1. On 30 May 1979 the Shire of Werribee as Responsible Authority under the Shire of Werribee Planning Scheme 1963 and pursuant to the Town and Country Planning Act 1961 issued Permit No. 745 with respect to Lot Nos. 368 and 369 Lodged Plan No. 128561 permitting that land to be used "as service premises and buildings and works as per endorsed plan". That land is now known as 15 Derwent Road, Werribee and has apparently been used since approximately the date of Permit No. 745 as a "convenience store" - what might be described as a milk bar. On 9 March 2000 Mr and Mrs Lakkis applied as owners of the premises for a further planning permit. The application does not characterise the proposal as either one for use or development, however an accompanying letter from TNC Building Design and the manner in which the application was dealt with by the Responsible Authority suggests that the application was for the use of an existing shop as a take-away food shop. The accompanying letter from TNC Building Design said:

"The existing shop is a mixed business, selling grocery items, basic home needs ie. brooms, mops, detergent, soap etc. cold meats, cheeses, pies, pasties, and sausage rolls. The business also has a small sandwich bar located at the rear of the shop ... the new take-away area will not require any additions to the existing building but the existing store room is to be cleared and re-fitted for use as the take-away area."

3. On 12 April 2000 Wyndham City Council as Responsible Authority under the Wyndham Planning Scheme issued a determination of refusal to grant a permit on the following grounds:

"1. The proposed use does not meet the purpose of the Residential 1 Zone.

2. The proposed use will be detrimental to the amenity of the area.

3. The proposal is detrimental to the orderly planning of the area.

4. The site does not adjoin or have access to a Road Zone."

4. Some five residents of Derwent Road Werribee had lodged objections to the grant of the permit.

5. Mr and Mrs Lakkis filed an application for review of Council's determination in this Tribunal on 5 May 2000 initiating Proceeding 2000/33833. The matter came on for hearing before Mr Gilfillan on 13 October 2000. Mr Gilfillan published no written determination, however he evidently expressed the view based upon a preliminary determination that since the floor area exceeded 90sq m the proposed use was prohibited under the City of Wyndham Planning Scheme. Mr Gilfillan is an architect by profession and not a legal practitioner. This led to correspondence with the President of the Tribunal and Mr Gilfillan himself. The matter came on for hearing before Deputy President Horsfall on 11 December 2000. He concluded that since no written determination had been published, the review application had not been determined. He ordered that the matter be re-listed for hearing before a legal and a planning member.

6. Mr Horsfall also granted leave for Mr Lakkis to seek declarations as to his existing use rights and the powers of the Tribunal to determine the application against refusal if the Tribunal finds there are existing rights for uses of which a permit application was made. On the 2nd of January 2001 Mr Lakkis filed an application for a declaration

"That a permit is not required because the proposal to use part of the existing premises for the purpose of take-away food premises forms part of the existing use lawfully established under Permit No. 745."

The making of such a declaration appears to be authorised by Section 149A(1) of the Planning and Environment Act 1987.

7. This proceeding came on for hearing before me as a Presidential Member and a legal practitioner (see Section 149A(4) of the Planning and Environment Act 1987). Proceeding 2000/33833 was heard concurrently by a Tribunal consisting of Mr Hewet and me.

8. Mr and Mrs Dickinson of 13 Derwent Road Werribee were parties to Proceeding 2000/33833 but did not attend. Mr Lakkis whilst initially represented by solicitors, appeared on his own behalf. The Responsible Authority was represented by Ms Rosewarne, a planning officer.

9. Given that Mr Lakkis' declaration raises legal issues, it is regrettable that I have not had the advantage of submissions from any legal practitioner. Ms Rosewarne's presentation was in a formal sense confined to the "merits" in Proceeding 2000/33833.

10. Ms Rosewarne submitted that for Mr Lakkis to be successful in his declaration application he had to produce evidence showing 15 years of continuous use of the premises at 15 Derwent Road as a take-away food store. She submitted that the burden of proof and persuasion lay upon Mr Lakkis and she otherwise made no submission. Ms Rosewarne did not furnish me with any extracts from the 1963 schemes or provide any particulars of the zoning of the premises under that or any other repealed scheme.

11. Mr Lakkis broadly confined his remarks to the "merits" of Proceeding 2000/233833 (the permit review application). He called evidence from a Ms Tahanee Kakoschke of 2/11 McAllister Court Werribee. Ms Kakoschke said that her residence was immediately next door to the shop at 15 Derwent Road Werribee. She said that immediately before Mr Lakkis purchased the shop it was shut for approximately six months. She said it took him approximately another four months to re-open the business. She said that she had lived in the area for five years and until the closure of the shop before Mr Lakkis' arrival it had sold a selection of dim sims, potato cakes, hot chips "and other small assorted fried foods". It had also sold pies, sausage rolls, hot dogs and toasted sandwiches.

12. The Shire of Werribee Planning Scheme of 1963 apparently defined "service premises" as follows:

" `Service Premises' means a shop for the sale of food for human consumption or the premises of a newsagent, hairdresser, tobacconist or pharmacy, provided such a shop or premises did not exceed 240 square metres in floor area."

13. I obtained a copy of the 1963 Scheme as originally approved by the Governor in Council from the Department of Infrastructure. It contained no definition of "Service Premises". The Scheme was the subject of many amendments, the text of which were not included. The definition quoted appeared in a written submission made to Mr Gilfillan to which Ms Rosewarne referred me. In these unsatisfactory circumstances I will assume that the definition of "service premises" was inserted into the Scheme by amendment at some time prior to the issue of Permit 745.

14. Ms Rosewarne did not dispute that a take-away food shop could be characterised as "a shop for the sale of food for human consumption". Section 208 of the Planning and Environment Act 1978 (part of Part 11 - Repeals, transitional and savings) provides, inter alia

"All permits in force under the Town and Country Planning Act 1961 immediately before the commencement of Item 131 in the Schedule continue in force under this Act and, subject to sub-sections (2) and (3), have the same effect and are subject to the same provisions as if they had been issued under this Act."

15. Sub-sections (2) and (3) provide for the cancellation of permits granted under the 1961 Act three years after the commencement date of the Planning and Environment Act 1987 "if no action was taken before that commencement or within that three year period to carry out the use or development". Sub-section (3) provides that a permit for a use which was discontinued for two years immediately preceding the commencement of the 1987 Act expenses. If there has been a discontinuance of use for two years at any time the permit likewise expires. There is no evidence that the use of these premises as a shop for the sale of food for human consumption has discontinued for any period above 10 months and therefore, neither sub-section (2) nor sub-section (3) of Section 208 is relevant. The effect of Section 208 is to render permits issued under the 1961 Act subject to the provisions of the 1987 Act as if they had been issued under the 1987 Act (except to the extent that sub-sections (2) or (3) of Section 208 caused those permits to cancel or expire).

16. Section 68 of the Planning and Environment Act 1987 deals with the expiry of permits. Since Section 208 renders the present permit, number 745 subject to the terms of the 1987 Act it is therefore subject to Section 68 of that Act. Sub-section (2) of Section 68 provides:

(a) The use does not start within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or

(b) The use is discontinued for a period of two years."

17. Section 6(3) of the Planning and Environment Act 1987 deals with the issue of existing uses in the following terms:

"(3) Subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall--

(a) prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works."

18. Sub-sections (4) and (4A) to which this provision is made subject, deal with the expiry of existing "uses". Once again neither sub-section specifically mentions permits.

19. It will be noted that this provision makes no direct reference to permits.

20. There is no evidence as to when the use of this shop commenced. The general presumption of regularity, however would operate to lead to the conclusion that in the absence of any other evidence, the use did commence within the time limits laid down. The only evidence of discontinuance is for a period of 10 months, not two years. Accordingly, Mr Lakkis appears to have the advantage of a permit for a use wide enough to extend to the sale of take-away food whose operation has been preserved by Section 208 of the Planning and Environment Act 1987 and not treated as having expired by the operation of Section 68 of that Act. The Wyndham Planning Scheme deals with these preserved permit entitlements together with what are sometimes described as non-conforming uses in Clause 63 headed "Existing uses". Clause 63.01 provides:

"An existing use right is established in relation to use of land under this Scheme if any of the following apply:

* the use was lawfully carried out immediately before the approval date

* a permit for the use has been granted immediately before the approval date and the use commences before the permit expires

* a permit for the use has been granted under Clause 63.08 and the use commences before the permit expires

* proof of continuous use for 15 years is established under Clause 16.11

* the use is a lawful continuation by a utility service provider or other private body or the use previously carried on by a Minister, Government department or public authority, even where the continuation of the use is no longer for a public purpose."

21. Clause 63.06 following the same pattern as Section 68 of the Planning and Environment Act provides for the expiry of existing use rights where the use has been discontinued "for a continuous period of two years, or stop for two or more periods which together total two years in any period of three years". Clause 63.11 is in the following terms:

"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, [that is the Planning an Environment Act 1987] 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 the commencement of the 15 year period if 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"

22. Mr Rosewarne's submission assumes that Mr Lakkis is entitled to use his shop as a take-away food shop only if he can prove what is required by the fourth of the dot points under Clause 63.01 of the Scheme.

23. In my view Ms Rosewarne's assumption is erroneous. The fourth dot point in Clause 63.11 deal with a situation where there is no permit at all, or at any rate where no reliance has been placed upon a permit. Mr Lakkis is entitled to rely upon either or both of the first two bullet points of Clause 63.01. I am not clear as to precisely what is meant in the second bullet point where it refers to a permit having been granted "immediately before the approval date". Presumably the approval date is the approval date for the Scheme but precisely how close to that date the grant of the permit might be is not made clear by the Scheme. This bullet point is the only one in Clause 63 which refers to permits. If my analysis elsewhere in these reasons is correct, existing permits remain operative, independent of Clause 63 and it would seem inappropriate for Clause 63 to deal with permits at all. It may be that the presence of this bullet point indicates an assumption on the part of the draftsman of the Scheme that the persistence of permits is dependent upon the existing use rights in the scheme and not by their continued existence as accrued rights, an assumption contrary to the analysis which I have made. Two comments may be made as to this. First, the terms of the Scheme, being subordinate legislation cannot control the proper construction of the Planning and Environment Act. See the analysis of Macdonald J. in Seventh Columbo Pty Ltd v Melbourne City Council [1998] VSC 7; (1998) 22 AATR 325. Secondly, I think the likely explanation for the second bullet point is that it seeks to deal with permits which were granted under the repealed scheme but had not commenced as at the time of the commencement of the new scheme. The bullet point does not directly say so but in my view, that is the likely import of the phrase "immediately before the approval date". Unless the bullet point bore this meaning it would apparently overlap with a number of others. For completeness I should add that Clause 63.08 which is referred to in the third bullet point and in relation to which a permit may be granted, deals with the grant of permits for alternative and no less deleterious uses where an existing use right exists for a prohibited purpose under a scheme.

24. The premise of Ms Rosewarne's submission is that the extent of the existing use right is controlled not by the terms of the permit but rather by the precise use to which the premises were put prior to the adoption of the present Scheme. The High Court of Australia considered a cognate issue in Shire of Perth v O'Keefe [1964] HCA 37; (1963) 110 CLR 529. In that case a by-law made by a town planning authority prohibited the use of land for other than certain specified purposes but exempted uses from the prohibition where the land or building "is being lawfully used for a purpose or built on in a manner permitted". The land in question had been used for pottery making. The by-law defined pottery making as "light industry". The Court held that the land could continue to be used for pottery making but not for any of the other purposes falling within the definition of "light industry" in the by-law. Kitto J. said:

"The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or to a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, as the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to enquire, when a use that is being made of the premises at a later date is challenged is not being authorised by By-law 370, whether that use is really in substantial use for the designated purpose. That will often be a question of fact and degree: ... and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases. If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds is appropriate in the application of town-planning legislation that is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to by a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to enquire into the details of the user the `purpose' in the relevant sense would be the purpose of a butcher's shop and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me clear that while changes in methods and designs would be immaterial the use of the premises for making anything other than pottery would be, in a substantial and relevant sense, used for a different purpose."

25. If there were no permit or if no permit were being relied upon, it would be necessary in my view to go to the sort of considerations to which His Honour referred.

26. In the present circumstance we must consider Clause 63.03 of the Scheme which states:

"The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment."

27. As a matter of general principle one would have thought that the 1979 permit and the provisions of the Scheme under which it was issued, would define the extent of the existing use right. One must also note Clause 63.02 of the present Scheme which 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."

28. Clause 63.02 seems to be aimed at codifying the approach adopted by Kitto J. in the Shire of Perth case. Where no permit is being relied upon the process undertaken would be precisely the same as the one adopted by Kitto J.

29. It is noteworthy that the Planning and Environment Act appears to treat existing uses in general separately from pre-existing permits. It may be that the draftsman of the State Section of the present Scheme - Clause 63, dealing with existing uses runs the two together and assumes that existing uses of both types are to be dealt with in the same manner. The provisions of Clause 63.01 with the exception of the second bullet point are a reproduction of what appears in Section 6(3) of the Planning and Environment Act. In my view the scheme of the Planning and Environment Act is to treat existing uses which are the subject of permit rights separately from other existing uses such as those which were carried on before a scheme existed at all or those which were "as of right" under a repealed scheme. Permits are specifically dealt with in Section 68 and 208 of the Planning and Environment Act. Permits create substantive rights. Changes to the substantive law are presumed not to operate retrospectively. See Maxwell v Murphy [1957] HCA 7; (1957) 96, CLR 261, 267 per Dixon CJ. Where a subordinate instrument such as a planning scheme expires, lapses or ceases to have effect, the expiry, lapsing or ceasing to have effect does not affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision (Section 28(2)(e) of the Interpretation of Legislation Act 1984). In my view these principles preserve the operation of Permit No. 745 and it is not dependant at all for its preservation on Clause 62 of the current Scheme or on Section 6(3) of the Planning and Environment Act.

30. Why it may be asked, if the general principles exemplified in the Interpretation of Legislation Act in the Common Law preserve the operation of permits did Parliament enact Section 208 of the Planning and Environment Act? There are two likely reasons. First, out of abundant caution and secondly because what occurred at the time of the enactment of the Planning and Environment Act was more dramatic than merely the repeal of planning schemes. The statute under which the planning schemes had operated were repealed. In those circumstances Parliament likely felt it was appropriate to make express provision for the operation of the permits. Moreover, Section 208 has more work to do than merely retaining permits as accrued rights despite the repeal of the Town and Country Planning Act 1961. The statement that permits under the 1961 Act were deemed to have been issued under the 1987 Act means that a permit issued under the 1961 Act could for instance be the subject of a "minor" amendment under Section 73 or made the subject of a request under Section 87 for amendment or cancellation.

31. It follows that I would respectfully differ from the views expressed by Mr Byard in the matter of Vomanda Pty Ltd v Melbourne City Council (1999) 2 VPR 91, 100 where the learned Senior Member said that a permit issued under a repealed scheme "ceased to be an operative permit" and that the continuing legality of the use was dependant upon the existing use provisions of the relevant planning scheme. I respectfully prefer the analysis of Mrs Rickards in Peacock Amber Pty Ltd v Craig Head and Others (6 December 1999) paragraph [64] to [102]. Though I find the rationale for the continuing operative nature of the permit in its persistence as an accrued right rather than as Mrs Rickards would have it - paragraph [102] under the existing use provisions of Clause 63. My analysis is consistent with the result reached adopted by Balmford J. in Anteden Pty Ltd v Glen Eira City Council. In Anteden Her Honour allowed an appeal from a decision of this Tribunal granting an enforcement order under Section 114 of the Planning and Environment Act 1987. She considered that the purport of a 1984 permit for use of premises as a cabaret "is to be determined according to the definition of `cabaret' in the ordinance, being the planning control under which the permit was granted and the terms of which had not changed immediately before the approval date". [2000] VSC 366; (2000) 16 VAR 334, 346. Her Honour considered that the continued operation of the permit once the scheme under which it was granted was repealed depended upon Section 6 of the Planning and Environment Act 1987 and Clause 63 of the present scheme. Accordingly even if I am wrong as to the basis for the continued operation of permits Anteden would lead to the same conclusion in this proceeding.

32. In my view the effect of these provisions is that Mr Lakkis is entitled to use his shop for any of the purposes set out in the definition of "service premises" in the Shire of Werribee Planning Scheme 1963.

33. Accordingly, I will make the declaration sought.