(b) The use of 6 Neave Street, East Hawthorn by means of the freestanding structure thereon for purposes other than the purposes contained in Section 1 of Clause 32.01-1 of the Boroondara Planning Scheme, contravenes Clause 31.01-5 of the Planning Scheme.

Mr Kevin Mithen, town planner, appeared for the Responsible Authority.

Mr Anthony Hooper QC, appeared on the instructions of his clients for the Applicants G & S Lovell.

Mr John Carneli, Respondent, appeared in person on his own behalf and on behalf of his wife.

Application under s.114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Use of land for screening adjoining land and diminishing its amenity without a permit for such use(s) allegedly contrary to the Section 2 of Clause 32.01-1 and Clause 31.01-2 of the Planning Scheme.

Residential 1 Zone under the Boroondara Planning Scheme.

On the application of Mr Hooper leave was given for the hearing to be recorded on the basis:-

(a) That the Applicants would bear the costs of such recording.

(b) That the tapes of the recording will be surrendered to and held in custody by the Tribunal.

(c) That, in the event of a party wishing to make a transcript of the recording of the proceedings, or part thereof he, she or it may do so on the basis that :-

(i) arrangements are to be made with the Tribunal for this to be done at the expense of that party,

(ii) that all other parties have notice that a transcript is being made and that a copy thereof may be obtained at the expense of such other party, and,

(iii) that a copy of the transcript will be provided to the Tribunal without cost to the Tribunal.

1. This preliminary hearing was conducted in relation to an enforcement order application lodged with the Tribunal on behalf of the Applicants on the 27 August 1999. The application contains a part 6 where the Applicants are intended to state why the application is being made with reference to the contravention being alleged and identifying the provisions allegedly contravened. In that section of the application form the following appeared:-

The rear portion of 6 Neave Street is being used for the purposes of a free-stranding structure in breach of Clauses 31.01-2 and 32.01-1 Section 2 of the Boroondara Planning Scheme without issue of the permit.

2. There is difficulty about this formulation. It speaks of "a free-standing structure" without indicating the nature of the structure. One would suppose that a complaint about a structure would be a complaint about a development (such as the construction of a building or the carrying out of works) rather than a complaint about "the use" of land. It would be understandable if the planning scheme, for example, required a permit to be obtained prior to the construction of a building or structure, and no such permit was in existence. However, the above formulation clearly refers to use without specifying any particular "use", as that expression is used in the planning scheme, in relation to which a permit allegedly should have been obtained. The formulation does not even identify the relevant zone, although that is now ascertained to be Residential 1 Zone. Clause 32.01 of the Planning Scheme relates to that zone.

3. After the application for an enforcement order was received and served on other parties there was a course of correspondence between the Registrar's office and the Applicants. The purpose of this correspondence was to try and clarify the nature of the alleged contravention to be relied upon as forming the basis of the enforcement order application. In particular, it was sought to ascertain the nature of the "free-standing structure", the nature of the alleged use for which permission was said to be required and the provisions of the planning scheme (or, as it may have been, the PE Act or conditions of a permit or an agreement under s. 173 PE Act) allegedly contravened. Although there were several letters in this course of correspondence, all of which was disclosed to the other parties, these matters were not clarified. Indeed it appears that they could not be clarified by correspondence, but that a preliminary hearing would be required.

4. In early December a direction was given for the matter to be set down for a preliminary hearing to ascertain whether there is a contravention that can be alleged against the Respondents and whether the application for an enforcement order should be dismissed. The occasion for dismissal might arise if, on inquiry into the nature of the alleged contravention, it should be found that there was no alleged contravention or arguable contravention.

5. Later in December 1999 the Applicants filed an application for a declaration pursuant to s. 124 of the Victorian Civil and Administrative Tribunal Act 1998. As was noted by Mr Hooper at the hearing on the 13 April 2000, an application for a declaration under that section is not a separate proceeding like an application for a declaration under s. 149B PE Act, but rather seeks a declaration concerning a matter in an existing proceeding, in this case the existing enforcement order application. The Tribunal's power to make a declaration under s. 124 is only exercisable by a judicial member. I am not such a member.

6. After this application under s. 124 was received I reviewed the file on the 8 February 2000. I noted the declaration application, that it requires a judicial member and that I would not be able to deal with the matter for that reason. In those circumstances I recorded a memorandum on the file saying, amongst other things:-

It is better that the giving of directions be taken over by (a) member who will hear the matter. I assume that might be Judge Wood.

Judge Wood is a judicial member, and is the Vice President in charge of the Administrative List of the Tribunal under which the Planning List operates.

7. I anticipated, having done this, that future dealings with this file would be referred to His Honour. In fact what happened, apparently by some misunderstanding of my intention, is that the matter was set down for a preliminary hearing on the 13 April 2000, and I was appointed to conduct that hearing. Notice of the hearing said that its purpose was to ascertain whether there is a contravention and whether the enforcement order application should be dismissed. That was a harking back to the situation in early December, before the application for a declaration under s. 124 VCAT Act was lodged. I have only noticed the memorandum of the 8 February 2000 in relation to future directions being taken over by a member able to hear the matter since the hearing on the 13 April 2000. The hearing on that day was conducted in relation to the purpose of the hearing as indicated in the notice of it that had been sent to the parties.

8. Nevertheless, the hearing on that day did clarify certain confusing matters about the enforcement order application, and it may be helpful to recall these clarifications. They gave rise to the amendment to the enforcement order application noted above.

9. The application for an enforcement order is made in relation to land known as 6 Neave Street, Hawthorn East. This land is allegedly owned and occupied by the Respondents. It is a residential block with a house upon it, and it is used for residential purposes. It is in a Residential 1 Zone under the Planning Scheme, as are the residential properties on either side of it.

10. The Respondents, Mr & Mrs Carneli, live at 4 Neave Street, East Hawthorn. This adjoins one side of 6 Neave Street. On the other side, at 8 Neave Street, is the home of the Applicants, Mr & Mrs Lovell. Mr Hooper informs me, and admits, that there is a house on Nos. 4 & 8, and, like No. 6, each is used for residential purposes, or, to use the term appearing in the planning scheme, as a dwelling.

11. Mr Hooper also pointed out a particular circumstance in relation to the backyards of Nos. 4 & 6 Neave Street. I might add, that nobody contradicted the description he gave in this respect. Behind the house on No. 6, and perhaps halfway towards the rear boundary, there is a transverse fence across the allotment with no gate or opening which separates the front half of the lot (where the house stands) from the rear portion running back to the rear boundary. Furthermore, the site boundary fence between Nos. 4 & 6 runs back only as far as this transverse fence across No. 6. The result is that, so far as fencing is concerned, the whole of No. 4 provides the grounds of the house on Lot 4, but with the addition of the rear portion of No. 6. According to the fencing, the house at No. 4 is on an "L" shaped piece of land with the "foot" of the "L" running behind the house and fence yard of No. 6 and with the "toe" of such "L" being against the rear part of the side boundary of No. 8. It is along about two-thirds of this "toe" boundary with No. 8 that the he complained of "freestanding structure" exists.

12. The mystery of the nature of the so-called free-standing structure has been resolved. Mr Hooper produced photographs of it. There are also some dimensions and specifications in relation to it on a written attachment to a letter from the Applicants to the Registrar's office dated 12 November 1999.

13. There is a normal paling fence, so common on the side boundaries of residential properties in suburban Melbourne, along the rear portion of the side boundary of No. 8 separating it from the "toe" portion of the area serving as an addition to the backyard of No. 4. It is an old paling fence painted brown.

14. The complained of "structure" is erected just inside the boundary and this boundary fence on the No. 6/4 side. It is a screen erected on posts set into the ground. The screen is comprised of sheets of corrugated metal attached to the vertical posts and horizontal rails. The screen is a very high and wide structure, by residential standards. It is allegedly 16.8m wide, 3.53m high but, of course, not very thick. The screening sheets of metal do not reach down to ground level. They commence at 1.35m above ground level. The lower edge of the screen is below the top of the fence line so that the fence and the screen together, although separated horizontally, provide a very high screening affect along almost 17m at the boundary to a height of 3.53m. This is by no means a normal residential separation between properties. The adverse affect on the Lovell property, in terms of screening, denial of prospect, ugliness and feelings of enclosure is obvious from the photos. It may also have an adverse affect from a shadowing point of view.

15. The original form of part 6 of the enforcement order application reads as if it is suggested that the land at 6 Neave Street is being used to support the free-standing structure. It is clear that it is a mistake to confuse a requirement in a planning scheme for permission to use land for a particular purpose with the rather different requirement that arises in planning schemes for permits for development (which may be the construction of buildings or the carrying out of other works). Some proposals require permission for both use and development whilst others require permission for one or neither.

16. In this case Mr Hooper conceded that the use of each of Nos. 4, 6 & 8 Neave Street is residential, or, in terms of the planning scheme for a dwelling. He also admits that the "free-standing structure" or screen, is not, in itself, a use of land. He agrees that the erection of the structure was a development of the land. It was the erection of a building, and if it was not that, then it was the carrying out of a work in terms of the definitions of development and works in the planning scheme. These definitions are to be contrasted with the definition of use in the planning scheme and a concept of use as it is employed in the planning scheme. The definitions have their limitations. The definition of use is somewhat circular, and one needs to understand the concept of "use" (and the use of land for a purpose) as it is used in the planning scheme before the definition can be really understood. The definition of development, on the other hand, is merely inclusive and hence hardly conclusive.

17. The distinction between a use and development is important. It is basic to the question of whether a planning permit is required. In some zones there is a general requirement of a planning permit for any development. If that was so in relation to this Residential 1 Zone, then the Applicants would be able to allege a contravention by having erected the screen without having the necessary permit.

18. In fact, there is no general requirement of a permit for the construction of a building or the carrying out of works. There are only specific requirements for such permission in some limited specific circumstances. For example, a subdivision is a development and a permit is required pursuant to Clause 32.01-2 for that. However, subdivisions do not arise in this case.

19. Under Clause 32.01-3, a permit is required for the construction or extension of a single dwelling on a lot of less than 300m2, but these lots exceed 300m2.

20. Under Clause 32.01-4 a permit is required for medium density housing or residential buildings, but no such development exists or is proposed here.

21. The last specific requirement is under Clause 32.01-5. Under that provision a permit is required to construct a building or carry out works for a use in Section 2 of Clause 32.01-1. That clause contains a table of uses specifying uses for which no permit is required (in Section 1 thereof), those for which a permit is required (in Section 2) and those which are prohibited and for which no permit can be granted (Section 3). Subject to an argument that Mr Hooper wishes to raise, there is no Section 2 use involved here. Certainly the use of the land for dwelling is a Section 1 use. That does not attract the need for a permit for buildings and works.

22. With permission for buildings and works only required in certain specified circumstances, none of which are applicable, Mr Hooper's clients cannot establish a contravention in the Respondents having constructed the screen structure without a permit.

23. Being frustrated in relation to the need for a permit for that building Mr Hooper wants to argue that there is nevertheless a contravention in relation to the "use" of the land. Admittedly the use of the land as a dwelling does not require a permit, and therefore cannot give rise to a contravention when the land is used for that purpose. He wishes to argue that, in addition to the use of the land as a dwelling, there is a further use of the land which permission is required but in relation to which no permit has been granted.

24. Asked what is the nature of this second use for which permission is required, he answers in terms of the amendment that he has sought to the enforcement order application as set out under the first order above. That wording also appears as the first two paragraphs in the application for declarations. The use he argues for is that No. 6 Neave Street is used for screening adjoining land and also that it is used for diminishing the amenity of adjoining land.

25. This is, to say the least of it, a very odd proposition indeed. Where the expression "use" is used in the planning scheme in relation to provisions like the table of uses in Clause 32.01-1 and the provisions of Clause 31 which give life to those use tables, it really means use of land for a purpose like those listed in the table. Common examples are use of land for a shop or a dwelling or a place of worship or a brothel or an abattoir and so on. In ordinary parlance, and in relation to the planning scheme, it makes sense to say that 6 Neave Street is used as a dwelling, just as it might be appropriate to say that other land nearby is used as a shop or a bank. It is more difficult, and apparently incongruous to say that the land is used for screening or diminishing amenity, as if that is the purpose for which land can be put in terms of the planning scheme. However, it is not for me to decide that question here. I would have been called upon to decide that question, if it fell to me to determine the enforcement order application, but the application for a declaration in this respect takes the question beyond by jurisdiction. Because of the application under s. 124, it will have to be determined by a judicial member.

26. It will be for Mr Hooper to put his arguments, as he sees fit, at that stage. It appears that he may be saying that the land is used for screening and diminishing amenity because that is the effect of the presence of the screen. That appears to be rather similar to saying that the land is used for the purpose of the screen. However, the distinction between use and development must be remembered. It is not correct to speak of land being used for the purpose of erecting a house or a sign or a screen. Such developments are developments, not uses. The construction of a house is a development, the use of the land as a dwelling is a use. It may be, as suggested by Mr Hooper, that the motivation for the erection of the structure is to achieve screening or, as he also suggested, for purposes of malice, but screening and malice are not land use purposes like dwelling or shop, for which land can be used in the sense in which use is employed in planning and in the planning scheme.

27. The argument sounds similar to a proposition that a site used for a dwelling is also used for fruit growing because there is an apricot tree in the backyard. An apricot tree may be part of an orchard, but one in the backyard of a house is merely an ancillary part of the use of the land as a dwelling. Whether or not such a feature is a normal (or for that matter an unusual) ancillary of a dwelling, it is not a separate use under the planning scheme from the primary (indeed the only) use of the land, that is as a dwelling.

28. It is true that the list of uses found in the table in Clause 32.01-1 is not exhaustive. Not every possible use is listed in the table. A number of uses are listed in each section of the table, but there is an item at the foot of Section 2 which reads "Any other use not in Section 1 or 3". Mr Hooper seeks to argue that screening and diminishing of amenity are such another use of land caught within that provision. It is an interesting proposition and, I would have thought, a very difficult one to make out; but, as I have said, it is a matter for determination when the enforcement order application and the application for declarations are heard.

29. Of course, the planning laws do not necessarily provide a remedy in every situation where there is a diminution of amenity. Where there is only a Section 1 use, for example a dwelling in an attached house in a Residential 1 Zone where the area of the land exceeds 300m2, it is possible to erect a very large two storey house which is detrimental to the amenity of adjoining properties by overlooking and overshadowing, and perhaps in other ways, where the planning scheme imposes no controls, and hence no remedy. Perceived problems of this sort may or may not amount to a nuisance but common law where there may be a remedy in court, but not before this Tribunal.

30. In the meantime, I raised with the parties the question as to whether this case is a suitable one for reference to mediation. Each party expressed a willingness to be involved in a mediation process. In those circumstances it appears appropriate to defer giving any further directions that might otherwise be desirable in relation to the future conduct of the enforcement order application. I will content myself, at this stage, with making an order for the amendment of the enforcement order application by consent and with referring the matter for arbitration.