteration plans by no later than 3 (three) months from the date of these Orders

10 The Respondent must not increase the floor area of the shed so as to exceed 780 square metres without the prior written consent of the Responsible Authority.

•

further dense landscaping to be planted in the area of the land designated "landscaping" on the sketch plan;

•

using trees and shrubs which are indigenous to the area

to the satisfaction of the Responsible Authority within 3 (three) months from the date of these Orders.

A s.173 agreement recording these obligations must be entered into.

Summary of applications considered by Senior Member Young.

Responsible authority's decision to refuse 780m2 shed affirmed

s.87 cancellation of permit no. T970652 issued 4 May 1998 for 243m2 shed (1998 permit)

1998 permit for 243m2 shed cancelled for breach of permit conditions

Kraan must pay Brooks-Macmillans' costs of $19,212.95 on County Court Scale D

review against permit condition requiring reduction to shed size of 360m²

Responsible authority directed to issue permit for 243m2 shed subject to conditions limiting vehicles to one prime mover, one trailer, agricultural machinery necessary to farm the land.

s.149A declaration application against assertions by Mr Kraan that he had existing use rights for machinery and equipment store on the subject land pursuant to his 1998 permit no. T970652

Declarations refused as unnecessary because VCAT cancelled 1998 permit no. T970652.

[1] Applications P1816/2003 and P1365/2004 Cardinia SC v Kraan [2004] VCAT 2624

[2] Unreported, No 1992/08196, 10 April 1992, page 4

[3] Applications P63909/2000, P71303/2000, P4257/2001 & P51005/2001, Kraan v Cardinia SC and Ors [2002] VCAT 473

[4] Summary included in Cardinia SC v Kraan [2004] VCAT 2624 at para 2

[5] Applications P63909/2000, P71303/2000, P4257/2001 & P51005/2001, Kraan v Cardinia SC and Ors [2002] VCAT 473

[6] See section 4(2)(b) Planning and Environment Act 1987

[7] [2000] VCAT 569

[8] The land is located within the Rural Conservation Zone, schedule 2, of the Cardinia Planning Scheme. At the time of the enforcement order proceeding before Members Komesaroff and Hewet the land was included in an Environmental Rural Zone. Rural industry is also a section 2 use in the Environmental Rural Zone.