respondent. Application for declarations under section 149A (seeking recognition of existing use rights for a dwelling) refused; Tribunal found the relevant application date to be 15 January 2019 but the...
Key principles
Where a landowner submits material to a council by way of a planning property enquiry and the council treats that material as an application to establish existing use rights, the...
To establish an existing use right under clause 63.11, an applicant must prove on the balance of probabilities that the use was carried out continuously for the full 15 year...
Issues before the court
What is the relevant 'date of the application' for the purpose of determining the 15 year continuous-use period in clause 63.11: the date the...
Did the applicants establish that part of the land was used continuously as a dwelling for the 15 year period immediately prior to 15 January 2019?
Whether the council's 14 June 2019 letter directing cessation of dwelling use constituted a 'written direction' for the purposes of clause 63.11...
Cited legislation
Plain English Summary
The Tribunal held that the materials lodged with Moreland City Council on 15 January 2019 (a planning property enquiry) were sufficiently treated by the council as an application to establish existing use rights, so the relevant 15 year period ran to that date. However the applicants did not prove on the balance of probabilities that part of the land had been used continuously as a dwelling for the full 15 years immediately prior to 15 January 2019 (insufficient direct documentary and consistent witness evidence for the pre-2010 period). The requested declarations were therefore refused.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,686 words · generated 28/07/2026
What happened
The owners of 104 McBryde Street, Fawkner (Eman and Mahmoud Machlouch) sought declaratory relief under the Planning and Environment Act 1987 that part of their industrial-zoned land had the benefit of an existing use right as a dwelling for a continuous 15 year period ([Summary] [1]–[5]). They lodged material with Moreland City Council on 15 January 2019 by way of a planning property enquiry, supplying statutory declarations and documentary material intended to show longstanding residential occupation. Council assessed the material, acknowledged receipt and, by letter of 21 March 2019, asked for further documents and said it would finalise assessment (21 March 2019 letter). On 14 June 2019 council advised that existing use rights could not be confirmed and directed the dwelling use to cease by early July 2019. The applicants then filed a VCAT application on 12 July 2019 seeking declarations under section 149A and a certificate under section 97N confirming existing use rights. The Tribunal first had to decide the threshold legal question whether the 'date of the application' for clause 63.11 was 15 January 2019 (the planning property enquiry lodgement) or 12 July 2019 (the VCAT filing). The Tribunal found the 15 January 2019 lodgement constituted an application treated by the council as an application to establish existing use rights. It therefore assessed the applicants' evidence for the 15 year period 15 January 2004 to 15 January 2019, and concluded that the evidence established residential use only from December 2010 (the applicants' period of occupation) and that the evidence for the earlier years (2004–2010) was insufficient, inconsistent or indirect. The declarations were refused (Order).
1 cited instrument linked from this judgment.
Why the court decided this way
Two linked determinations decided the matter.
Temporal question: what is the 'date of the application' for clause 63.11?
The Tribunal applied the interpretive approach endorsed in Octopus Media, that the 15 year requirement in clause 63.11 refers to the 15 years immediately prior to the 'date of the application or proceeding' (Threshold Legal Issue). The practical question was whether the planning property enquiry lodged on 15 January 2019 amounted to an application under section 97N for a certificate acknowledging existing use rights.
The Tribunal looked at the totality of the correspondence: council emails encouraging lodgement by 15 January 2019, the applicants' lawyer's communications confirming preparation of statutory declarations and an invitation to 'lodge your client's application by 15 January 2019', and council's 21 March 2019 letter indicating it would 'proceed to finalise the assessment and confirm its existing use rights has been adequately demonstrated' (see Threshold analysis). On that basis the Tribunal concluded the 15 January 2019 material was treated by the council as an application and so fixed the 15 year period as 15 January 2004 to 15 January 2019. The Tribunal emphasised substance over form: absence of a specialized s97N form or payment of a particular fee did not preclude the planning property enquiry constituting the operative application in the circumstances.
Merits question: was continuous residential use for that 15 year period proven?
The Tribunal emphasised the onus on the applicant to prove on the balance of probabilities that the use persisted continuously for the whole 15 year period. Evidence relied upon included: a 1999 building permit showing a change to a caretaker's residence and plans depicting dwelling elements; neighbours' oral evidence; statutory declarations; rate notices and utility/insurance documents (mainly for the applicants' period of ownership).
The Tribunal accepted dwelling occupation from December 2010 (when the applicants became registered proprietors), but found the evidence for the earlier period weak: neighbours' recollections were often indirect, inconsistent, or lacked detail about internal use; some witnesses contradicted each other about the occupants in 2009–2010; documentary evidence of residential occupation for the pre-2010 period was sparse. Critically, the building permit plans could not substitute for evidence of actual use. The Tribunal therefore concluded the cumulative evidence did not satisfy it that part of the land had been used continuously as a dwelling during 15 January 2004 to 15 January 2019, and refused the declarations.
Before and after state of the law
Before:
Clause 63.11 required proof of continuous use for 15 years prior to the date of the application or proceeding; but practical questions arose about what form an 'application' need take when applicants submit material informally to council (e.g. a planning property enquiry) and about what counts as sufficiently cogent evidence of continuous use.
Clarification from Machlouch:
The Tribunal affirmed that the operative date for the 15 year calculation is the date of the application or proceeding (as emphasised in Octopus Media). The decision adds practical guidance: the absence of a dedicated s97N form or prescribed fee does not preclude materials lodged via a planning property enquiry from constituting an 'application' where the substance of the exchange and the council's treatment of the material show it was regarded as an application. That emphasises a purposive, substance-over-form approach to identifying the relevant application date.
No doctrinal change on evidentiary standard:
The case reinforces that the standard remains proof on the balance of probabilities and that the Tribunal will assess the cumulative strength of evidence; documentary proof (utility bills, insurance, rate notices) and direct evidence from prior occupants are of particular weight, and building permit plans alone do not prove actual residential use.
Key passages with plain-English translation
"Whilst a planning permit enquiry would not automatically be considered an application to establish existing use rights under section 97N... I consider it reasonable to conclude that in this case, the enquiry constituted such an application." (Threshold finding.)
Plain English: Even if the paperwork was labelled a 'planning enquiry', the Tribunal looked at everything that happened and decided that, in practical terms, council treated the materials as an application to recognise existing residential use. So 15 January 2019 was the key date.
"It follows from the above, that the relevant date on which the application was made is 15 January 2019, and that the letter from the council on 14 June 2019 was sent after that relevant date."
Plain English: The 14 June 2019 enforcement letter could not defeat a 15-year claim measured back from 15 January 2019, because it was issued later.
"When assessed cumulatively, the evidence and information, does not establish that the land was used as a dwelling prior to December 2010."
Plain English: Taking all the evidence together, the Tribunal was satisfied the land was used as a home from late 2010 onwards, but there was insufficient reliable proof to show it had been used as a home across the previous six years necessary to make a continuous 15-year claim.
What fact patterns trigger this precedent
Cases where an owner claims existing use rights and has lodged materials with the responsible authority via informal channels (e.g. planning property enquiry, email exchanges) rather than by a formal application form, and the council has engaged substantively with those materials.
Situations where there is a dispute about which date should be used to measure the 15 year continuous-use period under clause 63.11, particularly where council correspondence suggests it has treated earlier lodged materials as an application.
Claims that rely heavily on neighbours' recollection and indirect documentary evidence for long historical periods, rather than contemporaneous documentary proof (utility bills, insurance, rates, tenancy records) or direct statements from prior occupants.
How later courts have treated it
This decision applies the reasoning in Octopus Media (VSC) about the temporal scope of clause 63.11 and demonstrates the Tribunal will carefully scrutinise how councils treated lodged materials when identifying the relevant application date. The decision is consistent with prior authorities emphasising substance over form in administrative processes. Practitioners should therefore expect tribunals and courts to examine correspondence and the practical response of councils to determine what constitutes an 'application' for existing use purposes.
Note: This deep dive is confined to the Machlouch judgment itself and the authorities that it relies upon directly (not subsequent treatments), and reflects how the Tribunal applied Octopus Media in a facts-driven way.
Still-open questions
Degree of formality required to constitute an 'application': Machlouch shows that informal lodgements can count, but it leaves open a precise test for borderline cases where council engagement is minimal. Practitioners should not assume every enquiry will be an application; the decisive factor is how the responsible authority treated the material.
Quantitative weight of neighbour testimony: Machlouch highlights the limits of indirect neighbour evidence. The decision does not prescribe thresholds for sufficiency, so how many and what quality of neighbour statements will tip the balance remains fact-specific.
The role of building permits: The Tribunal treated building plans as indicia of potential dwelling layout but not proof of residential use. The judgment leaves open whether contemporaneous permits together with utility bills or ratings entries might suffice in other cases; it depends on the cumulative coherence of the evidence.
Interaction with enforcement letters issued shortly after lodgement: Machlouch determined a June 2019 letter post-dated the operative application, so it could not defeat the earlier claim under clause 63.11. A remaining question is the effect where councils issue enforceable directions in a timeframe that overlaps or precedes the applicant's lodgement, the sequencing and timing of communications remain critical and fact-dependent.
Practical takeaways for practitioners
When preparing an existing-use claim, lodge as much contemporaneous documentary material as possible covering the entire 15 year period: utility bills, insurance, rates, tenancy agreements, statutory declarations from occupants, etc. Relying primarily on neighbours' recollection is risky.
Preserve and rely upon council correspondence showing how the council treated the lodgement; where the council engages substantively, that can fix the application date for clause 63.11 purposes.
Do not rely on the presence or absence of a particular application form or fee as determinative; focus on substance and on how the council responded.
Time is crucial: if an enforcement direction is issued, note its date relative to any lodgement; securing clear contemporaneous evidence of the lodgement and of council's assessment will assist in establishing the relevant 15 year period.
Mr Peter Van Eps of Counsel, instructed by James O'Donnell of Kennedy Guy Lawyers.
[3]
Further, reliance was placed on statutory declarations of Concetta Deluca who was not called to give evidence due to ill health and Salvatore Piccirillo who was not called.
[4]
Mr Ian Pridgeon, Lawyer, of Russell Kennedy Lawyers. He relied upon the written evidence of:
The land is located on the eastern side of McBryde Street, Fawkner. It has a frontage to McBryde Street of approximately 39 metres and a depth of approximately 46 metres comprising an overall area of 1,811 metres squared. The land is developed with various buildings that are used as a dwelling and storage of vehicles.
[7]
The application was brought by Eman and Mahmoud Machlouch (applicants) who are the registered proprietors of land at 104 McBryde Street, Fawkner (land) under section 149A of the Planning and Environment Act 1987 (Act) seeking the following declarations:
an existing use right with respect to use as a dwelling is established over part of the land for a continuous period of 15 years;
the existing use complies with the requirements of clause 63.11 of the Moreland Planning Scheme (planning scheme); and
the Moreland City Council (council) issue a certificate under section 97N of the Act that the land has the benefit of existing use rights for a dwelling.
At the commencement of the hearing before me, the council raised a threshold legal issue although notice of this issue had previously been given to the parties and the Tribunal.[2]
The threshold legal issue relates to the date the application was made.
The two matters for determination in this application are:
Was the application made before the council's letter directing the cessation of the use of the land for a dwelling?
Does the land have the benefit of existing use rights?
I find that:
the application to establish existing use rights was made to the council before the letter from council directing the cessation of the use of the land for a dwelling; and
the application has not established continuous use of the land for a dwelling for a period of 15 years.
[8]
The applicants' submissions provided a helpful table that set out the relevant events with respect to the use of the land.[3] The following is a summary of the information contained in that table.
[9]
Transfer of the land from Luigi Ciabotti and Elisa Ciabotti to -
[10]
Luigi Ciabotti
Elisa Ciabotti
Lucio Ciabotti
Loretta Ciabotti
[11]
Building Permit issued for alteration to the dwelling for residential use
[12]
15 years prior to application lodging planning property enquiry to recognise existing use rights over the property
[13]
Transfer of the land from Lucio, Loretta & Elisa Ciabotti to -
[14]
Council contact Eman Machlouch and advise property is located in industrial zone and request evidence that the property has been used as a residential dwelling for a continuous period of 15 years.
[15]
Mr and Mrs Machlouch engage lawyers to respond to Council
[16]
Council request Mr and Mrs Machlouch lodge an application via a planning permit enquiry to formalise recognition of existing use rights over the property
[17]
Mr and Mrs Machlouch lodge a planning permit enquiry with council as requested
[18]
Council acknowledge Existing Use Application as "Application to establish existing use rights over 104 McBryde Street Fawkner"
[19]
Existing use rights for use of part of the land as a dwelling cannot be confirmed
Therefore ... direction to cease using the land as a dwelling by 5 July 2019
[20]
Further information that maybe relevant is:
the council issued a Building Permit 1999/2811 (building permit) on 20 December 1999 for change of use to a caretaker's residence and alterations and additions to an existing building on the land. The plans depict the addition of a laundry, dining room and a bedroom in addition to rooms labelled office, bathroom, family room and bedroom;
a rate notice for the land on 30 September 2008 indicates a postal address for Mr and Mrs Ciabotti as 140 McBryde Street, Fawkner; and
council file note indicates that the land was being used for a dwelling around October 2011.
[21]
Clauses 63.01 and 63.11 of the planning scheme provide:
[22]
An existing use right is established in relation to use of land under this scheme if any of the following apply:
[23]
...
Proof of continuous use for 15 years is established under Clause 63.11.
...
[24]
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.
[25]
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:
[26]
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.
[27]
As set out above the applicants seek declarations pursuant to section 149A of the Act that the land has been used for a continuous period of 15 years as a dwelling.[4]
[28]
The council submitted that the relevant period for enquiry regarding the use of the land is the period that commences 15 years prior to the date the application for declaration was filed with the Tribunal, that is 12 July 2004 to 12 July 2019 (relevant period). It relies upon the decision in Octopus Media Pty Ltd v Melbourne CC[5] (Octopus Media) where the Garde J, upheld the decision of the Tribunal that the preferred construction with respect to clause 63.11 of the planning scheme was that the 15 year period is fixed as the 15 years immediately prior to the date of the relevant application or proceeding. There is no debate about the applicability of the decision in Octopus Media. The question for determination in this application is whether the application made to the council in January 2019 is to be properly construed as an application to establish existing use rights under section 97N of the Act.
Clause 63.11 of the planning scheme provides two exceptions to when an existing use right can be established. The exception that the council relies upon in this application is that:
[29]
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.
[30]
The council says that the letter to the applicants on 14 June 2019, clearly and unambiguously stated that the use of the land for a dwelling was not compliant with the planning scheme and must cease within 21 days from the date of each letter.
The applicants dispute the council's contention and submit that clause 63.11 of the planning scheme refers to 'the date of the application' which they submit is the application dated 15 January 2019 that was provided to the council. They say this because on 13 November 2018 the applicants lawyer received an email from Paul Mitchell (Mr Mitchell), an enforcement officer of the council, requesting that the applicants lodge an application by way of a planning permit enquiry'.
On 11 December 2018, the applicants' lawyer wrote to Mr Mitchell as follows (inter alia):
[31]
I understand the Council is requesting information that the premises has been occupied as a residential dwelling for a continuous period of 15 years....
[32]
We are in the process of finalizing the Statutory Declaration and organizing the execution of same...
[33]
A further email was sent on 12 December 2018 by Mr Mitchell to the applicants' lawyer reiterating 'that this application is required to be submitted via a planning permit enquiry... which can be found on the Moreland City Council website....'
I was told by the council that no application form exists for an application for a certificate of compliance under section 97N of the Act. However, there is an associated fee for such an application. The council says that the correct fee for an application for a certificate of compliance was not paid, and that supports its position that the planning permit enquiry was not an application under section 97N of the Act.
On 15 January 2019 the applicants lodged a planning permit enquiry with the council, and they submitted that this application for a planning permit enquiry was treated by the council as an application to establish existing use rights logically under section 97N of the Act. They rely on the letter from council dated 21 March 2019 which states:
[34]
Based on the information you have provided to Council on 6 February 2019, Council is unable to confirm existing use rights for the use of part of the land as a dwelling.
[35]
Council currently rates the land as a factory. Despite this, a review of council records indicates that part of the land was being used as a dwelling on 18 October 2011 when an inspection was carried out by council officers. However, to establish existing use rights as a dwelling, a continuous period of 15 years must be demonstrated. The Statutory declarations submitted do not, on their own, demonstrate this.
[36]
To strengthen your case in demonstrating existing use rights, some or all of the following information would assist:
[37]
Statutory declarations from individuals who previously resided at the property confirming that this was their primary place of residence and the precise period for which this was the case.
Copies of any utility bills issued to the address. This could include telephone, electricity, gas or water bills.
[38]
If you choose to provide some or all of the information listed above to supplement the information previously provided, please do so by 22 April 2019. After this date, Council officers will proceed to finalise the assessment and confirm its existing use rights has been adequately demonstrated.
[39]
The applicants submitted that it would be unfair if this exchange of correspondence was not properly understood to be an application under section 97N of the Act. Further, they say that the relevant period is to be understood to be from 15 January 2019 being the date the applicants submitted the planning permit enquiry with the council.
Whilst a planning permit enquiry would not automatically be considered an application to establish existing use rights under section 97N of the Act, when the information and the exchange of correspondence is taken in its totality, coupled with the fact there is no application form provided for a certificate of compliance, I consider it reasonable to conclude that in this case, the enquiry constituted such an application. I particularly rely on council's correspondence and the language used in that correspondence for example:
Mr Mitchell's email to the applicants' lawyers on 20 December 2018 stating inter alia:
[40]
Considering this, you should be in a position to lodge your client's application by 15 January 2019.
[41]
Having provided a further extension, I am mindful of the length in time to date this has taken and would not want this matter to exceed past the 15 January, 2019;
[42]
the encouragement by the council to submit the application via a planning permit enquiry on its email of 12 December 2018;
the failure to advise the applicants lawyers that the material provided on 15 January 2019 did not constitute an application notwithstanding the correspondence of 20 December 2018; and
council's letter of 21 March 2019 which states inter alia:
[43]
After this date, Council officers will proceed to finalise the assessment and confirm its existing use rights has been adequately demonstrated.
[44]
The council clearly treated the material provided by the applicants on 15 January 2019 as an application to it to seek to establish existing use rights.
On the material before me, I find that there was an application to seek to establish existing use rights made to the council on 15 January 2019 and importantly, the council treated the material as such an application. The only 'application' under the Act that can be made to a council to establish existing use rights is an application pursuant to section 97N of the Act.
Further, and for completeness, when I examine the two planning property enquiry forms attached to the letter of 15 January 2019 the heading states:
[45]
A planning property enquiry provides you written advice about the planning controls that apply to a property.
[46]
It can be used to get information about planning permits issued for a property, details of any outstanding planning enforcement matters, what you can or cannot do on the property that may be restricted by planning controls, or if you need a planning permit for a proposed use or development including whether you need a planning permit for a liquor licence.
[47]
Whilst the words used in this part of the planning property enquiry application are not the same as those used in section 97N of the Act they are not inconsistent with it. If, there is no application form for a certificate of compliance, I see no impediment to the use of a planning property enquiry application as part of the material provided to a council in its consideration of existing use rights.
Therefore, the use of this type of form does not lead me to conclude that the council did not have an application for existing use rights before it nor does the failure to pay the correct fee. The council's letter of 21 March 2019 confirms that it would 'proceed to finalise the assessment and confirm its existing use rights has been adequately demonstrated'. Presumably if the council's assessment had satisfied it that existing use rights for a dwelling had been demonstrated, it would have acknowledged this to the applicant. Further, it is likely to have done so by issuing a certificate of compliance.
It follows from the above, that the relevant date on which the application was made is 15 January 2019, and that the letter from the council on 14 June 2019 was sent after that relevant date.
Therefore, I can continue to consider whether during the relevant period being 15 January 2004 to 15 January 2019 the applicants establish that the land was used continuously as a dwelling.
[48]
The applicants rely on written and viva voce evidence of several witnesses including themselves.
[49]
Angelo Basile (Mr Basile) has owned the land at 102 McBryde Street, Fawkner since 2002. A summary of Mr Basile's evidence follows:
he attends his land at least twice a day, every weekday to collect and deposit machinery he uses throughout the day for his work;
he collects his machinery between 6.30am - 6.45am;
he returns his machinery and prepares for the following day anywhere between 2.30pm and 4pm;
he has had regular contact with the previous owners (Ciabotti's) and the current owners;
he estimates that he would speak with Luigi Ciabotti at least 3 times per week;
he believes that Luigi and Elisa Ciabotti and their son lived on the land from the time he became registered proprietor of his land in 2002 until 2009; and
he had been in the building and observed a kitchen and television.
Angela Piccirillo (Ms Piccirillo) purchased the land at 102 McBryde Street, Fawkner in 2002 with three others as tenants in common. One of the other registered proprietors was Mr Basile. Ms Piccirillo's evidence is that:
when she occasionally visited her own land, where she would see Mr and Mrs Ciabotti and their family on their land;
she occasionally sees and speaks with Mr Machlouch and has done so since 2010;
she frequently sees Mr Machlouch's car parked on the land;
Mark Ciabotti (the Ciabotti's son) worked for her husband and lived on the land from the late 1990's probably 1999 until he was married at which time she believes he left the land and no longer resided there;
she did not see the land being used as a depot for machinery;
she did not see any individuals living on the land from 2009;
she did not enter the buildings on the property as she did not know Luigi and Elisa Ciabotti, she only knew their son; and
she never entered the land.
Babar Ali Munshi (Mr Munshi) has resided at 72 McBryde Street, Fawkner since 2008. He speaks with Mr Machlouch approximately two - three times a week. Prior to the applicants becoming the registered proprietors, the building was occupied by students from India, but the previous owner did not reside on the land. Mr Munshi believes that the previous owner operated a business where he made trailers somewhere in Campbellfield. Mr Munshi entered the property a couple of times prior to the applicants becoming the registered proprietors.
[50]
The evidence from Mr and Mrs Machlouch clearly establishes that from December 2010, they have resided on the land with their family and that the land has been used for the purposes of a dwelling from that date. The applicants' submitted that they have raised their family from the land and have developed a network and community with their neighbours.[6]
Mr Machlouch has three hobby cars that are stored in one of the sheds on the land. His evidence also detailed occupation of part of the land by a demolition company although he could not recall when the demolition company ceased to occupy part of the land.
Mrs Machlouch's evidence is that the demolition company only used the driveway under certain conditions but cannot provide a date for when the occupation of part of the land ceased. The storage containers on the land store her goods as she operates on online sales business.
The applicants do not rely on the evidence of Josephine Ziino (Ms Ziino), although I note for completeness that the evidence is that Marco Ciabotti is Luigi and Elisa Ciabotti's grandson and that he lived on the land from 1995 until 2006.
[51]
The council does not challenge that from 8 December 2010, being the date that the applicants become the registered proprietors of the land that it has been used as a dwelling. However, the council submitted that the evidence relating to the period between 12 July 2004 and 7 December 2010, is inadequate to make a finding that the land (or part of it) has been used as a dwelling.
The council points to the fact that there is no direct evidence from any person who lived on the land in the period 12 July 2004 to 7 December 2010 to establish that the land was used as a dwelling. Rather, the evidence is from neighbours which council says is 'superficial and incomplete'.[7]
[52]
The applicants submit that they have shown on the balance of probabilities from the evidence that the land has been used as a dwelling for a continuous period of 15 years. Further, the applicants say that I should draw an inference by the fact that the council did not call evidence from Messers Mitchell and O'Leary. [8] That inference is that calling these witnesses would not have assisted council's case. The Tribunal is not bound by the rules of evidence, although if considered necessary I would apply such rules. In the circumstances of this case the onus is on the applicant to adduce the evidence that supports the making of a declaration, it is not for the council to prove its case. Accordingly, I draw no inference from the fact that council did not call evidence from council officers.
[53]
The statutory basis for existing use rights are set out in section 6(3) of the Act and clause 63 of the planning scheme. To establish an exiting use right, one must provide sufficient proof that the use has been carried out continuously on the land for 15 years prior to the date of the application.
Therefore, in this application I must be satisfied on the balance of probabilities that the land has been used as a dwelling continuously throughout the relevant 15-year period.
In such applications, there is rarely a single piece of evidence that proves the existence of an existing use. Similarly, it is rare for the absence of one piece of evidence to be fatal to an application. It is the culmination of information and/or evidence of witnesses throughout the relevant period that will tip the balance one way or another.
In this application I have had the benefit of many witnesses that provided cogent evidence regarding the use of the land as a dwelling since December 2010. However, I have not had any direct evidence from the previous landowners and there is very little evidence from the witnesses about the internal layout of the building on the land prior to 2010 and no substantive evidence regarding the actual use of the land.
The building permit indicates a change of use to a caretaker's residence and alterations and additions to an existing building on the land. The plans depict the addition of a laundry, dining room and a bedroom in addition to rooms labelled office, bathroom, family room and bedroom. The plans indicate the typical layout of a dwelling, but it could equally have been used as a caretaker's dwelling. In any event, simply because the building permit indicates that the building contains the elements of a dwelling, it does not provide evidence of the use of the land as a dwelling.
The strongest evidence to support the applicants' case about the period prior the Machlouch's ownership is from Mr Basile and Ms Piccirillo. Mr Basile's evidence is that he had regular contact with the previous owners and that he believed that the previous owners lived on the land. His evidence was that he had been inside the building and he saw a kitchen and television. Ms Piccirillo's evidence was that Mark Ciabotti who worked for her husband lived on the land. However, that is the strongest evidence before me, the remainder of the evidence from witnesses about this period is very general and weak.
[54]
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[55]
[2] By letter dated 20 November 2019 from Russell Kennedy Lawyers.
Machlouch v Moreland CC [2020] VCAT 1142 (12 October 2020)
(1959) 101 CLR 298
AI Analysis
Outcomerespondent
Disposition:
Application for declarations under section 149A (seeking recognition of existing use rights for a dwelling) refused; Tribunal found the relevant application date to be 15 January 2019 but the applicants failed to establish continuous residential use for the required 15 year period immediately prior to that date.
Concetta Deluca (Ms Deluca) has resided at 77 McBryde Street for more than fifty years. Her evidence is that she believes the land has been used as a dwelling for a long time (possible more than 15 years). Ms Deluca also says that she had interactions with Mr and Mrs Ciabotti and their son Marco.
The written evidence of Salvatore Piccirillo (Mr Piccirillo) was relied upon but he was not called to give evidence as his English was 'poor'. Mr Piccirillo's evidence is that when he visited the land he would often 'bump into either or both' Mr and Mr Ciabotti. In 2009, the land was sold and Blakiner Kumar and Manta Rani lived on the land. He speaks with Mr Machlouch two to three times a week.
Little evidence is provided about the period immediately preceding the Machlouch's ownership that is between December 2009 and December 2010. In fact, there is inconsistency between the evidence of Mr Munshi and Mr Piccirillo regarding who resided on the land between December 2009 and December 2010. Mr Munshi says that there were students whereas Mr Piccirillo says that the registered proprietors lived on the land for about a year. This inconsistency undermines the evidence given and the confidence I have in that part of the evidence. However, I acknowledge that this alone is not sufficient for me to find that existing use rights cannot be established because that relates to only one year in the 15 year period.
I accept that the evidence of the witnesses was true in respect of their own beliefs about what occurred on the land. However, simply because there is a kitchen and a television is not sufficient to satisfy me that the land was used as a dwelling prior to 2010. Even Ms Piccirillo's evidence that Mark Ciabotti worked for her husband and that he lived on the land is not direct evidence of what occurred on the land during the relevant period. In fact, little detail was provided regarding the length of time Mark Ciabotti lived on the land.
Further, much of the documentary evidence relied upon by the applicants such as home insurance policies, water and electricity bills are for the period of the Machlouch's ownership for which there is no debate that the land was used as a dwelling. I have very little documentary material regarding the period prior to the Machlouchs' ownership. In an application seeking to establish existing use rights, in the absence of direct evidence from previous owners of the land, an applicant might rely upon documentation that demonstrates residential use. That material is simply not before me.
Having regard to the above and when assessed cumulatively, the evidence and information, does not establish that land was used as a dwelling prior to December 2010.
Therefore, I am not persuaded, to a reasonable degree of satisfaction, that the evidence and documents before me in this proceeding, establishes that the land was used as a dwelling for a continuous period between 15 January 2004 and 15 January 2019.
Accordingly, I decline to make the declarations sought by the applicants.